The liability of public authorities for unlawful acts or omissions also extends to delay in the functioning of the courts, infringing the individual’s right to have his case heard without undue delay. A finding of excessive length of proceedings enables a party to pursue redress of the resulting loss through the courts.
The liability of the State Treasury and territorial governmental units arises not only under Art. 417 and following of the Civil Code (as we discussed in the article “The king can do wrong”), but also under a number of other acts. One of them is the Excessive Length of Proceedings Act of 17 June 2004 (full title the Act on the Complaint for 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, originally entitled the Act on the Complaint for Breach of the Right to Have a Case Examined in Judicial Proceedings without Undue Delay).
A party’s right to consideration of a case without undue delay is guaranteed by acts of international law as well as Art. 45(1) of the Polish Constitution (“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”) However, until 2004 Polish law did not provide a legal means to counter delay in judicial proceedings. Then the Excessive Length of Proceedings Act introduced appropriate statutory solutions, thus expanding the liability of public authorities in this respect.
The impetus to adopt the act was the case law from the European Court of Human Rights, particularly the judgment in Kudła v Poland (26 October 2000, Application 30210/96). There the ECtHR held that there is an obligation to provide for means in national law to prevent or properly respond to violation of the right to consideration of a case within a reasonable time. In the court’s view, the individual’s right to have his case decided in a reasonable time will not be effective until there is a possibility provided for filing a complaint against excessive length of proceedings first with the national authorities. The act was passed in order to implement these guidelines and realise the constitutional right to have cases heard without undue delay.
Amendment of act
Soon after the act entered into force in 2004, doubts began to arise whether the act as adopted and applied would meet the requirements and criteria laid down by the ECtHR. It was pointed out that in many instances the national courts refused to award compensation for losses arising out of delay in judicial proceedings, or awarded modest compensation, barely 20% of the maximum that could be awarded to a complainant (initially PLN 10,000). The doubts connected with application of the act were reflected in numerous cases from Poland decided by the ECtHR. According to the ECtHR, in many instances the Polish courts examining excessive length of proceedings failed to follow the standards from the ECtHR case law. Another objection to the act in its original form was that it was limited to judicial proceedings and enforcement proceedings.
The problems with applying the act of 17 June 2004, and consequently the numerous complaints filed with the ECtHR, led to changes in the act. The goal of the amendment was to increase the effectiveness of the act as a means of combating delay in proceedings and ensure that there was a real procedure in place for combating delay in preparatory proceedings, judicial proceedings, and enforcement proceedings.
Scope of liability of public authorities
The Excessive Length of Proceedings Act in its current form governs the rules and procedure for filing and consideration of complaints by parties whose right to have their case heard without undue delay has been infringed as a result of action or inaction by the court or by the prosecutor conducting or supervising preparatory proceedings. The act also applies as relevant when as a result of action or inaction by the court or a court bailiff there has been an infringement of the party’s right to have an execution proceeding or other case involving enforcement of a judicial ruling conducted and completed without undue delay.
Following the amendment, the act applies to all judicial proceedings, and thus the full range of civil proceedings (e.g. cases involving civil law, commercial law, family law, labour law, social insurance, land and mortgage registers, the National Court Register and the pledge register), criminal proceedings (including those in the military justice system, fiscal penal cases and proceedings involving petty offences), execution proceedings conducted by a court bailiff, and administrative court proceedings, as well as delay in preparatory proceedings at the initial stage of a criminal case.
What is excessive length and how to combat it
Under Art. 2(1) of the act, excessive length of proceedings occurs when there is an infringement of the party’s right to consideration of a case without undue delay. This will be the case when the proceeding lasts longer than necessary to clarify the factual and legal circumstances that are relevant to resolution of the case, or longer than necessary to conclude an execution case or other case involving enforcement of a judicial ruling.
It is accepted in the case law that excessive length occurs when the proceeding is long-lasting, conducted at great prolixity, lasting longer than necessary to clarify the relevant factual and legal issues, causally connected with the action or inaction of the court (Kraków Court of Appeal order of 22 March 2007, Case II S 1/07, Legalis No. 86067). According to the Supreme Court, “Undue delay may be caused by either inaction or action of the court. It is necessary when hearing a complaint for excessive length of proceedings to consider not only the timeliness of the actions taken, but also their correctness. There may be excessive length both when the court does not take any action, and when it does take actions but they are not correct and thus lead to delay in consideration of the case” (Supreme Court order of 11 February 2014, Case WSP 9/13, Lex No. 1430407).
To determine whether proceedings are overlengthy, the criteria set forth in Art. 2(2) of the act are helpful. These include:
- The timeliness and correctness of the actions taken by the court with the aim of issuing a resolution on the merits of the case, reflecting the nature of the case and the degree of factual and legal complexity
- The importance to the complainant of obtaining a resolution of the issues raised in the complaint
- The behaviour of the parties, particularly the party complaining that the proceedings are overlengthy.
These criteria should be interpreted through the prism of the case law of the European Court of Human Rights, under which the excessive length of the proceedings should be evaluated in light of the overall length of the proceedings, regardless of how many judicial instances the case has been through and regardless of which court the case is pending before at the time the national court issues its ruling on overlengthiness. Limiting the evaluation of the court hearing the complaint against excessive length to the duration of the case at just one judicial instance does not meet the requirements and standards imposed by the ECtHR (e.g. ECtHR judgment in Majewski v Poland, Application 52690/99, 11 October 2005).
A complaint for excessive length of a civil proceeding may be filed any party, and thus by the plaintiff, the defendant, an intervenor, or a respondent, meaning any person interested in a matter heard in a non-adversarial proceeding. The complaint should be filed with the court before which the principal proceeding which is allegedly overlengthy is pending. As a rule, the jurisdiction to rule on the complaint is vested with the court superior to the court where the overlengthy proceeding is being heard.
In formal terms, the complaint must meet the requirements for a pleading, according to the regulations governing the type of proceeding which is allegedly overlengthy. The complaint must also contain a demand for a finding of excessive length of the proceeding in the case and allegations of the circumstances justifying the demand. The complaint may also include a demand for issuance of an instruction to the court hearing the case to take relevant actions within an indicated time, as well as a demand for award of a monetary amount of PLN 2,000–20,000. After the complaint is forwarded to the proper court together with the case file, the State Treasury is notified of the proceeding through service of a copy of the complaint on the president of the court whose actions or inaction is allegedly causing the excessive length of the proceeding.
The court hearing the complaint is required to issue a ruling within two months after filing. If the complaint is upheld, the court, applying the criteria discussed above, will find that the proceeding in question is being conducted with undue delay. Moreover, at the request of the complainant or at its own initiative, the court may also instruct the court hearing the case on the merits to take appropriate actions. Upon request of the complainant, the court will order the State Treasury to pay the complainant a sum of money between PLN 2,000 and 20,000 (regarded as a distinct form of compensation for violation of the party’s right to have the case decided in a reasonable time, awarded under specific rules). If a monetary award is made, the payment is made by the court conducting the case where the delay occurred, out of the court’s own funds.
Art. 14 of the act permits another complaint against delay in the same case to be filed when 12 months have passed since issuance of the first ruling on this issue. Introduction of this period which must pass between decision of one complaint for excessive length of proceedings and the filing of a new complaint in the same case is intended to prevent delaying the case through filing of repeated complaints for excessive length (this provision does not apply to situations where the complaint has been rejected). A shorter, six-month period for refiling of a complaint is provided for preparatory proceedings in which temporary arrest has been ordered, and in execution cases or other cases involving enforcement of a judicial ruling.
What about injury
It should be stressed, however, that the act does not cover the issue of redress of any injury caused as a result of undue delay in judicial proceedings. The sum of money which may be awarded in the proceeding pursuant to the complaint for excessive length of the proceedings is not designed to compensate for the injury resulting from the delay, but only to compensate for the violation of the party’s right to have the case heard without undue delay, regardless of any actual injury to the party.
Under Art. 15(1) of the Excessive Length of Proceedings Act, a party whose complaint is upheld may file a separate case seeking redress of injury resulting from the excessive length of the proceedings, against the State Treasury or jointly and severally against the State Treasury and the bailiff in question, pursuant to Civil Code Art. 417¹ §3. A necessary prerequisite for exercising this possibility is obtaining an order upholding the complaint for excessive length of the judicial proceedings, which will be binding on this issue for the court in the civil proceeding seeking damages for the delay. A party who has suffered an injury from delay in proceedings may thus pursue a separate case seeking redress of the injury caused by the delay in the proceedings. However, a necessary condition for holding the State Treasury liable is proof of an adequate causal connection between the delay and the injury suffered by the plaintiff.
It should be pointed out that under Art. 16 of the Excessive Length of Proceedings Act, failure to file a complaint for excessive length of proceedings does not deprive the party of the possibility of seeking redress for injury resulting from overlengthy action by the court. Then the demand for redress of the injury will be based on Civil Code Art. 417 §1, which provides the general rule for liability of public authorities for an unlawful act or omission. Such a demand can be asserted only after the proceeding on the merits of the case has been completed with legal finality. In that case, however, it will be necessary to prove first the excessive length of the proceedings, secondly the injury, and thirdly a causal connection between the two.
An imperfect law
Although the principle of liability of public authorities for delay in conducting proceedings set forth in the Excessive Length of Proceedings Act of 17 June 2004 should not raise any doubts, the solutions adopted in this respect are far from perfect and do not adequately protect the rights of complainants.
The current law requires further amendment, at least arising out of the necessity to carry out the ruling of the European Court of Human Rights in Rutkowski v Poland (Applications 72287/10, 13927/11 and 46187/11, judgment of 7 July 2015), issued in the pilot judgment procedure.
Despite the numerous weaknesses of the act as an instrument for combating delay in proceedings, use of the means provided in the act should impose some discipline on the courts and encourage them to act efficiently and decide cases without undue delay, and is necessary in order to obtain a preliminary finding opening the way to seeking damages for delay in proceedings covered by the act pursuant to Art. 417¹ §3 of the Civil Code.
Barbara Majewska, Reprivatisation Practice, Wardyński & Partners