Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27916/95

by Janusz PODBIELSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 April 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 March 1995 by

Janusz PODBIELSKI against Poland and registered on 20 July 1995 under

file No. 27916/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government

on 22 February 1996 and the observations in reply submitted by

the applicant on 9 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1949, is a businessman

residing in Swidnica.

The facts of the case, as submitted by the parties, may be

summarised as follows:

In May 1992 the applicant filed an action with the Wroclaw

Regional Court (S*d Wojewódzki) against the municipality of Swidnica,

claiming payment due for construction works which the applicant's

company had carried out for the municipality on the basis of a contract

of 18 February 1991.

On 27 May 1992 the Wroclaw Regional Court partly exempted the

applicant from the advance court fees.

On 7 September 1992 the Wroclaw Regional Court pronounced a

partial judgment in which it declared null and void certain clauses of

the contract between the parties as being in breach of civil law.

Upon the applicant's appeal, on 6 November 1992 the Wroclaw Court

of Appeal (S*d Apelacyjny) quashed this judgment and ordered the case

to be reconsidered.

On 1 February 1993 the Wroclaw Regional Court allowed the

applicant's action as regards the claim for payment and declared null

and void another clause of the contract, pertaining to the penalties

for delay in compliance with the contract.

On 27 April 1993 the Wroclaw Court of Appeal dismissed both the

applicant's and the defendant's appeals.

On 25 June 1993 the Ombudsman (Rzecznik Praw Obywatelskich) filed

an extraordinary appeal on the applicant's behalf, claiming that the

judgment was in flagrant breach of the substantive civil law and unduly

restricted the parties' freedom of contract.

On 7 October 1993 the Supreme Court (S*d Najwyzszy) dismissed the

extraordinary appeal considering that, contrary to the legal opinion

which had been established in the past against the background of

planned economy, the Civil Code in fact allowed the parties to include

clauses providing for pecuniary penalties for delay in compliance with

pecuniary contract obligations. However, the Court found that in the

present case the lower Court was justified in declaring the relevant

clauses null and void as these penalties were excessive and

disproportionate to the value of the contract.

The applicant filed a request for the reopening of the

proceedings, claiming that after the Supreme Court's judgment new

circumstances had come to light which he could not have adduced as

evidence in the previous proceedings. His request was granted and on

28 January 1994 the Supreme Court partly altered its earlier judgment

of 7 October 1993, ordering that the remaining claims be reconsidered

by the first instance court. The Court stated, inter alia, that the

previous judgments amounted to a violation of substantive law ("zostaly

wydane z obraz* prawa materialnego").

On 6 June 1994 the Wroclaw Regional Court partly allowed and

partly dismissed the applicant's request to be exempted from the

advance court fees as he had not sufficiently shown that he could not

afford to pay them.

On 20 July 1994 the Wroclaw Court of Appeal quashed the decision

of the Regional Court and terminated the proceedings concerning

exemption from the court fees. The Court considered that the partial

exemption from the court fees granted in 1992 still remained in force.

On 20 February 1995 the Walbrzych Regional Court held that the

defendant was obliged to pay pecuniary penalties to the applicant, but

reduced their sum to 1.844.300.000 zlotys as it considered that the

penalties as fixed in the contract were excessive and disproportionate

to the value of the contract. The Court dismissed the applicant's

claim for compensation for damage caused to his company by the delay

in payment as it considered that the applicant had not shown that his

company had suffered more extensive damages than those which would be

covered by the pecuniary penalties to be paid by the defendant.

The applicant appealed against this judgment, claiming that the

Court had failed to establish certain circumstances significant for the

outcome of the case. In particular the Court had failed to establish

whether the applicant's company had suffered extensive damage as a

result of the defendant's failure to effect the payment on time.

On 12 April 1995 the Walbrzych Regional Court partly exempted the

applicant from the court fee due for his appeal and ordered him to pay

a partial court fee of 40.000 zlotys.

On 1 May 1995 the applicant filed an appeal against this

decision. On 25 May 1995 the Wroclaw Court of Appeal allowed the

appeal, considering that the financial situation of the applicant's

company justified such exemption.

On 31 August 1995 the Wroclaw Court of Appeal quashed the

judgment of 20 February 1995 insofar as it had dismissed the

applicant's claim for payment of 782.175,59 new zlotys and ordered that

that part of the case be reconsidered. The Court stated, inter alia,

that the Regional Court had wrongly formulated the questions to the

accounting expert in that certain questions were too restrictive and

that the Court had requested him to establish the causal link between

the defendant's delay in payment and the damage sustained by the

applicant company which was a matter for the Court to establish. The

Court dismissed the remainder of the appeal.

On 23 October 1996 the Walbrzych Regional Court dismissed the

applicant's claim as to 782.175,59 new zlotys. On 29 November 1996 the

applicant's company filed an appeal against the judgment.

On 3 January 1997 the Walbrzych Regional Court exempted the

applicant's company from the court fee for the appeal as regards the

sum exceeding 20.000 zlotys and dismissed the remainder of the

applicant's request for the exemption. The applicant lodged an appeal.

On 13 February 1997 the Wroclaw Court of Appeal dismissed the appeal,

considering that the applicant's company had in fact at its disposal

sufficient financial means to pay the court fee.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 March 1995 and registered

on 20 July 1995.

On 18 October 1995 the Commission decided to communicate the

application to the respondent Government pursuant to Rule 48 para. 2

(b) of its Rules of Procedure.

The Government's written observations were submitted on

22 February 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 9 April 1996.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

length of the civil proceedings.

Article 6 para. 1 (Art. 6-1), insofar as relevant, states:

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

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

..."

a) The Government submit that the application, insofar as it relates

to events prior to the date of recognition of the right of individual

petition by Poland, is outside the competence ratione temporis of the

Commission.

The Commission recalls that Poland has recognised the competence

of the Commission to receive individual applications "from any person,

non-governmental organisation or group of individuals claiming to be

a victim of a violation of the rights recognised in the Convention

through any act, decision or event occurring after 30 April 1993". It

follows that the Commission is not competent to examine complaints

relating to violations of the Convention by acts, decisions or events

that have occurred prior to this date.

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).

In the present case the proceedings started in May 1992 and are

currently pending before the Court of Appeal. They have thus lasted

four years and eleven months, out of which three years and eleven

months after the recognition of the Commission's competence to examine

applications against Poland. It follows that the Commission is

competent ratione temporis to examine the applicant's complaint insofar

as it relates to the proceedings after 30 April 1993, taking into

consideration the stage of the proceedings reached at this date.

b) The Government further submit that the applicant is not a victim

of the alleged violation within the meaning of Article 25 (Art. 25) of

the Convention as it was the applicant's company "Polpure" which had

signed the contract from which originated the subsequent proceedings

and filed the court action. It was also the company which suffered the

alleged financial difficulties arising out of the execution of the

contract.

The applicant submits that he is the sole shareholder of the

company and that therefore he is the victim of the violation of the

Convention. The financial difficulties of the company due to the

excessive length of the proceedings also caused a significant

deterioration of his personal financial situation.

The Commission observes that the applicant's company is a limited

liability partnership with legal personality, owned entirely by the

applicant. The Commission considers that the applicant, given his

shareholding in the company and his position as managing director, can

claim to be a victim of an alleged breach of the Convention, affecting

the rights of his company (No. 10259/83, Dec. 10.12.84, D.R. 40,

p. 170).

c) Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with a matter after all domestic remedies have been

exhausted.

The Government contend that the applicant cannot be regarded as

having exhausted available domestic remedies with regard to the

complaint about the length of the proceedings. The Government submit

that there is no single general remedy available under Polish law to

complain about the length of proceedings. However, they submit that

the usual judicial remedies, i.e. appeals against procedural and

substantive court decisions, could be employed in this respect. The

applicant has not shown that he relied on the length of proceedings in

the appeals which he had filed against various judgments on the merits

of the case. Neither has he complained about the length of the

proceedings in his appeals against the procedural decisions.

The applicant submits that he exhausted all possible domestic

remedies in the civil proceedings as he filed appeals against the

judgments of the merits. Moreover, he complained to the Minister of

Justice and to the Ombudsman about the length of the proceedings.

However, none of those remedies proved to be effective.

The Commission recalls in this respect its finding that there is

no effective remedy under Polish law to complain about the length of

civil proceedings (No. 24559/94, Dec. 6.9.95, D.R. 82-B, p. 76).

Therefore the Commission finds that it has not been established that

the applicant had any effective remedy at his disposal which would have

enabled him to submit his complaints under Article 6 para. 1 (Art. 6-1)

of the Convention to the domestic authorities. Accordingly, the

application cannot be declared inadmissible for non-exhaustion of

domestic remedies.

2. As regards the substance of the complaint, the Government first

contend that the case was highly complex as to its legal contents. In

particular, the contract concluded by the applicant's company and the

defendant was unclear as regards the rights and obligations of the

parties in respect of pecuniary penalties for delay in compliance with

pecuniary contract obligations. The complexity of the case is shown

by the fact that the case has been examined four times by the first

instance court and eight judgments were pronounced in the case,

including two of the Supreme Court and three of the Wroclaw Court of

Appeal. Moreover, several expert opinions had to be taken.

The Government further contend that the applicant's conduct

contributed considerably to the prolongation of the proceedings. They

submit that after the Supreme Court's judgment of 7 October 1993 the

applicant submitted a new claim for compensation of damages caused by

the delay in the defendant's compliance with the terms of the contract.

In the course of the proceedings the applicant several times requested

adjournments of hearings, usually for one month, for the purposes of

negotiations regarding a possible friendly settlement, which finally

was not concluded. The applicant's lawyer practised in Lódz,

approximately three hundred kilometres from Swidnica. Due to his being

ill several times during the proceedings, the service of certain

decisions was delayed. The applicant on numerous occasions appealed

against the decisions concerning the court costs. He further called

into question the soundness of the expert opinions and his objections

had to be communicated to the experts for reply.

The Government further state that the prolongation of the

proceedings cannot be attributed to the conduct of the courts which

were particularly diligent in the handling of the case.

The Government conclude that the case was dealt with within a

reasonable time.

The applicant contests this. He submits that it is the striking

feature of the case that the judgments on the merits of the case were

flawed by flagrant breaches of law, as shown by the judgments of the

appellate courts. It was mostly those legal shortcomings which

contributed to the length of the proceedings as these decisions were

subsequently quashed and the case had to be reconsidered. The case was

not particularly complex as it involved only a determination of the

obligations of the parties to an ordinary civil contract. The clauses

of the contract were in fact clear in this respect and cannot be

regarded as ambiguous.

The applicant further states that, contrary to the Government's

submissions, only one expert opinion was prepared in the case. The

applicant emphasises that the Government's observations contain general

and vague statements as to the conduct of the case and do not provide

concrete details in this regard. In particular, he submits that there

was only one opinion of an accounting specialist prepared in the course

of the proceedings, not several as submitted by the Government, and

that it contained 44 obvious arithmetical errors. Likewise, they had

not substantiated their statement as to the delays in the service of

certain court decisions which should be attributed to the applicant's

representative. He further states that he did not request the

adjournment of certain hearings.

The Commission considers that the applicant's above complaint

raises serious issues of fact and law under the Convention the

determination of which should depend on an examination of the merits.

It follows that this part of the application cannot be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

PODBIELSKI v. POLAND

PODBIELSKI v. POLAND

LEXI