FOURTH SECTION

CASE OF ARKADIUSZ KUBIK v. POLAND

(Application no. 45097/05)

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 Arkadiusz Kubik v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Giovanni Bonello,
	Ljiljana Mijović,
	David Thór Björgvinsson,
	Ledi Bianku,
	Mihai Poalelungi, judges,

Having deliberated in private on 9 December 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On  the President of the Fourth Section of the Court decided to give 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
4.  The applicant was born in 1934 and lives in Sosnowiec.
A.  Civil proceedings for payment
5.  On 4 March 1997 the applicant lodged with the Katowice Regional Court (Sąd Okręgowy) a claim for payment against a limited liability coal‑mining company which for several years had been in possession of the applicant's plot of land and had not paid the applicant any remuneration for using it without a contract.
6.  Between 2 October 1997 and 11 September 2000 the court listed 8 hearings and heard five expert witnesses.
7.  On 25 September 2000 the Katowice Regional Court gave judgment and partly granted the claim.
8.  On 29 September 2000 the defendant was declared insolvent and a trustee (syndyk masy upadłości) was appointed.
9.  On 31 October 2000 the trustee lodged an appeal against the judgment of 25 September 2000.
10.  On 22 November 2000 the Katowice Regional Court stayed the proceedings. The court relied on a provision of the Code of Civil Proceedings (Kodeks postępowania cywilnego) pursuant to which the proceedings had to be stayed if a party to them had meanwhile been declared insolvent and the dispute concerned an object belonging to the assets of the insolvent party.
On 23 May 2007 the Katowice Regional Court gave a decision and discontinued the proceedings. It relied on a newly amended provision of the Code of Civil Proceedings pursuant to which a court must discontinue the proceedings if they concern assets belonging to the insolvent party and the liquidation of the assets in question has been ordered.
B.  Proceedings under the 2004 Act in respect of the proceedings for payment
11.  On 7 July 2006 the applicant lodged a complaint about the undue length of the proceedings under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time () (“the 2004 Act”).
12.  On 25 August 2006 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed his complaint. Relying on certain judgments of the Supreme Court (Sąd Najwyższy) according to which the 2004 Act was applicable only to proceedings in which the “state of unreasonable delay” existed on the date on which the 2004 Act entered into force, the court came to the conclusion that a complaint under this Act was not the appropriate remedy for seeking a ruling on the unreasonable length of the proceedings before the court, which had resolved the dispute a long time ago (in this regard the court referred to the fact that the Regional Court had given its judgment on 25 September 2000 and after that date the proceedings had been stayed). The court also found that the applicant had not appealed against the decision staying the proceedings and concluded that the period in which the proceedings had been stayed could not be taken into account.
C.  The proceedings against the trustee
13.  On 23 July 2001 the applicant instituted proceedings against the trustee of the above-mentioned company, seeking to recover possession of the property which had been used by the coal-mining company.
14.  On 6 June 2005 the Katowice Regional Court stayed the proceedings. The applicant appealed and, on 8 August 2005, the Katowice Court of Appeal dismissed his appeal.
15.  On an unspecified date the applicant requested the court to resume the proceedings.
16.  On 8 December 2006 the Katowice Regional Court rejected the applicant's request.
17.  On an unspecified date the applicant appealed against that decision.
18.  On 10 April 2007 the Katowice Court of Appeal amended the Regional Court's decision, granted the applicant's request and resumed the proceedings.
19.  The proceedings are pending.
D.  Proceedings under the 2004 Act in relation to the proceedings against the trustee
20.  On 3 December 2005 the applicant lodged a complaint under the 2004 Act.
21.  On 1 March 2006 the Katowice Court of Appeal rejected the complaint on account of a procedural mistake; the applicant had failed to specify in his complaint the legal basis of the claim and the relief sought, in particular he did not ask the court to declare that the length of the proceedings had been excessive.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
22.  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 in 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 FOR PAYMENT
23.  The applicant complained that the length of the proceedings for payment 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...”
24.  The Government contested that argument and submitted that the case had been complex and required collecting a substantial quantity of evidence and hearing some expert witnesses.
25.  The period to be taken into consideration began on 27 February 1997 and ended on 23 May 2007. It thus lasted ten years, two months and twenty‑six days for one level of jurisdiction; on appeal the proceedings were stayed.
A.  Admissibility
26 .  The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
27.  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).
28.  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). Furthermore, the Court considers that, in dismissing the applicant's complaint that the proceedings in his case exceeded a reasonable time, the Court of Appeal failed to apply standards which were in conformity with the principles embodied in the Court's case‑law (see Majewski v. Poland, no. 52690/99, § 36, 11 October 2005).
29.  Having examined all the material submitted to it, the Court accepts that the case was of a certain complexity and required some expert opinions to be collected by the courts. It considers however that the complexity of the case cannot justify the overall length of the proceedings. 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 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS AGAINST THE TRUSTEE
30.  The applicant also complained that the proceedings against the trustee had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
31.  The Court notes that he lodged a complaint under the 2004 Act and that on 1 March 2006 the Katowice Court of Appeal rejected the complaint because of a procedural mistake; the applicant had failed to specify the circumstances justifying his claim and to demand that the court acknowledge the unreasonable length of the proceedings, as required by section 6 of the 2004 Act.
32.  The Court has already found that when a complaint under the 2004 Act has been rejected for a procedural mistake and it is still open to the applicant to lodge another complaint, the applicant is required to do so (see Komorowska v. Poland (dec.) 38226/03).
33.  Accordingly, the Court considers that the applicant failed to exhaust domestic remedies in that he did not lodge a further and correctly formulated complaint under section 5 of the 2004 Act after the domestic court had rejected his initial complaint for procedural mistakes.
It follows that the complaint about the excessive length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34.  Lastly, the applicant complained under Article 1 of Protocol No. 1 to the Convention that the defendant company had been using his plot of land without paying for it.
The Court notes that the proceedings for compensation were terminated. However, another set of proceedings – against the trustee, for the return of the property in question – is still pending. Therefore the Court considers that the matter complained of by the applicant under Article 1 of Protocol No. 1 has not yet been resolved before the domestic courts.
It follows that the complaint is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
35.  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
36.  The applicant claimed 1,000,000 Polish zlotys (PLN) in respect of pecuniary and non-pecuniary damage.
37.  The Government contested the claim.
38.  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 8,400 euros (EUR) in respect of non‑pecuniary damage.
B.  Costs and expenses
39.  The applicant did not make any claim for costs and expenses involved in the proceedings.
C.  Default interest
40.  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
1.  Declares the complaint concerning the excessive length of the civil proceedings for payment admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  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 8,400 (eight thousand four hundred euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement plus any tax that may be chargeable;
(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;

4.  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