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FOURTH
SECTION
CASE OF ROMUALD KOZŁOWSKI v. POLAND
(Application
no. 46601/06)
JUDGMENT
STRASBOURG
20 January
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 Romuald Kozłowski 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 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 46601/06) 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 Romuald
Kozłowski (“the applicant”), on 11 November
2006.
- The
applicant was represented by Mr A. Góźdź, a lawyer
practising in Lublin. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- On
6 December 2007 the
President of the Chamber to which the case had been allocated 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 1947 and lives in Mieścisko. He is a
retired police officer who had formerly been employed in the Civil
Militia (Milicja Obywatelska). In 1974 the applicant had been
dismissed from service for a disciplinary offence. He was rehired by
the Police in 1991. He retired in 1994.
A. Civil proceedings for payment
- On
27 September 1993 the applicant brought a civil action against the
State Treasury for compensation on the grounds that in 1974 he had
been unlawfully dismissed from his post at the Civil Militia and
banned from working there until 1990. In addition the applicant
claimed that he had not been hired by the new police services
immediately after the change of the political regime, as he should
have been, but only in April 1991.
- The
applicant sought compensation, which comprised damages for lost
earnings from 1974 to 1990, for lost earnings and benefits from 1990
to 1991, and for alleged moral suffering due to the loss of
employment.
- On
9 November 1993 the Poznań Regional Court (Sąd
Wojewódzki) rejected the claim on the ground that the
civil court did not have jurisdiction over a dispute arising out of
an employment relationship between a civil servant and the State
(niedopuszczalność drogi sądowej).
- As
a result of an interlocutory appeal by the applicant, on an
unspecified date the Poznań Court of Appeal (Sąd
Apelacyjny) quashed that decision and remitted the case to the
Poznań Regional Court.
- On
10 August 1995 the Poznań Regional Court rejected the claim on
the ground of lack of jurisdiction.
- On
6 March 1996 the Poznań Court of Appeal quashed that decision
and remitted the case indicating that the applicant's claim was of a
civil character as it had arisen out of relations between a civil
servant and the State which were of an administrative and legal
character rather than from a bond of special trust and loyalty
between the two.
- On
4 November 1997 the Poznań Regional Court dismissed the
applicant's claim.
- On
25 February 1998 the Poznań Court of Appeal quashed the
first-instance judgment in the part concerning the claim for
compensation for lost earnings from 1990 to 1991 and
remitted the case in this part to the lower court.
- On
15 March 2001 the Poznań Regional Court dismissed the case. The
applicant appealed.
- It
appears that on 25 April 2006 the appellate court issued an order to
hold a hearing on 11 May 2006.
- On
11 May 2006 the Poznań Court of Appeal delivered a judgment
varying the judgment of the Poznań Regional Court of
15 March 2001 and ordering that the respondent pay the
applicant a certain amount of compensation for lost earnings and
benefits from 1990 to 1991.
A
cassation appeal in the case was inadmissible in law.
B. Proceedings under the 2004 Act
- On
29 April 2006 the applicant lodged a complaint about the unreasonable
length of proceedings for compensation for lost earnings and benefits
from 1990 to 1991 under the Act 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”). The applicant submitted that his civil
case had been pending for over twelve years.
- On
26 July 2006 the Supreme Court discontinued the proceedings under the
2004 Act on the ground that the civil proceedings which were the
subject of the complaint had meanwhile terminated.
- The
court observed that the main purpose of the complaint about the
unreasonable length of proceedings was to accelerate the proceedings
before a trial court. In circumstances where the proceedings which
were the subject of the complaint had already terminated it was no
longer necessary for the court to examine the complaint under the
2004 Act. The Supreme Court noted that the applicant had admittedly
lodged his complaint under the 2004 Act while the civil
proceedings in question were still pending. Nevertheless, the
appellate hearing, which turned out to be final, had been scheduled
prior to the applicant's complaint. That, in the Supreme Court's
opinion, constituted a decisive argument for holding that the
proceedings under the 2004 Act ought to be discontinued without a
ruling on the merits.
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 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that the length of the
proceedings for compensation for lost earnings and benefits from 1990
to 1991 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
period to be taken into consideration began on 27 September 1993 and
ended on 11 May 2006. It thus lasted twelve years and eight months
for two levels of jurisdiction.
A. Admissibility
- The
Government raised a preliminary objection that the application should
be rejected as being incompatible ratione materiae with the
provisions of the Convention. In this respect, they referred to the
Court's case-law (Pellegrin v. France [GC], no. 28541/95, §
67, ECHR 1999-VIII) and maintained that disputes relating to the
career of civil servants were outside the scope of Article 6.
- The
applicant maintained that Article 6 was applicable.
- The Court notes that the functional criterion adopted
in Pellegrin has recently been developed. In the judgment in
Vilho Eskelinen and Others v. Finland ([GC], no.
63235/00, ECHR 2007) the Court held that it was for the Contracting
States, in particular the competent national legislature, and not the
Court, to identify expressly those areas of public service involving
the exercise of the discretionary powers intrinsic to State
sovereignty where the interests of the individual had to give way. If
a domestic system bars access to a court, the Court will verify that
the dispute is indeed such as to justify the
application of the exception to the guarantees of Article 6. If it
does not, then there is no issue and Article 6 § 1 will apply
irrespective of whether the applicant seeks reinstatement or some
other form of pecuniary redress (ibid., §§ 61-62;
see also Efendiyeva v. Azerbaijan, no. 31556/03, §
42, 25 October 2007).
In
the present case, despite the fact that the applicant's claim had
initially been rejected by the first-instance court on the ground of
lack of jurisdiction, the courts had ultimately entertained the claim
and examined the case on the merits. Therefore the applicant had
access to a court to bring a civil action for damages which allegedly
resulted from the decision to make him redundant.
- The
Court therefore finds that Article 6 of the Convention is applicable
and dismisses the Government's objection in this regard. The Court
also 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).
- 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 under Article 13 of the Convention of the
ineffectiveness of the remedy provided for by the 2004 Act.
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to complain of a breach of
a right to a hearing within a reasonable time provided by Article 6
of the Convention. However, the “effectiveness” of a
“remedy” within the meaning of Article 13 does not depend
on the certainty of a favourable outcome for the applicant (see Kudła
v. Poland [GC], no. 30210/96, §§ 154 and
subsequent, ECHR 2000 XI and, mutatis mutandis, Bensaid v.
the United Kingdom, no. 44599/98, § 56, ECHR
2001 I).
- If
the principle of subsidiary, which lies at the foundation of the
Convention system, requires the Contracting States to establish in
their domestic legal systems an effective remedy that will enable
litigants to complain of excessive length of proceedings, the
Contracting States are, nevertheless, afforded 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 (Kudła, ibidem, and Scordino v. Italy
(no. 1) [GC], no. 36813/97, §§ 188-189, ECHR
2006 ...).
- The
fact that the applicant did not succeed to have his complaint under
2004 Act examined on the merits does not render the remedy in itself
ineffective within the meaning of Article 13.
The
Court has already considered that the word “remedy”
within the meaning of Article 13 does not mean a remedy which is
bound to succeed, but simply an accessible remedy before an authority
competent to examine the merits of a complaint (see, Šidlová
v. Slovakia, no. 50224/99, § 77, 26 September
2006).
- In the light of the foregoing, the Court considers
that the above mentioned situation cannot be regarded as a breach of
the applicant's right to an effective remedy.
- It
follows that this complaint 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 12,000 euros (EUR) in respect of non pecuniary
damage and made no claim in respect of pecuniary damage.
-
The Government contested the claim.
- The
Court awards the applicant EUR 8,500 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed EUR 1,830 for the costs and expenses incurred
before the Court.
- The
Government contested the claim as not substantiated by any documents.
- 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
considers it reasonable to award the applicant, who was represented
by a lawyer the sum of EUR 1,500 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
- Declares the complaint under Article 6 § 1
of the Convention 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 8,500
(eight thousand five hundred euros) in respect of non-pecuniary
damage and EUR 1,500 (one thousand five hundred euros) in respect of
costs and expenses, 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 20 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
