FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61444/00 by Waldemar KRASUSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 November 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , and Mrs F . Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 15 February 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, Mr Waldemar Krasuski, is a Polish national, who was born in 1934 and lives in Zielona Góra. He was represented before the Court by Mr L. Cyrson, a lawyer practising in Poznań, Poland. The respondent Government were represented by their Agents, Mr K. Drzewicki and Ms S. Jaczewska, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

In July 1994 the applicant and his wife concluded a contract with E.W. and W.W., the owners of a company W. Under that contract the company was to carry out certain construction works on the applicant’s house. On 24 November 1994 the applicant, considering that the company was in breach of contract, withdrew from it.

On 1 February 1996 the applicant and his wife (“the plaintiffs”) sued E.W. and W.W. in the Zielona Góra Regional Court ( Sąd Wojewódzki ), seeking compensation for the serious damage to the house allegedly caused by the defendants.

On 13 March and 27 June 1996 the court held hearings and heard evidence from witnesses.

On 24 July 1996 the court ordered that the Poznań Technical University ( Politechnika Poznańska ) prepare an expert report. The report was submitted to the court on 4 November 1996. The defendants challenged the report on 2 December 1996.

At the hearing held on 23 December 1996 the Regional Court ordered the experts to correct their report. On 26 January 1997 they upheld their original conclusions.

On 17 July 1997 the plaintiffs modified their claim.

The court held a hearing on 29 October 1997.

On 31 March 1998 the court ordered the experts to supplement their report.

The parties filed their pleadings in March, April and October 1998.

On 4 November 1998 the court held a hearing and, in the course thereof, the plaintiffs modified their claim.

On 19 November 1998 the court gave judgment and dismissed the claim. The plaintiffs appealed.

On 18 May 1999 the Poznań Court of Appeal ( Sąd Apelacyjny ) set aside the first-instance judgment and remitted the case.

On 30 September 1999 the Regional Court held a hearing. It decided to obtain a fresh expert report. In the meantime, the applicant had made two unsuccessful applications for his claim to be secured.

On 20 February 2000 the expert report was submitted to the court.

At the hearing held on 9 May 2000 the court heard evidence from the expert.

On 16 May 2000 the plaintiffs altered the amount of the damages they sought. Subsequently, they applied for an exemption from a court fee due for the increased claim. On 12 October 2000 the court refused their application. That decision was later upheld by the Poznań Court of Appeal.

On 28 February 2001 the plaintiffs again unsuccessfully applied for an exemption from payment of the court fee for the increased claim. Eventually, on 16 March 2001, the particulars of that claim were returned to them for failure to pay the fee.

At the hearing held on 8 May 2001 the plaintiffs increased their claim and stated that they would not seek an exemption from the court fee. Yet, on 4 June 2001, the particulars of the amended claim were against returned to them for failure to pay the fee in question.

A hearing listed for 12 July 2001 was adjourned at the plaintiffs’ request. A subsequent hearing was held on 6 September 2001.

The proceedings are still pending before the Regional Court.

B. Relevant domestic law and practice

1. State’s liability for a tort committed by its official

Articles 417 et seq. of the Civil Code ( Kodeks cywilny ) provide for the State’s liability in tort.

Article 417 § 1, which lays down a general rule, reads:

“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”

However, Article 418 of the Civil Code, as applicable until 18 December 2001 (see section 3. Constitutional Court’s judgment of 4 December 2001 below) provided for the following exception in cases where damage resulted from the issue of a decision or order:

“1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is either liable to prosecution under the criminal law or to a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person.

2. The absence of the establishment of guilt in a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.”

2. Relevant constitutional provisions [1]

Article 45 § 1 of the Constitution states:

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”

Article 64 of the Constitution reads:

“1. Everyone shall have the right to ownership, other property rights and the right of succession.

2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession.

3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.”

Article 77 § 1 of the Constitution reads:

“Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law.”

3. Constitutional Court’ judgment of 4 December 2001

On 4 December 2001 the Constitutional Court ( Trybunał Konstytucyjny ) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution.

On the same day the court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by an unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the state official concerned, established in criminal or disciplinary proceedings.

On 18 December 2001, the date of the entry into force of the Constitutional Court’s judgment, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant:

“The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other, not necessarily only those listed in the Civil Code, principles of the State liability laid down in specific statutes.”

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he had not had his case heard within a “reasonable time”.

He further alleged a breach of Article 13 of the Convention in that he had no effective remedy against the protracted length of the proceedings.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention that he had not had his case heard within a “reasonable time”.

Article 6 § 1, in its relevant part, provides:

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

The Government considered that the courts handling the applicant’s case had complied with the “reasonable time” requirement laid down in that provision. They maintained that the case was to a certain degree complex and that, given the fact that only pecuniary matters were at stake in the proceedings, the judicial authorities were not obliged to act with special diligence.

In the Government’s submission, the courts had so far displayed normal diligence and proceeded with the trial without any significant delays.

As to the conduct of the applicant, the Government submitted that he had contributed to the prolongation of the proceedings by, among other things, asking the Regional Court to obtain fresh evidence from the experts, modifying his claim on several occasions and failing to pay the court fees for the increased claim.

In conclusion, they invited the Court to reject the complaint as being manifestly ill-founded.

The applicant disagreed and argued that his case was not complex because it concerned an ordinary claim for damages based on the breach of contract. The Regional Court, in order to give its ruling, had not needed to consider any complicated issues of fact or law but only to hear evidence from several witnesses and obtain expert evidence.

However, the manner in which that court had conducted the proceedings – both the original ones and those following the remittal – was the main reason why his claim had not yet been determined. In the first place, it had frequently adjourned the trial sine die and only after several months had it fixed a subsequent hearing date. It had adjourned many procedural decisions and had – unnecessarily and unjustifiably – allowed the defendants’ motions for fresh evidence from experts to be taken.

Referring to the Government’s assertion that he had caused delays in the proceedings, the applicant maintained that it lacked any factual basis and that he had done everything, and that it had indeed been in his best interest, to avoid a long litigation. In the first place, he stressed that his original particulars of claim had been very carefully prepared; he had even produced an expert report to facilitate the process of obtaining evidence. Secondly, he explained that all the subsequent modifications to his claim had been inevitable since they had resulted from the changing conclusions of the experts, who had variously estimated the value of the damage sustained by him.

In sum, the applicant considered that he could not be blamed for the procrastination of the proceedings and that the authorities were responsible for their excessive length.

The Court considers, in the light of the criteria established in its case-law on the question of the “reasonable time” requirement (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 the complaint is required.

2. The applicant further alleged a breach of Article 13 of the Convention in that he had no effective remedy against the protracted length of the proceedings in his case.

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government maintained that since 18 December 2001, the date of the entry into force of the Constitutional Court’s judgment of 4 December 2001, the applicant had had at his disposal an “effective remedy” within the meaning of that provision.

They considered that, given the repeal of Article 418 of the Civil Code, a provision that had linked the State liability for damage caused by its agents with the qualified guilt of the official concerned, the applicant could, under Article 417 § 1 of the Civil Code, sue the State Treasury for damages arising from actions, or inaction, of the courts dealing with his case. He could, they added, invoke simultaneously a violation of his constitutional right to have a hearing within a reasonable time.

The applicant replied that the remedy suggested by the Government was purely theoretical and could not be regarded as “effective” for the purposes of Article 13 as it had not yet been tested before the Polish courts.

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

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President

[1] As rendered in the official translation made for the Bureau of Research of the Lower House of the Polish Parliament ( Sejm ).