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FOURTH
SECTION
CASE OF MAJCHER v. POLAND
(Application
no. 12193/02)
JUDGMENT
STRASBOURG
8 April
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 Majcher 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,
Päivi
Hirvelä,
Ledi Bianku, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 18 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(nos. 12193/02) 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, Mr Józef Majcher (“the
applicant”), on 15 October 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
30 November 2006 the
President of the Fourth Section decided to give notice of the
application to the Government. Applying Article 29 § 3 of the
Convention, it was decided to rule on the admissibility and merits of
the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Rzeszów.
A. Judicial proceedings
1. Facts before 1 May 1993
- In 1987 the applicant's wife filed a petition for
divorce. The divorce was granted shortly afterwards.
- On 24 November 1987 the applicant lodged a claim for
the division of matrimonial property with the Łańcut
District Court (Sąd Rejonowy).
- On
31 December 1988 the Łańcut District Court gave a decision
and divided the property.
- On
an unspecified date the applicant appealed.
- On
7 November 1989 the Rzeszów Regional Court (Sąd
Okręgowy) remitted the case.
2. Facts after 1 May 1993
- On
10 March 1998 the Łańcut District Court again gave a
decision.
- On
unspecified dates both parties appealed.
- On
11 September 1998 the Rzeszów Regional Court dismissed both
appeals.
- On
23 October 1998 the applicant lodged a cassation appeal with the
Supreme Court (Sąd Najwyższy).
- On
14 May 2001 the Supreme Court refused to hear the applicant's
cassation appeal.
- The
applicant submitted that as a consequence of the prolonged
proceedings in his case he had been deprived of his property and had
to live in a Welfare Home (Dom Pomocy Społecznej).
B. Enforcement proceedings
- On
an unspecified date the applicant instituted enforcement proceedings
against his wife who apparently had failed to comply with the final
decision on the division of their property.
- On
6 May 1999 the Łańcut Bailiff informed the applicant that
the enforcement had proved ineffective.
- On 10 May 1999 the applicant lodged a complaint with
the Łańcut District Court against the actions taken by the
bailiff (skarga na czynności komornika). He
submitted that those actions had been incorrect, because the money
obtained from the debtor had been distributed wrongly. He also
complained about the ineffectiveness of the enforcement.
- On
21 July 1999 the Łańcut District Court dismissed his
complaint. It held that the order of distribution had been in
accordance with the Code of Civil Procedure. As regards the
ineffectiveness of the enforcement, the court held that no valuable
objects had been found in the debtor's house which could be sold and
used to satisfy the debt.
- On
an unspecified date the applicant appealed.
- On
21 July 1999 the Rzeszów Regional Court dismissed his appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
legal provisions applicable before the entry into force of the 2004
Act 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
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of 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; 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant first complained that the proceedings in his case were
unfair. He alleged a breach of Article 6 § 1 of the Convention,
which, in its relevant part, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- However,
the Court reiterates that, according to Article 19 of the Convention,
its duty is to ensure the observance of the engagements undertaken by
the Contracting Parties to the Convention. In particular, it is not
its function to deal with errors of fact or law allegedly committed
by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention.
- In
the present case the applicant did not allege any particular failure
to respect his right to a fair hearing on the part of the relevant
courts. Indeed, his complaints are limited to a challenge to the
result of the proceedings. Assessing the circumstances of the case as
a whole, the Court finds no indication that the impugned proceedings
were conducted unfairly.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE 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 24 November 1987.
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 14 May 2001. It thus lasted eight years
and fifteen days at three court instances.
A. Admissibility
- The
Government raised a preliminary objection that the applicant had not
exhausted domestic remedies available to him under Polish law, as
required by Article 35 § 1 of the Convention. They maintained
that from 17 September 2004, the date of entry into force of the
2004 Act, the applicant had a possibility of seeking compensation for
the damage resulting from the excessive length of proceedings before
Polish courts, under section 16 of the 2004 Act read in conjunction
with Article 417 of the Civil Code.
The
Government further submitted that such a possibility had existed in
Polish law even in relation to those proceedings which had terminated
earlier than three years before the entry into force of the 2004 Act.
- However, the Court has already held that the civil
action relied on by the Government cannot be regarded as an effective
remedy with a sufficient degree of certainty in cases where the
three-year limitation period for the State's liability in tort
expired before the entry into force of the 2004 Act on 17 September
2004 (see Ratajczyk v. Poland, cited above, and
Barszcz v. Poland, no. 71152/01, § 45,
30 May 2006). The present case belongs to this group of
applications as the proceedings at issue ended on 14 May 2001,
which is more than three years before the 2004 Act had come into
force. The Court further considers, having examined the material
submitted to it, that no evidence of judicial practice of the Supreme
Court or at least of the appellate courts has been provided to show
that the claim for compensation for unreasonable length of the
proceedings could be successful when the proceedings complained of
have come to an end more than three years prior to 17 September
2004 (see Chyb v. Poland, no. 20838/02, § 32,
22 August 2006).
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 applicant 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. In
particular, the Court notes that the overall, unacceptable length of
the proceedings resulted from the conduct of the District Court and
the Supreme Court, which had been examining the applicant's claim and
cassation appeal for almost five years (taking into consideration the
period which falls under the Court's jurisdiction ratione
temporis) and thirty-one months respectively. The Court agrees
that some delays in the procedure before the Supreme Court could be
explained by the fact that, during the material time the Supreme
Court had to deal with an increased workload and that subsequently
the authorities had taken remedial actions (see Kepa 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 thirty-one months, which constitutes an
unreasonable delay.
- The
Court is of the view that what was at stake for the applicant in the
domestic litigation was of some importance for him (see § 15
above).
- The
Court considers that, in the particular circumstances of the instant
case, a period of eight years and fifteen days exceeds a reasonable
time.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant, relying on Articles 8, 10, 13 and 14 of
the Convention as well as Article 1 of Protocol No. 1 to the
Convention, complained, in essence, that as a result of the
proceedings in his case he became a homeless person, that his appeal
and cassation appeal had been dismissed, that he had been
discriminated against and that he had been deprived of his property
due to the actions of the domestic courts. He also appeared to
complain about the ineffectiveness of the enforcement proceedings
against his former wife.
- The
Court, having examined this complaint, and regardless of other
possible grounds of inadmissibility, finds nothing in the case file
which might disclose any appearance of a violation of this Convention
provision.
- It
follows that this part of the application 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
applicants claimed 101,700 euros (EUR) in respect of pecuniary damage
and EUR 16,000 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.
The Court considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards him EUR
3,000 under that head.
B. Costs and expenses
- The
applicant did not make any 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 3,000 (three 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 the
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 8 April 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
