FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19078/06 by Stanisł aw BASAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 September 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović, judges and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 25 March 2006,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stanisł aw Basak , is a Polish national who was born in 1958 and lives in Świnoujś cie. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz , of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 10 January 1999 the applicant brought a civil a ction in the Świnoujście District Court against a company in which he had previously been employed as a manager. He sought an award of salary arrears covering a period of four years.

On 22 January 1999 the Świnoujście District Court ruled that it had no jurisdiction to examine the case because of the high amount of the claim and referred the case to the Szczecin Regional Court .

On 23 March 1999, by a decision of the Szczecin Regional Court , Commercial Division, B.G. was appointed as the trustee ( kurator ) of the defendant company in the absence of its management board.

On 21 April 1999 the defendant company informed the trial court that the chairman of its management board, who was the only person with individual authority to represent the company, had died in February 1995. However, the shareholders had failed to appoint a new chairman. The applicant, who had been the defendant company ’ s manager until 1998 (and its main shareholder), had been authorised to administer the company ’ s funds.

On 30 April 1999 the first hearing was held. The hearing was adjourned sine die as the defendant company was not duly represented.

On 27 April 2000 the court ordered that a representative be appointed by the defendant company.

On 7 July 2000 the applicant was appointed as the defendant company ’ s trustee. The applicant was empowered to prepare a list of shareholders and to convene a shareholde r s ’ meeting which was supposed to appoint a new management board.

As the defendant had not complied with the order of 27 April 2000, on 29 September 2000 the court asked the Registry of Companies if the new management board had yet been appointed, but it received a negative answer.

On 16 January 2001 the court stayed the proceedings since the defendant company had no management board to appoint a representative in the proceedings. The applicant appealed against that decision. In his appeal he also requested the court to appoint a representative for the defendant company of its own motion.

On 12 April 2001 the Poznań Court of Appeal quashed the decision of 16 January 2001. The court stated in its grounds that, instead of staying the proceedings, the Szczecin Regional Court could have envisaged appointing a trustee for the defendant company for the purposes of the proceedings, under Article 69 of the Code of Civil Procedure. The Regional Court could also have prolonged the time allowed for designating the defendant company ’ s representative.

In September 2001 the Szczecin Regional Court asked the Registry of Companies to submit information on the name of the person who was authorised to represent the defendant company.

On 5 April 2002 the Registry of Companies replied that the management board of the defendant company had still not been registered.

On 27 January 2003 the court again asked the Registry of Companies to provide this information.

On 21 February 2003 the Registry of Companies again replied that the management board had still not been registered and that the applicant, being the trustee, had assumed this role.

On 1 October 2003 the court ordered the applicant to submit a list of members of the defendant company ’ s supervisory board.

On an unknown date the applicant informed the court that the defendant company had no supervisory board.

On 2 December 2003 the court ordered that a representative for the defendant company should be appointed by the applicant, as the company ’ s trustee.

On 19 March 2004 a further hearing was held. As no representative had been appointed, the hearing was postponed sine die.

On 14 July 2004 the court stayed the proceedings as the applicant had failed to appoint a representative in accordance with Article 210 ( former Article 203) of the Commercial Companies Code. The applicant appealed.

On 7 October 2004 the Poznan Court of Appeal dismissed the applicant ’ s appeal. The court stated that since the applicant was the defendant company ’ s trustee, he should convene a shareholders ’ meeting, which in turn should appoint a representative for the company. The court further stated that as to the applicant ’ s request to appoint a trustee for the defendant company, it was inadmissible as the company already had a trustee, lawfully appointed by a decision of 7 July 2000.

On 29 June 2005 the applicant applied for the proceedings to be resumed and submitted evidence showing that a new management board had been registered. The court requested him to submit an authority for the designation of a representative for the defendant company in the proceedings.

On 4 August 2005 the applicant submitted the required authority in favour of H.J.

On 26 September 2005 a hearing was held, but since the defendant company ’ s representative had not been duly informed of it, the hearing was adjourned until 28 October 2005.

On 28 October 2005 a judgment was given in the defendant company ’ s absence. The court awarded the applicant the salary arrears which he had claimed. The judgment became final.

On an unknown date the applicant lodged a complaint under the 2004 Act.

On 16 February 2006 the Szczecin Court of Appeal dismissed the applicant ’ s complaint. It found that there had been no significant periods of inactivity on the part of the courts. Further, it established that the applicant had been the defendant company ’ s trustee from 23 March 1999. In view of this fact, it stated that the length of the proceedings was attributable to the applicant, who, being the defendant company ’ s trustee, had not taken sufficient steps to accelerate the appointment of its representative.

B. Relevant domestic law and practice

On 17 September 2004 the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2, read in conjunction with section 5(1), of the 2004 Act.

On 18 January 2005 the Supreme Court ( Sąd Najwyższy ) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date, but only when they had not yet been remedied.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings .

THE LAW

The applicant ’ s complaint relates to the length of the proceedings, which began on 10 January 1999 and ended on 28 October 2005. They therefore lasted six years and nine months for one level of jurisdiction.

According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

1. The parties ’ submissions

The Government submitted that t he complaint was manifestly ill ‑ founded.

The Government noted that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by the Court ’ s case ‑ law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute.

With reference to the first and third criterion, they we re of the opinio n that the case had not been complex and had concerned the applicant ’ s pecuniary interests.

As to the second criterion , the Government note d that according to the Court ’ s case – law , only delays attributable to the S tate could justify a finding of a failure to comply with the “reasonable time” requirement. In Government ’ s opinion , the applicant had contributed significantly to the length of the proceedings. On 7 July 2000 the applicant had been appointed as the defendant company ’ s trustee . Among other duties , the applicant had been obliged to conve ne a shareholders ’ meeting, at which a new management board was supposed to be appoint ed . However, the new management board had not been registered until 17 June 2005. The Government underlined the fact that after the appointment of the defendant company ’ s representative , the proceedings had lasted less than three months.

Finally, the Government noted that the applicant, who had been the defendant company ’ s manager until 1998, had been authorised to administer the company ’ s funds but had refrained from paying himself his salary.

The applicant contested the Government ’ s arguments and argued that as the defendant company ’ s trustee he had been empowered only to convene shareholder ’ s ’ meetings and had had no influence whatsoever on the appointment of a representative. He further stated that if the Regional Court had appointed a trustee of its own motion, the proceedings would have been concluded without any delays.

2. The Court ’ s assessment

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the c riteria established by its case ‑ law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court further reiterates that in c ivil proceedings the parties must also show “ due diligence ” (see Pretto and Others v. Italy , judgment of 8 December 1983, Series A no. 71, pp. 14-15, § 33) and only delays attributable to the State may justify a finding of failure to comply with the “ reasonable time ” requirement (see, among other authorities , Proszak v. Poland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 40 , and Ciricosta and Viola v. Italy , judgment of 4 December 1995, Series A no. 337-A, p. 10, § 28) .

In the instant case, the relevant court was undoubtedly res ponsible for a number of delays. No steps were taken from September 2001 to April 2002 and from April 2002 to January 2003. Moreover, with the exception of the last stage , the proceedings d o not seem to have been conducted efficiently.

However, the Court considers that the conduct of the relevant authorities was not in this case primarily responsible for the length of the proceedings.

The Court notes that the length of the proceedings depended essentially on the applicant ’ s conduct, namely his inactivity as the defendant company ’ s trustee. For a period of almost five years from 7 July 2000, when he was appointed as the ‘ company ’ s trustee, the applicant, although entitled to do so, failed to take any steps to ensure the appointment of a new management board and in consequence proper representation of the defendant company.

On 14 July 2004 the court decided to stay the proceedings as the defendant company was not duly represented and the applicant failed to comply with the court ’ s order to take steps to appoint the ‘ company ’ s representative. It should be observed that on 4 August 2005 the applicant submitted an authority for the designation of a representative for the defendant in the proceedings in favour of H.J. After that date the proceedings were concluded in less than three months.

The Szczecin Court of Appeal, examining the applicant ’ s complaint under the 2004 Act, duly established that by failing to convene a shareholders ’ meeting, the applicant had successfully blocked the possibility of appointing and registering a new management board. If the applicant, acting as the defendant company ’ s trustee, had promptly convened a shareholders ’ meeting, the meeting could have appointed a new management board, which in turn could have appointed the defendant company ’ s representative in the relevant civil proceedings, instituted by the applicant himself. Consequently, there are no grounds for assuming that the domestic authorities were responsible for the excessive length of the proceedings.

In conclusion, even though a period of six years and nine months for civil proceedings may, on the face of it, seem unreasonabl e, the conduct of the applicant leads the Court to declare the above complaint unfounded.

It follows that the applicant ’ s complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

In view of the above, the Court considers that Article 29 § 3 of the Convention should no longer apply to the case.

For these reasons, the Court unanimously

Declares the application inadmissible .

T.L. Early Nicolas Bratza Registrar President