Under article 5(1) of the Excessively Lengthy Proceedings Complaint Act, a complaint is filed “in the course of proceedings conducted in the case”. The expression “in the course of proceedings” used in article 5(1) raised a number of interpretation issues to be reviewed in case law. The provision is silent on the question whether it applies to all judicial proceedings relevant for the complaint or just to the proceeding during which the complaint was filed. In January 2012, the Prosecutor General applied to the Supreme Court to resolve discrepancies in the construction of the article. The HFHR has presented an amicus curiae brief in the case.
“Our opinion argued that a complainant relying on the remedies available in excessively lengthy proceedings cases not only wants to speed up the process but also seeks a monetary award as compensation for detrimental effects of the entire protracted proceedings”, says Anna Grochowska, HFHR lawyer.
According to the HFHR, the discrepancies in interpretation of article 5(1) of the Excessively Lengthy Proceedings Complaint Act are caused by a narrow judicial construction of the expression “in the course of proceedings” which undermines the compensatory function of the complaint. “We have presented the case law developed by the Supreme Court and administrative courts, which emphasises the significance of financial compensation as a measure to redress non-pecuniary damage suffered by complainants”, explains Ms Grochowska.
The jurisprudence of the ECtHR indicates that a legal measure used to assert non-pecuniary damages for a violation of Convention rights should guarantee an appropriate compensation for a loss suffered. The Strasbourg Court also held that a judicial assessment of an excessive length of proceedings should involve a review of the entire judicial process in question.
So far, the main effect of the narrow interpretation of the expression “in the course of proceedings” has been lower awards of compensation in cases where the excessive length of the proceedings has been proven. In determining the amount of the financial award on account of the excessive length of the proceedings, the court should take into consideration the duration of the case named in the complaint. One of the reasons behind the low compensatory awards issued by Polish courts is a limited scope of judicial assessment of the complaints against the excessive length of the proceedings, covering only the procedural stage at which the complaint was made. This results in a conclusion that the complaint cannot be described as an effective legal remedy.
