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FOURTH
SECTION
CASE OF WILUSZ v. POLAND
(Application
no. 1363/02)
JUDGMENT
STRASBOURG
3 July
2007
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 Wilusz 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 16 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 1363/02) 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”)
on 10 December 2001 by Ms Halina Wilusz and Mr Marian Wilusz (“the
applicants”).
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
25 August 2004 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- In
1972 the State Treasury transferred to the applicants a property
situated in Krosno. There was no adequate access by road to the
property at that time, but the State authorities declared that an
access road would soon be constructed. However, the authorities did
not undertake any action to ensure proper access to the applicants'
property. In particular, a right of way through neighbouring
properties was never created.
- In
1983 the applicants brought a civil action to have a right of way
established by way of a judicial decision. On 31 December 1986
the Krosno District Court allowed their request. Their neighbours
appealed.
- On
27 October 1987 the Krosno Regional Court quashed the judgment
of the first instance court and remitted the case for
re examination, finding that the first-instance court had failed
to assess the evidence properly.
- By
a judgment of 23 October 1990 the Krosno District Court again granted
a right of way to the applicants. The neighbours brought a new
appeal. On 20 June 1991 the Krosno Regional Court quashed the
contested judgment and again remitted the case for re-examination.
- On
3 November 1997 the Krosno District Court allowed the
applicants' claim. The Krosno Regional Court dismissed the
neighbours' appeal on 6 October 1998. The neighbours brought a
cassation appeal before the Supreme Court.
- The
Supreme Court refused to entertain their appeal on 22 June 2001.
This decision was served on the applicants on 13 September 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of 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”), are stated in the Court's decisions in
the cases of Charzyński v. Poland no. 15212/03
(dec.), §§ 12 23, ECHR 2005 V and Ratajczyk
v. Poland no. 11215/02 (dec.), ECHR 2005 VIII and
the judgment in the case of Krasuski v. Poland,
no. 61444/00, §§ 34 46, ECHR 2005 V.
- In particular, section 18 of the 2004 Act lays down
the following transitional rules in relation to applications already
pending before the Court:
“1. Within six months after the date of
entry into force of this law persons who, before that date, had
lodged a complaint with the European Court of Human Rights ...
complaining of a breach of the right to a trial within a reasonable
time guaranteed by Article 6 (1) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ..., may lodge a complaint
about the unreasonable length of the proceedings on the basis of the
provisions of this law if their complaint to the Court had been
lodged in the course of the impugned proceedings and if the Court has
not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1
shall indicate the date on which the application was lodged with the
Court.
3. The relevant court shall immediately
inform the Minister of Foreign Affairs of any complaints lodged under
subsection 1.”
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.
- Although
the applicants had filed their claim in 1983, 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 to be assessed ended on 13 September 2001, when the
applicants were served with the final decision of the Supreme Court.
It thus lasted eight years and four months for three levels of
jurisdiction.
A. Admissibility
- The Government raised a preliminary objection that the
applicants had not exhausted domestic remedies available to them
under Polish law, as required by Article 35 § 1 of the
Convention. They maintained that under section 18 of the 2004 Act,
within six months after the entry into force of the Act, that is,
from 17 September 2004, anyone who had lodged an application with the
European Court of Human Rights in due time complaining of a violation
of the “reasonable-time” requirement contained in Article
6 § 1 of the Convention was entitled to lodge a length of
proceedings complaint provided for by the Act, if the application to
the Court had been lodged when the proceedings were still pending and
if it had not yet been declared admissible by the European Court.
- The
applicants did not address this point.
- The Court considers that the applicants did not have
at their disposal any effective remedy for the excessive length of
the proceedings (Ratajczyk v. Poland (dec.),
no. 11215/02). This was because the 2004 Act was not applicable
to these proceedings as they had ended on 13 September 2001,
before the 2004 Act came into force. The application was lodged with
the Court after the proceedings had ended. As a result, the Court
finds that section 18 of the 2004 Act was not applicable to the
applicants' situation.
It
follows that the Government's plea of inadmissibility on the ground
of non exhaustion of domestic remedies must be dismissed.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It also
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 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 285,000 zlotys (PLN) in respect of pecuniary and
non-pecuniary damage.
-
The Government contested the claim.
- 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 awards the applicants 2,400 euros (EUR) in respect
of non pecuniary damage.
B. Costs and expenses
- The
applicants also claimed 19,423 zlotys (PLN) for the costs and
expenses incurred before the domestic courts.
-
The Government contested the claim.
- 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, the Court considers it reasonable
to award the applicants the sum of EUR 100 for the costs and expenses
incurred in the Convention proceedings.
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 the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted into Polish zlotys at the rate
applicable at the date of settlement, plus any tax that may be
chargeable:
(i) EUR
2,400 (two thousand four hundred euros) in respect of non-pecuniary
damage;
(ii)
EUR 100 (one hundred euros) in respect of costs and expenses;
(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 3 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
