FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52043/99 by Ewelina WASILEWSKA and Others against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 November 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , 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 on 15 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ewelina Wasilewska (hereinafter: “the first applicant”), Bożena Wasilewska (“the second applicant”) and Maciej Wasilewski (“the third applicant”), are Polish nationals, who were born in 1976, 1955 and 1978 respectively and live in Jelenia Góra , Poland.

A. The circumstances of the case

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

The second applicant is the mother of the first and third applicants.

1. Proceedings concerning supplementary pensions

On 13 May 1994 the applicants filed with the Jelenia Góra Regional Court an action against an insurance company P. in which they claimed supplementary pensions relating to the death of L. Wasilewski , the second applicant’s husband and the other applicants’ father.

On 25 April 1996 the court gave judgment. It awarded compensation to the applicants and dismissed their claims for pensions. They appealed.

On 19 December 1996 the Wrocław Court of Appeal amended the appealed judgment in that it increased the amount of compensation. On 12 April 1997 the applicants lodged a cassation appeal against the Court of Appeal’s judgment.

On 26 November 1997 the Court of Appeal granted them partial exemption from the cassation fee.

On 3 January 1998 the first and third applicants withdrew their claims for supplementary pensions, limiting their appeals to the issue of compensation. They submitted that, despite the partial exemption, the fee they had to pay for their cassation appeal was too excessive. The applicants therefore decided to limit the overall value of their claims, in consequence of which the proportional fee dropped and they could afford to pay it.

On 12 October 1999 the Supreme Court gave judgment. It discontinued the proceedings as far as they concerned the first and third applicants’ claims for pensions, since they had withdrawn those claims and it was bound by their decision. The court quashed part of the judgment of the Court of Appeal and remitted that part of the case for re-examination. It dismissed the remainder of the cassation appeal.

On 27 January 2000, having re-examined the case, the Court of Appeal amended the judgment of the District Court as far as it concerned the first and third applicants. It quashed the part relating to the second applicant and remitted the case in that part for re-examination.

The District Court held hearings on 13 September 2000, 12 January, 5 February, 21 May, 6 August, 18 September and 28 September 2001.

On 8 October 2001 it gave judgment. It awarded the second applicant a supplementary pension, as well as overdue pension payments. She appealed.

On 28 November 2001 the court exempted the second applicant from a fee for her appeal.

On 8 February 2002 the Court of Appeal amended the appealed judgment.

2. Proceedings concerning the increase of pensions

On 12 May 1997 the first and third applicants filed with the Jelenia Góra District Court an action in which they sought the increase of their pensions from company P.

On 4 June 1997 the court exempted them from the court costs.

It held a hearing on 18 September 1997. On the same day the court stayed the proceedings until the completion of the proceedings concerning the supplementary pensions.

On 26 January 1998 it refused the applicants’ request to have the proceedings resumed. They challenged that decision

On 8 May 1998 the Jelenia Góra Regional Court quashed that decision and ordered the re-examination of the applicants’ request.

It appears that subsequently the proceedings were resumed.

The District Court held hearings on 16, 23 and 29 June 1998.

On 7 July 1998 it gave judgment. The court dismissed the action filed by the first and third applicants. They appealed.

On 14 August 1998 the court exempted them from the court costs.

On 22 October 1998 the Regional Court held a hearing. It stayed the appellate proceedings until the completion of the procedure before the Supreme Court concerning the applicants’ claims for supplementary pensions.

On 31 May and 28 October 1999 the Regional Court refused the first and third applicants’ requests for the resumption of the proceedings.

On 24 May 2000 it resumed the examination of the case.

The court held hearings on 8 and 29 June 2000.

On 14 July 2000 it gave judgment. The court dismissed the appeals lodged by the first and third applicants.

3. Proceedings concerning compensation

On 6 June 1997 the second applicant filed with the Jelenia Góra District Court an action in which she claimed compensation from company P.

On 1 July 1997 the court exempted her partially from the court costs.

On 14 November 1997, as well as 7 January and 11 February 1998, it held hearings.

On 16 April 1998 the court stayed the proceedings until the completion of the proceedings concerning the supplementary pensions.

On 29 July 2002 it resumed the examination of the case.

The court held a hearing on 26 November 2002.

On 17 December 2002 it gave judgment. The court dismissed the second applicant’s action, considering that it was time-barred. She appealed.

On 28 May 2003 the Wrocław Court of Appeal dismissed the applicant’s appeal.

On 7 August 2003 she lodged a cassation appeal against the Court of Appeal’s judgment. The cassation proceedings are still continuing.

B. Relevant domestic law

1. Impartiality of a judge

According to the Code of Civil Procedure a judge may be excluded from participation in the proceedings at a request of a party if there exists a relation between that judge and the party concerned that would cast doubt on the impartiality of that judge (Article 49).

2. Decision to stay the examination of a case

Article 394 of the Code of Civil Procedure guarantees a party to the proceedings a right to appeal against a decision of the first-instance court to stay the proceedings.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the proceedings in their cases were not conducted within a ‘reasonable time’.

2. They complain under Article 6 § 1 of the Convention that some of the judges who conducted their proceedings, especially judge K. from the Jelenia Góra Regional Court, were not impartial and did not withdraw from participation in those proceedings.

3. The applicants complain under Article 6 § 1 of the Convention that on a number of occasions their requests for exemption from court costs have been refused, in breach of their right of access to a court. They submit that they had to limit the scope of their cassation appeal because of the excessive fee they were supposed to pay.

4. The applicants complain under Article 6 § 1 of the Convention that in their judgments the courts have on several occasions ordered the mutual set-off of costs incurred by both parties, disregarding the fact that as the winning party they should have been reimbursed their expenses.

THE LAW

1. The applicants complain that the court proceedings in their cases were not conducted within a reasonable time, in breach of Article 6 § 1 of the Convention, which provides in so far as relevant:

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

(a) In so far as the applicants complain about the allegedly excessive length of the proceedings concerning supplementary pensions (section 1 above), the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

(b) As regards the proceedings concerning the increase of pensions, the Court notes that they began on 12 May 1997 and ended on 14 July 2000. They therefore lasted 3 years, 2 months and 2 days.

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).

The Court observes that the case was of no unusual complexity.

There is nothing to suggest that the conduct of the first and third applicants delayed the examination of the case.

Courts at two judicial levels gave their judgments. They scheduled hearings at regular intervals. The proceedings were stayed for over one and a half years pending the outcome of another case.

The Court considers that in the particular circumstances of the case a period of 3 years and 2 months does not exceed a ‘reasonable time’.

It follows that this part of the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c) The proceedings concerning compensation (section 3 above) have already lasted 6 years, 3 months and 19 days [on 25 September 2003]. The Court, however, observes that they were stayed for 4 years, 3 months and 13 days. The applicant did not challenge the decision to stay the proceedings (see “Relevant domestic law”) and therefore, in so far as the delay in the examination of the case relates to the fact that no action was taken by the first-instance court in that period, the length complaint in this part must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

Apart from that period, the case has been so far examined for some two years. Courts at two judicial levels have already given judgments and the case is pending before the Supreme Court. Hearings were scheduled at regular intervals.

It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicants complain about alleged bias against them disclosed by certain judges. They rely on the part of Article 6 § 1 of the Convention which reads:

“In the determination of his civil rights and obligations ... , everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...”

The Court observes that the applicants have not challenged the participation of those judges in the proceedings in accordance with the Code of Civil Procedure. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicants complain about alleged restrictions on their access to a court, in breach of Article 6 § 1 of the Convention, quoted above.

(a) The Court notes that the applicants have not referred to any concrete cases when their access to a court was hindered. It is true that on a number of occasions their requests for exemption from court costs were either refused or granted only in part. Nonetheless, there is nothing to suggest that the court decisions concerning the costs by any means obstructed the pursuit of the claims made by the applicants. Therefore, the Court considers that they have not substantiated their allegation. It follows that this part of the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) The only instance of the limitation of the applicants’ access to a court mentioned by them is the cassation appeal a part of which they had to withdraw in order to be able to pay the fee. The Court notes that the decision refusing the exemption requested by the applicants was given by the Court of Appeal on 26 November 1997. The Supreme Court pointed out that it was not empowered to examine the claims withdrawn by the applicants and thus no further remedy was available to the applicants in this connection. Consequently, the final decision, within the meaning of Article 35 § 1 of the Convention, was that of the Court of Appeal. It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4.

4. The applicants complain under Article 6 § 1 of the Convention, quoted above, about the domestic courts’ refusals to order the reimbursement of costs incurred by them in connection with the proceedings.

The Court notes that the applicants have not specified which of their rights set forth in Article 6 § 1 were affected by the fact that the costs paid by them were set off against those of the opposing party. It sees no appearance of any hindrance in the exercise of their right to a fair trial as a result of such set-off. 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 Court unanimously

Decides to adjourn the examination of the applicants’ complaint concerning [Note1] the allegedly unreasonable length of the proceedings concerning supplementary pensions;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.