FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38814/97

by Mieczysław KUŹDUBOWSKI

against Poland

The European Court of Human Rights (Fourth Section) , sitting on 6 July 2000 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 , [Note1]

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 26 May 1995 and registered on 28 November 1997,

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 is a Polish national, born in 1937 and residing in Kalisz . He is a chemical engineer by profession.

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

The applicant was employed in the Zjednoczone Zakłady Gazów Technicznych in Warsaw, a state owned company which was subsequently acquired by the Liquid Carbonic Poland Ltd.

In 1989 the applicant and his colleague T.J. invented a new, modernised system of water management for their company ( projekt racjonalizatorski pt. Modernizacja gospodarki wodnej w WGT Polgaz ). The system came into use in March 1990.

Under the relevant legislation the applicant and T.J. should have been remunerated for their project. They had reached the settlement with the company in respect to the payment but it was not effected.

Subsequently, the applicant and T.J. sued the company for payment. They filed their statement of claim with the Warsaw Regional Court ( SÄ…d Wojewódzki ) on 19 May 1993. In the course of the proceedings the applicant was not represented by a lawyer.

On 29 June 1993 the Warsaw Regional Court ordered the applicant to pay court fees. Later, on an unspecified date the court granted him an exemption from court fees.

The court held hearings on 27 October 1993, 27 April 1994, 23 June and 23 October 1996.

On 14 October 1994 the court requested the applicant to produce documentary evidence. On 22 October 1994 he submitted the relevant documents to the court.

On 20 January 1997 the court ordered that expert evidence be obtained but it referred the matter to an incompetent institution. In his letter of 26 June 1997 the applicant requested the court to reverse its decision to obtain a new expert report and to determine the claim on the basis of evidence as it stood at the time.  Despite that, on 8 July 1997, the court ordered that evidence from a new expert be obtained.

The Warsaw Regional Court gave judgment on 2 March 1998 in the applicant’s absence. He failed to comply with the formal requirements for lodging an appeal, which resulted in his appeal being eventually rejected by the Warsaw Court of Appeal ( Sąd Apelacyjny ) on 5 February 1999.

COMPLAINTS

1. The applicant complains about the length of the proceedings. He does not invoke any specific provision of the Convention.

2. The applicant, without invoking any provision of the Convention, also complains that the proceedings were unfair.

THE LAW

1. The applicant complains about the length of the proceedings.

The Court finds that this complaint falls to be examined under Article 6 § 1 of the Convention.

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 this complaint to the respondent Government.

2. The applicant further complains that the proceedings in question were unfair.

The Court finds that this complaint also falls to be examined under Article 6 § 1 of the Convention.

However, the Court recalls that the obligation to exhaust domestic remedies contained in Article 35 § 1 of the Convention also requires the individual to follow the procedural rules attached to the remedy.  Failure to do so, or a mistake in so doing, will vitiate the individual’s compliance with that obligation (Eur. Comm. HR, no. 21782/93, Dec. 26.6.95, D.R. 82-A, p. 5).

In the present case, the Court finds that the applicant, when lodging his appeal against the judgment of the Warsaw Regional Court of 2 March 1998, failed to comply with the formal requirements laid down by Polish law in respect of such appeals.

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.

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.

Vincent Berger Georg Ress Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)