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FOURTH
SECTION
CASE OF WIŚNIEWSKA v. POLAND
(Application
no. 42401/08)
JUDGMENT
STRASBOURG
20
April 2010
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 Wiśniewska 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,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 42401/08) 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, Ms Bożenna
Wiśniewska (“the applicant”), on 21 July 2008.
- The
applicant was represented by Mr Mikołaj Pietrzak, a lawyer
practising in Warsaw. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- On
11 May 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Warszawa.
A. Civil proceedings for division of matrimonial
property
- On
29 March 1995 the applicant brought an action for division
of matrimonial property.
- On
25 October 1995 the Warsaw District Court (Sąd Rejonowy)
held the first hearing.
- Between
October 1995 and March 2007 the Warsaw District Court scheduled
approximately 25 hearings. At least eight of them were adjourned –
on three occasions because of the absence of a witness, on two
occasions because of the illness of the judge, on one occasion
because the court had to deal with the request of R.W., the
applicant's former husband, to appoint a legal-aid lawyer and on
two occasions due to the large number of documents and motions
filed by the parties. Three expert's opinions evaluating the market
value of the property were delivered during this period.
- On
23 March 2007 the Warsaw District Court decided on the equitable
distribution of property between the applicant and R.W. The applicant
was granted, in particular, the ownership of the common apartment
together with the furniture and was obliged to pay R.W. a certain
amount of money.
- On
4 May 2007 the applicant was served with the written reasoning for
the decision.
- On
18 May 2007 the applicant appealed against the impugned decision.
- On
3 December 2007 the Warsaw District Court sent the case file to the
Warsaw Regional Court (Sąd Okręgowy).
- On
11 March and 24 June 2008 the Warsaw Regional Court held hearings.
- On
8 July 2008 the Warsaw Regional Court amended the Warsaw District
Court's decision in respect of the amount of money that the applicant
was obliged to pay R.W. and upheld the remainder of the decision.
- On
24 September 2008 the applicant was served with the written reasoning
for the decision.
- On
24 November 2008 the applicant lodged a cassation appeal against the
Warsaw Regional Court's decision.
- On
9 June 2009 the Supreme Court (Sąd Najwyższy)
refused to examine the applicant's cassation appeal.
B. Proceedings under the 2004 Act
- On 23 May 2005 the applicant
lodged a complaint with the Warsaw Regional Court 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”). The applicant sought a ruling that the length of
the proceedings before the Warsaw District Court had been excessive
and an award of just satisfaction in the amount of 10,000 Polish
zlotys (PLN).
- On 27 July 2005 the Warsaw Regional Court dismissed
the applicant's complaint. The court held that the 2004 Act had taken
full legal effect on the date of its entry into force, i.e. 17
September 2004. It acknowledged that there had been some periods
of inactivity for which the Warsaw District Court had been
responsible. However, it found that in the period after
17 September 2004 there had been no inactivity or undue delay on
the part of the authorities. It accordingly held that there had been
no breach of the right to a trial within a reasonable time during the
relevant part of the proceedings.
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. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- On
16 October 2009 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 17,000 (the equivalent of approx. EUR 4,250).
The Government invited the Court to strike out the application
in accordance with Article 37 of the Convention.
- The
applicant did not agree with the Government's proposal and requested
the Court to continue the examination of the case. She maintained
that the amount offered was too low.
- 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 for the reasons set out above, in particular 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 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 refrained from submitting any
observations on the admissibility and merits of the complaint.
- The
period to be taken into consideration began on 29 March 1995 and
ended on 9 June 2009. It thus lasted some fourteen years and two
months for three levels 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). Furthermore, the
Court considers that, by not taking into account the overall period
of the proceedings, the Warsaw Regional Court 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).
- 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 EUR 300,000 in respect of pecuniary and
non-pecuniary damage.
- The
Government did not comment.
- 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 10,800
(approximately PLN 43,000) in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 5,000 (approximately EUR 1,250) for the
costs and expenses incurred before the Court.
- The
Government did not express an opinion on the matter.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the applicant the sum of EUR 1,250
under this head.
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 its list of cases;
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,800 (ten
thousand eight hundred euros) in respect of non-pecuniary damage and
EUR 1,250 (one thousand two hundred and fifty euros) for costs
and expenses, 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 amounts 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 20 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
