FOURTH SECTION
DECISION
Application no. 51542/09
by Stefan and Zofia JAKUBISIAK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 29 November 2011 as a Committee composed of:
George Nicolaou, President,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 August 2009,
Having regard to the declaration submitted by the respondent Government on 27 June 2011 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Stefan Jakubisiak and Ms Zofia Jakubisiak, are Polish nationals who were born in 1931 and 1937, respectively, and live in Kołobrzeg. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Main proceedings
3. On 6 August 2001 a certain Z.G. sued the applicants for payment.
4. On 27 November 2003 the Koszalin Regional Court (Sąd Okręgowy) awarded Z.G.’s claims in their entirety. The applicants appealed.
5. On 15 June 2005 the Gdańsk Court of Appeal (Sąd Apelacyjny) partly changed the first-instance judgment, reducing the award to PLN 18,375, and dismissed the remainder of Z.G.’s claims. The judgment became final in respect of the awarded sum and Z.G. filed a cassation appeal in respect of the remainder of her claims.
6. On 28 November 2006 the Supreme Court (Sąd Najwyższy) quashed the challenged part of the appellate judgment and remitted the case.
7. On 30 August 2007 the Gdańsk Court of Appeal quashed the relevant part of the first-instance judgment and remitted the case to the Koszalin Regional Court.
8. The proceedings with regard to the remainder of Z.G.’s claims are currently pending before the Koszalin Regional Court.
2. Proceedings under the 2004 Act
(a) First complaint under the 2004 Act
9. On an unspecified date in 2007 the applicants filed with the Supreme Court a complaint under 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”). They sought a finding that the length of the proceedings had been excessive and claimed compensation in the amount of PLN 10,000.
10. On 5 June 2007 the Supreme Court rejected their complaint on formal grounds, holding that it had been insufficiently substantiated.
(b) Second complaint under the 2004 Act
11. On an unspecified date in 2008 the applicants filed another complaint under the 2004 Act.
12. On 24 September 2008 the Szczecin Court of Appeal dismissed their complaint. The court took into account only the period of the proceedings after 30 August 2007, the date on which the Gdańsk Court of Appeal had remitted the case to the Koszalin Regional Court for re-examination. It considered that, in the analysed period, the Regional Court had conducted the proceedings in a diligent and expeditious manner. The Court of Appeal also observed that the applicants themselves had clearly contributed to the overall length of the proceedings, in particular due to their frequent requests for the appointment of a different legal-aid lawyer or to have the proceedings stayed. Consequently, the court refused to award them any compensation.
(c) Third complaint under the 2004 Act
13. On 13 October 2009 the applicants filed a third complaint under the 2004 Act, alleging excessive length of the impugned proceedings and claiming compensation.
14. On 11 December 2009 the Szczecin Court of Appeal dismissed their complaint. It did not take into account the period of the proceedings prior to 24 September 2008, i.e. the date on which it had dismissed the applicants’ previous complaint under the 2004 Act. The court delivered a detailed account of the procedural actions taken by the Regional Court and observed that they had been carried out in a well-organised and timely manner. It further observed that the responsibility for the length of proceedings had lain primarily with the applicants who, on the one hand, had filed numerous complaints under the 2004 Act and, on the other hand, had themselves caused additional delays by filing appeals clearly inadmissible in law and by taking other unnecessary procedural actions.
15. Consequently, the court refused to award the applicants any compensation.
3. Proceedings concerning the compulsory mortgage on the applicants’ property
16. In the civil proceedings described above, on 30 January 2004 the Koszalin Regional Court, by means of an interim measure, mortgaged a plot of land belonging to the applicants to provisionally secure the plaintiff’s claims (hipoteka przymusowa).
17. On 1 February 2006 a writ of execution (klauzula wykonalności) was issued in respect of the judgment of the Gdańsk Court of Appeal given on 15 June 2005, which awarded part of the plaintiff’s claims. On an unspecified date in 2006 the plaintiff instituted enforcement proceedings on the basis of that writ and the court bailiff seized the applicants’ plot of land (zajęcie nieruchomości). The enforcement proceedings are still pending.
18. On 7 February 2006 the Gdańsk Court of Appeal declared that the compulsory mortgage had become extinguished (stwierdzenie upadku zabezpieczenia) in respect of the amount not awarded to the plaintiff and that the applicants’ property remained mortgaged only up to the amount of the award actually made to the plaintiff (i.e. PLN 18,375). The applicants did not appeal against this decision.
19. On an unspecified date in 2007 the applicants requested the court to lift the compulsory mortgage imposed on their property (uchylenie zabezpieczenia).
20. On 23 October 2007 the Koszalin Regional Court dismissed their request. Their appeal was dismissed by the Szczecin Court of Appeal on 18 March 2008.
21. On 22 October 2009 the applicants requested the court to declare de iure the extinguishment of the entire mortgage, on the basis of section 7541 of the Code of Civil Procedure.
22. On 1 February 2010 the Koszalin Regional Court dismissed the applicants’ request, deeming it to be yet another request for lifting the mortgage. Following the applicants’ appeal, this decision was quashed by the Szczecin Court of Appeal on 20 April 2010 and the case was remitted.
23. On 8 June 2010 the Koszalin Regional Court declared that the compulsory mortgage on the applicants’ property had become extinguished. The plaintiff’s appeal against this decision was dismissed by the Szczecin Court of Appeal on 5 January 2011.
B. Relevant domestic law and practice
1. Length of proceedings
24. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and in its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
2. Extinguishment of the compulsory mortgage
25. The relevant provisions of the Code of Civil Procedure (Kodeks postępowania cywilnego) provide, in so far as relevant:
Art. 747. Pecuniary claims may be secured by:
2) a compulsory mortgage on the debtor’s real estate.
Art. 7541. § 1 Unless otherwise stipulated in a specific provision or by a court decision, security established in accordance with the provisions of this chapter shall become extinguished one month from the day on which the judgment awarding the claim has become final.
§ 3. On request from the debtor, the court shall issue a decision declaring that the security has become extinguished.
3. Territorial competence of the Szczecin Court of Appeal
26. The territorial competence of the Szczecin Court of Appeal is determined by the provisions of the Ordinance (rozporządzenie) of the Minister of Justice of 16 October 2002, as amended by the Ordinance of the Minister of Justice of 17 December 2003, in force as from 1 January 2005.
27. The former Ordinance provides, in so far as relevant:
§ 5. 2. The seats and the areas of jurisdiction of the Courts of Appeal shall be determined as follows:
8a) The Szczecin Court of Appeal – in the area of jurisdiction of the Regional Courts in Gorzów Wielkopolski, Koszalin and Szczecin.
COMPLAINTS
28. The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive.
29. Invoking the same provision, they generally complained that the proceedings had been conducted in an unfair manner.
30. The applicants further complained under Article 13 of the Convention that they had had no “effective remedy” against the excessive length of the proceedings.
31. Under Article 13 of the Convention, they also complained that the Szczecin Court of Appeal had not had the territorial competence to examine their appeals against decisions of the Koszalin Regional Court.
32. Lastly, in the letter to the Court of 1 March 2010, the applicants complained under Article 1 of Protocol No. 1 that the domestic court had unfairly refused to declare the extinguishment of the compulsory mortgage imposed on their property as security for the plaintiff’s claims.
THE LAW
A. Length of proceedings
33. The applicants complained about the length of the proceedings. They relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
34. By a letter dated 27 June 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.
35. The declaration provided as follows:
“(...) the Government hereby wish to express – by way of a unilateral declaration – their acknowledgment of the infringement of the applicants’ right of access to a court, guaranteed by Article 6 § 1 of the Convention, due to excessive length of the civil proceedings in their case.
Consequently, the Government are prepared to pay to the applicants jointly the sum of PLN 13,100 (thirteen thousand one hundred Polish zlotys) which they consider to be reasonable in the light of the Court’s case-law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The Government would suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”
36. In a letter of 4 August 2011 the applicants generally contested the unilateral declaration submitted by the Government. They expressed the view that the sum mentioned in the Government’s declaration was unacceptably low and did not correspond to the non-pecuniary damage and the health loss which they had suffered as a result of the excessive length of the impugned proceedings.
37. The Court recalls that, according to Article 37 of the Convention, it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
38. It also recalls that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
39. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007).
40. The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑V; and Majewski v. Poland, no. 52690/99, §§ 38-41, 11 October 2005).
41. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the compensation proposed in the amount of PLN 13,100 to be awarded jointly to both applicants – which is consistent with the amounts awarded in prior, similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).
42. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
43. Accordingly, it should be struck out of the list.
44. Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to use by the applicants of other remedies to obtain redress for any delay in the proceedings which may occur after the date of this decision.
B. Remaining complaints
1. Complaint under Article 6 § 1 of the Convention about the alleged unfairness of the proceedings
45. In so far as the applicants alleged unfairness of the main proceedings in which they are involved, relying on Article 6 § 1 of the Convention, it should suffice to note that the impugned proceedings are still pending.
46. Consequently, this complaint must be declared inadmissible for non‑exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.
2. Complaint under Article 13 of the Convention about the lack of an effective remedy
47. The applicants complained under Article 13 of the Convention that they had had no “effective remedy” against the excessive length of the proceedings. Article 13 provides:
“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.”
48. In his regard, the Court recalls that it has already found that the 2004 Act provides for an effective remedy in respect of the excessive length of proceedings (see Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005‑V; Figiel v. Poland (no. 1), no. 38190/05, §§ 25-30, 17 July 2008; Figiel v. Poland (no. 2), no. 38206/05, §§ 29-34, 16 September 2008).
49. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. Complaint about the alleged lack of jurisdiction of the Szczecin Court of Appeal
50. The applicants further complained under Article 13 that the Szczecin Court of Appeal had not had the competence to examine their appeals against decisions of the Koszalin Regional Court. The Court considers that the complaint should be dealt with from the standpoint of Article 6 § 1 of the Convention.
51. As the jurisdiction of the Szczecin Court of Appeal to deal with appeals against decisions of the Koszalin Regional Court was explicitly foreseen by the provisions of the domestic law, in force in the relevant period, this part of the application is manifestly ill-founded.
52. Consequently, it is inadmissible and must be rejected under Article 35 §§ 3 and 4 of the Convention.
4. Complaint under Article 1 of Protocol No. 1
53. The applicants further complained under Article 1 of Protocol No. 1 that the domestic court had unfairly refused to declare the extinguishment of the compulsory mortgage imposed on their property as security for the plaintiff’s claims. Article 1 of Protocol No. 1 provides:
“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.”
54. The Court notes that on 8 June 2010 the Koszalin Regional Court declared that the compulsory mortgage on the applicants’ property had become extinguished and that this decision has subsequently become final. It therefore considers that the applicants can no longer claim to be the victims, within the meaning of Article 34 of the Convention, of a violation of the invoked provision.
55. In so far as the applicants’ complaint may be understood as their grievance about the delay in obtaining a decision declaring the extinguishment of the mortgage, which in their opinion hindered them in the use of their property, the Court observes that the applicants first requested the court to issue such a decision on 22 October 2009 and that the decision in question was given on 8 June 2010. Given the relatively short time span between the filing of the applicants’ request and the delivery of the decision, the Court considers that the applicants failed to convincingly explain how the delay in obtaining the requested decision had hindered them in the exercise of their property rights. Moreover, the Court observes that the delivery of the requested decision could not – and, in fact, did not – eliminate the risk of the applicants’ land being put up for auction, as such risk had resulted from the seizure of the land, carried out by the court bailiff in the enforcement proceedings instituted against the applicants in 2006 and still pending against them due to their continuing failure to discharge their debt. Lastly, the Court observes that neither the compulsory judicial mortgage nor the continuing seizure of the applicants’ land could prevent the applicants from selling their land or otherwise using or disposing of their property.
56. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings, and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy