CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 janvier 2018

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A.     The circumstances of the case 2.     The facts of the cases, as submitted by the applicants, may be summarised as follows. 1.     The main set of proceedings 3.     The applicants were involved in civil or criminal proceedings. The various sets of proceedings lasted from three years and seven months (the shortest set of proceedings) to over nineteen years (the longest set of proceedings). The details of the proceedings in respect of each applicant may be found in the attached table. 2.     Proceedings under the 2004 Act 4.     The applicant in case no. 51416/16 lodged a complaint under section 5 of the Law of 17 June 2004, alleging a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”). On 10 April 2006 the Warsaw Court of Appeal dismissed the complaint (case no. I S 24/06). 3.     Civil proceedings for compensation 5.     All applicants lodged civil claims with various courts after the termination of the proceedings; they based their claims on section 16 of the 2004 Act and sought compensation for pecuniary and non-pecuniary damage sustained by them as a result of the excessively lengthy proceedings in their cases. The claims of five of the applicants were dismissed. 6.     In case no. 29233/12 the Cracow Regional Court established that the main proceedings had been excessively lengthy and awarded the applicant non-pecuniary damage. 7.     In case no. 51416/16 the Warsaw District Court established that there had been one period of inactivity on the part of the courts. It ordered pecuniary damages to be paid to the applicant in respect of this delay. B.     Relevant domestic law and practice 1.     The 2004 Act 8.     The evolution of 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 described in the Court’s decisions in the case of Rutkowski and Others v. Poland , nos. 72287/10 and 2 others, §   75-107, 7 July 2015. Section 5 of the 2004 Act provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 9.     Section 15 provides for an additional compensatory remedy, if a complaint under section 5 of the 2004 Act has been successful. 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 the proceedings [in question], is binding on a court in civil proceedings for compensation for pecuniary or non-pecuniary damage ( odszkodowanie lub zadośćuczynienie ).” 10.     Section 16 affords the same compensatory remedy to persons who have not lodged a length-of-proceedings 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.” 2.     The Civil Code 11.     Articles 417 et seq. of the Civil Code ( Kodeks cywilny ) provide for the State’s liability in tort. In the wording applicable until 1 September 2004, Article 417 § 1, which lay down a general rule, read as follows: “1. The State Treasury shall be liable for damage ( szkoda ) caused by a State official in the course of carrying out the duties entrusted to him.” 12.     After being amended in 2004, Article 417 § 1 of the Civil Code provides: “The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [committed] in connection with the exercise of public authority. “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.” 13.     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.” “Damage”, as referred to in Article 417 1, means pecuniary damage, which is defined in Article 361 § 2 of the Civil Code as “losses and lost profits that an aggrieved party could have made if he had not sustained damage.” 14.     Article 23 of the Civil Code contains a non-exhaustive list of so ‑ called “ personal rights” ( dobra osobiste ). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, and scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law, regardless of the protection laid down in other legal provisions.” 15.     Article 445 § 1 of the Civil Code, which is applicable in the event that a person suffers bodily injury or a health disorder as a result of an unlawful act or omission on the part of a State agent, reads as follows: “... [T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.” 16.     Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage ( krzywda ) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of whether he seeks any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 3.     Practice of the domestic courts 17.     The decision of the Supreme Court of 27 June 2008 (II CZP 25/08) concluded, in so far as relevant: “The legislature ... intended make clear that the amount of compensation awarded [following the complaint about the unreasonable length of the proceedings] does not [necessarily] cover all claims which the claimant may have under the provisions of the civil code in connection with the unreasonable length of the proceedings. Sections 15 and 16 [of the 2004 Act] should be considered as a reinforcing provision ( wzmocnienie normatywne ) by which the legislature removed all doubts as to the liability of the State under the Civil Code provisions for damage caused by undue delay in the examination of a case. The above-mentioned provisions ... are not a legal basis for the civil claims. Such a legal basis can be found in particular in Articles 445 and 448 of the Civil Code, and their interpretation in the light of the jurisprudence of [the Court under Article 6 of the Convention].” 18.     In its judgment of 6 May 2010 (no. II CSK 640/09) the Supreme Court stated, in so far as relevant: “The claimant was not right to maintain that the right to a fair trial, belonging to the right to a court protected by [Article 6 of the Convention] and Article 45 of the Constitution, should be considered as one of the personal rights protected by Article   23 of the Civil Code.” ... “The claimant was required to prove that as a consequence of the established excessive delay in [the proceedings] his personal rights had been breached.... This obligation was not fulfilled as the claimant had only relied on a breach of his right to a fair trial. The claim that there is a strong presumption, originating from the case-law of the [Court], that excessive length of proceedings causes non-pecuniary damage is applicable to proceedings initiated under [section 5 of] the 2004 Act and in the application of the acceleratory/compensatory remedy.” COMPLAINTS 19.     The applicants complain under Articles 6 and 13 of the Convention of the unreasonable length of the proceedings in their cases and of the lack of an effective remedy at the national level. QUESTIONS TO THE PARTIES   1.     Was the length of the proceedings in the present cases in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?   2.     Having regard to the facts of the present cases and the principles established by the Court in respect of an “effective remedy” and the characteristics of redress required at national level for a violation of the right to a hearing within a reasonable time, has there been a breach of Article 13 of the Convention in the present cases? In particular:   (a)     can a claim, under Articles 417 and others of the Civil Code together with sections 15 and 16 of the 2004 Act, be regarded as an “effective” remedy for the purposes of Article 13 of the Convention (see, in particular, Krasuski v. Poland , no. 61444/00, § 72, ECHR 2005 ‑ V (extracts); Kudła v.   Poland , §§ 157-159; and Scordino (no.   1) v. Italy, [GC] no. 36813/97, §§   195-216, with further references)?   (b)     have the Polish courts, when dealing with the applicants’ civil claims regarding the length of proceedings under sections 15 and 16 of the 2004 Act, applied correctly the criteria established by the Court in respect of this requirement?   Reference is made, in particular, to the following:   -     the courts’ practice of requiring applicants to prove non-pecuniary damage even it was established that the proceedings had been excessively lengthy (see Scordino (no. 1), cited above, § 204 and Rutkowski and Others v. Poland , nos. 72287/10 and 2 others, §§ 173 and 182, 7 July 2015); -     the level of compensation awarded at the domestic level; -     the length of the examination of civil claims for compensation; -     the courts’ practice of not considering the entire proceedings if a complaint under section 5 of the 2004 Act was lodged during the proceedings in question (the period already examined is considered as res judicata ).       APPENDIX No.   Application no.   Lodged on   Applicant’s name date of birth place of residence   Main proceedings   Civil proceedings for compensation   Reasons   63624/09 21/10/2009 Zdzisław SZOPA 14/07/1951 Warszawa   Civil proceedings for compensation lasting from 28   May 1982 until 4   December 2001 (19 years and 6 months; 8 years and 11 months ratione temporis ) before the Warsaw-Praga District Court (case no. unknown), the Warsaw Regional Court (case no. II C 927/92), and the Warsaw Court of Appeal (case no. I ACa 205/01); two levels of jurisdiction.     On 5 November 2004 the applicant lodged civil action for compensation for pecuniary and non-pecuniary damage sustained on account of the excessive length of the proceedings. On 20 September 2007 his claim was dismissed (case no. III C 2057/04). On 26 June 2008 the Warsaw Court of Appeal (case no. VI ACa 1647/07) dismissed the appeal. On 15 May 2009 the Supreme Court (case no. I CSK 71/09) refused to entertain the applicant’s cassation appeal. The applicant lodged a complaint under the 2004 Act concerning the length of the proceedings above. The complaint was partly allowed by the Warsaw Court of Appeal on 28 November 2006, undue delay established but no compensation awarded. The Regional Court found that the length of the proceedings had ben excessive and the applicant suffered damage. However he had not proven the causal link between the length of the proceedings and the damage suffered. The Court of Appeal also stated that there had been no legal basis no claim non-pecuniary damage in connection with the extensive length of the proceedings The Court’s notional award in Polish cases (compatible ratione temporis ) EUR 5,200/ PLN   20,800. The minimum domestic award required by Scordino (no. 1) on the date of termination of the civil proceedings: EUR   1,820/ PLN   7,280.   29233/12 18/04/2011 Stanisława GIBEK 12/11/1942 Oświęcim   Civil proceedings concerning employee benefits, lasting from 8   December 1997 until 4   September 2007 (9 years and 11 months) before the Oswiecim District Court (case no. IV P 17/05), the Cracow Regional Court (case no. VI Pa 235/06) and the Supreme Court (case no. I PK 99/07); three levels of jurisdiction.   The applicant did not lodge a complaint under the 2004 Act in the course of the proceedings.     On 31 May 2007 the applicant lodged a civil action for compensation for pecuniary and non-pecuniary damage sustained on account of the excessive length of the proceedings. On 15 July 2008 her claim was dismissed by the Chrzanow District Court (case no. I C 127/08) The applicant appealed. On 19 May 2010 the Cracow Regional Court (case no. II Ca 1542/09) amended the first-instance court judgment and partly granted the applicant’s claim; PLN   5,000/ EUR 1,250 awarded for non-pecuniary damage. On 10 February 2011 the Supreme Court refused to entertain the applicant’s cassation appeal. The District Court held that the proceedings were indeed excessive, but the applicant had not proven damage and the causal link between the alleged damage and the length of the proceedings. Moreover, no legal basis to claim non-pecuniary damage.   The Cracow Regional Court established that length of the proceedings was excessive and granted compensation for non-pecuniary damage.   The Court’s notional award in Polish cases: EUR 6,760/PLN 27,040. The minimum domestic award required by Scordino (no. 1) on the date of termination of the criminal proceedings: EUR 2,366/ PLN   9,464.         54440/12 06/08/2012 Tomasz CZARNECKI 24/09/1972 Reda   Criminal proceedings concerning charges of handling stolen goods lasting from 11 September 1998 to 1 August 2008 (9 years and 11 months) before the Gdansk-Polnoc District Prosecutor (case nos. 1 Ds 5028/98; 1 Ds 4803/98; 1 Ds 5028/98; 1 Ds 1460/05) and the Gdansk-Polnoc District Court (case no. II K 392/05); 1 level of jurisdiction.   The applicant did not lodge a complaint under the 2004 Act in the course of the proceedings.     On 19 June 2009 the applicant lodged with the Gdansk-Polnoc District Court a civil action for compensation for non-pecuniary damage sustained on account of the excessive length of the above proceedings. On 29 March 2011 his claim was dismissed (case no. I C 1164/09). On 28 April 2011 the applicant appealed. On 9 December 2011 the Gdansk Regional Court (case no. III Ca 869/11) dismissed the appeal. The decision was notified to the applicant on 26   February 2012.   The District Court found that the applicant had not suffered any damage as a result of the alleged excessive length of the proceedings. The court failed to examine whether there had been excessive length of the proceedings (unlawful actions or omissions of the courts).   The Court’s notional award in Polish cases: EUR 9,100/ PLN   36,400. The minimum domestic award required by Scordino (no. 1) on the date of termination of the criminal proceedings: EUR 3,185/ PLN   12,740.       62831/15 01/12/2015 Michal TRUSZKOWSKI 28/03/1977 Wroclaw   Criminal proceedings concerning charges of theft and destroying document lasting from 19 June 2004 to 27 April 2010 (5 years, 10 months) before the unspecified prosecutor (case no. unknown) and the Grojec District Court (case no. II K 541/07); 1 level of jurisdiction. The applicant did not lodge a complaint under the 2004 Act in the course of the proceedings.   On 17 January 2013 the applicant lodged with the Warsaw Regional Court a civil action for compensation for non-pecuniary damage sustained on account of the excessive length of the above proceedings. On 27 February 2014 his claim was dismissed (case no. II C 98/13). On 12 May 2015 the Warsaw Court of Appeal dismissed the appeal (case no. I ACa 1647/14). He was notified of this decision on 27 October 2015.   The Warsaw Regional Court held that the applicant had not obtained a decision under section 5 of the 2004 Act nor he had justified that there had been undue delay in the proceedings. In addition he failed to justify existence of his non-pecuniary damage and the causal link between the damage and the alleged excessive length. The Court’s notional award in Polish cases EUR 3,900/PLN 15,600. The minimum domestic award required by Scordino (no 1) on the date of termination of the criminal proceedings: EUR   1,365/ PLN 5,460.       51416/16 25/08/2016 Małgorzata CASTELAZO RÓŻYCKA 30/01/1974 KOZIENICE   Civil proceedings concerning annulment of a notary deed lasting from 8   May 2002 to 2 December 2013 (11 years, 7 months) before the Warsaw Regional Court (case no. XXIV C 825/06) and Warsaw Court of Appeal (case no. I Aca 583/13); 2 levels of jurisdiction.   Complaint under the 2004 Act dismissed by the Warsaw Court of Appeal (case no. I S 24/06) on 10 April 2006.   On 14 April 2014 the applicant lodged with the Warszawa-Wola District Court a civil action for compensation for pecuniary damage sustained on account of the excessive length of the above proceedings. On 7 May 2015 her claim was partly granted (case no. II C 935/14). On 7 June 2016 the Warszaw Regional Court dismissed her appeal (case no. V Ca 3007/15).   The Warsaw-Wola District Court considered that the period prior to 10 April 2006 (dismissal of the complaint under section 5 of the 2004 Act) is res judicata and cannot be re-examined. It held that the length of the proceedings was excessive only in respect of a period of three months in 2010 for which it had grated pecuniary damage PLN   5,353.44/EUR 1,338.   The Court’s notional award in Polish cases: EUR 9,100/ PLN   36,400. The minimum domestic award required by Scordino (no.1) on the date of termination of the civil proceedings: EUR 3,185/ PLN   12,740.   54080/16 07/09/2016 Bartosz BIRECKI 22/01/1983 Warszawa   Criminal proceedings concerning charges of fraud lasting from 11 April 2006 to 24 November 2009 (3 years and some 7 months) before the Warsaw-Wola District Prosecution (case no. unknown), Warsaw-Wola District Court (case no. III K 1715/06) and Warsaw Regional Court (case no. unknown); 2 levels of jurisdiction.   The applicant did not lodge a complaint under the 2004 Act in the course of the proceedings.   On 29 November 2011 the applicant lodged with the Warsaw Regional Court (case no. XXV C 103/12) a civil action for compensation for non-pecuniary damage sustained on account of the excessive length of the above proceedings. On 28 November 2013 his claim was dismissed. On 5   December 2014 the Warsaw Court of Appeal (case no. VI Aca 230/14) dismissed his appeal but amended the reasons. On 29 April 2016 the Supreme Court (case no. I CSK 541/15) refused to entertain the applicant’s cassation appeal.   The Warsaw Regional Court held that the proceedings were not lengthy, taking into account the enormous backlog of cases in the Warsaw-Wola District Court at the time.   The Court of Appeal recognised that the proceedings had been excessively lengthy as for the first 2 years the case lay dormant. However it had not been substantiated by the applicant that the delay breached his personal right and had caused him the alleged damage.   The Court’s notional award in Polish cases: EUR 1,625 / PLN   6,500. The minimum domestic award required by Scordino (no. 1) on the date of termination of the criminal proceedings: EUR 568/ PLN   2,272.     66916/17 01/09/2017 Jolanta Romualda ORKISZ 10/04/1953 Krakow   Civil proceedings concerning division of inheritance and the dissolution of co-ownership, lasting from 24 April 1991 to 22 October 2010 (19 years and 6 months; 17 years 6 months ratione temporis ) before the Kraków-Śródmieście District Court (cases no. I Ns 1093/91/S, I Ns 1455/93/S and I Ns 1455/03/S), the Kraków Regional Court (cases nos. II Ca 923/98 and II Ca 1558/08) and the Supreme Court (cases nos. III CSK 10/06 and III CSK 331/09); 3 levels of jurisdiction.   The applicant did not lodge a complaint under the 2004 Act in the course of the proceedings.   On 24 June 2014 the applicant lodged with the Kraków Regional Court (case no. I C 1155/14) a civil action for compensation for pecuniary damage sustained on account of the excessive length of the proceedings. On 2 July 2015 her claim was dismissed. On 16 March 2016 the Kraków Court of Appeal (case no. I ACa 1728/15) dismissed her appeal. On 7 February 2017 the Supreme Court (case no. III CSK 302/16) refused to entertain the applicant’s cassation appeal. The decision was notified to the applicant on 16   March 2017.   The Kraków Regional Court held that the case in question was complicated and the courts dealing with the case conducted the proceedings without undue delay. Moreover it held that the applicant had not proven her damage and the causal link between unlawful actions or omissions of the courts and the alleged damage. the Court of Appeal noticed that there had been unlawful omission as regards the courts failure to examine one request of the applicant. However, it found that the applicant had failed to prove her pecuniary damage and the causal link between the alleged damage and actions of the courts.   The Court’s notional award in Polish cases ( ratione temporis ): EUR 18,200/PLN 72,800. The minimum domestic award required by Scordino (no. 1) on the date of termination of the civil proceedings: EUR   6,370/PLN 25,480.