FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20947/05
by Halina GIETER-NIKIEL
against Poland
The European Court of Human Rights (Fourth Section), sitting on 29 June 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 5 May 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Halina Gieter-Nikiel, is a Polish national who was born in 1961 and lives in Wrocław. She was represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wroclaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wolasiewicz of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owns a pharmacy in Wrocław. On 3 March 1997 she entered into an agreement with the Wrocław District Railways Health Service which, at that time, constituted a part of the State-owned Polish Railways company. Under the terms of the agreement the applicant undertook to supply drugs, free of charge, on prescriptions issued by the doctors of the railway health service, and the railway health service agreed to reimburse her within three months. In accordance with the relevant regulations the reimbursement was to be effected by the State-owned “Polish Railways” company.
On 2 and 30 November and 31 December 1998 the applicant issued three VAT invoices to the Railways Health Service which amounted, in total, to 54.725,33 Polish zlotys (PLN).
On 30 November 1998, following reforms of the public health service, the Minister of Transport established a new public health service body with an independent legal personality, in place of the former Wrocław District Railways Health Service. This new body assumed all the obligations of its predecessor. However, it did not receive funds from the Polish Railways company to reimburse the expenses incurred by the pharmacies, including that owned by the applicant. Despite having sent several reminders, the applicant did not receive the reimbursement to which she was entitled under the 1997 agreement.
On 26 May 2000 the applicant filed a claim against the “District Railways Health Service” (the new body) with the Wrocław-Fabryczna District Court, seeking reimbursement, with interest, of the amount in question.
On 12 September 2000 the District Court found for the applicant. It issued an order for payment (nakaz zapłaty) according to which the defendant was to pay the applicant PLN 54.725,33 with statutory interest, together with court fees and the applicant's costs. The defendant appealed against that decision.
On 23 October 2001 the Wrocław Regional Court upheld the order for payment. The defendant lodged an appeal.
On 26 April 2002 the Wrocław Court of Appeal reversed the Regional Court's judgment. It quashed the order for payment and dismissed the applicant's claim. The court also ordered the applicant to pay the defendant's costs.
The applicant lodged an appeal against that judgment with the Supreme Court.
On 11 June 2003 the Supreme Court amended the Court of Appeal's judgment in the applicant's favour. It dismissed the defendant's appeal against the first-instance judgment and ordered it to pay the applicant's costs. Consequently, the defendant was obliged to pay the amount in question − with interest. The Supreme Court held that the defendant had been jointly and severally liable together with the Polish Railways company for the obligations arising under the contract entered into with the applicant.
On 7 August 2003 the court appended the writ of enforcement to the Supreme Court's judgment.
On 27 August 2003 the applicant applied to the bailiff of the Wrocław Śródmieście District Court (District III) to institute enforcement proceedings against the defendant. The enforcement was only to be made against movable property and the defendant's bank accounts. On 3 October 2003, the enforcement order was transferred to the bailiff responsible for District IX. On 29 October 2003 the bailiff instituted enforcement proceedings. In the course of these proceedings the bailiff attached monies due to the defendant. However, following intervention by the authorities, the bailiff released those assets.
On 16 November 2004 the defendant informed the applicant that it was unable to pay its debt to her because it had not received funds from the Polish Railways company with whom it was currently involved in a lawsuit to recover those funds.
On 7 January 2005 the bailiff discontinued the enforcement proceedings on the ground that the debtor had no immovable property or bank deposits which could have been attached with a view to enforcing the judgment. The value of the debtor's movable property would not even cover the costs of the enforcement proceedings.
On 27 October 2005 the applicant applied once again to the bailiff of the Wrocław Śródmieście District Court to have enforcement proceedings instituted against the defendant. On 15 February 2006 the applicant lodged an application for enforcement proceedings against the defendant's real estate. Subsequently, the bailiff established that the defendant enjoyed a right of perpetual usufruct in respect of two pieces of land and the ownership of two buildings situated on these plots.
On 13 October 2006 the applicant recovered the total amount owing (with interest as well as with and costs of court and enforcement proceedings) after the Dolnośląski Governor had restructured the defendant's debts.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention that there had been a breach of her right of access to a court on account of the ineffective enforcement of the final judgment given in her favour.
2. The applicant also alleged a breach of Article 1 of Protocol No. 1 to the Convention. She submitted that the authorities had been responsible for the non-enforcement of the judgment in her case by failing to provide sufficient funds to the defendant.
THE LAW
The applicant complained about the delay in enforcement of the Supreme Court's judgment of 11 June 2003, given in her favour, in breach of Article 6 § 1 of the Convention and Article 1 of Protocol No.1, which read in so far as relevant as follows:
Article 6
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The parties' submissions
The Government submitted, in the first place, that the applicant could no longer claim to be a victim of the violation complained of as, in the meantime, she had recovered the amount due, together with interest and the costs of the court and enforcement proceedings. They further noted that, in the course of the second set of proceedings, the bailiff established that the defendant enjoyed the right of perpetual usufruct in respect of two pieces of land. The enforcement proceedings were completed because the Governor restructured the defendant's debts and recovered he total amount due.
The Government further submitted that the compensation had been paid to the applicant before the present application was communicated to the parties. Consequently, contrary to the case of Burdov (Burdov v. Russia, no. 59498/00, ECHR 2002‑III) the applicant's claims were satisfied before the notice of the application was brought to the Government's knowledge.
The applicant replied that her claims had indeed been satisfied on 13 October 2006. However, she continued to be a victim owing to the delay of three years and two months between the final judgment and the date when her claim was finally satisfied. In addition, she pointed out that the sum was paid directly by the debtor into her bank account, proving that the bailiff had been unable to enforce the judgment.
Lastly, she submitted that she suffered non-pecuniary damage caused by the prolonged non-enforcement of her claim and also pecuniary damage because she was unable to develop her pharmacy business.
B. The Court's assessment.
At the outset, the Court observes, and this is not contested by the parties, that the judgment in question was executed in full.
The Court further reiterates that a delay in the execution of a judgment may be justified in particular circumstances (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III, Kukalo v. Russia, no. 63995/00, §§ 51‑52, 3 November 2005).
The Court notes that the judgment in favour of the applicant became enforceable on 7 August 2003 when according to its terms, the District Railways Health Service was required to pay the applicant PLN 54.725,33 with interest, as well as the costs of the proceedings. The Court further observes that, on 7 January 2005, the bailiff discontinued the proceedings on the ground that the debtor had no property which could have been attached. The applicant's claims were subsequently satisfied on 13 October 2006.
In this respect the Court observes that applicant's first application for enforcement concerned only the defendant's movable property. As late as 15 February 2006, the applicant lodged an application for enforcement against the defendant's real estate. Her claim was eventually satisfied eight months later, on 13 October 2006.
The Court notes that the proceedings at issue were factually complex, as they were directed at obtaining reimbursement from a new legal entity. In addition, the applicant's claim was initially made against movable property (which the defendant did not possess) and only subsequently against the immovable property as well.
Under these circumstances, the Court is of the opinion that in the present case the State has done what could reasonably have been expected of it in order to enforce the judgments of 6 October 1998 and 28 July 1999 (see Fociac v. Romania, no. 2577/02, § 78, 3 February 2005).
Consequently, in view of the particular circumstances of the present case, the period of enforcement, which lasted for about three years and two months, does not appear to have been so long as to impair the essence of the applicant's right to a court or to represent a disproportionate interference with his property rights.
It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy