FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36250/97 by Roman PARCIŃSKI against Poland

The European Court of Human Rights (Fourth Section) , sitting on 8 March 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 12 January 1997 and registered on 26 May 1997,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1951 and living in Ryn, Poland.

A. The circumstances of the case

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

On 27 November 1990 the applicant lodged with the Giżycko District Court ( SÄ…d Rejonowy ) an action in which he sought from a certain company “T” compensation in the amount of 5,000,000 old zlotys (PLZ). The amount claimed represented the value of a TV set which the applicant had bought from the defendant and which broke down. The applicant  submitted that despite numerous repairs the set still did not work and was kept in the defendant’s repair shop although the deadline for returning it to him had already expired.

On 5 December 1990 the case was transmitted to the Pruszków District Court.

On 3 January 1991 the applicant increased the amount of the claimed compensation to PLZ 10,000,000.

On 13 February 1991 the first hearing was held before the Pruszków District Court.

On 26 June 1991 the President of the Pruszków District Court replied to the applicant’s letter of 17 June 1991 and informed him that a delay in the proceedings resulted from the change of a judge rapporteur in his case.

The second hearing in the case was held on 12 July 1991.

On 1 and 15 October 1991 the applicant inquired of the District Court about the reasons for a delay in the proceedings.

The next hearing was held on 7 November 1991.

On 12 November 1991 the District Court allowed the applicant’s request for interim measures and issued a seizure warrant in respect of a part of property belonging to the company “T”.

On 17 January 1992 the applicant replied to the court’s request of 15 January 1992 and confirmed that he sought compensation from the company “T”. In a letter of 17 January 1992 the Pruszków District Court advised the applicant that the company “T” had no legal capacity to be sued. The court further pointed out that the company’s sole owner lived in Stuttgart, Germany and that it did not have a plenipotentiary authorised to act on its behalf. The court also informed the applicant that the application for an appointment of a custodian for the company was being considered by the Economic Section of the Pruszków District Court.

On 29 January 1992 the District Court asked the applicant to confirm whether he still wished to pursue his action against the company “T” and whether he insisted that Mr Z.S., who was a director of that company, should be considered as a second defendant in the case.

In a letter of 2 February 1992 the applicant asked the court about the reasons for a delay in considering his case.

On 5 February 1992 the applicant replied to the court’s request of 29 January 1992. He stated that in view of the fact that the branch of the company “T” situated in Nadarzyn had been liquidated, his action was directed against the company’s branch located in Płońsk. He also insisted that Mr Z.S. was a second defendant in the case and increased his claim to PLZ 15,000,000.

On 21 February 1992 the applicant asked the District Court why no hearing had been fixed in his case since 7 November 1991. On 2 March 1992 the President of the Pruszków District Court informed the applicant that the delivery of a judgment in the case had been scheduled for 13 November 1991 but had been adjourned in view of the fact that he had requested interim measures and increased his claim. The President also observed that after the applicant had stated that his action had been directed against the branch of the company “T” situated in Płońsk, the court had advised him that the company “T” had no legal capacity to be sued and that he should have directed his action against the owner of the company. The President informed the applicant that he should therefore submit to the court a statement explaining against whom his action was directed and that if he had persisted in claiming compensation from the company “T” instead of its owner, his action would be rejected on procedural grounds.

On 11 March 1992 the applicant identified Mr Z.C., the owner of the company “T”, as a defendant in his case.

In a pleading of 18 March 1992 the applicant requested the court to serve a summons on Mr Z.C. as according to his knowledge on 25 March 1992 Mr Z.C. was to be present in the offices of the company “T” located in Płońsk.

In the letters of 20 March and 27 April 1992 the President of the Warsaw Regional Court ( Sąd Wojewódzki ) informed the applicant that although the Pruszków District Court should have clarified the question of who was a defendant in the case at the beginning of the proceedings, the plaintiff was also obliged to direct his action against a defendant having legal capacity.

On 23 March 1992 the District Court instructed the applicant to inform it whether Mr Z.C. spoke Polish, to submit copies of his statement of claim and of a pleading confirming that Mr Z.S. was the second defendant in the case.

On 7 May 1992 the Pruszków District Court requested the Stuttgart District Court ( Amtsgericht ) to serve a summons on Mr Z.C.

On 18 May 1992 the District Court decided on the remuneration of a sworn translator appointed to translate its correspondence with the Stuttgart District Court.

On 1 June and 9 July 1992 the Pruszków District Court issued decisions concerning the applicant’s request that the fees charged by the bailiff who had enforced the court’s warrant of 12 November 1991 be reduced.

On 3 September 1992 the Stuttgart District Court informed the Pruszków District Court that it had been unable to serve a summons on Mr Z.C.

The next hearing took place on 7 October 1992. On that occasion the applicant withdrew his claim against Mr Z.S. The hearing was adjourned as the statement of claim had not been served on Mr Z.C.

On 13 February 1993 the applicant submitted to the District Court a statement concerning his financial standing requested by the court on 10 February 1993.

In a letter of 8 March 1993 the President of the Pruszków District Court informed the applicant that he considered that the applicant was responsible for a delay in deciding his case. The President pointed out, inter alia , that only after receiving several instructions from the court had the applicant confirmed on 11 March 1992 that his action was directed against Mr Z.C. and not the company “T”, which had lacked legal capacity to be sued. The President also observed that since the defendant lived in Germany the court was obliged to observe a longer time-limit between the date of a hearing and a date on which a statement of claim was mailed to him.

On 26 March 1993 the Vice-President of the Warsaw Regional Court responded to the applicant’s letter of 11 March 1993. He informed the applicant that the complexity of the case resulted from the fact that the action had been initially lodged against a wrong defendant, which subsequently was liquidated. In addition, he noted that one of the parties lived abroad.

On 11 October 1993 a hearing was held.

The Government submit that on 9 May 1994 the bankruptcy trustee of the company “T” informed the Pruszków District Court that the proceedings concerning the compensation claim should be stayed because “the dispute concerns an object which is a part of the estate in bankruptcy”.

In a letter of 10 November 1994 the applicant informed the District Court that he would be unable to attend the hearing scheduled for 24 November 1994 and asked the court to proceed with the examination of the case in his absence.

The next hearing took place on 24 November 1994. The Government submit that on that occasion the applicant failed to appear before the court despite the fact that he had received summons.

During the hearing held on 19 June 1995, the Pruszków District Court stayed the proceedings. The Government aver that the decision to stay the proceedings resulted from the applicant’s absence at the hearing and was based on Article 177 § 1(5) of the Code of Civil Procedure.

On 22 June 1995 the applicant asked the District Court to resume the proceedings in his case and to decide it in spite of his absence at the hearings.

In a letter of 27 February 1996 the President of the Pruszków District Court informed the applicant that his request to resume the proceedings had been received by the court on 10 July 1995. The President also advised him that on 1 February 1996 his case had been taken over by a new judge rapporteur.

In a letter of 15 May 1997 addressed to the Pruszków District Court the applicant’s wife confirmed the receipt of a summons directing her husband to attend the hearing to be held on 4 June 1997. She advised the court that the applicant would not be able to appear before it since he was in the United States.

On 4 June 1997 a hearing took place. The Government submit that on that occasion the court decided not to resume the proceedings because of the applicant’s absence.

On 26 January 1998 the Pruszków District Court sent to the applicant a telegram informing him that the hearing scheduled for 28 January 1998 was cancelled due to the illness of the judge rapporteur.

On 7 August 1998 a hearing took place. The Government submit that on that occasion the court decided not to resume the proceedings because of the applicant’s absence.

On 26 March 1999 the Pruszków District Court discontinued the proceedings. The court based its decision on the fact that no request to resume the proceedings had been submitted to it during the period of three years following its decision to stay the proceedings in the case.

On 26 April 1999 the applicant lodged a complaint against the decision of 26 March 1999. He pointed out that in the letter of 27 February 1996 the President of the Pruszków District Court had confirmed the receipt on 10 July 1995 of the applicant’s request to resume the proceedings. Moreover, the applicant recalled that the District Court had sent to him a summons and a telegram concerning hearings to be held on 4 June 1997 and 28 January 1998.

On 12 August 1999 the Pruszków District Court allowed the complaint and quashed the decision of 26 March 1999.

On 5 January 2000 the company “T” was struck off the company register.

On 19 January 2000 the Pruszków District Court issued a decision in a case of “Roman Parciński v. Z (...) C (...) running a foreign company T (...)”. The court decided “(1) to resume proceedings, and (2) to stay the proceedings on the basis of Article 174 § 1(4) of the Code of Civil Procedure”.

On 10 March 2000 the Pruszków District Court issued a decision in a case of “Roman Parciński v. the foreign company T (...) in Płońsk”. The court decided to resume the proceedings.

B. Relevant domestic law

Article 174 § 1(4) of the Code of Civil Procedure provides:

“The court shall stay the proceedings ex officio :

(...)

if bankruptcy proceedings have been instituted with respect to a party to the proceedings and the dispute concerns an object belonging to the bankruptcy estate.”

Article 177 § 1(5) of the Code of Civil Procedure provides:

“The court may ex officio stay the proceedings:

(...)

in case of the absence of both parties at the hearing, unless a statue provides otherwise, and in case of the absence of the plaintiff if he did not request that his case be examined in his absence and the defendant did not request that the case be examined.”

COMPLAINT

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

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 27 November 1990 and are still pending. They have therefore already lasted over ten years and three months out of which seven years, ten months and eight days are within the Court’s jurisdiction ratione temporis .

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 applicant’s 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 the application admissible, without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President