CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 juillet 2015

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POLAND   (Applications nos. 72287/10, 13927/11 and 46187/11)   and 591 other applications (see list appended)         JUDGMENT       STRASBOURG   7 July 2015       FINAL   07/10/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Rutkowski and Others v. Poland, The European Court of Human Rights (Fourth Section), sitting as a   Chamber composed of:   Guido Raimondi, President,   Päivi Hirvelä,   Ledi Bianku,   Nona Tsotsoria,   Paul Mahoney,   Krzysztof Wojtyczek,   Faris Vehabović, judges, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 16 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos.   72287/10, 13927/11 and 46187/11) 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 three Polish nationals, Mr   Wiesław Rutkowski (“the first applicant”), Mr Mariusz Orlikowski (“the   second applicant”) and Ms Aleksandra Grabowska (“the   third   applicant”). The applications were lodged on 30 November 2010, 21 February 2011 and 21 July 2011 respectively. 2.     The first applicant was represented by Mr A. Bodnar and Ms I.   Pacho, lawyers working for the Helsinki Foundation for Human Rights. The second applicant was represented by Mr M. Kowalczyk, a lawyer practising in Łódź, and the third applicant by Ms A. Dawidowska, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3.     The applicants alleged a violation of Article 6 § 1 of the Convention on account of the unreasonable length of proceedings in their cases and a violation of Article 13 of the Convention on account of the defective operation of a domestic remedy for the excessive length of judicial proceedings. 4.     On 2 October 2012 the applications were communicated to the Government pursuant to Rule 54 § 2(b) of the Rules of Court. It was also decided to examine the merits of the applications at the same time as their admissibility (former Article 29 § 3 of the Convention) and to grant the case priority under Rules 41 and 61 § 2(c). The Chamber further decided to inform the parties that it was considering the possibility of applying the pilot-judgment procedure in the case. It invited them to submit written observations on the existence of a systemic problem of excessive length of proceedings and ineffective operation of a domestic remedy in that respect, the suitability of applying the pilot-judgment procedure and on the admissibility and merits of the case. THE FACTS I.     BACKGROUND A.     Polish length-of-proceedings cases before the Court 5.     In implementation of the Court’s judgment in the case of Kudła v.   Poland given on 26 October 2000 (see Kudła v. Poland [GC], no.   30210/96, ECHR 2000-IX) Poland enacted the Law of 17   June   2004 on complaint about breach of the right to have a case examined in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”) (see also paragraphs 75-83 below). Subsequently, following the introduction of the Law of 20 February 2009 on amendments to the law on complaint about breach of the right to have a case examined in judicial proceedings without undue delay ( ustawa   o   zmianie ustawy o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2009 Amendment”) the name of the 2004 Act was altered to the Law on complaint about breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki (see also paragraphs 84-89 below). 6.     The Court has previously considered the remedies introduced by the 2004 Act under Article 35 § 1 and Article 13 of the Convention in three leading cases and concluded that they were “effective” for the purposes of those provisions (see Charzyński v. Poland no. 15212/03 (dec.), §§ 36-43 ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and Krasuski v. Poland , no. 61444/00, §§ 68-73, ECHR 2005 ‑ V (extracts). In consequence, in 2005 over 600 Polish cases involving complaints of excessive length of proceedings, which were at that time pending before the Court, were rejected by committees of three judges under former Article 28 of the Convention on the grounds of non-exhaustion of domestic remedies. 7.     However, since then every year at least 100 prima facie well-founded applications concerning complaints of breaches of the right to a hearing within a reasonable time have been lodged with the Court by persons who have exhausted the remedies under the 2004 Act. As in the present three cases the facts of which are described below, and in 591 cases to be communicated listed in the annex to this judgment (see also paragraphs 209 ‑ 212 below), the applicants complained under Article 6 § 1 of the unreasonable length of civil or criminal proceedings and under Article 13 of the domestic courts’ refusal to grant them sufficient just satisfaction for a breach of their right to a hearing within a reasonable time. As regards their grievances under Article 13, all the applicants in essence maintained that the Polish courts dealing with their complaints under the 2004 Act had failed to comply with the principles established by the Court with respect to the “reasonable-time” requirement laid down in Article 6 §   1 and the criteria for “appropriate and sufficient redress” to be afforded at domestic level for a breach of that requirement (for the relevant criteria, see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 195-216 and 272, ECHR 2006 ‑ V). 8.     Between 30 October 1998, when the Court gave its judgment in the case of Styranowski and for the first time found a violation of Article   6   §   1 by Poland on account of the excessive length of proceedings (see   Styranowski v. Poland , 30 October 1998, §§ 57-58 Reports of Judgments and Decisions 1998 ‑ VIII), and 31 December 2014 the Court has delivered further 419 judgments where the same breach was found. It is to be noted that 280 of those judgments were given in 2005-2011, after the entry into force of the 2004 Act. In addition, between 2005 and 2011 the Court struck out of its list of cases 358 applications where the parties had either concluded a friendly-settlement agreement or where the Court accepted the Government’s unilateral declaration acknowledging a violation of Articles   6   § 1 and 13. 9.     Pending the outcome of the pilot-judgment procedure in the present case and having regard to the aim of that procedure, which is to facilitate the most speedy and effective resolution of a dysfunction at domestic level through general measures whereby the State provides a global solution for all the persons actually affected and prevents similar repetitive violations in the future (see Broniowski v. Poland (friendly settlement) [GC], no.   31443/96, § 35, ECHR 2005 ‑ IX and Hutten-Czapska v. Poland [GC], no.   35014/97, §§ 234 and 236, ECHR 2006 ‑ VIII), at the end of 2012 the Court put on hold Polish applications alleging exclusively excessive length of judicial proceedings. Since then, the Government have been notified only of cases granted priority or cases involving mostly other substantiated complaints, where the length of proceedings has represented merely a secondary or peripheral issue. Subsequent developments of the caseload have demonstrated the growth in the number of new applications to the Court under this head. In 2013-14 256 prima facie well-founded cases were lodged, of which 144 were registered as ready for decision in 2014. 10.     As of the date of adoption of this judgment, 650 cases involving mainly, or at least partly, complaints about the length of civil (157 cases) and criminal (493 cases) proceedings are pending before the Court, of which 33 have been communicated to the Polish Government and the remainder earmarked for communication and examination under Article 28 § 1 (b) of the Convention. B.     Polish length-of-proceedings cases pending before the Committee of Ministers 11.     In total, 537 Polish cases are currently pending execution before the Committee of Ministers. As of the date of adoption of the judgment, the above number included 393 cases involving a violation of the right to a hearing within a reasonable time. They are divided into three groups concerning, respectively, criminal proceedings (68 cases), civil proceedings (240 cases) and administrative proceedings (85 cases). 12.     The Committee of Ministers classified the Polish length ‑ of ‑ proceedings cases as suitable for the enhanced supervision procedure. That procedure was introduced by the Committee of Ministers on 1   January 2011, as part of the implementation of the Interlaken Plan. Indicators for cases to be examined under that procedure are as follows: judgments requiring urgent individual measures; pilot judgments; judgments disclosing major structural and/or complex problems as identified by the Court and/or the Committee of Ministers and Inter-State cases. II.     THE CIRCUMSTANCES OF THE CASES A.     The case of Mr Rutkowski (application no. 72287/10) 13.     The applicant was born in 1959 and lives in Warszawa. 1.     Criminal proceedings against the applicant (case no. III K 1878/05) 14.     On 18 September 2002 the applicant, who was a policeman, was arrested on suspicion of participating in an organised criminal group and corruption. On 20 September 2002 he was charged with those offences and remanded in custody. 15.     On 5 December 2002 the prosecutor signed a bill of indictment against the applicant and fifteen co-accused. The applicant was indicted on charges of participating in an organised criminal group, abuse of power and corruption. 16.     On an unspecified date in December 2002 the Warsaw Regional Prosecutor ( Prokurator Okręgowy) lodged the bill of indictment with the Warsaw-City District Court ( Sąd Rejonowy ). 17.     On 14 May 2003 the court issued a severance order, deciding that the accused policemen be tried separately; however, no trial date was scheduled. 18.     On 30   May 2003 the applicant was released. 19.     On 20 November 2003 the court ordered that the accused policemen’s case be joined with another case. No trial date was scheduled. 20.     On 24 May 2005 the Warsaw-City District Court decided that it did not have competence to deal with the case and referred it to the Warsaw ‑ Mokotów District Court. The decision became final on 28 July 2005 but the case-file was not transferred to that court until 18 November 2005. 21.     The proceedings before the Warsaw Mokotów District Court started on 21 September 2006. One of the reasons for the delay was that, on 10 July 2006, the court had found that the accused had not yet been served with a copy of the bill of indictment, which should normally have taken place at the initial stage of the judicial proceedings. Up to the end of 2006 the court held fourteen hearings. In the first half of 2007 eight hearings took place. 22.     On 19 July 2007 the Warsaw Mokotów District Court held that as a result of amendments to the criminal law that had meanwhile entered into force, it no longer had competence to deal with the case and referred it to the Warsaw Regional Court. The parties appealed. 23.     On 15 November 2007 the District Court found that the appeals were well-founded and quashed its decision on referral. The case-file, which had meanwhile been transferred to the Regional Court, was returned in June 2008. 24.     The trial before the District Court restarted in June 2008. However, as so much time had elapsed, it had to be conducted from the beginning. In 2008 the court held eleven hearings, in 2009 ten hearings and in 2010 seven   hearings. 25.     On 21 July 2010 the Warsaw Mokotów District Court acquitted the applicant. 2.     Proceedings under the 2004 Act (case no. X S 40/10) 26.     On 16 April 2010 the applicant lodged a complaint under the 2004 Act (hereafter also referred to as “length complaint”) with the Warsaw Regional Court ( Sąd Okręgowy ) He sought a finding that the length of the proceedings had been excessive and 20,000 Polish zlotys (PLN) (approximately 5,000 euros (EUR)) in compensation. On 1   June   2010 the Warsaw Regional Court held that the length of the proceedings had been excessive from 17 September 2004 to 18 November 2005 (see also paragraph   20   above) and awarded the applicant PLN 2,000 (approximately EUR 500) in compensation. In its assessment of the length of the proceedings, the court took into account only the period starting from 17   September 2004, i.e. the date on which the 2004 Act entered into force. As regards the period after 18   November 2005, the Regional Court found that, despite the fact that “in the first half of 2006, at the stage of preparation for the trial and during the initial hearings the court’s actions [had been] somewhat chaotic and the court had not avoided certain shortcomings”, the proceedings had been conducted with due diligence. In consequence, the court refused to grant the applicant the full sum sought, holding that he had not demonstrated that he had sustained damage in that amount. 3.     Application of the “Scordino (no. 1) criteria” 27.     In the absence of domestic remedies, the Court’s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration (see paragraphs 126-128 and 132 below) and sums usually granted in similar Polish cases would amount to PLN 38,000. The applicant was awarded approximately 5.5% of that sum. On the date of the national court’s decision on the applicant’s complaint, namely 1 June 2010 (see paragraph 26 above) a domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§   195-216 and 272) should have reached at least PLN 13,200 in order for the applicant to lose his victim status. B.     The case of Mr Orlikowski (application no. 13927/11) 28.     The applicant was born in 1963 and lives in Łódź. 1.     Pre-trial proceedings for securing evidence 29.     On 8 September 1998 the applicant lodged an application for the securing of evidence with the Łódź District Court. Pursuant to Article 310 of the Code of Civil Procedure, such an application can be lodged by a prospective party before the initiation of a civil action if there is a fear that the taking of specific evidence will be impossible or too difficult, or if there is a need to establish the state of affairs. The applicant, who intended to bring a civil claim against his landlord for damages resulting from defective performance of a lease contract, asked the court to obtain an expert report determining the state and value of outlays that he had made on the commercial premises that he had rented. The report was submitted to the court on 20 November 1998. A copy thereof was served on the applicant on 8 December 1998. 2.     Civil proceedings instituted by the applicant (case no. II C 566/06; I   A Ca 750/10) 30.     On 4 March 1999 the applicant lodged an action for damages with the Łódź Regional Court ( Sąd Okręgowy ). He also asked the court to secure his claim. An order securing the claim by means of a mortgage on the defendant’s property was given on 17 May 1999. 31.     The first hearing was held on 20 September 1999. The next hearing took place on 9 November 2000. In the meantime, the court dealt with some procedural matters involved in the defendant’s interlocutory appeal against the order securing the claim, which was accompanied by his various other requests, such as applications for exemption from court fees or for retrospective leave to appeal out of time. 32.     Overall, from 4 March 1999, namely the date on which the claim was lodged, to 6 November 2001 the Regional Court held six hearings and heard evidence from the parties and nine witnesses. The hearings were held on 20 September 1999, 9 November 2000, 17 May, 4   September, 4 October and 6 November 2001. 33.     On 30 November 2001 the court gave judgment and rejected the applicant’s claim in its entirety. The applicant appealed on 24 January 2002. 34.     On 4 September 2002 the Łódź Court of Appeal ( Sąd Apelacyjny ) quashed the first-instance judgment and remitted the case. 35.     The re-trial started on 28 November 2002. From that date to 16 May 2005 the Regional Court scheduled four hearings, which were held on 3 February and 3 April 2003, 31   March 2004 and 16 May 2005. It heard evidence from a witness, an expert and the parties. The applicant modified his claim on 16 May 2005. 36.     In the meantime, on 31 March 2004 the court had decided to take evidence from an expert in construction. The expert submitted his report on 13 September 2004. 37.     On 2 June 2005 the Łódź Regional Court gave its second judgment, partly allowing the applicant’s claim. 38.     The judgment was partly quashed on the defendant’s appeal and the case was remitted by the Łódź Court of Appeal on 28 March 2006. On 17   May 2006 the case-file was returned to the Regional Court. 39.     On 25 May 2006 the Regional Court ordered the parties to apply for the taking of further evidence that they wished to submit, on pain of rejecting any such subsequent requests. On 13 June 2006 the applicant asked the court to take evidence from one witness and from himself as a party. On 19   June 2006 the defendant asked the court to obtain evidence from two experts. 40.     The re-trial started on 20 September 2006. From that date to 19   March 2010 the court scheduled five hearings, which were held on 17   November 2006, 18 July 2007, 5 September 2008, 1   April 2009 and 19   March 2010. It heard evidence from two witnesses, three experts and the parties 41.     In the meantime, on 29 December 2006, the court had ordered that evidence from an expert in construction be obtained. It fixed a thirty-day time-limit for submission of his report. The expert submitted the report on 19   March 2007. The defendant asked the court to take evidence from another expert. 42.     At the hearing held on 18 July 2007 the parties stated that they would attempt to settle the case. On 12 and 13 September 2007 respectively they informed the court that their negotiations had failed. 43.     On 8 November 2007 the court ordered that evidence from three experts – in construction, accountancy and air-conditioning and ventilation – be obtained. The construction expert submitted his report on 7 January 2008, the expert-accountant submitted his report on 22 October 2008 and the air ‑ conditioning expert submitted his report on 2 November 2009. The intervals between those dates were caused by the fact that the court waited until each expert had finished his work before sending the materials in the case-file to the following expert. Also, the expert in air-conditioning on several occasions asked the court to extend the time-limits set for submission of his report, which he justified by the volume of his work on other reports, long holidays and difficulties in obtaining a document or in setting a date for an on-site inspection of the premises. The court granted all his requests. 44.     On 16 April 2010 the Łódź Regional Court delivered its third judgment, rejecting the applicant’s claim in its entirety. The applicant appealed on 6 August 2010. 45.     On 5 November 2010 the Łódź Court of Appeal heard the appeal. On 19 November 2010 it partly allowed the applicant’s appeal, altered the contested judgment and granted the applicant’s claim up to the amount of PLN 56,770, with statutory interest. 3.     Proceedings under the 2004 Act (case no. I S14/10) 46.     On 4 May 2010 the applicant lodged a complaint under the 2004 Act with the Łódź Court of Appeal ( Sąd Apelacyjny ). He sought a finding that the length of the proceedings had been excessive and PLN 10,000 Polish zlotys in compensation. 47.     On 2 June 2010 the Łódź Court of Appeal dismissed the applicant’s complaint. The court concluded that, given the complexity of the case and the need to obtain evidence from experts in three different fields, the proceedings had been conducted in a correct and timely manner. In its assessment of the length of the proceedings, the court took into account only the period after 28 March 2006, namely the date on which the Court of Appeal had partly quashed the Regional Court’s judgment of 2   June 2005 (see also paragraph 38 above). 4.     Application of the “Scordino (no. 1) criteria” 48.     In the absence of domestic remedies, the Court’s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration, (see paragraphs 126-128 and 144 below) and sums usually granted in similar Polish cases would amount to PLN   36,400. On the date of the national court’s decision on the applicant’s complaint, i.e. 2 June 2010 (see paragraph 47 above) a domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§   195-216 and 272) should have reached at least PLN 11,000 in order for the applicant to lose his victim status. C.     The case of Ms Grabowska (application no. 46187/11) 49.     The applicant was born in 1955. She lives in Poznań. 1.     Background of the case 50.     In 1999 the applicant lodged a civil action for payment and accounting ( pozew o złożenie rachunku z zarządu i zapłatę ) against a certain A.T. with the Gdynia District Court ( Sąd Rejonowy ). The action concerned property which had been inherited by the applicant. 2.     Proceedings for adverse possession (VII Ns 2545/99; VII   Ns   1543/05; VII Ns 1967/08) 51.     On 15 December 1999 A.T. and four other persons applied to the Gdynia District Court for adverse possession ( zasiedzenie ) of the property in question. The applicant was not notified of the proceedings. 52.     On an unspecified date the Gdynia District Court informed the applicant that the proceedings for payment and accounting initiated by her had been stayed pending the outcome of the case concerning adverse possession. 53.     On 12 April 2000 the applicant informed the District Court that she wished to join the proceedings. 54.     From 15 December 1999 to 19 April 2006 the court heard evidence from four witnesses and two participants in the proceedings. It also ordered that a press announcement be published to all unknown heirs or heirs whose whereabouts were unknown of one of the late predecessors in title to the property. 55.     On 19 April 2006 the Gdynia District Court decided that A.T. and four other persons had acquired a half share in the property by adverse possession. 56.     The applicant appealed on an unspecified date in April or May 2006. 57.     On 18 October 2007 the Gdańsk Regional Court ( Sąd Okręgowy ) quashed the first-instance decision and remitted the case, holding that the District Court had failed to make the necessary findings of fact and to determine the merits of the case. Also, the proceedings had been flawed by procedural shortcomings, such as the court’s failure to serve copies of the 1999 application for adverse possession on all the interested parties ‑ including the applicant. During the appellate proceedings the court re-opened the case after the hearing and three times adjourned delivery of its decision. 58.     On 2 January 2008 the Gdynia District Court asked the Gdańsk Regional Court to transfer the case to the Poznań District Court. On 31   March 2008 the Regional Court refused that request. 59.     On 20 September 2008 the applicant was served with a copy of the 1999 application for adverse possession. The document was incomplete, as some pages and appendices were missing. The court informed the applicant that she was entitled to submit a response to the application. 60.     On 3 March 2009 the court summoned a certain M.T. to join the proceedings. 61.     During the hearing held on 24 April 2009 the court found that the proceedings also concerned the interests of the second husband of one of the petitioners and ordered that the petitioners produce his heirs’ personal details and addresses and serve them with a copy of the application for adverse possession. The parties were informed that the next hearing would not take place before August 2009 because of the judge rapporteur’s planned holidays. 62.     On 6 July 2009 the Gdynia District Court summoned a certain J.M.P. to join the proceedings. 63.     On 21 September 2009 the proceedings were suspended as the petitioners had failed to produce an extra copy of the 1999 application for adverse possession, which had to be served on J.M.P. 64.     On 25 October 2010 the applicant applied for discontinuation of the proceedings. 65.     On 4 November 2010 the Gdynia District Court resumed the proceedings and scheduled a hearing for 17 December 2010. 66.     Between December 2010 and December 2011 the District Court scheduled four hearings and summoned further persons to join the proceedings. A hearing scheduled for 8 February 2011 had been cancelled because the case-file had meanwhile been transmitted to the Gdańsk Regional Court together with a complaint lodged by the applicant under the 2004 Act, alleging that the length of the proceedings had been excessive (see paragraphs 72-73 below). 67.     On 21 February 2012 the District Court gave the second decision on the merits. The applicant appealed on 1 April 2012. 68.     On 14 November 2012 the Mayor of the City of Gdynia applied to the Regional Court to be summoned as a party to the proceedings. It was submitted that the District Court had erroneously summoned the Gdańsk First Tax Chamber as the State Treasury’s representative and party in the proceedings. Subsequently, on an unknown date, the Regional Court summoned the Mayor of the City of Gdynia to join the proceedings as a party. 69.     On 28 November 2012 the Mayor filed an appeal against the decision of 21 February 2012, invoking the nullity of the entire proceedings on the grounds that it had been impossible to defend his rights. The appellate hearing, which was scheduled for 19 December 2012, was cancelled. 70.     On 10 April 2013 the Regional Court held a hearing. The case was closed and the court announced that the judgment would be delivered on 24   April 2013. However, on that date the court reopened the case and fixed a fresh date for a hearing for 4 June 2013. 71.     On 4 June 2013 the Court of Appeal again heard the appeals lodged by the applicant and the Mayor of the City of Gdynia. On 18 June 2013 the court gave judgment. It partly amended the first ‑ instance decision and dismissed the remainder of the appeals. 3.     Proceedings under the 2004 Act (case no. III S 175/10) 72.     On 15 December 2010 the applicant lodged a complaint with the Gdańsk Regional Court under the 2004 Act. She sought a finding that the length of the proceedings had been excessive and PLN 20,000 Polish in compensation. 73.     On 31 January 2011 the Gdańsk Regional Court dismissed the applicant’s complaint. In its assessment of the length of the proceedings, the court did not to take into account the period before 17 September 2004, namely the date on which the 2004 Act had entered into force, holding that the 2004 Act applied only to the excessive length of proceedings occurring on the date of its entry into force. As regards the subsequent period, it held that the proceedings could not be said to have been excessively long, given that it had been necessary to secure the participation and representation of all the interested parties in the proceedings. 4.     Application of the “Scordino (no. 1) criteria” 74.     In the absence of domestic remedies, the Court’s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration (see paragraphs 126-128 and 154 below) and sums usually granted in similar Polish cases, would amount to PLN   42,000. On the date of the national court’s decision on the applicant’s complaint, namely 31 January 2011 (see paragraph 73 above), a domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§   195-216 and 272) should have reached at least PLN 11,000 in order for the applicant to lose her victim status. III.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The 2004 Act 1.     Explanatory notes to the draft 2004 Act 75.     In the explanatory notes to the 2004 Act it was underlined that the aim of the proposed legislation was to implement the principle laid down in Article 45 of the Constitution guaranteeing everyone the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court – a provision inspired by Article 6 § 1 of the Convention, setting forth the right to a “hearing within a reasonable time”. It was further stated: “The absence of appropriate legislation in this respect and the numerous complaints about excessive length of proceedings in Poland, have repeatedly been assessed negatively by the European Court of Human Rights. The present draft implements the recommendations on measures to prevent the excessive length of proceedings formulated in the ECHR’s judgment in the case of Kudła v. Poland . The aim of the draft is to introduce into the Polish legal system remedies enabling a party to court proceedings to prevent excessively lengthy proceedings from continuing and to obtain appropriate redress. ... Putting in place an effective mechanism preventing excessively lengthy proceedings will also stop applications based on these grounds being lodged with the European Court of Human Rights (Poland is in the group of countries which lose the biggest number of cases before the ECHR). Lodging an application with the ECHR will only be possible once remedies provided for in the present draft have been exhausted. Obtaining compensation by virtue of the ECHR’s judgment will only be possible where ... a complaint about excessive length of proceedings has not prevented a breach of a party’s right to have a case examined within a reasonable time or where a party has not obtained appropriate compensation. ... [T]he hitherto existing procedure for seeking compensation for excessive length of proceedings (only an application to the ECHR) would result in significantly higher budgetary expenses on individual cases. Currently, these expenses are lower only because of the difficulties involved in lodging an application and the length of time [taken by the Court] for its examination. The number of applications being made to the ECHR is growing and repetitive violations may have an impact on the amounts awarded as just satisfaction.” 2.     The relevant provisions 76.     Section 2 of the 2004 Act, as applicable before the introduction of the 2009 Amendment (see also paragraph 5 above and paragraphs 84-86 below), read, in so far as relevant, as follows: “1.     If proceedings in a case have lasted longer than it is necessary in order to examine the factual and legal circumstances of the case that are essential for its determination or longer than it is necessary for the conclusion of enforcement proceedings or other proceedings concerning the execution of a court decision, a party may lodge a complaint about a breach of his right to have a hearing without undue delay (excessive length of proceedings). 2.     For the purposes of determining whether [the length of proceedings] in a case has been excessive, [a court] should, in particular, assess the promptness and correctness of actions taken by the court [dealing with the case] in order to give a decision on the merits or by the court [dealing with the case] or court bailiff in order to handle and terminate ... the proceedings, having regard to the nature of the case, its factual and legal complexity, what is at stake for the party who has lodged the complaint, the issues examined and the conduct of the parties, especially the party alleging excessive length of the proceedings.” 77.     Pursuant to section 3: “A complaint may be lodged: ... 4)     in criminal proceedings – by a party ( strona ) or a victim ( pokrzywdzony ), even if he is not a party; 5)     in civil proceedings – by a party, an intervener (interwenient uboczny) or a participant (uczestnik postępowania) ; ...” 78.     Section 4, as applicable before the 2009 Amendment (see paragraph   87 below) provided, in so far as relevant: “1.     The complaint shall be examined by the court immediately above the court in which the impugned proceedings are pending. 2.     If the complaint concerns the excessive length of proceedings before a court of appeal or the Supreme Court, it shall be examined by the Supreme Court. ...” 79.     Section 5 read, in so far as relevant: “1.     A complaint about the excessive length of the proceedings to which the complaint relates shall be lodged in the course of the proceedings in the case.” 80.     Section 6, as applicable before the 2009 Amendment (see paragraph   88 below), read, in so far as relevant, as follows: “1.     A complaint should satisfy the requirements prescribed for a written pleading (pismo procesowe). 2.     A complaint should also include: 1)     a request for a finding that the length of the impugned proceedings has been excessive; 2)     circumstances supporting the request. 3.     A complaint may also include a request for the court dealing with the case to be instructed to take appropriate actions within a fixed time-limit and for appropriate just satisfaction ( odpowiednia suma pieniężna) as referred to in section 12(4).” 81.     Section 12 sets out certain forms of relief that may be granted by the court dealing with a length complaint. The version applicable before the 2009 Amendment (see paragraph 89 below), read, in so far as relevant, as follows: “1.     The court shall dismiss a complaint which is unjustified. 2.     Allowing a complaint, the court shall make a finding that the length of the impugned proceedings has been excessive. 3.     At the complainant’s request, the court may instruct the court dealing with the case to take appropriate actions within a fixed time-limit. Such instructions may not interfere with the factual and legal assessment of the case. 4.     Allowing a complaint the court may, at the complainant’s request grant ... just satisfaction in an amount not exceeding 10,000 Polish zlotys. If just satisfaction is to be paid by the State Treasury, payment shall be made out of the budget of the court which conducted the [impugned] proceedings.” 82.     Section 15 provides for an additional compensatory remedy, which may be enforced by the lodging of a civil claim for compensation under the rules of the State’s liability for a tort, laid down in the Civil Code (see also paragraphs 90-92 below). It reads, in so far as relevant, as follows: “1.     A party whose complaint has been allowed may seek compensation from the State Treasury ... for the damage suffered as a result of the excessive length of the proceedings.” 2.     A decision allowing a complaint, in so far as it has established the excessive length of proceedings, is binding on a court in civil proceedings for compensation for pecuniary or non-pecuniary damage ( odszkodowanie lub zadośćuczynienie ).” 83.     Section 16 affords the same compensatory remedy to persons who have not lodged a length complaint under section 5 when the proceedings in their case have been pending. It reads, in so far as relevant, as follows: “A party who has not lodged a complaint about the excessive length of proceedings under section 5 (1) may, after the final determination of the merits of the case, claim ‑ under Article 417 of the Civil Code ... – compensation for the damage which has resulted from the excessive length of the proceedings.” B.     The 2009 Amendment 84.     On 20 February 2009 Parliament adopted the 2009 Amendment, a law designed to improve the effectiveness of a length complaint under the 2004 Act (see also paragraph 5 above). 1.     Explanatory notes to the 2009 Amendment 85.     The explanatory notes to the 2009 Amendment stated that its aim was to enhance the effectiveness of the 2004 Act since its application indicated that it did not constitute a fully effective remedy against excessive length of proceedings. In the light of statistical information demonstrating the number of complaints in 2005-07 and amounts awarded it was concluded that even if the courts acknowledged excessive length of proceedings in a given case, they too rarely granted any compensation. The amounts awarded were also open to criticism as they often oscillated around 20% of the maximum statutory award – which, at the relevant time, was PLN 10,000, equivalent to some 2,500 euros (EUR). The judicial practice in the application of the 2004 Act also showed that the courts, in their assessment of the length of proceedings, did not take into account the Court’s standards in terms of disregarding such factors as the impact of the previous conduct of the case on the situation on the date of the ruling on a complaint and the lack of an assessment as to whether the proceeding had lasted longer than was necessary to examine the case. It was further stressed that the 2004 Act did not provide for any remedy against the excessive length of an investigation, contrary to Article 13 of the Convention, and that one of the aims of the 2009 Amendment was to rectify that lacuna in the law. In order to enhance the effectiveness of a length complaint, the courts would to be obliged by law to award appropriate just satisfaction if the complaint was justified. Under the current rules the award was only optional and, as shown by the judicial practice, in the vast majority of cases the courts rejected claims for compensation or awarded merely symbolic sums of PLN 100-200 (some EUR 25-50). It was stated that the proposed amendments would be in compliance with the Court’s case-law regarding the determination of sufficient just satisfaction at domestic level – in particular the Scordino (no. 1) judgment and standards for an effective remedy under Article 13. Indeed, the judicial practice that had developed after the Act’s entry into force had disclosed that the courts made only a fragmentary assessment of the length of proceedings. In situations where a complaint concerned proceedings before the first-instance court and on appeal, each stage was examined separately. That practice of “fragmentation” was incompatible with the aim of the 2004 Act and the Court’s case-law, according to which “proceedings” comprised all their stages. Consequently, the court dealing with a length complaint should take into account the entirety of proceedings. 2.     Relevant provisions 86.     In section 2 a new subsection 1a was inserted and subsection 2 was rephrased (see also paragraph 76 above). Subsection 1a reads: “Section 1 shall apply accordingly to an investigation” Subsection 2 reads as follows: “2.     For the purposes of determining whether [the length of proceedings] in a case has been excessive, [a court] should, in particular, assess the promptness and correctness of actions taken by the court [dealing with the case] in order to give a decision on the merits or actions taken by the prosecutor conducting or supervising the investigation in order to terminate the investigation or actions taken by the court [dealing with the case] or court bailiff in order to handle and terminate ...the proceedings, having regard to the nature of the case, its factual and legal complexity, what is at stake for the party who has lodged the complaint, the issues examined and the conduct of the parties, especially the party alleging excessive length of the proceedings.” 87.     In section 4 new subsections 1a and 1b were inserted and a new subsection 5 was added at the end. Subsections 1a and 1b read as follows: “1a.     If a complaint concerns the excessive length of proceedings before a district court and a regional court, it shall be examined in its entirety by a court of appeal. 1b.     If a complaint concerns the excessive length of proceedings before a regional court and a court of appeal, it shall be examined in its entirety by a court of appeal.” Subsection 5 reads as follows: “5.     If a complaint concerns the excessive length of an investigation, it shall be examined by the court immediately above the court competent to deal with the subject-matter of the case.” 88.     In section 6 subsection 3 was rephrased in the following way: “3.     A complaint may include a request for a court dealing with the case or a prosecutor conducting or supervising an investigation to be instructed to take appropriate actions within a fixed time-limit and for appropriate just satisfaction as referred to in section 12(4).” 89.     In section 12, subsections 3 and 4 were rephrased in the following way: “3.     At the complainant’s request or of its own motion, the court shall instruct the court [dealing with the case] or the prosecutor conducting or supervising the investigation to take appropriate actions within a fixed time-limit, unless instructions are obviously unnecessary. Such instructions may not interfere with the factual and legal assessment of the case. 4.     Allowing a complaint the court may, at the complainant’s request, grant him ... just satisfaction in an amount ranging from 2,000 to 20,000 Polish zlotys to be paid by the State Treasury ...” C.     Civil Code provisions concerning the State’s liability for tort 90.     Articles 417 et seq. of the Civil Code ( Kodeks cywilny ) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, 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.” 91.     On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes ( Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw ) (“the 2004 Amendment”) entered into force. Following the 2004 Amendment, Article 417 1 was added. In so far as relevant, it reads as follows: “3.     If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give one, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.” However,