CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 mai 2019

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POLAND   (Application no. 45751/10)                 JUDGMENT     STRASBOURG   16 May 2019             This judgment is final but it may be subject to editorial revision.   In the case of Ziaja v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 23 April 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 45751/10) 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 Janina Ziaja (“the applicant”), on 2 August 2010. 2.     The applicant was represented by Ms E. Draga-Buchta, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr   J.   Sobczak, of the Ministry of Foreign Affairs. 3.     On 16 May 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1956 and lives in Golasowice. A.     Main proceedings 5.     On 1 February   1999 the applicant instituted civil proceedings before the Jastrzębie Zdrój District Court for the purposes of establishing an easement. In particular the applicant sought a decision allowing her to use a strip of land belonging to her neighbours as a roadway allowing her access to her property. The roadway in question, which has been used by her in the past, runs along a causeway ( grobla ) between fishponds. 6.     By a decision of 11 July 2000 (file no. I Ns 57/99) the Jastrzębie Zdrój District Court allowed the applicant’s claim. The other party appealed against this decision. 7.     On 15 November 2000 the Katowice Regional Court quashed the first-instance decision and remitted the case (file no. III Ca 661/00). 8.     At a hearing on 13 March 2001 the court ordered the preparation of an expert opinion. Two experts declined the invitation to prepare an opinion, and the third expert approached by the court eventually prepared it on 17   October 2001. 9.     The defendants contested both the expert opinion itself and the fee for drafting it. In March 2002 they requested preparation of another expert opinion. 10.     It appears that the next hearing was held on 23 April 2002. The court questioned the expert and appointed another one to assess the value of the plot of land. 11.     On 12 November 2002 the court held a viewing of the property. 12.     At a hearing on 13 January 2003 the court decided to appoint yet another expert to establish whether the easement would have any impact on the fishponds. The opinion was submitted to the court on 11 April 2003. The expert was questioned at a hearing on 3 July 2003. On 27 January 2004 another expert submitted a complementary opinion, at the request of the court. 13.     The next hearing was held on 17 June 2004. The court subsequently dealt with an application lodged by the applicant to exempt her from payment of the fees for the expert opinion. 14.     On 2 June 2005 the Jastrzębie Zdrój District Court allowed, in essence, the applicant’s claim (file no.   I Ns 57/99). The other party appealed against the decision. 15.     On 26 January 2006 (file no.   III Ca 1322/05) the Gliwice Regional Court quashed the first-instance decision and remitted the case for the second time. 16.     At a hearing on 26 June 2006 the court requested preparation of an expert geological opinion. The opinion was submitted one year later, on 22   June 2007. 17.     At a hearing on 18 October 2007 the court decided that further defendants should join the proceedings. 18.     A viewing of the land took place on 6 November 2007. Afterwards anther expert opinion on road construction was ordered by the court. It was submitted to the court in January 2008 and the parties duly commented on it. 19.     At a hearing on 23 July 2008 the court questioned the expert and requested the preparation of another expert opinion on the value of the plot of land. 20.     The opinion was submitted to the court on 12 January 2009. 21.     The court held a hearing on 25 November 2009 and decided to hold another viewing of the property. Two subsequent viewings scheduled for December 2009 and February 2010 were cancelled due to the weather conditions. 22.     A hearing was held on 4 March 2010 and on 30 April 2010 the court held a viewing of the land. 23.     Another expert opinion ordered by the court was prepared on 6   August 2010. 24.     The court held hearings in March 2011. On 31 March 2011 it gave a decision granting the applicant the easement in question. 25.     The defendants appealed. 26.     On 22 February 2012 the Gliwice Regional Court finally dismissed the appeals. B.     Proceedings under the 2004 Act 27.     On 9 December 2004 the applicant lodged a complaint with the Gliwice Regional Court under 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”). She stated that she had lodged her claim in 1999 and that her case had still not been examined. She also claimed PLN   10,000 in compensation. 28.     By a decision of 21 December 2004 (file no.   III S 36/04) the Gliwice Regional Court rejected the claim on formal grounds, having found that the applicant “had not specified the circumstances on which her complaint had been based.” 29.     Subsequently, the applicant lodged another complaint under the 2004 Act. She sought a finding that the length of the proceedings had been excessive and claimed PLN   10,000 in compensation. 30.     By a decision of 5 April 2006 (file no.   III S 7/06) the Gliwice Regional Court dismissed the claim. It analysed in detail the course of the proceedings after September 2004 and held that they had generally been conducted in a correct and timely manner. As regards the period prior to September 2004, the court relied on the Supreme Court’s jurisprudence and held that the 2004 Act applied to delays caused by the court’s inactivity occurring before that date but only if that delay still continued; what had not been the case in the case under the consideration. II.     RELEVANT DOMESTIC LAW AND PRACTICE 31.     A detailed description of the relevant domestic law and practice concerning remedies for excessive length of judicial proceedings – in particular the applicable provisions of the 2004 Act – are presented in the Court’s decisions in the cases of Charzyński v.   Poland ((dec.), no.   15212/03, §§   12-23, ECHR 2005-V), Ratajczyk v.   Poland ((dec.), no.   11215/02, ECHR 2005-VIII), and in its judgments in the cases of Krasuski v.   Poland (no.   61444/00, §§   34-46, ECHR 2005-V) and, most recently, Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and   46187/11, §§ 75-107, 7 July 2015). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32.     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...” 33.     The Government contested that argument. 34.     The period to be taken into consideration began on 1 February 1999 and ended on 22 February 2012. It thus lasted thirteen years at two levels of jurisdiction. A.     Admissibility 35.     The Government raised a preliminary objection and invited the Court to reject the application on the grounds that the applicant had failed to exhaust the domestic remedies as required under Article 35 § 1 of the Convention. They maintained that the applicant had not lodged a third complaint about unreasonable length of proceedings under the 2004 Act. The Government observed that she had already lodged two complaints which had been dismissed on 9 December 2004 and on 5 April 2006. However, as of 25 September 2006 the applicant had had the possibility of lodging a new complaint under section 5 of the 2004 Act. The proceedings had lasted for almost six more years, during which the applicant had remained passive and had not used the available remedies to speed up the proceedings. 36.     The applicant contested that argument. She argued that there was no justification for requiring her to lodge a fresh complaint under the 2004 Act when her previous two complaints had been dismissed. 37.     The Court finds that the question of the exhaustion of domestic remedies is inextricably linked to the merits of this complaint. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits. 38.     The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 39.     The applicant argued that the length of the proceedings had clearly been in breach of the “reasonable time” principle. They lasted thirteen years in total. The proceedings were not complex and the necessity to obtain expert evidence had been known from the beginning and should have been secured in a timely manner. There were many periods of inactivity for which the domestic courts had been responsible. For instance, the first hearing after the quashing of the judgment on 26 January 2006 had been set for 26 July 2006. Other periods of inactivity lasted up to fifteen months. The hearings had been adjourned repeatedly and without valid reason. 40.     The Government refrained from commenting on the merits of the applicant’s complaint. 41.     The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and taking into account the criteria laid down in the Court’s case ‑ law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, account must also be taken of what is at stake for the applicant (see Kudła v. Poland [GC], no.   30210/96, § 124 ECHR 2000‑XI, for further case-law references see Rutkowski and Others , cited above, §§   126 ‑ 128). 42.     The Court agrees with the applicant that the proceedings in which she sought the establishment of an easement did not involve complex issues of facts and law, even though evidence from experts in different fields needed to be obtained. While it is true that taking expert evidence necessarily takes time, it should be noted that on several occasions the experts had needed almost a year to prepare their opinion. 43.     The Court considers that the procedure for taking expert evidence had lacked the requisite efficiency. The court sent the case-file material to each expert in turn, meaning that they had to delay the preparation of their reports until their predecessor’s work had been finished. No attempts were made to impose discipline on the experts and ensure that they complied with the deadlines set. It is also not clear whether after each remittal of the case to the District Court all expert evidence needed to be repeated. 44.     In this connection, the Court would reiterate that experts work in the context of judicial proceedings under the supervision of a judge, who remains responsible for the preparation and speedy conduct of proceedings (see, for instance, Proszak v. Poland , 16 December 1997, § 44, Reports of Judgments and Decisions 1997‑VIII, and Łukjaniuk v. Poland , no.   15072/02, § 28, 7 November 2006). 45.     It must also be noted that there were lengthy intervals between the hearings, which appear not to be related to the work of experts, on several occasions of as long as a year (see paragraphs 13 and 14, 20 and 21 and 23 and 24 above). 46.     Lastly, it is to be noted that following two remittals ordered by the Regional Court, the applicant’s case was examined three times at first instance (see paragraphs 6, 14, 24 above). Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts. The repetition of such orders within one set of proceedings points to a deficiency in the judicial system. Moreover, this deficiency is imputable to the authorities and not the applicants (see, among many others, Wierciszewska v. Poland , no.   41431/98, § 46, 25 November 2003; Matica v. Romania , no. 19567/02, §   24, 2 November 2006; and Vlad and Others v. Romania , nos. 40756/06, 41508/07 and 50806/07, § 133, 6 November 2013). 47.     In the circumstances, the Court cannot find sufficient justification for the delay in the examination of the applicant’s case and an overall length of proceedings of thirteen years. 48.     Turning to the question of whether the applicant should have repeated the complaint under the 2004 Act, the Court considers it necessary to repeat some of the conclusions of its pilot judgment in the case of Rutkowski (cited above, §§ 176-186). In that judgment the Court examined the domestic court’s application of the 2004 Act, including its interpretation by the Supreme Court (ibid, §§ 93-106). 49.     In Rutkowski the Court found that considerable delays occurring in the applicants’ cases, which were relevant as regards the assessment of the breach of Article 6 § 1 alleged by them, were not taken into account by the courts dealing with their complaints. Contrary to the Court’s established case-law on the assessment of the reasonableness of the length of proceedings, the courts did not examine the overall length of the proceedings but only selected parts of them. In some cases the courts disregarded periods occurring before the 2004 Act’s entry into force and examined only the length of proceedings at the current instance. The Supreme Court’s interpretation allowing for “fragmentation of proceedings” applied until 20 March 2013, when the Supreme Court issued the 2013 Resolution, analysing critically its previous case-law on the matter and endorsing a new interpretation in compliance with the Court’s case-law on the assessment of the reasonableness of the length of proceedings. Moreover, the Court reiterated the standards for “appropriate and sufficient redress” for violations of the “reasonable time” requirement and its strong, although rebuttable, presumption in favour of non-pecuniary damage being normally occasioned by the excessive length of proceedings ( ibid, § 182). In view of the above, the Court found in its pilot judgment that the 2004 Act failed to provide the applicants with “appropriate and sufficient redress” in terms of adequate compensation for the excessive length of the proceedings in their cases ( Rutkowski , cited above,§ 183). 50.     The Court considers that its findings as to the Polish courts’ deficient practice in respect of the application of the 2004 Act also apply to the instant case. Furthermore, it notes that the domestic court rejected the complaint on 21   December 2004 for formal reasons (see paragraph   28 above). The Court has already found that declaring a complaint inadmissible on the grounds that an applicant “had not specified the circumstances on which his/her complaint had been based” is too formalistic an approach, which may prevent an applicant’s claims from being examined on the merits (see Wende and Kukówka v. Poland , no.   56026/00, §§ 49-57, 10   May 2007). The applicant’s second complaint under the 2004 Act was examined on the merits on 5 April 2006, but the court examined only the length of proceedings after September 2004 and disregarded periods occurring before the 2004 Act’s entry into force. 51.     The foregoing considerations are sufficient to enable the Court to conclude that the length of the proceedings was already excessive and failed to meet the “reasonable time” requirement in the periods which were susceptible to the domestic courts’ scrutiny. It has inevitably remained so throughout the subsequent period. In these circumstances, to ask the applicant to lodge a third complaint under the 2004 Act would be to overstretch her duties under Article 35 § 1 of the Convention (see, for example, Antonić-Tomasović v. Croatia , no. 5208/03, §§ 25-34, 10   November 2005). 52.     In conclusion, the Court rejects the Government’s objection as to the exhaustion of domestic remedies and finds that there has been a breach of Article 6 § 1 of the Convention in the present case. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 53.     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 54.     The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. 55.     The Government contested the claim. 56.     The Court awards the applicant EUR 10,000 in respect of non ‑ pecuniary damage. B.     Costs and expenses 57.     The applicant, represented by a lawyer, did not make any claim in respect of costs and expenses. C.     Default interest 58.     The Court considers it appropriate that the default interest rate 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.     Joins to the merits   the Government’s preliminary objection concerning the applicant’s failure to exhaust domestic remedies and dismisses it;   2.     Declares the application admissible;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State 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 16 May 2019, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Renata Degener   Ksenija Turković Deputy Registrar   President