FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13828/02 by Albert GRUDZIŃSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 28 June 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 25 March 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Albert Grudziński, is a Polish national who was born in 1945 and lives in Wars aw , Poland . He is represented before the Court by Mr W. Hermeliński, a lawyer practis ing in Warsaw .

A. The circumstances of the case

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

J.G., the applicant ' s legal predecessor, owned a brickyard located in Błonie . By virtue of a decision issued on 2 November 1950 the Minister of Light Industry ( Minister Przemysłu Lekkiego ) nationalised the brickyard pursuant to the Law of 3 January 1946 on Nationalisation of Principal Sectors of National Economy.

In 1991 J.G. made an application to the Minister of Industry and Commerce ( Minister Przemysłu i Handlu ) for annulment of the 1950 decision on nationalisation. On 23 February 1993 the Minister declared the 1950 decision null and void. The Błonie municipality appealed against that decision. On 1 December 1993 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed its appeal.

On 30 December 1993 J.G. requested the Minister of Industry and Commerce to award her compensation for damages sustained as a result of the nationalisation decision. In May 1994 the Minister ordered J.G. to indicate the actual damage ( szkoda rzeczywista ) sustained in connection with the nationalisation . In April 1995 J.G. submitted that her compensation claim amounted to PLN 3,378,233 .

On 11 December 1996 the Minister awarded J.G. compensation in the amount of PLN 1, 819 , 895.

J.G. contested the amount of award. In January 1997 she sued the State Treasury before t he Warsaw Regional Court ( Sąd Wojewódzki ) , seeking further compensation in the amount of PLN 1 , 558 , 338. On 10 December 1998 the Regional Court dismissed her claim. J.G. appealed against that judgment to the Warsaw Court of Appeal ( Sąd Apelacyjny ).

Following J.G. ' s death, the applicant and her four other successors, became the parties to the proceedings before the Court of Appeal. The applicant and other successors unsuccessfully requested the Court of Appeal to exempt them from the court fee required for proceedings with their appeal .

On 27 April 2001 the Court of Appeal upheld the judgment of the Regional Court .

In August 2001 the applicant and other co-plaintiffs lodged a cassation appeal against the judgment of the Court of Appeal. They also requested to be exempted from the court fee which was required for proceeding with their cassation appeal . They claimed that due to their difficult financial situation they could not afford to pay th at fee .

On 27 September 2001 the Court of Appeal dismissed the ir application for exemption from the fee. Its decision was not reasoned.

On 8 October 2001 the Court of Appeal ordered the applicant and other co-plaintiffs to pay the court fee in the amount of PLN 79 , 516 . 90. On 27 November 2001 it rejected the cassation appeal for failure to pay the court fee in the cassation proceedings.

B. Relevant domestic law and practice

1 Payment of court fees

The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland , no. 28249/95, §§ 23 ‑ 3 3, ECHR 2001-VI.

2. Remedies against unreasonable length of the proceedings

On 17 September 2004 the Law 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.

Section 2, in so far as relevant, reads as follows:

“1. Parties 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).”

Section 5 provides, in so far as relevant:

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

Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms:

“A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 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 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:

“1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.”

Section 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:

“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.

2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.

3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the excessive court fee required for proceeding with the cassation appeal amounted to a breach of his right of access to a court .

2. The applicant also complains under Article 6 § 1 of the Convention about the undue length of the proceedings concerning the award of damages .

3. Lastly, he complains under Article 13 of the Convention that he did not have an effective remedy against the excessive length of the proceedings concerning the award of damages .

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that the excessive court fee required for proceeding with his cassation appeal amounted to a breach of his right of access to a court.

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 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains under Article 6 § 1 of the Convention about the undue length of the proceedings concerning the award of damages. This provision, in so far as relevant, provides:

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

However, pursuant to Article 35 § 1 of the Convention:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ... ”

The Court notes that in respect of the administrative part of the proceedings at issue the applicant ' s predecessor has not lodged with the Supreme Administrative Court a complaint about the inactivity of the Minister dealing with her request . That remedy was available to her as of 1 October 1995 , the date on which the Law of 11 May 1995 on the Supreme Administrative Court came into force. The Court has already found that such a remedy must be employed by the applicant who subsequently complains about the excessive length of the administrative proceedings (see, Zynger v. Poland (dec.), no. 66096/01, 7 May 2002 and Bukowski v. Poland (dec.), no. 38665/97, 11 June 2001 ). It follows that this part of the applicant ' s complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

In respect of the compensation proceedings before the civil courts, the Court observes that they came to an end on 27 November 2001 , i.e. less than three years before 17 September 2004 , the date on which the 2004 Act came into force.

It further observes that, pursuant to section 16 of the 2004 Act, it was open to persons such as the applicant in the present case to seek compensation in tort from the State Treasury, relying on Article 417 of the Civil Code for damage caused by the allegedly excessive length of proceedings in which a judicial decision on the merits of the case had already been given.

The Court h as already examined whether the civil action for damages brought under section 16 of the 2004 Act read together with Article 417 of the Civil Code was an effective remedy in respect of the length of judicial proceedings. It held, having regard to the characteristics of these remedies and notwithstanding the absence of established judicial practice in respect of such claims, that these remedies were effective in respect of persons who on 17 September 2004, when the 2004 Law entered into force, could still lodge such an action with the competent domestic court ( see, Krasuski v. Poland , judgment of 14 June 2005, § § 69-72 ).

However, t he applicant, despite having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under section 16 of the 2004 Act, ha s chosen not to avail himself of this remedy. It follows that this part of the applicant ' s complaint must be also rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant lastly complains under Article 13 of the Convention that he did not have an effective remedy against the excessive length of the proceedings concerning the award of damages.

Having regard to its findings in respect of the complaint under Article 6 § 1 of the Convention, the Court considers that the applicant had at his disposal effective remedies against the excessive length of the impugned proceedings within the meaning of Article 13 of the Convention.

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 com plaint under Article 6 § 1 of the Convention concerning the alleged breach of the applicant ' s right of access to a court;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President