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FOURTH
SECTION
CASE OF NOWAK AND ZAJĄCZKOWSKI v. POLAND
(Application
no. 12174/02)
JUDGMENT
STRASBOURG
22
August 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nowak and Zajączkowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 11 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 12174/02) 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 two Polish nationals, Mr Daniel Nowak and Mr Bogusław
Zajączkowski (“the applicants”), on 28 August 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- On
26 August 2005 the
President of the Fourth Section decided to communicate the
application. Under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1927 and 1938 respectively and live in
Wrocław, Poland.
1. The facts prior to 1 May 1993
- On
22 June 1992 the applicants sued the “Wrocławskie
Przedsiębiorstwo Robót Inżynieryjnych Budownictwa
Przemysłowego nr 2” (“the defendant company”)
before the Wrocław Regional Court, seeking remuneration for the
defendant company’s use of an industrial invention of which
they were the authors.
- The
Regional Court held 3 hearings on the following dates: 21 December
1992; 1 February and 2 April 1993.
2. The facts after 1 May 1993
- The
Wrocław Regional Court held 11 hearings on the following dates:
3 November and 22 December 1993; 29 January 1994; 20 February,
27 July and 23 November 1995; 30 January, 27 February,
10 July and 11 September 1997, and 21 December 1998.
- In
the course of the proceedings the Regional Court obtained five expert
reports. It appears that two other experts (K.N. and R.B.) returned
the case file after 5 months without having prepared a report as
ordered by the court.
- The
applicant repeatedly complained to the President of the Regional
Court and the Wrocław Court of Appeal about delays in the
proceedings. On 6 February 1998 the President of the Regional Court
and on 27 October 1998 the President of the Court of Appeal
acknowledged that there had been delays.
- On
30 June 1998 the applicants and the defendant company concluded an
out-of-court settlement in respect of a minor part of the applicants’
claims.
- On
21 December 1998 the Regional Court gave judgment. It dismissed the
applicants’ claims and discontinued the proceedings in respect
of the claims which had been the subject of the settlement. The
applicants appealed against that judgment.
- On
9 April 1999 the Wrocław Court of Appeal held a hearing. On the
same day it quashed the judgment of the Regional Court and remitted
the case.
- The
Regional Court held 6 hearings on the following dates: 22 September,
13 October and 9 November 1999; 7 and 22 April and 1 December
2000. It obtained 3 additional expert reports.
- On
15 December 2000 the Regional Court gave judgment. It allowed the
applicants’ claims in part. The defendant company appealed
against that judgment. However, on 25 June 2001 it withdrew its
appeal. Consequently, on 27 June 2001 the Wrocław Court of
Appeal discontinued the appeal proceedings.
- On
12 July 2001 the Wrocław Court of Appeal issued an enforcement
order in favour of the applicants in respect of the judgment of the
Regional Court of 15 December 2000.
- On
22 November 2001 the defendant was declared insolvent.
3. Proceedings for compensation for damage suffered due
to the excessive length of proceedings
- On
10 November 2004 the applicants sued the State Treasury before the
Wrocław Regional Court, seeking compensation for the excessive
length of the proceedings referred to above.
- On
10 February 2005 the first applicant (Mr Daniel Nowak) withdrew his
claim. Consequently, on 28 February 2005 the Regional Court
discontinued the proceedings in respect of the first applicant.
- On
29 September 2005 the Regional Court gave judgment and dismissed the
second applicant’s claim. It found that he had failed to
establish the State Treasury’s liability for damage caused by
the excessive length of the proceedings. The second applicant
(Mr Bogusław Zajączkowski) appealed. The appeal
proceedings are pending.
II. RELEVANT
DOMESTIC LAW
- The
legal provisions applicable at the material time as well as matters
of practice are set out in paragraphs 26-35 of the judgment delivered
by the Court on 30 May 2006 in the case of Barszcz v. Poland,
no. 71152/01.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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...”
- The
Government contested that argument.
- The
period to be taken into consideration began only on 1 May 1993, when
the recognition by Poland of the right of individual petition took
effect. However, in assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings at the time. The period in question ended on 27 June
2001. It thus lasted 8 years and nearly 2 months for two levels of
jurisdiction.
A. Admissibility
- The
Government submitted that the first applicant had not exhausted
remedies available under Polish law as he had withdrawn his claim for
compensation for the excessive length of proceedings. In respect of
the second applicant, the Government invited the Court to adjourn the
examination of his application until the proceedings brought by the
second applicant for compensation for the excessive length of
proceedings had terminated. They argued that the second applicant had
not yet exhausted all available domestic remedies.
- The
Government maintained that from 17 September 2004 when the Law
of 17 June 2004 on complaints about 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”) had
come into force, the applicant had a possibility of lodging with the
Polish civil courts under Article 417 of the Civil Code read together
with Article 16 of the 2004 Act a claim for compensation for
damage suffered due to the excessive length of proceedings. They
argued that the three-year prescription period for the purposes of a
compensation claim in tort based on the excessive length of
proceedings could run from a date later than the date on which a
final decision in these proceedings had been given. The Government
further submitted that such a possibility had existed in Polish law
before the entry into force of the 2004 Act ever since the judgment
of the Constitutional Court of 4 December 2001, which entered into
force on 18 December 2001.
- The
applicants contested the Government’s arguments.
- The Court observes that the proceedings at issue ended
at the latest on 12 July 2001, which is more than three years before
the relevant provisions of the 2004 Act read together with the Civil
Code became effective. It follows that the limitation period for the
State’s liability for tort set out in Article 442 of the Code
Civil had expired before 17 September 2004. The Court recalls
that in those circumstances a civil action for compensation provided
for by Article 417 of the Civil Code read together with Article
16 of the 2004 Act could not be regarded as an effective remedy (see,
Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-...;
Barszcz v. Poland, no. 71152/01, §§ 41-45, 30
May 2006).
- The
Court notes that the arguments raised by the Government are the same
as those already examined by the Court in previous cases against
Poland (see Małasiewicz v. Poland, no. 22072/02, §§
32-34, 14 October 2003; Ratajczyk v. Poland, cited
above and Barszcz v. Poland, cited above) and the
Government have not submitted any new arguments which would lead the
Court to depart from its previous findings.
- In
view of the foregoing, the Court considers that the first applicant’s
withdrawal of his claim for compensation for damage suffered due to
the excessive length of proceedings cannot be held against him. In
respect of the second applicant, the Court finds that the application
cannot be declared inadmissible on the grounds of non-exhaustion
since the second applicant is pursuing a claim, which under the
Court’s case-law, cannot be regarded as an effective remedy.
For these reasons, the Government’s plea of inadmissibility on
the ground of non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- 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).
- 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, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicants claimed PLN 100,000 in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the applicants must have suffered some
non-pecuniary damage. Ruling on an equitable basis, it awards each of
the applicants EUR 3,000 under that head.
B. Costs and expenses
- The
applicants did not seek to be reimbursed for any costs and expenses
in connection with the proceedings before the Court.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage,
to be converted into Polish zlotys at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 22 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
