FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66096/01 by Ryszard ZYNGER against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 May 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 10 May 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 Ryszard Zynger , is an Israeli-Polish national, who was born in 1922 and lives in Frankfurt/Main. The respondent Government were represented by Mr K. Drzewicki , of the Ministry of Foreign Affairs.

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

In 1948 the applicant and his family left Poland. His father appointed a representative to deal with all legal and financial matters in Poland and they went to Israel. Despite that representative’s opposition, the State authorities expropriated a part of the property of the applicant’s family. The applicant could not take part in the proceedings concerning the expropriation, because the Polish authorities refused to grant him a visa to enter the territory of Poland.

1. Civil proceedings concerning the estate located in Łódź

On 24 March 1998 the applicant filed with the Łódź Regional Court ( Sąd Wojewódzki ) an action in which he claimed compensation for the allegedly unlawful use of his estate by the State Treasury.

In December 1998 the Łódź District Office ( Urząd Rejonowy ) filed with the same court an action in which it sought a declaration that the State Treasury had acquired the ownership of that estate on the basis of the 1946 decree on abandoned property ( dekret o majątkach opuszczonych i poniemieckich ). The District Office submitted that the estate had been lost during the Second World War and in 1953 taken over by the State. It pointed out that until 1992 none of the previous owners had raised any claims in respect of that estate.

In the proceedings concerning the applicant’s action the court held hearings on 19 February and 1 December 1999, as well as on 5 January 2000. According to the Government, the applicant failed to attend the hearing of 19 February 1999. The applicant submits that he attended it.

On 23 February 2000 the Łódź Town Office ( Urząd Miasta ) requested that the proceedings be stayed until the proceedings initiated in December 1998 were completed, submitting that the outcome of those proceedings depended on the court’s findings in the latter.

On 6 March 2000 the court stayed the proceedings.

In his pleadings of 1 June 2000 the applicant’s lawyer submitted that after the war the applicant’s predecessor in title had resumed possession of the estate and in 1948 court proceedings concerning his title had been conducted.

On 7 August 2000 the court stayed also the proceedings initiated in December 1998, relying on the fact that inheritance proceedings concerning one of the heirs to the estate in question were pending. The applicant’s lawyer appealed against that decision, pointing out that the applicant’s share in the estate was 127/144 and thus the necessity to conduct those inheritance proceedings should not be the reason for staying the main proceedings.

On 31 January 2002 the court gave judgment.

On 8 April 2002 it resumed the proceedings initiated in March 1998.

On 17 April 2002 the applicant requested that an expert opinion be ordered concerning the value of the property under dispute.

On 14 May 2002 the court held a hearing.

On 3 July 2002 an expert held a viewing of the property.

The proceedings are still pending.

2. Civil proceedings concerning the estate located in Katowice

On 25 August 1995 the applicant filed with the Katowice District Court ( SÄ…d Rejonowy ) a request to reopen the proceedings terminated in 1965 concerning his estate. In those proceedings the State Treasury acquired the ownership of the estate through prescription. The applicant alleged that the heirs to the estate had been deprived of the right to participate in those proceedings. He submitted that he had found out about that fact only in 1995.

On 12 October 1995 the court stayed the proceedings until the completion of proceedings concerning the reconstruction of the case-file of the procedure terminated in 1965.

On 30 April 1996 the court resumed the proceedings.

In September 1997 an expert submitted his opinion ordered by the court.

On 20 June 1998 the court fixed a court fee to be paid by the applicant. The applicant’s lawyer challenged that decision. On 13 October 1998 the Katowice Court of Appeal ( Sąd Apelacyjny ) quashed it.

On 16 March 1999 the District Court refused the applicant’s request for an interim measure. His appeal against that decision was dismissed.

On 12 January 2000 the court held a hearing.

On 10 February 2000 it decided to transfer the case to a different department, considering that it should be dealt with by way of a contentious procedure. On 17 May 2000 the Katowice Regional Court dismissed the applicant’s appeal against that decision.

On 23 March 2000 the Katowice Town Office submitted its pleadings, in which it petitioned that the applicant’s request be rejected. It noted that the applicant had been aware of the fact that the proceedings concerning the acquisition of the estate had been pending. The Office further observed that the applicant had corresponded with the representative appointed by his family and thus could not claim that he had found out about the proceedings in 1995.

On 27 October 2000 the court stayed the proceedings until inheritance proceedings in respect of one of the participants in the proceedings at issue were completed.

On 30 January 2001 the Katowice Regional Court upheld that decision.

On 9 April 2002 the final decision was given in the inheritance proceedings.

On 24 June 2002 the District Court resumed the examination of the applicant’s case.

On 31 July 2002 it gave judgment. The court refused the applicant’s request for re-opening.

In November 2002 the applicant lodged an appeal against that judgment.

The proceedings are still pending.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the proceedings in his cases have exceeded a reasonable time. He further complains about the alleged lack of an effective remedy in respect of the length of those proceedings.

THE LAW

1. The applicant’s first complaint relates to the length of the proceedings concerning the estate located in Łódź .

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 complained of began on 24 March 1998 and are still pending. They have therefore already lasted 5 years, 2 months and 3 days .

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 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 second complaint relates to the length of the proceedings concerning the estate located in Katowice .

a. Applicability of Article 6 § 1 of the Convention

In reply to the Court’s question, the Government submit that Article 6 § 1 applies to the proceedings at issue.

The applicant does not address the issue of applicability.

b. The reasonableness of the length of the proceedings

The proceedings at issue began on 25 August 1995 and are still pending. They have therefore already lasted 7 years, 9 months and 2 days .

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 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, including the question of the applicability of Article 6 of the Convention.

3. The last complaint concerns the alleged lack of an effective remedy.

Article 13 of the Convention reads:

“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 submit that at the time of lodging his application with the Court the applicant did not have at his disposal any effective remedies in respect of the excessive length of the proceedings. However, on 4 December 2001 the Polish Constitutional Court adopted a judgment in which it gave a new interpretation to Article 417 of the Civil Code paving the way for claims for compensation for lengthy judicial proceedings. According to that provision the State Treasury is responsible for damage caused by unlawful actions of a public official in performing his/her duties. The Government point out that the Polish Constitution guarantees the right to a hearing without undue delay.

The applicant does not address this issue.

Having regard to its above findings in respect of the complaints under Article 6 § 1 of the Convention, the Court considers that the applicant has an ‘arguable claim’ of a violation of his right to a hearing within a reasonable time ( see Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 58, ECHR 2000-IV). Therefore, his complaint under Article 13 is not incompatible ratione materiae with the provisions of the Convention.

The Court further finds, in the light of the Government’s 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, reserving to the merits the question of applicability of Article 6 § 1 of the Convention to the proceedings concerning the estate located in Katowice and without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President