CASE OF KRASUSKI v. POLAND
No violation of Art. 6-1;No violation of Art. 13
Nicolas Bratza
10. The applicant was born in 1934. He died on 30 December 2004. He lived in Zielona Góra, Poland. 11. In July 1994 the applicant and his wife concluded a contract with E.W. and W.W., the owners of a company W. Under that contract the company was to carry out building work on the applicant’s house. On 24 November 1994 the applicant, considering that the company was in breach of the contract, withdrew from it. 12. On 1 February 1996 the applicant and his wife (“the plaintiffs”) sued E.W. and W.W. in the Zielona Góra Regional Court (Sąd Wojewódzki), seeking compensation for the serious damage to the house allegedly caused by the defendants. 13. On 13 March and 27 June 1996 the court held hearings and heard evidence from witnesses. 14. On 24 July 1996 the court instructed Poznań Technical University (Politechnika Poznańska) to prepare an expert report. The report was submitted to the court on 4 November 1996. The defendants challenged the report on 2 December 1996. 15. At a hearing on 23 December 1996 the Regional Court ordered the experts to revise their report. On 26 January 1997 they upheld their original conclusions. 16. On 17 July 1997 the plaintiffs modified their claim. 17. The court held a hearing on 29 October 1997. 18. On 31 March 1998 the court ordered the experts to supplement their report. 19. The parties filed their pleadings in March, April and October 1998. 20. On 4 November 1998 the court held a hearing. The Government maintained that in the course of the hearing the plaintiffs had modified their claim. The applicant contested this. 21. On 19 November 1998 the court gave judgment and dismissed the claim. The plaintiffs appealed. 22. On 18 May 1999 the Poznań Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case to the Regional Court. 23. On 30 September 1999 the Regional Court held a hearing. It decided to obtain a fresh expert report. In the meantime, the applicant had made two unsuccessful applications for his claim to be secured. 24. On 20 February 2000 the expert report was submitted to the court. 25. At the hearing held on 9 May 2000 the court heard evidence from the expert. 26. The Government submitted that on 16 May 2000 the plaintiffs had altered the amount of the damages they had sought. Subsequently, they applied for an exemption from the court fee due for the increased claim. On 12 October 2000 the court refused their application. That decision was later upheld by the Poznań Court of Appeal. The applicant denied that they had altered their claim. 27. On 28 February 2001 the plaintiffs again unsuccessfully applied for an exemption from payment of the court fee for the increased claim. Eventually, on 16 March 2001, the particulars of that claim were returned to them on account of their failure to pay the fee. 28. The Government maintained that at the hearing held on 8 May 2001 the plaintiffs had increased their claim and had stated that they would not seek an exemption from the court fee. However, on 4 June 2001 the particulars of the amended claim were again returned to them on account of their failure to pay the fee in question. 29. The applicant stated that this was not true. He maintained that, in a pleading of 11 May 2001, after the experts had again revised their valuation of the damage sustained, he had indeed extended the amount of the damages sought to 300,000 Polish zlotys (PLN), mostly because he had been forced to do so by the court. He had also sought an exemption from court fees since to do otherwise would have been illogical. 30. A hearing scheduled for 12 July 2001 was adjourned at the plaintiffs’ request. A subsequent hearing was held on 6 September 2001. 31. On 4 October 2001 the court heard evidence from the parties and closed the trial. On 11 October 2001 it gave judgment, awarding the applicant PLN 50,000 plus statutory interest. 32. On 30 November 2001 the applicant appealed against the judgment. Shortly afterwards, on 10 December 2001, the Regional Court ordered him to rectify the formal shortcomings in his appeal. On 8 January 2002 the applicant applied for an exemption from the court fees for lodging the appeal. The Regional Court rejected his application on 23 January 2002. The applicant unsuccessfully appealed against the refusal; eventually, he paid the court fees on 22 February 2002. 33. On 20 June 2002 the Poznań Court of Appeal heard, and dismissed, the applicant’s appeal. Since the applicant refrained from lodging a cassation appeal (kasacja) with the Supreme Court, the judgment became final on that day. 34. 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 performance of the duties entrusted to him.” 35. Article 418 of the Civil Code, as applicable until 18 December 2001 (see paragraphs 38-39 below), provided for the following exception in cases where damage resulted from the issuing of a decision or order: “1. If, in consequence of the issuing of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issuing of the decision or order and if that breach is the subject of a criminal prosecution or a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the person’s superior. 2. The fact that such guilt has not been established by means of a criminal conviction or a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of a [statutory] bar to prosecution or disciplinary action.” 36. 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. While the relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision being made for the State’s tortious liability for its omission to enact legislation, a concept known as “legislative omission” (zaniedbanie legislacyjne) – they are also to be seen in the context of the operation of a new statute introducing remedies in respect of the unreasonable length of judicial proceedings (see paragraphs 38-41 below). Following the 2004 Amendment, Article 4171, in so far as relevant, 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 do so, 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 other specific provisions provide otherwise.” 37. However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 34 above) applies to all events and legal situations that subsisted before that date. 38. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Article 64 and Article 77 § 1 of the Constitution (see paragraphs 41-42 below). On the same day the court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful actions of State officials in the performance of their duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage to the personal culpability, established in criminal or disciplinary proceedings, of the State official concerned. 39. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant: “The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for the actions of a public authority consisting in the issuing of unlawful decisions or orders will follow from the general principles on State liability as laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other principles on State liability, as laid down in specific statutes, and not necessarily only those listed in the Civil Code.” 40. Article 45 § 1 of the Constitution states: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” 41. Article 64 of the Constitution reads: “1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. 3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.” 42. Article 77 § 1 of the Constitution reads: “Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law.” 43. 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. Section 2, in so far as relevant, reads as follows: “1. Parties... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).” Section 5 provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 44. Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms: “A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5(1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.” 45. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.” 46. Section 18 of the 2004 Act lays down the following transitional rules in relation to applications already pending before the Court: “1. Within six months after the date of entry into force of this law, persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time, as guaranteed by Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. 2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court. 3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”