Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26622/95

by Marek ZMALINSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 1994 by

Marek ZMALINSKI against Poland and registered on 3 March 1995 under

file No. 26622/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

On 21 November 1991 the applicant's employer, a Cooperative U.,

transferred him to another post.

On 11 December 1991 the applicant filed an action with the

Warsaw-Praga District Court (S*d Rejonowy), requesting reassignment to

his previous post.

On 28 April 1992 the Cooperative's Board took a resolution to

divest the applicant of his membership in the Cooperative and dismissed

him from work. On 5 May 1995 he filed an action with the Warsaw

Regional Court (S*d Wojewódzki), asking for the resolution of the

Cooperative concerning his membership and his dismissal to be declared

null and void and for reinstatement. On 14 May 1992 he submitted an

alternative claim for compensation.

On 16 June 1992 the applicant filed an action with the Warsaw-

Praga District Court for rectification of his references. Apparently

this claim was later joined to the case relating to the applicant's

transfer to another post and compensation therefor. On 1 October 1992

a hearing was held in these proceedings.

On 5 November 1992 the Warsaw Regional Court dismissed the

applicant's action for reinstatement and compensation as it found that

the dismissal was justified.

On 11 February 1993 the Warsaw Court of Appeal (S*d Apelacyjny)

quashed this judgment and ordered that the case be reconsidered,

finding that the Regional Court had been superficial in examining the

case and had failed to cite relevant evidence to substantiate its

findings.

On 16 June 1993 the Warsaw Regional Court dismissed the

applicant's action for reinstatement and compensation.

On 19 August 1993 the Warsaw-Praga District Court suspended the

proceedings concerning the applicant's transfer to another post, and

his claim for compensation and rectification of the references,

considering that the outcome of the proceedings relating to the

applicant's dismissal would be decisive for the further conduct of this

case. In a letter of the same day the applicant requested that the

minutes of the hearing of 19 August 1993 be supplemented and rectified.

He also complained that a request to take evidence which he had made

on 25 March 1993 had not been dealt with.

On 22 September 1993 the applicant appealed against the decision

to suspend the proceedings.

On 11 October 1993 the applicant concluded a settlement with the

Cooperative before the Warsaw-Praga District Court relating to the

rectification of his references.

On 21 October 1993 the Warsaw Regional Court dismissed the

applicant's appeal against the decision to suspend the proceedings.

In a letter of 6 November 1993 the Helsinki Foundation requested

the President of the Warsaw Court of Appeal to investigate the reasons

for delay in dealing with the applicant's case before the Warsaw

Regional Court. It indicated that the applicant had not received the

one-paged reasons for the judgment of 16 June 1993 until ten weeks

after the date on which the judgment was pronounced and that it had

taken the Court two months to determine whether the applicant had filed

an appeal within the time-limit.

In a letter of 21 December 1993 the President of the Court of

Appeal informed the Helsinki Foundation that the complaint about the

length of proceedings was well-founded and that necessary steps would

be taken to expedite the proceedings.

On 17 March 1994 the Warsaw Court of Appeal upheld the judgment

of the Regional Court of 16 June 1993.

On 16 April 1994 the Warsaw-Praga District Court resumed the

proceedings concerning the applicant's transfer and compensation claim,

which had been suspended since 21 October 1993.

On 8 August 1994 the Warsaw-Praga District Court dismissed the

applicant's action in the proceedings concerning the applicant's

transfer and compensation claim.

The applicant filed an appeal. On 24 November 1994 the Court

pronounced a judgment supplementing the judgment of 8 August 1994 and

dismissing the applicant's application for the negative assessment of

his work to be deleted from his personal file held by his former

employer. The applicant filed a further appeal against this judgment.

The proceedings are pending before the Warsaw Regional Court.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

he was denied access to court as he had been pressurized to conclude

a partial settlement before the Warsaw-Praga District Court. He

submits that the Warsaw-Praga District Court was not impartial in

examining the case concerning his application for the Cooperative's

resolution on the dismissal to be declared null and void, as the

decision of the Warsaw Regional Court of 21 October 1993 to suspend the

proceedings concerning his transfer and compensation claim determined

the outcome of these proceedings. He complains that the courts lacked

impartiality.

The applicant further submits that the conduct of his case by the

courts amounts to a violation of Articles 8, 10 and 11 of the

Convention. In particular, his right to freedom of association was

breached in that the courts accepted his being penalised by the

Cooperative for criticising its governing bodies.

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

Convention of the length of both sets of civil proceedings.

THE LAW

1. Insofar as the applicant complains under Article 6 (Art. 6) of

the Convention that he was denied access to court as he had been

pressurized to conclude a partial settlement before the Warsaw-Praga

District Court, the Commission observes that the applicant has not

substantiated this complaint. There are no elements in the case-file

which would indicate that either the other party or the court exerted

any pressure on him. It follows that this part of the application is

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

(Art. 27-2) of the Convention.

2. The applicant submits that the Warsaw-Praga District Court was

not impartial in examininig the case concerning his application for the

Cooperative's resolution on the dismissal to be declared null and void,

as the decision of the Warsaw Regional Court of 21 October 1993 to

suspend the proceedings concerning his transfer and compensation claim

determined the outcome of these proceedings. He complains that the

courts lacked impartiality.

The Commission recalls the Convention organs' case law, according

to which the existence of impartiality for the purposes of Article 6

para. 1 (Art. 6-1) must be determined according to a subjective test,

that is on the basis of the personal conviction of a particular judge

in a given case, and also according to an objective test, that is

ascertaining whether the judge offered guarantees sufficient to exclude

any legitimate doubt in this respect (Eur. Court H.R., Hauschildt

judgment of 24 May 1989, Series A no. 154, p. 21, para. 46).

In the present case, the Commission notes that the applicant has

failed to indicate how the decision to suspend the proceedings

concerning his transfer and his compensation claim could have

determined the outcome of the other proceedings. On the contrary, the

Court considered that the outcome of the proceedings relating to the

applicant's dismissal would be decisive for the further conduct of the

case concerning the transfer and compensation. The Commission has

found no element in support of the allegation that the decision to

suspend the proceedings, which originated from the factual background

closely intertwined with the other case, affected the impartiality of

the courts. The applicant mainly refers to the outcome of the

proceedings concerning his dismissal and does not adduce ascertainable

facts which would be susceptible of throwing any doubt on the

impartiality of the judges concerned.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant further submits that the conduct of his case by the

courts amounts to a violation of Articles 8, 10 and 11

(Art. 8, 10, 11) of the Convention. In particular, his right to

freedom of association was breached in that the courts accepted his

being penalised by the Cooperative for criticising its governing

bodies.

The Commission considers that this complaint raises no issue

under the Articles of the Convention invoked by the applicant. It

follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

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

Convention of the length of the proceedings concerning the application

for the Cooperative's resolution on his dismissal to be declared null

and void.

The Commission recalls that Poland recognised the Commission's

competence 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".

Where the Commission, by reason of its competence ratione temporis, can

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). It follows that the Commission is competent

ratione temporis to examine the applicant's complaints insofar as they

relate to the events after 30 April 1993, taking into consideration the

stage of the proceedings reached at that date.

The Commission observes that the proceedings were instituted by

the applicant on 5 May 1992 and terminated on 17 March 1994. Therefore

they lasted one year and ten months, of which ten months after the date

of recognition of the right of individual petition by Poland.

The Commission further recalls the Convention organs' case-law,

according to which the reasonableness of the delay in civil proceedings

must be considered with regard to the circumstances of the particular

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 (cf. Eur. Court H.R., H. v. UK judgment of 8 July

1987, Series A no. 120, p. 59, para. 71).

In the present case the Commission observes that the case was

complex as it involved interrelated issues of law of association and

labour law. It is true that it took the Court ten weeks to provide the

applicant with written grounds of the judgment of first instance and

then two months to establish whether the appeal had been filed in time.

However, the overall length of the proceedings does not appear

excessive under Article 6 para. 1 (Art. 6-1) of the Convention, in

particular having regard to the period which falls outside the

Commission's competence ratione temporis.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. The applicant finally complains about the length of the

proceedings concerning his transfer to another post and his

compensation claim, instituted in December 1991 and still pending

before the court of second instance. The Commission considers that it

cannot, on the basis of the file, determine the admissibility of this

complaint and that it is therefore necessary, in accordance with Rule

48 para. 2 (b) of the Rules of Procedure, to give notice of this

complaint to the respondent Government.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint

concerning the length of the proceedings relating to the

applicant's transfer and his compensation claim,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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ZMALINSKI v. POLAND

ZMALINSKI v. POLAND

LEXI