It has been five years since the European Court of Human Rights ruled on Rutkowski and Others v. Poland, a case concerning the excessive length of court proceedings. The Helsinki Foundation for Human Rights has asked lawyers what they think about the issue.

We received a lot of feedback from legal practitioners, with nearly 500 lawyers responding to our invitation to take part in the survey. As many as 95.8% of the surveyed lawyers acknowledged that the excessive length of proceedings in Poland is a systemic problem. At the same time, only 11.6% of the survey participants considered that the complaint against the excessive length of proceedings is an effective remedy.

What lessons have been learned?

Rutkowski and Others v. Poland was a landmark ruling because the Court found that the excessive length of proceedings is a systemic problem in Poland, holding that judicial awards granted to parties to excessively lengthy proceedings were too low.

This is a perfect time to reflect and assess whether lawmakers, judges and lawyers have learned the lessons of the Rutkowski judgment. In its survey HFHR asked respondents what changes should be made and if the complaint against the excessive length of proceedings meets their expectations.

The survey was conducted from March to June 2020 among a group of nearly 500 legal professionals (legal counsel and judges).

“The findings of our survey clearly confirm that the length of court proceedings in Poland and the design of the complaint against the excessive length of proceedings must be further discussed. An impetus to intensify this debate should also be provided by a recent decision of the Committee of Ministers of the Council of Europe, which in June resolved that the Rutkowski judgment was yet to be implemented in Poland”, explains Katarzyna Wiśniewska, coordinator of the HFHR Strategic Litigation Programme.

Disturbing consistency

A remarkable 95.8% of respondents agreed that the excessive length of court proceedings in Poland is still a systemic problem. They identified several key reasons for the excessive length of proceedings, including the length of recesses between court sessions (75% of the respondents), setting a distant date of the first session in the case (73.9%), the delayed delivery of experts’ reports or the court-ordered commission of further experts’ reports (70%), the courts’ inactive approach to case management (63.2%), organisational mismanagement in the courts (59.1%), insufficient judicial manpower (52.7%), and a high level of procedural formalism (50% of respondents).

Given the degree of complexity of the causes that increase the length of court cases, the question arises: is it possible to solve the problem of excessively lengthy court proceedings?

“There is no other option since such obligations stem from the European Convention on Human Rights and the jurisprudence of the Strasbourg Court. Without doubt, the first step should be to change the manner in which reforms of the justice system are implemented. Such reforms require more prudence, expert insight and the consideration of practitioners’ perspectives”, says Dr Piotr Kładoczny, head of HFHR’s legal department.

The respondents also negatively assessed the operation of the complaint against the excessive length of proceedings.

“Although the statistics show that the number of complaints against the excessive length of court proceedings has been rising and that the State Treasury was ordered to pay almost PLN 6 million on that account in 2018 alone, only 11.6% of the surveyed lawyers thought that the complaint against the excessive length of proceedings is an effective remedy”, noted HFHR lawyer Adam Klepczyński.

A considerable 76.7% of the surveyed lawyers admitted that the main problem related to this remedy is the complainant’s concern that the judges overseeing the principal (excessively lengthy) case would become prejudiced against the complainant. More than half (53%) of respondents pointed out that initiating such a complaint procedure does not help to accelerate proceedings.

Based on the results of the research and the respondents’ suggestions, HFHR has made the following recommendations:

• The law-making process in the area of justice should be preceded by extensive discussions with scholars and professionals, as well as broad public consultations.
• The minimum pecuniary award for excessively lengthy proceedings (PLN 500 each year of the proceedings’ duration) should be increased at least to an amount consistent with the standard set by the ECtHR in Apicella v Italy (PLN 1,000 to PLN 1,500).
• Judicial vacancies should be filled and the practice of frequent transfers of judges between different divisions of their court should be discontinued.
• The courts should receive more funding to increase the impact of new technologies and electronic tools on the conduct of proceedings.
• Judges should receive appropriate education and training in the following areas: the standards of the European Court of Human Rights, managing and ensuring compliance by the parties and experts and using new technologies to expedite the proceedings without compromising their integrity.