CASE OF BIALAS v. POLAND
No violation of Art. 6-1
Nicolas Bratza
4. The applicant was born in 1922 and lives in Tarnowska Wola. 5. On 23 February 1989 the applicant filed an action with the Tarnobrzeg District Court in which she sought a court order against third parties requiring them to remove an electricity cable they had installed on her land. 6. Between May and August 1989 three hearings were held. An expert opinion was submitted to the court during that period. 7. As the parties were subsequently invited to settle the case, between 15 November 1990 and 6 May 1991 the proceedings were stayed at their request in order to negotiate a settlement. 8. On 29 June 1991 the Tarnobrzeg District Court delivered a judgment dismissing the applicant’s action. The applicant appealed on 28 August 1991. 9. At the appeal hearing of 28 October 1991 the Tarnobrzeg Regional Court decided to stay the proceedings pending the termination of other proceedings for the establishment of the defendant’s ownership of the land. Those proceedings ended on 26 October 1998 with the Supreme Court’s decision rejecting the applicant’s cassation appeal as inadmissible. 10. On 3 December 1999 the proceedings were resumed upon the applicant’s request of 16 November 1999. 11. On 23 December 1999 the Tarnobrzeg Regional Court quashed the first-instance judgment and remitted the case for re-examination, indicating the need to obtain an expert opinion on the exact route of the electricity line across the land. 12. A hearing was held on 9 February 2000; the court ordered the preparation of the expert opinion and ordered the applicant to pay the expert’s fee within 14 days. 13. Between February and April 2000 the applicant repeatedly sought exemption from payment of the expert’s fee. She was ordered to pay the fee, failing which the evidence provided by the expert opinion would be excluded. The applicant failed to comply with the order. 14. On 31 May 2000 the Tarnobrzeg District Court decided to omit the evidence contained in the expert opinion. It examined as evidence the case files of three other sets of related proceedings and on that basis delivered a judgment dismissing the action. 15. On 7 September 2000 the Tarnobrzeg Regional Court dismissed the applicant’s appeal. The court agreed with the first-instance court that the defendant had the right of co-ownership to the plot on the date on which the proceedings were instituted and that the applicant’s claim was accordingly inadmissible. 16. 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.” 17. Article 418 of the Civil Code, as applicable until 18 December 2001, provided for the following exception in cases where damage resulted from the issue of a decision or order: “1. If, in consequence of the issue 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 issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of 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 superior of that person. 2. The inability to establish guilt by way of a criminal conviction or in 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] exception to prosecution or disciplinary action.” 18. 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 have in essence been 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 the imposition on the State of tortuous liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings. 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 give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.” 19. However, under the transitional provisions of Article 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date. 20. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Articles 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution. 21. On the same day the Constitutional 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 action of a State official carried out in the course of performing his 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 with the personal culpability of the State official concerned, established in criminal or disciplinary proceedings. 22. 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 issue of unlawful decisions or orders will flow from the general principles of the State liability 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 of State liability laid down in specific statutes and not necessarily only those listed in the Civil Code.” 23. 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 Article 2 read in conjunction with Article 5(1) of the 2004 Act. Article 2, in so far as relevant, reads as follows: Article 5 provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 24. Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 in the following terms: “A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.” 25. 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 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage occurred.” 26. Article 18 of the 2004 Act lays down the following transitional rules in relation to the 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 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.” 27. Article 394 of the Code of Civil Procedure of 1964 provides, in so far as relevant: “An appeal to a second-instance court is available for decisions issued by a first-instance court and terminating the proceedings in the case (...)”.