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FOURTH
SECTION
CASE OF GORDON-KRAJCER v. POLAND
(Application
no. 5943/07)
JUDGMENT
STRASBOURG
7 July
2009
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 Gordon-Krajcer 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 16 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 5943/07) 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, Ms Wanda Lidia
Gordon-Krajcer (“the applicant”), on 3 January 2007.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
4 July 2008 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Warszawa.
A. Main proceedings
- On
9 June 1993 the applicant lodged with the Warszawa District Court
(Sąd Rejonowy) an application for division of matrimonial
property. She paid the relevant court fees on 9 November 1993.
- Between 9 June 1993 and 21 February 2003, the District
Court scheduled 28 hearings, 6 of which were
adjourned due to the failure of the applicant's husband to appear;
only two hearings were scheduled in 1996, no hearing was scheduled
between 8 December 1997 and 15 June 1999 and two
hearings were scheduled in 2000.
- On 5 March 2003 the Warszawa
District Court delivered a partial decision (postanowienie
częściowe) on the parties'
respective shares in the matrimonial property.
- Between 4 August 2004 and 16 April 2008,
the District Court scheduled 13 hearings, 3 of
which were adjourned. No hearing was held in 2006.
- On 23 June 2008 the Warszawa
District Court gave a decision. The applicant appealed. The
proceedings are pending before the second-instance court.
B. Proceedings under the 2004 Act
- On
1 June 2006 the applicant lodged with the Warszawa Regional Court
(Sąd Okręgowy) a complaint under section 5 of the
Law on 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”)
which entered into force on 17 September 2004.
- She
sought a ruling declaring that the length of the proceedings before
the Warszawa District Court had been excessive and an award of just
satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx.
2,500 euros (EUR)).
- On
4 August 2006 the Warszawa Regional Court gave a decision. The court
held that the 2004 Act did not have retroactive effect and,
consequently, examined the applicant's claim only in respect of the
period between the entry into force of the 2004 Act on
17 September 2004 and the date on which the complaint had
been lodged. The court found that, during that part of the
proceedings, there had been some periods of inactivity for which the
District Court had been responsible. The court awarded the applicant
PLN 2,000 (approx. EUR 526 euros) in just satisfaction.
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 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.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- On
3 March 2009 the Government submitted a unilateral declaration
similar to that in the case Tahsin Acar v. Turkey ((preliminary
objection) [GC], no. 26307/95, ECHR 2003-VI) and informed
the Court that they were ready to accept that there had been a
violation of the applicant's rights under Article 6 § 1 of the
Convention as a result of the unreasonable length of the proceedings
in which the applicant had been involved. In respect of non pecuniary
damage, the Government proposed to award the applicant PLN 18,000
(the equivalent of approx. EUR 4,200). The Government invited the
Court to strike out the application in accordance with Article 37 of
the Convention.
- The
applicant did not agree with the Government's proposal and requested
the Court to continue the examination of the case. She maintained
that the amount offered was too low.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out an
application under Article 37 § 1 (c) of the Convention on the
basis of a unilateral declaration by the respondent Government even
if the applicant wishes the examination of the case to be continued.
It will depend on the particular circumstances whether the unilateral
declaration offers a sufficient basis for finding that respect for
human rights as defined in the Convention and its Protocols does not
require the Court to continue its examination of the case (see
Tahsin Acar, cited above, § 75; and Melnic v.
Moldova, no. 6923/03, § 22, 14 November
2006).
- According to the Court's case-law, the amount
proposed in a unilateral declaration may be considered a sufficient
basis for striking out an application or part thereof. The Court will
have regard in this connection to the compatibility of the amount
with its own awards in similar length of proceedings cases, bearing
in mind the principles which it has developed for determining victim
status and for assessing the amount of non-pecuniary compensation to
be awarded where it has found a breach of the reasonable time
requirement (see Cocchiarella v. Italy [GC],
no. 64886/01, §§ 85 107, ECHR 2006 ...,;
Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215,
ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no. 67299/01,
10 October 2004).
- On the facts and for the reasons set out above, in
particular the amount of compensation proposed, the Court finds that
the Government have failed to provide a sufficient basis for
concluding that respect for human rights as defined in the Convention
and its Protocols does not require it to continue its examination of
the case (see, conversely, Spółka z o.o. WAZA
v. Poland (striking out), no. 11602/02, 26 June 2007).
- This
being so, the Court rejects the Government's request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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 did not submit observations on the
admissibility and merits of the complaint.
- The
period to be taken into consideration began on 9 June 1993
and has not yet ended. It has thus lasted more than fifteen years and
ten months for two levels of jurisdiction.
A. Admissibility
23. In the present case
the Regional Court partly acknowledged a breach of the
applicant's right to a hearing within a reasonable time and awarded
her the equivalent of EUR 526 in respect of the length of the
proceedings (see paragraph 12 above).
- The Court notes that the redress provided to the
applicant at domestic level, considered on the basis of the facts of
which she complains before the Court, was insufficient (see Czajka
v. Poland, no. 15067/02, § 56, 13 February
2007). Having regard to the criteria for determining victim status in
respect of length of proceedings complaints as set out in the
judgment of Scordino v. Italy (no.1) ([GC], no. 36813/97,
§§ 193-215, ECHR-2006-...), the Court concludes that the
complaint cannot be rejected as being incompatible ratione
personae with the Convention.
- 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 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). Furthermore, the Court
considers that, in dismissing the applicant's complaint that the
proceedings in her case exceeded a reasonable time, the Warszawa
Regional Court failed to apply standards which were in conformity
with the principles embodied in the Court's case-law (see Majewski
v. Poland, no. 52690/99, § 36, 11 October 2005). In
particular, the court did not take into consideration the entire
length of the proceedings.
- 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained that her right to an effective remedy for
the length of the proceedings has been violated since the amount of
compensation granted by the domestic court had been too low. This
complaint falls to be examined under Article 13 of the Convention,
which reads as follows:
Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time.
However, the “effectiveness” of a “remedy”
within the meaning of that provision does not depend on the certainty
of a favourable outcome for the applicant (see Kudła v.
Poland [GC], no. 30210/96, §§ 154 et seq., ECHR
2000-XI, §§ 156-157).
- While the subsidiarity principle underlying the
Convention system requires the Contracting States to introduce a
mechanism addressing complaints about the excessive length of
proceedings within the national legal system, they are afforded –
subject to compliance with the requirements of the Convention –
some discretion as to the manner in which they provide individuals
with the relief required by Article 13 and conform to their
Convention obligation under that provision. In particular, where the
State has introduced a compensatory remedy, the Court must leave to
it a wide margin of appreciation and allow it to organise the remedy
– including the interpretation and application of the notion of
“damage” in a given case – in a manner consistent
with its own legal system, traditions and the standard of living in
the country concerned (see Kudła ibid.; and Scordino
v. Italy (no.1), cited above, §§ 188-189).
- The
fact that in the present case the applicant's claim for just
satisfaction failed and that the redress obtained from the domestic
court was not sufficient for Convention purposes does not in itself
render the remedy under the 2004 Act incompatible with Article 13,
albeit that it has consequences for the Court's assessment of her
victim status in respect of the alleged breach of the reasonable-time
requirement (see paragraph 12 above, and, mutatis mutandis,
Zarb v. Malta, no. 16631/04, §§ 49-52,
4 July 2006).
- As
stated above, the expression “effective remedy” used in
Article 13 cannot be interpreted as a remedy bound to succeed, but
simply an accessible remedy before an authority competent to examine
the merits of a complaint (see, e.g., Šidlová
v. Slovakia, no. 50224/99, § 77, 26 September
2006).
- In
the light of the foregoing, the Court considers that in the
circumstances of the present case it cannot be said that the
applicant's right to an effective remedy under Article 13 of the
Convention has not been respected.
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.
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 PLN 130,000 (approx. EUR 30,300) in respect of
pecuniary and non-pecuniary damage.
- The
Government did not express an opinion on the matter.
- 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 and having regard to the amount awarded at the
domestic level, it awards the applicant EUR 12,700 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 10,000 for the costs and expenses incurred
both before the domestic courts and those incurred before the Court.
- The
Government did not express an opinion on the matter.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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 and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the applicant, who was not
represented by a lawyer, the sum of EUR 500 for the proceedings
before the Court.
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
- Dismiss the Government's request to
strike the application out of its list of cases;
- 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 12,700 (twelve thousand seven hundred euros) in
respect of non-pecuniary damage and EUR 500 (five hundred euros) in
respect of costs and expenses, 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 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
