FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4 661/0 4 by Adam WASILEWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 May 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 25 January 200 4 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Adam Wasilewski , is a Polish national who was born in 197 4 and lives in Brwinó w . He is represented before the Court by his father Mr M. Wasilewski who is his legal guardian.

A. The circumstances of the case

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

1 ) Facts before 12 December 2000

Before the applicant ’ s birth his mother had a car accident during pregnancy. Shortly after his birth, the applicant was diagnosed as suffering from certain serious malformations. In 1976 the Warsaw Regional Court decided that “ Warta ” Insurance Company was liable for the results of the applicant ’ s mother ’ s accident, both those which had already come to light and those which might manifest themselves in the future. The court also awarded the applicant compensation for pecuniary and non-pecuniary damage and ordered that the defendant insurance company should pay a monthly disability pension to him.

In 1988 the applicant ’ s family emigrated to Germany where they were granted residence permits, obtained certain social insurance benefits and the applicant underwent medical treatment. In 1990 they returned to Poland .

In February 1991 the applicant lodged an action with the Warsaw Regional Court claiming an increase of the pension paid by “ Warta ” Insurance Company under the 1976 judgment and payment of the pension so increased as from 1988. In these proceedings the applicant is represented by his father.

On 10 March 1995 the Warsaw Regional Court in part dismissed and in part allowed the applicant ’ s claim against “ Warta ” Insurance Company.

On 13 March 1996 the Warsaw Court of Appeal set aside the judgment of 10 March 1995 and ordered that the case be reconsidered by the Regional Court . The court considered that certain conclusions of the lower court were not supported by the evidence to which that court had had regard, and that it had not established certain factual circumstances relevant for the determination of the applicant ’ s claim. The proceedings were subsequently conducted before the Regional Court .

On 21 December 2000 the Court delivered a judgment concerning the same proceedings, and ruled that there had been a violation of Article 6 § 1 of the Convention in that the “reasonable time” within the meaning of Article 6 of the Convention had been exceeded ( Wasilewski v. Poland , no. 3273 4 /96, §79, 21 December 2000) [*] . The course of the proceedings until 21 December 2000 is described in that judgment.

2) Facts after 21 December 2000

On 30 December 2002 the Regional Court issued a judgment on the merits, increasing the pension. Both parties appealed.

On 22 October 200 4 the Court of Appeal allowed the appeal of the Insurance Company and reduced the pension. The applicant lodged a cassation appeal on 25 February 2005 .

On 17 August 2005 the Supreme Court refused to entertain the applicant ’ s cassation appeal.

On 6 April 2005 the applicant lodged a complaint under the 200 4 Act with the Warsaw Court of Appeal about the excessive length of the proceedings before the Regional Court . In his complaint he asked the court to find that there had been an unreasonable delay in the impugned proceedings . He submitted that the proceedings had lasted over 10 years in the first instance and that already in December 2000 the European Court of Human Rights had found the proceedings to be excessively long.

On 31 May 2005 the Court of Appeal rejected his complaint without examining its merits. The court considered that the applicant had failed to show circumstances that would justify his request, as required by Article 6 of the 200 4 Act. According to Article 9 of the 200 4 Act, when a complaint did not meet the requirements of Article 6 of the Act, it had to be rejected without prior summons to the plaintiff to remedy shortcomings in the complaint. The Court of Appeal found that the mere fact that the proceedings had lasted over 10 years could not suffice to conclude that the proceedings had lasted longer that was necessary. The court did not refer to the fact submitted by the applicant that a judgment of the Court had been delivered in this case.

On 18 April 2005 the applicant lodged a new complaint under the 200 4 Act with the Supreme Court about the excessive length of the proceedings before the Court of Appeal, submitting that the proceedings before the second instance court had lasted almost 3 years and that, although he had lodged his cassation appeal on 25 February 2005, the files of the case had not been transferred yet to the Supreme Court. The applicant submitted that the excessive length resulted from the fact that the court ex o fficio examined evidence to the applicant ’ s disadvantage.

On 7 June 2005 the Supreme Court rejected his complaint without examining its merits, finding that the applicant had failed to show circumstances that would justify his request.

B. Relevant domestic law and practice

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 Law”) entered into force. 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 200 4 Act.

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 the Supreme Court ( Sąd Najwyższy ) adopted a resolution (no. III SPP 113/0 4 ) in which it ruled that while the 200 4 Law produced legal effects as from the date of its date of 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 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 reiterates that , according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and inso far as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain [GC], no. 305 4 4 /96, § 28, ECHR 1999- I).

In the light of all the material in its possession and insofar as the applicant ’ s complaint about the outcome ha s been substantiated, the Court finds that it do es not disclose any appearance of a violation of the Convention. In particular, it finds no elements which would indicate that the national courts went beyond their proper discretion in their assessment of facts or that they reached arbitrary conclusions.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning excessive length of proceedings and lack of effective remedy ;

Declares the remainder of the application inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President

[*] Wasilewski v. Poland , no. 3273 4 /96, 21 December 2000 ; attached