Edward TOBOREK v Poland - 31835/03 [2008] ECHR 1179 (30 September 2008)

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The European Court of Human Rights (Fourth Section), sitting on 30 September 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the declaration submitted by the respondent Government on 29 May 2008 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,

The applicant, Mr Edward Toborek, is a Polish national who was born in 1950 and lives in Dąbrowa Górnicza.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 October 1985 he had an accident at work, which resulted in a permanent partial disability. By a judgment given in 1987 a court found that the applicant had suffered an occupational injury. Subsequently the applicant received a disability pension granted to him under the applicable provisions of social insurance law.

In 1990 the Supreme Court adopted a resolution pursuant to which persons who had suffered damage to their health as a result of occupational accidents could claim, concurrently with a social insurance disability pension, a disability pension based on the civil law provisions governing liability in tort.

On 29 January 1993 the applicant lodged a civil action with the Dąbrowa Górnicza District Court against his former employer, a State-owned company, requesting a supplementary disability pension under the provisions of the civil law on tort. On 23 February 1993 the case was transferred to the Civil Division of the Katowice Regional Court.

On 17 March 1994 the defendant company became insolvent. The Katowice Regional Court therefore stayed the proceedings on 29 April 1994. On an unknown later date proceedings for the division of the estate in insolvency were instituted before the Gliwice District Court.

On 1 March 1996 the applicant requested that the civil proceedings be resumed. By a decision of 19 February 1997 the Regional Court resumed the proceedings. They were subsequently conducted against the trustee in insolvency of the insolvent company.

Hearings were held on 18 April, 9 May and 20 June 1997. Hearings scheduled for 23 July and 20 August were adjourned. Further hearings were held on 12 September and 19 December 1997 and on 30 January 1998.

On the last date the Regional Court gave a judgment and awarded 57,013 Polish zlotys (PLN) to the applicant, representing the reimbursement of the arrears of a monthly civil law pension, to be paid from the estate in insolvency. It dismissed the remainder of the claim. The applicant appealed. By a decision of 30 April 1998 the appellate court dismissed his appeal on formal grounds. On 14 May 1998 the applicant lodged an interlocutory appeal against this decision, which was dismissed by the appellate court on 18 June 1998.

On 21 July 1998 the applicant lodged a cassation appeal with the Supreme Court against the decision of 18 June 1998. On 17 November 1998 the Supreme Court quashed the contested decision and remitted the case for reconsideration.

On 29 October 1999 the appellate court quashed the judgment of the Regional Court in part and remitted this part of the case for reconsideration. It upheld the judgment in respect of the award of PLN 57,013 to the applicant by the Regional Court.

On 13 January 2000 the applicant lodged a cassation appeal against this judgment. On 24 January 2001 the Supreme Court dismissed his cassation appeal, finding it manifestly ill founded.

On 23 October 2000 the insolvency proceedings ended. Subsequently, civil proceedings were conducted against the Guaranteed Occupational Benefits Fund (Fundusz Gwarantowanych Świadczeń Pracowniczych) (“the Fund”).

By a judgment of 5 August 2002 the Regional Court dismissed the remainder of the applicant's claim which had not been determined by the partial judgment given in 1998. The court observed that under the applicable law certain obligations of employers who either became insolvent or ceased to exist for other reasons were to be covered by the Fund. However, according to the Regional Court the Fund was not responsible for the obligations of such employers, be they private or State owned, to pay a complementary civil law pension in respect of the occupational disability of an employee.

The applicant appealed. On 24 January 2003 the Katowice Court of Appeal dismissed his appeal. This judgment was served on the applicant's legal-aid lawyer on 3 March 2003. On 12 March 2003 the lawyer informed the applicant that he saw no grounds on which to prepare a cassation appeal to the Supreme Court.

Subsequently, the applicant hired a lawyer who prepared a cassation appeal against the judgment of the appellate court and lodged it with the Supreme Court. It was accepted for examination by a decision of 9 June 2004.

On 17 March 1994 the Gliwice District Court declared that the applicant's former employer, a State owned company, had become insolvent. On 12 May 1994 the applicant submitted a list of his claims against the estate in insolvency in the amount of PLN 45,000, representing the compensatory pension due to him.

On 24 December 1994 the court-appointed expert prepared an expert report to the effect that the compensatory pension due to the applicant amounted to PLN 6,090.01. The applicant appealed.

On 7 November 1995 another expert report was submitted to the court. The compensatory pension due to the applicant was assessed at PLN 3,534.88.

By a decision of 4 December 1995 the District Court assessed the amount due to the applicant at PLN 31,244.88. On 18 December 1995 the applicant lodged an interlocutory appeal against this decision.

On 9 November 1999 the applicant filed with the Gliwice District Court an objection against the plan for the final division of the estate in insolvency among its various creditors.

On 6 April 2000 the Gliwice District Court amended the plan. It awarded the applicant PLN 88,257.87, representing the unpaid disability pension. The applicant received PLN 41,771.19.

3. Compensation proceedings instituted under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Law”)

On 3 December 2004 the applicant lodged with the Katowice Regional Court an action against the State Treasury for compensation for damage caused by the excessive length of the civil proceedings, based on Article 417 of the Civil Code read together with section 16 of the 2004 Law. He argued that he had suffered pecuniary damage in that the courts dealing with his case had wrongly established the amount of his civil law pension. He further submitted that a part of the pecuniary damage he had sustained had resulted from the excessive length of the proceedings. Had the courts given a judgment earlier and, in particular, before the date on which the insolvency proceedings ended, he would have obtained payment from the estate in insolvency which was liable to pay civil law disability pensions. After that date, the proceedings were conducted against the Fund. However, under the applicable laws the Fund was not responsible for this kind of civil law obligation owed by an insolvent or liquidated employer.

By a judgment of 20 May 2005 the Regional Court dismissed the applicant's compensation claim. The court first related the history of the proceedings. It reiterated that for liability in tort to arise, the claimant had to show that he or she had suffered damage resulting from an unlawful act of a person acting on behalf of the State Treasury. In so far as the applicant argued that the damage which he had sustained had resulted from the courts' unlawful judgments by which his civil law claim was partly dismissed, this argument had to be dismissed. The lawfulness of the judgments issued by the first-instance courts in the applicant's case had been examined by the appellate court and subsequently by the Supreme Court.

In so far as the applicant had submitted that he had suffered damage as a result of the excessive length of the proceedings, the court held that the proceedings had been conducted efficiently and speedily. The only objection which could be made was that a relatively long time had elapsed between the applicant's request for the proceedings to be resumed and the decision by which they were ultimately resumed in 1997.

In so far as the applicant had claimed compensation for non-pecuniary damage, the court further noted that the Civil Code provided for this only in cases where the party had either suffered damage to life or limb or where his or her personal rights had been breached. None of these circumstances obtained in the present case, which concerned exclusively the excessive length of civil proceedings. Consequently, the applicant's claim for compensation for non pecuniary damage arising out of the excessive length of proceedings could not be allowed.

On 13 January 2006 his appeal was dismissed by the Katowice Court of Appeal. By a decision of 10 October 2006 the Supreme Court refused to hear a cassation appeal by the applicant.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Act 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”), 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.

In particular, section 16 of the Act refers to proceedings that have been terminated in the following terms:

“A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”

The applicant complained, relying on Article 3 of the Convention, that the courts dealt with his case in a superficial and unlawful manner which had caused him severe distress, and that no due regard was given to his difficult financial and health situation.

The applicant complained under Article 6 § 1 of the Convention that the proceedings in his case lasted an unreasonably long time.

He further submitted, relying on Article 13 of the Convention, that he was deprived of his right to an effective domestic remedy, as the legal-aid lawyer assigned to represent him had refused to prepare a cassation appeal against the second-instance judgment. As a result, he had to hire a lawyer privately, despite his difficult financial situation.

He further complained, under the same provision, that he did not have any effective remedy to complain about the length of the proceedings because his compensation claim was dismissed.

The applicant further submitted, relying on Article 14 of the Convention, that he was treated by the courts in a discriminatory manner in that firstly the defendant company and afterwards the trustee of the estate in insolvency were favoured by the courts.

The applicant complained about the length of the proceedings and that he had no effective remedy at his disposal. He relied on Articles 6 § 1 and 13 of the Convention which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

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.

By a letter dated 28 May 2008 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 the application in accordance with Article 37 of the Convention.

“(...) the Government hereby wish to express - by way of unilateral declaration — its acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved.

In these circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of 18,000 PLN.

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 of 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 above sum can be considered reasonable in the light of the Court's case-law. The Government would like to reiterate that the said sum is the maximum compensation for protracted length of the proceedings which may be awarded under the provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). As it has been confirmed in the Court's case-law the remedy provided for in the 2004 Act is capable of providing the applicants with appropriate redress for the alleged damage resulting from the length of the proceedings (Krasuski v. Poland, judgment of 14 June 2005, application no. 61444/00), thus satisfying the “effective remedy” requirement within the meaning of Article 35 § 1 of the Convention.

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”.

In a letter of 30 June 2008 the applicant expressed the view that the sum mentioned in the Government's declaration was unacceptably low.

The Court reiterates that Article 37 of the Convention provides that 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”.

It also notes that in certain circumstances it may strike out an application or part thereof 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.

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).

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 and about the lack of an effective remedy capable of providing redress for a breach of this right (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 ....; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; Kudła v. Poland [GC], no. 30210/96, ECHR 2000-IX, §§; and Charzyński v. Poland (dec.) no. 15212/03, HR 2005- ..., §§).

Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in 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).

The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impugned proceedings.

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 the part of the application in respect of the complaint under Article 6 § 1 (Article 37 § 1 in fine).

The applicant also complained about a lack of an effective remedy to complain about the length of the proceedings, relying on the fact that his compensation claim was dismissed The Court further considers that the applicant's main complaint concerning the length of the proceedings has been satisfactorily addressed in the unilateral declaration and that the terms of that declaration adequately redress the ancillary complaint under Article 13 of the Convention.

The applicant further complained, relying on Article 3 of the Convention, that the courts had dealt with his case in a superficial and unlawful manner which had caused him severe distress. He also alleged that he had been treated by the courts in a discriminatory manner in that firstly the defendant company and afterwards the trustee of the estate in insolvency were favoured by the courts. Finally, the applicant complained of a breach of Article 1 of Protocol No. 1 to the Convention in his case.

The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Takes note of the terms of the respondent Government's declaration in respect of the complaint under Articles 6 § 1 of the Convention 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 complaints in accordance with Article 37 § 1 (c) of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Edward TOBOREK v Poland - 31835/03 [2008] ECHR 1179 (30 September 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1179.html Cite as: [2008] ECHR 1179