FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 47375/99 and 17500/02 by Andrzej Sylwester POGORZELEC (2) against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 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 with the European Commission of Human Rights on 12 October 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 partial decision of 16 December 2003 ,

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 Andrzej Sylwester Pogorzelec , is a Polish national who was born in 1947 and lives in Godziszka , Poland .

A. The circumstances of the case

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

On 29 August 1995 the applicant lodged with the Katowice Regional Court a civil action for compensation against the State Treasury - Zabrze Hospital .

On 31 March 1999 the Katowice Regional Court ( Sąd Okręgowy ) gave judgment in which it dismissed the applicant ' s action.

The applicant appealed against this judgment.

On 17 November 2000 the Katowice Court of Appeal quashed the impugned judgment and remitted the ca se to the first-instance court.

At the hearing held on 5 December 2002 the Katowice Regional Court gave judgment. It again dismissed the applicant ' s action.

The applicant appealed against this decision.

On 12 February 2004 the Katowice Court of Appeal gave a judgment. It dismissed the appeal.

It appears that the parties did not appeal against it and that the judgment became final.

On 12 October 1998 , the date o n which the application was lodged with the Commission , the proceedings were pending before the Katowice Regional Court .

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. 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 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 c ourt 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 da te , had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reason able 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.

COMPLAINT S

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.

2. The applicant further complained that the proceedings in his case had been unfair .

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.

Pursuant to Ar ticle 35 § 1 of the Convention:

“ The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognise d 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 l odge, within six months from 17 September 200 4 , 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 no t yet been declared admissible.

The applicant maintained that remedies provided for by the 2004 Act were not “effective” for the purposes of Article 35 § 1 of the Convention.

The Court h as 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, t he 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, ha s chosen not to avail himself of this remedy.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant further complained that he had no “fair trial”.

However, this complaint has not been supported by any material evidence. Nor has the applicant stated any factual basis for his Convention claims.

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 Cou rt unanimously

Decides to discontinue the application of A rticle 29 § 3 of the Convention ;

Declares the remainder of the application inadmissible .

Michael O ' Boyle Nicolas Bratza Registrar President

[1] For a more detailed rendition of the relevant domestic legal provisions see Charzyński v. Poland ( dec .) no. 15212/03, §§ 12-23; and Michalak v. Poland ( dec .) no. 24549/03, §§ 12-23, to be published in ECHR 2005-…; also available on the Court’s Internet site: www. echr. coe.int .