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FOURTH SECTION
CASE OF NOWAK v. POLAND
(Application no. 8612/02)
JUDGMENT
STRASBOURG
17 October 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 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 26 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 8612/02) 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 a Polish national, Ms Beata Maria
Nowak (“the applicant”), on 7 February 2002.
- The applicant was
represented by Ms A. Tomaszewska-Wójcik, a lawyer practising
in Gniezno. 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 give notice of the
application to the Government. 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 applicant was born in 1958 and lives in Gniezno.
A. The facts prior to 1 May 1993
- The applicant and her husband married in 1987. Their
daughter was born in the same year. At the end of 1988 the husband
left the applicant and their daughter.
- On 1 February 1989 the applicant’s husband filed
a petition for divorce with the Gniezno District Court. He also
sought eviction of the applicant from their matrimonial home. In the
course of the proceedings the claimant modified his claims on several
occasions.
- On 9 May 1990 the Gniezno District Court ordered the
claimant to pay interim maintenance to the applicant. The amount of
interim maintenance was increased in the course of the proceedings on
several occasions.
- On an unspecified later date the applicant requested
that judge P.K. withdraw from sitting in the case. On 4 October 1990
the Gniezno District Court granted the applicant’s request.
- On an unspecified date at the beginning of 1992 the
applicant requested that judge M.S. withdraw from sitting in the
case. At about the same time, five other judges of that court
declared that they wanted to withdraw. On 19 February 1992 the
Poznań Regional Court dismissed the applicant’s request in
respect of judge M.S. It acceded to the requests to withdraw in
respect of four judges of the Gniezno District Court. The applicant
appealed against that decision. On 17 April 1992 the Poznań
Court of Appeal quashed the contested decision and remitted the case.
On 14 September 1992 the Poznań Regional Court ordered that two
other judges of the District Court, including judge M.S., withdraw
from the divorce case. It also ordered that the case be transmitted
to the Września District Court for examination. The Regional
Court considered that the particular position of the claimant, who
was a doctor in the small town of Gniezno, might raise subjective
doubts on the part of the applicant as to the impartiality of the
judges of the Gniezno District Court.
B. The facts after 1 May 1993
- On 14 May 1993 the Września District Court
exempted the applicant from the court fees.
- In 1995 the applicant was declared to have the
so-called “third degree of invalidity” and was granted an
invalidity pension.
- On 9 May 1996 a panel of three judges of the Września
District Court dismissed the applicant’s request for judge M.J.
to withdraw from the case. It found that the applicant’s claims
of bias based on alleged delays in the examination of her application
for an increase of interim maintenance and lack of supervision of the
experts had no bearing on the judge’s impartiality. The panel
of the District Court also considered that there had been no links
between judge M.J. and the parties to the proceedings which could
call into question the impartiality of that judge. The applicant’s
appeal against that decision was dismissed by the Poznań
Regional Court on 10 September 1996. The Regional Court endorsed
the findings of the District Court.
- On 8 July 1997 the Września District Court
dismissed the applicant’s renewed request for judge M.J. to
withdraw. It also imposed a fine of PLN 300 on the applicant for
the submission of a groundless request. It appears that the applicant
appealed against that decision. However, she has not produced a copy
of the decision given on appeal.
- On an unspecified date before 1 July 1998 the
applicant submitted to the District Court a medical certificate and
requested an adjournment of the hearing scheduled for 1 July 1998 due
to her illness.
- On 1 July 1998 the court held a hearing and heard the
claimant and two witnesses. The hearing in the case was closed.
- On 3 July 1998 the applicant requested the court to
reopen the hearing, referring to her medical certificate and to the
fact that she had not been heard by the court.
- On 6 July 1998 the Września District Court gave
judgment and granted a divorce. It found that both parties had been
at fault in respect of the breakdown of their marriage. It ordered
the claimant to pay the applicant PLN 800 per month in
maintenance in respect of their daughter. The applicant appealed
against that judgment.
- On 5 February 1999 the Poznań Regional Court held
a hearing and heard both parties. On 9 February 1999 it gave judgment
and dismissed the applicant’s appeal. The applicant lodged a
cassation appeal against the judgment of the Regional Court.
- On 26 July 2001 the Supreme Court held a hearing. On
9 August 2001 it gave judgment and dismissed the applicant’s
cassation appeal. It found, inter alia, that the District
Court’s decision to proceed with the hearing on 1 July
1998 had been incorrect, but that in any event it had not prejudiced
the applicant’s right to defend her interests effectively in
the proceedings. The Supreme Court had regard to the fact that the
applicant had been heard earlier by the District Court on two
occasions. Moreover, both the claimant and the defendant had been
heard in the appeal proceedings before the Regional Court. In respect
of the two witnesses who had been heard on 1 July 1998, the
Supreme Court found that their evidence had been immaterial for the
determination of the divorce case. The judgment of the Supreme Court
was served on the applicant on 11 September 2001.
II. RELEVANT DOMESTIC LAW
- The legal provisions applicable at the material time
as well as matters of practice concerning the remedies against
unreasonable length of proceedings 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 AS REGARDS THE LENGTH OF PROCEEDINGS
- 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...”
- The Government contested that argument.
- The Court notes that the proceedings commenced on 1
February 1989 when the applicant’s husband filed a petition for
divorce. However, 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. Nevertheless, 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 9 August 2001. It thus lasted 8 years
and over 3 months for three levels of jurisdiction.
A. Admissibility
- The Government submitted that the applicant had not
exhausted remedies available under Polish law. They 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 applicant contested the Government’s
arguments.
- The Court observes that the proceedings at issue ended
at the latest on 9 August 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 in tort set out in Article 442 of the Code
Civil had expired before 17 September 2004.
- The Court notes that the arguments raised by the
Government are the same as those already examined and rejected by the
Court in previous cases against Poland (see Małasiewicz
v. Poland, no. 22072/02, §§ 32-34, 14 October
2003; Ratajczyk v. Poland (dec.), no. 11215/02, ECHR
2005-...; Barszcz v. Poland, no. 71152/01, §§
41-45, 30 May 2006) and the Government have not submitted any new
arguments which would lead the Court to depart from its previous
findings. 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 this complaint 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 applicant
and the relevant authorities and what was at stake for the applicant
in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII). In cases
relating to civil status, what is at stake for the applicant is also
a relevant consideration, and special diligence is required in view
of the possible consequences which the excessive length of
proceedings may have, notably on enjoyment of the right to respect
for family life (Laino v. Italy [GC], no. 3158/96, § 18,
ECHR 1999-I).
- 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON
ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The applicant complained under Article 6 § 1 of
the Convention that the divorce proceedings had been unfair. In
particular, she alleged that the Września District Court had
heard witnesses on 1 July 1998 despite her request to adjourn the
hearing on the basis of a medical certificate confirming her illness
and that it had refused to hear various witnesses and to admit
documentary evidence. Furthermore, she complained that she had been
wrongly found to have been at fault in respect of the breakdown of
the marriage.
- The Court recalls that it is not called upon to deal
with errors of fact and law allegedly committed by a national court
unless and in so far as they may have infringed rights and freedoms
protected by the Convention (see García Ruiz v. Spain
[GC], no. 30544/96, § 28, ECHR 1999-I). It further recalls that
the admissibility and assessment of evidence are matters that fall to
be decided primarily at the domestic level. Having regard to the
Supreme Court’s findings in its judgment of 9 August 2001 (see
paragraph 19 above), the Court considers that in the divorce
proceedings, seen as a whole, there is no appearance of unfairness or
arbitrariness which would infringe the guarantees of a fair hearing
within the meaning of Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF LACK OF IMPARTIALITY
- The applicant also complained under Article 6 § 1
of the Convention about the lack of impartiality of the Gniezno
District Court and the Września District Court.
- The Court notes that on 14 September 1992 the Poznań
Regional Court ordered that the applicant’s case be transferred
from the Gniezno District Court to the Września District Court.
It recalls that Poland recognised the right of individual petition as
from 1 May 1993. Consequently, the complaint in respect of the
alleged lack of impartiality of the Gniezno District Court falls
outside the Court’s jurisdiction ratione temporis.
- In respect of the Września District Court, the
Court notes that the applicant’s complaint, if limited to the
proceedings before the Września District Court which were
terminated on 6 July 1998, was lodged more than six months after the
latter date. In any event, the Court observes that the applicant
alleged bias on the part of judge M.J. of the Września District
Court who was hearing the case. However, in May and September 1996
respectively, the panel of the Września District Court and, on
appeal, the Regional Court examined those assertions and found them
entirely unsubstantiated (see paragraphs 12-13 above). The
applicant’s further request to the same effect was dismissed as
groundless on 8 July 1997. It appears that in the subsequent
proceedings, the applicant did not allege that the courts dealing
with her case lacked impartiality.
It follows that this complaint, regardless of other possible grounds
of inadmissibility, is manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. 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 applicant claimed 12,000 Polish zlotys (PLN) in
respect of pecuniary and non-pecuniary damage.
- The Government did not express an opinion on the
matter.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it considers that the
applicant must have suffered non-pecuniary damage. Ruling on an
equitable basis, and having regard, in particular, to the fact that
the proceedings in issue concerned the applicant’s civil
status, it awards her EUR 3,000 under that head.
B. Costs and expenses
- The applicant also claimed PLN 2,440 for the costs and
expenses incurred before the Court.
- The Government did not express an opinion on the
matter.
- According to the Court’s case-law, an applicant
is entitled to reimbursement of his costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
600 for 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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 3,000 (three thousand euros) in respect of
non-pecuniary damage and EUR 600 (six hundred euros) in respect of
costs and expenses, 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
