FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41899/98 by M.G. against Poland

The European Court of Human Rights (Fourth Section), sitting on 24 August 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , 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 19 November 1997,

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 Marek Głowacki, is a Polish national who was born in 1948 and lives in Zbylitowska Górka, Poland. He was represented before the Court by Mr Z. Cichoń, a lawyer practising in Cracow, Poland. The respondent Government were represented by their Agent, Mr K. Drzewicki , of the Ministry of Foreign Affairs.

A. The circumstances of the case

1. Background

In 1989 the Olkusz District Prosecutor ( Prokurator Rejonowy ) charged the applicant with having repeatedly failed to pay child maintenance.

On 18 May 1990 the Olkusz District Court ( Sąd Rejonowy ) ordered that the applicant, who had failed to attend a hearing, be detained on remand to ensure the proper course of the proceedings. On 4 July 1990 the Katowice Regional Court ( Sąd Wojewódzki ) upheld the detention order. The applicant was kept in custody from 19 June to 24 August 1990.

On 24 August 1990 the Olkusz District Court convicted the applicant as charged. On 20 November 1990 the Katowice Regional Court quashed the first-instance judgment and acquitted him.

2. Proceedings for compensation for unjustified detention

On 19 November 1991 the applicant filed an application for compensation for manifestly unjustified detention with the Katowice Regional Court.

The first hearing was listed for 25 September 1992 but it was adjourned because the court decided to obtain documentary evidence from the relevant remand centre.

The next hearings took place on 13 November and 11 December 1992.

On 22 January 1993 the Regional Court dismissed the applicant’s claim.

The applicant appealed on 25 January 1993.

On 17 March 1993 the Katowice Court of Appeal ( SÄ…d Apelacyjny ) remitted the case.

The retrial started on 10 May 1993 but it was postponed due to the absence of the applicant’s lawyer.

On 2 June 1993 the Katowice Court of Appeal dismissed the applicant’s request for his case to be referred to another regional court.

On 28 June 1993 the court held a hearing, but adjourned the trial because the applicant challenged the impartiality of the judges sitting in the Katowice Regional Court.

On 14 July 1993 the Katowice Court of Appeal dismissed the applicant’s challenge.

Hearings set for 13 September and 22 November 1993 were adjourned because the applicant was ill.

Hearings scheduled for 24 January, 14 March and 9 May 1994 were adjourned due to the absence of the applicant or his lawyer. The court also ordered to obtain fresh evidence.

On 27 June 1994 the Regional Court dismissed the applicant’s claim. It established that the applicant’s detention had not been “manifestly unjustified”, as he had obstructed the proper course of the proceedings.

The applicant appealed.

The appellate hearing, which was listed for 15 December 1994, was adjourned in order to enable the applicant’s lawyer to read the case-file.

On 9 February 1995 the Court of Appeal upheld the first-instance judgment.

On 29 June 1995 the applicant asked the Minister of Justice to lodge an extraordinary appeal on his behalf.

On 5 January 1996 the applicant was informed that, after the entry into force of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Statutes ( Ustawa z dnia 29 czerwca 1995 r. o zmianie Kodeksu postepowania karnego i niektorych innych ustaw ) , the extraordinary appeal procedure had been repealed and replaced by the cassation appeal procedure.

Accordingly, the applicant lodged his cassation appeal with the Supreme Court on 12 April 1996.

On 12 May 1997 the Supreme Court ( Sąd Najwyższy ) dismissed the appeal. A copy of that judgment was served on the applicant on 21 May 1997.

B. Relevant domestic law

The Code of Criminal Procedure of 1969, as applicable at the material time , provided in its Section 487 for compensation for manifestly unjustified detention on remand. The Regional Court in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation were met. The decision of the Regional Court could be appealed against to the Court of Appeal.

On 1 January 1996 the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure entered into force and introduced the new cassation appeal procedure. An extraordinary appeal procedure was repealed. Under Polish law, the applicant was entitled to be served ex officio with a written copy of the Supreme Court’s judgment following the examination of his cassation appeal.

COMPLAINTS

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

2. He also complained under Article 5 § 5 that he had not been granted compensation for his manifestly unjustified detention.

THE LAW

A. The Government’s preliminary objection on six months

The Government submitted that the final decision in the instant case had been given by the Supreme Court on 12 May 1997 and the applicant had introduced his application to the Court on 19 November 1997, which was more than six months later. The application was therefore lodged out of time.

The applicant contested that argument. He maintained that the copy of the Supreme Court’s judgment had been served on him on 21 May 1997 and that, accordingly, his application had been lodged within the time-limit laid down in Article 35 § 1 of the Convention.

The Court notes that, under domestic law, the applicant was entitled to be served ex officio with a written copy of the Supreme Court’s judgment. In these circumstances, the Court considers that the object and purpose of Article 35 § 1 are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria , judgment of 29 August 1997, Reports of Judgments and Decisions 1997 ‑ V, §§ 33-34). The judgment of the Supreme Court had been served on the applicant on 21 May 1997 and his application to the Court was introduced less than six months thereafter, namely on 19 November 1997. It follows that the Government’s plea on the ground of non-compliance with the six-months rule must be rejected.

B. Compliance with Article 6 § 1

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in its relevant part, reads:

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

The Government contested that argument.

They acknowledged that the case at issue had not been a complex one.

They further maintained that the applicant had significantly contributed to the length of the proceedings, as he had several times failed to attend hearings. They also considered that the way in which he had exercised his procedural rights had also caused delays.

As regards the conduct of the authorities, the Government considered that they had shown due diligence in the course of the proceedings.

They also submitted that there had been no delays or periods of inactivity for which the judicial authorities could be held responsible. They stressed that the only delay in the cassation proceedings had been a result of a substantial amendment of criminal legislation.

The applicant contested the Government’s submissions, maintaining, first, that no complex issue had been involved in this case.

He submitted that the changes to criminal procedure could not justify such long proceedings in a simple case.

The applicant further stressed that he had not in any way contributed to the delay in cassation proceedings.

As regards the importance of what was at stake for the applicant in the proceedings, he submitted that his case, as concerning compensation for manifestly unjustified detention, required special diligence on the part of judicial authorities.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60).

The proceedings started on 19 November 1991. However, the period to be taken into consideration began only on 1 May 1993, when Poland’s declaration recognising the right of individual petition took effect.

The period in question ended on 12 May 1997. The overall length of the proceedings was thus approximately 5 years and 5 months, of which 4 years and 12 days fall within the Court’s competence ratione temporis .

Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the stage reached in the proceedings on 1 May 1993 (see, among other authorities, Humen v. Poland , cited above, § 59 ).

Having regard that the proceedings involved an ordinary compensation claim, the Court considers that the case was not complex.

It further notes that the applicant lodged a number of procedural motions and several times failed to attend hearings. Indeed, while a party is entitled to make use of his procedural rights, he must bear the consequences when his actions prolong the proceedings (see, Kępa v. Poland ( dec .), no . 43978/98, 30 September 2003). Accordingly, the Court finds that the applicant’s conduct contributed to the prolongation of the proceedings.

As regards the conduct of the authorities, the Court notes that the proceedings at first and second instance progressed at an acceptable pace. Hearings were scheduled at regular intervals. The cassation proceedings lasted about a year from 12 April 1996 (when the applicant lodged his cassation appeal) to 12 May 1997 (when that appeal was examined by the Supreme Court). However, the Court considers that, given the specific nature of cassation proceedings, this period was not excessively lengthy.

In view of the foregoing, the Court concludes that the proceedings complained of do not disclose an unreasonable delay within the meaning of Article 6 § 1.

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.

The applicant further complained that he had been denied a right to compensation as provided by Article 5 § 5 of the Convention, which reads as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court observes that Article 5 § 5 of the Convention guarantees an enforceable right to compensation only to those who have been victims of arrest or detention in contravention of the provisions of paragraphs 1-4 of Article 5.

The Court notes that in the present case the domestic courts established that the applicant’s detention had been in accordance with law and it had not been arbitrary.

Furthermore, at no stage of the proceedings before the Court did the applicant allege the unlawfulness of his detention under Article 5 § 1 or a breach of the rights guaranteed in paragraphs 2 and 4 of that Article. Accordingly, Article 5 § 5 does not apply in the present case.

Accordingly, this part of the application is incompatible ratione materiae within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President