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THE FACTS

The applicant, Mr Stanisław Ratajczyk, is a Polish national, who was born in Oulchy-la-Ville, France, and currently lives in Namysłów, Poland. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 1 September 1992 the applicant signed a lease contract with a cooperative. On 22 April 1993 the contract was terminated by the lessor and the applicant was barred from entering the leased premises.

On 21 July 1993 the applicant brought a civil action against the cooperative before the Kalisz Regional Court. He claimed that the lease contract had been terminated in breach of its provisions. He further alleged that as a result of the early termination he had suffered serious financial losses. He sought pecuniary damages and reimbursement of the sums he had paid in taxes in connection with the contract.

The first hearing in the case took place on 16 February 1994. The following two hearings were held on 12 June 1995 and 2 February 1996. An expert was appointed at the latter hearing. The first-instance judgment was given on 30 April 1997.

On 25 July 1997 the applicant lodged an appeal with the appellate court. On 13 November 1997 the Łódź Court of Appeal quashed the first-instance judgment and remitted the case for re-examination. It pointed out that there had been errors in the assessment of the evidence by the first-instance court and that certain facts relevant to the outcome of the case required further clarification.

The Regional Court, having re-examined the case, dismissed the applicant's action on 30 June 1998. The applicant appealed on 29 July 1998. On 13 January 1999 the Court of Appeal again quashed the judgment of the Regional Court and remitted the case for re-examination. It stated that the first-instance court had partly failed to assess evidence which was crucial to the case.

No hearings were held throughout 1999.

On 14 January 2000, when the case was still pending before the Regional Court, the applicant extended his claim. On 16 February 2000 the Regional Court informed him that, as a result of bankruptcy proceedings concerning the defendant cooperative, a motion had been lodged with the relevant bankruptcy court to strike it out of the commercial register. The court stated that the final judgment would be given on 28 February 2000. This information notwithstanding, the case was only closed on 20 December 2000, when the Kalisz Regional Court decided to discontinue the proceedings, finding that the defendant cooperative had been declared bankrupt and liquidated.

The applicant appealed against the decision on 18 January 2001. On 3 April 2001 the Łódź Court of Appeal dismissed the appeal.

In parallel with these proceedings, the applicant was attempting to secure his claim in the bankruptcy proceedings concerning the cooperative. However, his request for the creation of a mortgage on a property held by the cooperative was dismissed on the ground that in the first set of proceedings the applicant had not obtained any judgment enabling him to secure his claim.

B.  Relevant domestic law and practice

1.  State's liability for a tort committed by one of its officials

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:

“The State Treasury shall be liable for damage caused by a State official in the performance of his duties.”

On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw “the 2004 Amendment”) came into force. The relevant amendments were aimed in essence at broadening the scope of the State Treasury's liability for tort under Article 417 of the Civil Code. That included adding a new Article 417-1 and making provision for the State's tortious liability for its omission to enact legislation (the concept of “legislative omission” – zaniedbanie legislacyjne). However, the amendments are also to be seen in the context of the operation of a new statute introducing remedies in respect of unreasonable length of judicial proceedings.

Following the 2004 Amendment, Article 417-1 was added, the relevant part of which reads as follows:

“3.  If damage has been caused by failure to give a ruling [orzeczenie] or decision [decyzja] where there is a statutory duty to do so, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless other specific provisions provide otherwise.”

However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date.

Under Article 442 of the Civil Code, claims for redress of damage caused by a tort become time-barred three years from the date on which the victim learns of the damage and of the persons or entities liable to make reparation for it. However, in any case the claim expires ten years from the date on which the event that caused the damage occurred.

That provision applies to situations covered by Article 417 of the Civil Code.

2.  The 2004 Act

On 17 September 2004 the Law of 17 June 2004 on complaints regarding 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”) came into force. Under section 2 taken in conjunction with section 5(1), a party to pending proceedings may ask for the proceedings to be speeded up and/or for just satisfaction for their unreasonable length.

The Act lays down various legal means designed to counteract and/or provide redress for undue delays in judicial proceedings.

The relevant part of section 2 of the 2004 Act provides:

“(1)  Parties to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Under section 3:

“A complaint may be lodged:

...

(iv)  in criminal proceedings – by a party or a victim even if he is not a party;

(v)  in civil proceedings – by a party [strona], an intervener [interwenient uboczny] or a participant [uczestnik postępowania];

...”

The relevant parts of section 4 provide:

“(1)  The complaint shall be examined by the court immediately above the court conducting the impugned proceedings.

(2)  If the complaint concerns an unreasonable delay in the proceedings before the Court of Appeal or the Supreme Court it shall be examined by the Supreme Court. ...”

The relevant part of section 5 provides:

“(1)  A complaint regarding the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads:

“(1)  The court shall dismiss a complaint which is unjustified.

(2)  If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

(3)  At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

(4)  If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding 10,000 zlotys [PLN] to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 15 provides for an additional compensatory remedy:

“(1)  Parties whose complaints have been allowed may seek compensation from the State Treasury ... for the damage they suffered as a result of the unreasonable length of the proceedings.”

Section 16 further specifies that:

“A party which has not lodged a complaint regarding the unreasonable length of the proceedings under section 5(1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”

Section 17 concerns court fees for lodging a complaint:

“(1)  The complainant shall pay a court fee in the amount of PLN 100.

...

(3)  If the court considers that the complaint is justified, it shall reimburse the court fee to the complainant.”

Section 18 lays down the following transitional rules in relation to applications already pending before the Court:

“(1)  Within six months after the date of entry into force of this law, persons who, before that date, lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court was lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

(2)  A complaint lodged under subsection (1) shall indicate the date on which the application was lodged with the Court.

(3)  The relevant court shall immediately inform the Minister for Foreign Affairs of any complaints lodged under subsection (1).”

On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that, while the 2004 Act produced legal effects as from the date of its entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

COMPLAINT

The applicant complained under Article 6 of the Convention of the unreasonable length of the first set of civil proceedings.

THE LAW

The applicant complained of the unreasonable length of the first set of civil proceedings. He relied on Article 6 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

1.  The Government's plea of non-exhaustion of domestic remedies

(a)  The parties' submissions

The Court must first determine whether the applicant has exhausted the remedies available to him in Polish law, in accordance with Article 35 § 1 of the Convention.

The Government submitted in that respect that the remedy provided for by the 2004 Act, which ensured the effective application at domestic level of the “reasonable time” principle enshrined in the Convention, applied to proceedings that had come to an end before 17 September 2004, but only to a limited extent. Under section 18 of the Act anyone who had lodged an application with the Court when the proceedings were still pending was entitled, if the Court had not yet examined the admissibility of the application, to lodge, within six months of the entry into force of the Act, a complaint about the length of the proceedings with the relevant domestic court, as provided for by the Act.

In the present case, the proceedings concerned had come to an end on 3 April 2001, and the applicant had lodged his application with the Court on 23 July 2001. Consequently, his case did not fulfil the requirements set out by section 18 of the Act and he could not have had recourse to the transitional remedy introduced by that provision. Nonetheless, the Government took the view that the applicant could, under section 16 of the said Act, have availed himself of the remedy provided for by that section taken in conjunction with Article 417 of the Civil Code. According to the provisions of the Code governing time-limits for lodging compensation claims in tort, the time-limit for lodging such a claim expired three years after the date on which the person who suffered the damage learned about it, and in any event ten years after the event that caused the damage.

The Government therefore concluded that the application should be rejected for non-exhaustion of domestic remedies.

The applicant submitted in that respect that he had not had any domestic remedy available to him. The civil proceedings concerned had ended in April 2001, while the 2004 Act was applicable only to proceedings which were pending after 17 September 2004, the date of its entry into force.

(b)  The Court's assessment

The Court reiterates that by virtue of Article 1 of the Convention (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention”) the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is further articulated in Articles 13 and 35 § 1 of the Convention (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).

The purpose of Article 35 is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal systems. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has a close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66, and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII).

In the present case the question arises whether the applicant should be required to make use of this remedy, given that he had introduced his application prior to 17 September 2004, the date of entry into force of the 2004 Act. The Court reiterates in this connection that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions which may be justified by the particular circumstances of each case; this is also the case when the application concerns the length of judicial proceedings (see Baumann v. France, no. 33592/96, § 47, 22 May 2001, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX).

Thus, the Court has held that applicants in cases against Italy that concern the length of proceedings should have recourse to the remedy introduced by the “Pinto Law” notwithstanding that it was enacted after their applications had been filed with the Court (see, for example, Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001-XII, or Brusco, cited above). Similar decisions were given in respect of cases introduced against Croatia and Slovakia following the entry into force of amendments to relevant laws, permitting the Constitutional Court to provide redress to persons complaining about undue delays in judicial proceedings (see Nogolica, cited above, and Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002-IX).

The Court first observes in this connection that the 2004 Act introduced an array of remedies concerning specifically the right to have one's case examined within a reasonable time within the meaning of Article 6 § 1 of the Convention. Under section 2 taken in conjunction with section 5 of that Act, a party to a pending case may seek a judicial declaration that his or her right to have the case heard within a reasonable time has been breached. If the relevant court finds, in the light of the same criteria as those used by this Court in the assessment of the length of proceedings, that the complaint is well-founded it must give a ruling to that effect. The court may also, if the complainant so requests, oblige the court before which the case is pending to take certain procedural steps to expedite the proceedings concerned. Further, it is also open to the court to award the complainant an appropriate sum of money, in an amount of up to 10,000 Polish zlotys. Lastly, a party whose complaint is held to be well-founded in the proceedings governed by section 2 taken in conjunction with section 5 of the Act can also institute a separate set of civil proceedings, seeking compensation in tort from the State Treasury for damage arising out of the excessive length of proceedings.

The Court reiterates that it has held that these remedies are effective in respect of the excessive length of pending judicial proceedings (see Michalak v. Poland (dec.), no. 24549/03, 1 March 2005, and Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005-V).

The Court further notes that the 2004 Act also contains, in section 18, provisions of a transitional nature concerning persons who had lodged applications with the Court complaining about the length of proceedings while those proceedings were still pending before domestic courts. It was open to them to lodge, within six months from 17 September 2004, a complaint under section 5 of that Act with the relevant domestic court.

However, the Court is aware of the fact that the applicant cannot avail himself of either of the remedies described above. The civil proceedings in his case came to end on 3 April 2001, while he lodged his application with the Court on 23 July 2001, within the six-month time-limit provided for by Article 35 of the Convention. Therefore, neither section 2 taken in conjunction with section 5, nor section 18 of the Act, is applicable to his situation.

The Court observes in this connection that the said Act also contains specific regulations applicable to the situation of persons who cannot avail themselves of these remedies. Under section 16 of the Act, they can seek compensation in tort from the State Treasury, relying on Article 417 of the Civil Code, for damage caused by the allegedly excessive length of proceedings in which a judicial decision on the merits of the case has already been given.

The Court notes that it has already examined whether, prior to the entry into force of the Law of 17 June 2004, a compensation claim in tort as provided for by Polish civil law is an effective remedy in respect of complaints about the length of proceedings. The Court held in this respect that no persuasive arguments had been adduced to show that Article 417 of the Civil Code could at that time be relied on for the purpose of seeking compensation for excessive length of proceedings or that such action offered reasonable prospects of success (see Skawińska v. Poland (dec.), no. 42096/98, 4 March 2003, and Małasiewicz v. Poland, no. 22072/02, §§ 32-34, 14 October 2003).

However, the Court notes that the recent developments at domestic level, most notably the entry into force of the 2004 Act, have fundamentally changed the legal situation in Poland, where no remedies were available in respect of the excessive length of pending judicial proceedings.

In this context, the Court has examined whether the civil action for damages brought under section 16 of the 2004 Act taken in conjunction with Article 417 of the Civil Code was an effective remedy in respect of the length of judicial proceedings. It held, having regard to the characteristics of these remedies and notwithstanding the absence of established judicial practice in respect of such claims, that these remedies were effective in respect of persons who on 17 September 2004, when the 2004 Act came into force, could still lodge such an action with the relevant domestic court (see Krasuski v. Poland, no. 61444/00, § 72, ECHR 2005-V).

It remains to be examined whether the same holds true for those proceedings which, as in the applicant's case, came to an end more than three years before 17 September 2004, that is, in cases in which the time-limit laid down by Article 442 for the State's liability in tort under Article 417 of the Civil Code had already expired before that date.

The Court observes, having regard to the relevant provisions of the Polish Civil Code, that the applicant's tort claim in respect of damage which could have been caused by the excessive length of proceedings is governed by Article 417 of the Civil Code taken in conjunction with Article 442. According to those provisions, an action is time-barred three years after the date on which the person who suffered the damage learns of it. In cases in which the tort liability arises out of the protracted length of judicial proceedings, the latest date on which the three-year period could start to run would be the date on which the judicial decision given in such proceedings became final and enforceable. In the applicant's case the final decision was given on 3 April 2001 and, in accordance with the relevant provisions of Polish law, became enforceable three weeks later. Consequently, more than three years had elapsed between that date and the entry into force of the 2004 Act on 17 September 2004.

Hence, in the applicant's case, any claim for compensation that he could have had under Article 417 of the Civil Code could not, even on that date, be regarded as an effective remedy.

In the light of the foregoing, the Court considers that a civil action for compensation provided for by Article 417 of the Civil Code taken in conjunction with section 16 of the Law of 17 June 2004 cannot be regarded with a sufficient degree of certainty as an effective remedy in the applicant's case. Consequently, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

2.  The substance of the application

The applicant's complaint relates to the length of the proceedings, which began on 21 July 1993 and ended on 3 April 2001. They therefore lasted seven years and eight months.

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government have failed to submit their observations on the substance of the complaint about the length of the proceedings.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the remainder of the application admissible.

RATAJCZYK v. POLAND DECISION


RATAJCZYK v. POLAND DECISION