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FOURTH
SECTION
CASE OF IWANKIEWICZ v. POLAND
(Application
no. 6433/09)
JUDGMENT
STRASBOURG
7 December
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Iwankiewicz 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
- The
case originated in an application
(no. 6433/09) 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 Kazimierz
Iwankiewicz (“the applicant”), on 5 January 2009.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
19 November 2009 the
President of the Fourth Section 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).
In accordance with Protocol No. 14, the application was
assigned to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Lipiany.
A. Civil proceedings for division of inheritance
- On
15 November 1996 the applicant brought before the Poznań –
Stare Miasto District Court (Sąd Rejonowy) an action for
the division of the estate of his late father. The estate comprised,
inter alia, real property located in Poznań.
- Shortly
afterwards, the applicant asked the same court for a decision
declaring that he had acquired his late father's estate. On an
unspecified subsequent date both actions were consolidated into one.
- On
16 July 1998 the case was referred to the Stargard Szczeciński
District Court as most of the parties to the proceedings lived in
that region.
- On
21 September 1999 the court gave a partial decision (postanowienie
częściowe) declaring that the applicant had acquired
3/16 of the estate.
- On
11 May 2004 the Szczecin Regional Court (Sąd Okręgowy)
referred the case in its part concerning the division of an
inheritance to the Poznań District Court. It further decided
that the inheritance proceedings should be joined with another
set of proceedings concerning the dissolution of co ownership of
the real property in question.
- On
24 September and 30 November 2004, 4 February, 25 March, 17 May,
2 August, 18 October and 9 December 2005 the Poznań District
Court held hearings.
- In
August 2005 the Poznań District Court ordered that an expert
report estimating the market value of the real property be prepared
within four months.
- In
January 2006 the expert informed the court that he would not be able
to submit the report within the above time-limit because of a heavy
workload.
- In
August 2006 the expert notified the court that he was denied access
to 9 out of the 15 apartments which made up the property.
- On
1 December 2006 the expert submitted a report estimating the value of
eight apartments only. In the report, the expert noted that he could
not inspect the rest of the apartments as their current tenants
had not allowed him to do so.
- Between
1 December 2006 and 7 August 2008 the Poznań District Court gave
several interlocutory decisions concerning the estimate of the value
of the real property.
- A
hearing scheduled for 18 May 2010 was adjourned due to the illness of
the judge. The next hearing was scheduled for 14 September 2010.
- The
proceedings are still pending before the Poznań District Court.
B. Proceedings under the 2004 Act
- On 7 August 2008 the applicant lodged with the Poznań
Regional Court 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”).
- On
24 October 2008 the Poznań Regional Court acknowledged that
there had been some periods of inactivity for which the Poznań
District Court had been responsible, in particular that an expert
report had not been prepared within the time-limit fixed and that
little effort had been made by the court to discipline the
expert. In its analysis the court did not examine the course of the
proceedings prior to the date of the entry into force of the 2004
Act.
- The
Poznań Regional Court refused to grant the applicant any
compensation considering that he had failed to duly justify the
amount sought.
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 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. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- On
24 May 2010 the Government submitted a unilateral declaration similar
to that in the case Tahsin Acar v. Turkey (preliminary
objection) [GC], no. 26307/95, ECHR 2003-VI) and informed
the Court that they were ready to accept that there had been a
violation of the applicant's rights under Article 6 § 1 of the
Convention as a result of the unreasonable length of the proceedings
in which the applicant had been involved. In respect
of non pecuniary damage, the Government proposed to award
the applicant PLN 20,000 (the equivalent of approx. EUR 5,000).
The Government invited the Court to strike out the application
in accordance with Article 37 of the Convention.
- The
applicant contested the Government's request to strike out the
application from the Court's list of cases.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out
an application under Article 37 § 1 (c) of the Convention
on the basis of a unilateral declaration by the respondent
Government even if the applicant wishes the examination of the case
to be continued. It will depend on the particular circumstances
whether the unilateral declaration offers a sufficient basis for
finding that respect for human rights as defined in the Convention
and its Protocols does not require the Court to continue its
examination of the case (see Tahsin Acar, cited above,
§ 75; and Melnic v. Moldova,
no. 6923/03, § 22, 14 November 2006).
- According to the Court's case-law, the amount
proposed in a unilateral declaration may be considered a
sufficient basis for striking out an application or part thereof. The
Court will have regard in this connection to the compatibility of the
amount with its own awards in similar length of proceedings cases,
bearing in mind the principles which it has developed for determining
victim status and for assessing the amount of non-pecuniary
compensation to be awarded where it has found a breach of the
reasonable time requirement (see Cocchiarella v. Italy
[GC], no. 64886/01, §§ 85 107, ECHR
2006 ...,; Scordino v. Italy (no.1) [GC], no. 36813/97,
§§ 193-215, ECHR-2006-...; and Dubjakova v.
Slovakia (dec.), no. 67299/01, 10 October 2004).
- On
the facts, and having regard in particular to the amount
of compensation proposed, the Court finds that the Government
have failed to provide a sufficient basis for concluding that respect
for human rights as defined in the Convention and its Protocols
does not require it to continue its examination of the case (see,
conversely, Spółka z o.o. WAZA v. Poland
(striking out), no. 11602/02, 26 June 2007).
- This
being so, the Court rejects the Government's request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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 15 November 1996
and has not yet ended. It has thus lasted thirteen years and
ten months for one level of jurisdiction.
A. Admissibility
- 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
- 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).
- 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 to reach a different conclusion in the present
case. 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.
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 20,000 euros (EUR) in respect of non pecuniary
damage. The further claimed 518,400 Polish zlotys (PLN) in respect of
pecuniary damage.
- The
Government contested these claims as excessive, unsubstantiated and
inconsistent with the Court's case law.
- 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 12,000 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
- Rejects the Government's request to strike the
application out of the list;
2. Declares the
application admissible;
- 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,
EUR 12,000 (twelve thousand 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 7 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ljiljana Mijović
Deputy
Registrar President
