CASE OF MATRAKAS AND OTHERS v. POLAND AND GREECE

FIRST SECTION

CASE OF MATRAKAS AND OTHERS v. POLAND AND GREECE

(Application no. 47268/06)

JUDGMENT

STRASBOURG

7 November 2013

FINAL

07/02/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Matrakas and Others v. Poland and Greece,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,

Elisabeth Steiner,

Khanlar Hajiyev,

Mirjana Lazarova Trajkovska,

Julia Laffranque,

Linos-Alexandre Sicilianos,

Krzysztof Wojtyczek, judges,

and Søren Nielsen, Section Registrar,

Having deliberated in private on 15 October 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 47268/06) against the Republic of Poland and the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Polish nationals, Mr Dawid Matrakas (“the first applicant”), Mr Łukasz Mitroudis (“the second applicant”) and their mother, Ms Beata Kołodziej (“the third applicant”) on 10 November 2006. On 19 October 2009 the applicants’ lawyer informed the Court that the third applicant changed her name to Ms Beata Mitroudis.

2. The applicants were represented by Mr Z. Cichoń, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs. The Greek Government were represented by their Agent’s Delegates, Ms K. Paraskevopoulou, Mr I. Bakopoulous and Ms Z. Chatzipavlou, of the State Legal Council.

3. The applicants alleged, in particular, a breach of Article 6 § 1 of the Convention by Poland and Greece on account of the lack of adequate assistance in the proceedings concerning recovery of maintenance.

4. On 9 September 2011 the application was communicated to the Polish and Greek Governments.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1987, 1992 and 1968 respectively. They all live in Kraków.

A. Proceedings under the New York Convention for the recovery of maintenance in respect of the first applicant

6. On an unspecified date in 1988 the first applicant, represented by the third applicant, filed with the Kraków Regional Court an application under the New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance (“the New York Convention”) for the recovery of maintenance from his father, P.M., a Greek national. The first applicant requested that the Greek authorities institute court proceedings with the aim of recovering the maintenance and enforce any decision that might be given by the Greek courts.

7. On 23 March 1988 the Kraków Regional Court, acting as the Transmitting Agency under the New York Convention, transmitted the application to the Greek Ministry of Justice (“the Greek Ministry”), which acted as the Receiving Agency.

8. On 13 July 1988 the Greek Ministry informed the Kraków Regional Court that the debtor had been summoned but had failed to appear, and that the case had been referred to the Law Department of the Ministry for Macedonia and Thrace for further action.

9. On 5 August 1989 the Kraków Regional Court wrote to the Greek Ministry requesting information about the progress in the recovery of the maintenance. It appears that in reply the Greek Ministry resent its letter of 13 July 1988.

10. On 22 January 1990, in response to the query from the Kraków Regional Court, the third applicant informed the court that the first applicant had not received any maintenance payments from the debtor.

11. On 29 January 1990 the Kraków Regional Court requested the Polish Ministry of Foreign Affairs to intervene in the case. The Ministry requested the assistance of the Polish Embassy in Athens.

12. On 3 September 1990 the third applicant and P.M. signed an agreement stipulating that P.M. would pay 10,000 Greek drachmas (29.35 EUR) in maintenance to the first applicant monthly for a period of two years.

13. On 1 October 1990 the third applicant again informed the Kraków Regional Court that she had not received any maintenance payments from the debtor.

14. On 2 November 1990, upon a request filed by the first applicant, the Kraków Regional Court once again requested the Polish Ministry of Foreign Affairs to intervene in the proceedings.

15. On 19 December 1990 the Greek Ministry informed the Kraków Regional Court that the third applicant had hired a Greek lawyer to act in the divorce and maintenance proceedings. In the lawyer’s opinion, there were good prospects of reaching a friendly settlement in the case. Consequently, the Greek Ministry considered that its intervention at that point was not required. However, it would continue to monitor the situation and inform the Kraków Regional Court of any further developments. The applicant contested the Greek Government’s assertion that she had hired a Greek lawyer.

16. On 19 November 1992 P.M. acknowledged before a notary his intention to pay 10,000 Greek drachmas in monthly maintenance to the first applicant until he reached the age of 18. He also promised to pay 260,000 drachmas (763.02 EUR) for the period up to 31 December 1992. The monthly maintenance payments were to be deposited on an account at the National Bank of Greece. This notarial deed was declared enforceable.

17. On 17 February 1993 the Greek Ministry informed the Kraków Regional Court that P.M. had acknowledged his obligation to pay maintenance to the first applicant. It requested the Kraków Regional Court to provide it with several additional documents, including the first applicant’s birth certificate and a certificate of his residence, in order for it to proceed with the transfer of the maintenance to Poland.

18. On 15 November 1993 the Kraków Regional Court sent the requested documents to the Greek Ministry.

19. The Greek Ministry transmitted the requested documents to the Law Department of the Ministry for Macedonia and Thrace on 1 December 1993. On 24 November 1994 that authority informed the Greek Ministry that the debtor had deposited 260,000 drachmas on a bank account on 23 November 1992. On the same date the said authority requested the debtor to inform it whether he had made any further payments to the account. The debtor replied that he had been making agreed monthly payments to the account and produced documentary evidence to this effect.

20. In the course of divorce proceedings instituted by the third applicant against P.M., on 7 March 1994 the Kraków-Śródmieście District Court delivered an interim order awarding maintenance payments by P.M. to the first applicant. The court noted that P.M.’s place of residence was unknown. On 5 January 1995 the court increased the amount of maintenance payments.

21. On 19 July and 28 September 1994 the Kraków Regional Court wrote to the Greek Ministry requesting it to provide information about the progress of the proceedings. It appears that no reply was received to these letters. On 13 May 1996 the Kraków Regional Court sent another request for information. It noted that on 2 February 1995 the Thessaloniki Court of First Instance had issued a divorce decree in default, dissolving the third applicant’s marriage to P.M.

22. On 11 July 1996 the Greek Ministry informed the Kraków Regional Court that the first applicant had received a payment of 540,000 drachmas (1,584.74 EUR) in March 1995. According to the agreement between the parties, this amount was supposed to cover the maintenance due for the period from 1 October 1990 to 31 March 1995.

23. On 19 September 1996 the Kraków Regional Court informed the third applicant about the letter of 11 July 1996 and requested her to submit comments. On 31 December 1996 the third applicant informed the court that the amount of 540,000 drachmas covered only the period between 1987 and 1990 and that she intended to lodge a claim for non-received maintenance from 1987 to 1996.

24. On 17 June 1997 the Kraków-Śródmieście District Court gave a judgment in default, increasing the amount of the maintenance payments to be made to the first applicant by P.M.

25. On 5 May 1998 the Kraków Regional Court again requested assistance from the Greek Ministry. The court informed the Greek Ministry of the debtor’s single payment made in March 1995. The court also informed the Greek Ministry that three judgments in default had so far been given in Poland ordering P.M. to pay maintenance, and that on the basis of those judgments the first applicant had been able to receive substitute maintenance from the “Maintenance Fund” (Fundusz Alimentacyjny). In case of the lack of reaction from the debtor, the third applicant would have to request the enforcement of the Polish judgments in Greece on the basis of the bilateral agreement. No reply was received from the Greek authorities to that letter.

26. On 25 June 1999 the Kraków Regional Court informed the third applicant that in order to recover the maintenance due to the first applicant it was necessary for her to file a request with the Kraków District Court for the recognition and the enforcement in Greece of the Polish judgments awarding the maintenance, on the basis of the Agreement of 24 October 1979 between the Polish People’s Republic and the Hellenic Republic on legal cooperation in civil and criminal matters (“the 1979 Agreement”). The first applicant filed such a request on 6 July 1999.

27. On 16 November 1999 the Kraków Regional Court requested the assistance of the Polish Ministry of Foreign Affairs.

28. On 18 April 2000 the Polish Ministry of Justice requested the Greek Ministry to assist the first applicant in obtaining the recognition and enforcement in Greece of the Kraków-Śródmieście District Court’s judgment in default of 17 June 1997.

29. By a letter of 17 July 2000, the Greek Ministry informed the Polish Ministry of Justice that it refused to proceed with the request for the recognition and enforcement of the Polish judgment in question. The Greek Ministry explained that the request could not be allowed due to Article 26 (d) of the 1979 Agreement. This provision stipulated that a request for recognition and enforcement could be refused in Greece if the Greek courts had the sole jurisdiction to examine the matter. Consequently, the Greek Ministry returned the request, along with the entire case file, to the Polish Ministry of Justice.

30. On 22 March 2001 the Kraków Regional Court wrote to the Greek Ministry noting the Greek Ministry’s position expressed in its earlier letter and requesting it to urgently proceed with the recovery of the maintenance due to the first applicant in accordance with the New York Convention.

31. On 9 May 2001 the Greek Ministry responded by reasserting the position expressed in its letter of 17 July 2000 and confirming that the entire case file had been returned to the Polish Ministry of Justice on 17 July 2000.

32. On 15 October 2001 the Kraków-Śródmieście District Court gave another judgment in default increasing the amount of the maintenance payments to the first applicant.

33. On 14 February 2002 the Kraków Regional Court requested the Greek Ministry of Justice to provide it with information as to the progress of the proceedings and as to the prospects of a successful recovery of maintenance. On 2 July 2002 the Greek Ministry replied by re-sending their letter of 9 May 2001.

34. On 2 August 2002 the Kraków Regional Court requested the International Law Department of the Polish Ministry of Justice (“the International Law Department”) to provide it with legal advice as to the further steps necessary to recover the maintenance due to the first applicant.

35. On 25 October 2002 the International Law Department advised the Kraków Regional Court to file a new request with the Greek authorities under the New York Convention. It observed that the prospects of a successful recovery of the maintenance on the basis of the request filed in 1988 were poor, given the lack of a proper response from the Greek authorities. It further informed the Kraków Regional Court that there appeared to be no obstacles to the first applicant requesting the recognition and enforcement of the Kraków District Court’s judgment given on 15 October 2001 directly before Greek courts, on the basis of the Lugano Convention of 16 September 1988 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (“the Lugano Convention”) provided that the conditions specified in that convention had been fulfilled.

36. On 6 January 2004 the Kraków-Podgórze District Court delivered yet another judgment in default, again increasing the amount of the maintenance due to the first applicant.

37. On 11 August 2004 the Kraków Regional Court sent to the Greek authorities a new request filed by the first applicant under the New York Convention, asking the Greek authorities to recover maintenance in respect of the period from April 1994 onwards. In the same letter, the Kraków Regional Court also requested the Greek authorities to recognise and enforce the Polish judgment of 6 January 2004 under the Lugano Convention.

38. On 10 November 2004 the Greek Ministry informed the Kraków Regional Court that its request for the recovery of maintenance under the New York Convention could not be accepted, because under Article 6 (3) of that convention only Greek private international law was applicable. Consequently, the Polish court which had given the judgment awarding maintenance to the first applicant had had no jurisdiction to do so since at the time of filing the action the debtor had had his permanent residence in Greece. The Greek Ministry returned the entire request together with all attachments.

39. On 6 December 2004 the Kraków Regional Court requested the International Law Department to provide it with a legal opinion as to the correctness of the Greek Ministry’s position.

40. On 7 January 2005 the International Law Department stated that the position of the Greek Ministry was incorrect and that the Lugano Convention, which was binding on both Poland and Greece, did not allow Greece to invoke the sole jurisdiction of the Greek courts as an obstacle to the recognition and enforcement of Polish judgments. It noted that the Lugano Convention replaced the 1979 Agreement. The International Law Department further noted that it would perhaps be quicker for the first applicant to send a request for recognition and enforcement under the Lugano Convention directly to the competent court in Thessaloniki. Alternatively, it advised the Kraków Regional Court to resubmit its request to the Greek Ministry of Justice.

41. On 6 May 2005 the Kraków Regional Court sent another request for the recognition and enforcement in Greece of the judgment of the Kraków-Podgórze District Court of 6 January 2004 on the basis of the Lugano Convention. In the same letter, it reminded the Greek Ministry about the request lodged under the New York Convention and requested the recovery of the maintenance due from the date of the first request filed in 1988. No reply to that request was received. Enquiries with the Polish postal service revealed that the letter had been served on the Greek Ministry on 21 June 2005.

42. Meanwhile, on 23 August 2005 the Greek Ministry sent the first applicant’s file to the State Legal Council in order for them to proceed with the enforcement of the Kraków-Podgórze District Court’s judgment of 6 January 2004. On 1 September 2005 the State Legal Council transmitted the case to the Law Department of the Ministry for Macedonia and Thrace.

43. On 22 December 2005 the Kraków Regional Court again sent a letter to the Greek Ministry of Justice. No reply to that letter was received.

44. On 1 March 2006 the President of the Kraków Regional Court requested the Polish Embassy in Athens to intervene in the case.

45. On 5 June 2006 the Greek Ministry asked the Kraków Regional Court for a certificate proving that P.M. had been informed of the request which had commenced the proceedings terminated by the judgment of 6 January 2004. Such a certificate was necessary to start recognition and enforcement proceedings on the basis of the Lugano Convention.

46. On 16 August 2006 the Kraków Regional Court forwarded the requested documents to the Greek Ministry.

47. On various dates in 2007, at the request of the third applicant, the Kraków Regional Court attested that she had not received any maintenance payments due to the first applicant. The third applicant needed the confirmation to receive substitute maintenance.

48. On 26 January 2007 the Greek authorities lodged a request for the recognition and enforcement of the judgment of 6 January 2004 with the Thessaloniki Court of First Instance. The first hearing, scheduled for 24 April 2007, was adjourned until 18 September 2007.

49. On 23 April 2007 the Kraków Regional Court asked the Greek Ministry to provide it with further information as to the progress of the proceedings. On 26 July 2007 the Greek Ministry replied that the Thessaloniki Court of First Instance would examine the case on 18 September 2007.

50. The hearing set for 18 September 2007 was adjourned owing to elections. Upon a request from the Greek authorities a further hearing was scheduled for 14 December 2007. It was then postponed on account of the friendly-settlement negotiations between the parties.

51. On 28 November 2007 the Kraków Regional Court asked the Greek Ministry to inform it of the results of the court hearing.

52. On 9 May 2008 the Greek Ministry informed the Kraków Regional Court that on 21 March 2008 the third applicant had reached an agreement with P.M. Under the terms of that agreement P.M. was to pay 9,700 euros to the first applicant as a final settlement of the sums of maintenance awarded by the Polish court up to 18 August 2005. The third applicant declared that she would withdraw her request to enforce the judgment of 6 January 2004.

53. On 8 June 2008 the third applicant declared that P.M. had paid his debts up to 2005 but had not made any payments for the period between 2005 and 2008, and that he was not paying the current instalments.

54. On 14 September 2008 the third applicant declared that P.M. had paid part of his debt for the period between 2005 and 2008 (EUR 3,000) but he had not paid the interest.

55. On 16 January 2009 the third applicant informed the Kraków Regional Court that the case could be closed. On 12 February 2009 the case was closed by the Kraków Regional Court. The latter court informed the Greek Ministry that the recovery proceedings under the New York Convention were terminated.

B. Proceedings instituted in Poland under the 2004 Act by the first applicant

56. On 29 August 2007 the first applicant filed a complaint under the Law of 17 June 2004 on complaints concerning a breach of the right to a trial within a reasonable time (“the 2004 Act”). He alleged that the length of the proceedings for the recovery of maintenance instituted in 1988 on his behalf by his mother on the basis of the New York Convention had been excessive. He also claimed compensation in the amount of 10,000 Polish zlotys (PLN). The applicant explained that he had not been able to recover any maintenance from his father, despite the fact that several judgments awarding maintenance had been handed down in Poland and despite the Kraków Regional Court’s repeated attempts to intervene with the Greek authorities.

57. On 9 October 2007 the Kraków Court of Appeal rejected the applicant’s complaint. It recalled that a mere reference to the overall duration of the proceedings did not suffice for a conclusion that their length had been excessive and that the applicant had failed to sufficiently specify the omissions or delays attributable to the lower court. It further observed that, in any event, the Regional Court’s role as the Transmitting Agency in the impugned proceedings under the New York Convention had been limited solely to carrying out technical and organisational tasks, which the Regional Court had duly done.

C. Proceedings for the recovery of the maintenance due to the second applicant

58. On 6 January 2004 Y.M., a Greek national, was declared the father of the second applicant by the Kraków-Podgórze District Court. He was further ordered to pay monthly maintenance in the amount of PLN 900.

59. On 26 April 2005 the second applicant, represented by his mother, filed with the Kraków Regional Court a request for the recovery of maintenance from Y.M. under the New York Convention. He requested that the Greek authorities secure a friendly settlement of the case or, alternatively, institute court proceedings with the aim of recovering the maintenance and enforce any judgment that might be given in this connection by the Greek courts.

60. By a letter of 12 May 2005 the Kraków Regional Court asked the applicant to rectify her request, in particular by attaching the required documents.

61. On 7 June 2005 the Kraków Regional Court, acting as the Transmitting Agency under the New York Convention, transferred the second applicant’s request to the Greek Ministry, acting as the Receiving Agency.

62. On 10 November 2005 the Kraków Regional Court requested the Greek Ministry to confirm reception of the application filed by the second applicant. It appears that there was no response to that request. Enquiries with the Polish postal service revealed that the request had been served on the Greek Ministry on 28 July 2005.

63. On 10 November 2005 the Kraków Regional Court issued a certificate for the third applicant attesting that she had not received any maintenance payments due to the second applicant. The certificate was necessary to claim substitute maintenance from the Maintenance Fund.

64. On 1 March 2006 the Kraków Regional Court requested the assistance of the Polish Embassy in Athens. In reply, on 17 May 2006 the Polish Embassy informed the Kraków Regional Court that the Greek Ministry had instituted proceedings for the recovery of the maintenance due to the second applicant. The Embassy further informed the court that a hearing before the Thessaloniki Court of First Instance, initially scheduled for 24 March 2006, had been rescheduled for 26 May 2006.

65. On 28 August 2006 and 23 April 2007 the Kraków Regional Court requested the Greek Ministry to inform it of the outcome of the hearing before the Thessaloniki court.

66. On 22 January and 23 April 2007 the Kraków Regional Court requested the Polish Embassy in Athens to enquire with the Greek authorities about the progress of the proceedings.

67. On 18 September 2007 the Kraków Regional Court sent the file concerning the second applicant’s case to the International Law Department, requesting its assistance.

68. On 16 November 2007 the International Law Department sent the case file back to the Kraków Regional Court, informing it that the second applicant should address the Greek authorities directly with a request to be provided with a copy of the decision that had apparently been given in his case by the Greek court. On 29 November 2007 the Kraków Regional Court forwarded the International Law Department’s letter to the third applicant.

69. On 4 April 2008 the Kraków Regional Court requested the Greek Ministry to inform it about any further steps taken with a view to recovering the maintenance. It sent again a copy of the original request for the recovery of maintenance from Y.M. and requested the Greek Ministry’s assistance as Y.M. had not been paying maintenance due to the second applicant since 1995. On the same day, the Kraków Regional Court requested the Polish Embassy in Athens to intervene in the case.

70. On 20 May 2008 the Greek Ministry informed the Kraków Regional Court that they had already sent to it the judgment of the Thessaloniki Court of First Instance of 23 April 2007 (see paragraph 97 below). They also requested the Kraków Regional Court to provide them with additional information as to the defendant’s property, with a view to the enforcement of the judgment in Greece. The Kraków Regional Court replied to the Greek Ministry that the judgment of the Thessaloniki Court of First Instance given on 23 April 2007 in the third applicant’s case did not concern any maintenance payments in respect of the second applicant. Consequently, it requested the Greek Ministry to proceed with the recovery of the maintenance owed by Y.M. to the second applicant.

71. In its response of 26 June 2008, the Greek Ministry informed the Kraków Regional Court that the Polish judgment ordering Y.M. to pay maintenance to the second applicant was a judgment in default given in Y.M.’s absence. Consequently, the Greek Ministry requested the Kraków Regional Court to provide it with documents proving that Y.M.’s rights as a defendant in the proceedings before the Polish courts had been respected, as required by Article 23 (b) of the 1979 Agreement. On 4 July 2008 the Kraków Regional Court forwarded the requested documents to the Greek Ministry.

72. On 1 September 2008 the Greek Ministry transmitted the case to the State Legal Council as a competent authority to institute the proceedings in accordance with the New York Convention. Subsequently, the case was transmitted to the Law Department of the Ministry for Macedonia and Thrace for further action.

73. On 3 April 2009 the Greek Ministry, acting as the Receiving Agency, filed a claim with the Thessaloniki Court of First Instance for the enforcement of the Kraków-Podgórze District Court’s judgment of 6 January 2004.

74. On 11 December 2009 the Thessaloniki Court of First Instance gave judgment, dismissing the claim. The court considered that the Ministry had no standing to file such a claim because the New York Convention did not apply to the case. It held that the Council Regulation 44/2001/EC was applicable to the case and that accordingly it was the second applicant who had standing to file a claim for enforcement. It is not clear whether the Ministry lodged an appeal against that judgment.

75. Meanwhile, on 17 April 2008 the third applicant filed a claim with the Thessaloniki Court of First Instance requesting the recognition and enforcement of the Kraków-Podgórze District Court’s judgment of 6 January 2004. The court gave judgment on 27 May 2009, dismissing the third applicant’s claim. It held that the defendant, Y.M., had not been correctly informed about the proceedings in Poland and therefore could not defend his interests in the proceedings. The court found that Y.M. had been served summons to appear at the hearing scheduled for 14 July 2003 only on 20 September 2003, i.e. after the hearing had taken place. The third applicant appealed.

76. According to a document dated 1 December 2009 prepared by a judge of the Kraków-Podgórze District Court the rights of Y.M. had been fully respected in the proceedings leading to the Kraków-Podgórze District Court’s judgment of 6 January 2004. The judge noted that the second applicant’s claim had been filed on 20 February 2003 and that the first hearing had been scheduled for 14 July 2003. The latter hearing was adjourned since Y.M. had failed to appear and the Kraków-Podgórze District Court had had no proof that the claim had been served on the defendant. After the court was notified that the claim had been served on Y.M. on 20 September 2003 it scheduled a hearing for 6 January 2004. On that date the Kraków-Podgórze District Court heard the case and delivered judgment in default. The judgment was translated and served on Y.M. on 21 September 2004. He was instructed that he could file an objection to the judgment in default within seven days from the date of the service but he did not react.

77. A hearing before the Thessaloniki Court of Appeal was scheduled for 17 May 2010. However, that hearing was rescheduled owing to a bomb attack which had occurred in the court in Thessaloniki several days prior to that date. Another hearing in the case, scheduled for 8 November 2010, was also rescheduled, on account of the local elections due to take place from 3 to 12 November 2010.

78. On 10 June 2011 the Thessaloniki Court of Appeal dismissed the third applicant’s appeal. It upheld the lower court finding that the Y.M.’s rights to participate in the proceedings and to defend his interests had not been respected. Accordingly, the recognition of the judgment in issue would have been contrary to the public order.

79. It appears that the third applicant did not lodge an appeal with the Court of Cassation.

80. On 17 April 2008 the third applicant also lodged an action with the Thessaloniki Court of First Instance against Y.M. for maintenance on behalf of the second applicant. The proceedings were suspended pending the outcome of the proceedings for the recognition and enforcement of the judgment of 6 January 2004.

D. Proceedings instituted in Poland under the 2004 Act by the second applicant

81. On 18 July 2008 the second applicant, represented by his mother, filed a complaint under the 2004 Act. He claimed that the length of the proceedings for the recovery of maintenance instituted by him on 29 April 2005 on the basis of the New York Convention had been excessive. He also claimed compensation in the amount of PLN 10,000.

82. On 27 August 2008 the Kraków Court of Appeal dismissed the applicant’s complaint. The court observed that the second applicant had filed his application for recovery of maintenance under the New York Convention on 29 April 2005. It noted that the initial application had been incomplete and had had to be rectified by the second applicant before being transmitted to the Greek Ministry of Justice. The Court of Appeal considered that the transmission of documents had been carried out without undue delay. It further considered that, in the proceedings under the New York Convention, the Kraków Regional Court had only acted as the Transmitting Agency and, as such, had had no influence on the expeditiousness of the recovery of the maintenance by the Greek authorities. Moreover, the Court of Appeal found that the Regional Court, although it had not been required to do so by law, had on several occasions attempted to intervene in the proceedings by sending reminder letters to the Greek authorities and by soliciting the assistance of the Polish embassy in Athens. Consequently, the Court of Appeal considered that the Regional Court could not be held responsible for the overall length of the impugned proceedings and it dismissed the second applicant’s complaint, refusing to award him any compensation.

E. Proceedings instituted for the recognition and enforcement in Greece of the Polish court’s judgment awarding maintenance to the third applicant

83. On 23 December 2002 the Kraków Regional Court issued a divorce decree in default, dissolving the third applicant’s marriage to a Greek national, Y.M., and ordering Y.M. to pay maintenance to her.

84. On 24 February 2003 the third applicant lodged an application with the Kraków Regional Court for the recovery of maintenance from Y.M. under the New York Convention. In her application, she requested the Greek authorities to secure a friendly settlement of the case or, alternatively, to institute proceedings with the aim of recovering the maintenance and to recognise and enforce the judgment of 23 December 2002.

85. On 24 March 2003 the Kraków Regional Court asked the third applicant to rectify her request by attaching the required documents. On 18 August 2003 the court transmitted the application to the Greek Ministry.

86. On 25 November 2003 the Ministry of Justice sent the applicant’s file to the Thessaloniki Court of First Instance in order for it to proceed with enforcement of the recovery of maintenance from Y.M. The efforts to summon Y.M. proved unsuccessful. On 9 February 2004 the Greek Ministry transmitted the case-file to the State Legal Council with a view to instituting enforcement proceedings in accordance with the New York Convention. Subsequently, the case was referred to the Law Department of the Ministry for Macedonia and Thrace for further action.

87. Meanwhile, on 7 February 2004 the third applicant married S.K. According to the Polish Government, pursuant to Article 60 § 3 of the Polish Family and Custody Code, Y.M.’s obligation to pay maintenance to the third applicant ceased as a consequence of this act. The applicant contested this assertion of the Polish Government.

88. On 23 April 2004 the Greek Ministry requested the Kraków Regional Court to provide it with proof that the summons had been served on Y.M. in the proceedings before the Kraków Regional Court.

89. On 10 August 2004 the Kraków Regional Court sent the requested document to the Greek Ministry, observing that it had already been sent to it on 18 August 2003, together with the initial request for recovery of maintenance.

90. On 20 October 2004 the Greek authorities brought an action against Y.M. before the Thessaloniki Court of First Instance with the aim of obtaining the recognition and enforcement of the judgment of the Kraków Regional Court of 23 December 2002.

91. On 24 January 2005 the Thessaloniki Court of First Instance decided to adjourn the hearing in order to verify whether the matter had not already been the subject of another final judgment concerning the same parties.

92. On 10 March 2005, 30 August 2005 and 12 January 2006 the Kraków Regional Court requested the Greek Ministry to provide it with information as to the progress of the proceedings. It appears that no response was received to these enquiries.

93. On 12 January 2006 the Kraków Regional Court requested the assistance of the Polish Embassy in Athens.

94. A hearing before the Thessaloniki Court of First Instance scheduled for 24 March 2006 was adjourned. A hearing took place on 26 May 2006. On 23 July 2006 the court decided to adjourn the hearing for the same reason as previously (see paragraph 91 above). The next hearing scheduled for 20 February 2007 was adjourned. The hearing took place on 9 March 2007. Twice in the course of the proceedings the Greek authorities lodged a request with the Thessaloniki Court of First Instance for a hearing to be scheduled in the case.

95. On 4 July 2006 the Kraków Regional Court requested the Greek Ministry to provide it with information as to the outcome of the hearing before the Thessaloniki court. Since no reply was received to that request, on 8 January 2007 the Kraków Regional Court requested the Polish Embassy in Athens to enquire with the Greek authorities as to the outcome of the proceedings.

96. On 12 February 2007 the Greek Ministry informed the Kraków Regional Court of the developments in the case.

97. On 23 April 2007 the Thessaloniki Court of First Instance gave a judgment recognising the Kraków Regional Court’s divorce verdict of 23 December 2002 as enforceable in Greece. On 4 July 2007 the Greek Ministry sent a copy of the judgment to the Kraków Regional Court.

98. On 14 September 2007 the Kraków Regional Court requested the Polish Ministry of Justice to provide it with legal advice as to the further steps necessary to recover the maintenance due to the third applicant. On 16 November 2007 the Polish Ministry suggested further cooperation with the Greek Ministry and underlined that the Regional Court acted only as a Transmitting Agency.

99. On 29 November 2007 the Kraków Regional Court informed the third applicant that she should entrust the carrying out of the enforcement proceedings in Greece to a Greek counsel. The court further informed her that the proceedings in her case would be temporarily stayed pending the outcome of the enforcement proceedings in Greece.

100. On 18 April 2008 a copy of the judgment of 23 April 2007 was served on Y.M., together with an order of payment for 36,332.96 EUR.

101. On 20 May 2008 the Greek Ministry asked the Polish Ministry to provide information as regards Y.M.’s assets in Greece. In reply, the third applicant provided the information that Y.M.’s assets included three taverns in Chalastra and Thessaloniki, a house in Chalastra, a flat in Thessaloniki and several cars and motorcycles.

102. On 12 June 2008 the Greek Ministry informed the Kraków Regional Court that enforcement proceedings against Y.M. on the basis of the judgment of the Thessaloniki Court of First Instance of 23 April 2007 had been initiated and that some property belonging to Y.M. would be seized and auctioned off.

103. Subsequently, three auctions were organised in order to sell two of Y.M.’s apartments in Thessaloniki (on 17 September 2008, 14 January 2009 and 25 February 2009). However, this was to no avail, as there were no bidders at the auctions.

104. On 3 April 2009 the Greek authorities requested the Thessaloniki Court of First Instance to fix a lower price for the two apartments in order to facilitate the auction. On 15 July 2009 the court partly granted the request and fixed the price at 48,000 EUR and 44,000 EUR respectively. Two subsequent auctions of 1 and 16 September 2009 were again to no avail for the lack of bidders.

105. On 14 February 2011 the Greek authorities lodged a request with the Thessaloniki Court of First Instance to authorise the sale of Y.M.’s two apartments through an open sale.

106. On 30 April 2012 the court dismissed the request, explaining that the Civil Code did not permit an open sale in the circumstances of the case.

107. In the meantime, on 18 October 2010 the third applicant filed a new application for recovery of maintenance payments. It was forwarded to the Greek Ministry on 2 December 2010. The first hearing was set for 11 February 2011.

108. On 15 June 2011 the Kraków Regional Court asked the Greek Ministry what the chances were that the maintenance would be recovered from Y.M. The Greek Ministry did not reply.

II. RELEVANT INTERNATIONAL, EUROPEAN AND DOMESTIC LAW

A. The New York Convention on the Recovery Abroad of Maintenance

109. The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations. Poland and Greece ratified the New York Convention on 13 October 1960 and 1 November 1965 respectively.

110. The relevant provisions of the New York Convention read as follows:

Article 1 - Scope of the Convention

1. The purpose of this Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the office of agencies which will hereinafter be referred to as Transmitting and Receiving Agencies.

2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.

Article 3 - Application to Transmitting Agency

1. Where a claimant is in the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent. (...)

3. The application shall be accompanied by all relevant documents, including, where necessary, a power of attorney authorising the Receiving Agency to act, or to appoint some other person to act, on behalf of the claimant. It shall also be accompanied by a photograph of the claimant and, where available, a photograph of the respondent.

4. The Transmitting Agency shall take all reasonable steps to ensure that the requirements of the law of the State of the Receiving Agency are complied with; ...

Article 5 - Transmission of judgments and other judicial acts

1. The Transmitting Agency shall, at the request of the claimant, transmit, under the provisions of article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in a competent tribunal of any of the Contracting Parties, and, where necessary and possible, the record of the proceedings in which such order was made. ...

2. Proceedings under article 6 may include, in accordance with the law of the State of the respondent, exequatur or registration proceedings or an action based upon the act transmitted under paragraph 1.

Article 6 - Functions of the Receiving Agency

1. The Receiving Agency shall, subject always to the authority given by the claimant, take, on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.

2. The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reasons and return the documents.

3. Notwithstanding anything in this Convention, the law applicable in the determination of all questions arising in any such action or proceedings shall be the law of the State of the respondent, including its private international law.”

B. The 1979 Agreement between Poland and Greece on Legal Aid in Civil and Criminal Cases

111. The Agreement between Poland and Greece entered into force on 23 December 1981.

112. The 1979 Agreement provides, in so far as relevant:

Chapter 5

Recognition and enforcement of decisions in civil matters

Article 21

...

2. Final court decisions in civil matters concerning rights of a pecuniary nature delivered in the territory of one State Party may be recognised as enforceable in the other State-Party if they were delivered after the entry into force of the present Agreement.

Article 22

A request for the recognition or the enforcement of a court decision should be filed with the court which examined the matter in the first instance or with the competent court of the other State-Party. In the former case, the court shall transmit the request to the competent court of the other State-Party, in accordance with the procedure set out in article 2 of the present Agreement.

Article 23

1. A request for the recognition or the enforcement of a court decision should include:

...

b) a document proving that a plaintiff who did not participate in the proceedings, or his lawyer, had been informed in due time and summoned in due time to a hearing on at least one occasion.

Article 26

Refusal of recognition or enforcement

Recognition or enforcement may be refused:

...

d) if, according to the law of the State Party in whose territory the decision is to be recognised or enforced, the court of that State Party has sole jurisdiction to examine the matter.

C. The Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters

113. Greece and Poland ratified the Lugano Convention on 11 June 1997 and 1 November 1999 respectively. It entered into force in respect of Greece on 1 September 1997 and in respect of Poland on 1 February 2000.

114. The relevant provisions of the Lugano Convention read as follows:

TITLE III

RECOGNITION AND ENFORCEMENT

Article 25

For the purposes of this Convention, ‘judgment’ means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.

Section 1

Recognition

Article 26

A judgment given in a Contracting State shall be recognised in the other Contracting States without any special procedure being required.

Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Section 2 and 3 of this Title, apply for a decision that the judgment be recognised.

If the outcome of proceedings in a court of a Contracting State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Article 27

A judgment shall not be recognised:

1. if such recognition is contrary to public policy in the State in which recognition is sought;

2. where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defence;

3. if the judgment is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought;

4. if the court of the State of origin, in order to arrive at its judgment, has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession in a way that conflicts with a rule of the private international law of the State in which the recognition is sought, unless the same result would have been reached by the application of the rules of private international law of that State;

5. if the judgment is irreconcilable with an earlier judgment given in a non‑contracting State involving the same cause of action and between the same parties, provided that this latter judgment fulfils the conditions necessary for its recognition in the State addressed.

...

Section 2

Enforcement

Article 31

A judgment given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, it has been declared enforceable there.

...

Article 34

The court applied to shall give its decision without delay; the party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

The application may be refused only for one of the reasons specified in Articles 27 and 28.

Under no circumstances may the foreign judgment be reviewed as to its substance.

Article 35

The appropriate officer of the court shall without delay bring the decision given on the application to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought.

D. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

115. The Council Regulation (EC) No 44/2001 lays down rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in the European Union countries. The relevant provisions of the Regulation (EC) No 44/2001 read as follows:

CHAPTER III

RECOGNITION AND ENFORCEMENT

Article 32

For the purposes of this Regulation, ‘judgment’ means any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.

Section 1

Recognition

Article 33

1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

2. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised.

3. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Article 34

A judgment shall not be recognised:

1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;

2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought;

4. if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.

...

Section 2

Enforcement

Article 38

1. A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.

...

Article 40

1. The procedure for making the application shall be governed by the law of the Member State in which enforcement is sought.

...

Article 41

The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

Article 42

1. The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member State in which enforcement is sought.

...

Article 43

1. The decision on the application for a declaration of enforceability may be appealed against by either party.

...

Article 45

1. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.

2. Under no circumstances may the foreign judgment be reviewed as to its substance.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

116. The applicants complained that the Polish and Greek authorities had failed to effectively recover the maintenance payments in the proceedings under the New York Convention and that the length of the proceedings for the recovery of maintenance had been excessive. They relied on Article 6 § 1 of the Convention, which reads 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 ...”.

A. Admissibility

1. With regard to Poland

(a) The parties’ submissions

117. Firstly, the Polish Government argued that the application should be dismissed on account of the applicants’ abuse of the right of individual petition. An application could be rejected on this ground if new important developments occurred during the proceedings before the Court and if the applicant failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. In this connection the Government noted that the applicants had failed to inform the Court that the first applicant had received at least EUR 12,700 from P.M. and that the enforcement proceedings against P.M. had been closed following a request by the third applicant lodged on 16 January 2009. In addition, the applicants had failed to inform the court that they had been receiving substitute maintenance from the Maintenance Fund over a considerable period of time.

118. The applicants stressed that the application had been lodged on 10 November 2006, and thus three years before the first applicant had obtained the EUR 12,700 from his father. Moreover, the payment had also been taken into consideration in the applicants’ claims for just satisfaction. As regards the sums received from the Maintenance Fund, they covered only a limited part of the amounts adjudicated by the Kraków Regional Court.

119. Secondly, the Government submitted that in so far as the applicants complained against Poland, their complaints should be dismissed as incompatible ratione loci. They noted that the present case concerned mostly the length and effectiveness of the enforcement procedures carried out in Greece. In addition, the Kraków Regional Court had acted only as a Transmitting Agency and as such had had no influence on the expeditiousness of the recovery of maintenance by the Greek authorities.

120. The applicants argued that even though the Kraków Regional Court had acted only as a Transmitting Agency there had nevertheless been periods of inactivity on the part of the Polish authorities which, together with the attitude of the Greek authorities, had prolonged the duration of the proceedings.

121. Thirdly, the Government submitted that the application was inadmissible ratione temporis, in so far as it concerned events which had taken place before 1 May 1993, the date when Poland recognised the right of individual petition under the Convention. The applicants did not comment on this objection.

122. Fourthly, the Government maintained that the third applicant had failed to exhaust the required domestic remedies since she had not lodged a complaint under the 2004 Act.

123. The third applicant maintained that she had not lodged a complaint under 2004 Act in view of the decision given in the case of first applicant (see paragraph 57 above). In that decision the Kraków Court of Appeal had rejected the complaint lodged by the first applicant by pointing out that, in any event, the Kraków Regional Court had acted only as a Transmitting Agency. For that reason, the third applicant considered that a complaint under 2004 Act would not have been an effective remedy in her case.

124. With regard to the merits, the Government argued that the Polish authorities had acted diligently and without undue delay. The requests lodged by the applicants under the New York Convention had been immediately translated and transmitted to the Greek authorities. The Polish authorities assisted the applicants in recovery of their maintenance payments. The Kraków Regional Court, although not required by the New York Convention, had many times attempted to intervene in the proceedings by enquiring about their progress with the Greek authorities and by soliciting the assistance of the Polish Embassy in Athens, the Ministry of Justice and the Ministry of Foreign Affairs. The Government submitted that the applicants had failed to indicate what specific actions they would have expected from the Polish authorities for the effective recovery of maintenance. They pointed out that they could not be held responsible for the lack of effectiveness in the recovery of maintenance by the Greek authorities.

125. The Government also argued that the case was very complex. The proceedings had been based on three different international instruments: the New York Convention, the 1979 Agreement and the Lugano Convention. In addition, numerous documents had had to be translated.

126. The applicants submitted that on account of the inactivity of the Polish authorities they had not been able to obtain the maintenance payments awarded to them by several judgments of the Polish courts. They pointed to numerous periods of inactivity on the part of the authorities. In particular, the Polish authorities had taken no action between 15 November 1993 and 19 July 1994, 31 December 1996 and 5 May 1998, and 25 October 2002 and 11 August 2004.

(b) The Court’s assessment

127. The Court notes that the Polish Government raised a number of objections in respect of the admissibility of the application. However, the Court considers that it is not necessary to examine these objections because the application is in any event inadmissible in respect of Poland for the reasons set out below.

128. The Court notes that all three applicants complain that the Polish authorities, in particular the Transmitting Agency (the Kraków Regional Court), had failed to effectively recover the maintenance payments in the three separate sets of proceedings under the New York Convention. The New York Convention establishes a cooperation procedure between the Contracting Parties by virtue of which the competent authorities, designated by the two Contracting Parties, undertake the necessary measures in order to assist the creditor in the recovery of maintenance. Each Contracting Party is responsible under the New York Convention for the consequences of the obligations undertaken on ratification of that convention, in particular, for the assistance it provides to the creditor in the recovery of maintenance through the appropriate measures, including those foreseen in its domestic law (see, Huc v. Romania and Germany (dec.), no. 7269/05, § 46, 1 December 2009).

129. The Court considers that the Transmitting Agency (the Kraków Regional Court) acted diligently in the present case. Its role was to receive the applications for recovery of maintenance, ensure that they included all necessary information and were accompanied by relevant documents and finally to transmit the applications to the Receiving Agency. The applicants pointed to certain delays in the procedure related to the recovery of maintenance due to the first applicant. However, the Court finds that even if certain delays could be attributed to the Polish authorities, they were not unreasonable in the light of the complexity of the procedure which required constant cooperation between the Transmitting and Receiving Agencies and the first applicant. Furthermore, the Court notes that the Transmitting Agency actively monitored the progress of the procedure with the Greek authorities and on numerous occasions solicited assistance of the Polish Ministries of Justice and Foreign Affairs and of the Polish Embassy in Athens. In conclusion, the Court finds that the measures undertaken by the Polish authorities with a view to recovering the maintenance payments due to the applicants were adequate and sufficient. It follows that the complaints against Poland are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. With regard to Greece

(a) The parties’ submissions

130. The Greek Government argued that the applicants had failed to exhaust the required domestic remedies. They pointed out that the New York Convention did not dispense the applicants from the obligation to undertake action with a view to recovering the maintenance.

131. In respect of the first applicant the Government submitted that he should have filed an individual claim for maintenance against his father directly in Greece. He should also have filed claims for the recognition and enforcement of the Polish judgments in Greece in accordance with Article 905 of the Code of Civil Procedure, the 1979 Agreement and, following Poland’s accession to the EU, in accordance with the Regulation 44/2001/EC.

132. In respect of the second applicant, the Government maintained that he had failed to lodge a cassation appeal against the judgment of the Thessaloniki Court of Appeal of 11 September 2011.

133. Lastly, they submitted that the third applicant should herself have filed a claim in Greece for the recognition and enforcement of the Kraków Regional Court judgment of 23 December 2002, independently of the measures taken by the Greek authorities.

134. The applicants argued that they had exhausted all effective remedies. The maintenance had been awarded by the Polish courts and the applicants had taken all the steps necessary for its recovery. To file identical claims before the Greek courts would only have constituted an impractical multiplication of proceedings.

(b) The Court’s assessment

135. The Court considers that the objections concerning all three applicants are closely linked to the substance of their complaints under Article 6 § 1 of the Convention and should be joined to the merits of the case.

136. The Court further notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The applicants’ submissions

137. The applicants submitted that on account of the inactivity of the Greek authorities in the proceedings instituted under the New York Convention they had not been able to obtain the maintenance payments awarded to them by several judgments of the Polish courts. They pointed to numerous periods of inactivity on the part of the authorities. The Greek authorities had not, for example, provided any information to the Kraków Regional Court for a period of two years and eight months (between November 1993 and July 1996) in respect of the proceedings concerning the first applicant.

2. The Greek Government’s submissions

138. The Greek Government submitted that they had acted diligently.

139. With respect to the first applicant, the Government pointed out that when his request had been received on 5 April 1988, it had been transferred to the competent authority and the defendant had been summoned. However, as the parties had started friendly-settlement negotiations, the authorities had considered that it was not necessary to take any action. Thus, an agreement had been signed by the parties on 3 September 1990 and the Greek authorities had monitored its implementation. They also informed accordingly the Kraków Regional Court.

140. The Government acknowledged that it had refused to proceed to the recognition and enforcement of the judgment of the Kraków District Court issued on 6 January 2004. However, under Article 6 § 3 of the New York Convention, the Polish court had had no jurisdiction to give that judgment. Subsequently, the Greek authorities had recognised the competence of the Polish court on the basis of Article 5 § 2 of the Lugano Convention. In January 2007 the authorities had lodged an action with the Thessaloniki Court of First Instance seeking recognition of the judgment of 6 January 2004. Those proceedings had been discontinued because of the friendly settlement reached between the parties on 21 March 2008. Accordingly, all domestic procedures were pursued without delays attributable to the Greek authorities.

141. With respect to the second applicant, the Government submitted that the enforcement proceedings in respect of the Kraków District Court’s judgment of 6 January 2004 had begun only on 26 June 2008, when the Greek authorities had sent a request to the Kraków Regional Court. Afterwards, the proceedings had been conducted swiftly. An action had been filed on 30 April 2009 and a judgment had been given on 11 December 2009.

142. With respect to the request for recognition lodged by the third applicant on behalf of the second applicant, the Government submitted that the first-instance judgment had been delivered after thirteen months of proceedings and the second-instance judgment ten months later. Several hearings had been adjourned, but always owing to force majeure, and new hearings had been scheduled promptly.

143. With regard to the proceedings concerning the third applicant, the Government submitted that all actions had been taken without any delay. As the whereabouts of the debtor had been unknown, the authorities had lodged an action for recognition of the judgment of 23 December 2002 with the Thessaloniki Court of First Instance. The judgment, favourable to the applicant, had been given two years and six months later. Two hearings had been adjourned because of the need to obtain additional documents or information. Twice the Greek authorities had requested that a new hearing be scheduled. As the debtor had refused to pay, enforcement proceedings had been instituted. Numerous auctions had been organised but there had been no bidders. After consultation with the applicant the authorities had sought to sell the debtor’s two apartments through an open sale. However, this had not been authorised since it was incompatible with the Greek Code of Civil Procedure.

3. The Court’s assessment

144. The Court recalls that the “right to a court” would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the "trial" for the purposes of Article 6 (see, among others, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II).

145. The issue in the present cases concerns the assistance of the Greek authorities with regard to the applicants’ requests for recovery of maintenance. The first applicant in his original request asked the Greek authorities to institute court proceedings with the aim of recovering the maintenance and enforce any judgment that might be given in this connection. Subsequently, the first applicant requested that the Greek authorities enforce judgments of the Polish courts awarding him maintenance. The second and third applicants requested primarily that the Greek authorities enforce judgments given by the Polish courts awarding them maintenance. All requests were filed under the system established by the New York Convention to which Greece and Poland were parties.

146. The Court recalls that a State cannot be held responsible for ineffectiveness of enforcement proceedings which is due to the insolvency of a private debtor. However, the State has a positive obligation to organise a system for the enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see, Fouklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). Therefore, the State’s responsibility concerning enforcement of a judgment in favour of a private party may be engaged if the public authorities involved in the enforcement proceedings fail to act with necessary diligence or hinder the enforcement (see, Romańczyk v. France, no. 7618/05, § 55, 18 November 2010).

147. The Court notes that the New York Convention establishes a system of cooperation between the Contracting Parties in order to overcome practical and legal obstacles to the pursuit of maintenance claims abroad or enforcement of judgments awarding maintenance. Article 1 of the said Convention stipulates that its object is “to facilitate the recovery of maintenance to which a person (...) who is in the territory of one of the Contracting Parties, claims to be entitled from another person (...) who is subject to the jurisdiction of another Contracting Party.” (see paragraph 110 above).

148. The Court recalls that the New York Convention does not absolve the claimant of his obligation to act in parallel with the authorities of the Receiving Agency (the State of the respondent) and to use the existing avenues in domestic law with a view to pursuing a claim or enforcing a judicial decision. However, the New York Convention does not in any way make the assistance of the State of the respondent dependent on any action of the claimant. On the contrary, it results expressly from Article 6 of the New York Convention that when a Contracting Party receives an application it should take, on behalf of the claimant, all appropriate steps for the recovery of maintenance; including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance. Accordingly, the obligation to act does not rest exclusively on the claimant, but equally on the State of the respondent which is under a positive obligation to assist the claimant in the proceedings under the New York Convention (Romańczyk v. France, cited above, § 58).

149. Each Contracting Party is responsible under the New York Convention for the consequences of the obligations undertaken on ratification of that convention, in particular, for the assistance it provides to the creditor in the recovery of maintenance through the appropriate measures, including those foreseen in its domestic law (see, Huc v. Romania and Germany (dec.), no. 7269/05, § 46, 1 December 2009). The Court has already examined cases concerning the application of the New York Convention and applied Article 6 of the Convention to proceedings instituted on the basis of the New York Convention (see, K. v. Italy, no. 38805/97, ECHR 2004‑VIII; Zabawska v. Germany (dec.), no. 49935/99, 3 March 2006; Dinu v. Romania and France, no. 6152/02, 4 November 2008; Huc v. Romania and Germany, cited above; Romańczyk v. France, cited above). It sees no reason to depart from its earlier case-law and concludes that the applicants, having lodged their requests under the New York Convention, were entitled to the assistance of the Greek authorities in recovering the maintenance.

150. As in earlier cases the Court underlines the particular importance of what was at stake for the applicants who have attempted for many years to obtain maintenance to which they claimed to be entitled.

151. Now the Court will examine whether the measures taken by the Greek authorities in the present case with a view to assisting the applicants in the recovery of maintenance were adequate and sufficient (see Romańczyk v. France, cited above, § 62).

(a) The first applicant

152. The Court notes first that the first applicant’s request for recovery of maintenance was received by the Greek authorities on 5 April 1988. He recovered the entirety of the maintenance only at the end of 2008, which is twenty years later.

153. The Government submitted that they had not undertaken any action following the receipt of the request because the parties had been seeking a settlement. They also argued that upon the signature of a provisional settlement the authorities had been monitoring its implementation. However, the Court notes between the date of receipt of the request on 5 April 1988 and the date of a provisional settlement on 3 September 1990 the authorities’ assistance was limited to one unsuccessful attempt to summon the debtor. Furthermore, with regard to the monitoring of the implementation of the settlement the Court notes that the first applicant received the payment of 540,000 drachmas (1,584.74 EUR) only in March 1995, which is four and a half years after the conclusion of the settlement. In addition, the first applicant claimed that the payment was only a part of what was due to him.

154. In the subsequent period the Kraków Regional Court unsuccessfully requested the assistance of the Greek authorities in the recovery of maintenance due to the first applicant. In July 2000 the Greek Ministry refused to proceed with the recognition and enforcement of the Kraków-Śródmieście District Court’s judgment in default of 17 June 1997, citing Article 26 (d) of the 1979 Agreement.

155. In August 2004 the Kraków Regional Court lodged with the Greek Ministry a new request for recovery of maintenance under the New York Convention. It also requested the Greek authorities to recognise and enforce the Kraków-Podgórze District Court’s judgment of 6 January 2004. The Greek Ministry first refused to proceed with this request, citing Article 6 § 3 of the New York Convention; however, sometime in 2005 it agreed to proceed with the request under the Lugano Convention. These proceedings were discontinued following a final settlement reached between the first applicant and the debtor on 21 March 2008. The Court’s task is not to determine whether the Greek authorities’ refusal to proceed to the enforcement of the relevant Polish judgments was justified under the legal instruments they quoted. However, it cannot but note that these refusals led to further delays in the recovery of maintenance claimed by the first applicant.

156. The Court further notes that during certain periods the Greek authorities failed to provide any information to the Polish authorities (for example, November 1993 and July 1996, between May 1998 and July 2000, and between May 2005 and June 2006). On several occasions the Greek authorities responded only after repeated queries from the Kraków Regional Court, or following the intervention of the Polish Embassy in Athens (see paragraphs 11, 14, 27 and 44 above).

157. Having regard to the foregoing the Court concludes that the measures undertaken by the Greek authorities in order to assist the first applicant in the recovery of maintenance were not adequate and sufficient.

158. With regard to the Government’s assertion that the first applicant should have lodged an action for maintenance and claims for the recognition and enforcement of the Polish judgments directly with a Greek court, the Court notes that to impose such a requirement on the applicant would have undermined the purpose of the New York Convention, which is to facilitate the recovery of maintenance. The Court recalls that the first applicant, having lodged his requests under the New York Convention, was entitled to the assistance of the Greek authorities in recovering the maintenance. The New York Convention creates positive obligations for the competent authorities of the State of the debtor which are not conditional upon the action undertaken by the creditor (see Romańczyk, cited above, § 58).

159. It follows that there has been a violation of Article 6 § 1 of the Convention, and the Government’s objection of non-exhaustion of domestic remedies (see paragraph 131 above) must accordingly be rejected.

(b) The second applicant

160. The Court observes that the second applicant’s request on the basis of the New York Convention was transmitted to the Greek authorities on 7 June 2005 and received on 28 July 2005 (see paragraph 62 above). It appears that to date the second applicant has not received any maintenance payments.

161. The Greek Government argued that the enforcement proceedings had started only in June 2008, when the Ministry of Justice sent a letter to the Kraków Regional Court, and that after that date they had been conducted swiftly. The Court finds it difficult to understand how the fact that the Government took concrete legal steps to assist the second applicant almost three years after the reception of the request constitutes an argument that the Greek authorities acted diligently. It appears that the Greek authorities confused the request for recovery of maintenance filed by the second applicant with the similar request filed by the third applicant. It follows that the assistance offered by the Greek authorities to the second applicant in the recovery of maintenance was not adequate and sufficient.

162. In so far as the Government pleaded that the applicant had failed to lodge a cassation appeal against the Thessaloniki Court of Appeal’s judgment of 11 September 2011, the Court notes that these proceedings were instituted directly in Greece by the second applicant. They did not concern the proceedings instituted by the Greek authorities upon his request filed under the New York Convention in which he was entitled to the assistance of the Greek authorities in recovering the maintenance (see also the Court’s findings in respect of the similar objection in paragraph 157 above).

163. The Court therefore concludes that there has been a breach of Article 6 § 1 of the Convention, and that the Government’s objection of non-exhaustion of domestic remedies must be rejected.

(c) The third applicant

164. The Court notes that the third applicant’s request on the basis of the New York Convention was transmitted to the Greek authorities on 18 August 2003. The third applicant has still not recovered any maintenance.

165. In so far as the Greek Government argued that the proceedings had been conducted without undue delay but had not been effective owing to circumstances over which the authorities had no influence (the lack of bidders and the impossibility of organising an open sale), the Court reiterates that it has previously acknowledged that a Contracting Party cannot be held responsible for an ineffective enforcement that is due to the debtor’s insolvency (see Fouklev, cited above, § 84).

166. However, in the present case, the Court has doubts as to whether the Greek authorities did in fact act with necessary diligence. It notes that one year after the transmission of the third applicant’s request the Greek authorities asked the Polish Transmitting Agency for documents which had been already attached to the original request. Furthermore, the Thessaloniki Court of First Instance gave its judgment two and a half years after the claim had been filed (see paragraphs 90 and 97 above). Several hearings were adjourned and the Greek authorities failed to provide the Kraków Regional Court with regular information on developments in the case (see paragraph 95 above). Another year passed between the delivery of the Thessaloniki Court of First Instance’s judgment and its service on the debtor. The enforcement proceedings proved ineffective although the debtor owned a number of properties.

167. In conclusion, the Court finds that the Greek authorities failed to provide the third applicant with adequate and sufficient assistance in recovering the maintenance.

168. With regard to the Government’s assertion that the third applicant should herself have filed a claim in Greece for the recognition and enforcement of the Kraków Regional Court’s judgment of 23 December 2002, the Court dismisses this argument by reference to the findings made above in respect of the similar objection concerning the first applicant (see paragraph 158 above).

169. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention. The Government’s objection on the basis of non-exhaustion of domestic remedies must accordingly be rejected.

II. OTHER ALLEGED VIOLATIONS IN RESPECT OF GREECE

170. The applicants also alleged that the failure to carry out effective enforcement proceedings on the part of the Greek authorities had deprived them of their financial entitlement, which had been granted by several court judgments, and this constituted deprivation of property for the purposes of Article 1 of Protocol No. 1 to the Convention. They also complained under Article 8 of the Convention that by failing to assist them effectively in the recovery of the maintenance payments the Polish and Greek authorities had deprived them of a source of income which constituted a financial basis for their family life.

171. The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible.

172. However, having regard to the reasons which led the Court to find a violation of Article 6 § 1 of the Convention, the Court finds that the applicants’ complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 do not require a separate examination.

III. OTHER ALLEGED VIOLATIONS IN RESPECT OF POLAND

173. The applicants made similar complaints under Article 1 of Protocol No. 1 and Article 8 of the Convention against Poland.

174. The Court has found above that the applicants’ complaints under Article 6 of the Convention concerning the alleged failure of the Polish authorities to provide them with necessary assistance in the recovery of maintenance were inadmissible as manifestly ill-founded (see paragraph 129 above). It notes that the applicants’ complaints under Article 1 of Protocol No. 1 and Article 8 of the Convention are also based on the assertion that the Polish authorities failed to assist them effectively in the recovery of the maintenance payments. Accordingly, these complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

175. In addition, the first applicant complained, without invoking any specific provision of the Convention, that he had had no effective remedy against the excessive length of the proceedings, in that the Kraków Court of Appeal had unfairly rejected on formal grounds his complaint, filed under the 2004 Act. This complaint was communicated under Article 13 of the Convention. In view of its finding that the complaint under Article 6 against Poland was manifestly ill-founded, the Court finds that the complaint under Article 13 is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

176. 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

177. The first applicant claimed 74,000 euros (EUR) in respect of pecuniary damage (this amount representing the unpaid maintenance) and EUR 60,000 in respect of non-pecuniary damage.

178. The second applicant requested EUR 112,000 in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary damage.

179. The third applicant claimed EUR 67,000 in respect of pecuniary damage and EUR 60,000 in respect of non-pecuniary damage.

180. The Greek Government argued that the claims for pecuniary damage were not causally linked with the alleged violations. With regard to the claims for non-pecuniary they argued that these were excessive and unjustified. Alternatively, the Greek Government invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.

181. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects these claims. However, the Court considers that the applicants must have sustained non‑pecuniary damage. The Court notes that it has found a violation of Article 6 § 1 in respect of Greece in that the Greek authorities failed to assist all three applicants in the recovery of the maintenance due to them. Ruling on equitable basis, it awards EUR 9,600 to the first applicant, EUR 4,800 to the second applicant, and EUR 4,000 to the third applicant in respect of non-pecuniary damage, plus any tax that may be chargeable on these amounts.

B. Costs and expenses

182. The applicants also claimed 95,000 Polish zlotys (PLN) (approx. EUR 23,000) for the costs and expenses incurred in the proceedings before the Greek courts. This sum covers expenses relating to plane tickets to Greece, hotel bills, translations, and lawyers’ fees in the proceedings before the domestic courts.

183. The applicants’ lawyer claimed PLN 32,000 (approx. EUR 8,000) for the costs of legal representation before the Court, which sum corresponds to eighty hours of work. He submitted that the applicants were due to pay this amount under the contract signed with him.

184. The Greek Government contested these claims. They noted that the applicants produced no documents supporting their claim for costs and expenses.

185. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 850 for the proceedings before the Court.

C. Default interest

186. The Court considers it appropriate that the default interest rate 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,

1. Joins to the merits, the Greek Government’s preliminary objection concerning exhaustion of domestic remedies as regards the complaints under Article 6 § 1 of the Convention in respect of all applicants and rejects it;

2. Declares the complaints against Greece in respect of all applicants admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all applicants;

4. Holds that there is no need to examine separately the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention;

5. Holds

(a) that the Greek Government 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, the following amounts:

(i) EUR 9,600 (nine thousand six hundred euros) to the first applicant, EUR 4,800 (four thousand eight hundred euros) to the second applicant, and EUR 4,000 (four thousand euros) to the third applicant in respect of non-pecuniary damage plus any tax that may be chargeable to the applicants on these amounts;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 7 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy