FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75872/01 by Józef GIDEL against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 30 April 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mr J. Makarczyk ,

Mr M. Pellonpää , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 19 December 2000 and registered on 3 November 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Józef Gidel, is a Polish national, who was born in 1959 and lives in Kraków, Poland.

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

The applicant runs a car repair shop in Kraków .

On 11 March 1993 he sued I.K. and the State Treasury before the Kraków District Court ( Sąd Rejonowy ), seeking payment for the repair of I.K’s car.

The first hearing was set down for 21 December 1993 but was later adjourned because the presiding judge was ill. The court held hearings on 26 April, 26 August and 4 November 1994 and on 21 March 1995.

Subsequently, the defendant challenged the impartiality of all the judges of the Kraków District Court. On 8 November 1995 the Kraków Regional Court ( Sąd Wojewódzki ) dismissed his challenge, finding that it lacked any basis and that the relevant statutory requirements for the disqualification of the judges were not satisfied.

On 23 October and 1 December 1995 and on 13 May 1996 the applicant sent letters to the court asking for a hearing date to be fixed as soon as possible.

On 21 October 1996 the court ordered an expert to prepare a report within one month.

On 28 March 1997 the applicant again asked the court to fix a date for a hearing. On 12 December 1997 the court held a hearing.

At the hearing held on 3 April 1998 the court ordered that the claim against the State Treasury be examined separately. The next hearing, scheduled for 12 May 1998, was cancelled as there was no courtroom available.

Later, on an unknown date, I.K. challenged the presiding judge, submitting that he had not dealt with the case diligently and had made incorrect decisions on the admissibility of evidence. On 1 June 1998 a panel of three judges, sitting as the Kraków District Court, dismissed the defendant’s challenge, ruling that it was totally unsubstantiated. The court also imposed a fine on him, holding that the challenge had been made in bad faith.

On 26 June 1998 the Kraków District Court gave an interlocutory judgment . It dismissed the applicant’s claim against the State Treasury on the ground that its liability had not been established.

On 16 October 2000 the applicant sent a letter to the President of the Kraków Regional Court. He complained about the slow conduct of the proceedings. On 17 November 2000, in reply to his complaints, the President observed that the proceedings were indeed lengthy and gave his assurance that he would supervise their conduct.

On 9 February 2001 the Kraków District Court gave judgment . On 27 April 2001 the applicant appealed. On 15 October 2001 the Kraków District Court rejected the appeal as the applicant had failed to pay the required court fee within the statutory time-limit.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the excessive length of the proceedings.

2. He also alleges a breach of Article 6 § 1 in that he did not have a “fair hearing” because the Kraków District Court gave an unjust judgment and made serious errors of fact and law.

THE LAW

1. The applicant complains under 6 § 1 that the length of the proceedings exceeded a reasonable time.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicant further complains about unfairness of the proceedings and alleges errors of fact and law committed by the relevant courts.

The Court reiterates that, pursuant to Article 35 § 1 of the Convention, the Court “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.”

The Court further recalls that domestic remedies cannot be said to be exhausted when an appeal has been rejected or not allowed because of a procedural mistake by the appellant ( Eur . Comm. HR, no. 18079/91, Dec. 4.12.1991, D.R. 72, p. 268).

In this connection,  the Court notes that the applicant’s appeal against the judgment of the Kraków District Court of 9 February 2001 was rejected as he had failed to comply with the procedural requirements attached to that remedy.

It follows that the applicant has not complied with the requirement under Article 35 § 1 of the Convention as to the exhaustion of domestic remedies, and, therefore, this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint that the length of the proceedings in his case exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention.

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President