AS TO THE ADMISSIBILITY OF

                       Application No. 24559/94

                       by Lechoslaw GIBAS

                       against Poland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 6 September 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 14 December 1993

by Lechoslaw Gibas against Poland and registered on 7 July 1994 under

file No. 24559/94;

      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 15

      February 1995 and the observations in reply submitted by the

      applicant on 20 April 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a Polish citizen born in 1928, is a retired

engineer residing in Sosnowiec.

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

summarised as follows:

Particular circumstances of the case

      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.

      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).

      In October 1978 the applicant complained to the President of the

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

held.

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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

expert's remuneration.

      On 7 December 1987 the applicant complained to the Council of

State and to the Parliament about the length of 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.

      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.

      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.

      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.

      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.

      On 10 October 1992 the applicant extended his claim, requesting

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

      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.

      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.

      On 21 October 1994 this expert opinion was submitted to the

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

      The proceedings relating to the claim for compensation for the

depreciation of the property are still pending.

Relevant domestic law

      The Judicial Organisation Act of 1985 provides that the

supervision of the administrative aspects of judicial proceedings is

carried out by the Minister of Justice.  The Minister entrusts these

functions to the presidents of the courts.  The Rules of Procedure of

the Courts, a ministerial order of 1991, state that the presidents of

the courts or other persons authorised by them shall deal with

complaints concerning the administrative aspects of judicial

proceedings.  The Code of Administrative Procedure is applicable in

such proceedings, and in particular its Chapter VIII on Complaints and

Proposals.

      This Chapter provides that citizens have a right to submit

complaints to the state administration and municipal authorities.  In

particular, they can complain about the negligence of the authorities

concerned, about alleged violations of law, about legitimate interests

of the parties having been breached, and about prolonged or

bureaucratic conduct of administrative proceedings.  The party who

submitted the complaint is informed of the manner in which the

complaint is dealt with.

COMPLAINT

      The applicant complains under Article 6 of the Convention that

his case has not been decided within a reasonable time, as the court

action was filed over sixteen years ago and there has been no progress

in the proceedings since 1 May 1993, i.e. the date of recognition of

the right of individual petition by Poland.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 14 December 1993 and registered

on 7 July 1994.

      On 12 October 1994 the Commission decided to communicate the

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

(b) of the Rules of Procedure.

      By letter of 19 January 1994 the Government were informed that

the time-limit for the submission of observations had expired on 23

December 1994.

      The Government's written observations were submitted on

20 February 1995.  The applicant replied on 26 April 1995.

      On 11 April 1995 the Commission granted the applicant legal aid.

THE LAW

Convention that his case has not been decided within a reasonable time,

as the court action was filed over sixteen years ago and there has been

no progress in the proceedings since 1 May 1993, i.e. the date of

recognition of the right of individual petition by Poland.

      Article 6 para. 1 (Art. 6-1) of the Convention provides, as far

as relevant:

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

      everyone is entitled to (a) hearing within a reasonable time..."

2.    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 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).  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.

3.    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.

a)    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 failed to show that he had exercised any

judicial remedies since 1 May 1993.  Moreover, as the applicant has not

availed himself of any judicial remedies, it is not clear from which

date the six months' period should be calculated.  Thus, the applicant

cannot be regarded as having complied with this requirement.

      The applicant submits that there is no effective remedy available

under Polish law to complain about the length of proceedings.  The

Government have not shown that the law of civil procedure enables a

party to civil proceedings to rely on the complaint about the excessive

length thereof in an appeal against any decision, whether procedural

or on the merits.  Even assuming that the judicial remedies referred

to by the Government can be regarded as effective remedies, which is

not the case,  they could not have been employed after 1 May 1993, as

there has been no decision on the merits since that date.  As to three

procedural decisions taken by the Court after that date, they all

related to the appointment of experts and no appeal against them was

possible.

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

to which the decisive question in assessing the effectiveness of a

remedy concerning a complaint about the length of proceedings is

whether the applicant can raise this complaint before domestic courts

by claiming specific redress; in other words, whether a remedy exists

that could answer his complaints by providing a direct and speedy, and

not merely indirect, protection of the rights guaranteed in Article 6

(Art. 6) of the Convention (Eur. Court H.R., Deweer judgment of

27 February 1980, Series A  no. 35, p. 16, para. 29;  No. 8890/80,

Dec. 6.7.92, D.R. 29, p. 129).

      The Commission considers that the judicial remedies referred to

by the Government, i.e. appeals against decisions pronounced in the

proceedings, cannot be regarded as being effective.  The applicant

seeks a finding that there was a violation of his right under Article

6 para. 1 (Art. 6-1) of the Convention to a hearing within a reasonable

time.  The judicial remedies referred to by the Government do not

constitute a remedy for the breach complained of.  Their purpose is to

have the decisions taken in the course of the proceedings set aside or

amended.  The Government has not adduced any case-law or unanimous

opinion of legal scholars to establish that the complaint of the length

of proceedings can be relied on as an independent ground for appeal in

civil proceedings.

b)    The Government further submit that an administrative hierarchical

complaint about the length of proceedings may be lodged with the

president of the competent court, or with the president of the superior

court and with the Minister of Justice.   On numerous occasions the

applicant submitted hierarchical complaints to various authorities.

As a result, the proceedings were made subject to the supervision of

the President of the Bielsko Biala Regional Court.

      The applicant submits that during the period prior to 1 May 1993,

the date on which the recognition by Poland of the right of individual

petition became effective, he tried all conceivable remedies.

He complained to the President of the Bielsko Biala Regional Court, to

the Parliament, to the former Council of State and to the Minister of

Justice.  Subsequently, on 25 May 1993, he again complained to the

Minister of Justice.  In his reply of 26 July 1993 the Minister advised

that no further action would be taken.  The supervision of the

President of the Bielsko Biala Regional Court brought about no

improvement in the conduct of the proceedings.  Thus, the applicant

tried all available administrative remedies, without any of them being

effective.  He submits that the Government have not provided details

of the measures taken by the authorities which had resulted in an

alleged acceleration of the proceedings.

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

to which a hierarchical appeal which does not give the person making

it a personal right to the exercise by the State of its supervisory

powers cannot be regarded as an effective remedy for the purposes of

Article 26 (Art. 26) of the Convention (No. 7464/76, Dec. 5.12.78.,

D.R. 14, p. 51).  The Commission has examined the nature of a

hierarchical appeal under Polish law.  It notes that, according to the

relevant provisions of the Polish Code of Administrative Procedure, a

hierarchical appeal constitutes a complaint to a superior authority for

the purpose of criticising any shortcomings in the administrative

proceedings, either of a procedural nature or related to the merits of

the case.  These provisions also apply to the administrative aspects

of the procedure  before the courts.

      Such a complaint is in fact an information submitted to the

supervisory organ with the request to make use of its powers if it sees

fit to do so.  If proceedings are taken upon this request, they take

place exclusively between the supervisory organ and the official

concerned, and the applicant will not be a party to these proceedings.

Under the Code of Administrative Procedure the applicant is only

entitled to obtain information about the way in which the supervisory

organ has dealt with his hierarchical appeal.  As a result, a

hierarchical appeal does not give the person employing it a personal

right to the exercise by the State of its supervisory powers, and such

an appeal does not constitute an effective remedy within the meaning

of Article 26 (Art. 26) of the Convention.

c)    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 and would have

contributed to a significant reduction of the length of the

proceedings.

      Accordingly, the application cannot be declared inadmissible for

non-exhaustion of domestic remedies.

4.    As regards the merits of the complaint, the Government contend

that the case was very complex.  Thus expert opinions were necessary

to assess the extent of the deterioration of the buildings.  In

November 1993 the Court ordered an expert opinion to be prepared and

in April 1994 it ordered a second one as the applicant questioned the

correctness of the first one.  The proceedings were suspended from 1978

to 1983 and from 1984 to 1987 as other administrative proceedings had

to be terminated.  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.

Furthermore, the applicant filed objections against the expert opinion

of the Kraków Polytechnic.  The report of expert O. was also questioned

by the parties.  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 1983 the judge

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

in the Bielsko Biala Regional Court.

      The applicant submits that the case is not as complex as the

Government contend.  It is in part the length of the proceedings in

itself which made the case more complex than it originally was since,

as a result thereof, new elements emerged which had to be considered.

At the present stage of the proceedings it is necessary to establish

what repairs should be made to the building.  The Court did not order

an expert opinion concerning this issue until 1989, and then only at

the applicant's insistence.  The Court has not yet taken any steps

which might have led to a decision on the remaining claim, including

the taking of relevant evidence, relating to the rent retained by the

defendant.  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.  The change of judge rapporteur in May 1993 also

contributed to the further prolongation of the proceedings.

      The applicant contests the Government's statement that he

appealed against the partial judgment of 1989, as it was in fact the

defendant who did so.  The applicant did not, as the Government

contend, question the expert opinion of the Kraków Polytechnic but only

requested that it be supplemented.  Neither did he question the report

of the expert O. as the latter did not in the end prepare any report.

The applicant had to change his claim, for 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.  The applicant

submits that the overall length of the proceedings exceeds any notion

of reasonableness.

      Having examined the application, the Commission finds that it

raises serious questions of fact and law which are of such complexity

that their determination should depend on an examination of the merits.

The application cannot, therefore, be regarded as being manifestly ill-

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

Convention and no other ground for declaring it inadmissible has been

established.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits of the case.

Secretary to the Second Chamber      President of the Second Chamber

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