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FOURTH
SECTION
CASE OF TEKIELA v. POLAND
(Application
no. 35785/07)
JUDGMENT
STRASBOURG
13
January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tekiela v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35785/07) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish
national, Mr Bogusław Tekiela (“the applicant”),
on 23 July 2007.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
3 April 2008 the
President of the Fourth Section gave notice of the application to the
Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
I THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Ostrów Wielkopolski.
A. Civil proceedings for damages
- On
3 February 2003 the applicant instituted civil proceedings for
damages against W.U. before the Kielce Regional Court. On 4 February
2003 the case was transferred to the Kraków Regional Court.
Hearings before that court were held on 8 May, 3 July, 14 and
23 October 2003. On the last date the court assigned an expert
to prepare a report which was submitted to the court on 31 December
2003. Further hearings were scheduled for 20 April and 25 May
2004.
- By
a judgment of 8 June 2004 the applicant's claim was dismissed. On
1 December 2004 the appellate court quashed the first-instance
judgment and the case was remitted.
- A
hearing was held on 11 March 2005. On 2 May 2005 the Regional
Court admitted evidence based on an expert opinion. The expert's
report was submitted to the court on 19 July 2005. As the parties
objected, the court decided that a new expert should be found.
However, it could not find one competent to examine the issues
involved in the case.
- On
29 September 2005 the applicant complained that the proceedings
were too lengthy. In October 2005 the court took steps to find an
expert, to no avail.
- Ultimately
the court decided that two experts should give their opinion as it
was impossible to find one competent to deal with all aspects of the
case. One expert was found and the task of preparing a partial
opinion was assigned to him. On 27 January 2006 the case file was
sent to him. Another expert was asked to prepare an opinion to
complete the first one after he had received the case file with the
first report. The full report was submitted to the court on
4 September 2006.
- On
2 and 3 October 2006 the parties filed their objections concerning
the report. On 19 February and 27 March 2007 hearings were held.
On the latter date the applicant modified and extended his claim. The
next hearing was scheduled for 8 April 2007. On 23 May 2007 the
court gave a judgment and allowed the applicant's claim in part.
- The
parties appealed. On 21 November 2007 the Kraków Court of
Appeal dismissed both appeals. In February 2008 both parties lodged
cassation appeals with the Supreme Court. The case is currently
pending before that court.
B. Proceedings under the 2004 Act
- On
an unspecified date the applicant filed, under the Law of
17 June 2004 (Ustawa o skardze na naruszenie
prawa strony do rozpoznania sprawy w postępowaniu sądowym
bez nieuzasadnionej zwłoki) (“the 2004 Act”),
a complaint about the breach of the right to a fair trial within a
reasonable time. He also claimed compensation for the excessive
length of the proceedings.
- On
29 January 2007 the Kraków Court of Appeal found that
from October 2005 until January 2006 the Regional Court had failed to
conduct the proceedings expeditiously. It dismissed the applicant's
request to be awarded compensation and ordered the Regional Court to
give a judgment on the merits of the case before July 2007.
- On
2 April 2007 the court rejected the applicant's appeal against
this decision, finding that no appeal was available in law against
it.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are stated in the Court's
decisions in the cases of Charzyński v. Poland
no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V
and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR
2005-VIII and the judgment in the case of Krasuski v. Poland,
no. 61444/00, §§ 34 46, ECHR 2005 V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE
PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
-
The Government contested that argument.
- The
period to be taken into consideration began on 3 February 2003
and has not yet ended. It has thus lasted five years and nine months
for three levels of jurisdiction.
A. Admissibility
- The
Court notes that the Government raised a preliminary objection that
the applicant had not exhausted all remedies available under Polish
law. They maintained that he had not lodged a claim with the civil
courts for compensation for damage suffered due to the excessive
length of the proceedings. Such a claim was provided for by
Article 417 of the Civil Code.
- The
Court has already examined and rejected the Government's arguments in
this respect on many occasions (see Cichla v. Poland
no. 18036/03, § 21-26, 10 October 2006; and
Jagiełło v Poland, no. 59738/00, § 24,
23 January 2007). The Court considers that the Government have
not put forward any fact or argument capable of persuading it to
reach a different conclusion in the present case.
- Accordingly,
the Court concludes that, for the purposes of Article 35 § 1
of the Convention, the applicant has exhausted domestic remedies. It
follows that the Government's plea of inadmissibility on the ground
of non exhaustion of domestic remedies must be dismissed.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96,
§ 43, ECHR 2000 VII).
- The
Court has frequently found violations of Article 6 § 1
of the Convention in cases raising issues similar to the one in the
present case (see Frydlender, cited above).
- The
Court further notes that the applicant had recourse to the domestic
remedy provided for by the 2004 Act (see paragraph 15 above). He
filed a complaint about a breach of his right to a fair trial within
a reasonable time with the Kraków Court of Appeal.
The
Court observes that the purpose of the complaint about the
unreasonable length of the proceedings under that Act is twofold.
Firstly, the complainant may obtain a finding of an infringement of
the “reasonable time” principle and, where
appropriate, may be awarded just satisfaction in an amount not
exceeding PLN 10,000. Secondly, he can request the court to
instruct the court which examines the merits of the case to take
certain measures within a fixed time-limit and thus to accelerate the
impugned proceedings (see Michalak v. Poland, no. 24549/03,
§ 16, 1 March 2005). In the present case, in its
decision of 29 January 2007 the Court of Appeal found that the lower
court had failed to conduct the proceedings speedily, but dismissed
the applicant's request for compensation. However, it made use of its
competence to instruct the court before which the proceedings were
pending at that time and ordered it to give a judgment on the merits
of the applicant's case before July 2007.
The
Court notes with approval that this order was complied with as
subsequently the first-instance judgment was given by the Kraków
Regional Court on 23 May 2007. Hence, the remedy used by the
applicant provided adequate redress to the applicant in that it
resulted in the acceleration of the proceedings.
- However,
having examined all the material submitted to it, the Court considers
that the Government have not put forward any fact or argument capable
of persuading it that the proceedings in the present case, seen as a
whole, had been conducted speedily. In particular, the Court notes
that considerable and repeated delays in the proceedings were caused
by the difficulties in obtaining the expert opinions. It observes in
this connection that experts work in the context of judicial
proceedings supervised by a judge, who remains responsible for the
preparation and speedy conduct of proceedings (see, among many other
authorities, Musiał v. Poland [GC], no. 24557/94,
§ 48, ECHR 1999 II; Wojnowicz v. Poland,
no. 33082/96, § 65, 21 September 2000).
- Having
regard to its case law on the subject, the Court considers that
in the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that his complaint about a breach of his right
to a trial within a reasonable time was not effective. He referred to
Article 13 of the Convention which reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government submitted that this complaint should be declared
inadmissible on account of the applicant's failure to seek
compensation for the excessive length of the proceedings before a
civil court (see paragraph 19 above).
31. The Court
reiterates that Article
13
guarantees an effective remedy before a national authority for an
alleged breach of the requirement under Article 6 § 1
to hear a case within a reasonable time. However, the “effectiveness”
of a “remedy” within the meaning of that provision does
not depend on the certainty of a favourable outcome for the applicant
(see Kudła
v. Poland
[GC], no. 30210/96,
§§ 154 et seq., ECHR 2000-XI, §§ 156-157).
32. While the
subsidiarity principle underlying the Convention system requires the
Contracting States to introduce a mechanism addressing complaints
about the excessive length of proceedings within the national legal
system, they are afforded – subject to compliance with the
requirements of the Convention – some discretion as to the
manner in which they provide individuals with the relief required by
Article
13
and conform to their Convention obligation under that provision. In
particular, where the State has introduced a compensatory remedy, the
Court must leave to it a wide margin of appreciation and allow it to
organise the remedy – including the interpretation and
application of the notion of “damage” in a given case –
in a manner consistent with its own legal system, traditions and the
standard of living in the country concerned (see Kudła
ibid.;
and Scordino v. Italy
(no.1) [GC],
no. 36813/97, §§ 188-189, ECHR 2006-...).
33. The fact that in
the present case the applicant's complaint under the 2004 Act failed
in that no financial award was made does not in itself render the
remedy under the 2004 Act incompatible with Article
13.
34. As stated above,
the expression “effective remedy” used in Article 13
cannot be interpreted as a remedy bound to succeed, but simply an
accessible remedy before an authority competent to examine the merits
of a complaint (see, e.g.,
Šidlová
v. Slovakia,
no. 50224/99, § 77, 26 September 2006).
35. In the light of the
foregoing, the Court considers that in the circumstances of the
present case it cannot be said that the applicant's right to an
effective remedy under Article 13
of the Convention has not been respected.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 Polish zlotys (PLN) in respect of pecuniary
and non pecuniary damage.
- The
Government contested the claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 900 (nine hundred euros)
in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant did not make any claim for costs and expenses involved in
the proceedings.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 900
(nine hundred euros) in respect of non-pecuniary damage, plus any tax
that may be chargeable, to be converted into Polish zlotys at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
