CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 avril 2010

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POLAND   (Application no. 42401/08)             JUDGMENT       STRASBOURG   20 April 2010   FINAL   20/07/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Wiśniewska v. Poland, The European Court of Human Rights (Fourth Section), sitting as   a   Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Giovanni Bonello,   Ljiljana Mijović,   Ján Šikuta,   Mihai Poalelungi,   Nebojša Vučinić, judges, and Lawrence Early, Section Registrar , Having deliberated in private on 23 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 42401/08) 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 Bożenna Wiśniewska (“the   applicant”), on 21 July 2008. 2.     The applicant was represented by Mr Mikołaj Pietrzak, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.     On 11 May 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on   the admissibility and merits of the application at the same time (Article   29   §   3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1952 and lives in Warszawa. A.     Civil proceedings for division of matrimonial property 5.     On 29 March 1995 the applicant brought an action for division of   matrimonial property. 6.     On 25 October 1995 the Warsaw District Court ( Sąd Rejonowy ) held the first hearing. 7.     Between October 1995 and March 2007 the Warsaw District Court scheduled approximately 25 hearings. At least eight of them were adjourned – on three occasions because of the absence of a witness, on two occasions because of the illness of the judge, on one occasion because the court had to   deal with the request of R.W., the applicant's former husband, to appoint a   legal-aid lawyer and on two occasions due to the large number of   documents and motions filed by the parties. Three expert's opinions evaluating the market value of the property were delivered during this period. 8.     On 23 March 2007 the Warsaw District Court decided on the equitable distribution of property between the applicant and R.W. The applicant was granted, in particular, the ownership of the common apartment together with the furniture and was obliged to pay R.W. a certain amount of money. 9.     On 4 May 2007 the applicant was served with the written reasoning for the decision. 10.     On 18 May 2007 the applicant appealed against the impugned decision. 11.     On 3 December 2007 the Warsaw District Court sent the case file to   the Warsaw Regional Court ( Sąd Okręgowy ). 12.     On 11 March and 24 June 2008 the Warsaw Regional Court held hearings. 13.     On 8 July 2008 the Warsaw Regional Court amended the Warsaw District Court's decision in respect of the amount of money that the applicant was obliged to pay R.W. and upheld the remainder of the decision. 14.     On 24 September 2008 the applicant was served with the written reasoning for the decision. 15.     On 24 November 2008 the applicant lodged a cassation appeal against the Warsaw Regional Court's decision. 16.     On 9 June 2009 the Supreme Court ( Sąd Najwyższy ) refused to examine the applicant's cassation appeal. B.     Proceedings under the 2004 Act 17.     On 23 May 2005 the applicant lodged a complaint with the Warsaw Regional Court under section 5 of 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”). The applicant sought a ruling that the length of the proceedings before the Warsaw District Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN). 18.     On 27 July 2005 the Warsaw Regional Court dismissed the applicant's complaint. The court held that the 2004 Act had taken full legal effect on   the date of its entry into force, i.e. 17 September 2004. It   acknowledged that there had been some periods of inactivity for which the Warsaw District Court had been responsible. However, it found that in   the period after 17   September 2004 there had been no inactivity or undue delay on the part of the authorities. It accordingly held that there had been no breach of the right to a trial within a reasonable time during the relevant part of the proceedings. II.     RELEVANT DOMESTIC LAW AND PRACTICE 19.     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 stated 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 the judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR   2005-V. THE LAW I.     THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION 20.     On 16 October   2009 the Government submitted a unilateral declaration similar to that in the case Tahsin Acar v. Turkey (preliminary objection) [GC], no.   26307/95, ECHR 2003-VI) and informed the Court that they were ready to accept that there had been a violation of the applicant's rights under Article 6 § 1 of the Convention as a result of the unreasonable length of the proceedings in which the applicant had been involved. In   respect of non-pecuniary damage, the Government proposed to award the applicant PLN   17,000 (the equivalent of approx. EUR 4,250). The   Government invited the Court to strike out the application in   accordance with Article 37 of the Convention. 21.     The applicant did not agree with the Government's proposal and requested the Court to continue the examination of the case. She maintained that the amount offered was too low. 22.     The Court observes that, as it has already held on many occasions, it   may be appropriate under certain circumstances to strike out an   application under Article 37 § 1 (c) of the Convention on the basis of   a   unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a   sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75; and Melnic   v.   Moldova , no.   6923/03, §   22, 14 November 2006). 23.     According to the Court's case-law,   the amount proposed in   a   unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar length of proceedings cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of   non-pecuniary compensation to be awarded where it has found a breach of the reasonable ‑ time requirement ( see Cocchiarella v. Italy [GC], no.   64886/01, §§   85 ‑ 107, ECHR 2006 ‑ ...,; Scordino v. Italy (no.1) [GC], no.   36813/97, §§   193-215, ECHR-2006-...; and Dubjakova v. Slovakia (dec.), no.   67299/01, 10 October 2004). 24.     On the facts and for the reasons set out above, in particular the amount of compensation proposed, the Court finds that the Government have failed to provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see, conversely , Spółka z o.o. WAZA v. Poland (striking out), no. 11602/02, 26   June 2007). 25.     This being so, the Court rejects the Government's request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of   the case. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS 26.     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...” 27.     The Government refrained from submitting any observations on the admissibility and merits of the complaint. 28.     The period to be taken into consideration began on 29 March 1995 and ended on 9 June 2009. It thus lasted some fourteen years and two months for three levels of jurisdiction. A.     Admissibility 29.     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 30.     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). 31.     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 , cited above). Furthermore, the Court considers that, by not taking into account the overall period of the proceedings, the Warsaw Regional Court failed to apply standards which were in conformity with the principles embodied in the Court's case-law (see Majewski v.   Poland , no.   52690/99, § 36, 11 October 2005). 32.     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. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 33.     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 34.     The applicant claimed EUR 300,000 in respect of pecuniary and non-pecuniary damage. 35.     The Government did not comment. 36.     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 10,800 (approximately PLN   43,000) in respect of non-pecuniary damage. B.     Costs and expenses 37.     The applicant also claimed PLN 5,000 (approximately EUR 1,250) for the costs and expenses incurred before the Court. 38.     The Government did not express an opinion on the matter. 39.     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 were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 1,250 under this head. C.     Default interest 40.     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.     Rejects the Government's request to strike the application out of its list of cases;   2.     Declares the application admissible;   3.     Holds that there has been a violation of   Article 6 § 1 of 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, EUR 10,800 (ten thousand eight hundred euros) in respect of non-pecuniary damage and EUR 1,250 (one   thousand two hundred and fifty euros) for costs and expenses, plus any tax that may be chargeable to be converted into Polish zlotys at the rate applicable at the date of settlement; (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 20 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Lawrence Early   Nicolas Bratza Registrar President