CASE OF TYRKA v. POLAND

FIRST SECTION

CASE OF TYRKA v. POLAND

(Application no. 37734/14)

JUDGMENT

STRASBOURG

6 June 2019

This judgment is final but it may be subject to editorial revision.

In the case of Tyrka v. Poland,

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

Armen Harutyunyan, President,
Krzysztof Wojtyczek,
Pere Pastor Vilanova, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 14 May 2019,

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

PROCEDURE

1.  The case originated in an application (no. 37734/14) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Mariola Tyrka (“the applicant”), on 12 May 2014.

2.  The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

3.  On 7 July 2015 notice of the application was given to the Government.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1970 and lives in Czarnowo.Civil proceedings

5.  On 29 January 2010 the Szczecin Social Security Board (“the ZUS”) dismissed an application by the applicant for a disability pension on account of a total incapacity to work. The ZUS based its decision on a medical opinion which had found the applicant fit to work. The applicant appealed to a court.

6.  On 8 April 2010 the Szczecin Regional Court decided to appoint experts on neurology, orthopaedics and psychiatry and requested that they prepare opinions on the applicant’s state of health. The expert opinions were submitted to the court on 12 July 2010. According to the opinions the applicant was fit to work.

7.  On 16 July 2010 the court dismissed an application by the applicant to appoint a legal aid lawyer to represent her. The applicant appointed her husband to represent her in the proceedings.

8.  The applicant’s representative submitted comments on the expert’s opinions on 3 August 2010 and, afterwards, several applications for the case to be examined by another court. Some of the representative’s letters to the court contained insulting expressions and he was advised that such expressions could amount to contempt of court. On 28 March 2011 the applicant’s representative also challenged the impartiality of all the judges of the Szczecin Regional Court.

9.  On 18 April 2011 the court asked the experts to supplement their opinions but they upheld their earlier conclusions.

10.  On 31 May 2011 the court ordered that the applicant be examined by doctors again. Although at first she refused the examination, it did take place. In July 2011 a further expert opinion was prepared. It did not differ in its conclusions from the earlier ones.

11.  In August 2011 the court sent the case file to an expert on psychiatry who submitted his supplementary opinion in September 2011. The expert suggested that a further opinion on the applicant’s mental health should be obtained. The court ordered the preparation of such an opinion. It appears that the applicant refused to undergo an examination at a psychiatric hospital.

12.  On 19 October 2011 the applicant’s representative was punished for contempt of court in connection with his insulting letter to the court. He was fined 5,000 Polish zlotys (PLN). The applicant’s representative appealed and his appeal was initially rejected for formal reasons but was ultimately admitted for examination on its merits. On 28 November 2012 the Szczecin Court of Appeal quashed the decision of 19 October 2011, finding that insulting remarks contained in a letter to a court should not be regarded as contempt of court. The applicant in the meantime withdrew power of attorney from her husband and started representing herself. She also repeated her application for a legal aid lawyer to be appointed.

13.  On 24 June 2013 the court sent the case file to another expert. The opinion was prepared within a month.

14.  Subsequently, the court dealt with various applications by the applicant to have a legal aid lawyer appointed, which were ultimately dismissed on 26 March 2015. The applicant lodged several procedural applications with the court, in particular challenging experts. The applicant also challenged the judges again; the presiding judge was changed following a decision of the president of the court on 20 May 2015.

15.  On 22 May 2015 the Szczecin Regional Court gave a judgment in which it dismissed the applicant’s appeal against the ZUS decision of 29 January 2010. The applicant appealed.

16.  On 27 April 2016 the applicant submitted an application challenging all the judges of the Court of Appeal. In July 2016 the court granted her request for a legal aid lawyer and one was appointed to represent the applicant before the Supreme Court.

17.  On 10 January 2017 the Supreme Court dismissed her application challenging all the judges of the Szczecin Court of Appeal.

18.  The case file was returned to the Szczecin Court of Appeal for examination. The court ordered further expert opinions on the subjects of psychiatry and occupational medicine. The applicant refused to undergo a medical examination. The expert opinions were finally prepared on 31 August 2017.

19.  On 27 February 2018 the Szczecin Court of Appeal dismissed the applicant’s appeal and upheld the Regional Court’s judgment.

20.  On 25 April 2018 the court granted an application by the applicant for a legal aid lawyer for the purpose of lodging a cassation appeal.

21.  A legal aid lawyer was appointed to represent her; however, the applicant requested the appointment of another lawyer. Afterwards she appointed a different lawyer of her choice and revoked power of attorney for her legal aid lawyer.

22.  The applicant’s lawyer was asked to remedy some formal shortcomings in her cassation appeal and to pay a fee.

23.  On 17 August 2018 the cassation appeal was sent to the Supreme Court.

24.  The proceedings are pending.Proceedings under the 2004 Act

25.  The applicant lodged several complaints under the Law of 17 June 2004 on complaints about breaches of the right to have a case examined, in an investigation conducted or supervised by a prosecutor and in judicial proceedings, without undue delay (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki - “the 2004 Act”).

26.  On 4 January 2013, 17 February 2014 and 29 June 2015 the Szczecin Court of Appeal dismissed her complaints. The court, relying on Convention principles, considered that, taking into account the complexity of the case, the length of the proceedings had not been excessive. In particular, in the second of the above-mentioned decisions, the court agreed that the proceedings in the case had concentrated on the examination of the applicant’s applications for legal aid and her applications challenging the experts and judges. The applicant and her representative had been very active in lodging numerous unfounded applications and appeals, including seeking to appeal after they had been instructed that no further appeal was available under the law. The large number of those applications had made it virtually impossible to deal with the merits of the case.

27.  The applicant lodged an appeal against the decision of 17 February 2014, although no such remedy was available under the law. Her appeal and a further request to reopen the proceedings were rejected by the Szczecin Court of Appeal in May 2014.

28.  Some other complaints about the length of the proceedings were rejected as they had been lodged less than twelve months following a previous decision under the 2004 Act. On 26 February 2018 the Szczecin Court of Appeal rejected the applicant’s most recent complaint about the length of the proceedings before the Court of Appeal as it had not been lodged by a lawyer.RELEVANT DOMESTIC LAW AND PRACTICE

29.  A detailed description of the relevant domestic law and practice concerning remedies for excessive length of judicial proceedings – in particular, the applicable provisions of the 2004 Act – is set out in the Court’s decisions in the cases of Charzyński v.Poland ((dec.), no. 15212/03, §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland ((dec.), no. 11215/02, ECHR 2005-VIII), and in its judgments in the cases of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V (extracts)) and Rutkowski and Others v. Poland (nos. 72287/10 and 2 others, §§ 75-107, 7 July 2015).

THE LAW  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

30.  The applicant complained that the length of the proceedings in her case had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

31.  The Government contested that argument.

32.  The period to be taken into consideration began on 29 January 2010, when the applicant appealed against a ruling of the ZUS to a court, and has not yet ended. It has thus lasted eight years and ten months at two levels of jurisdiction so far.Admissibility

33.  The Court notes that this complaint 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.Merits

34.  The applicant argued that the length of the proceedings had clearly been in breach of the “reasonable time” requirement. The applicant submitted that her disability pension had been withdrawn from her although her health had not improved. The current proceedings were aimed at reinstating the disability pension but they had lasted almost nine years so far. The proceedings were not complex and the need for expert evidence had been known from the beginning and it should have been secured in a timely manner. Moreover, since 2013 no new medical expert opinion had been sought to assess her current state of health. In general there had been many periods of inactivity for which the domestic courts were responsible. The applicant underlined that she had not been represented by a lawyer and she had been in vain attempting to obtain justice.

35.  The Government submitted that the proceedings had been complex as it had been necessary to obtain expert evidence from several fields of medicine. Moreover, the overall length of the proceedings had been caused by the applicant’s conduct. The applicant had submitted countless pleadings and various procedural applications which had had to be dealt with by the courts. In particular, the applicant had submitted unfounded challenges against judges and experts, and appeals, including some not available under the law. Some of her applications had had no legal basis, such as a request that her case be examined by a “public institute from another EU country”. Such activity on the part of the applicant had clearly led to the protraction of the proceedings as the courts had been unable to hold hearings at reasonable intervals. For instance, in 2014 the court had held no hearing as it had had to deal with the applicant’s multiple procedural applications. The applicant had further contributed to the overall length of the proceedings by refusing to undergo medical examinations. In summary, the Government contended that there had been no delays attributable to the domestic authorities.

36.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and taking into account the criteria laid down in its case‑law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, account must also be taken of what is at stake for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI, and for further case-law references, see Rutkowski and Others, cited above, §§ 126‑28).

37.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Rutkowski and Others, cited above).

38.  The Court accepts of the Government’s argument that the applicant contributed to the overall length of the proceedings. It is clear that she did lodge a great number of procedural applications concerning, in particular, legal aid, and challenging experts and judges. She repeated those applications even after they had been rejected and on many occasions lodged further appeals which were not available under the law. Some of her applications were clearly confused and showed the applicant’s distrust of both the experts and the judges. In this regard, the Court reiterates that while the applicant is entitled to make use of her procedural rights, she must bear the consequences when that leads to delays (see Malicka-Wąsowska v. Poland (dec.), no. 41413/98, 5 April 2001).

39.  The Court notes, however, that the present proceedings were of significant importance to the applicant as they concerned a right to a disability pension. The applicant claimed that she was unfit to work, with many medical problems, and that she had been left without any financial support from the State. In the proceedings the applicant was not represented by a lawyer and she apparently believed that the procedural steps that she had taken would secure her a positive outcome for the case (see paragraphs 7 and 34 above).

40.  As regards the activity of the domestic authorities the Court notes that for several years the courts concentrated solely on dealing with the applicant’s procedural applications regarding legal aid and various challenges made against the experts and judges. In particular, between June 2013 and May 2015 there appears to have been no activity on the part of the Szczecin Regional Court regarding the merits of the case. Similarly, at an earlier stage, between September 2011 and June 2013 there was no activity on the part of the court while the applicant was apparently avoiding a psychiatric examination. In total, the first-instance court dealt with the case for over five years, during which it limited its actions to requesting new expert opinions every few years. Afterwards, the new presiding judge appointed by the president of the court gave judgment within two days of appointment (see paragraphs 14 and 15 above).

The Court also notes that the Szczecin Court of Appeal took almost three years to examine the case. For the first two years the case lay dormant as the domestic authorities dealt with the applicant’s challenge against all the judges of the Court of Appeal, which was dismissed by the Supreme Court on 10 January 2017.

41.  In summary, while the applicant’s procedural activity undoubtedly had an impact on the overall length of the proceedings, the Court is of the view that she cannot bear full responsibility for the delay (see Gęsiarz v. Poland, no. 9446/02, § 52, 18 May 2004). The procedural activity of the applicant should not absolve the domestic courts from dealing with the merits of the case and cannot justify the overall period of almost nine years that it has taken for the domestic courts to examine the applicant’s request for a disability pension.

42.  Finally, the Court notes that the domestic courts on many occasions requested new expert medical evidence. It is not clear why the opinion of April 2010 had to be supplemented one year later (see paragraphs 6 and 9 above). Moreover, a further two years later, in 2013, the court ordered yet another expert opinion. In this connection, the Court would reiterate that States are responsible for delays attributable to the conduct of their judicial or other authorities. They are also responsible for delays in the presentation of the reports and opinions of court‑appointed experts. A State may be found liable not only for delay in the handling of a particular case, but also for failure to increase resources in response to a backlog of cases, or for structural deficiencies in its judicial system that cause delays. Tackling the problem of unreasonable delay in judicial proceedings may thus require the State to take a range of legislative, organisational budgetary and other measures (see Rutkowski and Others, cited above, § 128).

43.  Having regard to the above considerations, the Court finds that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

44.  The applicant further submitted that she had no effective domestic remedy in respect of the protracted length of proceedings in her case. She relied on Article 13 of the Convention, which reads:

“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.”

45.  The Government contested that there had been a breach of this provision of the Convention.

46.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła, cited above, §§ 154 et seq.).

47.  While the subsidiarity principle underlying the Convention system requires the Contracting States to introduce a mechanism addressing complaints about the excessive length of proceedings within the national legal system, they are afforded – subject to compliance with the requirements of the Convention – some discretion as to the manner in which they provide individuals with the relief required by Article 13 and thus conform to their Convention obligations under that provision.

48.  The Court further reiterates that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, for example, Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006; Figiel v. Poland (no. 2), no. 38206/05, § 33, 16 September 2008; and Baszczyński v. Poland (dec.), no. 77103/13, § 51, 12 December 2017).

49.  Having regard to its finding in respect of Article 6 § 1 of the Convention and the fact that the applicant had the opportunity to raise complaints under the 2004 Act, and made use of that opportunity on several occasions, the Court concludes that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION

50.  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.”Damage

51.  The applicant claimed approximately PLN 57,000 in respect of pecuniary damage and PLN 50,000 in respect of non-pecuniary damage.

52.  The Government contested the claim.

53.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant 2,500 euros (EUR) in respect of non-pecuniary damage.Costs and expenses

54.  The applicant did not make any claim for costs and expenses incurred before the domestic courts or the Court.Default interest

55.  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,Declares the complaints concerning the unreasonable length of the proceedings admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Renata DegenerArmen Harutyunyan
Deputy RegistrarPresident

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