FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37761/97 by Elżbieta LISŁAWSKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 25 November 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 25 November 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court’s partial decision of 12 December 2000,

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, Elżbieta Lisławska, is a Polish national, who was born in 1926 and lives in Gliwice. She is represented before the Court by Mr. J. Piątkowski, a lawyer practising in Opole, Poland.

A. The circumstances of the case

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

1. Proceedings concerning the action for damages

(a) Facts prior to 1 May 1993

On 18 September 1985 the applicant sued the “Domek” building co-operative ( Spółdzielcze Zrzeszenie Budowy Domków Jednorodzinnych “Domek”) in the Kraków Regional Court ( Sąd Wojewódzki ), seeking damages for the incomplete and defective construction of her house.

Before 1 May 1993 the Court held eight hearings and obtained several expert reports.

(b) Facts after 1 May 1993

On 3 June, 27 September and 25 November 1993 the Regional Court held hearings.

On 25 January 1994 the court stayed the proceedings, finding that the applicant had not specified her claim. On 17 February 1995 the court resumed the proceedings.

The court held further hearings on 10 April and 30 October 1995.

On 10 October 1996 the applicant challenged the impartiality of the presiding judge. On 7 November 1996 the Kraków Regional Court dismissed her challenge. On 9 May 1997 the Kraków Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant’s further appeal.

At the hearing held on 18 September 1997 the court heard evidence from an expert. Further hearings were held on 2 October and 24 November 1997.

On 8 December 1997 the Kraków Regional Court gave judgment and dismissed the applicant’s claim. On 9 February 1998 the applicant lodged an appeal against this decision.

On 9 October and 8 December 1998 the Kraków Court of Appeal held hearings.

On 18 December 1998 the Kraków Court of Appeal upheld the first-instance judgment.

On 12 March 1999 the applicant lodged a cassation appeal with the Supreme Court. The proceedings were terminated by a decision of the Supreme Court of 26 October 2001.

2. Proceedings concerning the annulment of a resolution

(a) Facts prior to 1 May 1993

On 9 May 1990 the applicant sued the “Domek” building co-operative in the Kraków District Court ( Sąd Rejonowy ) seeking annulment of a resolution divesting her of membership in the co-operative.

The court held hearings on 19 June and 18 September 1990.

On 26 November 1990 the trial court stayed the proceedings as it considered that their determination depended on the outcome of the proceedings concerning the action for damages (described above). On 20 March 1991 the Kraków Regional Court dismissed the applicant’s appeal against this decision.

(b) Facts after 1 May 1993

On 27 June 1993 the applicant asked the President of the Kraków Regional Court to resume the proceedings. On 6 July 1993 the President replied that he was not competent to make procedural decisions in the proceedings.

On 28 December 1993 the applicant asked the Kraków District Court to resume the proceedings. On 30 December 1993 the court refused her request, referring to the reasons given in the decision of 26 November 1990. On 31 May 1994 the Kraków Regional Court dismissed the applicant’s further appeal.

On 18 June 1997 the District Court discontinued the proceedings finding that they had been stayed for over three years and that the parties had not requested that they be resumed. On 1 July 1997 the applicant appealed against this decision. On 8 October 1997 the Regional Court quashed it.

On 5 June 1998 the applicant again asked the trial court to resume the proceedings. On 16 June 1998 the Kraków District Court refused her request.

On 15 October 2002 the District Court resumed the proceedings. On 30 January 2003 the court gave judgment and dismissed the applicant’s claim. On 12 March 2003 the applicant lodged an appeal with the Regional Court.

In the light of the material available to the Court at the date of the adoption of the present decision, it appears that the proceedings are still pending.

COMPLAINTS

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

She further complains, under Article 13, that she did not have an effective remedy in respect of the excessive length of the proceedings.

THE LAW

1. The applicant’s first complaint relates to the length of two sets of civil proceedings.

Article 6 § 1 of the Convention provides, in so far as relevant:

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

The proceedings concerning the action for damages began on 18 September 1985 and ended on 26 October 2001. They therefore lasted  16 years and 1 month, of which the period of nearly 8 years and 6 months falls within the Court’s jurisdiction ratione temporis .

The proceedings concerning the annulment of a resolution began on 9 May 1990 and are still pending. They have therefore already lasted more than 13 years and 5 months, of which the period of nearly 10 years and 5 months falls within the Court’s jurisdiction ratione temporis.

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

2. The applicant further complained under Article 13 that she had no effective remedy to complain about the excessive length of the proceedings.

The Government agreed that at the time of lodging her application with the Court the applicant did not have at her disposal an effective remedy for her complaint concerning the length of the proceedings. However, they noted that on 4 December 2001 the Polish Constitutional Court gave judgment, in consequence of which a remedy in respect of the excessive length of proceedings had been created. In particular, the applicant could have lodged a civil action against the State Treasury under Article 417 of the Civil Code, claiming compensation for damage caused by the unreasonable length of the proceedings.

The applicant generally contested the Government’s arguments.

The Court observes that the Government have failed to substantiate their contention that the remedy at issue is an effective one. In particular they have failed to provide any further information about the Constitutional Court’s judgment or about juridical practice relating thereto. The Court further refers to its case-law to the effect that no remedy in respect of the excessive length of proceedings exists under Polish law (see, D.M. v. Poland , no.13557/02, §§47-50, 14 October 2003, KudÅ‚a v. Poland [GC], no. 30210/96, § 160, ECHR 2000 ‑ XI).

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

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

Michael O’Boyle Nicolas Bratza Registrar President