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 WILKOWICZ v. POLAND
(Application
no. 74168/01)
JUDGMENT
STRASBOURG
4 November 2008
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 Wilkowicz v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 14 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 74168/01) 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, Mr
Benedykt Wilkowicz (“the applicant”), on 17 May 2001.
- The
applicant, who had been granted legal aid, was represented by Mr
P. Sołhaj, a lawyer practising in Kraków. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- The
applicant alleged, relying on Article 6 of the Convention and
Article 1 of Protocol No. 1 to the Convention, that his right to
a fair hearing and his right to the peaceful enjoyment of his
possessions had been breached because of delays in the enforcement of
a judgment given by a civil court and of a final administrative
decision granting him certain social insurance rights.
- On
6 January 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- By
a decision of 25 August 1995 the Social Insurance Authority in
Kraków awarded a pension to the applicant. It was to be paid
to him for a period beginning on 1 May 1993.
- Under
the applicable provisions of domestic law, the Military Pensions
Office was competent to make payments to the applicant, but it failed
to do so. In a letter to the Office dated 16 October 1995, the
Director of the Social Insurance Authority confirmed the applicant's
entitlement to a military pension.
- As
the Military Pensions Office still refused to make payments,
apparently considering that the 1995 decision was not in conformity
with the law, the applicant lodged an action with the Kraków
Regional Court on 8 November 1995, complaining about the
Office's failure to pay. In its pleadings, the Office argued that the
decision had been given in breach of substantive provisions of the
applicable social insurance laws. It further indicated that it had
informed the Social Insurance Authority about its doubts as to the
lawfulness of the decision. Subsequently, the Authority had summoned
the applicant to undergo an additional medical examination. As the
applicant had failed to comply with the summons, payment of a part of
his pension had been stayed with effect from 1 May 1996.
- By
a judgment of 4 March 1999 the court allowed the applicant's
action. It ordered the Military Pensions Office to pay the amount of
pension due for the period from 1 May 1993 to 1 May 1996.
It noted the decision staying payment of the applicant's pension.
However, it stressed that the decision given on 25 August 1995
had not been appealed against and, as a result, had become final. The
Office was therefore bound by it. There were no grounds for not
paying the applicant the amounts due for the years 1993 1996.
The court was not competent to re examine the lawfulness of the
1995 decision in the proceedings before it.
- The
Military Pensions Office appealed. It reiterated that, in its view,
the 1995 decision had not been in compliance with the substantive
law.
- On
28 November 2000 the Kraków Court of Appeal upheld the
judgment, finding that the first-instance court had correctly found
that it had not been empowered to re-examine the lawfulness of the
1995 decision. It further reiterated that this decision had to be
complied with by the Office.
- On
29 November 2000 the applicant reiterated his request to have
the amounts due paid to him, but to no avail. Subsequently, the
Military Pensions Office lodged a cassation appeal against this
judgment with the Supreme Court.
- On
1 and 22 March 2001 the applicant complained to the Ministry of
Defence and to the Prime Minister about the Office's failure to pay
him the pension.
- By
a decision of 16 May 2002 the Supreme Court dismissed the appeal
lodged by the Office, finding that it had failed to comply with the
relevant procedural requirements.
- In
December 2002 the Military Pensions Office paid the applicant the
amounts in arrears together with statutory interest.
II. RELEVANT DOMESTIC LAW
- Under
Article 388 § 1 of the Code of Civil Procedure, as
applicable at the material time, judgments of the second-instance
courts were immediately enforceable.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
-
The applicant complained under Article 6 § 1 of the
Convention that he had been unable for a long time to obtain payment
of sums owed to him by a State body under a final and binding
decision given in 1995. He further complained under Article 1 of
Protocol No. 1 to the Convention about the delay in the
enforcement of the judgment given in 1999.
- In
so far as relevant, these Articles read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The Government argued that the application was
inadmissible. The applicant could not claim to be a victim of a
breach of the Convention since the courts had ultimately acknowledged
that the Military Pensions Office had erred in not complying with the
final and valid decision given on 25 August 1995 by the Social
Insurance Authority. Furthermore, the applicant had in the end been
paid the amounts in arrears, together with statutory interest. They
further argued that the applicant had failed to exhaust the relevant
domestic remedies. He should have lodged a separate civil action in
tort, claiming damages against the State Treasury under Article 417
of the Civil Code for the losses which he had incurred. He could also
have instituted enforcement proceedings governed by the
Administrative Enforcement Act.
- The applicant disagreed. He submitted that he retained
his victim status. He had obtained a final decision determining his
pension in 1995, but the Military Pensions Office had refused to pay.
His efforts to obtain payment had been unsuccessful and his
complaints had not produced any result. He had had no choice but to
bring a civil action for payment, to make the Office act in
conformity with the law. He had been successful and his claim had
been vindicated by the judgment of the appellate court. In these
circumstances, and having regard in particular to the fact that his
civil action had been successful, he should not be required to embark
on yet another set of civil proceedings.
- As
to the applicant's status as a victim, the Court reiterates that for
an applicant to be deprived of this status, the State must
acknowledge a breach of his rights and afford adequate redress (see
Amuur v. France, 25 June 1995,
§ 36, Reports of Judgments
and Decisions 1996-III). In the
present case, the Court acknowledges that the domestic court, by the
judgment of 4 March 1999 ordering the Military Pensions Office
to pay to the applicant the amount of pension for the period from
1 May 1993 to 1 May 1995 compensated the applicant's losses
resulting from inflation. However, it did not award compensation for
non pecuniary loss, in respect of the non enforcement. It
did not therefore provide adequate redress (Kukalo
v. Russia (no. 2), no. 11319/04,
§ 26, 24 July 2008).
- As
regards the alleged non exhaustion of domestic remedies, the
Court reiterates, at the outset, that where a final decision
conferring a right on an individual is against the State, a person
should not be expected to bring separate enforcement proceedings
(see, mutatis mutandis,
Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004). In any event,
and to reply more fully to their objection, in so far as the
Government were of the view that he should also have instituted two
other sets of proceedings, civil and administrative, the Court
reiterates that an individual is not required to try more than one
avenue of redress when there are several parallel remedies available
in various branches of law. It is for the applicant to select the
legal remedy that is most appropriate in the circumstances of the
case (see, among other authorities, Airey v. Ireland,
judgment of 9 October 1979, Series A no. 32, p. 12,
§ 23, and Boicenco v. Moldova, no. 41088/05,
§ 80, 11 July 2006). In the present case, the
applicant sought to have his rights originating in the final decision
given in 1995 vindicated by way of civil proceedings and his efforts
were successful.
- The
Court concludes that, having availed himself of the remedy provided
by civil law, the applicant was not required to embark
on another attempt
to obtain redress by bringing another civil action and also
instituting administrative enforcement proceedings. Accordingly, for
the purposes of Article 35 § 1 of the Convention, the
applicant has exhausted domestic remedies. The Government's plea of
inadmissibility on the ground of non exhaustion of domestic
remedies must therefore 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
applicant submitted that the Military Pensions Office was not
entitled in law to challenge the validity of the decision given by
the Social Insurance Authority. The Office had been aware that the
pension was the applicant's only income and that his health had
suffered while he was serving in the army. Hence, its conduct had
been spiteful and unjustified. Overall, it had interfered with the
payment of the applicant's pension from 1995 until December 2002,
that is, for a period of seven years. This failure to comply with the
final decision amounted to a breach of the applicable social
insurance laws.
- The
Government submitted that the State had not failed to comply with its
obligation to secure to the applicant the effective enjoyment of his
rights guaranteed by Article 1 of Protocol No. 1 to the
Convention. There had been no interference with the applicant's
rights. Despite the fact that the benefits due to him had remained
unpaid for a certain period, his rights were safeguarded by civil law
and he could have obtained redress at the domestic level.
- As
regards the applicant's complaint under Article 6 of the
Convention, the Court reiterates that the right to a court would be
illusory if a Contracting State's domestic legal system allowed a
final, binding judicial decision to remain inoperative to the
detriment of one party. It would be inconceivable that Article 6
§ 1 should describe in detail procedural guarantees
afforded to litigants – proceedings that are fair, public and
expeditious – without protecting the implementation of judicial
decisions; to construe Article 6 as being concerned exclusively
with access to a court and the conduct of proceedings would be likely
to lead to situations incompatible with the principle of the rule of
law which the Contracting States undertook to respect when they
ratified the Convention. Execution of a judgment given by any court
must therefore be regarded as an integral part of the “trial”
for the purposes of Article 6 (see Immobiliare Saffi
v. Italy [GC], no. 22774/93, § 63, ECHR
1999-V).
- In terms of Article 1 of Protocol No. 1, a
“claim” can constitute a “possession” if it
is sufficiently established to be enforceable (see Burdov
v. Russia, no. 59498/00, § 40, ECHR
2002-III). By virtue of Article 1 of the Convention, each
Contracting Party “shall secure to everyone within [its]
jurisdiction the rights and freedoms defined in ... [the]
Convention”. The obligation to secure the effective exercise of
the rights defined in that instrument may result in positive
obligations for the State. As regards the right guaranteed by
Article 1 of Protocol No. 1, those positive obligations may
entail certain measures necessary to protect the right to property,
even in cases involving litigation between private individuals or
companies. This means, in particular, that States are under an
obligation to ensure compliance with the procedures enshrined in the
legislation for the enforcement of final decisions, whether judicial
or administrative, conferring rights on individuals (see Fuklev
v. Ukraine, no. 71186/01, §§ 89 91,
7 June 2005, with further references). This principle applies
with all the more force when it is the State itself which is obliged
to comply with such decisions.
- As
regards Article 1 of Protocol No. 1 to the Convention, in
the present case the applicant became entitled to a disability
pension from 1 May 1993 onwards, by virtue of a final decision
given in 1995. This decision provided the applicant with enforceable
claims and not simply a general right to receive support from the
State. It had become final as no ordinary appeal lay against it. His
entitlement to a pension, originating in this decision, was later
stayed from 1 May 1996 onwards, but the decision remained valid
in respect of the period from 1 May 1993 until 30 April
1996. The domestic courts reiterated, in their judgments of 1999 and
2000, that throughout this period this decision remained binding and
enforceable. However, the Military Pensions Office eventually paid
the pension in arrears to the applicant only in December 2002, that
is to say, after seven years.
- As
regards Article 6 of the Convention, the Court further notes that on
28 November 2000 the Kraków Court of Appeal upheld the
judgment in the applicant's favour given by the first-instance court
on 4 March 1999. Under the applicable provisions of the Polish law on
civil procedure, the second-instance judgment was immediately
enforceable (Ungureanu v. Moldova, no. 27568/02,
§ 26, 6 September 2007). However, in the present case
the Military Pensions Office paid the applicant the amounts in
arrears only in December 2002, that is, after two years.
- The
Court finds that the above periods were incompatible with the
requirements of the Convention.
- There
has, accordingly, been a violation of Article 6 § 1 of
the Convention and Article 1 of Protocol No. 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.”
B. Damages, costs and expenses
- The
applicant claimed 111,753.83 Polish zlotys (PLN) in respect of
pecuniary damage and PLN 50,000 in respect of non-pecuniary
damage. The applicant argued that the former amount corresponded to
the part of his pension which had not been paid to him after the
Social Insurance Authority had stayed payments in 1966 on account of
his failure to undergo an additional medical examination (see
paragraph 7 above).
He
further claimed PLN 3,000 for the costs and expenses incurred
before the Court.
- The
Government considered that the claims for damages were excessive and
as such should be rejected. They further argued that the applicant
had not submitted any evidence to the effect that the costs which he
claimed had actually been borne by him.
- 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 applicant 5,460 euros (EUR) in respect
of non pecuniary damage.
- The
Court notes that the applicant, who was granted legal aid for the
purpose of the proceedings before the Court, has not submitted any
proof that he incurred any expense over and above the amount of
EUR 850 which he received in legal aid. There is therefore no
call to make any award under this head.
B. 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 that there has been a violation of Article
1 of Protocol No. 1 to 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 5,460
(five thousand four hundred and sixty 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 on that amount;
(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 4 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
