FOURTH SECTION

CASE OF KLIK v. POLAND

(Application no. 39836/09)

JUDGMENT

STRASBOURG

7 December 2010

This judgment is final but it may be subject to editorial revision. 
In the case of Klik v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Ljiljana Mijović, President,
	Lech Garlicki,
	Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 16 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 39836/09) 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 Stanisław Klik (“the applicant”), on 3 July 2009.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On 31 March 2010 the President of the Fourth Section of the Court decided to communicate the complaint concerning the length of the civil proceedings to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1947 and lives in Warszawa.
A.  Civil proceedings for payment
5.  On 8 February 1999 the applicant instituted civil proceedings for payment against the State Treasury.
6.  On 16 December 1999 and on 23 March 2000 the Warsaw Regional Court (Sąd Okręgowy) held hearings.
7.  On 26 June 2000 the applicant amended his claim.
8.  On 24 October 2000 the court held a hearing.
9.  On 26 February 2001 the applicant again amended his claim.

10.  On 27 February 2001, 9 August 2001 and 17 January 2002 the court held hearings.
11.  On 19 March and 10 April 2002 the applicant amended his claim.
12.  On 21 March 2002 the applicant's legal-aid lawyer informed the court that he had requested the Regional Bar Association to release him from his duties as the applicant's representative.
13.  On 8 April 2002 the Regional Bar Association appointed a new legal-aid lawyer to represent the applicant.
14.  On 28 May 2002 the applicant's legal-aid lawyer requested the court to be given time to get acquainted with the case.
15.  In October 2003 the applicant requested the court to appoint a different legal-aid lawyer as the current one failed to protect his interests.
16.  On 9 October and December 2003 the court held hearings.
17.  On 8 December 2003 the Regional Bar Association assigned a new legal-aid lawyer to represent the applicant.
18.  On 19 February 2004 the applicant amended his claim.
19.  On 24 February 2004 the court held a hearing. A hearing scheduled for 14 October 2004 was cancelled as the presiding judge assigned to the case resigned from his job.
20.  On 20 January 2005 the court held a hearing.
21.  On 25 January 2005 the court requested the defendant to submit copies of case-files concerning enforcement proceedings instituted against the applicant which were necessary for preparing an expert report.
22.  A hearing scheduled for 11 April 2005 was cancelled as the defendant failed to submit the relevant documents within the prescribed time-limit.
23.  In May 2005 an expert submitted a report.
24.  On 8 June and 12 October 2005, 25 January and 17 May 2006 the Warsaw Regional Court held hearings.
25.  Between May and November 2006 the court dealt with the applicant's requests to order another expert report.
26.  On 24 November 2006 an expert submitted a report.
27.  On 25 January and 16 May 2007 the court held hearings.
28.  On 12 June 2007 the Warsaw Regional Court dismissed the applicant's claim.
29.  On 1 August 2007 the applicant appealed.
30.  On 18 August 2007 the applicant's legal-aid lawyer informed the court that she requested the Regional Bar Association to be released from her duties pointing out to the applicant's lack of trust in her.
31.  On 17 September 2007 the Regional Bar Association assigned T.L. as the applicant's legal-aid lawyer.
32.  On 17 September 2007 and 18 February 2008 the applicant amended his claim.
33.  On 27 May 2008 the Warsaw Court of Appeal (Sąd Apelacyjny) held a hearing.
34.  On 8 October 2008 the Warsaw Court of Appeal quashed the contested judgment and remitted the case.
35.  On 17 December 2008 and again on 19 February 2009 the applicant amended his claim.
36.  On 2 April 2009 the applicant informed the court that he resigned from being represented by T.L. and requested the court to appoint a new legal-aid lawyer: a legal adviser and not an advocate. On the same date the court ordered another expert report.
37.  On 17 June 2009 the court dismissed the applicant's request to appoint another legal-aid lawyer. The applicant unsuccessfully appealed against this decision.
38.  On 7 December 2009 and 12 April 2010 an expert requested the court to extend the time-limit for submitting a report.
39.  On 10 May 2010 an expert submitted a report.
40.  The proceedings are pending before the first-instance court.
B.  Proceedings under the 2004 Act
41.  On 6 April 2009 the applicant lodged with the Warsaw Court of Appeal a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
42.  On 15 May 2009 the Warsaw Court of Appeal dismissed the applicant's complaint stating that there were no significant periods of unjustified inactivity for which the Warsaw Regional Court had been responsible. In its analysis the court examined only the course of the proceedings after 8 October 2008 stating that the applicant's complaint could only refer to the current stage of the proceedings i.e. after the remittal.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
43.  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 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
44.  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...”
45.  The Government contested that argument.
46.  The period to be taken into consideration began on 8 February 1999 and has not yet ended. It has thus lasted eleven years and seven months for two levels of jurisdiction.
A.  Admissibility
47.  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
1.  The submissions before the Court
(a)  The Government
48.  The Government submitted that the case was rather a complex one. In particular, they referred to the fact that the domestic courts had recourse to numerous expert opinions.
49.  The Government further argued that the applicant significantly contributed to the length of the proceedings because he had modified the value of his claim on nine occasions. The Government also underlined the lack of the applicant's cooperation with his legal-aid lawyers. In the Government's opinion the fact that the applicant's legal-aid counsels were changed four times during the proceedings contributed to their protracted length. Finally, the Government submitted that the applicant contributed to the length of the proceedings by challenging expert opinions and requesting the court to appoint new experts. In particular, the Government pointed out that on different stages of the proceedings and without consultation with his legal-aid lawyers the applicant had submitted twenty-three requests for new evidence as well as numerous and voluminous pleadings, often repetitious, which had considerably contributed to the length of the case.
50.  As regards the conduct of the domestic authorities, the Government maintained that they acted with due diligence and that the District Court “made efforts to ensure that the process of obtaining evidence followed its proper course”.
(b)  The applicant
51.  The applicant contested the Government's arguments. He submitted that the domestic courts had been inept in dealing with the case.
2.  The Court's assessment
52.  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).
53.  The Court considers that the case involved a certain degree of complexity as the facts of the case had to be assessed against the expert evidence. However, the complexity of the case cannot explain the overall length of the proceedings.
54.  As regards the conduct of the applicant, the Court takes note of the Government's contention that the applicant changed on several occasions the value of his claim (see paragraphs 7, 9, 11, 18, 32 and 35 above). The Court observes that, while an applicant is entitled to make use of his procedural right to extend his claim in a civil case, he must be aware that it may lead to delays the consequences of which he would have to bear (see Malicka-Wąsowska v. Poland, (dec.), no. 41413/98, 5 April 2001). It is particularly true in a situation were modification of the claim results in the repetition of some of the trial court's proceedings.
The Court notes that, in the case under consideration, the applicant modified his claim on nine occasions. Therefore, the Court agrees that the applicant contributed to the length of the proceedings.
55.  With regard to the conduct of the domestic authorities, the Court notes that while it is true that the domestic courts had difficulty in obtaining a satisfactory expert report, nevertheless, the experts' work in the context of judicial proceedings was supervised by a judge, who remained responsible for the preparation and speedy conduct of proceedings (see, the Proszak v. Poland judgment of 16 December 1997, Reports of Judgments and Decisions 1997‑VIII, § 44).
56.  Moreover, the Court observes that although the applicant lodged several requests for new evidence to be taken, it was for the domestic court to decide which evidence was relevant to the case. It was not obliged to accede to all the applicant's requests in this respect. Moreover, the applicant's requests for evidence do not absolve the courts from the obligation to proceed speedily. What is more, the impact of these motions on the conduct of the proceedings was not such as to justify their overall length.
57.  The Court also notes that while the second-instance court examined the applicant's appeal with reasonable expedition, the first-instance court gave its judgment over eight years after the introduction of the applicant's claim. Despite the latter's behaviour, that time cannot be regarded as reasonable. The Court observes that the Warsaw Regional Court held on average only two hearings a year. In addition, it appears that no hearings were scheduled between February and December 1999, between May 2002 and October 2003 and between February and October 2004. The Court notes that the Government did not provide any explanation for those delays.
58.  Consequently, the Court considers that, in the particular circumstances of the instant case, a period of over eleven years and seven months exceeds a reasonable time.
There has accordingly been a violation of Article 6 § 1 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
59.  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
60.  The applicant claimed 400,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
61.  The Government contested the claim as exorbitant and unjustified.
62.  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, ruling on an equitable basis and considering that the applicant contributed to the length of the proceedings, it awards the applicant EUR 5,400 in respect of non-pecuniary damage.
B.  Costs and expenses
63.  The applicant did not make any claim for costs and expenses involved in the proceedings.
C.  Default interest
64.  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.  Declared the application admissible;

2.  Held that there had been a violation of Article 6 § 1 of the Convention;

3.  Held
(a)  that the respondent State is to pay the applicant, within three months, EUR 5,400 (five thousand four 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;

4.  Dismissed the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 7 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ljiljana Mijović
	Deputy Registrar	President