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FOURTH
SECTION
CASE OF POSTEK v. POLAND
(Application
no. 4551/10)
JUDGMENT
STRASBOURG
11 October 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Postek v. Poland,
The
European Court of Human Rights (Fourth Section), sitting
as a Committee composed of:
George
Nicolaou,
President,
Lech
Garlicki,
Vincent
A. De Gaetano,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 4551/10) 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 Sylwia Jarczyńska, on behalf of her minor
daughter, a Polish national Ms Julia Postek (“the applicant”),
on 12 January 2010.
2. The
applicant was represented by Ms J. Budzowska, 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 complained that the length of the proceedings in her case
had exceeded a reasonable time, in breach of Article 6 of the
Convention.
- On
11 October 2010 the President of the Fourth
Section decided to give notice of the application to the
Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 2001 and lives in
Warszawa.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
A. Main proceedings
- On
23 October 2002 the applicant, represented by her mother,
instituted civil proceedings against a hospital before the Warsaw
Regional Court (Sąd Okręgowy), seeking compensation
and a disability pension due to medical negligence and inadequate
medical care during her birth.
- In
the first hearing on 28 April 2003 the Regional Court
ordered the defendant hospital to pay to
the applicant PLN 250 (approx. EUR 60) per month by way of
a provisional disability pension.
- On
the applicant’s request, filed on 19 January 2005,
the Warsaw Regional Court issued a writ of execution in respect of
its 2003 decision. On 5 August 2005 the applicant
began receiving the provisional disability pension.
- On
17 February 2011 the Warsaw Regional Court gave a judgment
which granted the applicant’s claims. It appears that this
judgment has become final.
B. Proceedings under the 2004 Act
- On
27 May 2009 the applicant filed a complaint
with the Warsaw Court of Appeal (Sąd
Apelacyjny) under 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”). She sought a finding that the
length of the proceedings had been excessive and claimed compensation
in the amount of PLN 20,000.
- On
9 July 2009 the Warsaw Court of Appeal acknowledged that
the proceedings in the applicant’s case had been excessive
and awarded her PLN 5,000 (approx. EUR 1,200) by way of just
satisfaction. The court held that certain delays in the case had
resulted from the erroneous transfer of the case file to the wrong
medical court experts. It further observed that in 2006 and 2007
there had been a one-year-long period of unjustifiable inactivity on
the part of the Regional Court. In the view of the Court of Appeal,
some other delays could be explained by the need to obtain various
medical expert opinions, often prompted by the applicant’s
numerous requests to that effect.
- The
Court of Appeal explained that the award of PLN 5,000 was justified
by the overall length and the level of complexity of the proceedings.
It dismissed the applicant’s claim for a higher award, taking
note of the fact that her main claims had been properly secured by
the payment of the provisional disability pension.
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 presented in the Court’s
decisions in the cases of Charzyński v. Poland (dec.),
no. 15212/03, §§ 12-23, ECHR 2005 V and
Ratajczyk v. Poland (dec.),
no. 11215/02, ECHR 2005 VIII, and its 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
24 February 2011 the Government submitted a unilateral
declaration similar to that in the case of 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
PLN 8,200 to the applicant (the equivalent of approx.
EUR 2,000), drawing the Court’s attention to the fact that
the excessive length of the proceedings in the applicant’s case
had already been acknowledged by the domestic court, which had
awarded her a certain amount of compensation in this respect.
Consequently, 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. She
considered that the proposed amount would not constitute sufficient
just satisfaction for the damage she had sustained. Moreover, she
pointed out that she had incurred a certain amount of costs and
expenses in connection with the case, both in the domestic
proceedings and in connection with the application to the Court.
In support of her claims, she submitted detailed and itemised
invoices and explained in detail the nature of the costs and expenses
incurred. Consequently, she requested the Court to continue the
examination of her application.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out
an application or part thereof 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-V; Scordino v. Italy (no.1) [GC],
no. 36813/97, §§ 193-215, ECHR-2006-V; and
Dubjakova v. Slovakia (dec.), no. 67299/01,
10 October 2004).
- Admittedly,
the amount of compensation proposed by the Government in their
unilateral declaration roughly corresponds to the amount of
non-pecuniary damage which the Court has awarded in prior, similar
cases. However, the Court notes that the applicant presented it with
claims for the costs and expenses incurred by her in connection with
her case, which were corroborated by sufficiently detailed and
itemised invoices. The applicant’s statement was transmitted to
the Government, who did not comment on it.
- Recalling
its jurisprudence in the area of just satisfaction awards (see, among
other authorities, Roche v. the United Kingdom [GC],
no. 32555/96, § 182, ECHR 2005-X), the Court
first of all notes that the costs and expenses claimed by the
applicant, incurred in the course of the domestic proceedings,
are referable to the violation alleged by the applicant, namely
that of Article 6 of the Convention. What is more, these costs
and expenses have been incurred necessarily, either in order to allow
the applicant to obtain redress for the alleged violation or to
exhaust the available domestic remedy prior to lodging her
application with the Court. The Court also considers that the
invoices submitted by the applicant were sufficiently detailed
and that the applicant actually incurred the costs and expenses
claimed. It also observes that their amount exceeds by some 50 %
the amount proposed by the Government in their unilateral
declaration.
- Since
the amount of just satisfaction put forward by the Government in
their unilateral declaration does not take into account
the above mentioned costs and expenses incurred by the
applicant in connection with the case, the Court, having regard
to its above findings, finds that respect for human rights, as
defined in the Convention and its Protocols, does not allow it to
strike the application out of its list of cases on the basis of the
Government’s declaration. Consequently, it considers it
necessary to continue its examination of the case (see, by contrast,
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 the examination of the
admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Invoking
Articles 2, 6 and 8 of the Convention, the applicant
complained that the length of the proceedings had been excessive.
The Court considers that the applicant’s complaint is best
examined from the standpoint of Article 6 § 1 of the Convention,
which provides, in so far as relevant:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal...”
- The
Government, in their unilateral declaration submitted on
24 February 2011, acknowledged that the length of the
proceedings in the applicant’s case had indeed been excessive.
- The
period to be taken into consideration began on 23 October 2002
and ended on 17 February 2011. It thus lasted 8 years and 4
months for one level of jurisdiction.
A. Admissibility
- 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; Kaniewska v. Poland, no.
8518/08, § 32, 18 May 2010; Jerzak v. Poland, no.
29360/06, § 26, 7 October 2008).
- 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 takes note of the Government’s acknowledgement
of the excessive length of the proceedings, made in their
unilateral declaration.
- Having
examined all the material submitted to it and 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.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- In addition, the applicant alleged that she was not
provided with an effective remedy before the national courts
against the excessive length of proceedings, in breach of Article 13
of the Convention, which reads:
“Everyone whose rights and freedoms as set forth
in this 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
Government did not comment on the matter.
- With
regard to the applicant’s complaint, it should be recalled that
the Court has already found that the 2004 Act provides for an
effective remedy in respect of the excessive length of proceedings
(see Charzyński
v. Poland (dec.), no. 15212/03, §§ 12-23,
ECHR 2005 V; Figiel v. Poland (no. 1),
no. 38190/05, §§ 25-30, 17 July 2008;
Figiel v. Poland (no. 2), no. 38206/05,
§§ 29-34, 16 September 2008).
- It
follows that the complaint is manifestly ill-founded within
the meaning of Article 35 § 3 a) and
must be rejected in accordance with Article 35 § 4.
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
applicant claimed EUR 5,000 in respect of
non-pecuniary damage.
- The
Government, as stated above, submitted a unilateral declaration.
- The
Court considers that the applicant must have
sustained non pecuniary damage. The Court has had due regard to
the matters raised by the Government, in particular to the fact that
the excessive length of the proceedings had been
acknowledged on the domestic level and to the amount of the
award made by the domestic court (see paragraphs 12 and 15 above).
- Ruling
on an equitable basis, it awards the applicant
EUR 2,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 186 for the
costs and expenses incurred before the domestic court and EUR 1,010
for those incurred before the Court (approx. PLN 4,738). She
presented the relevant invoices.
- The
Government did not express an opinion on the matter.
- In
the Court’s view, having regard to the amount of work carried
out by the applicant’s counsel in connection with the case, in
particular to her diligent, comprehensive communications with the
Court, and to the cost of making translations, the amounts
claimed appear to be reasonable as to quantum.
- Regard
being had to the documents in its possession, to the
Court’s case-law and, in particular, to its findings
described in paragraphs 19-20 above, the Court considers that the
sums claimed should be awarded in full.
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
- Dismisses the Government’s request to
strike the application out of its list of cases;
- Declares the complaint concerning the excessive
length of the civil 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 EUR 2,000 (two thousand euros), in respect of
non-pecuniary damage, and EUR 1,196 (one thousand one hundred and
ninety-six euros) for costs and expenses, plus any tax that may be
chargeable, to be converted into Polish zlotys at the rate applicable
at the date of settlement;
(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 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı George Nicolaou
Deputy
Registrar President
