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FOURTH
SECTION
CASE OF ŁUKJANIUK v. POLAND
(Application
no. 15072/02)
JUDGMENT
STRASBOURG
7
November 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 Łukjaniuk v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr M.
Pellonpää,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 17 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 15072/02) 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, Mrs Jolanta
Łukjaniuk (“the applicant”), on 2 May 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- On
16 February 2006 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 1960 and lives in Gołdap, Poland.
- In
September 1994 the applicant entered into a contract with the
Białystok Poultry Company. Under the terms of the contract, the
applicant bought 11,733 chicks from the company which she was to
raise for a period of two months. Subsequently, the applicant was to
deliver the chickens to the company against a payment of an agreed
price. In November and December 1994 the applicant purchased
foodstuff from a company in Kętrzyn to feed the birds.
Subsequently, about 60% of the chicks died.
- On
1 March 1995 the applicant filed a compensation claim with the
Suwałki Regional Court against the company producing the
foodstuff. She asserted that her chicks had died as a result of being
fed the foodstuff purchased from the company. The defendant company
contested its liability for the damage sustained by the applicant. On
an unspecified date the applicant increased her claim.
- The
first hearing was fixed for 2 June 1995, but the Regional Court
adjourned it due to the applicant’s absence. However, it
appears that the applicant’s lawyer was present at that
hearing. The next hearing was held on 30 June 1995. On 7 September
1995 the Regional Court visited the site. Subsequent hearings were
held on 21 December 1995, 8 February and 12 December 1996,
5 May and 23 June 1997, 9 February and 23 March 1998. On
5 January 1998 one of the experts was heard by the Warsaw
District Court at the Suwałki Regional Court’s request.
- The
Regional Court ordered the preparation of three veterinary reports.
On 8 February 1996 it ordered that a second report be drawn up.
However, that report was only submitted to the court on 12 November
1996. The preparation of a third report was ordered on 12 December
1996 at the applicant’s request as she had contested the expert
findings in the previous reports. The third report was submitted to
the court on 23 March 1997.
- On
31 March 1998 the Regional Court delivered its judgment. It awarded
the applicant PLN 5,616, which represented 15% of the compensation
sought, together with statutory interest. It ordered the applicant to
pay PLN 4,320.82 for the outstanding court fee. It also held that the
applicant was not required to reimburse the litigation costs of the
defendant company.
- On
21 April 1998 the applicant filed an appeal against the Regional
Court’s judgment. The defendant company also filed an appeal.
- On
16 July 1998 the Białystok Court of Appeal held a hearing. On
30 July 1998 the Court of Appeal upheld the first-instance
judgment for the most part. It amended it only in respect of the
litigation costs of the defendant company. It ordered the applicant
to cover a part of those costs (PLN 1,200), having regard to her
difficult financial situation.
- On
10 September 1998 the applicant filed a cassation appeal with the
Supreme Court against the judgment of the Court of Appeal. On
14 March 2000, in reply to her query, the applicant was
informed by the Supreme Court that due to the large number of
cassation appeals pending before that court a hearing would be held
approximately two years from the date of lodging the cassation
appeal.
- On
2 February 2001 the Supreme Court held a hearing. It dismissed the
applicant’s cassation appeal on the same day.
- On
11 June 2001 the Suwałki Regional Court issued an execution
warrant on behalf of the applicant. On 27 September 2001 the Bailiff
of the Kętrzyn District Court stayed the enforcement proceedings
at the applicant’s request. On 2 October 2001 and 8 January
2002 the applicant requested the Suwałki Regional Court to amend
the execution warrant due to the change of the defendant company’s
name. That warrant was issued on 9 April 2002. On 14 May 2002 the
Regional Court’s judgment of 31 March 1998 was
successfully enforced.
- On
27 September 2001, at the applicant’s request, the President of
the Suwałki Regional Court suspended until 31 May 2002 the
obligation to pay the court fees. On 3 June 2002 the applicant paid
PLN 2,000 as part of the outstanding court fees. On 27 June 2002 the
President of the Regional Court agreed that the applicant could pay
the remaining court fees in 24 monthly instalments.
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 substantive 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 on 1 March 1995 and ended
on 2 February 2001. It thus lasted 5 years, 11 months and 5 days 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 had
entered into force on 18 December 2001.
- The
applicant contested the Government’s arguments.
- The
Court observes that the proceedings at issue ended on 2 February
2001, which is more than three years before the relevant provisions
of the 2004 Act read together with the Civil Code had become
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).
- The
Court observes that the case was somewhat complex. However, it
considers that this in itself cannot justify the overall length of
the proceedings.
- As
regards the conduct of the applicant, the Court, having regard to the
available evidence, does not find it established that the applicant
contributed in any significant manner to the delays in the
proceedings.
- As regards the conduct of the judicial authorities,
the Court notes that there were periods of inactivity in the
proceedings before the Regional Court. It observes that no hearing
was held between 8 February and 12 December 1996
due to a 9-month delay in the preparation of a veterinary report. In
this connection the Court recalls that experts work in the context of
judicial proceedings supervised by a judge, who remains responsible
for the preparation and speedy conduct of proceedings Proszak v.
Poland, judgment of 16 December 1997, Reports of Judgments and
Decisions 1997 VIII, p. ..., § 44). Similarly, no
hearings were held before the Regional Court between 23 June 1997 and
9 February 1998. Furthermore, the Court observes that there
was an approximately 29-month period of inactivity in the proceedings
before the Supreme Court between the date of lodging the applicant’s
cassation appeal and the delivery of the judgment. The Court can
accept that some delays in the procedure before the Supreme Court
could be explained by the fact that at the material time the Supreme
Court had to deal with an increased workload (see Kępa
v. Poland (dec.), no. 43978/98, 30 September
2003). Nevertheless, in the present case the applicant’s
cassation appeal lay dormant in the Supreme Court for nearly
29 months, which constitutes an unreasonable delay (see Domańska
v. Poland, no. 74073/01, § 32, 25 May 2004).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s case was not heard within a
reasonable time. There has accordingly been a breach of Article 6 §
1.
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the proceedings had been unfair, referring to the amount of
compensation awarded and the assessment of evidence by the domestic
courts. She further complained that she had been ordered to pay the
court fees and the costs of the defendant company. The applicant also
complained that she had been unable to enforce the Regional Court’s
judgment as the defendant company had changed its name and head
office.
- As
regards the complaint about unfairness of the proceedings, 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 above,
the Court considers that in the proceedings complained of, 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.
- In
respect of the complaint regarding the orders for court fees and
costs, the Court notes that the applicant was awarded only 15% of the
compensation sought from the defendant. It further observes that the
impugned orders reflected the ordinary rule that the party losing a
case is required to reimburse the litigation costs of the successful
party. The Court also notes that in respect of the order for costs
the Court of Appeal took into account the applicant’s difficult
financial situation. Accordingly, it considers that the applicant’s
grievances about the impugned orders do not disclose any appearance
of a breach of the requirements of Article 6 § 1 of the
Convention.
- As
regards the complaint about the difficulties with the enforcement of
the Regional Court’s judgment, the Court considers that the
respondent State cannot be held responsible for any such difficulties
in so far as they resulted from changes to the name of the defendant
company. In so far as the applicant could be understood as
complaining about delays in enforcing the Regional Court’s
judgment, the Court notes that the applicant obtained an execution
warrant on 11 June 2001 and the judgment was enforced on 14 May
2002. The Court observes that there was some delay in the enforcement
proceedings as a result of the need to issue an amended warrant and
that the delay in issuing one was attributable to the authorities.
However, it considers that the overall length of the enforcement
proceedings cannot be regarded as excessive.
- It
follows that all these complaints are manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. 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 21,827.10 Polish zlotys (PLN) in respect of
pecuniary damage and PLN 40,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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 certainly suffered
non-pecuniary damage, such as distress and frustration, on account of
the protracted length of the proceedings, which cannot be
sufficiently compensated by the above finding of a violation. Taking
into account the circumstances of the case and making its assessment
on an equitable basis, the Court awards the applicant EUR 1,000 under
that head.
B. Costs and expenses
- The
applicant made no claim for costs and expenses.
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 1,000 (one
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 amount 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 7 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
