CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 août 2005

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sFEE8C148 { width:13.68pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s61ED8A2B { width:14.36pt; display:inline-block } .s84582066 { width:4.99pt; display:inline-block } .s859E34A4 { width:11.02pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s29100277 { font-family:Arial; font-weight:bold } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s145CCEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s9D025815 { width:20.21pt; display:inline-block } .sA3B71503 { width:197.8pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 61656/00 by Piotr WŁODARSKI against Poland The European Court of Human Rights (Fourth Section), sitting on 25   August 2005 as a Chamber composed of:   Sir   Nicolas Bratza , President ,   Mr   J. Casadevall ,   Mr   G. Bonello ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego, judges , and     Mr   M. O’Boyle , Section Registrar , Having regard to the above application lodged on 28 November 1999, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Piotr Włodarski, is a Polish national, who was born in 1949 and lives in Jeziorany. The respondent Government are represented by Mr Jakub Wołąsiewicz, of the Ministry of Foreign Affairs.     A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 15 April 1993 the Olsztyn Regional Court, in proceedings concerning a claim for division of marital property of the applicant and his former wife, Ms B.W., changed a decision of the lower court given in the case. The court established the value of the property as being PLZ 571,728,979 and reduced the payment to be made by the applicant to B.W. from PLZ 298,024,950 million to PLZ   273,102,449 millions. The applicant, considering that the court had committed errors in the calculation of the value of various components of the property, requested the Minister of Justice to lodge an extraordinary appeal against this judgment. The applicant also paid to B.W. the sums fixed by the judgment. On 23 September 1994 the Minister of Justice lodged an extraordinary appeal with the Supreme Court. The Minister argued that the courts had wrongly calculated the value of the property, in that the value of certain parts of the property had been calculated twice, once as regards their book-keeping value (i.e. the price to be paid for replacement property items) and then as regards their market value, and these amounts had been erroneously added. As a result, the applicant was ordered to pay amounts which exceeded by tens of millions of old zlotys (PLZ) the real value of the part of the property for which his former wife had to be reimbursed. On 26 October 1994 the Supreme Court allowed the extraordinary appeal. As a result, the court quashed the second-instance decision of 15   April 1993 and amended the decision of the lower court by establishing the value of the property as being approximately PLZ 421,093,669, fixing the share of each spouse at PLZ 210,546,834 and reducing the amount that the applicant should have paid to B.W. from PLZ 298,024,950 to PLZ   198,820,794. The court considered that the Minister’s extraordinary appeal was correct in pointing out the calculation errors committed by the lower courts. The court went on to state that as a result of these errors the applicant’s obligations had been increased in a manner which was obviously not justified. The contested decisions constituted a miscarriage of justice since they had granted substantial compensation involving millions of zlotys without there being any legal or factual basis therefor. Consequently, they also breached the interests of the Republic and the decisions had to be rectified. The applicant subsequently claimed that B.W. should pay back to him the amounts she had received on the basis of the judgment of 1993. On 29   August 1995 the Gliwice District Court gave a judgment by which B.W. was obliged to pay these amounts to the applicant. This judgment was not appealed against and became final and enforceable. On 16 January 1996 the applicant lodged a request to have enforcement proceedings instituted in respect of this judgment. As he did not pay a fee for the launching of the enforcement proceedings, he was summoned to do so. By a letter of 25 March 1996 the applicant requested the bailiff to return the enforcement order to him. This was done on 2 April 1996. As no fee had been paid, the bailiff did not institute enforcement proceedings. In March 1996 the applicant requested the Ministry of Justice to take steps in order to have the damage he had sustained as a result of the erroneous judicial decision compensated. He reiterated his request on 7 June 1996. On 25 July 1996 the applicant wrote a letter to the President of the Olsztyn Regional Court, requesting that the damage he had suffered as a result of the erroneous judicial decision be compensated. In a reply of 20 August 1996, he was informed that the liability of the State Treasury, provided for by Article 418 of the Civil Cod, arose only if the fault of the State agent was confirmed by a criminal or disciplinary decision. In the light thereof, his request could not be granted. By a letter of 1 September 1996 the applicant informed the Ministry of Justice that his efforts to have the damage compensated had proved unsuccessful. He referred to the letter of the President of the Regional Court, relying on Article 418 of the Civil Code. He reiterated that the Supreme Court had found that the contested judicial decisions “constituted a miscarriage of justice since they had granted substantial compensation involving millions of zlotys without there being any legal or factual basis therefor”. Consequently, they also breached the interests of the Republic and the decisions had to be rectified. He requested that steps be taken in order to have the damage he had suffered compensated. This letter apparently remained unanswered. In a letter of 4 June 1997 the applicant again requested the Ministry of Justice to take steps in order to satisfy his claims for compensation in respect of the damage which he had sustained, having paid to Ms B.W. the sums fixed by the judgment of 15 April 1993, which had subsequently been quashed by the Supreme Court as being in manifest breach of law. In reply of 27 June 1997 the Ministry stated that the judgment of the Supreme Court did not give rise to any compensation claims against the Ministry. If the applicant so wished, he could raise his claims in civil proceedings. It would be for the court alone to rule on his claim. On 10 March 1998 the applicant reiterated his request to the Ministry. In a reply of 22 April 1998 the Ministry referred to its reply of 27 June 1997.         B.     Relevant domestic law and practice Articles 417 et seq. of the Civil Code ( Kodeks cywilny ) of 1964 provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1 read as follows: “1.     The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” According to the old case-law of the Polish Supreme Court, a plaintiff seeking damages under Section 417 of the Civil Code had to show that the act in question was unlawful and that the State agent had committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.1970, unpublished, No. I CR 24/71 of 19.4.1971, unpublished and No. I CR 152/74 of 11.4.1974, unpublished). Under the former Article 418 of the Code, if damage was caused by the State official as a result of his/her giving a decision or other official act, the State Treasury was liable only if the giving of the said decision amounted to an infringement of the law which was punishable under criminal law or under any disciplinary regulations, and if the fault of the perpetrator had been confirmed by a judgment of a criminal court or of a competent disciplinary authority, or was otherwise recognised by a superior authority. Under Article 77 § 1 of the Constitution of Poland of 1997, everyone is entitled to compensation for damage caused by unlawful acts of a public authority. Pursuant to § 2 of the same Article, a statute shall not bar access to court to persons seeking redress for any breach of their rights or freedoms. Article 45 of the Constitution provides that everyone shall have the right to a fair and public hearing of his/her case, without undue delay, before a competent impartial and independent court. In its judgment of 4 December 2001 the Constitutional Tribunal ruled on the compatibility of Articles 417 and 418 of the Civil Code with the Constitution. It ruled that Article 417 was compatible with Article 77 of the Constitution, if it was so construed as to mean that the State Treasury was liable for damage caused by unlawful acts of public officials in carrying out his/her duties. In the same judgment the Tribunal held that Article 418 of the Code was incompatible with Article 77 of the Constitution in that it placed undue restrictions on access to a court in cases in which the civil liability of the State was claimed for acts carried out in the exercise of the State powers, other than de facto acts, which were covered by the general principle of Article 417 of the Code (published in Journal of Laws ( Dziennik Ustaw ), Dz.U. Nr 145, poz. 1638). The judgment of 4 December 2001 took effect on 18 December 2001. As a result, Article 418 was repealed. COMPLAINTS The applicant complained under Article 6 of the Convention that his right of access to a court was infringed in that Article 418 of the Civil Code made such access in cases in which the civil liability of the State Treasury was claimed dependent on confirmation of the disciplinary or criminal responsibility of the State agent concerned by a decision of a competent body. In the applicant’s case, all his efforts to have such proceedings commenced, had failed. As a result, the damage he sustained remained uncompensated. THE LAW The applicant complained under Article 6 of the Convention that his right of access to a court was infringed in that Article 418 of the Civil Code made such access in cases in which the civil liability of the State Treasury was claimed dependent on confirmation of the disciplinary or criminal responsibility of the State agent concerned by a decision of a competent body. In the applicant’s case, all his efforts to have such proceedings commenced, had failed. Article 6 of the Convention, insofar as relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Government submitted that the applicant had failed to exhaust domestic remedies. His legal situation created by the judgment of 15 April 1993 was later fully redressed by the judgment given on 26 October 1994 by the Supreme Court and the subsequent judgment in his favour of 29   August 1995. The latter judgment made it possible for the applicant to seek the payment of full compensation by B.W., as awarded by that judgment. They argued that on 19 January 1996 he lodged a request to have the enforcement proceedings instituted in respect of that judgment. As he had failed to comply with the summons to pay the fee for commencing such proceedings, his request was not proceeded with. In these circumstances, it must be concluded that the applicant waived the only possibility of obtaining satisfaction for the losses he had incurred as a result of the erroneous judgment of 1993. Under the judgment of 29 August 1995 it was the applicant’s former wife who was his only debtor. As he failed to institute enforcement proceedings in respect of this judgment, no other persons or entities could be held responsible for her debt towards him. The Government further argued that, in any event, had the applicant been dissatisfied with the outcome of the hypothetical enforcement proceedings, he could have lodged a claim against the State under Articles 417 and 418 of the Civil Code as they stood at the relevant time. Even assuming that prior to the judgment of the Constitutional Court of 4 December 2001 such claim did not offer prospects of success, he should have lodged such an action and only after it had failed would it have been open to him to submit an application under Article 35 of the Convention. The applicant disagreed. He argued that all his efforts to have his compensation claim satisfied remained fruitless. The Court must first examine whether the requirement of exhaustion of domestic remedies laid down by Article 35 of the Convention has been complied with. The Court reiterates that by virtue of Article 1 of the Convention (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is further articulated in Articles 13 and 35 § 1 of the Convention (see Kudła v. Poland [GC], no.   30210/96, §   152, ECHR 2000-XI). The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. Consequently, States are dispensed from answering for their acts before an international body until they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see, among other authorities, Akdivar and Others v.   Turkey, judgment of 16   September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66; ECHR 2000 ‑ XI; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002 ‑ VIII). In this connection, the Court reiterates that the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. Their existence must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. (see, among many other authorities, Mifsud v. France (dec.) [GC], no.   57220/00, ECHR 2002 ‑ VIII).   In this connection, the Court observes that the Supreme Court, by its judgment of 26 October 1994, acknowledged that the prior judgments given in the applicant’s case had given rise to a miscarriage of justice in that the applicant had been wrongly obliged to pay compensation to B.W. That court also amended the impugned judgment and substantially reduced the amounts the applicant owed to B.W. which had already been paid in full at that time. Subsequently, and as a direct consequence of this judgment of the Supreme Court, the applicant obtained a judgment in his favour, ordering B.W. to pay back to him the amounts which she had received on the basis of the judgment of 1993. Thus, the applicant’s claim has been fully satisfied and the amounts which, on the basis of the Supreme Court’s judgment, were to be considered as undue enrichment on the part of B.W., were to be paid back to him. The Court further notes that the applicant obviously intended to commence enforcement proceedings against B.W. as in January 1996 he requested the bailiff to institute such proceedings. However, he failed to comply with the summons to pay the relevant fee for the institution of these proceedings and later requested that the enforcement title, i.e. the valid and enforceable judgment of 29 August 1996, be returned to him. Consequently, his request to begin enforcement proceedings was not proceeded with. It is not for the Court to speculate on the outcome of the enforcement proceedings, had such proceedings been duly commenced. Neither can the Court engage in a hypothetical legal assessment of the applicant’s complaint about the lack of access to a court, had his claim been unsuccessful. On the other hand, had the enforcement of the applicant’s claim against B.W proved ineffective, it cannot be ruled out that restrictions on access to a court contained in former Article 418 of the Civil Code, set aside by the judgment of the Constitutional Court of 4 December 2001, would have been capable of giving raise to an issue under Article 6 of the Convention. The Court observes that the applicant’s claim against B.W. was determined by a final judicial decision. It was open to the applicant to institute enforcement proceedings in respect of this judgment. The applicant did not comply with the procedure for doing so, as he failed to pay the relevant fee. No arguments have been adduced to show that there were any grounds on which to assume that this remedy, in fact a standard remedy in respect of judicial decisions by which a party to civil proceedings is ordered to pay compensation to the winning party, would have been ineffective in the applicant’s case. Neither has it been argued that there were any grounds which would justify the exemption of the applicant from the requirement of exhaustion of domestic remedies. It follows that the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies.           For these reasons, the Court unanimously Declares the application inadmissible.   Michael O’Boyle   Nicolas Bratza   Registrar   President