AS TO THE ADMISSIBILITY OF
Application no. 24549/03
by Tadeusz MICHALAK
The European Court of Human Rights (Fourth Section), sitting on 1 March 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 23 July 2003,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Mr Tadeusz Michalak, is a Polish national who was born in 1930 and lives in Warsaw, Poland. He was represented before the Court by Mr W. Hermeliński, a lawyer practising in Warsaw. The respondent Government were represented by Mr J. Wołąsiewicz, of the Ministry of the Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 1986 the applicant filed with the Warsaw District Court an application for eviction of his tenants.
4. Subsequently, the eviction proceedings were stayed as the tenants initiated court proceedings on 14 January 1987 in which they claimed a title to the property.
5. On 19 February 1987 the proceedings concerning the title to the property were stayed. On 10 January 1989 the Warsaw Regional Court resumed the proceedings. The first hearing took place on 23 October 1991. Between 23 October 1991 and 29 May 1992 eleven hearings took place.
6. On 21 May 1992 the Warsaw District Court dismissed the tenants' action concerning the title to the property. On 10 December 1992 the Warsaw Regional Court dismissed their appeal against that decision.
7. On 8 June 1993, the Minister of Justice filed with the Supreme Court an extraordinary appeal against the judgment of 10 December 1992. On 16 December 1993 the Supreme Court quashed the impugned judgment and remitted the case to the trial court.
8. On 5 July 1995 a hearing took place before the Warsaw District Court. Hearings fixed for April, May and October 1996 were cancelled because the parties had not been served with the summonses.
9. The next hearings took place on 7 March 1997 and 25 February 1999. The hearing scheduled for 7 March 1999 was adjourned. In 2001 hearings were held on 8 January and 7 December. In 2002 hearings took place in February, April and June. On 2 April, 8 May and 2 December 2003 the Warsaw District Court held hearings.
10. On 26 February 2004 the trial court gave a decision in which it dismissed the application for a title to the property in question. On 11 May 2004 one of the participants appealed.
11. Both sets of the proceedings are pending.
B. Relevant domestic law and practice
1. The 2004 Act
12. 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.
13. Section 2 of the 2004 Act reads, in so far as relevant:
“1. A party 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).”
Pursuant to section 3:
“A complaint may be lodged:
4) in criminal proceedings – by a party or a victim even if he is not a party;
5) in civil proceedings – by a party (strona), an intervener (interwenient uboczny) or a participant (uczestnik postępowania); ...”
14. Section 4 provides, in so far as relevant:
“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. ...”
15. Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
16. Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“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 PLN 10,000 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.”
17. Section 15 provides for an additional compensatory remedy:
“1. A party whose complaint has been allowed may seek compensation from the State Treasury ... for the damage it suffered as a result of the unreasonable length of the proceedings.”
18. Section 16 further specifies that:
“A party which has not lodged a complaint about 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.”
19. 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.”
20. Section 18 lays down the following transitional rules in relation to the 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, had 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 had been 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 of Foreign Affairs of any complaints lodged under subsection 1.”
2. Civil Code provisions concerning the State's liability for a tort
21. 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 course of carrying out the duties entrusted to him.”
22. 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”) entered into force.
Following the 2004 Amendment, Article 4171 was added which, in so far as relevant, 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 give them, 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 otherwise provided for by other specific provisions.”
However, under the transitional provision of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 21 above) shall apply to all events and legal situations that subsisted before that date.
23. On 18 January 2005 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 date of 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.
24. The applicant complained under Article 6 § 1 of the Convention about the length of civil proceedings. He further complained under Article 13 that he did not have an effective domestic remedy to complain about the excessive length of the proceedings.
A. Alleged violation of Article 6 § 1 of the Convention
25. The applicant complained that the length of the proceedings in his case had been unreasonable. He relied on 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...”
26. The Court first notes that, in so far as the facts of the case relate to the period before 1 May 1993, the date on which the recognition by Poland of the right of individual petition took effect, the Court has no temporal jurisdiction to deal with the application.
1. The arguments of the parties
(a) The Government's plea on non-exhaustion of domestic remedies
27. The Government maintained that the applicant had failed to exhaust domestic remedies as he had neither lodged a complaint about the breach of the right to a trial within a reasonable time under the 2004 Act nor had he claimed compensation under the relevant provisions of the Civil Code, in particular Article 417. The Government invited the Court to reject the application as being inadmissible.
28. The Government considered that a complaint about the breach of the right to a trial within a reasonable time was accessible to the applicant. In particular, under the transitional provision of section 18 of the 2004 Act, read in conjunction with section 12, the applicant could ask for just satisfaction for the alleged violation of the reasonable time requirement and seek acceleration of the impugned proceedings. What was more, he could obtain further redress through a compensatory remedy, namely by bringing a civil action under Article 417 of the Civil Code, pursuant to section 15 of the 2004 Act.
29. As to the time at which that remedy had become accessible, the Government stressed that many factors in the instant case justified the departure from the general principle that the exhaustion requirement must be assessed with reference to the date on which the application was lodged with the Court. They contended that the ratio legis of the 2004 Act was to enable the Polish authorities to remedy, and to redress at domestic level, violations of the right to a hearing within a reasonable time, and consequently, to reduce the number of the applications lodged with the Strasbourg Court.
(b) The applicant's submissions
30. The applicant replied that he should not be required to exhaust the remedy introduced by the 2004 Act as the effectiveness of it had not yet been established by the domestic courts.
31. Furthermore, the applicant stressed that, according to the 2004 Act, the ordinary courts were competent to examine the complaints. In his opinion, the Supreme Court or the Constitutional Court would have given better guarantees of independence and impartiality. Also, the remedy in question was not effective because a finding that the complaint was justified would not necessarily result in just satisfaction being awarded. In any event, the award could not exceed 10,000 Polish zlotys (PLN), a much lower sum than normally be awarded by the Court in Strasbourg. In the applicant's opinion, the early practice of the domestic courts proved their reluctance to award just satisfaction.
2. The Court's assessment
(a) The general principles
32. The purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them, before those allegations are submitted to the Court. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see, for example, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).
33. The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many authorities, Mifsud v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).
34. Furthermore, in the context of Article 13 of the Convention, in the Kudła judgment, the Court has held that remedies available to a litigant at the domestic level for raising a complaint about a length of proceedings are “effective” if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred.
35. It is true that, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see, Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001-XII).
36. 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, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, 22 May 2001 and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX). In particular, the Court had previously departed from this general rule in cases against Italy, Croatia and Slovakia concerning remedies against the excessive length of the proceedings (see Brusco, cited above, Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII, Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX).
(b) The application of the general principles to the instant case
37. The Court must accordingly determine whether the Government's objection that domestic remedies have not been exhausted is well-founded in the instant case.
In that regard, it observes that, pursuant to section 2 of the 2004 Act, a party to the judicial proceedings is entitled to lodge a complaint about a breach of the right to a trial within a reasonable time (see paragraph 13 above). Under section 5 of the 2004 Act, such a complaint must be lodged while the proceedings are still pending before the domestic courts (see paragraph 15 above). A party may seek, under section 12, a finding that there was an unreasonable delay and ask for just satisfaction and acceleration of the impugned proceedings (see paragraph 16 above). Under the transitional provision of section 18, the remedy under the 2004 Act is available to those complainants who, as the applicant in the present case, lodged an application with the Court in Strasbourg alleging violation of Article 6 of the Convention on account of the unreasonable length of the proceedings, provided that their application with the Court had been lodged in the course of the proceedings and that the Court has not yet adopted a decision concerning the admissibility of their case (see paragraph 20 above). The complaint under the transitional provisions may be lodged even if the proceedings in question were meanwhile terminated.
In this connection, the Court observes that the civil proceedings to which the applicant was a party are pending before the domestic courts and that the Court had not yet adopted a decision concerning the admissibility of the case.
Accordingly, the Court finds that the applicant is entitled to lodge under the 2004 Act a complaint about the breach of the right to a trial within a reasonable time.
38. As regards the effectiveness of the remedy, the Court notes that, in accordance with section 12, the purpose of the complaint about the unreasonable length of the proceedings is twofold. Firstly, the applicant may obtain a finding of an infringement of the “reasonable-time” principle and, where appropriate, may be awarded just satisfaction in the amount not exceeding PLN 10,000. Secondly, he can request the court to instruct the court which examines the merits of the case to take certain measures within a fixed time-limit and thus to accelerate the impugned proceedings (see paragraph 16 above). In this connection, the Court takes note of the Supreme Court's resolution which strengthened the application of the 2004 Act and provided that its provisions were applicable retroactively to the delays that had occurred before the date of its entry into force and had not yet been remedied (see paragraph 23 above).
Furthermore, as regards the compensatory aspect of the remedy introduced by the 2004 Act, the Court notes that sections 15 and 16 open to the complainant another legal avenue, namely, a possibility to lodge a claim under the provisions of the Civil Code – both prior to and following the 2004 Amendment - relating to the State's liability in tort (see paragraphs 21 and 22 above).
39. The applicant argued that the remedy in question could not be regarded as effective. In particular, he stressed that the amount of just satisfaction which could be awarded to the complainant was limited to PLN 10,000. He also considered that the fact that the ordinary courts were competent to examine the complaints did not give sufficient appearances of independence and impartiality. However, the Court notes that, as explained above, in addition to the just-satisfaction which can be awarded under section 12 of the 2004 Act, the complainant has a right to lodge a civil claim and thus seek full compensation (see paragraph 38 above). In this connection the Court reiterates that the “effectiveness” of a “remedy” within the meaning of Articles 13 and 35 § 1 does not depend on the certainty of a favourable outcome for the applicant. Nor does the authority referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective (see Kudła, cited above, § 157). The fact that in Poland it is for the ordinary courts of law, not for the Supreme or Constitutional Court, to entertain complaints under the 2004 Act cannot itself be considered an element capable of undermining the effectiveness of the remedy pleaded by the Government.
In the light of the above, the Court is not persuaded by the arguments submitted by the applicant and considers that he has failed to adduce any particular circumstances that would indicate that the remedy in question would have no reasonable prospect of success.
40. That being so, the Court basing its conclusions on the assessment of the provisions of the 2004 Act as they stand, considers that the complaint about a breach of the right to a trial within a reasonable time is capable of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred, thus satisfies the “effectiveness” test established in the Kudła judgment.
41. As to the question whether the applicant should be required to exhaust the above mentioned remedy notwithstanding that the 2004 Act entered into force after he had lodged the present application with the Court, the Court acknowledges that, as stated above (see paragraph 36), the assessment of whether domestic remedies have been exhausted is normally made with reference to the date of the introduction of the application. However, the Court considers that there are several elements which favour an exception from this rule in the present case. As explained above, under section 5 of the 2004 Act, a complaint about the excessive length of the proceedings should be lodged when the proceedings are still pending (see paragraph 37). However, section 18 extends the applicability of the remedy to the proceedings that might meanwhile have ended. That section refers explicitly to the applications already lodged with the Court in Strasbourg and is therefore designed to bring within the jurisdiction of the national courts, within 6 months after the entry into force of the 2004 Act, all applications currently pending before the Court that have not yet been declared admissible.
The Court once again reiterates what it already stated in a number of its previous rulings, namely that the growing frequency with which violations of the right to a hearing within a reasonable time are being found against many Contracting States, including Poland, and the accumulation of such breaches constitute a practice that is incompatible with the Convention. Moreover, excessive delays in the administration of justice amount to an important danger to the rule of law. It would further recall that the lack of an effective remedy in respect of the excessive length of the proceedings has forced individuals to apply systematically to the Court in Strasbourg when their complaints might have been dealt with more appropriately, in the first place, within the national legal system. In the long term, that situation is likely to affect the operation, at both national and international level, of the system of human-rights protection set up by the Convention (see, Kudła, cited above, § 155 and Brusco, cited above, with further references).
42. It is true that the 2004 Act came into force on 17 September 2004 and that the long-term practice of the domestic courts could not yet be established. However, the wording of the 2004 Act clearly indicates that it is specifically designed to address the issue of excessive length of proceedings before the domestic courts. The Court had previously adopted the same position and had examined the effectiveness of remedy before the practice of the domestic courts in similar, in substance, Croatian cases (see, Nogolica, cited above, and Slavicek v. Croatia (dec.), no. 20862/02, ECHR 2002-VII).
43. In the light of the foregoing, the Court considers that the applicant was required by Article 35 § 1 of the Convention to lodge a complaint about a breach of the right to a trial within a reasonable time with the domestic court, under the 2004 Act, and to ask for expedition of the proceedings and just-satisfaction. Furthermore, it finds no exceptional circumstances capable of exempting him from the obligation to exhaust domestic remedies.
44. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Alleged violation of Article 13 of the Convention
45. The applicant also complained that he had no effective domestic remedy at his disposal for his complaint under Article 6 § 1 of the Convention, as required 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.”
46. The Court has already found that the 2004 Act does provide the applicant with an effective remedy in respect of the complaint about the length of the proceedings. That finding is valid in the context of the complaint under Article 13 of the Convention.
47. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'Boyle Nicolas Bratza
MICHALAK v. POLAND DECISION
MICHALAK v. POLAND DECISION