FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35577/97 by Jerzy KASZUBSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 November 2002 as a Chamber composed of

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

Having regard to the above application lodged with the European Commission of Human Rights on 10 November 1995,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Jerzy Kaszubski , is a Polish national, who was born in 1948 and lives in Pobiedziska , Poland.

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

1. First set of the proceedings

On 11 October 1978 the applicant and the Pobiedziska Municipal Cooperative , “ Samopomoc Chłopska ”, entered into a contract under which the cooperative was to install central heating, electrical, water and sewage systems in the applicant’s house. Under the terms of the contract, the contractor was to complete these works by 30 May 1979, but it failed to meet that deadline.

On 14 January 1981 the cooperative sued the applicant before the Gniezno District Court ( SÄ…d Rejonowy ) seeking PLZ 35,070.20 in payment for the construction work carried out and allegedly unpaid.

On 24 April 1981 the applicant submitted to the court a counterclaim, seeking payment of PLZ 29,597.40 in damages for defects of the works carried out under the contract.

On 29 December 1983 the Gniezno District Court gave judgment . Both parties appealed to the Poznań Regional Court ( Sąd Wojewódzki ). On 28 September 1984 the court upheld the judgment in respect of the main claim and quashed the remainder.

On 24 October 1989 the Gniezno District Court gave judgment in respect of the counterclaim. The applicant appealed against this judgment . The case file was transferred to the Poznań Regional Court where three volumes comprising all the evidence and other material concerning the applicant’s counterclaim disappeared and, as shown by the further course of the events, described below, were never traced or recovered.

On 12 June 1990 the Poznań Regional Court upheld the judgment of 24 October 1989.

On 7 September 1992 the Chief Justice of the Poznań Regional Court had ordered the Chief Justice of the Gniezno District Court to institute ex-officio proceedings relating to the reconstruction of the records and evidence contained in the missing three volumes of the case file. The proceedings were instituted on 1 October 1992. The court requested the parties to submit copies of documents in their disposal. On 22 December 1992 the court fined the parties who had not submitted the documents in their possession. The proceedings were terminated on 1 June 1993. The court found that it was only partly possible to reconstruct the case file. From the material available to the Court, it appears that after that date the applicant did not pursue his claim.

2. Second set of the proceedings.

On 31 May 1994 the applicant again sued the cooperative before the Poznań Regional Court, seeking 500,000,000 PLZ in damages for the defendant’s failure to comply with the terms of the contract of 11 October 1978 and for costs and expenses of repairing construction defects in the works done under this contract. He also asked the court to grant him legal assistance and a general exemption from the court fees.

On 17 October 1994 the court refused to grant him legal aid or any exemption from court fees. The applicant unsuccessfully appealed against this decision. On 7 November the court ordered him to pay court fees of 36,000,000 PLZ. On 2 December 1994 the applicant withdrew his statement of claim. On 5 December 1994 the Poznań Regional Court discontinued the proceedings.

3. Third set of the proceedings.

On 4 November 1995 the applicant, for the third time, sued the cooperative before the Gniezno District Court seeking 10,000 PLN in damages. The applicant asked to the court to exempt him from the court fees and grant him legal assistance.

On 24 November 1995 he asked the court to order the defendant to secure the claim by an unspecified guarantee.

On 13 December 1995 the Gniezno District Court refused to exempt the applicant from the court fees. On 29 January 1996, on the applicant’s further appeal, the Gniezno District Court exempted him from the court fees and appointed a legal aid counsel for him.

On 1 April 1996 the Gniezno District Court dismissed the applicant’s motion to secure the claim, as he had failed to submit the required information (numbers of land and mortgage registers).

At the hearing on 18 July 1996 the court obliged the applicant’s lawyer to specify within the time-limit of 20 days the damages sought on pain of staying the proceedings. As the applicant’s lawyer failed to comply with this order, the court stayed the proceedings on 12 August 1996. The applicant appealed. On 15 November 1996 the Poznań Regional Court quashed the decision of 12 August 1996 and resumed the proceedings.

Subsequently, the applicant submitted the required information. On 28 April 1997 the Gniezno District Court secured the applicant’s claim. On 22 September 1997, upon the defendant’s further appeal, the Poznań Regional Court quashed that decision and remitted the case. On 18 December 1997 the Gniezno District Court dismissed the applicant’s motion to secure the claim.

On 19 December 1997 the applicant increased the sum of damages claimed (to 100,000 PLN), which resulted in the Gniezno District Court no longer having jurisdiction over the subject matter and, accordingly, the case being referred to the Poznań Regional Court.

On 29 January 1998 the Minister of Justice informed the applicant that the proceedings would be supervised by the President of the Poznań Regional Court.

On 2 September 1998 the applicant lodged a further application for his claim to be secured. On 3 September 1998 the Poznań Regional Court dismissed his application and stayed the proceedings.

The applicant appealed on 14 September 1998. On 13 November 1998 the Poznań Court of Appeal dismissed his appeal. On 29 December 1998, the applicant again asked the court to secure the claim. On 22 January 1999 the Regional Court dismissed his appeal on the ground that the applicant had not yet substantiated his claim.

On 5 March 1999 the court resumed the proceedings. Subsequently, on 2 April 1999 the applicant was exempted from  court fees. On 10 May 1999 he was granted legal aid.

It appears that the proceedings are pending before Poznań Regional Court.

COMPLAINT

The applicant complains that the Polish courts have failed to determine his claim for damages, which he had lodged with the Gniezno District Court on 24 April1981, within a “reasonable time”.

THE LAW

1. The applicant’s first complaint relates to the length of civil proceedings, which began on 14 January 1981 when the Pobiedziska Municipal Co-operative sued the applicant before the Gniezno District Court. In the light of the material before the Court, it appears that they ended on 1 June 1993.

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 first notes that the facts complained of partly relate to a period prior to 1 May 1993, which is the date on which the declaration whereby Poland recognised the right of individual petition took effect. It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

Furthermore, as regards the period after 1 May 1993, the Court observes  that the applicant desisted from pursuing his claim on 1 June 1993, thus more than six months before the date on which the application was submitted.

It follows that this part of the complaint is inadmissible for non-compliance with the six-month rule laid down in Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

2. The applicant’s second complaint relates to the length of the proceedings, which began on 31 May 1994 when he lodged his second claim for damages with the Poznań Regional Court and came to an end on 5 December 1994, when the court discontinued the proceedings.

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 raised an objection under Article 35 § 1 alleging, in particular, that the applicant had not exhausted all the remedies available under Polish law.

The Court recalls that, Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

In that respect, it notes that the final decision in the case was given on 5 December 1994, thus more than six months before the date on which the application was submitted. The Government have not made any comments on compliance with the six months’ rule.

The Court reiterates, however, that the six months’ rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It is therefore not open to the Court to set aside the application of the six months’ rule solely because a Government have not made a preliminary objection based on it, as in the present case (see, for example, Walker v. the United Kingdom , (dec.), no. 34979/97, ECHR 2000-I).

It follows that this complaint is inadmissible for non-compliance with the six-month rule laid down in Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

3. The applicant’s third complaint relates to the length of the proceedings which began on 4 November 1995 and are still pending before the first-instance court. They have already lasted six years and ten months.

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 applicants’ 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 admissible, without prejudging the merits, the applicant’s complaint relating to the excessive length of the proceedings instituted on 4 November 1995 before the Gniezno District Court;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President