CHODZYNSCY v. POLAND - 17484/02 [2006] ECHR 866 (17 October 2006)

JUDGMENT STRASBOURG 17 October 2006 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 Chodzyńscy v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki, Ms L. Mijović, judges , and Mr T. L. Early, Section Registrar , Having deliberated in private on 26 September 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 17484/02) 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 Polish nationals, Mr Włodzimierz Chodzyński and Mrs Hanna Chodzyńska (“the applicants”), on 20 August 2001. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. On 24 August 2005 the President of the Fourth Section decided to communicate the applicants’ complaint concerning the length of proceedings to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility. THE FACTS I. THE CIRCUMSTANCES OF THE CASE The first applicant was born in 1941. They applicants live in Zallikon, Switzerland. On 14 September 1994 the applicants lodged with the Kielce Regional Court ( Sąd Wojewódzki ) a civil action for payment. On 21 February 1995 that court decided that the Commercial Law Chamber of the Kielce Regional Court was competent to examine the case. Afterwards, the Commercial Law Chamber declined jurisdiction. Finally, on 7 June 1995 the President of the Kielce Regional Court decided that the case should be examined by the Civil Law Chamber. On 7 September 1995 and 24 January 1996 the Regional Court held hearings. Subsequently, it decided that expert opinions should be prepared. Between 19 September 1996 and 15 January 1997 the court held four hearings. On 4 April 1997 the court decided to commission another expert opinion. Subsequently, it held hearings in September, November and December 1997. On 19 January 1998 the court ordered that another expert opinion be prepared. On 20 March 1998 the court held a hearing. On 23 March 1998 the Kielce Regional Court dismissed the applicants’ action. They appealed against the judgment. On 10 November 1998 the Krakow Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal. The applicants lodged a cassation appeal. On 28 June 2001 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal. II. RELEVANT DOMESTIC LAW Articles 417 et seq. of the Civil Code ( Kodeks cywilny ) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “ 1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.” Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “ 1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.” On 17 September 2004 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland , no. 61444/00, §§ 34 46, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§ 12 23, ECHR 2005–.... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION The applicants 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 period to be taken into consideration began on 14 September 1994 and ended on 28 June 2001. It thus lasted 6 years 9 months and 15 days for three levels of jurisdiction. A. Admissibility The Court firstly notes that the Government raised a preliminary objection that the applicant had not exhausted remedies available under Polish law. They maintained that from 17 September 2004, when the 2004 Act had come into force, the applicant had a possibility of lodging a claim for compensation for damage suffered due to the excessive length of proceedings with the Polish civil courts under Article 417 of the Civil Code read together with section 16 of the 2004 Act. However, the Court has already found that the civil action relied on cannot be regarded with a sufficient degree of certainty as an effective remedy 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 ; (dec), 11215/02, 31 May 2005, 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 28 June 2001, which is more than three years before the 2004 Act came into force. 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 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 applicants and the relevant authorities and what was at stake for the applicants 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. 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 (see, Kępa 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 almost thirty months which constitutes an unreasonable delay (see Domańska v. Poland , no. 74073/01, 25 May 2004, § 32). 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. 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 almost 50,000 Polish zlotys (PLN) in respect of pecuniary damage and PLN 15,000 in respect of non-pecuniary damage. The Government considered these claims exorbitant. 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 applicants 1,500 euros (EUR) in respect of non pecuniary damage. B. Costs and expenses The applicants also claimed PLN 24,200 for costs and expenses incurred before the domestic courts. The Government contested the claim. According to the Court’s case law, an applicant is entitled to reimbursement of his 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. 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 application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds (a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage, 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 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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 17 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. T. L. 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