FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44181/98 by Marian HAJNRICH against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 31 May 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , Mrs N. Vajić , Mr M. Pellonpää , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 July 1997 and registered on 3 November 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 deliberated, decides as follows:

THE FACTS

The applicant, Marian Hajnrich , is a Polish national, born in 1954 and residing in Åšwiecie , Poland. Since 1991 he has been involved in five sets of civil proceedings. The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1977 and 1978 the Świecie Municipality issued three administrative decisions allocating business premises ( lokal użytkowy ) in Świecie to the applicant. In 1977 the lease agreement was concluded between the applicant and the Association of the Landlords and Administrators of Houses in Świecie ( Zrzeszenie Właścicieli i Zarządców Domów ), hereinafter “the Association”, acting on behalf of the co-owners of the property on which the said premises were located. From 1977 to 1992 the applicant ran a patisserie on the premises. From 1977 to 1988 he incurred expenses in order to modernise the premises. In 1991 the lease agreement was revoked by the Association. On 30 December 1992 the applicant left the premises after the court had ordered his eviction.

1. Proceedings concerning return of expenses incurred in connection with the modernisation of the premises

a. Facts prior to 1 May 1993

On 10 December 1992 the applicant sued the Association in the Bydgoszcz Regional Court ( Sąd Wojewódzki ), seeking return of expenses incurred in connection with the modernisation of his business premises. The applicant asserts that he filed his action on 7 May 1992. On 3 February 1993 the court partly exempted the applicant from court fees.

b. Facts after 30 April 1993

The hearing listed for 30 June 1993 was adjourned. The court held hearings on 6 October and 16 December 1993. At the hearing held on 1 April 1994 the court ordered that expert evidence be obtained. On an unspecified date in June 1994 the expert report was submitted to the court. On 6 June 1994 the applicant submitted his pleadings to the court. On 27 September 1994 the applicant modified his claim. On 13 March 1996 the trial court refused to entertain the modified claim since the applicant had failed to pay the court fees due for that modification.

On 5 January 1995, upon the applicant’s request, the court joined S.C., B.M. and T.R., the co-owners of the property, to the proceedings as the defendant parties. The court held hearings on 30 January and 13 May 1995. The hearing listed for 13 July 1995 was adjourned since the trial court had not received the case files requested from the Świecie District Court ( Sąd Rejonowy ). The hearing listed for 30 October 1995 was adjourned due to the absence of the defendants.

On 5 February 1996 the applicant requested that the court issue an interim order to safeguard his claim in the proceedings, until a judgment on the merits would be given. The court held a hearing on 13 March 1996. On 16 May 1996 he complained to the President of the Bydgoszcz Regional Court that his request for an interim order had not been dealt with. On 10 June 1996 the trial court granted the applicant’s request. On 6 February 1997 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) set aside the first-instance order of 10 June 1996.

In the meantime, on 7 June 1996, the applicant applied for legal aid. On 12 April 1997 the court granted his application. On 30 May 1997 the applicant applied for exemption from court fees. It appears that subsequently the court granted his request. The court held a hearing on 28 May 1997. The hearing listed for 9 September 1997 was adjourned. On 23 October 1997 the court held a view of the site. On 28 January 1998 the court held a hearing.

On 11 February 1998 the Bydgoszcz Regional Court partly granted the applicant’s claim against the co-owners of the property and dismissed his claim in respect of the defendant Association. On 21 April 1998 the applicant appealed. On 23 October 1998 the Gdańsk Court of Appeal set aside the first-instance judgment in respect of the applicant’s claim against the co-owners of the property and remitted the case. It dismissed his appeal with regard to the Association.

On 9 April 1999 the Regional Court ordered that the applicant specify his claims and adduce the relevant evidence. On 19 April 1999 he submitted his pleadings to the court. On 6 May 1999 the court ordered the applicant to specify and substantiate his claims. On 13 May 1999 the applicant submitted his additional pleadings. On an unknown later date the applicant modified his claim. On 8 September 1999 the court held a hearing. It partly exempted the applicant from the court fees relating to the modification of his claim. On 15 November 1999 the court revoked the exemption. On 3 January 2000 the trial court refused to entertain the modified claim as a result of the applicant’s failure to pay the court fees. It appears that in 2000 the trial court held three hearings (two on unknown dates and one on 2 August 2000).

On 22 December 2000 the Bydgoszcz Regional Court gave judgment . It dismissed the applicant’s claim against the co-owners of the property as time-barred. The applicant appealed against the judgment to the Gdańsk Court of Appeal. It appears that the proceedings are pending.

2. Eviction proceedings.

In November 1991, the Association sued the applicant before the Świecie District Court, seeking his eviction from business premises. On 17 March 1992 the court granted the application of the Association. On 4 June 1992 the Bydgoszcz Regional Court upheld the first-instance judgment . The applicant left the premises on 30 December 1992. The Minister of Justice and the Ombudsman refused to grant the applicant leave to file an extraordinary appeal or a cassation appeal with the Supreme Court ( Sąd Najwyższy ) on 12 May 1995 and 24 September 1997 respectively.

3. Proceedings concerning return of rent arrears.

In November 1993 the Association sued the applicant in the Świecie District Court, seeking return of rent arrears. On 7 March 1994 the court partly granted the plaintiff’s claim. On 11 May 1994 the Bydgoszcz Regional Court upheld the first-instance judgment . The Minister of Justice and the Ombudsman refused to grant the applicant leave to file an extraordinary appeal or a cassation appeal with the Supreme Court on 12 May 1995 and 24 September 1997 respectively.

4. Proceedings concerning a monthly allowance.

On an unspecified date in 1996 the applicant and his wife sued the Association before the Åšwiecie District Court, seeking, inter alia , that the defendant would pay them a monthly allowance compensating them for a damage to their health. On 3 February 1998 the Åšwiecie District Court dismissed their claim as unfounded. The applicant and his wife did not appeal against that judgment .

5. Proceedings concerning compensation from the State Treasury.

On 19 April 1999 the applicant filed with the Bydgoszcz Regional Court a compensation action against the State Treasury. He claimed that the defendant was liable for the fact that he had lost his business. He also requested to be granted an increase of pension for him and his wife. Lastly, he requested a tax exemption for one hundred years. It appears that these proceedings are pending before the Regional Court.

COMPLAINTS

1. In respect of the civil proceedings concerning the return of expenses incurred in connection with the modernisation of the premises, the applicant, relying on Article 6 § 1 of the Convention, submits the following complaints:

a. that the proceedings have been inordinately lengthy;

b. that the courts committed errors of law in the proceedings and that the courts were not independent.

2. In respect of the eviction proceedings, the applicant submits the following complaints:

a. under Article 6 § 1 of the Convention about the outcome of the proceedings;

b. under Article 8 § 1 of the Convention that his eviction from the business premises amounted to a violation of his right to respect for his private and family life;

c. under Article 14 of the Convention that he was discriminated against;

d. under Article 1 of Protocol No. 1 to the Convention that he was deprived of his property.

3. In respect of the proceedings concerning return of rent arrears, the applicant submits the following complaints:

a. under Article 6 § 1 of the Convention about the outcome of the proceedings;

b. under Article 8 § 1 of the Convention that the court decisions interfered with his private and family life;

c. under Article 14 of the Convention that he was discriminated against on account of his social background.

4. In respect of the proceedings concerning a monthly allowance, the applicant submits the following complaints:

a. about the outcome of the proceedings;

b. under Article 8 § 1 of the Convention that the court’s decision amounted to an interference with his private and family life.

5. In respect of the proceedings concerning compensation from the State Treasury, the applicant, without invoking any specific provision of the Convention, complains about the conduct of the proceedings.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the length of the civil proceedings concerning the return of expenses incurred in connection with the modernisation of the premises.

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 under Article 6 § 1 of the Convention that in the above-mentioned proceedings the courts committed errors of law. He also alleges that the courts dealing with his claim were not independent.

However, the Court observes that the relevant proceedings are pending and that, therefore, these complaints are premature. In addition, the Court notes that the applicant has failed to submit any prima facie evidence in support of his allegations.

It follows that this part 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.

3. In respect of the eviction proceedings the applicant submits the complaints under Articles 6 § 1, 8 § 1 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The Court notes that the proceedings complained of were terminated on 4 June 1992 by the judgment of the Bydgoszcz Regional Court. Therefore, the applicant’s complaints relate to the events which took place before 1 May 1993, the date on which Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect.

The Court further observes that the applicant’s requests to the Minister of Justice or the Ombudsman for leave to file an extraordinary appeal or a cassation appeal cannot be regarded as an effective remedy for the purposes of Article 35 § 1, since their decision is of a discretionary character and an individual has no right to lodge such an appeal himself or herself. Accordingly, the later decisions of the Minister of Justice and the Ombudsman refusing the applicant’s requests to grant him leave to file an extraordinary appeal or a cassation appeal are not relevant to the determination of the Court’s competence ratione temporis .

It follows that this part of the application is inadmissible as being incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to paragraph 4 of that Article.

4. In respect of the proceedings concerning return of rent arrears, the applicant submits the complaints under Articles 6 § 1, 8 § 1 and 14 of the Convention.

However, the Court recalls that requests to the Minister of Justice or the Ombudsman for leave to file an extraordinary appeal or a cassation appeal do not constitute effective remedies within the meaning of Article 35 § 1 of the Convention. Consequently, the final decision in the present case was that given by the Bydgoszcz Regional Court on 11 May 1994, which is more than six months before the date on which the application was submitted.

It follows that this part of the application is inadmissible for failure to respect the six-month rule referred to in Article 35 § 1 of the Convention and must be rejected under paragraph 4 of that Article.

5. In respect of the proceedings concerning a monthly allowance, the applicant submits the complaints about the outcome of the proceedings and a breach of Article 8 § 1 of the Convention.

However, the Court finds that the applicant failed to lodge an appeal against the judgment of the Świecie District Court of 3 February 1998 and has therefore not, as required by Article 35 § 1 of the Convention, exhausted the remedies available under Polish law.

It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

6. In respect of the proceedings concerning compensation from the State Treasury, the applicant complains about the conduct of the proceedings.

The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention. However, it observes that the proceedings complained of are pending and that, therefore, this complaint is premature.

It follows that this part 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

Decides to adjourn the examination of the applicant’s complaint that the length of the civil 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.

Vincent Berger Georg Ress Registrar President