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FOURTH
SECTION
CASE OF WOJTUNIK v. POLAND
(Application
no. 64212/01)
JUDGMENT
STRASBOURG
12
December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Wojtunik v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr M. Pellonpää,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J.
Šikuta, judges
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 21 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 64212/01) 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”)
on 4 June 1999 by a Polish national, Mr. M. Wojtunik (“the
applicant”).
- The
Polish Government (“the Government”) were represented by
their Agent, Mr. J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
28 October 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
A. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Świnoujście.
- On
1 December 1992 the applicant brought an action against his former
employer before the Szczecin Regional Court for payment of
88,674 zlotys in compensation for refraining from undertaking
any professional activity in competition to that of his former
employer. His contract of employment provided for such compensation
for a period of six months after the termination of his contract of
employment (“the competition clause”).
- Hearings
were held on 3 March 1993, 27 August 1993 and 26 October 1993.
On 26 October 1993 the Szczecin Regional Court dismissed the
applicant’s action. The applicant appealed to the Poznań
Court of Appeal.
- On
24 March 1994 an appeal hearing was held.
- On
5 May 1994 the Poznań Court of Appeal quashed the judgment and
remitted the case.
- On
20 December 1994 a hearing was held during which the court examined
witnesses.
- On
7 February 1995, 4 April 1995 and 16 May 1995 further hearings were
held. On 16 May 1995 the court decided to have witnesses examined by
other courts for reasons of economy of proceedings. It sent its
request to these courts on 27 July 1995. On 12 October 1995 and
10 December 1995 the requested courts examined witnesses.
- On
6 February 1996, 18 March 1996 and 19 November 1996 further hearings
were held.
- On
29 January 1997 the Szczecin Regional Court gave a judgment in which
it allowed the applicant’s claim in part – it awarded him
44,621 zlotys. Both parties appealed.
- On
31 July 1997 the Poznań Court of Appeal dismissed the
applicant’s action in its entirety. The applicant lodged a
cassation appeal.
- On
24 February 1998 the Supreme Court of Appeal quashed the judgment and
remitted the case.
- On
22 October 1998 a hearing was held before the Poznań Court of
Appeal during which the parties agreed to enter into negotiations.
- On
28 January 1999 a judicial settlement was concluded and the
proceedings were discontinued. According to the settlement, the
applicant obtained 61,000 zlotys.
B. RELEVANT DOMESTIC LAW AND PRACTICE
- On
17 September 2004 the Law of 17 June 2004 on complaints about a
breach of the right to a trial within a reasonable time (Ustawa o
skardze na naruszenie prawa strony do rozpoznania sprawy w
postępowaniu sądowym bez nieuzasadnionej zwłoki -
“the 2004 Act”) entered into force. It lays down various
legal means designed to counteract and/or redress the undue length of
judicial proceedings. A party to pending proceedings may ask for the
acceleration of those proceedings and/or just satisfaction for their
unreasonable length under section 2 read in conjunction with section
5(1) of the 2004 Act.
- On
18 January 2005 the Supreme Court (Sąd Najwyższy)
adopted a resolution (no. III SPP 113/04) in which it ruled that
while the 2004 Law produced legal effects as from the date of entry
into force (17 September 2004), its provisions applied
retroactively to all proceedings in which delays had occurred before
that date but only when they had not yet been remedied.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
proceedings began on 1 December 1992 and ended on 28 January
1999. They therefore lasted 6 years, 1 month and 28 days. However,
the period to be taken into consideration began only on 1 May 1993,
when recognition by Poland of the right of individual petition took
effect.
- The
period under the Court’s scrutiny lasted therefore 5 years,
8 months and 29 days for three levels of jurisdiction.
A. Admissibility
- The
Government submitted that the applicant had not exhausted remedies
available under Polish law. They maintained that after 17 September
2004, when the 2004 Act had come into force, the applicant had the
possibility of lodging with the Polish civil courts a claim for
compensation for damage suffered on account of the excessive length
of proceedings under Article 417 of the Civil Code read together with
section 16 of the 2004 Act. They maintained that the three-year
limitation period for the purposes of a compensation claim in tort
based on the excessive length of proceedings could run from a date
later than the date on which a final decision in these proceedings
had been given.
- The
applicant contested the Government’s arguments.
- The
Court observes that in the present case the proceedings at issue
ended on 28 January 1999, which is more than three years before the
relevant provisions of the 2004 Act read together with the Civil Code
became effective. It follows that the limitation period for the
State’s liability for tort set out in Article 442 of the Civil
Code had expired before 17 September 2004.
- The
Court notes that the arguments raised by the Government are the same
as those already examined and rejected by the Court in previous cases
against Poland (see Małasiewicz v. Poland, no.
22072/02, §§ 32-34, 14 October 2003; Ratajczyk
v. Poland; (dec), 11215/02, 31 May 2005; Barszcz
v. Poland, no. 71152/01, 30 May 2006) and the Government
have not submitted any new elements which would lead the Court to
depart from its previous findings.
- The
Government further submitted that such a possibility had existed in
Polish law even before the entry into force of the 2004 Act following
the the Constitutional Court judgment of 4 December 2001, which took
effect on 18 December 2001.
- The
applicant contested the Government’s arguments.
- The
Court notes that it has already examined whether after 18 December
2001 and prior to the entry into force of the Law of 17 June 2004 a
compensation claim in tort as provided for by Polish civil law was an
effective remedy in respect of complaints about the length of
proceedings. It held that no evidence of any judicial practice had
been provided to show that a claim for compensation based on Article
417 of the Civil Code had ever been successful before the domestic
courts (see Skawińska v. Poland (dec.), no.
42096/98, 4 March 2003 and Malasiewicz v. Poland, no.
22072/02, 14 October 2003). As the Government have failed to
submit any new arguments which would cast doubt on its conclusions in
these cases, the Court will abide by its previous findings.
- For
these reasons, the Government’s plea of inadmissibility on the
ground of non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
32.
The applicant complained about the length of the civil proceedings.
- The
Government submitted that the case was very complex and difficult. In
particular, the courts had to examine the nature of the activities
performed by the applicant in three companies as well as the
structural changes which had taken place within the business of the
applicant’s former employer.
- The
Government further maintained that the interests of the applicant
were of a purely pecuniary nature.
- The
applicant did not comment on these issues.
- The
Government were of the opinion that, as regards the conduct of the
authorities, the courts had conducted the proceedings with due
diligence and that there were no periods of inactivity by the courts.
They further stated that “special diligence” was not
required in this case, unlike the position in cases concerning
employment and pensions.
- The
applicant contested the Government’s arguments, stating that
hearings had not been held at regular intervals and that the courts
had not shown due diligence.
- The
Government accepted that the applicant had not contributed to the
length of the proceedings.
- The
applicant did not comment on this issue.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII, Kuśmierek v. Poland, no. 10675/02, 21
September 2004, § 62; Zynger v. Poland, no. 66096/01, 13
July 2004, § 45).
- In
the Court’s opinion the case was of average complexity and the
applicant did not contribute to the length of the proceedings. The
Court further observes that significant periods of unexplained
inactivity attributable to the authorities occurred in this case. In
particular, there were delays between 3 March 1993 and 27 August 1993
(5 months), between 26 October 1993 and 24 March 1994 (5
months), between 5 May 1994 and 20 December 1994 (7 months), between
18 March 1996 and 19 November 1996 (8 months) and between 24
February 1998 and 22 October 1998 (8 months). Furthermore,
it took over two months (from 16 May 1995 to 27 July 1995) for
the court to send a request to have witnesses examined by other
courts.
- The Court reiterates that special diligence is
necessary in employment disputes (Ruotolo v. Italy, judgment
of 27 February 1992, Series A no. 230-D, p. 39, § 17). The
Court’s case-law indicates that “employment disputes”
are not confined to those in which an applicant seeks reinstatement
or a determination of his right to a pension. The notion of
“employment disputes” is broader and includes also other
employment related issues, such as recognition of a right to a
professional qualification (see, Caleffi v. Italy, judgment of
24 May 1991, Series A no. 206 B). In the present case the
applicant sought compensation for refraining from undertaking any
professional activities in competition with those of his former
employer under the “competition clause” included in his
contract of employment. The period during which the applicant was
obliged to comply with the “competition clause” extended
to six consecutive months after the termination of his contract of
employment. Thus, the purpose of the “competition clause”
was to provide the applicant with the means of subsistence in return
for his renunciation of certain professional activities for quite a
considerable time. Therefore, the Court finds that in the present
case special diligence was required on the part of the authorities.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 91,000 PLN (23,000 EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested the claim as exorbitant and ill-founded.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 1,200 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage, to be
converted into Polish zlotys at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
