FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51768/99 by Jan MŁYNARCZYK against Poland

The European Court of Human Rights (Fourth Section), sitting on 3 February 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr L. Garlicki , Mrs E. Fura-Sandström , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 9 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jan Młynarczyk, is a Polish national who was born in 1950 and lives in Wrocław, Poland. He is represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław.

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

A. Facts prior to 1 May 1993

T he applicant, who is a trombone player and since 1969 has been playing with the jazz band “ Sami Swoi ”, became its leader after a split in 1990. Mr Z.C. who had left the band in the same year, started playing with a new band using the name “The New Sami Swoi Orchestra”.

On 30 October 1990 the applicant lodged with the Wrocław Regional Court ( Sąd Wojewódzki ) an action for protection of his personal rights against Z.C. The applicant contended that the defendant had infringed his personal rights by using the name “ Sami swoi ” without his consent. He requested the court, inter alia , to order the defendant not to use that name in the future.

On 17 July 1992 the trial court dismissed his action.

The applicant appealed against that judgment.

B. Facts after 30 April 1993

On 9 December 1993 the Wrocław Court of Appeal ( Sąd Apelacyjny ) quashed the first-instance judgment and remitted the case to the trial court.

On 12 June and 5 September 1995 the court held hearings. Both parties applied for an expert opinion. The applicant made a friendly settlement proposal but the defendant did not agree to it.

On 13 February 1996 the applicant requested the court not to order an expert opinion and argued that such opinion would be unnecessary.

On 15 February 1996 the trial court, sitting in camera , ordered preparation of an expert opinion.

In March 1996 the applicant asked for exemption from the costs of the expert opinion and appealed against the decision of 15 February 1996. On 1 April and 23 May 1996 the court dismissed his applications.

In August 1996 the court-appointed expert refused to prepare his opinion. Subsequently, the trial court twice requested the Katowice University Musical Academy to indicate an expert.

On 12 March 1997 the court ordered a new expert, Mr A.Z., to prepare an opinion. However, that expert failed to prepare the requested opinion.

In June 1997 the court appointed another expert, Mr K.K., to write an opinion in the case. However, due to his illness, the expert failed to prepare the opinion.

On 9 March 1998 the trial court ordered Mr H.M. to prepare an expert opinion. The expert did not prepare the opinion and in December 1998 he returned the case-file to the court.

On 6 January 1999 the trial court fined the expert for non-compliance with the court’s order.

On 15 February 1999 the court ordered another expert, Mr T.T., to prepare an opinion.

On 2 July 1999 the expert submitted his opinion to the court.

Between 6 September 1995 and 24 November 1999 no hearings were held.

Subsequently, the trial court held hearings on 25 November and 17 December 1999.

On 14 January 2000 the Chorzów District Court heard a witness.

The next hearings were held on 23 May, 13 July, 18 September, 3 November and 17 November 2000.

On 1 December 2000 the Wrocław Regional Court gave judgment and ordered the defendant to publish a press statement that the applicant was solely entitled to use the name “ Sami Swoi ” for his band. It dismissed the remainder of the applicant’s action.

The defendant appealed against that judgment to the Wrocław Court of Appeal.

On 18 May 2001 the Wrocław Court of Appeal gave judgment in which it dismissed the defendant’s appeal.

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 30 October 1990 and ended on 18 May 2001. They therefore lasted over ten years and six months out of which the period of eight years and eighteen days falls within the Court’s jurisdiction ratione temporis .

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject that allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President