CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 octobre 2011

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POLAND   (Application no. 9834/08)               JUDGMENT     STRASBOURG   4 October 2011   FINAL   04/01/2012   This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of Mularz v. Poland, The European Court of Human Rights (Fourth Section), sitting as a   Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   George Nicolaou,   Zdravka Kalaydjieva,   Nebojša Vučinić,   Vincent A. De Gaetano, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 13 September 2011, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 9834/08) 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, Mr Jerzy Mularz (“the   applicant”), on 20 February 2008. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that the length of the administrative proceedings in his case had been unreasonable. 4.     On 31   May   2010 the President of the Fourth Section decided to grant priority to the above application, under Rule 41 of the Rules of Court, and   to give notice of the application to the Government. 5.     The applicant and the Government each submitted observations on   the   merits (Rule 59 § 1).   THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1931 and lives in Rzeszów. 7.     On 18   April   1994 the Rzeszów District Office Director ( Kierownik Urzędu Rejonowego ; hereafter: “the District Office Director”) awarded a   certain Z.R. damages for the inconvenience and damage resulting from the   temporary use of her property by the public energy provider company based in Rzeszów. 8.     On 21   October   1994 the Rzeszów Governor ( wojewoda ) quashed the   District Office Director’s decision and remitted the case. 9.     On 31   January   1995 the District Office Director again confirmed the   award of damages to Z.R. His decision was upheld by the Rzeszów Governor on   9   May   1995. 10.     On 18   October   1996 the Supreme Administrative Court ( Najwyższy Sąd Administracyjny ) quashed the Governor’s decision. 11.     On 28   February   1997 the Rzeszów Governor quashed the District Office Director’s 1995 decision and remitted the case. 12.     On 1   March   1997 Z.R. died. 13.     On 8   April   1997 the Rzeszów District Court ( Sąd Rejonowy ) declared that Z.R.’s estate had been inherited by the applicant. 14.     On 16   May   1997 the District Office Director stayed the proceedings due to Z.R.’s death. The proceedings were resumed on the applicant’s request on 16   June   1997. 15.     On 30   October   1997 the District Office Director again confirmed the   award of damages to   the applicant. The applicant appealed against this   decision, alleging certain shortcomings in the procedure and   complaining that the amount of the award had been insufficient. 16.     On 8   January   1998 the Rzeszów Governor referred the case to the President of the Office for Housing and Town Development ( Prezes Urzędu Mieszkalnictwa i Rozwoju Miast ; hereinafter: “the President of   the   OHTD”) as the competent authority. On 5   February   1998 the   President of the OHTD referred the case back to the Rzeszów Governor. 17.     On 23   February   1998 the Rzeszów Governor quashed the District Office Director’s 1997   decision. As a result of a change to the rules on   competence, on 30   June   1998 the Rzeszów Governor awarded the applicant damages, acting as the organ of first-instance. 18.     On 15   July   1999 the President of the OHTD quashed the Rzeszów Governor’s decision and remitted the case to the Mayor of Rzeszów ( Prezydent Miasta Rzeszowa ) as the competent authority. The applicant appealed. 19.     From 3   December   1999 to 14   July   2000 the proceedings were stayed pending the examination of the applicant’s appeal by the Supreme Administrative Court. 20.     On 5   May   2000 the Supreme Administrative Court dismissed the   applicant’s appeal. 21.     On 20   November   2000 the Mayor of Rzeszów awarded damages to the applicant. This decision was upheld by the Podkarpacki Governor on 27   March   2001. The applicant appealed, arguing that the awarded amount had been too low and that the Mayor had failed to give a sufficient justification for his decision. Pending the examination of the appeal by the Supreme Administrative Court, the proceedings were stayed. 22.     On 2   December   2002 the Supreme Administrative Court quashed the   Podkarpacki Governor’s decision. 23.     On 24   February   2003, the Podkarpacki Governor quashed the   decision given by the Mayor of Rzeszów. 24.     On 12   August   2003 the Mayor of Rzeszów once again awarded damages to the applicant but the Podkarpacki Governor quashed this decision on 27   November   2003. 25.     On 20   September   2004 the Mayor of Rzeszów once more awarded damages to the applicant. This decision was quashed by the Podkarpacki Governor on 28   January   2005. The enforcement of the Governor’s decision was stayed pending the examination of the applicant’s appeal filed with the   Rzeszów Regional Administrative Court ( Wojewódzki Sąd Administracyjny ). 26.     On 17   January   2006 the Rzeszów Regional Administrative Court dismissed the applicant’s appeal against the decision of the Podkarpacki Governor. 27.     On 26   September   2006 the Mayor of Rzeszów once again awarded damages to the applicant. On 22   January   2007 the Mayor’s decision was upheld by the Podkarpacki Governor. The enforcement of the Governor’s decision was stayed pending the examination of the applicant’s appeal. 28.     On 31   May   2007 the Rzeszów Regional Administrative Court rejected the applicant’s appeal as having been lodged out of time. 29.     On 18   June   2007 the applicant requested the Rzeszów Regional Administrative Court to grant him leave to appeal out of time. On   4   July   2007 the court dismissed his request. The applicant appealed. 30.     On 15   October   2007 the Supreme Administrative Court dismissed the applicant’s complaint. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Inactivity of the administrative authorities 31.     The relevant domestic law and practice concerning remedies for   the   excessive length of administrative proceedings, in particular the   applicable provisions of the Code of Administrative Procedure and   the   2002 Act on Proceedings before Administrative Courts, are   described in the cases of Grabiński v.   Poland no.   43702/ 02, §§   60-65, 17   October   2006; Koss   v.   Poland , no.   52495/99, §§   21-25, 28   March   2006; and Kaniewski   v.   Poland , no.   8049/02, §§   22-28, 8   November   2005. B.     Remedies for the excessive length of judicial proceedings 32.     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 set out in the Court’s decisions in   the   cases of Charzyński v.   Poland (dec.), no.   15212/03, §§   12-23, ECHR   2005 ‑ V and Ratajczyk v.   Poland (dec.), no.   11215/02, ECHR   2005 ‑ VIII, and its judgment in the case of Krasuski v.   Poland , no.   61444/00, §§   34-46, ECHR 2005-V. C.     Judgment of the Kraków Court of Appeal of 20   April   2009 33.     The Government provided the Court with a copy of a judgment handed down on 20   April   2009 by the Kraków Court of Appeal, which had awarded just satisfaction in respect of the excessive length of civil proceedings to the plaintiff, a certain K.M., on the basis of Articles 417 and   448 of the Polish Civil Code, concerning the protection of personal rights. In its judgment, the Court of Appeal considered that the excessive length of   the civil proceedings for the distribution of inheritance, which had been pending for over twenty years, had caused the applicant, an elderly person, considerable stress resulting in moral suffering and entitling her to   non-pecuniary damages. Consequently, it modified the lower court’s judgment and awarded K.M. the sum of PLN   70,000. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 34.     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...” 35.     The Government contested that argument. 36.     The period to be taken into consideration began on 18   April   1994 and ended on 15   October   2007. It thus lasted 13 years and 6 months at four levels of jurisdiction. A.     Admissibility 37.     The Government raised a preliminary objection that the applicant had not exhausted domestic remedies available to him under Polish law, as   required by Article 35 § 1 of the Convention. 38.     They first of all maintained that it had been open to the applicant to use the usual remedies to counteract the   inactivity of the authority obliged to give an administrative decision. Relying on Article 37 of the Code of Administrative Procedure, on sections 16 and 17 of the 1995 Supreme Administrative Court Act and on section 3   §   2 of the Law of 30   August 2002 on Proceedings before Administrative Courts, they submitted that the applicant could have lodged complaints about the   inactivity of the relevant administrative body, first with the higher authority and, subsequently, with an administrative court. 39.     Furthermore, the Government submitted that it had been open to   the   applicant to lodge a complaint under the 2004 Act about the length of   the judicial stages of the proceedings, following the entry into force of   the 2004   Act on 17   September   2004. 40.     The Government further maintained that the applicant had failed to lodge a claim for damages and compensation with a civil court in order to seek redress for the violation of personal rights (“ dobra osobiste ”) which had resulted from the inactivity of the administrative authorities, on the basis of Articles 417 and 448 of the Civil Code. To this end, they submitted a judgment given on 20   April   2009 by the Kraków Court of   Appeal which had awarded just satisfaction in respect of the excessive length of civil proceedings to the plaintiff, a certain K.M., on the basis of   the relevant provisions of the Polish Civil Code concerning the protection of personal rights (see paragraph 33 above). 41.     Lastly, the Government also mentioned two other judgments, given by the Courts of Appeal in Gdańsk and in Warsaw in 2004 and 2008, respectively. In the Government’s view, these two judgments confirmed the possibility to seek redress for the alleged damage resulting from the inactivity of the administrative authorities and courts, on the basis of   Article 417¹ §   3 of the Civil Code. However, the Government did not provide copies of the aforementioned judgments or of their written grounds. 42.     As the applicant had not availed himself of any of the above ‑ mentioned remedies, the Government invited the Court to reject his application as inadmissible for non-exhaustion of domestic remedies. 43.     The applicant contested these arguments. Moreover, he submitted that in the course of the impugned proceedings he had often attempted, in   vain, to bring the issue of their excessive length to the attention of   the   administrative authorities at a higher level, by way of filing written complaints. 44.     The Court first notes that the remedies relied on by the Government, referred to in paragraph 38 above, can be used against the inactivity of   an   authority obliged to give an   administrative decision. However, the   Court considers that the total length of the proceedings in the present case cannot be attributed to the inactivity of the administrative authorities or   of the administrative courts, but rather to a pattern of decisions flawed with various, mostly procedural, shortcomings. These decisions were repeatedly quashed by the authorities at a higher level or by the   administrative courts and the case was remitted to the local authorities for re-examination. In total, this occurred on nine occasions (see paragraphs 8, 10, 11, 17, 18, 22, 23, 24 and 25 above). Thus, the Court finds that the   usual remedies to counteract the inactivity of an administrative authority, available in the Code of Administrative Procedure, would not   have been effective in the present case (see Stevens v. Poland , no.   13568/02, §   45, 24   October   2006; Trzaskalska v. Poland , no.   34469/05, §   42, 1   December 2009; and Kamecki and Others v. Poland , no.   62506/00, §   49, 9   June   2009). 45.     Regarding the Government’s argument concerning the period after 17 September 2004 when the 2004 Act came into force, the Court notes that   the Act provides for the filing of a complaint about the unreasonable length of judicial proceedings. However, the Court observes that   the   proceedings complained of lasted over thirteen years, from 1994 to   2007. Following the entry into force of the 2004 Act, the proceedings were conducted by the administrative courts in two separate periods, from 28   January   2005 to 17   January   2006 and from 22   January   2007 to 15   October 2007 when the impugned proceedings ended – thus, for   periods of about eleven months and eight months, respectively (see   paragraphs 25-30 above).   The Court cannot fail to   notice that these two periods, which occurred shortly before the end of   the impugned proceedings, were of a relatively short duration in   comparison to the bulk of   the proceedings in the applicant’s case, which had been conducted either by administrative authorities – not covered by the provisions of   the   2004   Act – or by administrative courts at a time when no remedy against the excessive length of judicial proceedings had been available in   domestic law, that is, before the entry into force of   the   2004   Act. Moreover, the Court notes, on the basis of the constant interpretation given to the provisions of the 2004 Act by the domestic courts, that a domestic court dealing with a complaint under the 2004 Act would not have been able to take into account the whole period of   the   administrative proceedings which began in 1994 and to find a   violation of the applicant’s right to a trial within a reasonable time. Consequently, the Court considers that, in   the   present case, a complaint under the 2004 Act cannot be regarded as   an   effective remedy ( Pióro and Łukasik v. Poland , no.   8362/02, §   36, 2   December   2008; Wypukoł-Piętka v. Poland , no. 3441/02, §   56, 20   October   2009). 46.     As regards the Government’s argument concerning the effectiveness of an action for damages and compensation, on the basis of Articles 417 and   448 of the Civil Code, the Court recalls that it has already examined whether such a compensation claim in tort was an effective remedy in   respect of complaints about the length of proceedings. It held that   no   persuasive arguments had been adduced by the Government to show that the   above-mentioned provisions of the Civil Code could at that time be   relied on for the purpose of seeking compensation for the excessive length of proceedings or that such an action offered reasonable prospects of   success (see Małasiewicz v.   Poland , no. 22072/02, §§ 32-34, 14   October   2003, and, for administrative proceedings, Boszko   v. Poland , no.   4054/03, §   35, 5   December 2006). The Court sees no grounds on which to depart from those findings in the present case. The Court further recalls that, as it has recently found in its Iskrzyccy v. Poland judgment ( Iskrzyccy v. Poland , no.   9261/02, §   55, 14   September   2010), the judgment given by the Kraków Court of Appeal on 20   April   2009 – the same as the one submitted by the Government in the present case – was exceptional and did not reflect a well-established practice of the Polish courts. 47.     With regard to the Government’s submissions that the applicant had failed to institute proceedings under Article 417¹ § 3 of the Civil Code, the   Court observes that, according to that provision, no claim for damages resulting from the unreasonable length of administrative proceedings may arise unless it has been formally determined that there was an unlawful failure to issue an administrative decision within the relevant time-limits. Moreover, the Court notes that the Government only briefly outlined the   two other judgments which it had invoked in their observations, without submitting copies of them or the written grounds thereof. For this reason, the   Court is unable to examine the factual circumstances surrounding those judgments. From the information provided, it appears that in   none of   the   invoked judgments were the plaintiffs awarded any just satisfaction. The   above-mentioned considerations lead the Court to conclude that the   domestic case-law relied on by the Government does not constitute evidence of a sufficiently established judicial practice to show that a claim for   compensation based on Article 417¹ § 3 of the Civil Code was an   effective remedy, and they have thus failed to substantiate their contention (see Boszko v.   Poland , cited above, in §   35; Grabiński   v.   Poland , cited above, in   §   74; and Pióro and Łukasik v.   Poland , cited above, in §   35). 48.     It follows that the Government’s plea of inadmissibility on   the   ground of non-exhaustion of domestic remedies must be dismissed. 49.     The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It   considers that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 50.     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). 51.     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; see also Stevens   v. Poland , cited above, in §§ 51-62, 24   October   2006; Trzaskalska v.   Poland , cited above, in   §§   47 ‑ 50; Kamecki and Others v. Poland , cited above, in §§   52-4; and   Iskrzyccy v.   Poland , cited above, in §   59-61). 52.     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, and to the fact that the proceedings in   this case had been pending before various administrative authorities and   administrative courts for a period of more than thirteen years, the   Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 53.     There has accordingly been a breach of Article 6 § 1. II.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 54.     Moreover, the applicant complained that the excessive length of   the   proceedings had constituted a continuing hindrance to the exercise of   his right to property and had led to a significant loss of its value, in   breach of   Article 1 of Protocol No. 1. 55.     The Government contested that argument. 56.     The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 57.     Having regard to its finding under Article 6 § 1 (see paragraph   53 above), the Court considers that it is not necessary to examine whether, in   this case, there has been a violation of Article 1 of Protocol No. 1 (see   Zanghì v. Italy , judgment of 19 February 1991, Series A no. 194-C, p.   47, §   23; Beller v. Poland , no. 51837/99, § 74, 1 February 2005). III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 58.     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 59.     The applicant claimed 60,000 euros (EUR) in respect of pecuniary damage and 50,000 euros (EUR) in respect of non-pecuniary damage. 60.     The Government contested these claims as exorbitant and irrelevant to the application. Consequently, it requested the Court to reject them in   their entirety. 61.     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, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR   5,000 under that head. B.     Costs and expenses 62.     The applicant did not submit a claim for costs and expenses. C.     Default interest 63.     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 application admissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds that there is no need to examine separately the complaint under Article 1 of Protocol No.   1 to the Convention;   4.     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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 4 October 2011, pursuant to   Rule 77 §§ 2 and 3 of the Rules of Court.   Lawrence Early   Nicolas Bratza     Registrar   President