THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52039/99 by Marek ZMALIŃSKI against Poland

The European Court of Human Rights ( Third Section) , sitting on 16 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides ,

Mr J. Makarczyk Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Mrs H.S. Greve , judges , and Mrs S.Dollé , Section Registrar ,

Having regard to the above application introduced on 26 February 1999 and registered on 21 October 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Marek Zmaliński, is a Polish national, who was born in 1957 and lives in Tychy, Poland.

A. The circumstances of the case

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

The applicant is a member and an employee of a labour co-operative ( spółdzielnia pracy ).

On 12 April 1991 he filed with the Warsaw Regional Court ( sąd wojewódzki ) an action in which he requested the annulment of several resolutions adopted by the assembly of the representatives of the co-operative ( walne zgromadzenie ). The contested resolutions concerned the co-operative’s finance.

Between 1992 and 1995, in addition to the original claim, the applicant challenged other resolutions relating to the division of the yearly profit of the co-operative.

On 18 November 1992 the court heard two witnesses and ordered an expert opinion. The opinion was submitted to the court in March 1994.

On 24 March 1994 the Regional Court issued a decision concerning the remuneration of the court expert. The decision was subsequently amended by the Warsaw Court of Appeal.

In the letter of 9 August 1994 the President of the Warsaw Court of Appeal ( sÄ…d apelacyjny ) admitted that the time-limit for preparing the expert opinion had not been observed by the expert and that there had been periods of inactivity on the part of the Regional Court.

On 10 October 1994 the Warsaw Regional Court refused the applicant’s request for exemption from court costs. On 13 December 1994 the Warsaw Court of Appeal upheld that decision.

On 23 May 1995 the Regional Court dismissed the applicant’s subsequent request for exemption from court costs.

On 3 October 1995 the Warsaw Court of Appeal amended in part that decision.

On 7 February 1996 the Regional Court held a hearing.

The hearing scheduled for 4 December 1996 was adjourned.

On 5 November 1997 the court held another hearing.

On 14 November 1997 the Warsaw Regional Court gave judgment in which it dismissed the applicant’s action. The applicant appealed.

On 24 April 1998 the Warsaw Court of Appeal gave judgment. It quashed a part of the first-instance court’s judgment and remitted the case in that part for re-examination. The applicant lodged with the Supreme Court a cassation appeal against the judgment of the Court of Appeal.

On 25 May 2001 the Supreme Court refused to entertain that appeal. It relied on a provision of the newly amended Code of Civil Procedure allowing it to leave without examination manifestly ill-founded appeals or appeals in cases where no serious legal issue arises.

Subsequently, pursuant to the judgment of the Warsaw Court of Appeal, some of the applicant’s claims were remitted to the Regional Court for re-examination.

The proceedings concerning these claims are still continuing.

B. Relevant domestic law and practice

A party to civil proceedings can lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the proceedings.

Article 393¹ of the Code of Civil Procedure provides:

“The cassation appeal may be based on the following grounds:

1) a breach of substantive law by its erroneous interpretation or wrongful application,

2) a breach of procedural provisions, if that shortcoming could significantly affect the outcome of the case.”

Pursuant to Article 393 ¹³ the Supreme Court, having allowed a cassation appeal, may quash the challenged judgment in its entirety or in part and remit the case for re-examination.

On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It introduced, inter alia , the following provision:

“1. The Supreme Court may refuse to entertain the cassation appeal, if:

i ) there is no appearance of any significant legal issue in the case,

ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law,

iii) that appeal is manifestly ill-founded.

2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law ( zachodzi nieważność postępowania ).”

This provision entered into force on 1 July 2000. However, Article 5 of the Law of 24 May 2000 provided, in so far as relevant:

“1. ...

2.  The provisions being in force so far shall apply to the lodging and examination of appeals against judicial decisions given before the day of entry into force of [this] law.”

A controversy arose over the latter provision, which led to the Supreme Court’s resolution of 17 January 2001 (no. III CZP 49/00). The Supreme Court answered in the affirmative the question whether it may refuse to entertain a cassation appeal against a judicial decision given by the second instance court before 1 July 2000. The court relied on the principle of the “immediate application” of procedural provisions, which it considered operative under Polish law since at least 1939. Pursuant to that principle, procedural provisions enter into force immediately and are applicable to proceedings regardless of the moment of their initiation. It found that Article 5 of the Law of 24 May 2000 provided for two exceptions to the application of that principle. One such exception concerned the examination of appeals against judicial decisions given before 1 July 2000. However, that provision related to the “examination” of an appeal whereas, pursuant to the amended Code of Civil Procedure, the court could refuse the examination of certain cassation appeals. It further noted that mere assessment of whether an appeal is manifestly ill-founded or whether a serious legal issue arises cannot be regarded as an examination. Therefore, the Supreme Court considered that the exception to the principle of “immediate application”, in so far as it relates to the examination of appeals, does not cover cassation appeals.

The court further pointed out that the amendments to the Code of Civil Procedure made it possible for that court to carry out properly its tasks relating to the cassation procedure, which at that time were significantly hindered by the enormous backlog of trivial and manifestly ill-founded appeals. It stated:

“In addition, it must be noted that the backlog in the Supreme Court leads in concrete cases to a violation of Article 6 of the Convention (...), which, especially after the most recent judgments of the European Court of Human Rights in cases against Poland concerning the unreasonable length of proceedings, cannot be discounted.”

Finally, the court found the amendment at issue compatible with the Polish Constitution, in particular with the principle of a two instance judicial system, and Article 6 of the Convention, relying in this connection on the Brualla Gómez de la Torre v. Spain judgment of this Court.

COMPLAINTS

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

2. He further complains under Articles 6 and 13 of the Convention that the amendment to the Code of Civil Procedure providing for the possibility to leave an appeal without examination came into force after his appeal was lodged with the Supreme Court, as a result of which he was deprived of his right to have a cassation appeal examined by that court.

THE LAW

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

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 the Court, to give notice of it to the respondent Government.

2. The applicant complains under Article 6 § 1 that he was deprived of the right to a fair hearing before the Supreme Court.

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 fair ... hearing ... by [a] ... tribunal...”

The Court firstly recalls that the right to a court, embodied by Article 6 of the Convention, is not absolute and may be subject to limitations. However, the limitations applied cannot restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, inter alia , Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, 12 July 2001, to be published in ECHR 2001-VII).

In the present case the Supreme Court refused to examine the applicant’s cassation appeal against the judgment of the Warsaw Court of Appeal, relying on the amendments to the Code of Civil Procedure which entered into force after that appeal was lodged.

The Court considers that the applicant’s right of access to a court was subject to certain limitations as regards the consideration of his cassation appeal. It notes, however, that the Supreme Court based itself on a generally recognised principle which provides for the immediate application of new procedural provisions. It further observes that, as transpires from that court’s resolution (see “Relevant domestic law and practice” above), the amendments to the Code of Civil Procedure served the aim of accelerating proceedings before that court by excluding the examination of appeals which are manifestly ill-founded or do not involve any serious legal issues. Having regard to the Supreme Court’s explicit reference to the right to a trial within a reasonable time guaranteed by Article 6 of the Convention, the Court finds that aim legitimate (cf. the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2956, § 36).

Furthermore, the Court points out that the appeal at issue was lodged after the case was examined by two instances with full jurisdiction. It is to be noted that the assessment of whether the applicant’s cassation appeal warranted examination must have involved, to a certain extent, an examination of the grounds of appeal. The Supreme Court refused to entertain it, having ascertained that the applicant’s appeal met at least one of the requirements set forth in the newly amended Code of Civil Procedure, namely that the appeal did not raise any serious legal issue or was manifestly ill-founded. In reaching this decision, the Supreme Court must also have ruled out the existence of an obvious breach of law with respect to the proceedings or that the proceedings were invalid for any other reason. The Court considers, therefore, that these findings must have been based on some degree of examination of the appeal.

In the light of the fact that the applicant’s cassation appeal was, at least to a certain extent, examined by the Supreme Court, the Court considers that there is “a reasonable relationship of proportionality” between the means employed and the aim of accelerating cassation proceedings.

Finally, in view of the above considerations, it cannot be maintained that the very essence of the applicant’s right to a court was impaired.

For these reasons the Court rejects the complaint under Article 6 § 1 of the Convention as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4.

3. The applicant complains under Article 13 of the Convention that he was deprived of an effective remedy in respect of the alleged violation of his right to a fair trial.

Article 13 of the Convention provides:

“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 Court recalls that where the Convention right asserted by the individual is a “civil right”, within the meaning of Article 6 § 1, the safeguards of that provision, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, inter alia , the Brualla Gómez de la Torre v. Spain judgment cited above, p. 2957, § 41, and Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI).

Therefore, and having regards to its earlier conclusion on the applicant’s access to court complaint, the Court finds this complaint manifestly ill-founded and rejects it, in accordance with Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint about the unreasonable length of the proceedings;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President