Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 24559/94

Lechoslaw GIBAS

against

Poland

REPORT OF THE COMMISSION

(adopted on 4 September 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-40) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 41-56) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 41). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 42). . . . . . . . . . . . . . . . . . . . .6

C. As regards Article 6 para. 1 of the Convention

(paras. 43-55). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 56). . . . . . . . . . . . . . . . . . . . .8

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Polish citizen, born in 1928 and residing in

Sosnowiec.

3. The application is directed against Poland. The respondent

Government were represented by their Agent, Mr. Krzysztof Drzewicki,

of the Ministry of Foreign Affairs.

4. The case concerns the length of civil proceedings. The applicant

invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 14 December 1993 and registered

on 7 July 1994.

6. On 12 October 1994 the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 20 February 1995

two months after the fixed time-limit. On 28 February 1995 the

Commission (Second Chamber) decided to accept the Government's

observations submitted after the time-limit. The applicant replied on

26 April 1995. On 11 April 1995 the Commission (Second Chamber)

granted the applicant legal aid.

8. On 6 September 1995 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 20 September 1995 and they were invited to submit

such further information or observations on the merits as they wished.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Ms. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

12. The text of this Report was adopted on 4 September 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. In 1951 the Kraków Regional Health Department seized property in

Rajcza owned by the applicant's mother. The property was subsequently

used as a sanatorium for children. Eventually the applicant's mother

concluded an agreement with the sanatorium to the effect that the rent

due was reduced by 50 per cent; in exchange the sanatorium undertook

to make all necessary repairs at the property. Apparently in 1958 an

administrative decision allocated the property to the sanatorium.

17. On 8 December 1977 the applicant, apparently as heir to his

mother, filed an action against the sanatorium with the Zywiec District

Court requesting that repairs be made as provided for by the agreement.

The case was later transmitted to the Bielsko Biala Regional Court (S*d

Wojewódzki).

18. In October 1978 the applicant complained to the President of the

Bielsko Biala Regional Court about the fact that no hearing had been

held.

19. On 14 November 1978 the sanatorium instituted administrative

proceedings requesting the expropriation of the applicant's property.

As a result, in December 1978 the proceedings were suspended.

Apparently, the decision to expropriate was given on a certain later

date. On 28 July 1983 the Minister of Administration quashed the

expropriation. On 20 November 1983 the applicant requested resumption

of the proceedings. On 6 February 1984 he complained to the President

of the Court that no decision had been taken. On 24 February 1984 the

President informed the applicant that the decision would be taken at

a hearing scheduled for 14 March 1984.

20. On 14 March 1984 the proceedings were resumed and on

20 March 1984 the applicant filed a memorial extending his claim. He

sought compensation for the depreciation of the property and requested

that it be returned to him. On 24 August 1984 the Court transmitted

a copy of the memorial to the defendant. On 15 October 1984 the

applicant complained to the President of the Court that the Court did

not act diligently and thus the proceedings did not progress. There

was no reply to this letter.

21. On 16 November 1984 the Bielsko Biala Regional Court decided to

suspend the proceedings as the defendant had again submitted a motion

for expropriation of the real property in question to the municipal

administration. The applicant filed an appeal to the Supreme Court

(S*d Najwyzszy) against the decision of adjournment; he also requested

the Bielsko Biala Regional Court to be exempted from paying the court

fee. On 8 December 1984 the Regional Court dismissed the latter

request. The applicant appealed against this decision to the Supreme

Court.

22. On 20 November 1984 the applicant complained of the length of the

proceedings to the Minister of Justice. Upon the Minister's request,

the President of the Court informed the applicant on 29 December 1984

that the case file would be sent to the Supreme Court to enable it to

consider two appeals.

23. On 5 May 1985 the applicant wrote a letter to the President of

the Bielsko Biala Regional Court, complaining that the Court's

decisions were not duly served on the defendant, thus causing

unnecessary delays.

24. On 10 June 1985 the President replied that the file had not yet

been sent to the Supreme Court as the applicant had failed to submit

the required two copies of his appeal against the decision to suspend

the proceedings.

25. On 4 July 1985 the Supreme Court quashed the decision of

16 November 1984 to suspend the proceedings as the administrative

proceedings relating to expropriation had not been instituted since.

The Court found that the defendant had submitted his motion to an

authority which was not competent to deal with this request.

26. On 10 March 1986 the applicant complained to the Minister of

Justice of the length of the proceedings and of lack of diligence on

the part of the Court. On 20 June 1986, upon request of the Minister

of Justice, the President of the Court informed the applicant that the

decision would be given after the judge had come back from holidays,

i.e. after 15 August 1986. On 17 November 1986 the applicant

complained to the Minster of Justice as there was no progress in the

case since the last hearing on 19 June 1986.

27. On 31 December 1986 the President of the Court informed the

applicant that the case file would be sent to the Supreme Court as the

applicant and court experts had appealed against a decision on the

experts' remuneration.

28. On 7 December 1987 the applicant complained to the Council of

State and to the Parliament about the length of the proceedings. These

complaints were transmitted to the President of the Bielsko Biala

Regional Court for reply. On 25 January 1988 the President informed

the applicant that the proceedings would be terminated as soon as the

Court had heard one last witness and the parties.

29. On 30 April 1988 the Bielsko Biala Regional Court suspended the

proceedings. On 6 October 1988 the Supreme Court quashed this

decision. The Supreme Court considered the suspension unfounded as the

other proceedings referred to by the Regional Court were not related

to the proceedings in question.

30. On 28 November 1988 the applicant complained to the Minister of

Justice. In his reply of 6 February 1989 the Minister admitted that

the proceedings were too long, but refused to take any steps in order

to accelerate them, as these proceedings were already under supervision

of the President of the Bielsko Biala Regional Court. On 20 February

1989 the applicant reiterated his complaint, pointing out that this

supervision proved to be ineffective.

31. On 22 November 1989 the Bielsko Biala Regional Court pronounced

a partial judgment, ordering the defendant to restore the property in

question to the applicant. The defendant appealed against this

decision. On 30 August 1990 the Supreme Court quashed the decision and

referred the case back to the Bielsko Biala Regional Court. The

Supreme Court considered that the Court had failed to establish

sufficiently the facts of the case, in particular as to the character

and contents of the parties' rights and obligations.

32. On 8 January 1991 the Bielsko Biala Regional Court pronounced a

partial judgment, ordering the defendant to leave the property and

restore it to the applicant.

33. On 10 October 1992 the applicant extended his claim, requesting

that the defendant reimburse half of the rent which he had retained.

In May 1993 the judge rapporteur was changed.

34. On 22 November 1993 the Court dismissed the defendant's request

for an expert opinion by the Kraków Polytechnic and ordered the expert

O. to prepare an expert opinion.

35. The applicant appealed against this decision. On 9 April 1994 the

Bielsko Biala Regional Court rejected the appeal as no appeal against

this decision was possible. At the same date the Court changed its

decision of 22 November 1993, dismissed O. as an expert as he had

failed to prepare his report and ordered the Kraków Polytechnic to

prepare an expert opinion.

36. On 21 October 1994 this expert opinion was submitted to the

Court. The next hearing was fixed for 8 February 1995.

37. On 22 June 1995 the Bielsko Biala Regional Court pronounced a

judgment awarding compensation to the applicant. Both parties to the

proceedings filed an appeal against this judgment with the Katowice

Court of Appeal (S*d Apelacyjny). On 13 July 1995 this judgment was

served on the applicant.

38. On 20 July 1995 the applicant requested that the judgment be

completed by a decision as to certain claims on which the court had

allegedly failed to rule.

39. On 5 September 1995 the Bielsko Biala Regional Court rejected the

applicant's request considering that the applicant had failed to comply

with the seven days' time-limit for submission of a request to have the

judgment completed and to invoke grounds which would justify this

delay. On 19 September 1995 the applicant appealed against this

decision. On 22 February 1996 the Katowice Court of Appeal dismissed

this appeal.

40. The hearing on the merits before the Katowice Court of Appeal was

fixed for 22 April 1996, but eventually was not held.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

41. The Commission has declared admissible the applicant's complaint

relating to the length of the civil proceedings.

B. Point at issue

42. The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" referred to in Article 6

para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

43. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

"1. In the determination of his civil rights and obligations...

everyone is entitled to a ... hearing within a reasonable time

by (a) tribunal ..."

44. The applicant submits that it was partly the length of the

proceedings in itself which made the case more complex than it had

originally been since, as a result thereof, new elements emerged which

had to be considered. The Court did not order an expert opinion until

1989, and then only at the applicant's insistence. The applicant

denies that his claim was satisfied for the most part by the

restitution of property by virtue of the 1991 judgment, as the property

had deteriorated and cannot be put to any use since then. A final

decision concerning the claims for compensation for damage to the

property has not been pronounced yet. The change of judge rapporteur

in May 1993 also contributed to the further prolongation of the

proceedings.

45. The applicant submits that he had to change and extend his claim

in the course of the proceedings, the last time on 10 October 1992,

mostly on account of the lapse of time since the proceedings had been

instituted and because new damage done to the property had come to

light. Regard must be had to the fact that many applicable laws

changed since the beginning of the proceedings, which affected the

relationship between the applicant and the defendant. No measures

taken by the authorities as a result of his complaints about the length

of the proceedings proved effective. The applicant submits that the

overall length of the proceedings exceeds any notion of reasonableness.

46. The Government submit that the case was very complex. Thus

expert opinions were necessary to assess the extent of the

deterioration of the buildings. The applicant's conduct also

contributed to the length of the proceedings, as he appealed against

many decisions. In particular, he filed an appeal against the partial

judgment of 1989. The authorities took many measures which accelerated

the conduct of the proceedings. The applicant's claims were for the

most part satisfied in the judgment of 1991. In May 1993 the judge

rapporteur had to be replaced, as the previous judge had ceased to work

in the Bielsko Biala Regional Court.

47. The Commission observes that the proceedings complained of began

on 8 December 1977 when the applicant lodged his action with the Zywiec

District Court. The proceedings are currently pending before the

Katowice Court of Appeal.

48. The Commission recalls that the period to be considered started

on 1 May 1993, the date on which the recognition by Poland of the right

of individual petition took effect. The Commission further recalls

that in cases where it can, by reason of its competence ratione

temporis, only examine part of the proceedings, it can take into

account, in order to assess the length, the stage reached in the

proceedings at the beginning of the period under consideration (see No.

7984/77, Dec. 11.7.79, D.R. 16 p. 92). Therefore, the proceedings have

lasted about eighteen years and nine months to date, out of which the

period to which the Commission's examination relates is three years and

four months.

49. The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (see Eur. Court H.R., Vernillo

v. France judgment of 20 February 1991, Series A no. 198, p. 12,

para. 30).

50. The Commission considers that the case, which was originally not

particularly complex, has grown to be so in part as a result of the

lapse of time as new circumstances affecting the applicant's claim came

to light. Moreover, the only issue which remains to be determined

since the partial judgment of 8 January 1991 is the sum of compensation

due to the applicant for deterioration of the property which cannot be

regarded as being a particularly complex issue.

51. As regards the conduct of the parties, the Commission finds that

the applicant's conduct is not in itself sufficient to explain the

length of the proceedings.

52. As regards the conduct of the authorities the Commission notes

that in May 1993 the judge rapporteur was changed. There was a long

interval of ten months between hearings before the Bielsko Biala

Regional Court (9 April 1994 - 8 February 1995). Furthermore, on

22 June 1995 this Court pronounced the first instance judgment in these

proceedings and on 20 July 1995 the applicant filed a request that the

judgment be completed. On 5 September 1995 the Bielsko Biala Regional

Court rejected this request, considering that it had been filed after

the expiry of the time-limit. It was on 22 February 1996 that the

Katowice Court of Appeal upheld this rejection. There was a period of

inactivity of five months between these decisions. On the whole, it

took eight months (22 June 1995 - 22 February 1996) to decide on this

procedural issue. The next hearing on the merits before the Katowice

Court of Appeal scheduled for 22 April 1996 was not held. Thus there

was no progress as regards the merits of the case since 22 June 1995.

The case is still pending before this Court.

53. The Commission further notes that in November 1993 the Court

appointed O. as an expert. Eventually the Court found it necessary to

revoke him as he had failed to submit his expert opinion and appointed

specialists from Kraków Polytechnic. The Commission recalls that a

court shall ensure that an expert appointed by the court performs his

task expeditiously (Eur. Court H.R., Capuano v. Italy judgment of

25 June 1987, Series A no. 119, p. 13, para. 30).

54. In view of these circumstances the Commission considers that in

the period since 1 May 1993 it cannot be said that the authorities

pursued the case with the diligence required for a good administration

of justice. They are therefore mainly responsible for the length of

the proceedings.

55. In the light of the criteria established by case-law and having

regard to the circumstances of the present case, the Commission

considers that the length of the proceedings was excessive and failed

to meet the "reasonable time" requirement.

CONCLUSION

56. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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GIBAS v. POLAND

GIBAS v. POLAND

LEXI