FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42628/98 by Agnieszka PILCH against Poland

The European Court of Human Rights (Fourth Section) , sitting on 27 August 2002 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr M. Pellonpää , Mrs E. Palm , 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 19 May 1998 and registered on 6 August 1998,

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 partial decision of 30 November 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, Agnieszka Pilch, is a Polish national, who was born in 1969 and lives in Cracow, Poland .

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

A. Facts that took place before 1 May 1993

On 1 August 1992 the applicant filed with the Cracow Regional Court ( Sąd Wojewódzki ) an action against B.B., the “Goldenmajer” company (“G”), the “Sprint Press” company (“SP”) and the “ Cassipeia ” publishing company (“C”). She sought compensation of 21,000,000 old Polish zlotys (PLZ) and delivery of profits for use of her pictures in a brochure on gymnastics. She also requested the court to exempt her from payment of court fees and to secure the claim by prohibiting the distribution of the brochure.

On 30 September 1992 the court exempted the applicant from payment of court fees.

On 8 October 1992 the court ordered the applicant to specify her claim. On 22 October 1992 the court returned her statement of claim in relation to the publisher as she failed to specify the claim.

On 25 February 1993 the court again ordered the applicant to specify her claim, and on 6 March 1993 she complied with this order.

On 12 March 1993 the court secured the applicant’s claim.

B. Facts that took place after 30 April 1993

On 29 June, 2 July and 6 July 1993 the defendants filed their replies to the applicant’s statement of claim.

On 5 November 1993 the court held the first hearing. It ordered the applicant to remove the shortcomings in her statement of claim in relation to the defendants G and C under pain of it being rejected.

On 11 December 1993 the court rejected the action with respect to defendants G and C, as they were civil associations ( spółka cywilna ) not having legal capacity, and stayed the proceedings with respect to SP since it had been declared insolvent. The applicant appealed against that decision.

On 21 January 1994 the applicant requested the Cracow Regional Court to summon the partners of the G and C companies.

On 17 May 1994 the Cracow Court of Appeal ( SÄ…d Apelacyjny ) dismissed the appeal. However, it declared that a pleading of 21 January 1994 should be regarded as a request to serve summonses on the owners of the G and C companies.

On 9 January 1995 the Cracow Regional Court ordered the applicant to provide it with four copies of her statement of claim.

On 2 February 1995 the Cracow Regional Court decided to serve summonses on the individuals indicated by the applicant.

The court further proceeded to obtain evidence and hold hearings on 4 April and 7 November 1995.

A further hearing, listed for 23 January 1996, was adjourned until 20 February 1996 as the applicant and the defendants were not present.

Subsequently, the court held hearings on 20 February and 2 April 1996.

On 12 April 1996 the court asked the other Polish courts for assistance in order to take evidence from two witnesses living outside Cracow.

On 7 May 1996 the Cracow Regional Court held a hearing and heard evidence from the applicant and two defendants. The hearing was adjourned since the court decided that evidence should be heard from two witnesses at their place of residence.

From 7 May 1996 to 7 April 1997 the case-file was transferred between the Świdnica District Court and the Wałbrzych District Court in order to obtain evidence from the witnesses. The courts fined the witnesses because they failed to attend the hearings.

A hearing listed for 21 May 1997 before the Cracow Regional Court was adjourned until 20 June 1997 due to the defendants’ absence.

On 16 June 1997 the applicant modified her claim by increasing it.

During the hearing held on 20 June 1997 the court decided to adjourn the proceedings until 3 September 1997.

The hearing listed for 3 September 1997 was adjourned as the defendants were not present.

On 1 October 1997 the court held a hearing. It was adjourned until 26 November 1997 because the applicant and the defendants were not present.

At the hearing listed for 26 November 1997 the applicant and three defendants were not present. The court adjourned the hearing until 30 January 1998.

On 30 January 1998 the court held the next hearing. The applicant was not present.

On 4 February 1998 the Cracow Regional Court gave judgment. It ordered the destruction of the unsold copies of the book and banned the defendants from publishing the applicant’s pictures without her prior consent. The court dismissed the remainder of the applicant’s action.

The applicant did not lodge an appeal against that judgment.

THE LAW

The applicant complained that the length of the proceedings in her case exceeded a “reasonable time”. She relied on 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 ... hearing within a reasonable time by [a] ... tribunal...”

The Court observes that the period to be considered under Article 6 § 1 began on 1 August 1992, when the applicant filed her action with the Cracow Regional Court and ended on 4 February 1998. They therefore lasted 5 years and 6 months, out of which the period of 4 years and 9 months falls within the Court’s jurisdiction ratione temporis .

However, in order to determine the reasonableness of the length of time in question, the Court will have regard to the state of the case on 1 May 1993 (see, among other authorities, Humen v. Poland [GC], no. 26614/95, § 59, 15 October 1999 (unreported).

The Court, assessing the reasonableness of the length of the time in question, will have regard to the particular circumstances of the case and the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, Humen v. Poland cited above, § 60).

The Court considers that although the subject matter of the litigation was not complex, the case involved a degree of procedural complexity given that the court had to have recourse to the assistance of other courts in  order to take evidence from witnesses living outside Cracow.

With respect to the conduct of the national authorities, the Court firstly observes that one year and three months elapsed between the date on which the applicant lodged her claim and the date of the first hearing. This delay was to some degree caused by the applicant, who had failed to specify her claim and indicate the defendants properly.

Furthermore, the Court notes that the case was adjourned from 7 May 1996 to 21 May 1997. However, the courts did not remain passive. During that period the courts made every effort to take evidence from the witnesses living outside Cracow and to ensure that the process of obtaining evidence followed its proper course. In particular, the courts on two occasions fined witnesses as they failed to attend the hearings.

With respect to the conduct of the applicant, the Court observes that she contributed to the length of the proceedings. In particular, it must be noted that on several occasions (8 October 1992, 25 February and 5 November 1993) the court ordered the applicant to specify her claim and remove the shortcomings in it as she had wrongly indicated the defendants. On 11 December 1993 part of her claim was rejected. She appealed against that decision. On 17 May 1994 the Cracow Court of Appeal dismissed her appeal. The Court finds that the applicant’s conduct undoubtedly delayed the proceedings. Furthermore, her failures to attend hearings, only some of which could be excused on health grounds, contributed to delay in the proceedings.

The Court notes that there was a period of inactivity in the proceedings (from 17 May 1994 to 9 January 1995) when no hearing took place. However, except for that instance of failure to make progress in the proceedings, the Court does not find any substantial period of inactivity for which the authorities could be held responsible.

In conclusion, regard being had to all the circumstances of the case, more particularly, to the conduct of the applicant and the procedural complexity of the case, the Court considers that the impugned proceedings do not disclose unreasonable delay within the meaning of Article 6 § 1 of the Convention.

It follows that the remainder of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it must be rejected, pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President