BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH SECTION
CASE OF SZWAGRUN-BAURYCZA v. POLAND
(Application no. 41187/02)
JUDGMENT
STRASBOURG
24 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 Szwagrun-Baurycza 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 M. Pellonpää,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki, judges,
and Mr T.L. Early,
Section Registrar,
Having deliberated in private on 3 October 2006,
Delivers the following judgment, which was adopted on the
last mentioned date:
PROCEDURE
- The case originated in an application (no. 41187/02)
against the Republic of Poland lodged with the Court on 5 November
2002 under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by Ms
Leokadia Szwagrun-Baurycza. The applicant was represented before the
Court by Mr S. Filek, a lawyer practising in Wrocław.
- The Polish Government (“the Government”)
were represented by their Agents, Mr K. Drzewicki and subsequently by
Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
- The applicant alleged, in particular, that the domestic
courts’ refusals to resume civil proceedings in which she was
involved on the ground that she had failed to indicate the identities
and addresses of persons potentially interested in the outcome of the
case amounted to a denial of effective access to court since no
decision on the merits has ever given by a court.
- The application was allocated to the First Section of
the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
- On 20 June 2003 the Court decided to communicate the
application to the Government.
- On 1 November 2004 the Court changed the composition of
its Sections (Rule 25 § 1). This case was assigned to the newly
composed Fourth Section (Rule 52 § 1).
7. By a decision of 18 October 2005, the Court decided to
join to the merits the question of the exhaustion of domestic
remedies in respect of the applicant’s complaint about the
alleged lack of access to a court and declared the application partly
admissible.
- The parties replied in writing to each other’s
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- On 3 November 1975 the applicant’s parents
requested a court to declare that they had acquired by prescription
ownership of a plot of land which had been in their possession for
more than 15 years. It appears that they were summoned by the court
to identify the successors of the original owners and to indicate
their addresses. The participation of these persons in the
proceedings was necessary to preclude them from invoking their rights
after the matter had been decided upon.
- As the applicant’s parents had failed to
establish the addresses of all the persons potentially concerned, the
proceedings were stayed on 31 July 1976. The number of persons
potentially affected by the outcome of the proceedings amounted at
that time to thirty-eight, some of whom resided abroad.
- On unspecified dates in 1977 the applicant’s
parents died and the applicant and her sister inherited their estate.
- Between 1975 and 1990, some of the original owners of
the property or their successors died and the number of persons
potentially affected by the outcome of the proceedings (as further
successors of the original owners) increased.
- On 15 October 1990 the applicant, being unable to
identify all the successors of the original owners or to indicate
their addresses, requested the Ostrów Wielkopolski District
Court to publish a press notice summoning persons potentially
interested in the outcome of the case and to resume the proceedings.
- On 17 September 1993 the court decided to appoint a
court officer (curator absenti) to represent persons
potentially affected by the proceedings but whose addresses were
unknown. The court also ordered the publication of a press notice to
summon other persons potentially concerned.
- At a hearing held on 29 April 1994 the court found
that some of the other persons already involved in the proceedings
had died. The court again instructed the applicant to indicate the
addresses of their successors. The applicant failed to do so and by a
decision of 13 January 1997 the court refused to resume the
proceedings.
- On 22 February 1999 the applicant again requested the
court to resume the proceedings on the merits. Apparently, by that
stage fifty-three persons were potentially interested in the outcome
of the proceedings.
- On 25 March 1999 the Ostrów District Court
refused to resume the proceedings in view of the applicant’s
failure to submit the addresses of all persons potentially affected.
The court also decided to discontinue the proceedings, finding that
more than three years had elapsed since the date of the last
procedural step in the case.
- On 2 April 1999 the applicant appealed against this
decision and on 27 October 1999 the Kalisz Regional Court partly
allowed her appeal. In particular, the court found that there were no
grounds to discontinue the proceedings as some procedural steps had
been taken during the preceding three years even though technically
the proceedings had been stayed. Nevertheless, the court decided that
the proceedings should remain stayed in view of the applicant’s
failure to comply with the court order.
- On 3 March 1999 the Ostrów District Court again
summoned the applicant to indicate the current address of one of the
potential litigants and the legal successors of another.
It appears that the applicant did not file with the court the
addresses requested and on 2 February 2000 the trial court rendered a
decision discontinuing the proceedings. The applicant appealed. On an
unspecified date her appeal was allowed.
- On 18 January 2002 the applicant was again summoned to
submit the names and addresses of potential litigants, including one
allegedly living in Ukraine, on pain of a stay of the proceedings. On
19 February 2002 the court stayed the proceedings, having regard to
the applicant’s failure to indicate the legal successors of
five litigants and to give the current addresses of a further seven
litigants.
- On 21 February 2005 the court discontinued the
proceedings, having regard to the fact that the applicant had failed
to request, within three years, that the stayed proceedings be
resumed.
- On 21 March 2005 the applicant appealed and objected
to the obligation to identify and find the legal successors of former
owners and to indicate their addresses. She submitted that the case
would have been terminated long ago had the appointment of the
curator absenti and the publication of press notice been
properly used by the court. She requested the court to publish a
press notice or appoint a curator again.
- On 31 May 2005 the court summoned her to pay PLN 160
by way or a court fee for the appeal, to identify the legal
successors of another six parties who had died and to submit fifty
copies of her appeal. The applicant refused to pay the fee, arguing
that she had paid this amount several times, but that this had not
led to any progress in the resolution of the merits of the case. She
also refused to identify the legal successors or addresses of sixteen
persons referred to in the decision of 21 February and the summons of
31 May 2005 and reiterated that she had already repeatedly
informed the court that she was unable to do so. She referred to her
request to publish a press notice to summon potential parties to join
the proceedings by way of a press notice.
- On 15 June 2005 the court refused to entertain her
appeal on the ground that she had refused to pay the court fee and
refused to submit fifty copies of the appeal.
- The applicant appealed against this decision,
submitting that in the absence of the addresses of all potential
litigants the requirement to submit fifty copies of her appeal was
unreasonable because in any event these copies could not be served on
them.
- On 28 July 2005 the court summoned her to rectify her
appeal by paying PLN 160, by submitting twenty six copies of the
appeal, by indicating the legal successors of six deceased litigants
and by giving the addresses of two further litigants.
- In her pleadings of 12 August 2005 the applicant
again submitted that publication of a press notice and the
appointment of curator absenti provided for in Article 609 of
the Code of Civil Procedure were specifically designated to address
situations such as this which had arisen in her case.
- On 12 August 2005 the court rejected her appeal
against the decision of 15 June 2005, having regard to her failure to
comply with the summons of 28 July 2005.
- The applicant appealed against this decision, again
submitting that she was unable to identify the names and addresses of
the persons concerned.
- On 21 September 2005 the court rejected her appeal on
the ground that she had failed to pay a court fee in the amount of
PLN 160 and to submit twenty six copies of her appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Under Polish law, a request for a declaration that
property had been acquired by prescription is examined in the
so-called “non-litigious procedure”. However, the
claimant is obliged to identify persons who are potentially affected
by these proceedings, notably the original owners or their
successors. Should these persons express their interest in the
proceedings, they may be granted the status of a “party”.
- If a claimant is objectively unable to identify
persons who could be affected by the outcome of the proceedings, the
court orders the publication of a press notice, summoning such
persons to join the proceedings. If the identity of the persons is
known but their current addresses cannot be established, the court
shall appoint a court officer (curator absenti) to represent
such persons.
- Article 510 of the Code of Civil Procedure (Chapter
on: Non-litigious proceedings: general provisions) provides as
follows:
§ 1. Any person, whose rights and obligations are
affected by the outcome of the proceedings, is an interested person;
he or she may participate in the proceedings at any stage. If the
person decides to participate, he or she becomes a party to the
proceedings. An appeal is available against a refusal to be admitted
as a party to the proceedings.
§ 2. If it turns out that a person concerned is not
a party to the proceedings, the court will summon him or her to
participate in them. Following the summons, a person becomes a party
to the proceedings. If a need arises to appoint a court officer
(curator absentis) to represent a party whose address is unknown,
such appointment is made ex officio.
- Article 524 § 2 of the Code of Civil Procedure
(Non-litigious proceedings: general provisions) provides as follows:
An interested person who has not participated in the
proceedings terminated by a final decision on the merits, may request
that these proceedings be reopened. Provisions on the reopening on
the grounds of being deprived of the possibility to act shall apply.
- Article 609 § 2 of the Code of Civil Procedure
(Acquiring property by prescription) provides as follows:
If a person who files a motion (for a declaration that
property has been acquired by prescription) fails to indicate other
interested persons, the decision (on the merits) may only be rendered
after such persons are summoned by a press notice. A press notice may
also be published in other circumstances where the court finds this
necessary.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that the refusals of the
domestic courts to resume the proceedings on the ground that she had
failed to indicate the addresses of all interested persons amounted
to a denial of an effective access to court. She invoked Article 6 §
1 of the Convention which, insofar as relevant, reads:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law. ...
A. The Government’s preliminary objection
- The Government first argued that the applicant had
failed to exhaust relevant domestic remedies. They submitted that the
applicant who had been obliged by the domestic law to give the court
the names and addresses of persons who could be potentially affected
by the outcome of the case, should have had recourse to the
provisions of the Act on Registration and Identity Cards. Under this
Act, a request could be submitted to the relevant municipal
authorities for the disclosure of the addresses of persons whose
addresses were unknown to her.
- The applicant disagreed. She argued that she could not
have had recourse to the procedure referred to by the Government
precisely because she did not know their place of residence. Not
knowing in which municipality they resided, she could not have
requested the assistance of the municipal authorities in establishing
their addresses. She further stressed that since she did not even
know the identities of many of the persons who could be interested in
the outcome of the case, the procedure suggested by the Government
would have provided little assistance to her.
- The Court notes that there is a close link
between the applicant’s difficulties in establishing the
identities and addresses of persons potentially affected by the
outcome of the civil case and the merits of her complaint under
Article 6 of the Convention. For this reason, in its decision on the
admissibility of the application it joined to the merits of the case
the examination of the question of exhaustion of domestic remedies
(see paragraph 7 above). The Court confirms its approach to the
non-exhaustion issue.
B. The merits of the case
1. The parties’ submissions
- The Government submitted that under the Convention the
right to a court enshrined in Article 6 was not absolute. It could be
subject to limitations, but only insofar as they did not restrict or
reduce the access left to the individual in such a way or to such an
extent that the very essence of this right was impaired.
- They emphasised that the obligation to identify
potential litigants and their legal successors could not be regarded
as an impermissible restriction on access to a court.
- They further submitted that in proceedings in which a
claim for acquisition of property by prescription was made the
claimant was obliged under domestic law to identify persons
potentially affected by the outcome of such proceedings. If the
claimant was objectively unable to identify such persons, the court
was empowered to order the publication of a press notice informing
such persons of the proceedings and summoning to join them. In the
present case such an order had been made by the Ostrów
Wielkopolski District Court on 17 September 1993 under Article 609 §
2 of the Code of Civil Procedure. Further, if the identity of such
persons was known, but their addresses could not be established, the
court could appoint a curator absenti to represent them in the
proceedings. This obligation had been discharged by the order of the
same court given on 17 September 1993.
- The Government further asserted that the applicant had
failed to take steps in order to have the identities and addresses of
potential parties to the proceedings established. In 1997 she had
failed to comply with the court’s instruction to indicate the
addresses of the legal successors of certain parties who had died
(see paragraph 15 above). In January 2002 the applicant likewise
failed to submit the names and addresses of potential litigants (see
paragraph 20 above). In this context, the Government emphasised that
no particular difficulty arose for obtaining these data as the names
of persons who had died were already to be found in the case file.
Furthermore, the applicant had not informed the court that she had
experienced difficulties in identifying successors. Through her
negligent conduct the applicant had obliged the court to act ex
officio. However, in civil cases conducted under the
non-litigious procedure the court was under no obligation to take ex
officio steps to identify potential litigants.
- The applicant agreed that the requirement to establish
the names and addresses of persons potentially affected by the
outcome of a civil case should not be regarded as a restriction of
the right of access to a court that was per se incompatible
with the requirements of Article 6 § 1 of the Convention.
However, in the particular circumstances of her case the way in which
this requirement had been applied by the courts amounted to a denial
of an effective access to court.
- The applicant first argued that in cases in which a
claim for prescription was made, the passage of time - which in any
event was an essential legal prerequisite for any reasonable
prospects of success of such a claim - made it more difficult to
establish the identities and addresses of all persons potentially
interested in the outcome of the case. The possibility to make court
orders provided for in Articles 510 and 609 § 2 of the Code of
Civil Procedure was intended to minimise such difficulties. However,
in her case these provisions had been used too late. The applicant
stresses that after the orders of 17 September 1993 had been given,
the court had not made proper use of them and no progress in the
proceedings had been made.
- As regards the appointment of the curator absenti
and the publication of the press notice, the applicant observed that
the court had taken these measures only after the proceedings had
already been pending for eighteen years. She further submitted that
the Government had failed to explain why after these orders had been
given the court had again repeatedly summoned her to provide it with
the addresses of all interested persons. This rendered these orders
meaningless with the result that the measures failed to bring about
any progress in the case.
- The applicant submitted that the courts had repeatedly
summoned her to establish the identities and addresses of persons
potentially interested in the outcome of the case, even when they
were examining her appeals against the decisions to stay the
proceedings in which she had argued that an obligation to establish
the addresses of fifty potential litigants, some of whom resided
abroad, was an unreasonable burden (see paragraphs 23 and 24 above).
The applicant argued in this connection that the formal shortcomings
on which the court relied when refusing to examine her appeal against
a decision to stay the proceedings did not constitute an obstacle to
the examination of the merits of the appeal. In particular, there had
been no need to submit to the court fifty copies of her appeal, given
that at that time the addresses of only twenty six participants to
the proceedings had been known.
2. The Court’s assessment
- The Court reiterates that Article 6 § 1 of
the Convention guarantees the right of access to court to an
applicant who has, at least on arguable grounds, claims concerning a
civil right or obligation (see, among many other authorities, Le
Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June
1981, Series A no. 43, § 44; Tre Traktörer v.
Sweden, judgment of 27 July 1989, Series A no. 159, p. 18, §
40; and Z and Others v. the United Kingdom, no. 29392/95,
[GC], ECHR 2001-V, §§ 91-92). This provision applies to
disputes of a “genuine and serious nature” concerning the
actual existence of a right as well as to the scope or manner in
which it is exercised (Benthem v. the Netherlands, judgment of
23 October 1985, Series A no. 97, p. 15, § 32).
- The right of access to court is not, however,
absolute. It may be subject to legitimate restrictions, for example,
statutory time-limits or prescription periods, security for costs
orders, regulations concerning minors and persons of unsound mind,
etc. (see Stubbings and Others v. the United Kingdom, judgment
of 22 October 1996, Reports of Judgments and Decisions
1996-IV, pp. 1502 3, §§ 51-52; Tolstoy
Miloslavsky v. the United Kingdom, judgment of 13 July 1995,
Series A no. 316-B, pp. 80-81, §§ 62 67). Where
the individual’s access is limited either by operation of law
or in fact, the Court will examine whether the limitation imposed
impaired the essence of the right and, in particular, whether it
pursued a legitimate aim and there was a reasonable relationship of
proportionality between the means employed and the aim sought
(Ashingdane v. the United Kingdom, judgment of 28 May 1985,
Series A no. 93, pp. 24-25, § 57; Związek
Nauczycielstwa Polskiego v. Poland, no. 42049/98, 21 September
2004, §§ 28- 29).
- The Court first notes the Government’s argument
that a requirement to establish the identities and addresses of
persons potentially affected by the outcome of a civil case should
not be regarded as incompatible per se with the right of
access to a court. However, it observes that its task is not to rule
on the relevant provisions of Poland’s Code of Civil Procedure
providing for this requirement in abstracto.
It must, rather, examine whether its implementation in the case at
issue gave rise to a violation of the Convention (see Nikolova v.
Bulgaria [GC], no. 31195/96, § 60, ECHR 1999 II).
- The Court observes that the difficulty in establishing
the names and addresses of persons potentially affected by the
outcome of a case is a matter which is not unique to cases concerning
claims for acquisition of property by prescription.
- In the present case the court decided in 1993, when
the proceedings had already been pending for eighteen years, that it
was necessary to take certain procedural steps aimed at remedying the
difficulties encountered by the applicant in identifying other
interested parties. Accordingly, it appointed a curator absenti.
It also ordered that information about the proceedings be
published in the press and that persons interested in the outcome of
the case be summoned to participate in the proceedings. These
measures, provided for by the Code of Civil Procedure, were also
meant to ensure a fair opportunity for interested persons to join the
proceedings and to have their interests properly represented. In the
Court’s view, it may reasonably be considered that, already at
that stage, the court considered that further progress in the
proceedings depended on the efficacy of these measures.
- However, the Court observes that there is no
indication that any progress was subsequently made. Later on, the
proceedings were stayed by the decision of 13 January 1997, the
domestic court having regard to the applicant’s failure to
comply with a renewed order to indicate the names and addresses of
the successors of persons who had died since the appointment of the
curator absenti in 1993. The applicant’s subsequent
attempts to advance the proceedings were unsuccessful, the courts
repeatedly relying on her failure to identify all of the potential
parties to the proceedings and to give their addresses. The court
finally decided to discontinue the proceedings on 21 February 2005.
The applicant’s later efforts to have this decision set aside
failed for similar reasons (see paragraphs 22-30 above).
- Having regard to the fact that as far back as 1993
the domestic court was of the view that the circumstances of the case
called for the taking of procedural measures to ensure the
participation in the proceedings of persons having a potential legal
interest in their outcome, the Court is of the opinion that, in view
of the passage of time between 1993 and 2005, a further attempt could
have been made by the court to take steps to identify those who had
an interest in the case. The Court considers that no convincing
explanation has been provided as to why this was not done.
- In this respect, the Court observes that the applicant
had repeatedly drawn the courts’ attention to the fact that she
was unable to establish the names and addresses of the legal
successors of the former owners. Despite her arguments, the courts
repeatedly ordered her to submit the names and addresses of potential
litigants (see paragraphs 19, 20, 23, 26 above), notwithstanding the
fact that it had been accepted at a much earlier stage that the
applicant required the assistance of the court in order to comply
with this obligation. When examining her successive appeals against
refusals to resume the proceedings, the courts requested her to
submit fifty copies of her procedural appeals (see paragraph 24
above). Moreover, it is also relevant to note that the applicant had
emphasised that the proceedings could have been terminated long
before had proper use been made of the appointment of a curator
absenti and the publication of press notice. Moreover, on 21
February 2005, she requested that the court publish a further press
notice (see paragraph 22 above).
- The Court notes the Government’s argument that
it was open to the applicant to have recourse to the Act on
Registration and Identity Cards and to request relevant municipal
authorities to disclose the addresses of persons whose addresses she
did not know and who were potentially interested in the outcome of
the proceedings. However, the essential difficulty which the
applicant encountered in the present case consisted in the fact that
she did not know even the names of the legal successors of the late
owners of the property. Hence, the remedy referred to the Government
was not capable of remedying her situation.
- Lastly, the Court notes that no decision on the merits
of the case has been given, despite the fact that the proceedings
have lasted thirty years. In the circumstances, it considers that the
applicant was made to shoulder an unfair burden in the course of the
proceedings to the point where she was denied an effective access to
court. Accordingly, there has been a violation of Article
6 § 1 of the Convention.
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 applicant claimed just satisfaction for moral
damage which she suffered as a result of the denial of effective
access to a court for a decision on the merits of her claim. She did
not specify her claims.
- The Government did not take a position on this issue.
- The Court considers that an award of just satisfaction
must be based in the present case on the fact that the applicant did
not have the benefit of the right of access to a court. It cannot
speculate as to what would have been the final outcome of the
proceedings. Nonetheless, it does not find it unreasonable to regard
the applicant as having suffered a loss of opportunity in that she
could not obtain a ruling on the merits of her claim. (see Tinnelly
& Sons Limited and Others, and McElduff and Others v. the
United Kingdom, judgment of 10 July 1998, Reports 1998-IV,
p. 1633, § 93). Deciding on an equitable basis, it awards
the applicant EUR 8,000.
B. Costs and expenses
- The applicant, who was granted legal aid for the
purpose of the proceedings before the Court, did not claim
reimbursement of costs and expenses over and above the EUR 850 paid
in legal aid.
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
- Dismisses the Government’s preliminary
objection;
- Holds that there has been a violation of
Article 6 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 8,000 (eight thousand euros) in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement, together with any tax that may be applicable;
(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.
Done in English, and notified in writing on 24 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas
Bratza
Registrar President
