FOURTH SECTION

CASE OF MAJEWSKI v. POLAND

( Application no. 52690/99 )

JUDGMENT

STRASBOURG

11 October 2005

FINAL

11/01/2006

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 Majewski v. Poland ,

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

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Mr J. Borrego Borrego , Ms L. Mijović , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having deliberated in private on 20 September 2005 ,

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

PROCEDURE

1 . The case originated in an application (no. 52690/99) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Lech Ma jewski (“the applicant”), on 18 June 1998 .

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

3 . On 24 August 2004 the C ourt declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings 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

B. The first set of civil proceedings

1. Facts before 1 May 1993

5 . On 10 November 1990 the applicant lodged a civil action for compensation against the State Treasury - the Białystok Remand Centre with the Białystok District Court ( Sąd Rejonowy ). He alleged that upon his arrival in the Białystok Remand Centre, on 14 December 1989 , he had been beaten and insulted by the prison guards and had subsequently not received proper medical care. The applicant claimed that in consequence of the excessive use of force against him he had sustained a spinal injury and suffered permanent disability.

At the first hearing held on 20 December 1990 the court appointed a lawyer under a legal aid scheme for the applicant and ordered a copy of the case ‑ file concerning the criminal investigation concerni ng the events of December 1989.

On 31 January 1991 the court held a hearing at which the applican t ’ s court ‑ appointed lawyer, Mr B.Z., was present. The court stayed the proceedings.

On 17 July 1992 the Bia Å‚ ystok District Court resumed the proceedings . However, on 12 August 1992 it decided to stay them again in view of the fact that the criminal proceedings against the Governor of the Bia Å‚ ystok Remand Centre were pending .

2. Facts after 1 May 1993

6 . On 29 May 1995 the Białystok District Court resumed the proceedings. The court further decided that the Białystok Regional Court ( Sąd Wojewódzki ) was competent to deal with the case.

7 . On 18 January 1996 the Białystok Regional Court held the first hearing. In January 1997 the applicant was heard before the Trzcianka District Court. Between 18 September and 18 November 1997 the trial court held four hearings.

8 . On 27 November 1997 the Białystok Regional Court gave judgment. It partly allowed the applicant ’ s action. The court acknowledged that the applicant had suffered moral damage as a result of the illegal actions of the state agents and awarded him compensation. The Regional Court dismissed the applicant ’ s allegations that the incident had caused a spinal injury and dismissed the remainder of his claims for compensation.

9 . On 7 May 1998 the Białystok Court of Appeal ( Sąd Apelacyjny ) held a hearing and examined the appeal lodged by the State Treasury. The appellate court gave judgment in which it allowed the State Treasury ’ s appeal, quashed the impugned judgment, and dismissed the applicant ’ s action.

10 . Subsequently, the applicant ’ s court-appointed lawyer refused to lodge a cassation appeal against this judgment on his behalf as he apparently found no legal grounds for it .

B. The second set of civ il proceedings

1. Facts before 1 May 1993

11 . On 28 January 1991 the applicant lodged a civil action for compensation against the State Treasury- Szczecin Remand Centre with the Szczecin Regional Court ( Sąd Wojewódzki ) . He claimed PLN 2,500 in compensation for an accident which had occurred in 1983, during his detention in the Szczecin Remand Centre. The applicant further complained that the medical treatment he had received at the material time had been inadequate.

2. Facts after 1 May 1993

12 . On 11 March 1994 the trial court held the first hearing. The applicant, who had been in detention since 1977, was not present at the hearing because he had failed to return to prison from leave. At that hearing, the court stayed the proceedings on the grounds that the applicant ’ s address could not be established.

13 . On 20 November 2000 the Szczecin Regional Court resumed the proceedings.

14 . On 24 April 2001 the trial court held a hearing at which it ordered that an expert opinion be obtained. On 13 December 2001 the court held a second hearing at which it decided that the applicant would be heard by another court since he had been transferred to a different prison. On 11 February 2002 the applicant was heard before the Trzcianka District Court. On 26 March and 7 May 2002 the Szczecin Regional Court held hearings.

15 . On 24 May 2002 the trial court gave judgment. It dismissed the applicant ’ s action. The applicant ’ s court-appointed lawyer lodged an appeal against that judgment.

16 . On 13 November 2002 the PoznaÅ„ Court of Appeal allowed his appeal, quashed the Regional Court ’ s judgment and remitted the case to the first ‑ instance court.

17 . On 9 June 2004 the Szczecin District Court held a hearing a t which it heard the applicant.

18 . On 21 June 2004 the court, sitting in camera, decided that an expert opinion be prepared. The expert opinion was sub mitted to the trial court on 27 October 2004 .

19 . On 3 November 2004 the applicant lodged with the Szczecin Regional Court a complaint alleging that his right to have his case exam ined within a reasonable time had been breached. He submitted that he had lodged a civil action on 28 January 1991 and despite the fact that he had not contributed to their length, the proceedings were still pending before the District Court. The applicant relied on the 2004 Act on complaints about a breach of the right to a trial within a reasonable time. At that time, the proceedings were pending before the District Court following the remittal of the case by the appellate court in 2002. According to the 2004 Act the Regional Court – being the court above the one conducting the impugned proceedings - was competent to examine the complaint (Section 4 § 1 of the 2004 Act, see the domestic law part below).

20 . On 7 January 2005 the Szczecin Regional Court dismissed his complaint. The court examined only the course of the proceedings after the remittal of the case by the appellate court on 13 November 2002 and found no delays on the part of the District Court. As result, the court found that during this period the District Court had not violated the applicant ’ s right t o have his case heard within a reasonable time. The Regional Court considered that it could not examine the part of the proceedings that had been pending between 1991 and 2002 before the Regional Court as this part of proceedings had already ended . The court stated:

“... T he District Court cannot be held responsible for possible delays that might have occurred before the Regional Court during the period between 24 May 1991 when the case was transferred to it and 14 May 2002 when the court gave a judgment ...

According to the provisions [of the 2004 Act] the Regional Court examining the complaint lodged by [the applicant] that the proceedings in his case before the District Cou rt exceeded a reasonable time is not entitled to examine the course of the proceedings before the Szczecin Regional Court...”

21 . It appears that the civil proceedings in this case are pending before the Szczecin District Court.

II. RELEVANT DOMESTIC LAW

1. State ’ s liability for a tort committed by its official [1]

22 . Articles 4 17 et seq. of the Civil Code ( Kodeks cywilny ) provide for the State ’ s liability in tort.

In the version applicable until 1 September 2004 , Article 417 § 1, which lays down a general rule, read as follows:

“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”

23 . On 1 September 200 4 the Law of 17 June 200 4 on amendments to the Civil Code and other statutes ( Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw ) (“the 200 4 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury ’ s l iability for tort under Article 417 of the Civil Code – whic h included adding a new Article 417 1 and the institution of the State ’ s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “ zaniedbanie legislacyjne ” ) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings (see paragraphs 25 below).

Following the 2004 Amendment, Article 417 1 was added which, in so far as relevant, reads as follows:

“3. If damage has been caused by a failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”

However, under the transitional provision of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 22 above) shall apply to all events and legal situations that subsisted before that date.

24 . Under Article 442 of the Civil Code the claim for redress of damage caused by a tort becomes time-barred after the lapse of three years from the day on which the person who suffered the damage learns about the damage and about persons or entities liable to make reparation for it. However, in any case the claim expires after the lapse of ten years from the day on which the event that caused the damage occurred.

That provision applies to situations covered by Article 417 of the Civil Code.

2. The 2004 Act [2]

25 . 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.

Section 2 of the 2004 Act reads, in so far as relevant:

“1. A party to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Section 4 provides, in so far as relevant:

“1. The complaint shall be examined by the court immediately above the court conducting the impugned proceedings.

2. If the complaint concerns an unreasonable delay in the proceedings before the Court of Appeal or the Supreme Court it shall be examined by the Supreme Court. ...”

Section 5 reads, in so far as relevant:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1. The court shall dismiss a complaint which is unjustified.

2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

... ”

On 18 January 2005 Supreme Court ( Sąd Najwyższy ) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act 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 and had not yet been remedied.

THE LAW

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

“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 contested that argument in respect of the first set of proceedings . The Government failed to address the issue of the allegedly unreasonable length of the second set of proceedings.

28 . With regard to the first set of proceedings the period to be taken into consideration began not on 10 November 1990 , when the applicant started the proceedings , but only on 1 May 1993 when the recognition by Poland of the right of individual petition took effect. The period in question ended on 7 May 1998 . It follows that the first set of proceedings lasted five years .

29 . With regard to the second set of the proceedings the period to be taken into consideration also began on the date when the recognition of Poland of the right of individual petition took effect and not in 1991 when the applicant initiated the proceedings . The proceedings are still pending. The period to be taken into consideration as regards the second set of proceedings is thus twelv e years and over [four months].

In assessing the reasonableness of the time in question the Court will have regard to the state of both cases on 1 May 1993 .

A. Admissibility

1. First set of proceedings

30 . The Court first observes, with respect to the requirement of exhaustion of the domestic remedies in the first set of proceedings , that the applicant cannot avail himself of t he remedies pursuant to Section 2 read together with Section 5, nor Section 18 of the 2004 Act as the civil proceedings in his case came to end on 7 May 1998, while he lodged his application with the Co mmission on 18 June 1998. What is more, the Court has already held that a civil action for compensation provided for by Article 417 of the Civil Code read together with Section 16 of the 2004 Act cannot be regarded as an effective remedy if , as in the applicant ’ s case, more than three years elapsed between the date of the final decision and the entry into force of the 2004 Act, on 17 September 2004 ( see, Ratajczyk v. Poland ; (dec), 11215/02 , 31 May 2005 ).

2. Second set of proceedings

The Court has already examined that remedy f or the purposes of Article 35 § 1 of the Convention and found it effective in respect of the complaints about the excessive length of judicial proceedings in Poland . In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).

32 . Accordingly, the Court finds that the applicant exhausted domestic remedies in respect of his complaint under Article 6 § 1 of the Convention.

36 . T he Court was in a previous decision satisfied that the domestic court had acknowledged the infringement of the Convention, even if it formally limited its examination to a certain period of time . H owever, it took into account the state of the proceedings at that time and found a violation of the applicant ’ s right to a hearing without unjustified delay (see Dubjakov a v . Slovakia , (dec), no 67299/01, 19 October 2004 ). On another occasion , the Court found that the domestic court offered sufficient acknowledgement of the infringement of the right under the consideration , despite the fact that the latter examined separately diff erent stages of the proceedings. N evertheless , the examination cover ed all stages of the domestic proceedings (see Bako v Slovakia , (dec), no 60227/00, 15 March 2005 ).

That was not the case in the instant proceedings. Therefore, the Court considers that the Szczecin Regional Court in examining the applicant ’ s complaint that the length of the proceedings in his case exceeded a reasonable time, failed to apply the standards which were in conformity with the principles embodied in the Court ’ s case-law . Finally, the Court notes that it is not necessary to establish whether the Regional Court ’ s approach resulted from an error of interpretation or from the construction of the 2004 Act since, i n any event , the domestic court ’ s finding that the length of the proceeding in the applicant ’ s case did not exceed a reasonable time resulted from the examination of only one stage of the proceedings which could not have afforded appropria te protection to the applicant.

3. Conclusion

B. Merits

39 . With regard to the present case the Court notes that the first set of proceedings lasted, within the Court ’ s jurisdiction ratione temporis , five years while the second set of proceedings has been pending since 1991. The proceedings, in pa rticular the second set, were therefore inordinately lengthy and only exceptional circumstances could jus tify their overall length.

40 . 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).

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

42 . 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 rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

43 . The applicant claimed 1 , 000 euros (EUR) in respect of pecuniary damage and EUR 75 , 000 in respect of non-pecuniary damage.

44 . The Government contested these claims and found them exorbitant.

45 . 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, the Court considers that the ap plicant must have sustained non ‑ pecuniary damage. Ruling on an equitable basis, it awards award him [EU R 6 , 000] under that head.

B. Costs and expenses

46 . The applicant also claimed EUR 2 , 000 for the costs and expenses incurred before the domestic courts and the Court.

48 . According to the Court ’ s case-law, an applicant is entitled to reimbursement of his 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, who was not represented by a lawyer, the sum of [EUR 500] under this head.

C. Default interest

49 . 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 remainder of the application admissible;

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

3 . 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 6 , 000 ( six thousand euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses, to be converted into Polish zlotys at the rate applicable at the 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;

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

Done in English, and notified in writing on 11 October 2005 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Michael O ’ Boyle Nicolas Bratza Registrar President

[1] For a more detailed rendition of the relevant domestic legal provisions see Ratajczyk v. Poland (dec.), no. 11215/02

[2] . For a more detailed rendition of the relevant domestic legal provisions see Michalak v. Poland (dec.), no. 24549/03, §§ 12 ‑ 23 , to be published in ECHR 2005- ... – also available on the Court’s Internet site (http://www. [email protected] ).