FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55459/00 by Roman KOSYLAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 24 May 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 Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 5 November 1998 ,

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 Roman Kosylak, is a Polish national who was born in 1941 and lives in Inowłódź , Poland .

A. The circumstances of the case

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

1. Proceedings for payment

On 3 December 1984 the applicant sued K.K., K.K., F.K. and M.K. before the Tomaszów Mazowiecki District Court ( Sąd Rejonowy ). He sought payment.

The proceedings were terminated on 17 October 2002 . On 5 November 1998 , the date on which the application was lodged with the Court, they were pending before the Piotrków Trybunalski Regional Court ( Sąd Okr ę gowy ) .

2. Proceedings for compensation

On 14 January 1994 the applicant lodged a claim for compensation against K.K., K.K. and S.K. with the Piotrków Trybunalski Regional Court .

The proceedings were terminated by the judgment of the Łódź Court of Appeal ( Sąd Apelacyjny ) on 22 December 1999 . It is not certain whether a cassation appeal was available in this case. On 5 November 1998 , the date on which the application was lodged with the Court, the proceedings were pending before the Piotrków Trybunalski Regional Court .

3. Proceedings for eviction

On 26 May 1992 K.K., the applicant ' s brother, sued him before the Tomaszów Mazowiecki District Court , seeking his eviction .

The proceedings were terminated on 17 October 1994 by the judgment of the Piotrków Trybunalski Regional Court . A cassation appeal was not available in this case.

B. Relevant domestic law and practice [1]

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.

Section 2 of the 2004 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).”

Section 5 reads, in so far as relevant:

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

Section 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.”

Section 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.

... ”

On 18 January 2005 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 date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

COMPLAINTS

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

2. T he applicant further complained under Article 6 § 1 of the Convention about the outcome of the proceedings for compensation and for eviction (sections 2 and 3 of the statement of the facts) .

3. Lastly, he generally alleged a breach of Articles 1 and 13 of the Convention, without specifying any factual basis for his complaints.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings in his case had exceeded a “reasonable time” within the meaning of this provision.

The Government considered that the complaint was manifestly ill-founded. They did not refer to the remedies introduced by the 2004 Act.

The applicant, for his part, maintained that those remedies were not effective and stated explicitly that he had no wish to lodge a complaint about a breach of the right to a trial within a reasonable time under the relevant provisions.

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 observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic court.

It further observes that, pursuant to section 18 of the 2004 Act, it was open to persons such as the applicant in the present case whose case was pending before the Court to lodge, within six months from 17 September 2004, a complaint about the unreasonable length of the proceedings with the relevant domestic court, provided that their application to the Court had been lodged in the course of the impugned proceedings and that it had not yet been declared admissible.

The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland . In particular, it considered that 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. 24549/03, §§ 37-43).

However, the applicant, despite having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, has chosen not to avail himself of this remedy.

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

2. He further complained under A rticle 6 § 1 about unfairness of the proceedings described in sections 2 and 3.

As regards the proceedings for compe nsation (section 2 ), even assuming that a cassation appeal was not available and, accordingly, the applicant exhausted domestic remedies, the Court observes that the applicant does not allege any particular failure to respect his right to a fair hearing or any specific shortcomings on the part of the relevant courts. In the light of the material in its possession, the Court finds no indication that the impugned proceedings were unfairly conducted.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

As regards the proceedings for eviction (section 3), the Court notes that they were terminated on 17 October 1994 when the judgment of the Piotrków Trybunalski Regional Court was given . It considers that the six-month time-limit set down by Article 35 § 1 of the Convention began to run on that last date . However, the complaint was introduced on 5 November 1998 , outside the term referred to in Article 35 § 1 of the Convention.

It follows that this part of the application is inadmissible for failure to respect the six-month rule referred to in Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4

3. As regards the complaints under Articles 1 and 13 of the Convention, the Court notes that the applicant has not indicated any factual basis for his allegations. Nor does the material in the Court ' s possession disclose any appearance of a violation of the rights and freedoms set out in the invoked Articles .

It follows that this part of the application 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 discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President

[1] . For a more detailed rendition of the relevant domestic legal provisions see Michalak v. Poland (dec.), no. 24549/03, §§ 12 ‑ 23 , to be published in ECHR 2005- ... – also available on the Court’s Internet site (http://www. [email protected] ).