CASE OF RUTKOWSKI AND OTHERS v. POLAND

1. The case originated in three applications (nos. 72287/10, 13927/11 and 46187/11) 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 three Polish nationals, Mr Wiesław Rutkowski (“the first applicant”), Mr Mariusz Orlikowski (“the second applicant”) and Ms Aleksandra Grabowska (“the third applicant”). The applications were lodged on 30 November 2010, 21 February 2011 and 21 July 2011 respectively.
2. The first applicant was represented by Mr A. Bodnar and Ms I. Pacho, lawyers working for the Helsinki Foundation for Human Rights. The second applicant was represented by Mr M. Kowalczyk, a lawyer practising in Łódź, and the third applicant by Ms A. Dawidowska, a lawyer practising in Poznań.
The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3. The applicants alleged a violation of Article 6 § 1 of the Convention on account of the unreasonable length of proceedings in their cases and a violation of Article 13 of the Convention on account of the defective operation of a domestic remedy for the excessive length of judicial proceedings.
4. On 2 October 2012 the applications were communicated to the Government pursuant to Rule 54 § 2(b) of the Rules of Court. It was also decided to examine the merits of the applications at the same time as their admissibility (former Article 29 § 3 of the Convention) and to grant the case priority under Rules 41 and 61 § 2(c). The Chamber further decided to inform the parties that it was considering the possibility of applying the pilot-judgment procedure in the case. It invited them to submit written observations on the existence of a systemic problem of excessive length of proceedings and ineffective operation of a domestic remedy in that respect, the suitability of applying the pilot-judgment procedure and on the admissibility and merits of the case.
A. Polish length-of-proceedings cases before the Court
5. 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 enacted the Law of 17 June 2004 on complaint about breach of the right to have a case examined in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”) (see also paragraphs 75-83 below).
Subsequently, following the introduction of the Law of 20 February 2009 on amendments to the law on complaint about breach of the right to have a case examined in judicial proceedings without undue delay ( ustawa o zmianie ustawy o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2009 Amendment”) the name of the 2004 Act was altered to the Law on complaint about breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki (see also paragraphs 84-89 below).
6. The Court has previously considered 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 Krasuski v. Poland, no. 61444/00, §§ 68-73, ECHR 2005 ‑ V (extracts). In consequence, in 2005 over 600 Polish cases involving complaints of excessive length of proceedings, which were at that time pending before the Court, were rejected by committees of three judges under former Article 28 of the Convention on the grounds of non-exhaustion of domestic remedies.
7. However, since then every year at least 100 prima facie well-founded applications concerning complaints of breaches of the right to a hearing within a reasonable time have been lodged with the Court by persons who have exhausted the remedies under the 2004 Act. As in the present three cases the facts of which are described below, and in 591 cases to be communicated listed in the annex to this judgment (see also paragraphs 209 ‑ 212 below), the applicants complained under Article 6 § 1 of the unreasonable length of civil or criminal proceedings and under Article 13 of the domestic courts ’ refusal to grant them sufficient just satisfaction for a breach of their right to a hearing within a reasonable time.
As regards their grievances under Article 13, all the applicants in essence maintained that the Polish courts dealing with their complaints under the 2004 Act had failed to comply with the principles established by the Court with respect to the “reasonable-time” requirement laid down in Article 6 § 1 and the criteria for “appropriate and sufficient redress” to be afforded at domestic level for a breach of that requirement (for the relevant criteria, see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 195-216 and 272, ECHR 2006 ‑ V).
8. Between 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), and 31 December 2014 the Court has delivered further 419 judgments where the same breach was found. It is to be noted that 280 of those judgments were given in 2005-2011, after the entry into force of the 2004 Act. In addition, between 2005 and 2011 the Court struck out of its list of cases 358 applications where the parties had either concluded a friendly-settlement agreement or where the Court accepted the Government ’ s unilateral declaration acknowledging a violation of Articles 6 § 1 and 13.
9. Pending the outcome of the pilot-judgment procedure in the present case and having regard to the aim of that procedure, which is to facilitate the most speedy and effective resolution of a dysfunction at domestic level through general measures whereby the State provides a global solution for all the persons actually affected and prevents similar repetitive violations in the future (see Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 35, ECHR 2005 ‑ IX and Hutten-Czapska v. Poland [GC], no. 35014/97, § § 234 and 236, ECHR 2006 ‑ VIII), at the end of 2012 the Court put on hold Polish applications alleging exclusively excessive length of judicial proceedings. Since then, the Government have been notified only of cases granted priority or cases involving mostly other substantiated complaints, where the length of proceedings has represented merely a secondary or peripheral issue.
Subsequent developments of the caseload have demonstrated the growth in the number of new applications to the Court under this head. In 2013-14 256 prima facie well-founded cases were lodged, of which 144 were registered as ready for decision in 2014.
10. As of the date of adoption of this judgment, 650 cases involving mainly, or at least partly, complaints about the length of civil (1 57 cases) and criminal (4 93 cases) proceedings are pending before the Court, of which 3 3 have been communicated to the Polish Government and the remainder earmarked for communication and examination under Article 28 § 1 (b) of the Convention.
B. Polish length-of-proceedings cases pending before the Committee of Ministers
11. In total, 537 Polish cases are currently pending execution before the Committee of Ministers.
As of the date of adoption of the judgment, the above number included 393 cases involving a violation of the right to a hearing within a reasonable time. They are divided into three groups concerning, respectively, criminal proceedings (68 cases), civil proceedings (240 cases) and administrative proceedings (85 cases).
12. The Committee of Ministers classified the Polish length ‑ of ‑ proceedings cases as suitable for the enhanced supervision procedure. That procedure was introduced by the Committee of Ministers on 1 January 2011, as part of the implementation of the Interlaken Plan. Indicators for cases to be examined under that procedure are as follows: judgments requiring urgent individual measures; pilot judgments; judgments disclosing major structural and/or complex problems as identified by the Court and/or the Committee of Ministers and Inter-State cases.
II. THE CIRCUMSTANCES OF THE CASES
A. The case of Mr Rutkowski (application no. 72287/10)
13. The applicant was born in 1959 and lives in Warszawa.
1. Criminal proceedings against the applicant (case no. III K 1878/05)
14. On 18 September 2002 the applicant, who was a policeman, was arrested on suspicion of participating in an organised criminal group and corruption. On 20 September 2002 he was charged with those offences and remanded in custody.
15. On 5 December 2002 the prosecutor signed a bill of indictment against the applicant and fifteen co-accused. The applicant was indicted on charges of participating in an organised criminal group, abuse of power and corruption.
16. On an unspecified date in December 2002 the Warsaw Regional Prosecutor ( Prokurator Okręgowy) lodged the bill of indictment with the Warsaw-City District Court ( Sąd Rejonowy ).
17. On 14 May 2003 the court issued a severance order, deciding that the accused policemen be tried separately; however, no trial date was scheduled.
18. On 30 May 2003 the applicant was released.
19. On 20 November 2003 the court ordered that the accused policemen ’ s case be joined with another case. No trial date was scheduled.
20. On 24 May 2005 the Warsaw-City District Court decided that it did not have competence to deal with the case and referred it to the Warsaw ‑ Mokotów District Court. The decision became final on 28 July 2005 but the case-file was not transferred to that court until 18 November 2005.
21. The proceedings before the Warsaw Mokotów District Court started on 21 September 2006. One of the reasons for the delay was that, on 10 July 2006, the court had found that the accused had not yet been served with a copy of the bill of indictment, which should normally have taken place at the initial stage of the judicial proceedings.
Up to the end of 2006 the court held fourteen hearings. In the first half of 2007 eight hearings took place.
22. On 19 July 2007 the Warsaw Mokotów District Court held that as a result of amendments to the criminal law that had meanwhile entered into force, it no longer had competence to deal with the case and referred it to the Warsaw Regional Court. The parties appealed.
23. On 15 November 2007 the District Court found that the appeals were well-founded and quashed its decision on referral. The case-file, which had meanwhile been transferred to the Regional Court, was returned in June 2008.
24. The trial before the District Court restarted in June 2008. However, as so much time had elapsed, it had to be conducted from the beginning. In 2008 the court held eleven hearings, in 2009 ten hearings and in 2010 seven hearings.
25. On 21 July 2010 the Warsaw Mokotów District Court acquitted the applicant.
2. Proceedings under the 2004 Act (case no. X S 40/10)
26. On 16 April 2010 the applicant lodged a complaint under the 2004 Act (hereafter also referred to as “length complaint”) with the Warsaw Regional Court ( Sąd Okręgowy ) He sought a finding that the length of the proceedings had been excessive and 20,000 Polish zlotys (PLN) (approximately 5,000 euros (EUR)) in compensation.
On 1 June 2010 the Warsaw Regional Court held that the length of the proceedings had been excessive from 17 September 2004 to 18 November 2005 (see also paragraph 20 above) and awarded the applicant PLN 2,000 (approximately EUR 500) in compensation. In its assessment of the length of the proceedings, the court took into account only the period starting from 17 September 2004, i.e. the date on which the 2004 Act entered into force.
As regards the period after 18 November 2005, the Regional Court found that, despite the fact that “in the first half of 2006, at the stage of preparation for the trial and during the initial hearings the court ’ s actions [had been] somewhat chaotic and the court had not avoided certain shortcomings”, the proceedings had been conducted with due diligence. In consequence, the court 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”
27. In the absence of domestic remedies, the Court ’ s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration (see paragraphs 126-128 and 132 below) and sums usually granted in similar Polish cases would amount to PLN 38,000.
The applicant was awarded approximately 5.5% of that sum.
On the date of the national court ’ s decision on the applicant ’ s complaint, namely 1 June 2010 (see paragraph 26 above) a domestic award, determined with reference to the Court ’ s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§ 195-216 and 272) should have reached at least PLN 13,200 in order for the applicant to lose his victim status.
B. The case of Mr Orlikowski (application no. 13927/11)
28. The applicant was born in 1963 and lives in Łódź.
1. Pre-trial proceedings for securing evidence
29. On 8 September 1998 the applicant lodged an application for the securing of evidence with the Łódź District Court.
Pursuant to Article 310 of the Code of Civil Procedure, such an application can be lodged by a prospective party before the initiation of a civil action if there is a fear that the taking of specific evidence will be impossible or too difficult, or if there is a need to establish the state of affairs.
The applicant, who intended to bring a civil claim against his landlord for damages resulting from defective performance of a lease contract, asked the court to obtain an expert report determining the state and value of outlays that he had made on the commercial premises that he had rented.
The report was submitted to the court on 20 November 1998. A copy thereof was served on the applicant on 8 December 1998.
2. Civil proceedings instituted by the applicant (case no. II C 566/06; I A Ca 750/10)
30. On 4 March 1999 the applicant lodged an action for damages with the Łódź Regional Court ( Sąd Okręgowy ). He also asked the court to secure his claim. An order securing the claim by means of a mortgage on the defendant ’ s property was given on 17 May 1999.
31. The first hearing was held on 20 September 1999. The next hearing took place on 9 November 2000.
In the meantime, the court dealt with some procedural matters involved in the defendant ’ s interlocutory appeal against the order securing the claim, which was accompanied by his various other requests, such as applications for exemption from court fees or for retrospective leave to appeal out of time.
32. Overall, from 4 March 1999, namely the date on which the claim was lodged, to 6 November 2001 the Regional Court held six hearings and heard evidence from the parties and nine witnesses. The hearings were held on 20 September 1999, 9 November 2000, 17 May, 4 September, 4 October and 6 November 2001.
33. On 30 November 2001 the court gave judgment and rejected the applicant ’ s claim in its entirety. The applicant appealed on 24 January 2002.
34. On 4 September 2002 the Łódź Court of Appeal ( Sąd Apelacyjny ) quashed the first-instance judgment and remitted the case.
35. The re-trial started on 28 November 2002.
From that date to 16 May 2005 the Regional Court scheduled four hearings, which were held on 3 February and 3 April 2003, 31 March 2004 and 16 May 2005. It heard evidence from a witness, an expert and the parties. The applicant modified his claim on 16 May 2005.
36. In the meantime, on 31 March 2004 the court had decided to take evidence from an expert in construction. The expert submitted his report on 13 September 2004.
37. On 2 June 2005 the Łódź Regional Court gave its second judgment, partly allowing the applicant ’ s claim.
38. The judgment was partly quashed on the defendant ’ s appeal and the case was remitted by the Łódź Court of Appeal on 28 March 2006. On 17 May 2006 the case-file was returned to the Regional Court.
39. On 25 May 2006 the Regional Court ordered the parties to apply for the taking of further evidence that they wished to submit, on pain of rejecting any such subsequent requests. On 13 June 2006 the applicant asked the court to take evidence from one witness and from himself as a party. On 19 June 2006 the defendant asked the court to obtain evidence from two experts.
40. The re-trial started on 20 September 2006. From that date to 19 March 2010 the court scheduled five hearings, which were held on 17 November 2006, 18 July 2007, 5 September 2008, 1 April 2009 and 19 March 2010. It heard evidence from two witnesses, three experts and the parties
41. In the meantime, on 29 December 2006, the court had ordered that evidence from an expert in construction be obtained. It fixed a thirty-day time-limit for submission of his report. The expert submitted the report on 19 March 2007. The defendant asked the court to take evidence from another expert.
42. 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 respectively they informed the court that their negotiations had failed.
43. On 8 November 2007 the court ordered that evidence from three experts – in construction, accountancy and air-conditioning and ventilation – be obtained.
The construction expert submitted his report on 7 January 2008, the expert-accountant submitted his report on 22 October 2008 and the air ‑ conditioning expert submitted his report on 2 November 2009. The intervals between those dates were caused by the fact that the court waited until each expert had finished his work before sending the materials in the case-file to the following expert.
Also, the expert in air-conditioning on several occasions asked the court to extend the time-limits set for submission of his report, which he justified by the volume of his work on other reports, long holidays and difficulties in obtaining a document or in setting a date for an on-site inspection of the premises. The court granted all his requests.
44. On 16 April 2010 the Łódź Regional Court delivered its third judgment, rejecting the applicant ’ s claim in its entirety. The applicant appealed on 6 August 2010.
45. On 5 November 2010 the Łódź Court of Appeal heard the appeal. On 19 November 2010 it partly allowed the applicant ’ s appeal, altered the contested judgment and granted the applicant ’ s claim up to the amount of PLN 56,770, with statutory interest.
3. Proceedings under the 2004 Act (case no. I S14/10)
46. On 4 May 2010 the applicant lodged a complaint under the 2004 Act with the Łódź Court of Appeal ( Sąd Apelacyjny ). He sought a finding that the length of the proceedings had been excessive and PLN 10,000 Polish zlotys in compensation.
47. On 2 June 2010 the Łódź Court of Appeal dismissed the applicant ’ s complaint. The court concluded that, given the complexity of the case and the need to obtain evidence from experts in three different fields, the proceedings had been conducted in a correct and timely manner.
In its assessment of the length of the proceedings, the court took into account only the period after 28 March 2006, namely the date on which the Court of Appeal had partly quashed the Regional Court ’ s judgment of 2 June 2005 (see also paragraph 38 above).
4. Application of the “Scordino (no. 1) criteria”
48. In the absence of domestic remedies, the Court ’ s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration, (see paragraphs 126-128 and 144 below) and sums usually granted in similar Polish cases would amount to PLN 36,400.
On the date of the national court ’ s decision on the applicant ’ s complaint, i.e. 2 June 2010 (see paragraph 47 above) a domestic award, determined with reference to the Court ’ s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§ 195-216 and 272) should have reached at least PLN 11,000 in order for the applicant to lose his victim status.
C. The case of Ms Grabowska (application no. 46187/11)
49. The applicant was born in 1955. She lives in Poznań.
50. 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 which had been inherited by the applicant.
2. Proceedings for adverse possession (VII Ns 2545/99; VII Ns 1543/05; VII Ns 1967/08)
51. On 15 December 1999 A.T. and four other persons applied to the Gdynia District Court for adverse possession ( zasiedzenie ) of the property in question. The applicant was not notified of the proceedings.
52. 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.
53. On 12 April 2000 the applicant informed the District Court that she wished to join the proceedings.
54. From 15 December 1999 to 19 April 2006 the court heard evidence from four witnesses and two participants in the proceedings. It also ordered that a press announcement be published to all unknown heirs or heirs whose whereabouts were unknown of one of the late predecessors in title to the property.
55. On 19 April 2006 the Gdynia District Court decided that A.T. and four other persons had acquired a half share in the property by adverse possession.
56. The applicant appealed on an unspecified date in April or May 2006.
57. On 18 October 2007 the Gdańsk Regional Court ( Sąd Okręgowy ) quashed the first-instance decision and remitted the case, holding that the District Court had failed to make the necessary findings of fact and to determine the merits of the case. Also, the proceedings had been flawed by procedural shortcomings, such as the court ’ s failure to serve copies of the 1999 application for adverse possession on all the interested parties ‑ including the applicant.
During the appellate proceedings the court re-opened the case after the hearing and three times adjourned delivery of its decision.
58. 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.
59. On 20 September 2008 the applicant was served with a copy of the 1999 application for adverse possession. The document was incomplete, as some pages and appendices were missing. The court informed the applicant that she was entitled to submit a response to the application.
60. On 3 March 2009 the court summoned a certain M.T. to join the proceedings.
61. During the hearing held on 24 April 2009 the court found that the proceedings also concerned the interests of the second husband of one of the petitioners and ordered that the petitioners produce his heirs ’ personal details and addresses and serve them with a copy of the application for adverse possession. The parties were informed that the next hearing would not take place before August 2009 because of the judge rapporteur ’ s planned holidays.
62. On 6 July 2009 the Gdynia District Court summoned a certain J.M.P. to join the proceedings.
63. On 21 September 2009 the proceedings were suspended as the petitioners had failed to produce an extra copy of the 1999 application for adverse possession, which had to be served on J.M.P.
64. On 25 October 2010 the applicant applied for discontinuation of the proceedings.
65. On 4 November 2010 the Gdynia District Court resumed the proceedings and scheduled a hearing for 17 December 2010.
66. Between December 2010 and December 2011 the District Court scheduled four hearings and summoned further persons to join the proceedings. A hearing scheduled for 8 February 2011 had been cancelled because the case-file had meanwhile been transmitted to the Gdańsk Regional Court together with a complaint lodged by the applicant under the 2004 Act, alleging that the length of the proceedings had been excessive (see paragraphs 72-73 below).
67. On 21 February 2012 the District Court gave the second decision on the merits. The applicant appealed on 1 April 2012.
68. On 14 November 2012 the Mayor of the City of Gdynia applied to the Regional Court to be summoned as a party to the proceedings. It was submitted that the District Court had erroneously summoned the Gdańsk First Tax Chamber as the State Treasury ’ s representative and party in the proceedings. Subsequently, on an unknown date, the Regional Court summoned the Mayor of the City of Gdynia to join the proceedings as a party.
69. On 28 November 2012 the Mayor filed an appeal against the decision of 21 February 2012, invoking the nullity of the entire proceedings on the grounds that it had been impossible to defend his rights.
The appellate hearing, which was scheduled for 19 December 2012, was cancelled.
70. On 10 April 2013 the Regional Court held a hearing. The case was closed and the court announced that the judgment would be delivered on 24 April 2013. However, on that date the court reopened the case and fixed a fresh date for a hearing for 4 June 2013.
71. On 4 June 2013 the Court of Appeal again heard the appeals lodged by the applicant and the Mayor of the City of Gdynia.
On 18 June 2013 the court gave judgment. It partly amended the first ‑ instance decision and dismissed the remainder of the appeals.
3. Proceedings under the 2004 Act (case no. III S 175/10)
72. 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 PLN 20,000 Polish in compensation.
73. On 31 January 2011 the Gdańsk Regional Court dismissed the applicant ’ s complaint. In its assessment of the length of the proceedings, the court did not to take into account the period before 17 September 2004, namely the date on which the 2004 Act had entered into force, holding that the 2004 Act applied only to the excessive length of proceedings occurring on the date of its entry into force. As regards the subsequent period, it held that the proceedings could not be said to have been excessively long, given that it had been necessary to secure the participation and representation of all the interested parties in the proceedings.
4. Application of the “Scordino (no. 1) criteria”
74. In the absence of domestic remedies, the Court ’ s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration (see paragraphs 126-128 and 154 below) and sums usually granted in similar Polish cases, would amount to PLN 42,000.
On the date of the national court ’ s decision on the applicant ’ s complaint, namely 31 January 2011 (see paragraph 73 above), a domestic award, determined with reference to the Court ’ s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§ 195-216 and 272) should have reached at least PLN 11,000 in order for the applicant to lose her victim status.
III. RELEVANT DOMESTIC LAW AND PRACTICE
1. Explanatory notes to the draft 2004 Act
75. In the explanatory notes to the 2004 Act it was underlined that the aim of the proposed legislation was to implement the principle laid down in Article 45 of the Constitution guaranteeing everyone the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court – a provision inspired by Article 6 § 1 of the Convention, setting forth the right to a “hearing within a reasonable time”.
“The absence of appropriate legislation in this respect and the numerous complaints about excessive length of proceedings in Poland, have repeatedly been assessed negatively by the European Court of Human Rights. The present draft implements the recommendations on measures to prevent the excessive length of proceedings formulated in the ECHR ’ s judgment in the case of Kudła v. Poland. The aim of the draft is to introduce into the Polish legal system remedies enabling a party to court proceedings to prevent excessively lengthy proceedings from continuing and to obtain appropriate redress. ...
Putting in place an effective mechanism preventing excessively lengthy proceedings will also stop applications based on these grounds being lodged with the European Court of Human Rights (Poland is in the group of countries which lose the biggest number of cases before the ECHR). Lodging an application with the ECHR will only be possible once remedies provided for in the present draft have been exhausted. Obtaining compensation by virtue of the ECHR ’ s judgment will only be possible where ... a complaint about excessive length of proceedings has not prevented a breach of a party ’ s right to have a case examined within a reasonable time or where a party has not obtained appropriate compensation. ...
[T]he hitherto existing procedure for seeking compensation for excessive length of proceedings (only an application to the ECHR) would result in significantly higher budgetary expenses on individual cases. Currently, these expenses are lower only because of the difficulties involved in lodging an application and the length of time [taken by the Court] for its examination. The number of applications being made to the ECHR is growing and repetitive violations may have an impact on the amounts awarded as just satisfaction.”
76. Section 2 of the 2004 Act, as applicable before the introduction of the 2009 Amendment (see also paragraph 5 above and paragraphs 84-86 below), read, in so far as relevant, as follows:
“1. If proceedings in a case have lasted longer than it is necessary in order to examine the factual and legal circumstances of the case that are essential for its determination or longer than it is necessary for the conclusion of enforcement proceedings or other proceedings concerning the execution of a court decision, a party may lodge a complaint about a breach of his right to have a hearing without undue delay (excessive length of proceedings).
2. For the purposes of determining whether [the length of proceedings] in a case has been excessive, [a court] should, in particular, assess the promptness and correctness of actions taken by the court [dealing with the case] in order to give a decision on the merits or by the court [dealing with the case] or court bailiff in order to handle and terminate ... the proceedings, having regard to the nature of the case, its factual and legal complexity, what is at stake for the party who has lodged the complaint, the issues examined and the conduct of the parties, especially the party alleging excessive length of the proceedings.”
4) in criminal proceedings – by a party ( strona ) or a victim ( pokrzywdzony ), even if he is not a party;
5) in civil proceedings – by a party, an intervener (interwenient uboczny) or a participant (uczestnik postępowania); ...”
78. Section 4, as applicable before the 2009 Amendment (see paragraph 87 below) provided, in so far as relevant:
“1. The complaint shall be examined by the court immediately above the court in which the impugned proceedings are pending.
2. If the complaint concerns the excessive length of proceedings before a court of appeal or the Supreme Court, it shall be examined by the Supreme Court. ...”
79. Section 5 read, in so far as relevant:
“1. A complaint about the excessive length of the proceedings to which the complaint relates shall be lodged in the course of the proceedings in the case.”
80. Section 6, as applicable before the 2009 Amendment (see paragraph 88 below), read, in so far as relevant, as follows:
“1. A complaint should satisfy the requirements prescribed for a written pleading (pismo procesowe).
2. A complaint should also include:
1) a request for a finding that the length of the impugned proceedings has been excessive;
2) circumstances supporting the request.
3. A complaint may also include a request for the court dealing with the case to be instructed to take appropriate actions within a fixed time-limit and for appropriate just satisfaction ( odpowiednia suma pieniężna) as referred to in section 12(4).”
81. Section 12 sets out certain forms of relief that may be granted by the court dealing with a length complaint. The version applicable before the 2009 Amendment (see paragraph 89 below), read, in so far as relevant, as follows:
“1. The court shall dismiss a complaint which is unjustified.
2. Allowing a complaint, the court shall make a finding that the length of the impugned proceedings has been excessive.
3. At the complainant ’ s request, the court may instruct the court dealing with the case to take appropriate actions within a fixed time-limit. Such instructions may not interfere with the factual and legal assessment of the case.
4. Allowing a complaint the court may, at the complainant ’ s request grant ... just satisfaction in an amount not exceeding 10,000 Polish zlotys. If just satisfaction is to be paid by the State Treasury, payment shall be made out of the budget of the court which conducted the [impugned] proceedings.”
82. Section 15 provides for an additional compensatory remedy, which may be enforced by the lodging of a civil claim for compensation under the rules of the State ’ s liability for a tort, laid down in the Civil Code (see also paragraphs 90-92 below). It reads, in so far as relevant, as follows:
“1. A party whose complaint has been allowed may seek compensation from the State Treasury ... for the damage suffered as a result of the excessive length of the proceedings.”
2. A decision allowing a complaint, in so far as it has established the excessive length of proceedings, is binding on a court in civil proceedings for compensation for pecuniary or non-pecuniary damage ( odszkodowanie lub zadośćuczynienie ). ”
83. Section 16 affords the same compensatory remedy to persons who have not lodged a length complaint under section 5 when the proceedings in their case have been pending. It reads, in so far as relevant, as follows:
“A party who has not lodged a complaint about the excessive length of proceedings under section 5 (1) may, after the final determination of the merits of the case, claim ‑ under Article 417 of the Civil Code ... – compensation for the damage which has resulted from the excessive length of the proceedings.”
84. On 20 February 2009 Parliament adopted the 2009 Amendment, a law designed to improve the effectiveness of a length complaint under the 2004 Act (see also paragraph 5 above).
1. Explanatory notes to the 2009 Amendment
85. The explanatory notes to the 2009 Amendment stated that its aim was to enhance the effectiveness of the 2004 Act since its application indicated that it did not constitute a fully effective remedy against excessive length of proceedings.
In the light of statistical information demonstrating the number of complaints in 2005-07 and amounts awarded it was concluded that even if the courts acknowledged excessive length of proceedings in a given case, they too rarely granted any compensation. The amounts awarded were also open to criticism as they often oscillated around 20% of the maximum statutory award – which, at the relevant time, was PLN 10,000, equivalent to some 2,500 euros (EUR).
The judicial practice in the application of the 2004 Act also showed that the courts, in their assessment of the length of proceedings, did not take into account the Court ’ s standards in terms of disregarding such factors as the impact of the previous conduct of the case on the situation on the date of the ruling on a complaint and the lack of an assessment as to whether the proceeding had lasted longer than was necessary to examine the case.
It was further stressed that the 2004 Act did not provide for any remedy against the excessive length of an investigation, contrary to Article 13 of the Convention, and that one of the aims of the 2009 Amendment was to rectify that lacuna in the law.
In order to enhance the effectiveness of a length complaint, the courts would to be obliged by law to award appropriate just satisfaction if the complaint was justified. Under the current rules the award was only optional and, as shown by the judicial practice, in the vast majority of cases the courts rejected claims for compensation or awarded merely symbolic sums of PLN 100-200 (some EUR 25-50).
It was stated that the proposed amendments would be in compliance with the Court ’ s case-law regarding the determination of sufficient just satisfaction at domestic level – in particular the Scordino (no. 1) judgment and standards for an effective remedy under Article 13. Indeed, the judicial practice that had developed after the Act ’ s entry into force had disclosed that the courts made only a fragmentary assessment of the length of proceedings. In situations where a complaint concerned proceedings before the first-instance court and on appeal, each stage was examined separately. That practice of “fragmentation” was incompatible with the aim of the 2004 Act and the Court ’ s case-law, according to which “proceedings” comprised all their stages. Consequently, the court dealing with a length complaint should take into account the entirety of proceedings.
86. In section 2 a new subsection 1a was inserted and subsection 2 was rephrased (see also paragraph 76 above).
“Section 1 shall apply accordingly to an investigation”
“ 2. For the purposes of determining whether [the length of proceedings] in a case has been excessive, [a court] should, in particular, assess the promptness and correctness of actions taken by the court [dealing with the case] in order to give a decision on the merits or actions taken by the prosecutor conducting or supervising the investigation in order to terminate the investigation or actions taken by the court [dealing with the case] or court bailiff in order to handle and terminate ...the proceedings, having regard to the nature of the case, its factual and legal complexity, what is at stake for the party who has lodged the complaint, the issues examined and the conduct of the parties, especially the party alleging excessive length of the proceedings.”
87. In section 4 new subsections 1a and 1b were inserted and a new subsection 5 was added at the end.
Subsections 1a and 1b read as follows:
“1a. If a complaint concerns the excessive length of proceedings before a district court and a regional court, it shall be examined in its entirety by a court of appeal.
1b. If a complaint concerns the excessive length of proceedings before a regional court and a court of appeal, it shall be examined in its entirety by a court of appeal. ”
“5. If a complaint concerns the excessive length of an investigation, it shall be examined by the court immediately above the court competent to deal with the subject-matter of the case.”
88. In section 6 subsection 3 was rephrased in the following way:
“3. A complaint may include a request for a court dealing with the case or a prosecutor conducting or supervising an investigation to be instructed to take appropriate actions within a fixed time-limit and for appropriate just satisfaction as referred to in section 12(4). ”
89. In section 12, subsections 3 and 4 were rephrased in the following way:
“3. At the complainant ’ s request or of its own motion, the court shall instruct the court [dealing with the case] or the prosecutor conducting or supervising the investigation to take appropriate actions within a fixed time-limit, unless instructions are obviously unnecessary. Such instructions may not interfere with the factual and legal assessment of the case.
4. Allowing a complaint the court may, at the complainant ’ s request, grant him ... just satisfaction in an amount ranging from 2,000 to 20,000 Polish zlotys to be paid by the State Treasury ...”
C. Civil Code provisions concerning the State ’ s liability for tort
90. Articles 417 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.”
91. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes ( Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw ) (“the 2004 Amendment”) entered into force.
Following the 2004 Amendment, Article 417 1 was added. In so far as relevant, it reads as follows:
“3. If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give one, 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 21 above) shall apply to all events and legal situations that subsisted before that date. Consequently, any claim for compensation for damage caused by the excessive length of proceedings based on Article 417 1 must relate to the period following its entry into force, the previous provision not being applicable to such claims.
92. Damage” as referred to in Article 417 1 means pecuniary damage, which is defined in Article 361 § 2 of the Civil Code as “losses and lost profits, which an aggrieved party could have made if he had not sustained damage.”
D. The Supreme Court ’ s relevant case-law
93. After the entry into force of the 2004 Act the Supreme Court ( Sąd Najwyższy ) on many occasions delivered rulings concerning the interpretation of the Act ’ s provisions. Several decisions took the form of a resolution given in response to a legal question put to the Supreme Court.
Between 2005 and 2012 the Supreme Court delivered various decisions and resolutions concerning the interpretation of the 2004 Act (see, in particular, the following rulings: 18 January 2005, III SPP 113/04; 18 February 2005 III SPP 14/05; 18 February 2005 III SPP 19/05; 12 May 2005 III SPP 76/05; 7 June 2005 III SPP 95/05, 8 July 2005 III SPP 120/05, 27 July 2005 III SPP 127/05, 16 November 2005 III SPP 162/05, 6 January 2006 III SPP 154/05, 6 January 2006 III SPP 167/05, 19 January 2006 III SPP 162/05, 21 February 2007 III SPP 5/07, 9 January 2008 III SPZP 1/07, 15 January 2008 III SPP 46/07, 9 February 2011 III SPP 34/10, 21 April 2011 III SPP 2/11, 26 January 2012 III SPP 42/11, 27 March 2012 III SPP 8/12, 9 September 2012 III SPP 20/11).
94. At the initial stage of the operation of the 2004 Act, the Supreme Court limited the Act ’ s temporal scope, excluding from the courts ’ examination delays that had occurred before its entry into force, unless such delays still continued (see also paragraphs 95-97 below).
Furthermore, in most rulings concerning the scope of competence of courts dealing with complaints under the 2004 Act the Supreme Court adopted a restrictive interpretation, limiting their competence to examination of only the current stage of the proceedings in a lower court. In consequence, the conduct of the impugned proceedings at previous instances where decisions on the merits had been given was not taken into account, despite the fact that those decisions were subsequently appealed against and quashed partly or entirely. This approach resulted in the so-called “fragmentation” ( fragmentaryzacja ) of the proceedings and the courts dealing with length complaints did not examine their entire length for compliance with the “reasonable time” requirement laid down in Article 6 § 1 but only had regard to their conduct at the instance immediately below – at which they were currently pending (see also paragraphs 98-100 below).
1. The 2004 Resolution (no. III SPP 42/04)
95. On 16 November 2004 the Supreme Court, sitting as a bench of seven judges, issued its first resolution concerning the interpretation of the 2004 Act, adopted in response to a legal question put by a panel of three judges of the Supreme Court. It concerned mainly the issue of legal representation in proceedings under the 2004 Act before the Supreme Court but on this occasion the Supreme Court also defined the purposes served by a length complaint. The relevant passage was consistently reiterated in subsequent rulings. It read as follows:
“... [a] complaint about the excessive length of proceedings is of a preliminary nature and constitutes an ad hoc measure preventing the current (continuing) excessive length of proceedings. Its purpose consists first of all in compelling [the court dealing with the case] to ensure that the case follows its proper, efficient course. This is achieved by a finding that the length of proceedings has been excessive (section 12(2) [of the 2004 Act]) and by the possibility of [asking the court to instruct] the court dealing with the case to take appropriate actions within a fixed time-limit.”
2. The 2005 Resolution (no. III SPP 113/04)
96. On 19 January 2005 the Supreme Court – the Chamber of Labour, Social Security and Public Affairs, sitting as a bench of three judges adopted a resolution in which it responded to a legal question put by the Poznań Regional Court, asking whether the 2004 Act applied if a party ’ s right to a hearing within a reasonable time had been violated as a result of the trial court ’ s actions or inactivity that had occurred before its entry into force, namely before 17 September 2004.
The question originated in a civil case concerning the division of co ‑ ownership, in which the proceedings had begun in 1992 and in which the relevant court ’ s inactivity causing the excessive delay had occurred before 17 September 2004.
97. The Supreme Court held that the 2004 Act applied to excessive length of proceedings occurring on the date of its entry into force but, at the same time, it had a partially retroactive effect since it also applied to delays caused by the court ’ s inactivity occurring before that date – if that delay still continued. The reasoning for the resolution read, in so far as relevant, as follows:
“[The 2004 Act] does not contain any specific provisions concerning principles of temporal scope of its application. ...
Its provisions read as a whole indicate that the private-law aim of [the 2004 Act] is realised only by those regulations which serve compensatory functions for established undue length of proceedings, the remaining [regulations] having a public-law character. A claim for appropriate just satisfaction from the State Treasury ... is only one of the reliefs that can be sought under [the 2004 Act]. From the point of view of the aims pursued by the act, the primary relief [for a complainant] is to seek a finding that the length of proceedings has been excessive (section 6(2)(1)) and to ask that the court dealing with the case be instructed to take appropriate actions within a fixed time-limit (section 6(2)(3)). First and foremost, the essential aim of [the 2004 Act] is to compel [the court] to conduct the case in an appropriate, efficient procedural manner. ...
Accordingly, having regard to these public-law purposes of the Act, the scope of its temporal application should be established on the basis of the principles of a democratic State ruled by law laid down in Article 2 of the Constitution, rather than with reference to regulations pertaining to private law. Those principles include, among other things, the principle of a rational legislature encompassing the principle that laws may not be applied retroactively. However, it must be stressed that the principle of non-retroactivity is not absolute. It applies only to provisions that aggravate the situation of those concerned; there is no obstacle to introducing retroactively provisions that improve a citizen ’ s legal situation. ...
[H]aving regard to the public interest pursued by ...[the 2004 Act], a partial departure from the principle of non-retroactivity is admissible, and even justified. It should be taken into account that the main rationale behind the enactment of [the 2004 Act] was the ECHR ’ s judgment of 26 October 2000 given in the case of Kudła v. Poland. The Court, considering the growing number of cases involving complaints about breaches of the reasonable-time requirement, changed its case-law and held that if the State ’ s legal order had not envisaged a possibility of having recourse to separate proceedings enabling [a person] to obtain redress for excessive length of proceedings, there was, in addition to a breach of Article 6 § 1, a violation of Article 13 of the Convention. ...
[In consequence], ... [the 2004 Act] applies where a party ’ s right to a hearing within a reasonable time has been violated as a result of the actions or inactivity of a court occurring before its entry into force and where the delay caused by those actions or that inactivity still continues on the date of its entry into force. This solution, ...allows the public-law aim of [the 2004 Act] to be realised from the beginning of its operation; as from its entry into force, all those situations where, despite the fact that the proceedings could have been conducted in a proper manner, they have been protracted owing to the incorrect actions or omissions of the court and this state of affairs continues, can be dealt with without unnecessary delay. ...
The principle [of non-retroactivity] would be violated if [the 2004 Act] were to be applied to “undue delays” that ended before the Act ’ s entry into force (i.e. in situations where delay occurred but ended before the entry into force and where, on that date, the proceedings in question are being conducted efficiently).”
3. Fragmentation of proceedings under the 2004 Act
98. The principle of fragmentation of proceedings that were the object of a length complaint under the 2004 Act was confirmed in several rulings of the Supreme Court.
99. For instance, in a decision ( postanowienie ) of 18 February 2005 given by a bench of three judges (no. III SPP 14/05) the Supreme Court refused to examine a complaint alleging the excessive length of proceedings that had been conducted in the Warsaw Regional Court at first instance, in the Warsaw Court of Appeal at second instance and, following remittal, again in the Regional Court in so far as the complaint concerned delays before the Regional Court. It referred that part of the complaint to the Court of Appeal for consideration and rejected it in respect of the appellate proceedings since they had been terminated by the judgment remitting the case. It held, inter alia, as follows:
“Pursuant to section 4(1) and (2) of [the 2004 Act], a complaint about the excessive length of proceedings shall be examined by the court immediately above the court before which the impugned proceedings are pending. If a complaint concerns the excessive length of proceedings before a court of appeal or the Supreme Court, it shall be examined by the Supreme Court. The [present] case is undoubtedly pending before the Warsaw Regional Court and, therefore, the competence of the Warsaw Court of Appeal to examine [the complaint] is obvious, at least in so far as the proceedings before the Warsaw Regional Court are concerned. The competence of the Supreme Court could – at most – have been justified in respect of the proceedings before the Court of Appeal but the case is no longer pending before that court. Certainly, there is no basis to consider that the Supreme Court has competence to deal with the complaint in so far as it concerns the proceedings currently pending before the Regional Court.
Moreover, there is no legal provision from which it would follow that if a complaint concerns proceedings before various court instances, it must be examined by the court immediately above the court at higher instance.”
100. An identical point of view – that the assessment of the length of proceedings could not include their earlier stages, which had already been terminated by a ruling on the merits at a given instance and that it should be limited to the current stage – was expressed in a number of subsequent decisions of the Supreme Court, for instance in decisions of 12 May 2005 (no. SPP 76/05), 21 February 2007 (no. III SPP 5/07) and 26 January 2012 (no. III SPP 42/11).
4. The 2013 Resolution (no. III SPZP 1/13)
101. On 10 January 2013 the Prosecutor General lodged a request with the Supreme Court, asking it to adopt a resolution by a bench of seven judges in order to resolve a legal issue that had given rise to divergent views on the interpretation of section 5 (1) of the 2004 Act (see also paragraph 79 above) in the case-law of the Supreme Court and courts of law. The Prosecutor General submitted that in the relevant case-law there existed two contradictory interpretations of the phrase “in the course of the proceedings in a case” referred to in that provision.
In the light of the first interpretation, that wording meant that the court dealing with a length complaint was only competent to examine the stage of the proceedings at which that complaint had been filed. It could not examine the previous stages of the impugned proceedings, that is to say, stages that had been terminated by rulings on the merits in a given instance, even though those rulings had not yet been final. According to that interpretation, a length complaint served to discipline courts ’ actions at the current stage of pending proceedings, as its purpose was to eliminate the trial court ’ s dilatoriness by compelling it to act with the requisite efficiency and to ensure that the case followed its proper course.
In the light of the second interpretation, the phrase “in the course of the proceedings in a case” related to the entirety of proceedings, which were to be assessed as a whole, from their beginning to the final conclusion, taking into account all court instances involved in dealing with the case. The fact that the proceedings at a given, previous instance ended with a ruling on the merits did not preclude the court dealing with a length complain from examining delays at previous instances.
Relying on the Convention and the Court ’ s case-law, the Prosecutor General stated his preference for the second line of interpretation.
102. In view of the foregoing, the Prosecutor General submitted to the Supreme Court the following question:
“When assessing a breach of a party ’ s right to have a case examined without undue delay, should the [relevant] court examine the entire course of judicial proceedings or, when examining a complaint in that respect, can it limit [its assessment] solely to the stage of the proceedings at which the party lodged the complaint under section 5(1) of [the 2004 Act]?”
103. On 28 March 2013 the Supreme Court, the Chamber of Labour, Social Security and Public Affairs, sitting as a bench of seven judges, adopted a resolution (“the 2013 Resolution”) in which it held as follows:
“In proceedings concerning a complaint about a breach of a party ’ s right to have a case examined without undue delay an assessment of the excessive length of proceedings should include the complainant ’ s arguments relating to the course of the proceedings from their beginning to the end, notwithstanding at which stage of those proceedings the complaint has been lodged (section 5(1) of [the 2004 Act]).”
104. The resolution contained an extensive reasoning, which can be summarised as follows.
As regards the first line of interpretation regarding the scope of examination of a length complaint as defined in section 5(1) of the 2004 Act, the Supreme Court began by reiterating many examples from its previous case-law supporting that approach. However, bearing in mind the Court ’ s case-law in Polish cases dating back to 2005-2007, in particular judgments in the cases of Majewski v. Poland (no. 52690/99, 11 October 2005), Beller v. Poland (no. 51837/99, 1 February 2005) and Tur v. Poland (no. 21695/05, 23 October 2007), it found that the interpretation of the 2004 Act as given in its earlier rulings had to be reconsidered. It stated, among other things:
“Pursuant to Article 13 of the Convention, everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority. In the judgment ... of Kudła v. Poland, the ECHR held that it was necessary to ensure an effective remedy within the meaning of this provision also for a breach of the right to have a case examined in judicial proceedings within a reasonable time,as guaranteed by Article 6 § 1 of the Convention. Finding a breach of Article 13 of the Convention, the ECHR held that the Polish legal order lacked an effective remedy against the excessive length of proceedings, since the remedies provided for by the national legislation did not guarantee any compensation for the prejudice caused by the excessive length of proceedings nor for any means of accelerating the proceedings. The Court left the choice of remedy to Poland ’ s discretion but at the same time required that any such remedy must be effective in both its procedural and practical aspects.
This means that a[n effective] remedy must prevent a breach of the right to ‘ have a case examined within a reasonable time ’ from arising or continuing or afford appropriate compensation for the breach that has already occurred. ...
In the Polish legal order, this purpose is served by [the 2004 Act]. According to the explanatory notes to the draft [2004 Act], the legislature ’ s main aim was to create a legal mechanism that would compel courts to examine cases. For that reason, pursuant to section 5(1) of [the 2004 Act], a [length] complaint must be lodged in the course of the proceedings in a case.
In the majority of the Supreme Court ’ s current rulings, a complaint about the excessive length of proceedings is considered an ad hoc measure preventing the excessive length of proceedings from continuing [reference to the relevant ruling], as a measure ensuring a swift reaction to a delay in the court ’ s actions and serving to discipline actions performed at a given stage of proceedings still pending [references to further rulings]. According to the case-law, the purpose of the complaint is to eliminate the trial court ’ s delays through compelling it to act efficiently and to ensure that the case follows its proper course [references to numerous further rulings]. ...
Pursuant to sections 15 and 16 of [the 2004 Act], after proceedings on the merits have ended, a party may seek compensation for the damage caused by their excessive length from the State Treasury ... and this applies to situations where a party has not lodged a length complaint during pending proceedings and also to situations where a party ’ s complaint during pending proceedings has been allowed.
Accordingly, “appropriate just satisfaction”, which may be awarded if the complaint is granted, does not constitute full redress in respect of a party ’ s compensatory claims. It follows that the length complaint is a preliminary, ad hoc measure counteracting the current (continuing) excessive delay in proceedings. Its main purpose is first of all to compel [the trial court] to ensure that the case follows its due course. This is achieved, on the one hand, by finding that the excessive length of proceedings has occurred (section 12(2) of [the 2004 Act]), and, on the other hand, by instructing the trial court to take certain actions within a fixed time-limit (section 12(3)). It should also be noted that lodging a complaint about excessive length of proceedings does not prevent a party from asking [the president of the relevant court] for supervisory measures to be taken in respect of the administrative activity of the [trial] court. In consequence, supervisory measures, the length complaint and a claim for compensation after the termination of proceedings on the merits constitute a combination of remedies aimed at counteracting the excessive length of proceedings and, if the delay has already occurred, they ensure appropriate compensation.
In the light of such an interpretation of the provisions of [the 2004 Act], it has been concluded that examination of a length complaint should be focused on the current stage of the impugned proceedings. It follows that arguments concerning prior (closed) stages of the proceedings are considered as being out of time, since they are not consistent with the purpose of [the 2004 Act] as defined by the legislature [references to the relevant rulings dating back to 2005]. Such opinions have also been reiterated in the most recent rulings of the Supreme Court [references to several rulings dating back to 2011-2012]. ...”
105. The Supreme Court, having assessed its previous interpretation in the light of the Court ’ s case-law, found that a complaint under the 2004 Act, if it were to be limited only to the current stage of proceedings, was not an “effective remedy” within the meaning of Article 13 of the Convention.
The relevant passages read, in so far as relevant, as follows:
“In the case of Majewski v. Poland (judgment of 11 October 2005, no. 52690/99), the ECHR negatively assessed the examination of length complaints in accordance with this line of interpretation, taking into account only the conduct of the lower court at the stage when the complaint had been lodged. The ECHR underlined that the [Polish] court ’ s assessment covering only the period from the date when the case had been remitted was incompatible with the standards laid down in its case-law, which required [domestic courts] to examine an alleged breach of Article 6 § 1 of the Convention taking into account the entirety of the impugned proceedings, from their beginning to the end and before all court instances. ...
Given that the ECHR, when assessing an alleged breach of Article 6 of the Convention, takes into account the conduct of courts at all stages of the proceedings, the complaint ... under [the 2004 Act], if interpreted as a measure preventing the excessive length of proceedings only at the current stage of the proceedings, i.e. outside prior (closed) stages of the proceedings, is not an effective remedy within the meaning of Article 13 of the Convention because it creates an obstacle to fully compensating [a party], in particular in respect of non-pecuniary damage arising from excessive length of proceedings.”
106. The Supreme Court further added that:
“If a complaint about excessive length of proceedings is to be regarded as concerning solely the current stage of the proceedings, this in fact means that a party is afforded a right to have this particular stage of the proceedings terminated, rather than to have his case examined without undue delay, i.e. to have it terminated by a final court decision.
In view of the foregoing, it is concluded that a complaint about a breach of a party ’ s right to have a case examined in judicial proceedings without undue delay, perceived as an ad hoc measure in respect of the excessive length of proceedings, is only a substitute for an effective remedy within the meaning of Article 13 of the Convention and does not fulfil its role as a legal mechanism serving to exercise the constitutional right of access to a court. Indeed, [such a] complaint does not stop applications concerning the excessive length of proceedings being lodged with the Court but it merely delays them.”
107. In its concluding remarks the Supreme Court referred to the meaning of the “termination of proceedings” and held that judicial proceedings ended on the date on which the second-instance judgment had become final. It stressed that the Supreme Court could not be regarded as a “further instance” as it was situated outside the structure of the courts of law. In consequence, cassation proceedings ( postępowanie kasacyjne ) before the Supreme Court were not, in its view, a continuation of the previous proceedings but constituted a new case for the purposes of a complaint under section 5(1) of the 2004 Act. “The course of the proceedings in the case” as referred to in that section (see also paragraph 79 above) could not, therefore, include proceedings before the Supreme Court, even in situations where the second-instance judgment had been quashed and the case remitted.
E. Statistical and other information on complaints under the 2004 Act produced by the parties
108. The Government and the first applicant produced statistical information on the number of complaints under the 2004 Act and amounts awarded in just satisfaction by the Polish courts from 2006 to 2013.
109. In 2006 overall 2,235 complaints were lodged with regional courts and 424 were lodged with courts of appeal.
In 2007 overall 2,015 complaints were lodged with regional courts and 628 with courts of appeal.
In 2007 the average sum of just satisfaction awarded per case amounted to PLN 1,986 in proceedings before regional courts and to PLN 2,377 before courts of appeal.
110. In 2008 overall 2,120 complaints were lodged with regional courts. In 468 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 307 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
As regards courts of appeal, 617 complaints were lodged. In 81 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 63 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
111. In 2009 overall 2,913 complaints were lodged with regional courts. In 587 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 462 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
As regards courts of appeal, 996 complaints were lodged. In 139 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 126 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
The average sum of just satisfaction per case amounted to PLN 2,799 in proceedings before regional courts and to PLN 3,862 before courts of appeal.
112. In 2010 overall 3,993 complaints were lodged with regional courts. In 817 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 741 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
As regards courts of appeal, 1,334 complaints were lodged. In 196 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 185 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
The average sum of just satisfaction per case amounted to PLN 3,054 in proceedings before regional courts and to PLN 3,952 before courts of appeal.
113. In 2011 overall 4,840 complaints under the 2004 Act were lodged with regional courts. In 965 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 914 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
As regards courts of appeal, 1,708 complaints were lodged. In 264 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 253 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
The average sum of just satisfaction per case amounted to PLN 2,875 in proceedings before regional courts and to PLN 4,050 before courts of appeal.
114. In 2012 overall 6,047 complaints were lodged with regional courts; in 1,225 cases the complainants were granted just satisfaction. As regards courts of appeal, 2,618 complaints were lodged; in 300 cases the complainants were granted just satisfaction.
The average sum of just satisfaction per case amounted to PLN 2,771 in proceedings before regional courts and to PLN 2,709 before courts of appeal.
115. In 2013 overall 8,961 complaints under the 2004 Act were lodged with regional courts. In 1,274 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 1,225 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
As regards courts of appeal, 3,571 complaints were lodged. In 311 cases complaints were granted partly or in their entirety. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
The average sum of just satisfaction per case amounted to PLN 2,868 in proceedings before regional courts and to PLN 3,426 before courts of appeal.
116. In the first quarter of 2014 overall 3,031 complaints under the 2004 Act were lodged with regional courts. In 375 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 361 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
As regards courts of appeal, 1,074 complaints were lodged. In 54 cases complaints were granted partly or in their entirety; just satisfaction was awarded in 50 cases. The remaining complaints were either rejected on formal grounds or dismissed as unjustified.
The average sum of just satisfaction per case amounted to PLN 2,687 in proceedings before regional courts and to PLN 4,260 before courts of appeal.
117. The data presented by the parties showed a consistent increase in the number of complaints before all the courts: from overall 2,659 in 2006 to 8,665 in 2012 and 12,532 in 2013.
The year-on-year increase in 2010 amounted to 35.23%, in 2011 to 22.9% and in 2012 to 32.1%.
IV. COMMITTEE OF MINISTERS ’ DOCUMENTS CONCERNING THE LENGTH OF JUDICIAL PROCEEDINGS IN POLAND
118. On 4 April 2007 the Committee of Ministers, at the 992nd meeting of the Ministers ’ Deputies, adopted Interim Resolution (CM/ResDH(2007)28) (“the 2007 CM Resolution”) concerning the judgments of the European Court of Human Rights in 143 cases against Poland relating to the excessive length of criminal and civil proceedings and the right to an effective remedy.
The 143 judgments, listed in the Appendix to the 2007 CM Resolution, concerned 132 civil cases and 11 criminal cases.
119. The 2007 CM Resolution read, in so far as relevant, as follows:
“Having regard to the great number of judgments of the European Court of Human Rights (“the Court”) finding Poland in violation of Article 6, paragraph 1, of the Convention on account of the excessive length of judicial proceedings before the civil and criminal courts ...;
Having regard to the fact that in several cases the Court also found that there had been a violation of Article 13 of the Convention in that the applicants had no domestic remedy whereby they might enforce their right to a “hearing within a reasonable time” as guaranteed by Article 6, paragraph 1 of the Convention (e.g. Kudła against Poland, judgment of 26 October 2000 and D.M. against Poland, judgment of 14 October 2003);
Recalling that excessive delays in the administration of justice constitute a serious danger for the respect of the rule of law;
Recalling that the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court involves an obligation rapidly to adopt the individual measures necessary to erase the consequences of the violations as well as to adopt general measures preventing new violations of the Convention similar to those found including provision of effective domestic remedies pending the entry into effect of the necessary changes;
Recalling in this respect the Committee of Ministers ’ Recommendation to member states Rec(2004)6 regarding the need to improve the efficiency of domestic remedies;
Stressing the importance of rapid adoption of such measures in cases where judgments reveal structural problems which may give rise to a large number of new, similar violations of the Convention;
Having invited Poland to inform it of the measures adopted or being taken in consequence of the judgments concerning the excessive length of judicial proceedings and having examined the information provided by the Polish authorities in this respect ...;
Measures to remedy the excessive length of proceedings
Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found ( restitutio in integrum ), in particular by accelerating as far as possible the proceedings which were still pending after the findings of violations by the Court ...;
Welcoming the reforms adopted so far by the authorities in order to remedy the structural problems related to the excessive length of judicial proceedings in Poland, and in particular:
- the legislative reforms (new Code of Criminal Procedure and subsequent amendments) adopted in 1997 and 2003 aimed at simplifying and accelerating criminal proceedings;
- the additional administrative and structural measures adopted to prevent further, unreasonably long proceedings and to accelerate those which have already been excessively lengthy (in particular increasing the number of judges and administrative personnel, increasing courts ’ budgets and establishing of monitoring mechanisms); and
- the setting-up of a domestic remedy in 2004 for cases of excessive length of judicial proceedings allowing litigants to seek acceleration of the proceedings and claim compensation for damages caused by their excessive length;
Noting the statistical data provided by the Polish authorities and in particular the positive trend concerning the decrease in the number of “old” cases pending before civil courts (those pending for more than five years) and the increasing efficiency of criminal courts;
Noting, however, that the existing mechanism for evaluating the average length of judicial proceedings at national level is unclear and hinders supervision of the evolution of the duration of proceedings;
Measures to put right the lack of effective remedy
Welcoming the creation of a domestic remedy in cases of excessive length of judicial proceedings and noting that the Court has already found, on the basis of the provisions of the legislation of 2004, that it satisfies the “effectiveness” test established in the Kudła judgment ...;
Noting nevertheless that the new remedy seems to exclude the possibility of complaining against the excessive length of the pre-trial stage of criminal proceedings;
Underlying that the creation of the new domestic remedy does not obviate the obligation to pursue with diligence the adoption of general measures required to prevent new violations of the Convention;
ENCOURAGES the Polish authorities, in view of the gravity of the systemic problem concerning the excessive length of judicial proceedings:
- to continue the examination and adoption of further measures to accelerate judicial proceedings and reduce the backlog of cases;
- to establish a clear and efficient mechanism for evaluating the trend concerning the length of judicial proceedings; and
- to ensure that the new domestic remedy is implemented in accordance with the requirements of the Convention and the case-law of the Court and to consider introducing such a remedy as regards the pre-trial stage of criminal proceedings;...”
120. On 24 September 2013 the Committee of Ministers examined the Polish Government ’ s plan DH-DD(2013)787 (updating their 2011 action plan DH-DD(2011)1074) and gave a decision on the state of execution (“the 2013 CM Decision”).
The plan was submitted on 4 July 2013 and concerned measures taken in execution of the Court ’ s judgments regarding the length of civil and criminal proceedings in Poland (see also paragraphs 11-12 above)
121. In respect of the status of execution in the area of general measures, it was noted, among other things:
“a) Measures aimed at reducing the length of proceedings
The information submitted presents a wide range of legislative measures already taken or envisaged. Overall the measures have three principal aims: the simplification and acceleration of the proceedings; the transfer of responsibilities from judges to non-judicial officers, where appropriate, and the limitation of the scope of the courts` jurisdiction by transferring some of the cases traditionally dealt with by the courts to other legal professions (for example – public notaries). The action plan also mentions a number of organisational measures, such as the supervision by the Ministry of Justice, continued computerisation as well as the continued increase in the number of judges and in the budget for the courts.
In 2012 the courts managed to deal with more cases than were incoming, which, for the first time in recent years, led to a reduction of the backlog of the cases pending (which had been constantly growing between 2008 and 2011). It should be underlined that this reduction of the backlog took place despite the overall increase in the number of new cases.
b) Measures aimed at putting in place an effective remedy
A remedy against excessive length of civil and criminal proceedings was introduced in 2004 and considered effective by the European Court in 2005. A reform was adopted in 2009, introducing inter alia an increase in the level of compensation; a possibility of the use of supervisory measures by court presidents and superior prosecutors to accelerate pending cases; and, for criminal proceedings, a remedy against excessive length of investigations. Moreover, the authorities committed themselves, in the 2011 action plan, to closely monitor the functioning of the domestic remedy. Finally, in March 2013, the Polish Supreme Court adopted a resolution aimed at clarifying the need to take into account the overall length of proceedings when deciding whether the treatment of a case was excessively lengthy.
However, the European Court has continued to reveal, in judgments given after the 2009 reform, certain problems in the functioning of this remedy, in particular the fact that compensation granted had been too low and that the courts did not take into account the entirety of the proceedings in the evaluation of its duration as required by Article 6 § 1 of the Convention (a problem of “fragmentation”).
Moreover, although the statistical data provided by the authorities demonstrates an increasing number of complaints lodged concerning the length of proceedings, no information was presented on the current practice of the domestic courts concerning, in particular, the consideration of the entirety of the proceedings or amounts of compensation awarded.”
122. The notes on the meeting, including comments on the measures taken by Poland, read as follows:
“The legislative and organisational measures taken appear recently to have led to positive results. It is also important to note the authorities ’ commitment to closely monitor the problem at the domestic level, given the fluctuation in the impact of measures taken over recent years.
However, the continued problems with the application of the remedy introduced in 2004, despite a major reform, are of serious concern. In this context, the resolution of the Supreme Court may be an interesting development. Nevertheless, at this stage there is no indication of its impact and it does not appear to address the problem of inadequate awards of compensation.
In light of the above, it seems that in order to fully execute the judgments concerning excessive length of civil and criminal proceedings, substantive measures aimed at addressing the problems with the application of the remedy are still needed along with a clear strategy aimed at consolidating and stabilising the recent, positive impact of the structural measures adopted so far.
Therefore, it is important for the authorities to conduct a deep reflection on what substantive measures are still necessary and to submit to the Committee an updated action plan, along with an estimated timetable for the adoption of the envisaged measures.”
123. Furthermore, the Committee of Minsters in the 2013 CM Decision:
“1. noted with interest the wide range of legislative and organisational measures taken by the Polish authorities in order to combat excessive length of civil and criminal proceedings together with the fact that in 2012, for the first time in recent years, a reduction in the backlog of cases pending before the Polish courts was registered;
2. encouraged the authorities to continue their efforts and to develop a clear strategy in order to maintain this recent positive trend;
3. expressed however serious concern in relation to the continued problems with the application of the remedy against excessive length of civil and criminal proceedings and considered that substantive measures are still necessary to correct them;
4. invited the authorities to conduct a deep reflection on the measures still necessary in these two groups of cases and to submit to the Committee an updated action plan, along with an estimated timetable for the adoption of the envisaged measures.”
124. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides that the present applications should be joined.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 THE CONVENTION
125. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ...”
A. General principles deriving from the Court ’ s case-law
126. The “reasonable time” guarantee of Article 6 § 1 serves to ensure public trust in the administration of justice. The other purpose of the guarantee is to protect all parties to court proceedings against excessive procedural delays; in criminal matters, especially, it is designed to avoid leaving a person charged with a criminal offence in a state of uncertainty about his or her fate too long. It underlines the importance of administering justice without delays which might jeopardise its effectiveness and credibility (see, among other examples, Finger v. Bulgaria, no. 37346/05, § 93, 10 May 2011, with further references to the Court ’ s case-law, in particular to Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999 ‑ V; and Scordino (no. 1), cited above, § 224 ).
127. The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what is at stake for the applicant has also to be taken into account (see Kudła v. Poland [GC], no. 30210/96, § 124 ECHR 2000 ‑ XI).
128. Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of the requirements of this provision, including the obligation to hear cases within a reasonable time (see, among many other authorities, Bottazzi, § 22, and Scordino (no. 1), § 183, both cited above).
States are responsible for delays attributable to the conduct of their judicial or other authorities. They are also responsible for delays in the presentation of the reports and opinions of court ‑ appointed experts. A State may be found liable not only for delay in the handling of a particular case, but also for failure to increase resources in response to a backlog of cases, or for structural deficiencies in its judicial system that cause delays. Tackling the problem of unreasonable delay in judicial proceedings may thus require the State to take a range of legislative, organisational budgetary and other measures (see Finger, cited above, § 95, with further references).
129. The first applicant complained that his right to have a criminal charge against him determined “within a reasonable time”, as required by Article 6 § 1 of the Convention, had not been respected.
130. The Government submitted that they would like to refrain from expressing their position on the breach alleged by the applicant. No objections as to the admissibility of the complaint have been raised.
131. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) Period to be taken into consideration
132. The period to be considered under Article 6 § 1 started on 18 September 2002, when the applicant was arrested on suspicion of participating in an organised criminal group and ended on 21 July 2010, the date on which he was acquitted (see paragraphs 14-25 above). Accordingly, it lasted seven years and some ten months at one level of jurisdiction.
(b) Reasonableness of the length of that period
133. The applicant maintained that the length of the criminal proceedings against him had been excessive.
He conceded that his case, involving sixteen co-accused, had been of some complexity but argued that that could not justify the delay of nearly eight years on the part of the national courts. The slowness of the trial and its bad organisation was not an isolated example. In fact, in Poland the excessive length of proceedings was a common phenomenon in cases involving multiple accused, which gave rise to serious concerns as to the general lack of efficiency of Polish courts in handling such cases.
134. Relying on the Court ’ s case-law, the applicant further stressed that criminal cases should be examined by the national courts with more diligence than civil ones. Moreover, a higher standard of diligence should be applied in cases where, as in his case, the applicant was remanded in custody. The efficiency of criminal proceedings was particularly important for an accused person, who should not remain for too long in a situation of uncertainty as to his fate.
In the applicant ’ s view, the courts dealing with his case had manifestly failed to act with due diligence. To begin with, there had been a significant delay at the initial stage of the proceedings. The bill of indictment had been lodged in December 2002 but the trial had not started until 21 September 2006. Over that time the courts had displayed little, if any, procedural activity and their preparation for the trial – as also noted by the Regional Court in the context of the applicant ’ s complaint under the 2004 Act – had been chaotic, which had resulted in the excessive length of the trial.
135. The applicant stressed that the courts had completely disregarded how much had been at stake for him in the proceedings. He had been a police officer and the charges laid against him had been of a very serious nature. Nevertheless, nearly eight years had passed before he had finally been able to clear his name, which had obviously had damaging consequences for his reputation and his professional career, which had had to be terminated prematurely owing to the length of the trial.
In view of the foregoing, the applicant asked the Court to find a violation of Article 6 § 1of the Convention.
136. The Government made no comments.
137. The Court considers that the applicant ’ s case, involving a large number of accused and the charges related to organised crime, must have been of more than average complexity. This, however, does not justify the entire length of the proceedings. Moreover, considering that the applicant was detained for some eight months at the initial stage (see paragraphs 14 ‑ 18 above), he was entitled to “special diligence” on the part of the authorities during that stage (see, for instance, Kreps v. Poland, no. 34097/96, § 52, 26 July 2001 and Czajka v. Poland, no. 15067/02, § 60, 13 February 2007 ).
138. The applicant ’ s case lay practically dormant in the Warsaw-City District Court from the beginning of December 2002 to 18 November 2005, that is to say for nearly three years. During that time the court had made three procedural decisions at lengthy intervals, but no trial date was fixed or apparently even contemplated since the accused were not been served with a copy of the bill of indictment (see paragraphs 16-20 above). The omissions and shortcomings in the preparatory phase of the trial continued after the case had been transferred to the Warsaw Mokotów District Court. The transfer of the case-file itself took some four months. The fact that the applicant and his co-defendants had not received a copy of the bill of indictment for some three and a half years was not discovered by the court until eight months after the transfer of the case. Inevitably, that caused a further delay in the opening of the trial, which began as late as 21 September 2006, four years after the applicant had been charged (see paragraphs 20-21 above).
139. Although the proceedings progressed smoothly between 21 September 2006 and 19 July 2007 and that numerous hearings were held during that period (see paragraphs 21-22 above), any progress achieved was subsequently lost. The handling of the issues of the District Court ’ s jurisdiction took several months, from 19 July to 15 November 2007. This, together with the delay of some eight months (from 15 November 2007 to June 2008) in transferring the case-file resulted in a gap of nearly a year between the hearings (see paragraphs 22-24 above). The Court finds it difficult to accept that handling such a purely technical matter as the transfer of a case-file between the courts in the same city should take such a considerable time.
In consequence of that lengthy delay, the trial had to start from the beginning in June 2008 – five and a half years after the applicant had been charged (see paragraph 24 above).
Over the following two years, from June 2008 to 21 July 2010, the District Court scheduled twenty-eight hearings before passing a verdict of acquittal. However, that final consolidation of the court ’ s actions cannot make up for the previous delays.
140. In view of the foregoing, the Court concludes that the proceedings did not proceed with the necessary expedition and failed to satisfy the reasonable time requirement. There has, accordingly, been a violation of Article 6 § 1 of the Convention.
141. The applicant complained under Article 6 § 1 of the Convention that the length of the civil proceedings in his case had been excessive and had not met the “reasonable-time” requirement laid down in that provision.
142. The Government submitted that they would like to refrain from expressing an opinion on the alleged breach of Article 6 § 1 of the Convention. No objections as to the admissibility of the complaint have been raised.
143. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) Period to be taken into consideration
144. The period to be considered under Article 6 § 1 started on 4 March 1999, when the applicant lodged his claim for damages and ended on 19 November 2010, the date on which the Court of Appeal gave the final judgment in the applicant ’ s case (see paragraphs 30-45 above). Accordingly, it lasted eleven years and some eight and a half months at two levels of jurisdiction.
(b) Reasonableness of the length of that period
145. The applicant maintained that the proceedings in his case had been unreasonably lengthy and had clearly extended beyond the time necessary to determine his claim. In his view, nothing could explain why the ruling on a typical claim arising from a lease contract, which had not been legally complex, should have taken nearly twelve years. Following an expert report obtained in the pre-trial proceedings, the only issue left to be determined by the Regional Court had been the amount of damages. During the proceedings the court had scheduled fifteen hearings – on average, less than two per year. In total, the period of waiting for expert reports had amounted to three years. Moreover, those reports had needed to be supplemented since they had not included all the relevant elements. That had further prolonged the proceedings. In the circumstances, it could not be said that the courts had acted with due diligence.
In conclusion, the applicant asked the Court to find a violation of Article 6 § 1 of the Convention.
146. The Government made no comments.
147. The Court accepts the applicant ’ s contention that his case did not involve complex issues of fact and law, even though evidence from experts in three different fields needed to be obtained in order to estimate the value of the outlays made by the applicant and, in consequence, the amount of damages (see paragraphs 32-43 above). While it is true that taking expert evidence necessarily takes time, this fact in the Court ’ s view cannot by itself explain the delay of eleven years and eight and a half months in the present case.
148. It is to be noted that the applicant displayed due diligence in the preparation of his case. Before initiating the proceedings, he sought, in a pre-trial procedure, to secure evidence and to obtain a court expert report determining the state and value of the outlays made on the premises (see paragraph 29 above). This certainly facilitated the court ’ s tasks involved in the determination of damages.
Indeed, at the initial stage the proceedings progressed at an acceptable speed. During some two and a half years evidence was taken from the parties, nine witnesses and a construction expert and there was only one markedly lengthy interval between the first hearing of 20 September 1999 and the next one which took place as late as 9 November 2000. That delay, although considerable, can at least partly be explained by the need to handle the procedural issues involved in the defendant ’ s interlocutory appeal and his further various requests (see paragraphs 30-33 above). However, as shown by the subsequent course of the trial, the Regional Court failed to ensure the swift process of taking evidence at further stages of the proceedings.
149. First of all, hearings were often held at lengthy intervals, on several occasions amounting to nearly or over one year (see paragraphs 32-43 above). Secondly, the procedure for taking expert evidence lacked the necessary effectiveness. The court sent the materials in the case-file to each expert consecutively and they had to delay the preparation of their reports until their predecessor ’ s work had been finished. No attempts were made to impose discipline on the experts and ensure that they complied with the deadlines set. On the contrary, extensions of the time-limits were granted on the grounds such as “long holidays” or “difficulty in setting a date for an on-site inspection”. As a result, during the second re-trial, it took the Regional Court two years to obtain three expert reports (see paragraphs 41 ‑ 43 above).
In this connection, the Court would reiterate that experts work in the context of judicial proceedings supervised by a judge, who remains responsible for the preparation and speedy conduct of proceedings (see, for instance, Proszak v. Poland, 16 December 1997, § 44, Reports of Judgments and Decisions 1997 ‑ VIII and Łukjaniuk v. Poland, no. 15072/02, § 28, 7 November 2006 ).
Lastly, it is to be noted that following two remittals ordered by the Court of Appeal the applicant ’ s case was examined three times at first instance (see paragraphs 30-44 above). Although the Court is not in a position to analyse the juridical quality of the case-law of the domestic courts, the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts. The repetition of such orders within one set of proceedings discloses a deficiency in the judicial system. Moreover, this deficiency is imputable to the authorities and not the applicants (see, among many others, Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003; Matica v. Romania, no. 19567/02, § 24, 2 November 2006; and Vlad and Others v. Romania, nos. 40756/06, 41508/07 and 50806/07, § 133, 6 November 2013 ).
150. In the circumstances, the Court finds no sufficient justification for the delay in the examination of the applicant ’ s case.
There has accordingly been a violation of Article 6 § 1 of the Convention.
151. The applicant complained under Article 6 § 1 of the Convention that the length of the civil proceedings in her case had been excessive and had failed to meet the “reasonable time” standard laid down in that provision.
152. The Government submitted that they would like to refrain from expressing their position on the alleged breach of Article 6 § 1 of the Convention. No objections as to the admissibility of the complaint have been raised either.
153. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) Period to be taken into consideration
154. The period to be considered under Article 6 § 1 started on 12 April 2000, when the applicant, having learnt of the case in the context of other proceedings, informed the Gdynia District Court that she wished to participate in the impugned proceedings. It ended on 18 June 2013, the date on which the Gdańsk Regional Court gave the final judgment in the applicant ’ s case (see paragraphs 53-71 above). Accordingly, the period to be considered is thirteen years and some two months at two levels of jurisdiction.
(b) Reasonableness of the length of that period
155. The applicant maintained that the courts dealing with her case had failed to act with due diligence and had not, therefore, complied with the “reasonable time” requirement. In her submission, the case had not been a complex one. The circle of the interested persons had been known from the very beginning. When some of them had died, the subsequent inheritance proceedings had been terminated quickly. The parties had made merely a few requests for evidence to be taken from witnesses and no expert evidence had been needed.
The trial court ’ s only task– as pointed in the Regional Court ’ s remittal decision of 18 October 2007 – had been to make the necessary findings of fact, analyse the material and ensure that all the interested parties had been informed of the case.
156. However, the District Court had conducted the proceedings in a chaotic manner and had made a number of procedural or other mistakes that had caused significant procrastination.
First of all, the hearings were scheduled at very lengthy intervals and there had been a number of other, unjustified delays. In the first-instance proceedings up to 19 April 2006, that is, for some six years, the court had displayed very little procedural activity. During that time, it had only heard evidence from four witnesses and two participants. Later, it had taken the Regional Court nearly eighteen months to hear the applicant ’ s appeal.
The procedural mistakes and other shortcomings on the part of the District Court, such as delays in the service of documents and pleadings and failure to enforce the judge ’ s orders – which the applicant described as an “administrative mess” – had very considerably contributed to the length of the proceedings. For instance, the District Court had not ensured that a copy of the 1999 application for adverse possession had been properly served on all the interested parties. The applicant had not received a copy of it until 20 September 2008, nine years later. On 21 September 2009 the proceedings had been unnecessarily stayed for one year. Lastly, the court, which had been obliged by law to ensure that all the interested parties had been informed of the proceedings, had repeatedly failed to summon all the participants. The most serious mistake – summoning erroneously the tax authorities instead of the Gdynia Mayor as the State Treasury ’ s representative – had risked making the entire proceedings null and void. While at the time of submission of the applicant ’ s observations no date for an appeal hearing had yet been set, in the applicant ’ s view the first-instance decision would in all likelihood be quashed on grounds of nullity and the trial would have to be conducted from the beginning.
In view of the foregoing, the applicant asked the Court to find a violation of Article 6 § 1 of the Convention.
157. The Government made no comments.
158. The Court accepts the applicant ’ s submission that the case was not particularly complex, even though the court had needed to summon several new parties to join the proceedings. As the applicant pointed out, that had in particular required of the court to ensure that the procedure was well organised and that all the interested parties had been represented and properly served with the pertinent documents. No expert evidence was obtained. Nor does it appear that the court had to hear evidence from many witnesses (see paragraphs 51-71 above).
159. In the circumstances, for the reasons stated below, the Court finds no plausible explanation of the delay of thirteen years and two months that occurred in the case save for lack of due diligence on the part of the national courts.
The first set of the first-instance proceedings with the applicant ’ s participation lasted some six years. They started on 12 April 2000 and terminated with the decision of 19 April 2006. Not only was that decision and the District Court ’ s conduct criticised on appeal, in particular for the incomplete findings of fact and the way in which that court had dealt with the merits of the case, but also because it was not discovered until that advanced stage that the applicant and other parties had not yet been served with copies of the 1999 application for adverse possession (see paragraphs 53-55 above).
The conduct of the first set of the appellate proceedings is likewise open to criticism. In particular, no explanation has been given by the respondent Government as to why the case was pending on appeal for a lengthy period of some one and a half year ’ (see paragraphs 56-57 above).
The subsequent retrial before the District Court, which started on 20 September 2008, nearly one year after the remittal, was conducted slowly. On 21 September 2009 the court suspended the proceedings for over one year on trivial grounds – because the petitioner had not produced a copy of the 1999 application. While it is true that from the resumption of the proceedings on 4 November 2010 to the delivery of the second decision of the first-instance court on 21 February 2012 certain progress was made, the subsequent appellate proceedings lasted over one year and two months (see paragraphs 58-77).
160. In the circumstances, the delay in the examination of the applicant ’ s case must be attributed to the respondent State. Accordingly, there has been a violation of Article 6 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
161. All the applicants complained of the domestic courts ’ defective application of the 2004 Act, in particular their refusals to acknowledge the excessive length of the proceedings in their cases and, in consequence, to grant them appropriate and sufficient just satisfaction, in accordance with the standards laid down in the Court ’ s case-law.
The Court gave notice of their complaints to the Government under Article 13 of the Convention, which reads as follows:
“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.”
162. The Government contested the applicants ’ contentions, maintaining that the complaints were manifestly ill-founded because the impugned remedy – a complaint under the 2004 Act – was effective for the purposes of Article 13 and capable of providing the applicants with the required redress. In any event, in their view there had been no violation of Article 13 in the present case.
163. The Court considers that the Government ’ s arguments as to the effectiveness of a complaint under the 2004 Act go directly to the merits of the case and should be dealt with at that stage. The complaints are not therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor are they inadmissible on any other grounds. They must accordingly be declared admissible.
164. The applicants submitted that, as shown by the circumstances of the case, a complaint under the 2004 Act could not be considered an “effective remedy” within the meaning of Article 13 since it had not provided them with the requisite redress for a violation of their right to a hearing within a reasonable time.
They maintained that the courts dealing with their complaints had disregarded the Court ’ s case-law concerning compensation for excessive length of proceedings, in particular standards applicable to the determination of awards at domestic level as set out in the Scordino (no. 1) judgment. Furthermore, in accordance with the domestic practice known as the “fragmentation of proceedings”, in their assessment of the length of proceedings under Article 6 § 1, the courts had not taken into account the proceedings in their entirety but only the period after 17 September 2004, the date on which the 2004 Act entered into force, and only the length at instance where the case was currently pending.
165. In the applicants ’ submission, their cases were not isolated examples of misapplication of the Court ’ s standards but demonstrated general defects of judicial practice that had developed in Poland over several years following the introduction of the 2004 Act. As a result, the courts either refused to acknowledge the excessive length of proceedings and grant just satisfaction in cases where, had the entire proceedings been examined, a breach of the “reasonable time” requirement should have been found or, in cases where they found such a breach, they awarded derisory amounts of just satisfaction, significantly lower than those required by the Court ’ s case-law.
166. For instance, in Mr Orlikowski ’ s case, in which the proceedings had already lasted for some eleven years on the date on which his complaint and claim for compensation had been rejected, the Łódź Court of Appeal, having examined only the proceedings at the current instance, had found no breach of the right to a hearing without undue delay. The previous period of over seven years had not been included in the court ’ s assessment.
Likewise, Ms Grabowska ’ s complaint about the length of the proceedings in her case, which at the relevant time had been pending for nearly eleven years, was dismissed because the Gdańsk Regional Court had examined only the period after the 2004 Act ’ s entry into force, disregarding a delay of four and a half years that had occurred earlier.
It was true that in Mr Rutkowski ’ s case the Warsaw Regional Court had acknowledged the excessive length of the proceedings and granted him PLN 2,000 – the statutory minimum award – in compensation. However, the proceedings had been examined for their compliance with the “reasonable time” requirement only partly – in so far as his complaint had related to the period after the 2004 Act ’ s entry into force. The sum granted was significantly lower than the Court ’ s awards in similar Polish cases. It amounted to a mere 5% of what the Court would have awarded to the applicant, which was clearly insufficient in the light of the Scordino (no. 1) standards.
167. Referring to the Government ’ s arguments as to the availability of a civil action for pecuniary damage arising from excessive length of proceedings that could be brought after their termination in order to obtain a pecuniary award (see paragraph 169 below), the applicants observed that that remedy was not an object of their complaints. In any event, that secondary remedy could not make up for the lack of effectiveness of a length complaint, which was a principal, primary domestic remedy affording non-pecuniary damage for a breach of Article 6 § 1.
The applicants asked the Court to find a violation of Article 13 of the Convention.
168. The Government disagreed. They maintained that the remedy under the 2004 Act had been examined by the Court in the cases of Michalak v. Poland (cited above) and Charzyński v. Poland (cited above) and found to have been effective for the purposes of Articles 13 and 35 § 1 of the Convention. The Court had been satisfied that the remedy had enabled a victim to obtain acknowledgment of a violation of the right to a hearing within a reasonable time, acceleration of the proceedings by means of instructions to take specific actions addressed to the court dealing with the case and redress in the form of appropriate just satisfaction.
As regards the latter, the 2004 Act provided for minimum and maximum awards, ranging from PLN 2,000 to PLN 20,000. In each case where a breach of the “reasonable time” standard was found, the courts were obliged by law to grant a victim at least that minimum amount. The domestic practice had clearly shown the trend to increase the amounts awarded (see also the Government ’ s arguments regarding Article 46 in paragraph 194 below).
169. Furthermore, a victim could also seek compensation for damage sustained after the termination of the proceedings, under the general rules for the State ’ s liability for tort. That solution ensured that supplementary redress could be obtained in cases where the party was dissatisfied with the amount granted during the pending proceedings. The remedy – a civil action for compensation under Article 417 read in conjunction with Article 448 of the Civil Code – had been examined by the Court in Krasuski v. Poland, (cited above) and regarded as effective within the meaning of Article 13.
170. The Government also stressed that, according to the Court ’ s case-law, in particular Scordino (no. 1) (cited above) and Cocchiarella v. Italy ( Cocchiarella v. Italy [GC], no. 64886/01, ECHR 2006 ‑ V), the compensation awarded for excessive length of proceedings by domestic courts did not necessarily have to be the same as that awarded in the Court ’ s judgments. The compensation could be lower on condition that the redress afforded was appropriate and sufficient.
The Government admitted that in some cases against Poland the Court had found that the sums granted by the Polish courts dealing with length complaints had not been “appropriate”. However, in their opinion they were only individual examples where violations found by the Court had resulted from the particular circumstances of the cases. They could not therefore be regarded as relevant for a general assessment of the effectiveness of a complaint under the 2004 Act.
171. In conclusion, the Government invited the Court to reject the applicants ’ arguments and find no violation of Article 13.
(a) General principles deriving from the Court ’ s case-law
172. The application of Article 13 of the Convention to complaints alleging a violation of the right to a hearing within a reasonable time began with the Court ’ s judgment in the case of Kudła v. Poland. Having regard to the continuing accumulation of applications before it in which the only, or principal, allegation was that of excessive length of proceedings, the Court reviewed its previous case-law and held that that provision guaranteed an effective remedy before a national authority for an alleged breach of the “reasonable-time” requirement under Article 6 § 1 (see Kudła, cited above, §§146-56).
173. The relevant principles, as established in Kudła and the Court ’ s subsequent judgments, has been set out as follows (see, among other authorities, Scordino v. Italy (no. 1), cited above, § § 182-89, ECHR 2006 ‑ V ); Sürmeli v. Germany ([GC], no. 75529/01, §§ 97 ‑ 101, ECHR 2006 ‑ VII, with further references; Vassilios Athanasiou and Others v. Greece, no. 50973/08, § 55, 21 December 2010; Finger, cited above, § 83; and Ümmühan Kaplan v. Turkey, no. 24240/07, § 72, 20 March 2012 ).
(a) By virtue of Article 1 of the Convention (which provides that “[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention”), the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the Convention is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention;
(b) Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so. It is therefore necessary to determine in each case whether the means available to litigants in domestic law are “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred;
(c) Remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are therefore “effective” within the meaning of Article 13 of the Convention if they can be used either to expedite the proceedings before national courts or to provide the party with adequate redress for delays that have already occurred;
(d) The best solution in absolute terms is indisputably prevention. Where the judicial system is deficient with regard to the reasonable ‑ time requirement in Article 6 § 1 of the Convention, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution. Such a remedy offers an undeniable advantage over a remedy affording only compensation since it also prevents a finding of successive violations in respect of the same set of proceedings and does not merely repair the breach a posteriori, as does a compensatory remedy. Some States have recognised that advantage by choosing to combine two types of remedy, one designed to expedite the proceedings and the other to afford compensation. However, States can also choose to introduce only a compensatory remedy, without that remedy being regarded as ineffective.
(e) Where a domestic legal system has made provision for bringing an action against the State, such an action must remain an effective, sufficient and accessible remedy in respect of the excessive length of judicial proceedings. Its sufficiency may be affected by excessive delays and depend on the level of compensation.
174. However, as the Court held in Kudła (cited above, §§ 154-155) and, subsequently, in Scordino (no. 1) (cited above, § 188), subject to compliance with the requirements of the Convention, the Contracting States are afforded some discretion as to the manner in which they provide individuals with the relief required by Article 13 and conform to their Convention obligation under that provision.
Where the legislature or the domestic courts have agreed to play their proper role by introducing a domestic remedy, the Court will clearly have to draw certain conclusions from this. In particular, where a State has introduced a compensatory remedy, the Court must leave a wider margin of appreciation to the State to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned.
In that context, the Court has recognised that it will be easier for the domestic courts to refer to the amounts awarded at domestic level for other types of damage – personal injury, damage relating to a relative ’ s death or damage in defamation cases, for example – and rely on their innermost conviction, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see Scordino (no. 1), cited above, § 189).
175. The Court has also accepted that a State which has introduced a number of remedies, one of which is designed to expedite proceedings and one to afford compensation, may award amounts which – while being lower than those awarded by the Court – are not unreasonable, on condition that the relevant decisions, which must be consonant with the legal tradition and the standard of living in the country concerned, are speedy, reasoned and executed very quickly (ibid. § 206).
By the same logic, the amount that the Court will award under the head of non-pecuniary damage under Article 41 may be less than that indicated in its case-law where the applicant has already obtained a finding of a violation at domestic level and compensation by using a domestic remedy. Apart from the fact that the existence of a domestic remedy is fully in keeping with the subsidiarity principle embodied in the Convention, such a remedy is closer and more accessible than an application to the Court, is faster and is processed in the applicant ’ s own language; it thus offers advantages that need to be taken into consideration (ibid. § 268).
(b) Application of the above principles to the present cases
176. The Court has already found that that the applicants ’ right to a hearing within a reasonable time guaranteed by Article 6 § 1 of the Convention has not been respected (see paragraphs 140, 150 and 160 above). There is, therefore, no doubt that their complaints are “arguable” for the purposes of Article 13 and that they were entitled to a remedy whereby they could obtain appropriate relief for the Convention breach before the domestic authority, including compensation for non-pecuniary damage suffered on account of delays that had occurred in their cases (see Kudła, cited above, § 157).
177. The applicants ’ right to an “effective remedy” and, in consequence, to redress for the violation alleged was not, as such, contested by the Government. However, in the Government ’ s opinion, remedies available under the 2004 Act provided the applicants with “appropriate and sufficient redress”. In that context, they relied on the Court ’ s previous leading rulings in Polish cases, holding that a length complaint in respect of pending proceedings and a civil action for compensation in respect of terminated proceedings had been regarded as “effective remedies” (see paragraphs 168 ‑ 169 above).
The applicants contested that argument, maintaining that the operation of the length complaint under the 2004 Act had been defective, in particular as regards its compensatory aspect. This, in their view, resulted from the national courts ’ non-compliance with the criteria for sufficient redress set out in the Scordino (no. 1) judgment and their defective practice of disregarding delays occurring before the Act ’ s entry into force and limiting the assessment of the length of proceedings to the stage at the current instance, without taking any account of previous delays (see paragraphs 164-167 above).
178. Shortly after the introduction of the 2004 Act, the Court examined the remedies introduced by the new legislation under Articles 13 and 35 § 1 of the Convention and found that they had been “effective” within the meaning of those provisions (see paragraph 6 above).
The leading rulings were based on the circumstances as established at the material time. The Court was aware that the long-term practice of the domestic courts in the application of the 2004 Act could not yet be established at that time. However, having regard to the features of the relevant remedies, in particular the fact that a length complaint was designed to expedite proceedings and to provide compensation for the delays that had already occurred, it considered it justified to make its assessment before that practice had emerged (see Charzyński, cited above §§ 35 and 37-43). Another of the factors considered was also the Supreme Court ’ s 2005 Resolution (see paragraphs 96-97 above), which was found to have strengthened the application of the 2004 Act since it stipulated that the Act ’ s provisions were to be interpreted as applicable retroactively to delays which had occurred before its entry into force and which were still continuing (ibid. § 37).
179. However, in the light of the circumstances of the present case and developments in the Polish judicial practice, including the Supreme Court ’ s case-law on the interpretation of the 2004 Act that followed the Court ’ s leading decisions delivered in 2005, the Court sees good cause for reconsidering its previous position on the effectiveness of a complaint under the 2004 Act in respect of its compensatory aspect.
180. As shown by the facts in the present case, considerable delays occurring in the applicants ’ cases, which were relevant for the assessment of the breach of Article 6 § 1 alleged by them, were not taken into account by the courts dealing with their complaints. Contrary to the Court ’ s established case-law on the assessment of the reasonableness of the length of proceedings (see, among many other examples, Kudła, cited above, § 119 ‑ 124; Humen v. Poland [GC], no. 26614/95, §§ 58-60, 15 October 1999; Turczanik v. Poland, no. 38064/97, §§ 38-39, ECHR 2005 ‑ VI; Beller v. Poland, no. 51837/99, § 67-71, 1 February 2005; Koss v. Poland, no. 52495/99, §§ 28 and 33, 28 March 2006; and, in particular, Majewski v. Poland, no. 52690/99, § 35, 11 October 2005), the courts did not examine the overall length of the proceedings but only selected parts of them. In the first applicant ’ s and the third applicant ’ s cases the courts disregarded periods occurring before the 2004 Act ’ s entry into force and examined only the length of proceedings at the current instance. In the second applicant ’ s case, the Court of Appeal limited its assessment to the court instance at which the main proceedings were currently pending (see paragraphs 26, 47 and 73 above).
181. The approach taken by the courts in the applicants ’ cases does not appear to have resulted, as the Government suggested, from their particular circumstances. Nor does the Court find that these were merely individual, isolated examples of the Polish courts ’ practice in the application of the 2004 Act.
In fact, the impugned decisions fully reflected the so-called principle of “fragmentation of proceedings”, established by the Supreme Court in its rulings given between 2005 and 2012 (see paragraphs 92-106 above). In accordance with the Supreme Court ’ s interpretation of the term “in the course of the proceedings in a case” referred to in section 5(1) of the 2004 Act, assessment of a length complaint was to be limited to the period after the Act ’ s entry into force – unless the previous delay still continued on that date – and to the court instance at which the case was currently pending, notwithstanding the prior instances (see paragraphs 79 and 92-99 above).
That interpretation applied until 20 March 2013, when the Supreme Court issued the 2013 Resolution, analysing critically its previous case-law on the matter and endorsing a new interpretation, in compliance with the Court ’ s case-law on the assessment of the reasonableness of the length of proceedings (see paragraphs 100-105 above)
Inevitably, the fragmentation of the proceedings must have had decisive consequences for the outcome of the applicants ’ claims for compensation, which were either rejected in their entirety as being unjustified or, in the first applicant ’ s case, granted only partly (see paragraphs 26, 46-47 and 72 ‑ 73 above).
182. As stated above, in reiteration of the Scordino (no. 1) standards for “appropriate and sufficient redress” for violations of the “reasonable time” requirement and the applicant ’ s victim status before the Court, a State that has introduced – as Poland did – a remedy or remedies designed both to expedite proceedings and to afford compensation may award lower amounts than those awarded by the Court, on condition that those amounts are not unreasonably low compared with the Court ’ s awards in similar cases (see paragraphs 173-174 above and also Scordino (no. 1), §§ 213-214).
In that regard, the Court has also accepted that while there is a strong, although rebuttable, presumption in favour of non-pecuniary damage being normally occasioned by the excessive length of proceedings, there may also be situations where no such damage, or only minimal damage, has been ascertained – for instance where an applicant ’ s conduct has entirely or partly caused the procrastination or where the delay has been caused by circumstances independent from the authorities (see Scordino (no. 1), cited above, § 204; Proszak v. Poland, 16 December 1997, § 40, Reports 1997 ‑ VIII, with further references; Rylski v. Poland, no. 24706/02, § 76, 4 July 2006; Boczoń v. Poland, no. 66079/01, § 51, 30 January 2007 and Piper v. the United Kingdom, no. 44547/10, § § 56-69 and 73-74, 21 April 2015 ).
183. In the present case neither the domestic courts nor this Court have found any indication that the applicants culpably, or otherwise, contributed to the delays occurring in their cases. On the contrary, the Court has found that the responsibility for the excessive length of proceedings should be attributed entirely to the domestic authorities (see paragraphs 140, 150 and 160 above). In the cases of Mr Orlikowski and Ms Grabowska the claims for compensation were rejected as unjustified even though at the material time the proceedings in each case had been pending for some eleven years (see paragraphs 47 and 73 above). In accordance with the Court ’ s case-law, taking into account the number of levels of jurisdiction, such considerable delays should have resulted in domestic awards of compensation for non ‑ pecuniary damage reaching PLN 11,000 each (see paragraphs 48 and 74 above).
Mr Rutkowski was granted PLN 2,000, the minimum statutory amount, which corresponded to 5.5% of what the Court would have awarded him had there been no domestic remedy. The award was a small fraction of the PLN 12,300 which he should have been awarded by the national court at the material time (see paragraph 27 above). The domestic award must therefore be considered manifestly unreasonable in the light of the standards set by the Court (see paragraphs 173-174 above and Scordino (no. 1), cited above, §§ 214 and 269-270).
In view of the foregoing, the Court finds that a complaint under the 2004 Act failed to provide the applicants with “appropriate and sufficient redress” (see Scordino (no.1), § 181) in terms of adequate compensation for the excessive length of the proceedings in their cases.
184. The Court would also note that, by virtue of section 2(2) of the 2004 Act (see paragraph 76 above), the domestic court ’ s examination of such complaints is to be focused on the question of whether the court dealing with the particular case displayed due diligence. However, it should be emphasised that a failure to deal with a case within a reasonable time is not necessarily the result of fault or omission on the part of individual judges or prosecutors. There are instances where delays result from the State ’ s failure to place sufficient resources at the disposal of its judiciary (see Finger, cited above, § 96) or from deficiencies in domestic legislation pertaining to the organisation of its judicial system or the conduct of legal proceedings (see paragraph 128 above and paragraphs 207 and 210 below).
185. Lastly, the Court would wish to address the Government ’ s argument that supplementary damages could be obtained after the termination of the proceedings by means of a subsequent, separate civil action based on the rules for the State ’ s liability for tort (see paragraph 169 above). That remedy is referred to in sections 15 and 16 of the 2004 Act (see paragraphs 82-83 above).
The Court is not persuaded by that argument. As pointed out by the applicants (see paragraph 167 above), the gist of their complaints is linked with the ineffectiveness of the primary compensatory remedy under the 2004 Act, designed to enable a party to judicial proceedings not only to expedite pending proceedings but also to recover compensation for non ‑ pecuniary damage sustained on account of excessive length of proceedings. As explicitly stated in the explanatory notes to the 2004 Act and the 2009 Amendment, the Polish legislature intended the compensation thereby granted to be adequate (see paragraphs 75 and 85 above). That being so, to expect the individuals concerned to have recourse to yet another remedy enabling recovery of compensation for non-pecuniary damage when the primary compensatory remedy has proved to be defective would entail imposing an unjustified and excessive burden on victims of unreasonable delay. It must also be noted that although the civil action relied on by the Government has been considered by the Court to have been effective, that was in a different factual and legal situation, namely where a complaint under 2004 Act had not been available to the applicant (see Krasuski, cited above, §§ 69-72). Consequently, the availability of another, ex post facto remedy at a later stage cannot alter the Court ’ s conclusion as to the State ’ s failure to ensure in the instant case a sufficient level of compensation for non-pecuniary damage arising from unreasonable length of proceedings.
186. There has accordingly been a violation of Article 13 of the Convention.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
187. Article 46 of the Convention, in so far as relevant, reads as follows:
“ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
188. Rule 61 of the Rules of Court, which entered into force on 21 February 2011, defines the principal features of the pilot-judgment procedure. It reads, in so far as relevant, as follows:
“ 1. The Court may initiate a pilot-judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications.
2. (a) Before initiating a pilot-judgment procedure, the Court shall first seek the views of the parties on whether the application under examination results from the existence of such a problem or dysfunction in the Contracting Party concerned and on the suitability of processing the application in accordance with that procedure.
3. The Court shall in its pilot judgment identify both the nature of the structural or systemic problem or other dysfunction as established as well as the type of remedial measures which the Contracting Party concerned is required to take at the domestic level by virtue of the operative provisions of the judgment.
4. The Court may direct in the operative provisions of the pilot judgment that the remedial measures referred to in paragraph 3 above be adopted within a specified time, bearing in mind the nature of the measures required and the speed with which the problem which it has identified can be remedied at the domestic level. ...”
A. The parties ’ arguments as to the application of the pilot-judgment procedure
189. The Government opposed recourse to the pilot-judgment procedure in the present case, maintaining that the conditions for its application, as laid down in Rule 61 of the Rules of Court, had not been satisfied.
First of all, the facts of the applications did not disclose an existence of a “structural or systemic problem or other similar dysfunction which ha[d] given rise to similar applications”, as stipulated in Rule 61. As the Court held in Broniowski (cited above), a systemic problem occurred when the facts of the case disclosed the existence, within the domestic legal order, of a malfunctioning of national legislation or practice, as a consequence of which a whole class of individuals had been, or still was, denied the enjoyment of their rights. This was not the situation in the present case. Complaints under the 2004 Act alleging excessive length of proceedings were not numerous, as demonstrated by the Ministry of Justice ’ s statistics, but constituted merely 0.04% of all cases examined by the Polish courts. That number could not be indicative of a systemic problem.
Secondly, despite certain shortcomings in the application of the 2004 Act by the courts, length complaints operated effectively and in compliance with the standards set by the Court ’ s case-law. Any possible defects had already been identified and the authorities had consistently taken measures to eliminate them, in particular by their efforts to shorten the length of judicial proceedings and improve the effectiveness of that remedy. Recently, amendments had been proposed to the Code of Civil Procedure and the Code of Criminal Procedure to accelerate judicial proceedings. Information on the Court ’ s case-law was disseminated among the judges, prosecutors and other employees of the judiciary. To this end, an extensive database of judgments and decisions in Polish cases, translated into Polish, had been set up by the Ministry of Justice.
In that regard, the Government referred at length to various measures mentioned in their action plans of 2011 and 2013 submitted to the Committee of Ministers in the context of execution of judgments concerning the excessive length of civil and criminal procedure (for more details see also paragraphs 120-123 above).
190. Moreover, the Minister of Justice and the Minister of Foreign Affairs had asked the Prosecutor General to address a legal question on the interpretation of the 2004 Act to the Supreme Court. As a result, on 28 March 2013 the Supreme Court issued the 2013 Resolution, consolidating its case-law and judicial practice in the light of the Court ’ s judgments on the “reasonable-time” requirement under Article 6 § 1 and “effective remedy” under Article 13.
191. In the Government ’ s opinion, the 2013 Resolution had significantly contributed to adjusting the domestic courts ’ practice to the Convention standards. The Supreme Court had removed any ambiguity as to the understanding of the term “the course of the proceedings in a case”, holding that an examination of a complaint under the 2004 Act should cover all stages of the proceedings, regardless of the stage at which the complaint had been lodged. It had eliminated the previous practice of limiting the court ’ s examination to a current stage of proceedings, holding that it had been contrary to the Court ’ s case-law. Moreover, in that resolution, the Supreme Court had attached much importance to the compensatory aspect of that remedy, stressing that the courts should award appropriate and sufficient compensation for excessive length of proceedings.
192. Relying on the principle of subsidiarity, the Government maintained that since the source of the violations alleged in the present case had been identified at national level and the State was in the course of implementing comprehensive reforms of domestic procedures, there was no need to apply the pilot-judgment procedure.
The Court itself had emphasised in the Scordino (no. 1) judgment that where a State had made a significant move by introducing a compensatory remedy, a wide margin of appreciation should be left to it in order to allow it to organise the remedy in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned. The 2004 Act was still a relatively new law and the authorities needed some more time to establish uniform practice and to consolidate the interpretation of its provisions in conformity with the Convention.
For that reason, the Government asked the Court to leave the matters involved in the case to be resolved at national level.
193. In that context, the Government also underlined that the State had done everything possible to execute the Kudła judgment promptly and properly. The Court had found the remedies under the 2004 Act to have been effective in three landmark cases. The action plans submitted by the Government in the framework of the execution procedure had been evaluated positively by the Committee of Ministers. Following the 2004 Act ’ s entry into force all the perceived shortcomings had been removed. The 2009 Amendment had extended the application of the Act ’ s provisions to cover the investigation stage of criminal proceedings. It had also introduced a statutory minimum award, making it obligatory for the courts to grant compensation and, given the need to adjust domestic awards to the Court ’ s standards, doubled the maximum statutory award, increasing it from PLN 10,000 to PLN 20,000. Lastly, as mentioned above, the 2013 Resolution had put the judicial practice in line with the Convention requirements.
194. Referring to the relevant statistical data (see also paragraphs 108 ‑ 117 above), the Government drew the Court ’ s attention to the fact that level of compensation awarded by the Polish courts had consistently increased; for instance, in 2007 the average sum of compensation per case had amounted to PLN 1,986 before the regional courts and PLN 2, 377 before the courts of appeal, whereas it had been, respectively, PLN 2,799 and PLN 3,862 in 2009; PLN 3,054 and PLN 3,952 in 2010; PLN 2,875 and PLN 4,050 in 2011; PLN 2,771 and PLN 2, 709 in 2012; PLN 2,868 and PLN 3,426 in 2013; PLN 2,687 and PLN 4,260 in the first quarter of 2014 (see also paragraphs 108-116 above).
195. The Government further referred to the Court ’ s previous pilot judgments concerning the excessive length of proceedings and the lack of remedy in that respect, in particular to the cases of Finger v. Bulgaria (cited below), Rumpf v. Germany (no. 46344/06, 2 September 2010) and Vassilios Athanasiou and Others v. Greece (cited below). In their view, the circumstances which had given rise to the Court ’ s finding of a systemic problem in those judgments could not be compared to the instant case. In Finger the only existing domestic remedy had not met the Court ’ s standards as regards the possibility of accelerating the procedure and obtaining sufficient redress. In the remaining cases the domestic system had offered no effective domestic remedy. In contrast, in Poland a remedy had been introduced and had been positively assessed by the Court. It operated effectively and enabled a party to expedite proceedings and receive sufficient compensation.
196. Since, in the Government ’ s opinion, the case did not reveal any systemic problem and any shortcomings in the application of the 2004 Act had already been identified by the authorities, there was no need for the State to introduce a new remedy.
In view of the foregoing, the Government considered that the application of the pilot-judgment procedure could significantly undermine the Polish State ’ s endeavours to accelerate judicial proceedings, afford redress to victims and improve the courts ’ practice.
The Government urged the Court not to deliver a pilot judgment.
197. The first and the second applicants disagreed with the Government. The third applicant refrained from commenting on the matter.
In the applicants ’ submission, the case disclosed a systemic problem consisting in the malfunctioning of the Polish judicial practice in respect of excessive length of court proceedings and misapplication of the Court ’ s case-law on the “reasonable time” requirement laid down in Article 6 § 1 of the Convention and “appropriate and sufficient redress” for a breach of that requirement, as set out in Article 13.
198. As regards the excessive length of proceedings, it remained a serious problem in Poland, even though the authorities had made various efforts to reduce delays. That process was very slow and it could not be expected that, as suggested by the Government, the actions taken would eliminate or diminish the systemic dysfunction in the near future. In any event, the fact that the Government had taken certain steps to deal with the deficiencies that they had already perceived did not by itself mean that the pilot-judgment procedure was not suitable for the case.
The systemic nature of the problem was also demonstrated by numerous cases involving complaints of breaches of the “reasonable time” requirement lodged with the Court and hundreds of the Court ’ s judgments finding that breach, which had been delivered over the last several years, since the 2004 Act ’ s entry into force. The present case involved typical Polish applications concerning excessive length of proceedings and the complaints were not, as the Government had argued, based on exceptional circumstances but were representative of the general situation subsisting in the country.
199. There were also, the applicants added, numerous examples of the Court judgments against Poland demonstrating that compensation for a breach of the right to a hearing within a reasonable time granted by the Polish courts was unreasonably low in comparison with the Court ’ s awards in similar cases, ranging from 7% to 25% of what the Court would normally have awarded.
It was true that the State had made certain attempts to improve the situation but so far they had not been successful. Contrary to the legislature ’ s expectations, the 2009 Amendment, which had increased the statutory minimum and maximum available compensation, had not encouraged – contrary to the legislature ’ s expectations – the courts to make higher awards. The applicants agreed with the Government that over the past years there had been some, although in their opinion very slow, progress in increasing domestic awards of compensation. However, as demonstrated by the statistics, the awards made by regional courts and courts of appeal still remained at fairly low levels, oscillating close to the obligatory minimum of PLN 2,000. As a result, they were not reasonably related to the Court ’ s awards in similar cases. This situation disclosed the persistent lack of conformity with the Convention standards, which, given its scale, was of a systemic nature and justified the application of the pilot ‑ judgment procedure.
1. General principles deriving from the Court ’ s case-law
200. Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court has found to have been violated. Such measures must also be taken in respect of other persons in the applicant ’ s position, notably by resolving the problems that have led to the Court ’ s findings (see, among other examples, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Broniowski v. Poland [GC], no. 31443/96, § 192-193, ECHR 2004 ‑ V; Lukenda v. Slovenia, no. 23032/02, § 94, ECHR 2005 ‑ X; Burdov v. Russia (no. 2), no. 33509/04, § 125, ECHR 2009; Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 106, ECHR 2010 (extracts); Glykantzi v. Greece, no. 40150/09, § 62, 30 October 2012; and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 83, 8 January 2013).
That obligation was consistently emphasised by the Committee of Ministers in the supervision of the execution of the Court ’ s judgments (see, among many authorities, Interim Resolutions ResDH(97)336 in cases concerning the length of proceedings in Italy and ResDH (2007)28 (the 2007 CM Resolution) in cases concerning the length of proceedings and the right to an effective remedy in Poland (paragraphs 118-119 above).
In this context the Court ’ s concern is to facilitate the most speedy and effective resolution of a dysfunction established in national human rights protection. Once such a defect has been identified, it falls to the national authorities, under the supervision of the Committee of Ministers, to take, retroactively if appropriate the necessary remedial measures in accordance with the subsidiary character of the Convention, so that the Court does not have to repeat its finding in a lengthy series of comparable cases (see Broniowski, cited above, § 193).
201. In order to facilitate effective implementation of its judgments along these lines, the Court may adopt a pilot-judgment procedure allowing it to clearly identify in a judgment the existence of structural problems underlying the violations and to indicate specific measures or actions to be taken by the respondent State to remedy them (see Broniowski, cited above, §§ 189-94 and the operative part and Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 231-39 and the operative part, ECHR 2006-VIII). This adjudicative approach is, however, pursued with due respect for the Convention organs ’ respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under Article 46 § 2 of the Convention (see, mutatis mutandis, Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 42, ECHR 2005 ‑ IX and Hutten-Czapska v. Poland (friendly settlement) [GC], no. 35014/97, § 42, 28 April 2008 ).
202. Another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at the domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court ’ s task, as defined by Article 19, that is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, is not necessarily best achieved by repeating the same findings in a large series of cases (see, mutatis mutandis, E. G. v. Poland (dec.), no. 50425/99, § 27, ECHR 2008 ). The object of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order (see Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 34, 4 December 2007 ). While the respondent State ’ s action should primarily aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements (see Burdov (no. 2), cited above, § 127 and M.C. and Others v. Italy, no. 5376/11, § 111, 3 September 2013).
2. Application of the above principles in the present case
(a) Application of the pilot-judgment procedure in the present case
203. In contrast to Broniowski and Hutten-Czapska, the first cases where the Court identified new systemic problems at the root of numerous similar follow-up cases and held that general measures at national level were called for in execution of the judgments “to remedy the systemic defect underlying the Court ’ s finding of a violation so as not to overburden the Convention system with large numbers of applications deriving from the same cause” (see Broniowski, cited above, § 193), the present case comes to be considered after the Polish State has already introduced general measures for excessive length of proceedings in execution of the Kudła judgment. However, the subsequent inflow of applications to the Court alleging a violation of the right to a hearing within a reasonable time has demonstrated deficiencies in the operation of that remedy.
204. Since the introduction of the remedy under the 2004 Act the Court has delivered 280 judgments finding a breach of the “reasonable-time” requirement in cases where the applicants had unsuccessfully attempted to obtain a ruling acknowledging that breach and compensation for non ‑ pecuniary damage before the domestic courts. In addition, in 358 similar cases the same breach was in substance or expressly admitted by the Government and they paid compensation for a violation of the right to a hearing within a reasonable time to the victims under the terms of a friendly settlement or unilateral declaration (see paragraph 8 above).
As regards the state of affairs at the execution stage, at present, nearly eleven years since the 2004 Act ’ s entry into force, over 300 Polish cases involving the excessive length of judicial proceedings are still pending before the Committee of Ministers. They constitute the majority of all not ‑ yet-fully executed judgments against Poland (see paragraph 11 above).
Furthermore, since the Act ’ s entry into force at least 100 prima facie well-founded applications per year have been lodged with the Court by persons who have exhausted the domestic remedies but have not obtained any, or obtained insufficient, redress for a violation of their right to a hearing within a reasonable time. The caseload developments demonstrate the growing and steady inflow of Polish length-of-proceedings cases on the Court ’ s docket; in 2014 alone 144 cases were registered. As of the date of adoption of this judgment 650 Polish cases involving mainly, or at least partly, complaints of excessive length of civil and criminal proceedings are pending before the Court (see paragraphs 7-10 above).
205. A similar trend seems to have developed in the respondent State. The statistical materials produced by the parties confirm a consistent increase in the number of complaints under the 2004 Act lodged between 2006 and 2012: from over 2,600 in 2006 to over 8,600 in 2012 and 12,532 in 2013. In those years the annual caseload increase was between 22.9% and 35.23% (see paragraphs 108-117 above). While, as argued by the Government, those cases may constitute an insignificant percentage of all the cases currently pending before the Polish courts (see paragraph 189 above), this does not disprove the existence of a systemic problem. Furthermore, the comparison with the total number of cases pending cannot be taken, without more, to reflect the true picture. Given that, as shown by the statistics presented by the Government, in the vast majority of cases ‑ even up to 80-90% in any given year – complaints were rejected (see paragraphs 108-117 above), it cannot be excluded that this factor could have a discouraging effect on potential complainants.
Nor can the Court accept the Government ’ s argument that since any shortcomings in the application of the 2004 Act have – in their view – been identified by the State, there is no need to apply the pilot-judgment procedure, in particular as it “ could significantly undermine” the Polish State ’ s endeavours made in order to put the matters right at domestic level (see paragraph 196 above). In that regard, the Court would reiterate that the aim of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction in the national legal order or practice (see paragraph 201 above).
206. In its previous rulings the Court has already acknowledged the positive effects of the enactment of the 2004 Act. It also notes that, as the Government maintained, the 2009 Amendment removed certain shortcomings in the application of the 2004 Act (see paragraph 193 above). However, having regard to the considerable scale of the problem of excessive length of proceedings in Poland, accompanied by the lack of sufficient redress for a breach of the reasonable-time requirement at domestic level, as demonstrated by the Court ’ s caseload and the recurrent nature of the complaints, as well as the large number of persons that were, or are liable to be, affected by it, the Court finds that the situation complained of in the present cases must be qualified as practice incompatible with the Convention (see, for instance, Bottazzi, cited above, § 22; Burdov (no. 2), cited above, § 135; and Michelioudakis, cited above, § 73).
Accordingly, the Court concludes that it is justified to apply the pilot-judgment procedure since the facts of the case reveal the existence in Poland of a “systemic problem ... which has given rise [and] may give rise to similar applications”, as referred to in Rule 61 § 1 of the Rules of Court.
(b) Practice incompatible with the Convention and general measures to be adopted
207. In its judgments the Court has emphasised that the unreasonable length of proceedings in the respondent States is a multifaceted problem which may be caused by a range of factors of a legal, administrative or logistical nature.
Those underlying factors frequently include an insufficient number of judges or administrative staff, inadequate court premises, overly complex or cumbersome procedures, procedural loopholes allowing unjustified adjournments, and poor case-management (see, for instance, Finger, cited above,§ 120; and Vlad and Others (cited above), §§ 133, 135 and 144 ) or ‑ as shown by the facts of the present case– belated submission of expert reports and inefficiency in collecting expert evidence, lack of the proper case ‑ management and adequate organisation of the trial, including the defective service of process and lengthy intervals between hearings, as well as the repetition of remittals ordered on appeal (see paragraphs 18-25, 30 ‑ 45, 51-71, 137-139, 147-149 and 158-159 above). The complexity of the problem, which may be – and often is – compounded by the national circumstances, including budgetary constraints, does not allow for one or even more specific remedying measures to be prescribed. Consequently, the systemic problem identified in the present cases requires of the respondent State the implementation of comprehensive, large-scale actions of a legislative and administrative character, involving the authorities at various levels.
However, the Court will abstain from indicating any detailed measures to be taken to tackle the problem. The Committee of Ministers, in the course of the pending execution, is better placed and equipped to monitor the measures that need to be adopted by Poland in that respect (see Finger, cited above, § 120 and, mutatis mutandis, Burdov (no. 2), cited above, § 136).
208. It is to be noted that, as shown by the general measures already adopted in execution of the Kudła judgment, the Polish State has recognised the need to take actions aimed at expediting and modernising the procedure before the national courts. As observed by the Committee of Ministers in its assessment of the Government ’ s action plan of 2013, those measures have three principal aims: the simplification and acceleration of the proceedings; the transfer of some responsibilities from judges to non-judicial officers; where appropriate and limitation of the scope of the courts ’ jurisdiction by transferring some cases traditionally examined by the courts to other legal professions, for instance public notaries. Organisational measures taken include: the supervision by the Ministry of Justice of the courts ’ administrative activities; continued computerisation; and increase in the number of judges and in the courts ’ budgets (see paragraph 121 above).
209. The Court welcomes the above developments. However, as the facts of the present case demonstrate, given the scale and complexity of the problem of excessive length of proceedings, the respondent State must continue to make further, consistent long-term efforts to achieve compliance by the national courts with the “reasonable-time” requirement laid down in Article 6 § 1.
210. Before analysing the root causes behind the violation of Article 13 found in the instant case, the Court would again stress that, apart from the conduct of domestic authorities, such factors as deficiencies in domestic legislation governing the organisation of the judicial system and the conduct of legal proceedings may often contribute to excessive length of proceedings (see paragraphs 184 and 207 above).
211. In its assessment of the applicants ’ individual complaints the Court has already found that there are two interrelated root causes behind the violation of Article 13 found in the instant case (see paragraphs 180-183 above).
212. The first cause is the Polish courts ’ non-compliance with the Court ’ s case-law on the assessment of the reasonableness of the length of proceedings, in particular its judgments holding that the period to be taken into consideration comprises the entirety of the domestic proceedings.
The second cause, linked with and partly resulting from the practice of the limited – fragmentary – assessment of the length of proceedings, is the Polish courts ’ non-compliance with the standards for “sufficient redress” to be afforded to a party by the domestic court for a breach of the right to a hearing within a reasonable time.
213. The practice of the “fragmentation of proceedings” applied by the national courts was perceived by the Court – and brought to the Polish State ’ s attention – as incompatible with Article 6 § 1 already at an early stage of the operation of the 2004 Act. It was in the Majewski v. Poland judgment, delivered on 11 October 2005, that the Court first reminded the Polish authorities that “as it ha[d] already indicated on a great number of occasions, the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case taken as a whole. The Court ’ s approach consist[ed] in examining the overall length of proceedings and in covering all stages of the proceedings” (see Majewski, cited above, § 35 ). In the light of that judgment it was therefore evident for the domestic authorities that a court dealing with a complaint under the 2004 Act must consider the entirety of the proceedings and all their stages.
214. Although that fundamental principle was repeatedly reiterated in the subsequent judgments disclosing the same defective interpretation of the “reasonable-time” requirement by the Polish courts, including the Supreme Court (see, for instance, Kęsiccy v. Poland, no. 13933/04, § 62, 16 June 2009), the authorities have not changed their approach. On the contrary, the Supreme Court, in its rulings of 2005-12, further endorsed the fragmentation of proceedings (see paragraphs 93-100).
215. In the Court ’ s view, that practice was a principal reason for the deficient operation of a complaint under the 2004 Act in the subsequent years, following the leading decisions in Charzyński and Michalak.
The Court finds it regrettable that that happened despite the fact that the 2004 Act, followed by the 2009 Amendment (see paragraphs 85-89 above), set up a mechanism which, at least in law, had all the features of an effective remedy in the light of the Kudła judgment and the Court ’ s subsequent case-law. That remedy was not only found to have been “effective” in Polish cases but it also served as a model for similar measures adopted in other Contracting States. In particular, in the Scordino (no. 1) judgment the Court held that Poland was among the States that “ha[d] understood the situation perfectly by choosing to combine two types of remedy, one designed to expedite the proceedings and the other to afford compensation” (see Scordino (no. 1), cited above, § 186).
216. It took some ten years before the Supreme Court decided, on 28 March 2013 that in the light of the Convention standards the principle of fragmentation of proceedings no longer had any basis. It happened only after the present applications had been communicated to the Polish Government and after the Prosecutor General, prompted by the Government Ministers ’ request, had asked the Supreme Court for an interpretative resolution determining the correct meaning of the period relevant for the assessment of reasonableness of proceedings in examination of a complaint under the 2004 Act (see paragraphs 101-107 and 186 above).
The conclusions of the Supreme Court match the Court ’ s findings made in the context of the violation of Article 13 in the present case (see ‑ paragraphs 103-106 and 180-183 above).
It was recognised, among other things, that “the complaint ... under [the 2004 Act], if interpreted as a measure preventing the excessive length of proceedings only at the current stage of the proceedings ... [wa]s not an effective remedy within the meaning of Article 13 because it create[d] an obstacle to fully compensating [a party], in particular in respect of non ‑ pecuniary damage arising from the excessive length of proceedings”. It was also concluded that if the remedy were perceived merely as an “ ad hoc measure in respect of the excessive length of proceedings”, it would be “only a substitute for an effective remedy within the meaning of Article 13” and that, on that account, it did not “fulfil its role as a legal mechanism serving to exercise the constitutional right of access to a court”. Nor did it “stop applications concerning the excessive length of proceedings being lodged with the Court but merely delay[ed] them” (see paragraph 106 above).
217. The developments of the Court ’ s caseload have fully confirmed the latter conclusion. The main object of the present applications and [650] other similar cases pending before the Court is to seek just satisfaction before the Court for a violation of the right to a hearing within a reasonable time because the applicants were unable to obtain it before the national courts. The direct cause for this situation is the insufficiency of compensation awarded for non-pecuniary damage for unreasonable delays at domestic level (see paragraph 7 above).
As stated above, the second, interrelated cause behind the violation of Article 13 is in the Polish courts ’ non-compliance with the Court ’ s case-law setting out standards for “sufficient and appropriate” redress. The present case and numerous similar cases listed in the annex to the judgment demonstrate that the level of domestic awards is evidently below the threshold fixed by the Court for victim status in the Scordino (no. 1) judgment. The statistical information produced by the parties supports the applicants ’ opinion that progress in adjusting domestic awards is markedly slow. Moreover, it does not appear that the setting of the minimum award and increasing of the maximum award have encouraged the Polish courts to grant higher sums, reasonably related to the Court ’ s standards. The average amounts awarded are at the lower end of the scale set by the 2004 Act and oscillate around the minimum sum of PLN 2,000, in particular as regards complaints examined by the regional courts (see paragraphs 108-117 and 189 and 194 above).
218. The reluctance on the part of the national courts to award more substantial amounts may be linked with many factors, which are not for the Court but for the State to identify so that it can ensure compliance with the Convention in the future. However, the Court cannot but note that in the present case each applicant ’ s claim for non-pecuniary damage could have been satisfied in accordance with the Scordino (no. 1) requirements at domestic level, without the need for any of them to address their complaints to the Court – if only the relevant courts had respected the Convention standards. The minimum domestic awards required in each case were all below the maximum ceiling set at PLN 20,000 (see paragraphs 27, 48 and 73 above). It cannot therefore be said that the relevant courts were bound by the statutory limitations on awards or that they did not enjoy a sufficient margin of appreciation in their assessment of the relevant circumstances (see paragraph 174 above).
219. In consequence, despite the introduction of a domestic remedy by Poland – a complaint designed to provide “appropriate just satisfaction” for unreasonable length of judicial proceedings (see paragraphs 80 and 89 above), the Court is continually forced to act as a substitute for the national courts and handle hundreds of repetitive cases where its only task is to award compensation which should have been obtained by using a domestic remedy.
This situation, subsisting for already several years in Poland, is not only incompatible with Article 13 but has also led to a practical reversal of the respective roles to be played by the Court and the national courts in the Convention system. It has upset the balance of responsibilities between the respondent State and the Court under Articles 1 and 19 of the Convention. In that regard, the Court would once again reiterate that, in accordance with Article 1, the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the Convention is laid on the national authorities and that the machinery of complaint to the Court is only subsidiary to the national systems safeguarding human rights (see paragraph 170 above and Kudła, cited above, § 152). The Court ’ s task, as defined by Article 19, cannot be said to be best achieved by repeating the same findings of a Convention violation in a series of cases (see also paragraph 202 above).
220. Indeed, the principal issue for the State in implementation of this judgment is to ensure that a complaint under the 2004 Act in its compensatory aspect will not only be available in law but will also be fully effective in practice.
The Government maintained that that aim had already been achieved since the authorities had already identified the shortcomings in the application of the 2004 Act by the courts and the process of implementation of various legal reforms and other measures was under way. In that context, they stressed the importance of the 2013 Resolution, whereby the Supreme Court had put an end to the previous defective judicial practice of disregarding the Court ’ s case-law (see paragraphs 189-194).
The Court is not persuaded by those arguments. It is true that Poland had intended to adopt, or had already adopted, various measures which were assessed by the Committee of Ministers as positive elements in execution of Polish judgments involving excessive length of judicial proceedings, including the implementation of a remedy under Article 13. Certainly, the Committee of Ministers is better placed than the Court to evaluate the steps taken by the State in the implementation of the general measures under final judgments. The Court will rely on that assessment. It would however note that in the 2013 CM Decision the Committee of Ministers also “expressed ... serious concern in relation to the continued problems with the application of the remedy against the excessive length of civil proceedings and considered that substantive measures [we]re still necessary to correct them” (see paragraph 123 above).
The Court accepts that the 2013 Resolution can be regarded as an important measure aimed at correcting the defective judicial practice and ensuring the Polish courts ’ compliance with the relevant Convention standards. However, it cannot, by itself, suffice to put an end to the systemic situation identified in the present case, especially as it has not yet been established that the lower courts have put it into practice. In contrast, the developments of the Court ’ s caseload in 2013 and 2014 showed an increased inflow of repetitive cases involving length of proceedings and insufficient just satisfaction at domestic level (see paragraph 9 above). Nor can the 2013 Resolution resolve the problems of the past raised in the hundreds of cases already pending before the Court.
221. In view of the foregoing, the respondent State should first, through appropriate general measures, secure the effective implementation of the 2013 Resolution by the courts dealing with complaints under the 2004 Act and their compliance with the Court ’ s standards for the assessment of the reasonableness of the length of proceedings and “appropriate and sufficient redress” for a violation of the right to have a hearing within a reasonable time.
222. As noted above, the adoption of such measures has already been considered by the Committee of Ministers (see paragraphs 118-123 and 220 above). The process of implementation, considering that it primarily involves the change of judicial practice and approach, requires a number of steps to be taken and raises issues which go beyond the Court ’ s function as defined by Article 19 of the Convention (see Burdov (no. 2), cited above, § 137). The Court will not, therefore, indicate any specific actions to be taken by the respondent State or any time-limit for that purpose. It will leave those matters to the Committee of Ministers, a body better equipped to monitor the progress achieved in that process, to ensure that Poland adopts the necessary measures consistent with the conclusions in the present judgment.
(c) Procedure to be followed in similar cases
(i) Cases listed in the annex to the judgment which are to be communicated to the Polish Government in accordance with Rule 54 § 2(b) of the Rules of Court
223. A list of the applications is set out in the annex to this judgment. It comprises 591 applications.
All the applicants in essence complain under Article 6 § 1 of the excessive length of civil or criminal proceedings. They also allege expressly or in substance a violation of Article 13 on account of the Polish courts ’ defective practice in the application of the 2004 Act in respect of compensation for non-pecuniary damage caused by excessive length of proceedings, a practice disregarding the standards laid down in the Court ’ s case-law.
(ii) Reasons for the Court ’ s decision to communicate the pending similar applications in the framework of the pilot-judgment procedure
224. Bearing in mind that while awaiting the outcome of the pilot-judgment procedure the processing of Polish cases involving length of judicial proceedings has practically been suspended since the end of 2012 (see paragraph 9 above), the Court has sought a procedural solution that, in accordance with the principle of subsidiarity laid down in Article 1 of the Convention, would accommodate both the applicants ’ interests and the need for the Polish State to take without delay appropriate measures addressing the problem underlying their complaints.
225. In that context, the Court has considered its previous pilot judgments concerning the systemic problem of excessive length of proceedings and, in particular, the procedure that was fixed for follow-up cases under those judgments.
The approach adopted has been a flexible one. In some judgments, the Court adjourned consideration of the remaining applications, new and communicated ones alike, pending the introduction of an effective domestic remedy, as required by Article 13, for unreasonable length of proceedings and the adoption of general measures providing redress to all the persons affected in respect of violations already suffered (see, for instance, Glykantzi v. Greece, no. 40150/09, § § 82-83, 30 October 2012; and Michelioudakis v. Greece, no. 54447/10, §§ 79-80, 3 April 2012). In certain situations the adjournment was linked with the recent introduction of a new domestic remedy (see Ümmühan Kaplan v. Turkey, no. 24240/07, §§ 76-77, 20 March 2012
In contrast, in other judgments the Court decided that examination of similar cases should continue in the usual manner pending the adoption of general measures, so that the respondent State would be reminded on a regular basis of its obligations under the Convention, in particular those resulting from the pilot judgment (see Rumpf v. Germany, no. 46344/06, § 75, 2 September 2010; Vassilios Athanasiou and Others, cited above, § 58; Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, § 133, 10 May 2011; and Finger, cited above, § 135).
226. In view of the foregoing and emphasising that one of the important features of the pilot-judgment procedure is its flexibility, enabling the Court to adapt it to a variety of legal and factual situations in different States and to its own caseload developments (see, for instance, Broniowski v. Poland (friendly settlement) § 35, and Burdov (no. 2), § 127, both cited above), the Court considers that in the instant case the most efficient procedural solution is to give notice of all new pending applications where the primary issue concerns the length of judicial proceedings to the respondent Government within the framework of the present pilot-judgment procedure.
The significant number of such pending cases that have already accumulated on the Court ’ s docket, the oldest of which were registered in 2008-09, and their steady inflow require that a global, rapid action be taken. In the circumstances, neither the applicants ’ interest in having their cases examined by the Court, nor the Polish State ’ s obligation under Article 1 of the Convention “to secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention” are best served by the individual communication of those applications or even by “collective” communication in batches of hundreds subsequent to the judgment. Indeed, in order to allow the respondent State promptly to select the most appropriate measures to satisfy its Convention obligations in accordance with Article 1 of the Convention, it would appear necessary to put it on notice immediately.
Consequently, the Court decides that the applications listed in the annex are to be communicated to the Government under Rule 54 § 2(b) of the Rules of Court
(iii) Time-limit set for the Government for finding a solution in non-contentious procedure
227. As stated above, one of the aims of the pilot-judgment procedure is to allow the speediest possible redress to be afforded at the domestic level to the large numbers of people suffering from the structural problem identified in the pilot judgment (see paragraph 198 above and Burdov (no. 2), cited above, § 142).
In the present case the Court considers it necessary to allow the respondent Government a two-year time limit for processing the communicated applications and affording redress to all victims who lodged their applications with the Court before the delivery of the present judgment That redress may be achieved through ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the relevant Convention requirements.
228. Accordingly, pending the adoption of measures ensuring redress, the Court decides to adjourn adversarial proceedings in all those cases for two years from the date on which the judgment becomes final. This decision is without prejudice to the Court ’ s power at any time to declare inadmissible any such case or to strike it out of its list following a friendly settlement between the parties or the resolution of the matter by other means in accordance with Article 37 or 39 of the Convention.
(iv) Future cases lodged after the delivery of the present judgment
229. As regards any future cases that may be lodged after the delivery of this judgment, the Court decides that adversarial proceedings in those cases should be adjourned for one year following the delivery of the judgment.
After the expiry of that term the Court will decide on a further procedure, in the light of subsequent developments and, in particular, any measures that may be taken by the respondent State in execution of the present judgment and any solutions that may be reached in the non-contentious procedure fixed for cases to be communicated (see paragraphs 227-228 above).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
230. 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.”
231. The applicant claimed EUR 20,000 in respect of pecuniary and non-pecuniary damage. He maintained that on account the delay in the determination of the criminal charges against him his service in the police had been terminated prematurely. As a result of the loss of his income, he had suffered serious financial consequences as he had been only in receipt of his pension. Moreover, he had suffered considerable distress, frustration and insecurity resulting from the excessive length of the proceedings.
232. The Government considered that the amount claimed was exorbitant and asked the Court to reject the applicant ’ s claims in their entirety. Should the Court decide to make any award, they asked that the criteria for just satisfaction set out in the Scordino (no. 1) judgment be applied.
233. 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 applicant must have suffered non-pecuniary damage on account of the excessive length of the proceedings in his case. It accordingly awards the applicant EUR 9,200, less PLN 2,000 granted to him by the Warsaw Regional Court (see also paragraphs 26-27 above).
234. The applicants claimed EUR 5,000 in respect of pecuniary damage, namely for loss of profits from business activity sustained on account of the excessive length of the proceedings in his case, in particular the prolonged impossibility of recovering the value of outlays made by him on the premises in dispute. He also claimed EUR 15,000 in respect of non ‑ pecuniary damage caused by the length of the proceedings in his case.
235. The Government said that there was no connection between the pecuniary damage and the violation of Article 6 § 1 alleged by the applicant. As regards the claim for non-pecuniary damage, the Government considered that claim was excessive and asked that the Court ’ s award, if any, be based on awards in similar cases and determined in the light of the national circumstances. They also asked the Court to apply the criteria for just satisfaction set out in the Scordino (no. 1) judgment.
236. 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 applicant must have suffered non-pecuniary damage on account of the excessive length of the proceedings in his case It accordingly awards the applicant EUR 8.800 (see also paragraph 48 above).
237. The applicants claimed EUR 100,000 in respect of pecuniary damage, in particular on account of the loss of profits that she could have been derived from the property in dispute had the proceedings been terminated without delay. The claim also included various court and legal fees that she had incurred in connection with the domestic proceedings. She further claimed EUR 10,000 in respect of non-pecuniary damage caused by the excessive length of proceedings in her case.
238. The Government asked the Court to reject the claim for pecuniary damage as entirely baseless. As regards the claim for non-pecuniary damage, the Government considered that the amount was excessive and asked that the Court ’ s award, if any, be based on awards in similar cases and determined in the light of the national circumstances. They also invited the Court to apply the criteria for just satisfaction set out in the Scordino (no. 1) judgment.
239. 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 applicant must have suffered non-pecuniary damage on account of the excessive length of the proceedings in her case. It accordingly awards the applicant EUR 10,000 (see also paragraph 74 above).
240. 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 are reasonable as to quantum.
241. The applicants claimed PLN 4,270 for the costs and expenses incurred in the domestic proceedings. This sum included PLN 610 paid for legal advice on 3 March 2008 and PLN 3,660 for costs of legal representation in the proceedings concerning his pre-trial detention, paid on 21 January 2003. The applicant ’ s representatives also asked to award him EUR 750 for costs and expenses of legal representation in the proceedings before the Court. They submitted that the sum awarded would be “dedicated to the Helsinki Foundation for Human Rights”.
242. The Government stated that could not see any link between the costs and expenses claimed, in particular those incurred in the domestic proceedings, and the alleged violation of Article 6 § 1.
243. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 750 the costs and expenses involved in the applicant ’ s legal representation before the Court.
244. The applicant claimed EUR 1,400 for the costs and expenses incurred before the domestic courts and those incurred before the Court. That sum included EUR 550 for legal representation in the case concerning the applicant ’ s complaint under the 2004 Act and EUR 850 for legal representation before the Court.
245. The Government considered that the amount was excessive and did not at all reflect the actual time and work involved in the applicants ’ legal representation.
246. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 550 for costs and expenses in the domestic proceedings and EUR 750 for the proceedings before the Court.
247. The applicant claimed PLN 738 for translation of her written observations and some other documents submitted to the Court and asked for the “reimbursement of legal costs in conformity with the Court ’ s rates”.
248. The Government considered that the claim was entirely unjustified and drew the Court ’ s attention to the fact that no documents had been submitted in support of the applicant ’ s claim for the reimbursement of costs of legal representation.
249. In the present case, regard being had to the fact that the applicant failed to submit any documents demonstrating that the costs of legal representation before the Court had actually been incurred, the Court rejects her claim in that part. However, it considers it reasonable to award the sum of EUR 180 for the costs of translation of documents submitted to the Court in the present case.
250. The Court considers it appropriate that the default interest rate 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. Decides to join the applications;