FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11602/02 by Sp ół ka z o.o . WAZA and by Sp ół ka z o.o . Filmset against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 July 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 7 March 2002 ,

Having deliberated, decides as follows:

THE FACTS

The first applicant, “ Waza ” S p ół ka z o .o . , is a Polish limited liability company with its registered office in Warszawa.

The second applicant “ Filmset ” Spółka z o. o ., is a Polish limited liability company with its registered office in Łódź .

Both applicants are represented before the Court by Mr J. Janas , a lawyer practising in Wa rszawa .

A. The circumstances of the case

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

1. The f irst applicant

a) The civil proceedings

On 21 February 1992 two members of the “ Waza ” company ’ s management board allegedly misappropriated the company ’ s property.

On 25 January 1993 the company lodged a claim with the Warsaw Regional Court for return of the property.

Following a period of inactivity on the part of the court, on 25 September 1997 the applicant specified the claim by indicating the amount to be paid by the defendants.

On 9 October 1997 the Warsaw Regional Court dismissed the applicant ’ s claim. The company appealed.

On 15 April 1998 the Warsaw Court of Appeal quashed the judgment and remitted the case for re-examination, finding that the lower court had failed to assess the facts properly and had applied the law incorrectly.

On 3 February 1999 the company asked the Regional Court to accelerate the examination of the case.

On 30 May 2000 the Warsaw Regional Court found in the company ’ s favour. The defendants appealed.

On 21 December 2001 the Warsaw Court of Appeal quashed the judgment and remitted the case for re-examination due to shortcomings in the assessment of the case and having regard to the court ’ s failure to give reasons for the way in which relevant legal provisions had been applied to the facts of the case. On 3 January 2002 the company asked the courts to accelerate the examination of the case.

On 27 May 200 4 the Warsaw Regional Court gave a judgment in the case. Both parties appealed. On 1 4 March 2005 the case file was transferred to the Court of Appeal. No hearing has been scheduled yet. The proceedings are currently pending before the Warsaw Court of Appeal.

b) The proceedings concerning the complaint about the excessive length of the civil case

On 17 March 2005 the applicant company complained to the Supreme Court about the length of the proceedings under the 200 4 Act. The company described the course of proceedings before the Regional Court and the Court of Appeal, providing dates, rulings and also excerpts from the Court of Appeal judgments . The company submitted that the proceedings had now lasted over twelve years and that wrong judgments had repeatedly been remitted for re-examination. They stressed that the facts and applicable law were very simple and that the examination of the case should not have taken more that a year and a half in two instances. It asked that just satisfaction be granted and that the courts be instructed to accelerate the proceedings. Further, the company submitted that it had lodged an application with the European Court of Human Rights and had thus complied with the requirements of Article 18 of the 200 4 Act.

On 12 May 2005 the Supreme Court dismissed the complaint concerning the proceedings before the Court of Appeal. It also transmitted the case to the Warsaw Court of Appeal with a view to examining the alleged delays in the proceedings before the Regional Court . The court found that according to Article 4 of the 200 4 Act it was entitled to examine only the conduct of the lower-instance court.

Turning to the examination of the conduct of the Court of Appeal, the Supreme Court took into consideration only the period between 1 4 March 2005 , the date on which the case file had been transferred to the Court of Appeal, and 21 March 2005 , when the applicant ’ s length complaint had reached the court. Consequently, the court concluded that the period of seven days did not allow a finding that the proceedings before the Court of Appeal exceeded a reasonable time and the applicant ’ s complaint was therefore ill-founded.

On 28 July 2005 the Warsaw Court of Appeal, having examined the conduct of the Regional Court , rejected the applicant ’ s complaint about the undue length of the proceedings on formal grounds. The court considered that the applicant had failed to show circumstances that would justify an examination of his request, as required by Article 6 of the 200 4 Act. The court found that the mere fact that the proceedings had, in the applicant ’ s opinion, lasted too long could not suffice for a finding that the proceedings had lasted longer than was necessary. The applicant was obliged to point to specific actions or omissions of the court that resulted in undue delays.

The court further found that, in any event, the complaint would have to be dismissed, as the provisions of the 200 4 Act applied only to undue length of proceedings occurring after 17 September 200 4 when the Act came into force. The applicant had not proved that undue delays had occurred between that date and 1 4 March 2005 when the case had been transferred to the Court of Appeal.

2. The s econd applicant

The “ Filmset ” company concluded a contract with company P. to create a film set design. On 21 May 1993 the applicant lodged a claim against company P. with the Warsaw Regional Court for remuneration of work carried out by it.

On 4 October 1999 the Warsaw Regional Court allowed a part of the claim. On 29 November 1999 the court delivered a supplementary judgment dismissing the remainder of the claim. Both parties appealed.

On 6 December 2001 the Warsaw Court of Appeal quashed the judgments of 6 October 1999 and 29 November 1999 and remitted the case for re-examination.

The proceedings are apparently pending before the Warsaw Regional Court .

B. Relevant domestic law and practice

1. State ’ s liability for a tort committed by its official

Articles 4 17 et seq. of the Civil Code ( Kodeks cywilny ) provide for the State ’ s liability in tort.

In the version applicable until 1 September 200 4 , Article 4 17 § 1, which lays down a general rule, read as follows:

“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”

On 1 September 200 4 the Law of 17 June 200 4 on amendments to the Civil Code and other statutes ( Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw ) (“the 200 4 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury ’ s l iability for tort under Article 4 17 of the Civil Code – whic h included adding a new Article 4 17 1 and the institution of the State ’ s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “ zaniedbanie legislacyjne ” ) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings.

Following the 200 4 Amendment, Article 4 17 1 was added which, in so far as relevant, reads as follows:

“3. If damage has been caused by a failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”

However, under the transitional provision of Article 5 of the 200 4 Amendment, Article 4 17 as applicable before 1 September 200 4 shall apply to all events and legal situations that subsisted before that date.

Under Article 4 4 2 of the Civil Code the claim for redress of damage caused by a tort becomes time-barred after the lapse of three years from the day on which the person who suffered the damage learns about the damage and about persons or entities liable to make reparation for it. However, in any case the claim expires after the lapse of ten years from the day on which the event that caused the damage occurred.

That provision applies to situations covered by Article 4 17 of the Civil Code.

2. The 200 4 Act

On 17 September 200 4 the Law of 17 June 200 4 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 200 4 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 Article 2 read in conjunction with Article 5(1) of the 200 4 Act.

Article 2 of the 200 4 Act reads, in so far as relevant:

“1. A party to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Article 4 provides, in so far as relevant:

“1. The complaint shall be examined by the court immediately above the court conducting the impugned proceedings.

2. If the complaint concerns an unreasonable delay in the proceedings before the Court of Appeal or the Supreme Court it shall be examined by the Supreme Court. ...”

Article 5 reads, in so far as relevant:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Article 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1. The court shall dismiss a complaint which is unjustified.

2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

4 . If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 in the following terms:

“A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 4 17 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended. ”

Article 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ... ”

Article 6 § 2 provides that a complaint must include:

1) a request to find that there was an unreasonable delay in the impugned proceedings ;

2) circumstances that would justify the request.

According to Article 9 of the Act, when a complaint does not meet the requirements of Article 6 of the Act, it must be rejected without prior summons to the plaintiff to complete the shortcomings in the complaint.

On 18 January 2005 Supreme Court ( Sąd Najwyższy ) adopted a resolution (no. III SPP 113/0 4 ) in which it ruled that while the 200 4 Act produced legal effects as from the date of its entry into force (17 September 200 4 ), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

Under Article 130 of the Code of Civil Procedure if a statement of case or a pleading fails to comply with formal requiremen ts, the party shall be summoned to complete or remedy the formal shortcomings within a one-week time-limit.

COMPLAINTS

THE LAW

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 5 4 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 5 4 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court observes that the domestic proceedings to determine the applicant ’ s claim are currently pending. Therefore, in so far as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint. In so far as the applicant complains about the length of those proceedings, the Court considers that the Article 1 of Protocol No. 1 complaint does not give rise to any separate issue (see, for example, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 19 4 -C, § 23, Di Pede v. Italy , judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 17, § 35; Beller v. Poland please cite § 7 4 , Szenk v. Poland no. 67979/01, § 63, 22 March 2005).

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

The Court observes that on 17 September 200 4 the Law of 17 June 200 4 on complaints about a breach of the right to a trial within a reasonable time (the 200 4 Act) entered into force.

Under Article 18 of this Act, it was open to persons who had brought a complaint about length of proceedings to the Court to lodge, within six months from 17 September 200 4 , a complaint provided for by Article 5 of that Act with a competent domestic court, provided that their application to the Strasbourg Court had been lodged in the course of the proceedings concerned and that the Court has not yet adopted a decision on the admissibility of the case.

The Court recalls that it had held that this remedy provided by Polish law was effective in respect of a complaint of excessive length of judicial proceedings as it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Michalak v. Poland ( dec .), no. 2 4 5 4 9/03, §§ 37- 4 3).

The Court observes that the applicant, having been duly informed about the possibility of lodging a complaint about the length of judicial proceedings with the competent domestic courts, failed to avail itself of this remedy, which the Court has found to be effective within the meaning of Article 13 of the Convention.

It follows that th is part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant ’ s complaints concerning the length of judicial proceedings and the alleged lack of effectiveness of the length remedy provided for by the Law of 17 June 200 4 ;

Declares the remainder of the application inadmissible.

T. L . Early Nicolas Bratza Registrar President