CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 octobre 2012

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border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .s3F717125 { font-family:Arial; color:#339966; display:none } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } FOURTH SECTION Application no. 23201/11 Adam SUCHECKI against Poland and 4 other applications (see list appended) STATEMENT OF FACTS A.     Background In implementation of the Court’s judgment in the case of Kudła v.   Poland given on 26 October 2000 (see Kudła v. Poland [GC], no.   30210/96, ECHR 2000-IX) Poland adopted 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 przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki - “the 2004 Act”). The Court examined the remedies introduced by the 2004 Act under Article 35 § 1 and Article 13 of the Convention in three leading cases and concluded that they were “effective” for the purposes of those provisions (see Charzyński v. Poland no. 15212/03 (dec.), §§ 36-43 ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 68-73, ECHR 2005-V). In consequence, some 600 Polish cases pending before the Court were rejected for non-exhaustion of domestic remedies in 2005. However, since then every year at least 300 prima facie well-founded applications concerning complaints about a breach of the right to a hearing within a reasonable time are lodged with the Court by persons who have exhausted the remedies under the 2004 Act. As in the cases described below, the applicants complain about the excessive length of proceedings and the domestic courts’ refusal to grant them appropriate redress for the breach of Article 6 § 1 of the Convention. Since 30 October 1998, when the Court gave its judgment in the case of Styranowski and for the first time found a violation of Article 6 § 1 by Poland on account of the excessive length of proceedings (see Styranowski v. Poland , 30 October 1998, §§ 57-58 Reports of Judgments and Decisions 1998 ‑ VIII), to 31 December 2011 the Court has   delivered further 411 judgments where the same breach was found. It is to be noted that 346 such judgments were given in 2005-2011, after the entry into force of the 2004 Act. In addition, in 2005-2011 the Court struck out of its list of cases 352 length cases where the parties either concluded a friendly-settlement agreement or the Court accepted the Government’s unilateral declaration. At present, some 400 cases involving complaints about the length of proceedings are pending before the Court, of which 61 have been communicated to the Polish Government and the remainder earmarked for communication and examination under Article 28 § 1 (b) of the Convention.   Suchecki v. Poland no. 23201/11   The applicant, Mr Adam Suchecki, is a Polish national, who was born in 1963 and lives in Rychtal. B.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Proceedings concerning an entry in the Land and Mortgage Register (case no. I Ns 66/05) On 9 January 2006 the Kępno District Court ( Sąd Rejonowy ) gave a decision on delimitation of the applicant’s and his neighbour’s property. The decision became final on 5 February 2007. On 21 October 2007 the President of the District Court’s Civil Division ordered that a copy of the final decision be transmitted to the Land and Mortgage Register Division ( Wydział Ksiąg Wieczystych ) of the same court in order to make an appropriate entry in a book kept for the property ( księga wieczysta ). This order ex-officio initiated the non-contentious civil procedure for making an entry in the Land and Mortgage Register. It was received at the Land and Mortgage Register Division on 22 October 2007. 2.     Proceedings under the 2004 Act (case no. II S 1/11) Since no action had been taken by the court, on 27 December 2010 the applicant lodged a complaint under the 2004 Act with the Kalisz Regional Court ( Sąd Okręgowy ) He sought a finding that the length of the proceedings had been excessive and 20,000 Polish zlotys (PLN) [1] in compensation. On 21 February 2011 the Regional Court, finding that the impugned proceedings had still not been terminated, held that there had been an undue delay, ordered the District Court to make an entry regarding delimitation and awarded the applicant PLN 500 [2] , which was below the statutory minimum award of PLN 2,000 for the excessive length of proceedings under the 2004 Act. 3.     Application of the “Scordino (no. 1) criteria” In the present case the domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no. 1) criteria ( Scordino   (no. 1) v. Italy, [GC] no. 36813/97, §§ 195-216, with further references) should reach at least PLN 2,800 in order for the applicant to lose his victim status. The domestic court awarded 6% of the Court’s award. C.     Relevant domestic law and practice 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; 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. COMPLAINT The applicant complains under Article 6 § 1 of the Convention that the length of the proceedings in his case has been excessive and that the national court did not award him sufficient just satisfaction for the alleged breach of the “reasonable time” requirement.   Application no. 72287/10 By Wiesław RUTKOWSKI Against Poland Lodged on 30 November 2010 THE FACTS The applicant, Mr Wiesław Rutkowski, is a Polish national who was born in 1959 and lives in Warszawa. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Main proceedings (case no. III K 1878/05) On 18 September 2002 the applicant was arrested on suspicion of acting in an organised criminal group. He was subsequently detained on remand. In December 2002 the Warsaw Regional prosecutor ( Prokurator Okręgowy) lodged a bill of indictment with the Warsaw-City District Court ( Sąd Rejonowy ). The case-file was held in that court from 26   November 2003 until 18 November 2005 – when it was transferred to the Warsaw ‑ Mokotów District Court. The proceedings before the Warsaw Mokotów District Court commenced on 21 September 2006. Up to the end of 2006 the court held fourteen hearings. In the first half of 2007 eight hearings took place. In 2008, the court held 11 hearings, in 2009 10 hearings and in 2010 7 hearings. On 21 July 2010 the Warszawa Mokotów District Court acquitted the applicant. 2.     Proceedings under the 2004 Act (case no. X S 40/10) On 16 April 2010 the applicant lodged a complaint under the 2004 Act with the Warszawa Regional Court ( Sąd Okręgowy ) He sought a finding that the length of the proceedings had been excessive and 20,000 Polish zlotys (PLN) in compensation. On 1 June 2010 the Warszawa Regional Court held that the length of the proceedings had been excessive until 18 November 2005 and awarded the applicant 2,000 Polish zlotys (PLN) in compensation. The court took into account only the proceedings as from 17 September 2004, i.e. the date on which the 2004 Act entered into force. It refused to grant the applicant the full sum sought, holding that he had not demonstrated that he had sustained damage in that amount. 3.     Application of the “Scordino (no. 1) criteria” In the present case the domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no. 1) criteria ( Scordino   (no. 1) v. Italy, [GC] no. 36813/97, §§   195-216, with further references) should reach at least PLN 13,200 in order for the applicant to   lose his victim status. The domestic court awarded him 5.5% of the Court’s award. COMPLAINTS The applicant complains under Article 6 of the Convention that the length of the proceedings in his case has been excessive. He stresses, in particular, that the Warsaw Regional Court, when dealing with his complaint under the 2004 Act, did not consider the entire length of the proceedings but only the period after that Act’s entry into force. He further complains under Article 13 that the complaint under the 2004 Act was not an effective remedy.   Application no. 9257/11 By Piotr PYTEL Against Poland Lodged on 19 January 2011 THE FACTS The applicant, Mr Piotr Pytel, is a Polish national who was born in 1969 and is currently detained in Rzeszów Prison. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Main proceedings (case no. Ds. 183/00; VI Ds. 4/01; VI Ds. 9/08) On an unspecified date in 2002 the applicant was charged with acting in an organised criminal group. He was arrested and detained on remand. On an unspecified date in 2005 the Rzeszów Regional Prosecutor ( Prokurator Okręgowy ) lodged a bill of indictment with the Rzeszów Regional Court ( Sąd Okręgowy ). On 22 February 2006 the Regional Court returned the indictment and ordered the prosecution to complete the investigation. It listed 50 specific actions that needed to be carried out by the prosecution in that regard. On an unspecified date the case was taken over by the Radom Regional Prosecutor. In 2008 the case file was transmitted to experts in accountancy, who had been ordered to prepare a report. The experts submitted the report on 15   June 2010. As of 30 December 2010 the investigation was still continuing. 2.     Proceedings under the 2004 Act (case no. II S 23/10) On an unspecified date the applicant lodged a complaint with the Rzeszów Court of Appeal ( Sąd Apelacyjny ) under the 2004 Act. He sought a finding that the length of the proceedings had been excessive and 20,000   PLN in compensation. The applicant maintained, in particular, that the proceedings had lasted an inordinately long time and stressed that the investigation had not been terminated even though 5 years had already elapsed from the date on which the Regional Court had returned the case to the prosecutor. On 30 December 2010 the Rzeszów Court of Appeal dismissed the applicant’s complaint. The court accepted that the proceedings had been excessively long but it analysed only the investigation conducted by the Radom Regional Prosecutor, notwithstanding the fact that its substantial part had been carried out by the Rzeszów Regional Prosecutor. It concluded that, despite the lengthy period of awaiting the expert report, the proceedings had speeded up since the case had been taken over by the Radom prosecution and all actions taken by the prosecutor had been carried out in a timely manner. Consequently, the complaint was dismissed as lacking justification. 3.     Application of the “Scordino (no. 1) criteria” In the present case the domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no. 1) criteria ( Scordino   (no. 1) v. Italy, [GC] no. 36813/97, §§ 195-216, with further references) should be around PLN 18,000-20,000 in order for the applicant to lose his victim status. COMPLAINT The applicant complains under Article 6 of the Convention that the length of the proceedings in his case has been excessive. In his application, he asks the Court to find a breach of the reasonable time requirement laid down in Article 6 § 1 of the Convention, which the Polish authorities failed to recognise, and award him just satisfaction for that breach. In this regard, he refers to the case of Rok v. Poland (no.   35666/10) [3] , which was lodged by an applicant charged in the same proceedings and which was struck out of the Court’s list of cases following the parties’ friendly-settlement agreement.   Application 13927/11 By Mariusz ORLIKOWSKI Against Poland Lodged on 21 February 2011 THE FACTS The applicant, Mr Mariusz Orlikowski, is a Polish national who was born in 1963 and lives in Łódź. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Main proceedings (case no. II C 566/06; I A Ca 750/10) In 1999 the applicant lodged an action for payment with the Łódź Regional Court ( Sąd Okręgowy ). On 30 November 2001 the court gave judgment. On 4 September 2002 the Łódź Court of Appeal ( Sąd Apelacyjny ) quashed the first-instance judgment and remitted the case. On 2 June 2005 the Łódź Regional Court gave its second judgment. This judgment was partly quashed and the case was remitted by the Łódź Court of Appeal on 28 March 2006. Subsequently, the Regional Court ordered the parties to submit further evidence, on pain of rejecting subsequent motions for taking additional evidence. The first hearing was scheduled for 20 September 2006. The next hearing was held on 17 November 2006. On 29 December 2006 the court ordered that evidence from an expert in construction be obtained. On 15 March 2007 the expert submitted a report. Further hearings were scheduled for 18 July 2007, 5 September 2008, 1   April 2009, and 19 March 2010. In the meantime, the court had decided to obtain additional expert evidence. At the hearing held on 18 July 2007 the parties stated that they would attempt to settle the case. On 12 and 13 September 2007 they informed the court that their negotiations had failed. On 16 April 2010 the Łódź Regional Court delivered its third judgment. On 19 November 2010 the Łódź Court of Appeal upheld that judgment on 16 April 2010. 2.     Proceedings under the 2004 Act (case no. I S14/10) On 4 May 2010 the applicant lodged a complaint with the Łódź Court of Appeal ( Sąd Apelacyjny ) under the 2004 Act. He sought a finding that the length of the proceedings had been excessive and 10,000 Polish zlotys (PLN) in compensation. On 2 June 2010 the Łódź Court of Appeal dismissed the applicant’s complaint. The court concluded that taking the complexity of the case into account the proceedings had been conducted in a correct and timely manner. The court took into account only the proceedings after 28 March 2006, i.e. the date on which the Court of Appeal partly quashed the Regional Court’s judgment of 2 June 2005. 3.     Application of the “Scordino (no. 1) criteria” In the present case the domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no. 1) criteria ( Scordino   (no. 1) v. Italy, [GC] no. 36813/97, §§ 195-216, with further references) should reach at least PLN 9,500 in order for the applicant to lose his victim status. COMPLAINT The applicant complains under Article 6 of the Convention that the length of the proceedings in his case has been excessive. Application 46187/11 By Aleksandra GRABOWSKA Against Poland Lodged on 21 July 2011 THE FACTS The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The background of the case In 1999 the applicant lodged a civil action for payment and accounting ( pozew o złożenie rachunku z zarządu i zapłatę ) against a certain A.T. with the Gdynia District Court ( Sąd Rejonowy ). The action concerned property part of which had been inherited by the applicant. 2.     Proceedings for adverse possession (VII Ns 2545/99; VII   Ns   1543/05; VII Ns 1967/08) On 15 December 1999 A.T. and others lodged a motion with the Gdynia District Court for adverse possession ( zasiedzenie ) of the property in question. The applicant was not notified about the proceedings. On an unspecified date the Gdynia District Court informed the applicant that the proceedings for payment and accounting initiated by her had been stayed pending the outcome of the case concerning adverse possession. On 12 April 2000 the applicant informed the District Court that she wished to join the proceedings. On 19 April 2006 the Gdynia District Court declared that the property had been acquired by adverse possession by A.T. and others. The applicant appealed. On 18 October 2007 the Gdańsk Regional Court ( Sąd Okręgowy ) quashed the first-instance decision and remitted the case. On 2 January 2008 the Gdynia District Court asked the Gdańsk Regional Court to transfer the case to the Poznań District Court. On 31 March 2008 the Regional Court refused that request. On 3 March 2009 and 6 July 2009 the Gdynia District Court called other parties to join the proceedings. On 21 September 2009 the proceedings were stayed as one of the joining parties had failed to submit all the relevant documents requested by the court. On 25 October 2010 the applicant lodged a motion for discontinuation of the proceedings. On 4 November 2010 the Gdynia District Court resumed the proceedings. Between December 2010 and December 2011 the District Court scheduled four hearings and summoned further persons to join the proceedings. The proceedings before the first-instance court are pending. 3.     Proceedings under the 2004 Act (case no. III S 175/10) On 15 December 2010 the applicant lodged a complaint with the Gdańsk Regional Court under the 2004 Act. She sought a finding that the length of the proceedings had been excessive and 20,000 Polish zlotys (PLN) in compensation. On 31 January 2011 the Gdańsk Regional Court dismissed the applicant’s complaint. The court decided not to take into account the period before 17 September 2004, i.e. the date on which the 2004 Act had entered into force. As regards the subsequent period, the court held that the proceedings could not be said to have been especially long as it had been necessary to secure the participation of all the interested parties in the proceedings. 4.     Application of the “Scordino (no. 1) criteria” In the present case the domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no. 1) criteria ( Scordino   (no. 1) v. Italy, [GC] no. 36813/97, §§   195-216, with further references) should be around PLN 15,000 in order for the applicant to lose her victim status. COMPLAINT The applicant complains under Article 6 of the Convention that the length of the proceedings in her case has been excessive. The applicant further submits that the excessive length of the above-mentioned proceedings had a negative influence on other cases, which are suspended or dismissed pending the result of the adverse possession case. QUESTIONS TO THE PARTIES As regards Article 6 § 1   1.     Having regard to the Court’s case-law on the “reasonable time” requirement laid down in Article 6 § 1: (a)     Has there been a violation of this provision in the applicants’ cases? (b)     When dealing with the applicants’ complaints about the length of procedure under the 2004 Act, have the Polish courts applied correctly the criteria established by the Court in respect of this requirement? (c)     In particular, is the Polish courts’ practice of disregarding delays that occurred before 17 September 2004 (date of the 2004 Act’s entry into force) or, in case of remittal, of disregarding delays occurring at original first ‑ instance, compatible with Article 6 § 1 which requires a consideration of the entire procedure (see, among many other examples, Kudła v. Poland [GC], no. 30210/96, §§ 119-123, ECHR 2000-IX); Majewski v. Poland , no.   52690/99, § 35-36, 11 October 2005; Kęsiccy v. Poland , no. 13933/04, §§ 58-59 and 61-62, 16 June 2009)?   As regards Article 13   2.     Having regard to the facts of the present cases and the principles established by the Court in respect of an “effective remedy” and the characteristics of redress required at national level for a violation of the right to a hearing within a reasonable time, can the compensatory remedy under section 12(4) of the 2004 Act be regarded as “effective” for the purposes of Article 13 of the Convention (see, in particular, Kudła v.   Poland , §§ 157-159 and Scordino (no. 1) v. Italy, [GC] no. 36813/97, §§   195-216, with further references)?   As regards Rule 61 of the Rules of Court (application of the pilot ‑ judgment procedure)   1.     Do the facts of the present cases reveal a systemic problem consisting in the malfunctioning of the Polish judicial practice in that the national courts do not comply with the principles established by the Court in respect of: (a)     the “reasonable time” requirement laid down in Article 6 § 1; (b)     the criteria for “appropriate and sufficient redress” required at domestic level set out in the Scordino (no. 1) judgment (see Scordino   (no.   1) , §§ 195-216 and 272); (c)     just satisfaction under Article 41 of the Convention?   2.     Having regard to the repetitive nature of cases against Poland in which the applicants continually allege that the compensatory remedy under section 12(4) of the 2004 Act has been not been effective, has there been a systemic dysfunction related to Poland’s failure to execute fully the judgment of Kudła v. Poland of 26 October 2000? 3.     Are the present cases suitable for the “pilot judgment” procedure (see, in particular, Broniowski v. Poland [GC], no. 31443/96, §§ 189-194, ECHR 2004-IX, ) and Hutten-Czapska v. Poland [GC] no. 35014/97, § 231 et seq., ECHR 2006-VIII; Rumpf v. Germany , no. 46344/06, §§ 59-63, 2 September 2010; Vassilios Athanasiou and Others v. Greece , no. 50973/08, §§ 43-44; 21 December 2010; and Finger v. Bulgaria , no. 37346/05, §§ 113-114, 10   May 2011)?   Appendix     File No Case Name Date of lodging 1. 23201/11 SUCHECKI (V) v. Poland 14/03/2011 2. 72287/10 RUTKOWSKI v. Poland 30/11/2010 3. 9257/11 PYTEL v. Poland 19/01/2011 4. 13927/11 ORLIKOWSKI v. Poland 21/02/2011 5. 46187/11 GRABOWSKA v. Poland 21/02/2011   [1] .     Approximately 5,000 euros (EUR). [2] .     Approximately EUR 125. [3] .     The statement of facts for communication and the strike-out decision given in this case are available on the Court’s website www.echr.coe.int . The settlement amount was PLN   18,000 (approx. EUR 4,500).