ZAŁUSKA, ROGALSKA A OSTATNÍ proti Polsku

FIRST SECTION

DECISION

PILOT-JUDGMENT PROCEDURE

Application no. 53491/10
Jan ZAŁUSKA against Poland

Application no. 72286/10
Marianna ROGALSKA against Poland
and 398 other applications
(see lists appended)

The European Court of Human Rights (First Section), sitting on 20 June 2017 as a Chamber composed of:

Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Krzysztof Wojtyczek,
Ksenija Turković,
Pauliine Koskelo,
Tim Eicke,
Jovan Ilievski, judges,

and Renata Degener, Deputy Section Registrar,

Having regard to the above applications lodged on the dates indicated in the appended table,

Having regard to the decision to apply the pilot judgment procedure in the case of Rutkowski and Others v. Poland and 591 other applications, nos.72287/10 and others,

Having regard to 400 unilateral declarations submitted by the Government and 270 formal declarations from the applicants accepting a friendly settlement of their cases,

Having deliberated, decides as follows:

PROCEDURE AND FACTS

1. All the present 400 applications were lodged against the Republic of Poland under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Polish nationals. Application no. 53491/10 was lodged by Mr Jan Załuska (“the first applicant”) on 16 August 2010. Application no. 72286/10 was lodged by Ms Marianna Rogalska (“the second applicant”) on 1 December 2010.

2. Names of the remaining applicants and details concerning their cases are set out in the Annexes I and II to this decision.

3. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. The first applicant was represented by Mr W. Wrzecionkowski, a lawyer practising in Olsztyn, Poland. The second applicant was not legally represented in the proceedings before the Court. The names of the remaining applicants’ representatives are listed in the above-mentioned annexes.

4. All the applicants complained under Article 6 § 1 of the Convention about the excessive length of proceedings in their cases and under Article 13 of the Convention about the lack of, or insufficient, redress for the excessive length of proceedings granted to them by the national courts.

5. On 7 July 2015 the applications were communicated to the Polish Government pursuant to Rule 54 § 2 (b) of the Rules of Court, by virtue of the ninth operative provision of the pilot judgment given in the case of Rutkowski and Others v. Poland (see Rutkowski and Others v. Poland and 591 other applications, nos. 72287/10 and 2 others, §§ 223-228 and the ninth operative provision, 7 July 2015).

A. Pilot-judgment procedure in Rutkowski and Others

6. On 7 July 2015 the Court delivered the pilot judgment in the case of Rutkowski and Others, in which it found a violation of Articles 6 § 1 and 13 of the Convention that had their root causes in two systemic problems, namely excessive length of judicial proceedings in Poland and deficient operation of a domestic remedy designed to provide non-pecuniary damage for excessive length of proceedings (“the length complaint”) under the Law of 17 June 2004 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 – “the 2004 Act”).

7. As regards excessive length of proceedings, the Court held, among other things, that the complexity of that 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”. It consequently decided to “abstain from indicating any detailed measures to be taken to tackle the problem”, stressing that the Committee of Ministers, in the course of the pending execution of judgments concerning excessive length of proceedings against Poland “is better placed and equipped to monitor the measures that need to be adopted by Poland in that respect”. The Court noted that Poland had already recognised the need to take actions “aimed at expediting and modernising the procedure before the national courts”. However, it considered that “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” (see Rutkowski and Others, cited above, §§ 207-209).

8. In respect of the deficient operation of a complaint under the 2004 Act in its compensatory aspect, the Court found that there were two interrelated causes behind the violation of Article 13 in Rutkowski and Others case.

The first was the Polish court’s non-compliance with the Court’s case-law on the assessment of the reasonableness of the length of proceedings, in particular the Court’s judgments holding that the period to be taken into consideration comprises the entirety of the proceedings. In contrast, the Polish courts dealing with complaints under the 2004 Act applied practice called “fragmentation of proceedings”, making a “fragmentary” assessment of the length of proceedings, limited to their current stage.

The second cause, linked with and partly resulting from the practice of “fragmentation” was the Polish court’s non-compliance with standards for “appropriate and sufficient redress” to be afforded to a victim for a breach of the right to a hearing within a reasonable time. In consequence, the level of domestic awards was “evidently below the threshold fixed by the Court for victim status in the Scordino (no. 1) judgment” (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 268-272, ECHR 2006‑V). The Court accordingly held that “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”. As it did in respect of the systemic problem identified under Article 6 § 1, the Court decided not to indicate any specific measures to be taken by the State or any time-limit for their implementation. It considered that the process of the implementation primarily involved the change of judicial practice and approach, which required “a number of steps to be taken and raised issues going beyond the Court’s function as defined by Article 19 of the Convention” (see Rutkowski and Others, cited above, §§ 211-222).

9. In the operative provisions of the judgment the Court held, in particular, as follows:

“ ...

3. that there has been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of proceedings in the applicants’ cases;

4. that there has been a violation of Article 13 of the Convention on account of the deficient operation of the complaint under the 2004 Act in that it did not provide the applicants with appropriate and sufficient compensation for a breach of Article 6 § 1;

5. that the above violations of Articles 6 § 1 and 13 originated in a practice that was incompatible with the Convention, consisting in the unreasonable length of civil and criminal proceedings in Poland and in the Polish courts’ non-compliance with the Court’s case-law on the assessment of the reasonableness of the length of proceedings and “appropriate and sufficient redress” for a violation of the right to a hearing within a reasonable time;

6. that the respondent State must, through appropriate legal or other measures, secure the national courts’ compliance with the relevant principles under Article 6 § 1 and Article 13 of the Convention.”

10. The Court also decided:

“...

9. to give notice to the Polish Government of the 591 applications listed in the annex to the judgment in accordance with Rule 54 § 2(b) of the Rules of Court ;

10. to adjourn adversarial proceedings in communicated cases for two years from the date on which the judgment had become final;

...”

B. The Government’s unilateral declarations

11. On 7 December 2015 the Government submitted a unilateral declaration comprising individual and general measures to be taken in implementation of the pilot judgment. That declaration concerned 50 applicants, in respect of whom the Government acknowledged a violation of Article 6 § 1 on account of the excessive length of proceedings in their cases and violation of Article 13 on account of the lack of an effective remedy, securing sufficient redress for a violation of Article 6 § 1. They offered payment of sums specified in respect of each applicant in a table appended to their declaration. The Government further undertook to adopt a range of general measures in respect of other persons who were victims of similar violations or might be affected by similar violations in the future (for the full text, see paragraphs 23-26 below).

12. The above declaration was followed by four further declarations phrased in the same terms, which were submitted, respectively, on 3 March 2016 (50 cases), 7 July 2016 (100 cases), 3 November 2016 (112 cases) and 28 February 2017 (105 cases). The declarations were transmitted to the applicants concerned who were invited, if they so wished, to make comments.

13. In response to the unilateral declarations, in 270 cases the applicants accepted the Government’s proposal. In 112 cases the applicant’s rejected the Government’s offer of payment, asking the Court for higher just-satisfaction awards. In 18 cases the applicants failed to make any comments.

C. Developments following the pilot judgment

14. On 9 September 2016 the Government submitted to Parliament a bill on amendments 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 [“the 2004 Act”] and certain other statutes (rządowy projekt ustawy o zmianie ustawy skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki oraz niektórych innych ustaw ; “the 2016 Government Bill”). In an explanatory report, it was stated that the bill was introduced “in view of the necessity to implement the [Court’s] judgment in the case of Rutkowski and Others v. Poland”.

15. The 2016 Government Bill proposed, among other things, an amendment to section 12(4) of the 2004 Act whereby a court dealing with a length complaint, in addition to being obliged to award in each case at least the statutory minimum compensation of 2,000 Polish zlotys (PLN) (around 500 euros (EUR)) under the current legislation, would be obliged to grant to a claimant a minimum sum of PLN 1,000 (around EUR 250) for each year of the current length of proceedings.

16. The first reading of the bill in Sejm, the lower house of the Polish Parliament, took place on 6 October 2016. In the course of legislative work the name of the bill was changed to the “bill on amendments to the law on the organisation of the courts of law and other statutes”.

17. On 4 November 2016, after the third reading, Sejm adopted the 2016 Government Bill with some amendments. In particular, it amended draft section 12(4) of the 2004 Act and reduced the statutory minimum award per year to PLN 500 (around EUR 125).

18. On 15 November 2016, at the next stage of the legislative procedure, the Senate (the upper house of the Polish Parliament) amended the above provision in the bill and increased the sum to PLN 1,000. However, subsequently, Sejm rejected the Senate’s amendments.

19. On 30 November 2016 Sejm passed the law on amendments to the law on the organisation of the courts of law and other statutes (ustawa o zmianie ustawy – Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw – “the 2016 Amendment”), which, in section 6, introduced a number of amendments into the 2004 Act. The 2016 Amendment entered into force on 6 January 2016.

20. A new subparagraph 3 was added to section 1 of the 2004 Act, pursuant to which the courts are obliged to apply the Act “in accordance with the standards deriving from the [Convention]”.

21. Section 2 was rephrased and at present the courts dealing with length complaints under the 2004 Act must assess the length of proceedings as a whole. It reads, in so far as relevant, as follows:

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 terminating proceedings in that case 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 enforcement proceedings.

In [its] assessment [the court] shall take into account the entire current length of the proceedings from their institution to the moment when a complaint [under the 2004 Act] is examined, regardless of the stage at which the complaint has been lodged and [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.”

22. New section 12(4) of the 2004 Act, which sets levels of compensation for non-pecuniary damage for excessive length of judicial proceedings, provides, in so far as relevant, as follows:

“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 or, if the complaint concerns excessive length of proceedings conducted by a bailiff – to be paid by the bailiff. The sum of just satisfaction, within the limits indicated in the first sentence, shall amount to not less than 500 Polish zlotys for each year of the current length of proceedings, regardless of the number of stages of proceedings at which excessive length has been established.

The court may award a sum higher than 500 Polish zlotys, if a given case is of a particular importance for a claimant, who by his conduct has not culpably contributed to the prolongation of the proceedings. Sums that have already been awarded to a claimant in the same case by way of just satisfaction shall be offset from the awarded amount. ...”

THE LAW

A. The Government’s unilateral declarations

23. The Government’s unilateral declarations, in part relating to general considerations read, in so far as relevant, as follows:

“THE GOVERNMENT’S UNILATERAL DECLARATION

Having regard to the final judgment delivered on 7 July 2015 fay the Chamber of the Court in the case Rutkowski and Others v. Poland (applications no. 72287/10, 13927/11 and 46187/11), in which the Court:

(a) found a violation of Article 6 § 1 of the Convention on account of the unreasonable length of proceedings in the applicants’ cases;

(b) found a violation of Article 13 of the Convention on account of the deficient operation of the complaint under 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 ("the 2004 Act") in that it did not provide the applicants with appropriate and sufficient compensation for a breach of Article 6 § 1;

(c) held that the above violations of Articles 6 § 1 and 13 originated in a practice that was incompatible with the Convention, consisting in the unreasonable length of civil and criminal proceedings in Poland and in the Polish courts’ non-compliance with the Court’s case-law on the assessment of the reasonableness of the length of proceedings and "appropriate and sufficient redress" for a violation of the right to a hearing within a reasonable time;

(d) directed that the respondent State must, through appropriate legal or other measures, secure the national courts’ compliance with the relevant principles under Article 6 § 1 and Article 13 of the Convention;

(e) decided to give notice of the 591 applications listed in the annex to the judgment in accordance with Rule 54 § 2(b) of the Rules of Court;

(f) adjourned adversarial proceedings in communicated cases for two years from the date on which the judgment had become final;

(g) adjourned adversarial proceedings in future similar cases for one year from the date of the delivery of this judgment,

the Government hereby wish to make a unilateral declaration with a view to affording redress to ...

applicants indicated in the list below, out of 591 who lodged their applications with the Court before the delivery of the judgment (see the ninth operative provision and paragraph 227 of the judgment).

The Government also make, as an integral part of this document, a declaration as to general measures which are to be taken in accordance with the terms of the judgment.”

24. Part relating to individual measures reads, in so far as relevant, as follows:

“INDIVIDUAL MEASURES

Pursuant to the ninth operative provision of the Rutkowski and Others v. Poland judgment, the Court gave notice to the Polish Government of the 591 applications listed in the annex to the judgment in accordance with Rule 54 § 2(b) of the Rules of Court.

Under the tenth operative provision and paragraphs 227-228 of the judgment, the Court allowed the Government a two-year time limit for processing the communicated applications and affording redress to all victims who had lodged their applications with the Court before the delivery of the judgment.

In light of the above the Government hereby wish to express - by way of the unilateral declaration - their acknowledgement that in the circumstances of the 50 above-mentioned cases (see the detailed list annexed to the present declaration):

- the length of the proceedings did not fulfil the "reasonable-time" requirement referred to in Article 6 § 1 of the Convention; and

- the complaint under the 2004 Act did not provide the applicants with an "effective remedy", required by Article 13 of the Convention.

Simultaneously, the Government declare that they offer to pay the applicants the amounts indicated in respect of each case in the list annexed to the present declaration, which they consider to be reasonable in the light of the individual circumstances of those cases.

The sums referred to above, which are to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on each of them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.”

25. In addition, the Government also made, as an integral part of the document, a declaration as to general measures which were to be taken “in accordance with the terms of the [pilot] judgment”. It reads as follows:

“GENERAL MEASURES

Having regard to their obligations under Article 46 of the Convention as to the execution of the Court’s judgment in the case of Rutkowski and Others v. Poland, in particular those relating to general measures to be adopted in order to secure through appropriate legal or other measures, the national courts’ compliance with the relevant principles under Article 6 § 1 and Article 13 of the Convention not only in respect of the applicants in that case but also other persons who are victims of similar violations or may be affected by similar violations in the future, the Government of the Republic of Poland, in order to ensure the rapid and complete implementation of the Court’s judgment declare that:

1. Being aware of the increasing problem of procrastination of preparatory and judicial proceedings caused by a range of factors of a legal, administrative or logistical nature which frequently concern:

inadequate court premises, an insufficient number of judges or administrative staff, lack of the proper case management, lack of the adequate organisation of the trial, including the defective service of process and lengthy intervals between hearings, procedural loopholes allowing unjustified adjournments, overly complex or cumbersome procedures, the repetition of remittals ordered on appeal, belated submission of expert reports, inefficiency in collecting expert evidence, they has recently introduced a significant number of extensive legal changes, including in the Code of Civil Procedure and in the Code of Criminal Procedure aimed at acceleration and simplifying of the preparatory and court proceedings. The changes are introduced e.g. by:

1) The Act of 29 August 2014 amending the Code of Civil Procedure and Act on court fees in civil cases which entered into force on 27 October 2014 and provides e.g. for implementation of electronic minutes and electronic reasons of judgements as well as for abandoning of the obligatory submission of the report in appeal proceedings by the reporting judge, extending the possibility of not drafting the reasons by the second instance court ex officio and introduction of a possibility of drafting simplified reasons of the second instance court judgment.

2) the Act of 15 January 2015 amending the Code of Civil Procedure and Other Acts which will enter into force on 1 April 2016 and provides e.g. for further implementation of IT solutions in regard to civil proceedings, especially in regard to real estate register proceedings, and further enlargement of the competences of court division officials in regard to actions in real estate register proceedings and register proceedings.

3) the Act of 10 July 2015 amending the Acts - Civil Code, Code of Civil Procedure and Other Acts which will enter into force on 8 September 2016 and provides e.g. for liberalization of regulations on the form of legal actions and the new approach to documents in civil proceedings.

4) the Act of 27 September 2013 amending the Acts - Code of Criminal Proceedings and Other Acts which entered into force on 1 July 2015. It is anticipated that due to the adopted amendments, the criminal proceedings will be shortened by 1/3. The most important changes introduced by the above mentioned amendment are the following:

• to streamline and accelerate proceedings;

• to simplify criminal proceedings and to make them less formal;

• to establish de novo basis for using preventive measures;

• to assign some of the workload of judges, court presidents and heads of sections to judges’ associates;

• to achieve full conformity of the code’s regulations with the standards following from the jurisprudence of the Constitutional Tribunal and the European Court of Human Rights;

5) the Act of 4 April 2014 amending the Code of Conduct in the Misdemeanor Cases which entered into force on 8 November 2014 and introduced e-minutes and e-reasons also in misdemeanor cases.

6) Act of 10 July 2015 amending the Code of Criminal Proceedings which enters into force on 1 January 2016 and introduces e-minutes in criminal cases.

II. They commit themselves to improving the existing legal measures by introducing necessary amendments of the 2004 Act in order to remove deficiencies indicated in the judgment (see paragraphs 207-222 of the judgment), in particular by improving the practical operation of the mechanism designed to provide the claimants with sufficient compensation for excessive length of proceedings and preventing the fragmentary evaluation of the length of proceedings by the domestic courts ("fragmentation of proceedings"), as required by Articles 6 § 1 and 13 of the Convention.

III. They undertake that, in addition to adopting legal measures designed to remove obstacles in implementing the right to a hearing within a reasonable time, such as measures indicated above accelerating and modernising procedures before the courts, they will intensify their endeavours to conduct further activities aimed at preventing similar violations of Articles 6 § 1 and 13 of the Convention in the future, including any necessary legislative changes.”

26. The Government’s declarations also included a request for the cases to be struck out of the Court’s list under Article 37 § 1 (c) of the Convention, which is phrased in the following terms:

“FINAL CONCLUSIONS

Having due account of the above unilateral declaration the Government respectfully suggest that the above declaration might be accepted by the Court as “any other reason" justifying the striking the cases annexed to the present declaration out of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”

B. Application of Article 37 § 1 in the pilot-judgment procedure

27. Article 37 § 1 of the Convention, in so far as relevant, states:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

28. Considering whether it is justified to apply Article 37 of the Convention in the context of the pilot-judgment procedure, the Court consistently held that it is a fundamental feature of that procedure that the Court’s assessment of the situation complained of in a “pilot” case necessarily extends beyond the sole interests of the individual applicant and requires it to examine the case also from the perspective of the general measures that need to be taken in the interest of other already or potentially affected persons (see, among many other examples, Hutten‑Czapska v. Poland [GC], no. 35014/97, § 238, ECHR 2006‑VIII ; Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, §§ 36-37; Hutten-Czapska v. Poland (friendly settlement) [GC], no. 35014/97, § 33; Association of Real Property Owners in Łódź and Others v. Poland (dec.), no. 3485/02, § 83, ECHR 2011 (extracts); Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 111, ECHR 2010 (extracts); Kurić and Others v. Slovenia [GC], no. 26828/06, § 413, ECHR 2012 (extracts); Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 138 ECHR 2014; Anastasov and Others v. Slovenia (dec.) no. 65020/13, 18 October 2016, § 90).

29. The object of that procedure is, on the one hand, to reduce the threat to the effective functioning of the Convention system deriving from repetitive cases that originate in systemic problems and, on the other, to facilitate the most speedy and effective resolution of a systemic dysfunction affecting the protection of Convention rights in the national legal order. By incorporating into the process of execution of the pilot judgment the interests of all other existing or potential victims of the systemic violation identified, the procedure aims to afford redress to all actual and potential victims of that dysfunction, as well as to the particular applicant in the pilot case (see Broniowski (merits), cited above, § 191 and 193-194; Broniowski (friendly settlement), cited above, §§ 36-37; Hutten‑Czapska v. Poland (merits), cited above, § 238; Kurić and Others (merits), cited above, § 413; Association of Real Property Owners in Łódź, cited above, §§ 86-87; and Anastasov and Others, cited above, §§ 94-96).

30. In consequence, in cases dealt with in the context of this procedure, the Court must have regard not only to the applicant’s situation vis-à-vis individual measures taken by the State but also to measures aimed at resolving the general underlying defect in the domestic legal order identified in the principal judgment as the source of the violation found (see, mutatis mutandis, Wolkenberg and Others, cited above, § 35; and, mutatis mutandis, Broniowski (friendly settlement), cited above, § 36-37 and Hutten-Czapska (friendly settlement), cited above, § 35).

C. The Court’s assessment

1. As regards the case of Mr Załuska and 269 other cases in which the applicants’ accepted the Government’s unilateral proposal as to payment of just satisfaction

(a) Joinder of the applications

31. In accordance with Rule 42 § 1 of the Rules of Court the Court decides that the above 270 applications should be joined.

(b) Application of Article 37 § 1 taken in conjunction with Article 39 of the Convention

32. The Court observes at the outset that the applicants concerned accepted the Government’s unilateral declaration, whereby the Government acknowledged a violation of Articles 6 § 1 and 13 of the Convention in their cases and offered payment of sums indicated in in the attached Annex I to the decision, in order “to cover any pecuniary and non-pecuniary damage as well as costs and expenses” arising from that violation (see paragraph 24 above). In consequence of the applicants’ acceptance, by mutual agreement as to the terms proposed by the respondent Government, the declarations submitted by the parties are regarded as a friendly settlement for the purposes of Article 39 of the Convention.

33. Article 39 of the Convention, conferring on the Court the power to strike a case out of its list of cases in the event of a friendly settlement, provides:

“If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached.”

The exercise of this power is, however, subject to the conditions stated in Article 37 § 1. The Court may strike an application out of its list only if it is satisfied that the solution of the matter embodied in the settlement arrived at between the parties is based on “respect for human rights as defined in the Convention and the Protocols thereto” (see Broniowski (friendly settlement), §§ 32-33).

34. As stated above, in the context of a friendly settlement reached, as in the present case, after delivery of a pilot judgment on the merits of the case, the notion of “respect for human rights” requires the Court to examine the case also from the point view of “relevant general measures” (see paragraphs 28-31 above; see also Broniowski (friendly settlement), cited above, § 36).

In that regard, the Court considers it important to recall that, in view of the systemic character of the shortcoming at the root of the finding of a violation in a pilot judgment, it is evidently desirable for the effective functioning of the Convention system that individual and general redress should go hand in hand. The respondent State has within its power to take the necessary general and individual measures at the same time and to proceed to a friendly settlement with the applicant on the basis of an agreement incorporating both categories of measures, thereby facilitating the performance of the respective tasks of the Court and the Committee of Ministers under Articles 41 and 46 of the Convention Conversely, any failure by a respondent State to act in such a manner necessarily places the Convention system under greater strain and undermines the principle of subsidiarity underlying the system (see Broniowski (friendly settlement), cited above, § 36.)

35. The friendly settlement reached between the applicants and the Polish Government in the present cases comprises both the general and the individual measures intended to fulfil the Polish State’s obligations under the pilot judgment

Consequently, in determining whether it can strike the present application out of its list pursuant to Article 39 and Article 37 § 1 (b) of the Convention on the ground that the matter has been resolved and whether or not respect for human rights as defined in the Convention and its Protocols require the further examination of these cases, the Court will have regard not only to the applicants’ individual situation but also to measures aimed at resolving the underlying general defect in the Polish legal order and judicial practice identified in the Rutkowski and Others judgment.

(i) Individual measures

36. As regards the redress afforded to the applicants, the Court notes that the payment offered provides them with just satisfaction which, on average, exceeds by 25% sums that would have been sufficient for the Court to find that the applicants could no longer claim to be victims for the purposes of Article 34 of the Convention (see Scordino (no. 1), cited above §§ 189-190 and 268-272; and Rutkowski and Others, cited above, §§ 174-175 and 211‑221).

If assessed from the point of view of the Court’s notional awards, the sums offered by the Government amount on average to 50-60% of what would have been the Court’s award if there had been no remedy for excessive length of proceedings in Poland (see Scordino (no. 1), cited above §§ 268-272).

37. In view of the foregoing, in accordance with Article 37 § 1 in fine and in so far as individual measures of redress are concerned, the Court finds no circumstances regarding respect for human rights as defined in the Convention and its Protocols which would require it to continue the examination of the present applications.

(ii) General measures

38. The terms of the Government’s declaration, constituting an integral part of the agreement, are explicitly stated to be intended to take into account not only particular applicants in the present cases but also “other persons who are victims of similar violations or may be affected by similar violations in the future, ... in order to ensure the rapid and complete implementation” of the pilot judgment and the Government’s “obligations under Article 46 of the Convention as to the execution of the Court’s judgment in the case of Rutkowski and Others v. Poland” (see paragraph 25 above).

39. In Rutkowski and Others Court found that the root cause for a systemic violation of Article 6 § 1 and Article 13 of the Convention identified in the pilot judgment was “practice incompatible with the Convention. It held, in particular as follows:

“(i) As regards Article 6 § 1

...

209. ... [A]s 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).

(ii) As regards Article 13

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.

...

217. ... 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. ...

...

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. ...”

40. In their declarations, Government committed themselves “to improving the existing legal measures by introducing necessary amendments [to] the 2004 Act in order to remove deficiencies indicated in the [Rutkowski and Others ] judgment ..., in particular by improving the practical operation of the mechanism designed to provide the claimants with sufficient compensation for excessive length of proceedings and preventing the fragmentary evaluation of the length of proceedings by the domestic courts (‘fragmentation of proceedings’), as required by Articles 6 § 1 and 13 of the Convention” (see paragraph 25 above).

41. In realisation of that promise, the Polish Parliament adopted the 2016 Amendment, a law designed to eliminate the systemic dysfunctions as identified in the Rutkowski and Others judgment (see paragraphs 14-22 above).

Under the present legislation, the courts dealing with complaints under the 2004 Act are obliged, under section 1(3), to apply that act “in accordance with the standards deriving from the Convention” (see paragraph 20 above).

Furthermore, pursuant to section 2(2) as amended by the 2016 Amendment, they are obliged to take into account the “entire current length of the proceedings” and examine their overall duration for compliance with the “reasonable time” requirement under Article 6 § 1 (see paragraph 21 above). That provision has been designed to put an end to the previous practice of “fragmentation of proceedings”, limiting the assessment of the length of domestic proceedings to their current stage, found to have been incompatible with the Convention and identified as one of principal causes behind the systemic violation of Article 13 (see Rutkowski and Others, cited above, §§ 212-213).

42. It is also to be noted that the amended section 12(4) in addition to obliging the courts, as under the previous legislation, to award in each justified case at least the statutory minimum compensation of PLN 2,000, introduced a new provision whereby the courts are obliged to grant at least PLN 500 for each year of the current length of proceedings (see paragraph 22 above).

At the present stage, before the Polish courts have developed their case-law in application of section 12(4) of the 2004 Act, the Court cannot speculate what impact this new element for determining redress may have on adjusting levels of domestic awards to the standards required by the Court’s case-law. Having regard to the fact that the systemic violation of Article 13 in Rutkowski and Others derived from the continued, if not chronic, insufficiency of compensation awarded for non-pecuniary damage for unreasonable delays at domestic level, the national courts play the crucial role in ensuring that future awards are reasonably related to the Court’s standards for “appropriate and sufficient redress” (see Rutkowski and Others, cited above, §§ 217-218). Since, as stated in the pilot judgment, the process of its implementation primarily involves the change of judicial practice and approach (ibid. § 222), the judicial authorities bear the ultimate responsibility for the effective enforcement of the general measures introduced by the Polish State.

43. Lastly, the Court would note that the Government also undertook “in addition to adopting legal measures designed to remove obstacles in implementing the right to a hearing within a reasonable time, such as measures ... accelerating and modernising procedures before the courts, they [would] intensify their endeavours to conduct further activities aimed at preventing similar violations of Articles 6 § 1 and 13 of the Convention in the future, including any necessary legislative changes” (see paragraph 25 above).

(c) Conclusion

44. The Court observes that a number of issues that were at root cause of the violation of Articles 6 § 1 and 13 the Convention found in the pilot judgment – the so-called “fragmentation” of the proceedings” resulting from the national courts’ non-compliance with the Court’s case-law on the “reasonable time” assessment have been addressed by the 2016 Amendment. As stated above (see paragraph 42 above), the issue of the perceived general insufficiency of domestic awards for excessive length of proceedings can only be resolved by the future continued compliance of the Polish courts with the Court’s standards for “appropriate and sufficient redress” and their application of section 12(4) of the 2004 Act in accordance with those standards.

The Government also undertook to take further actions aimed at preventing future similar violations of Articles 6 § 1 and 13 of the Convention, including any necessary amendments to the current legislation (see paragraphs 25 and 43 above).

45. In view of the foregoing, the Court considers that the respondent Government, by the various measures adopted in implementation of the Rutkowski and Others judgment and promised legislative actions as stated in their declarations (see paragraph 25 above) demonstrated an active and reliable commitment to take measures intended to remedy the systemic defects in the Polish legislation and judicial practice identified by the Court in its pilot judgment. While, by virtue of Article 46 of the Convention, it is for the Committee of Ministers to evaluate the general measures taken by the Government and their implementation as far as the supervision of the Court’s judgment is concerned, the Court in exercising its own power to decide whether to strike the cases out of the list under Articles 37 § 1 (b) and 39 following a friendly settlement between the parties cannot but rely on the respondent Government actual and promised remedial action as an important positive factor going to the issue of “respect for human rights as defined in the Convention and the Protocols thereto” (see paragraph 36 above and Broniowski (friendly settlement), cited above, § 42).

46. Having regard to the object of the pilot-judgment as stated above (see paragraphs 28-30 above) and the fact that within some 15 months after the judgment in Rutkowski and Others case had become final the respondent State introduced the general measures in the interest of other persons similarly affected, as well as committed itself to take such necessary measures in the future, the Court is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols. Accordingly, it finds no reasons to justify a continued examination of the present applications.

47. In view of the above, it is appropriate to strike the 270 cases concerned out of the Court’s list.

2. As regards the case of Ms Rogalska and 129 other cases in which the applicants refused the Government’s proposal or failed to make any comments on the Government’s proposal

48. In 112 cases the applicants, including Ms Rogalska, did not accept the Government’s offer of payment, submitting that in the particular circumstances of their cases they should be awarded significantly higher sums. They asked the Court to continue to examine their cases on the merits. The remaining 18 applicants made no comments on the Government’s unilateral declarations. The Court will regard their silence as an implied refusal of the Government’s offer.

(a) Joinder of the applications

49. In accordance with Rule 42 § 1 of the Rules of Court the Court decides that the above 130 applications should be joined.

(b) General applicable principles

50. The Court, in certain circumstances, may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007; Facondis v. Cyprus, no. 9095/08, 27 May 2010; and Messana v. Italy, no. 26128/04, § 23, 9 February 2017).

51. The Court has already found that, in view of the amounts proposed by the Government in their unilateral declarations on the individual measures of redress, there have been no circumstances regarding respect for human rights as defined in the Convention and its Protocols which would require the continued examination of the above 270 cases where a friendly settlement has been concluded. It has also been satisfied that, having regard to the general measures taken or to be taken in the future by the respondent Government, the settlement was based on “respect for human rights” as interpreted in the context of the pilot-judgment procedure (see paragraphs 37 and 45 above).

Since all the Government’s unilateral declarations are set in the identical terms, the same conclusions apply to the present cases.

52. As regards the 112 applicants’ arguments that particular circumstances of their cases call for significantly higher just-satisfaction awards and that, on that grounds, the Court should continue examination of their cases on the merits (see paragraph 48 above), the Court wishes to emphasise that it is an international judicial authority and that its principal task is to secure the respect for human rights, rather than compensate applicants’ losses minutely and exhaustively. Unlike in national jurisdictions, the emphasis of the Court’s activity is on passing public judgments that set human-rights standards across Europe.

For this reason, in cases involving, like the present ones, many similarly situated victims a unified approach is called for. This approach will ensure that the applicants remain aggregated and that no disparity in the level of the awards will have a divisive effect on the applicants (see, mutatis mutandis, Goncharova and other “Privileged Pensioners” cases v. Russia, nos. 23113/08 and 68 others, § 22, 15 October 2009; and Gaglione and Others v. Italy, nos. 45867/07 and 69 others, § 67, 21 December 2010).

(c) Conclusion

53. In view of the foregoing and having regard to its above findings as to the admissions and undertakings contained in the Government’s declaration, the Court decides that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)).

The Court considers that these amounts should be paid within three months from the date of notification of the Court’s present decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amounts in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

54. The Court further emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

55. Accordingly, it is appropriate to strike the present 130 cases out of the Court’s list.

For these reasons, the Court, unanimously,

Decides to join the 270 applications listed in Annex I to this decision;

Decides to strike the above 270 applications out of its list of cases in accordance with Articles 37 § 1 (b) and 39 § 3 of the Convention;

Decides to join the 130 applications listed in Annex II to this decision;

Decides to strike the above 130 applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 22 June 2017.

Renata Degener Linos-Alexandre Sicilianos
Deputy Registrar President

ANNEX I

LIST OF APPLICANTS WHO ACCEPTED THE GOVERNMENT’S PROPOSAL IN UNILATERAL DECLARATION

ANNEX II

LIST OF APPLICANTS WHO REJECTED THE GOVERNMENT’S PROPOSAL IN UNILATERAL DECLARATION