CASE OF WIERCIGROCH v. POLAND

FOURTH SECTION

CASE OF WIERCIGROCH v. POLAND

(Application no. 14580/02)

JUDGMENT

STRASBOURG 

5 December 2006

FINAL

05/03/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Wiercigroch v. Poland,

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

SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,

Having deliberated in private on 14 November 2006,

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

PROCEDURE

1. The case originated in an application (no. 14580/02) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr J. Wiercigroch (“the applicant”).

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

3. On 9 February 2006 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1945 and lives in Bestwina.

5. On 18 April 1991 an action was brought before the Bielsko-Biała District Court in which certain claimants requested the determination of title to land. The applicant was one of the defendants in the proceedings. He requested the court to dismiss the action, claiming that he had title to the disputed land.

6. On an unknown date the court decided to adjourn a hearing until information from the land and mortgage register could be provided.

7. At a hearing of 27 October 1991 the court decided to conduct an on‑site inspection.

8. On 18 October 1991 the applicant requested the exclusion of the judge from the case. On 10 February 1992 the court refused the applicant’s request.

9. On 11 May 1992 the applicant requested that the proceedings be stayed pending the completion of criminal proceedings instituted against his neighbours, who, according to the Government’s observations, had been charged with the offence of “distortion”.

10. A hearing fixed for 13 May 1992 was adjourned.

11. On 18 November 1992 the court refused to stay the proceedings.

12. On 28 May 1992 the applicant requested the judge’s exclusion from the case. On 6 November 1992 the court rejected the applicant’s request.

13. On an unknown date the applicant requested the exclusion of all judges on the bench from hearing the case. On 6 November 1992 the court rejected the applicant’s request.

14. At a hearing on 1 June 1993 the court ordered an expert opinion and an on-site inspection. The inspection was conducted on 16 June 1993 and the expert opinion was submitted on 20 December 1993.

15. At a hearing on 22 March 1994 the court requested the expert to supplement his opinion within a one-month time-limit.

16. The next hearing was adjourned owing to the failure of the expert to comply with the court order.

17. A hearing fixed for 24 May 1994 was adjourned and the claimant was ordered to submit further documentation.

18. On 31 August 1994 the court stayed the proceedings owing to the parties’ failure to comply with court orders.

19. On an unknown date the claimant requested the court to resume the proceedings. The court refused the claimant’s request as it had been lodged outside the time-limit.

20. On 15 December 1994 the court ordered another expert opinion.

On 12 May 1995 the court decided to resume the proceedings and to conduct another on-site inspection.

21. On 1 June 1995 the applicant applied to the court to have seven more witnesses examined.

22. On 2 June 1995 an expert opinion was submitted.

23. At a hearing on 4 October 1995 the parties were ordered to submit further documentation.

24. On 10 October 1995 the Bielsko-Biała District Court gave a judgment by which it found that one of the claimants was the owner of the land in question. On 27 December 1995 the applicant appealed to the Bielsko-Biała Regional Court. On 16 February 1996 he requested the judge’s exclusion from the case. He also applied to the court to have another five witnesses examined.

25. On 26 February 1996 the court rejected the applicant’s requests.

26. On 12 March 1996 the Bielsko-Biała Regional Court quashed the judgment of 10 October 1995 and referred the case back.

27. On 5 June 1996 a hearing was held before the Bielsko-Biała District Court.

28. On 21 August 1996 the court conducted an on-site inspection.

29. On 22 August 1996 the proceedings were stayed as the claimant had died and his successors had to be identified.

30. On 21 January 1997 another hearing was held.

Subsequently, the applicant requested the court to exclude the judge from the case; he also applied to the court to have additional witnesses examined.

31. On 17 February 1997 the court excluded the judge from the case.

32. Subsequent hearings were scheduled for 6 May 1997 (adjourned owing to the absence of all witnesses), 17 June 1996, 7 July 1997, 21 August 1997 (adjourned), 9 September 1997, 2 October 1997, 4 November 1997, 11 December 1997, 10 January 1998 and 10 February 1998.

33. On 24 February 1998 the Bielsko-Biała District Court gave a judgment by which it granted property rights over the disputed land to the claimant. On 8 April 1998 the applicant appealed.

34. On 11 August 1998 the Bielsko-Biała Regional Court dismissed the applicant’s appeal. On 23 September 1998 the applicant lodged a cassation appeal with the Supreme Court. In his cassation appeal he contested inter alia the impartiality of the judges who had ruled on his case.

35. On 5 January 2001 the Supreme Court dismissed the applicant’s cassation appeal. In particular, it did not find anything to suggest a lack of impartiality on the part of the judges.

II. RELEVANT DOMESTIC LAW AND PRACTICE [1]

36. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.

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

THE LAW

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

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

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

39. The Government contested that argument.

40. The proceedings began on 18 April 1991 and ended on 5 January 2001, thus lasting 9 years, 8 months and 21 days. The period to be taken into consideration began only on 1 May 1993 when the recognition by Poland of the right of individual petition took effect. It thus lasted 7 years, 8 months and 8 days for three levels of jurisdiction. However, in assessing the reasonableness of the time that elapsed after 1 May 1993, account must be taken of the state of proceedings at the time.

A. Admissibility

41. The Government submitted that the applicant had not exhausted remedies available under Polish law. They maintained that from 17 September 2004 when the 2004 Act had come into force, the applicant had the possibility of lodging with the Polish civil courts a claim for compensation for damage caused by the excessive length of proceedings under Article 417 of the Civil Code, read together with section 16 of the 2004 Act. They noted that the three-year limitation period for the purposes of a compensation claim in tort based on the excessive length of proceedings could run from a date later than the date on which a final decision in such proceedings had been given.

42. The applicant did not address the Government’s arguments.

43. The Court notes that the arguments raised by the Government are the same as those already examined and rejected by the Court in previous cases against Poland (see Małasiewicz v. Poland, no. 22072/02, §§ 32-34, 14 October 2003; Ratajczyk v. Poland (dec.), 11215/02, 31 May 2005; and Barszcz v Poland, no. 71152/01, 30 May 2006) and the Government have not submitted any new elements which would lead it to depart from its previous findings.

44. The Government further argued that the possibility of lodging a claim for compensation for damage caused by the excessive length of proceedings under Article 417 of the Civil Code had existed in Polish law even before the entry into force of the 2004 Act, namely since the judgment of the Constitutional Court of 4 December 2001.

45. The applicant did not address the Government’s arguments.

46. The Court notes that it has already examined whether after 18 December 2001 and prior to the entry into force of the Law of 17 June 2004 a compensation claim in tort as provided for by Polish civil law was an effective remedy in respect of complaints about the length of proceedings. It held that no evidence of any judicial practice had been provided to show that a claim for compensation based on Article 417 of the Civil Code had ever been successful before the domestic courts (see Skawińska v. Poland (dec.), no. 42096/98, 4 March 2003, and Małasiewicz v. Poland, no. 22072/02, 14 October 2003). As the Government have failed to submit any new arguments which would cast doubt on its conclusions in those cases, the Court will abide by its previous findings.

47. It follows that the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.

48. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

49. The Government submitted that although the case had not been complex, the establishment of the facts had been time‑consuming. The Government emphasised that twenty eight witnesses had been examined and two expert opinions had been submitted.

50. The applicant did not address this issue.

51. The Government were of the opinion that the interests of the applicant were of a purely pecuniary nature.

52. The applicant did not address this issue.

53. The Government observed that, as regards the conduct of the authorities, the court had conducted comprehensive evidence proceedings.

54. The applicant did not address the Government’s argument.

55. The Government maintained that the applicant had contributed to the length of the proceedings as he had not provided the court with precise information and had lodged several requests for the exclusion of judges from the case. In addition, the applicant had requested the examination of new witnesses on many occasions. The Government further noted that the claimant had also significantly contributed to the length of the proceedings.

56. The applicant did not address this issue.

57. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Kusmierek v. Poland, no. 10675/02, judgment of 21 September 2004, § 62; and Zynger v. Poland, no. 66096/01, judgment of 13 July 2004, § 45).

58. The Court notes that the proceedings were not complex, as was admitted by the Government. It further notes that although the applicant lodged several requests for the exclusion of judges from the case and to have additional witnesses examined, which inevitably contributed to the length of proceedings, he did so in the exercise of his procedural rights. Moreover, it is to be noted that on one occasion his request for the exclusion of a judge was successful.

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

60. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

61. The applicant further complained that the length of the proceedings complained of had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1.

62. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

63. Having regard to its finding under Article 6 § 1 (see paragraph 60 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23).

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION (LACK OF IMPARTIALITY OF THE COURT)

64. The applicant lastly complained that the courts dealing with his case had not been impartial as they had favoured the other party.

65. The Court notes that there is nothing in the case file that would suggest that the judges deciding on the case lacked impartiality. The courts’ refusals to exclude judges from dealing with the case were not arbitrary or unreasonable. The issue of the alleged lack of impartiality on the part of judges was raised by the applicant in his cassation appeal. In its judgment of 5 January 2001 the Supreme Court thoroughly examined the applicant’s allegations and did not find that there was a lack of impartiality on the part of any of the judges.

66. It follows that this complaint is inadmissible as being manifestly ill‑founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

67. 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

68. The applicant claimed 7 euros (EUR) per square metre of his land in respect of pecuniary damage and claimed compensation in respect of non-pecuniary damage, not specifying its amount and thus leaving this matter to the Court’s discretion.

69. The Government contested the claim for pecuniary damage as being exorbitant and manifestly ill-founded.

70. 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 EUR 1,800 in respect of non-pecuniary damage.

B. Costs and expenses

71. The applicant also claimed EUR 5,064 for the costs and expenses incurred before the domestic courts and the Court.

72. The Government did not express an opinion on the matter.

73. The Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 100 under this head.

C. Default interest

74. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints concerning the excessive length of the proceedings and its impact on his peaceful enjoyment of his possessions admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that it is not necessary to examine separately the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention: (i) EUR 1,800 (one thousand eight hundred euros) in respect of non-pecuniary damage, (ii) EUR 100 (one hundred euros) in respect of costs and expenses, (iii) the above sums to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

T.L. EarlyNicolas Bratza
RegistrarPresident

[1] For a more detailed presentation of the relevant domestic law see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005; Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005.

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