FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29691/96 by Grzegorz JEDAMSKI against Poland

The European Court of Human Rights (Fourth Section) , sitting on 29 June 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 ,

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 June 1995 and registered on 4 January 1996,

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 regard to the Commission’s partial decision of 4 March 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1954 and living in Mikołajki Pomorskie , Poland.

A. The circumstances of the case

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

1. Proceedings relating to the claim for payment

On 22 December 1992 the Łódź Bank of Development ( Łódzki Bank Rozwoju ), submitting a bill of exchange payable to bearer which required the applicant to pay on demand PLZ 19,777,167,300, requested the Łódź District Court ( Sąd Rejonowy ) to issue an order for payment against him.

On 14 January 1993 the court granted the plaintiff's request and ruled that the applicant was to pay the sum in question within seven days from the date of service of the order or, alternatively, within the same time-limit, to lodge an appeal against the said order.

On 23 January 1993 the applicant lodged an appeal with the Łódź District Court, submitting that the order was premature since the bill of exchange had been endorsed by him to secure the payment of a loan which, according to the terms of the relevant agreement, was to have been paid off on 31 December 1992.  He also requested the court to stay the enforcement of the order.

On 28 January 1993 the plaintiff requested the court to issue a writ of execution in respect of the order of 14 January 1993.  On 1 February 1993 the court issued a provisional writ of execution (i.e. under which assets, by way of security, may be attached to protect claims).  The final writ of execution was issued on 12 May 1993.  Subsequently, on an unspecified date, the plaintiff requested the court to issue two further such writs, submitting that it was to institute enforcement proceedings against the applicant before several different courts because his real and personal property was situated in various towns.

On 12 October 1993 the case was referred to the Łódź Regional Court ( Sąd Wojewódzki ) which, under the rules of civil procedure governing jurisdiction, was competent to deal with the case in ordinary civil proceedings.

On 20 October 1993 the Łódź Bank of Development was taken over by the BIG Bank SA ( Bank Inicjatyw Gospodarczych SA ) and, from that date onwards, the BIG Bank SA replaced it as a plaintiff in the proceedings.

From 8 March to 29 August 1994 the proceedings were stayed at the parties’ joint request.

On 23 September 1994 the Łódź Regional Court issued one writ of execution, dismissing the remainder of the plaintiff’s request.  On 23 November 1994, on the applicant's appeal, the Łódź Court of Appeal ( Sąd Apelacyjny ) upheld the first-instance decision.  On an unspecified later date the case-file was transmitted to the Regional Court.

On 16 June 1995 the Regional Court ordered that evidence be obtained from an expert in banking accountancy.  The expert submitted his report to the court on 29 August 1995.  After having served copies of the report on the parties, the court listed a hearing for 20 December 1995.

At that hearing, on the applicant’s request, the court stayed the proceedings since the applicant produced documents confirming that, in the meantime, that is, on 13 December 1994, his wife had sued both parties to the proceedings in the Łódź Regional Court.  She was seeking the annulment of the relevant loan agreement.  The plaintiff bank first unsuccessfully opposed the applicant’s request and then appealed against the decision staying the proceedings but its appeal was rejected on 11 March 1996.

Meanwhile, on 26 December 1995, the applicant requested the court to resume the proceedings, in his words, “immediately”.  He maintained that the claim for payment against him could be determined without a prior ruling on whether or not the loan agreement had validly been concluded.  The request was rejected on 15 April 1996 because the court considered that the determination of the applicant’s case depended on the outcome of the proceedings relating to the validity of the loan agreement and that there was, therefore, a sufficient basis for the stay of the proceedings, as defined by section 177 § 1 (1) of the Code of Civil Procedure.  The applicant did not contest this decision.

During the stay of the proceedings the trial court made several procedural orders.  It stayed the enforcement of the order of payment (by a decision of 13 May 1996 which was upheld on appeal on 12 July 1996).  It dealt with the applicant’s request for the order securing the claim to be amended and rendered in that respect a decision on 2 December 1996.  It also ruled on two plaintiff’s requests for the decision staying the enforcement of the order of payment to be quashed (giving decisions of 15 April 1996 and 29 January 1998 respectively).

On 13 October 1998 the applicant notified the court that the proceedings concerning his wife’s claim for declaring the loan agreement null and void had been terminated and requested for a hearing date to be fixed.

The court listed a hearing for 17 February 1999.  On 23 February 1999 it gave judgment granting the plaintiff’s claim in its entirety.  It also awarded the costs of the proceedings against the applicant.  Both parties appealed.

On 19 October 1999 the Łódź Court of Appeal rejected the plaintiff’s appeal as it considered that it had no legal interest in challenging the judgment granting the relief requested.  It further dismissed the applicant’s appeal.

On 2 December 1999 the applicant filed a cassation appeal ( kasacja ) with the Supreme Court ( Sąd Najwyższy ).  The proceedings are pending.

2. Proceedings relating to the applicant's appeals against the actions taken by the Bailiff of the Warsaw District Court in the enforcement proceedings

On 11 February 1993, acting under the provisional writ of execution of 1 February 1993 (see above, the proceedings relating to the claim for payment) and on a request by the creditor, i.e. the Łódź Bank of Development, the Bailiff of the Warsaw District Court ( Komornik Sądu Rejonowego ) made an order attaching the applicant's shares in the Bank of Development of Export ( Bank Rozwoju Eksportu ) and cash (of an unspecified sum) deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. ( Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A. ), by way of security for the creditor's claim for payment of PLZ 19,777,167,300 pending in the Łódź Regional Court.  On 26 February 1993 the applicant lodged an appeal against the actions taken by the bailiff ( skarga na czynności komornika ), relying on section 767 of the Code of Civil Procedure.  On 10 September 1993 the court dismissed the applicant's appeal.

On 8 September 1993, acting under the final writ of execution of 12 May 1993 (see above, the proceedings relating to the claim for payment) and a request by the BIG Bank SA, the Bailiff of the Warsaw District Court instituted enforcement proceedings against the applicant, with a view to selling the assets attached on 11 February 1993.  According to the applicant, the total value of the attached assets was about PLN 7,000,000, that is to say, some USD 2,000,000.

On 20 September 1993 the applicant appealed, under section 767 of the Code of Civil Procedure, against the actions taken by the bailiff in the enforcement proceedings to the Warsaw District Court.  He submitted that the bailiff's actions had been incorrect and unlawful since he had enforced the order for payment of 14 January 1993 against matrimonial property, whereas the final writ of execution had been issued against the applicant alone.  Moreover, the civil claim in question had not yet been determined as the relevant proceedings were pending before the Łódź Regional Court because he had appealed against the order for payment of 14 January 1993.  He, therefore, requested the court to quash the attachment and to stay the enforcement proceedings.

Shortly afterwards, the applicant’s case was registered in the Warsaw District Court under file no. II Co 248/93.

On 2 April 1994 the court decided that information be obtained as to whether the applicant had appealed against the order for payment of 14 January 1993 and whether in the relevant proceedings any decision staying the enforcement of that order had been issued.

On 24 June 1994 the court ordered that the applicant’s case be joined with the case registered under file no. II Co 47/94 (the latter case concerned the creditor’s (the BIG Bank SA’s ) request for the applicant’s attached shares to be sold on the Warsaw Stock Exchange) and assigned to the judge- rapporteur dealing with that case.  On 18 July 1994 the court quashed its previous order and decided that the joinder of the cases be reversed, that is, that the case no. II Co 47/94 be joined with the applicant’s case and assigned to the judge- rapporteur dealing with the applicant’s case.  On 17 October 1994 the cases were assigned to another judge rapporteur because the previously appointed rapporteur had resigned.

On 8 February 1996 the Warsaw District Court, sitting in camera , rejected the applicant's appeal of 20 September 1993.  The court considered that the applicant was again appealing against the actions taken by the bailiff on 11 February 1993, that is, that he was challenging the attachment order made by the bailiff on that day.  The Court went on to find that the appeal against the attachment order had already been examined, and finally dismissed, by the same court on 10 September 1993.  Moreover, in the court's opinion, the applicant had clearly lodged his second appeal out of the seven-day time-limit prescribed by Section 767 of the Code of Civil Procedure.  In any event, the Court added, the matter had finally been adjudicated on 10 September 1993 and, according to the principle of res iudicata , the second appeal had to be rejected.  A copy of this decision was served on the applicant on 21 March 1996.

On 28 March 1996 the applicant appealed to the Warsaw Regional Court, submitting that the court of first instance had manifestly confused his two appeals: the appeal of 26 February 1993 against the attachment of his shares ordered by way of security and the appeal of 20 September 1993 against the actions taken by the bailiff (those taken with a view to selling the attached shares) on the basis of the final writ of execution in the subsequent enforcement proceedings.  Later, a copy of the applicant’s appeal was served on the creditor, which lodged a reply to the appeal on 6 May 1996

On 18 July 1996 the Warsaw Regional Court, sitting in camera , quashed the contested decision and remitted the case to the District Court.  The appellate court agreed with the applicant that the lower court had failed to note that he had filed two appeals, appeals which concerned two evidently separate actions taken by the bailiff.

On 27 December 1996 the Warsaw District Court, relying on the principle of res iudicata , refused to examine the appeal insofar as it amounted to the objection to the attachment order of 14 February 1993.  It dismissed the remainder of the appeal, finding that objections raised by the applicant, in particular those concerning the enforcement of the order for payment while the civil dispute over the same claim was pending, had to be rejected.  It found that the bailiff's actions had been correct and lawful as he had acted under the valid writ of execution and the means of enforcement applied by him had a legal basis.

On 21 April 1997, on the applicant's appeal, the Warsaw Regional Court upheld the first-instance decision.

B. Relevant domestic law and practice

1. Order for payment

According to Section 492 of the Code of Civil Procedure, an order for payment, if issued on the basis of a bill of exchange, is enforceable notwithstanding that a defendant has appealed against it, and that proceedings relating to the final determination of the claim arising from the endorsement of the bill are still pending.

A district court is competent to issue an order for payment; however, on an appeal by a defendant, the case may subsequently be referred to a regional court if, in view of the value of the claim, that court is competent to deal with the case in ordinary civil proceedings.

2. Appeal against actions taken by a bailiff in enforcement proceedings

Under Section 767 et seq. of the Code of Civil Procedure a debtor may appeal against any action taken by a bailiff in enforcement proceedings.  He may, in particular, seek a ruling as to whether the bailiff's actions were correct, i.e. taken in accordance with a writ of execution, and lawful, i.e. whether the means of enforcement applied in a given case were provided by law.  Such an appeal is examined by a district court under the provisions of Volume II of the Code of Civil Procedure relating to enforcement proceedings.

3. Stay of civil proceedings

Under sections 173 et seq. of the Code of Civil procedure the court may stay civil proceedings either ex officio or at a party’s request.

Section 177 § 1 (1) provides:

“1. The court shall ex officio stay the proceedings:

(1) if the determination of the case depends on the outcome of other pending civil proceedings.”

Section 180 § 1 of the Code provides, insofar as relevant:

“1. The court shall ex officio resume the proceedings if the reason for staying them no longer exists, in particular if:

…

(4) a final decision has been given in the proceedings on whose outcome the determination of the case depends, however, if circumstances so require, the court may resume the proceedings before [such a final decision is given].”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that in both sets of proceedings his right to have a “hearing within a reasonable time” was not respected.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 1 June 1995 before the European Commission of Human Rights and registered on 4 January 1996.  It originally comprised complaints lodged by Mr Grzegorz Jedamski ("the first applicant") and Mr Wiktor Jedamski (“the second applicant”).

On 4 March 1998 the Commission decided to communicate to the respondent Government the first applicant’s complaints about the length of the proceedings relating to the claim for payment and the proceedings concerning his appeal against the actions taken by the Bailiff of the Warsaw District Court in the enforcement proceedings.  It declared the remainder of the application inadmissible.  By virtue of that decision all the complaints raised by the second applicant were rejected.

The Government’s observations were submitted on 29 May 1998, after an extension of the time-limit fixed for that purpose.  Mr Grzegorz Jedamski (“the applicant”) replied on 20 July 1998.  On 13 October 1998 the Government submitted their supplementary observations, to which the applicant replied on 25 November 1998.  In the meantime, the time-limit for the submission of an English translation of the Government’s observations had been fixed for 24 July 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 16 March 2000 the applicant supplemented his observations.  His pleading was transmitted to the Government on 29 March 2000.

On 26 April 2000 the Government submitted a translation of their observations into English.

THE LAW

The applicant complains under Article 6 § 1 of the Convention that in both sets of the proceedings in which he was (or still is) involved his right to have a “hearing within a reasonable time” was not respected.

Article 6 § 1 of the Convention states, insofar as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

a) As regards the proceedings relating to the claim for payment

The applicability of Article 6 § 1 to the proceedings has not been contested before the Court.  The Court sees no reason to hold otherwise: the proceedings concern the claim for payment and their outcome will be decisive for the applicant’s pecuniary civil rights.

The Government firstly submit that the proceedings commenced on 22 December 1992, prior to 1 May 1993, the date on which Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 § 1 of the Convention took effect.  Therefore, the Court is competent ratione temporis to examine the applicant’s complaints about the length of the proceedings only in so far as they relate to the events which took place from 1 May 1993 onwards.

The applicant does not contest the Government’s arguments in this respect.

The Court accepts the Government’s contention.  However, in order to ascertain whether the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was complied with in the present case, it will have regard to the stage reached in the proceedings on 1 May 1993 (see, among other authorities, the Humen v. Poland judgment of 15 October 1999, § 59 unpublished).

The Government further contend that it is true that the proceedings started by the end of 1992 and have since then been pending but, if they are assessed in the light of the criteria established by the Court’s case-law, their length cannot be regarded as unreasonable.

They in the first place stress the particular complexity of the issues involved in the determination of the case.  For instance, the trial court had to obtain expert evidence and consider all the pertinent circumstances in the light of the outcome of the proceedings filed by the applicant’s wife, in which she sought the annulment of the relevant loan agreement.

Moreover, the applicant substantially contributed to the length of the trial.  On 20 December 1995, on his request, the court stayed the proceedings because it had to wait for the final ruling on whether the loan agreement was valid.  It was the second stay in the proceedings as, for the first time, they had been stayed at the parties’ joint request from 8 March to 29 August 1994.  The Government, stressing that the total delay resulting from the stay was about three and a half years, argue that this lull in the proceedings should be considered as attributable exclusively to the applicant’s dilatory conduct.

In the Government’s view, the trial court conducted the proceedings expeditiously, efficiently and even during the periods of stay it displayed continuous activity, resolving several procedural matters and making various interim decisions.

The applicant disagrees.  In his view the length of the proceedings is unreasonable because, given the Court’s competence ratione temporis , they have to date lasted seven years and are still pending.

Furthermore, he does not consider that the fact that the proceedings were stayed at his request on 20 December 1995 should be considered a delay attributable to his behaviour.  Nothing prevented the trial court from resuming the proceedings promptly since, first of all, he himself withdrew his request very shortly afterwards.  Secondly, the plaintiff bank challenged the stay and the court could have reconsidered its previous decision.  Lastly, pursuant to section 180 § 1 (4) of the Code of Civil Procedure, the court could have resumed the proceedings at any time, even before his wife’s case had been determined.

In the applicant’s opinion, the case is not a complicated one and, in particular, the fact that the court needed to obtain expert evidence cannot in itself render it more complex than an average civil case.

Lastly, the applicant argues that there occurred at least two delays in the proceedings for which the authorities were responsible.  The first hold-up lasted five moths (that is to say, from 23 November 1994 to 23 March 1995) and during this time the court remained entirely passive.  Then, there was a gap of three months between the two hearings held in September and December 1995 respectively.  In conclusion, referring to the Court’s criteria for the notion of “reasonable time”, the applicant invites the Court to find a violation of Article 6 § 1 in respect of these proceedings.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

b) As regards the proceedings concerning the applicant’s appeal against the actions taken by the bailiff in the enforcement proceedings

i. Applicability of Article 6 § 1

No dispute as to the applicability of Article 6 § 1 has been raised before the Court.  The Court has, nevertheless, examined this issue of its own motion and has found that Article 6 applies to the proceedings for the following reasons.

It is true that in contrast to other cases, where the Court has held that the enforcement proceedings must be regarded as a second, and therefore integral, part of proceedings on the merits (see, for example, the Zappia v. Italy judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1411, §§ 18-20, and the Dewicka v. Poland judgment of 4 April 2000, § 41, unpublished), in the present case the enforcement proceedings were pending concurrently to these on the merits of the claim since, under Polish law, an order for payment, if issued on the basis of a bill of exchange, is enforceable regardless of whether the claim arising from endorsement of the bill has been determined or is pending before the court.

It is also true that the object of the proceedings was in principle to determine whether the actions of the bailiff were taken in accordance with the relevant writ of execution and lawful.  However, the contested actions were taken with respect to the applicant’s previously attached assets and directly concerned the way in which he was to enjoy his property rights.  Also, it has to be noted that the outcome of the proceedings could affect the position of the applicant in the proceedings on the merits to such an extent that the claim against him, even though not determined yet, could even be executed by the attachment and subsequent sale of his property.  There was, therefore, a ”dispute” relating to “the manner of exercise” of the applicant’s “civil rights”.  Moreover, given that the result of this dispute entailed far-reaching repercussions for the applicant’s property rights, it went beyond “mere tenuous connections or remote consequences” for the rights in question (see, a contrario , the Athanassoglou and Others v. Switzerland judgment of 6 April 2000 [GC], to be published in the Court’s official reports, § 43).  Such being the case, the Court holds that Article 6 applies to the proceedings in issue.

ii. Compliance with Article 6 § 1

The Government maintain that the length of the proceedings was not so excessive as not to meet the “reasonable time” requirement.  They attach importance to the complexity of the case and the fact that the applicant’s property, against which the execution was initiated, was located in several different places.

The applicant replies that the proceedings were inordinately lengthy.  It took the courts three years and seven months to give a simple ruling on whether the actions taken by the bailiff in the enforcement proceedings were lawful.  It is true that the case was examined twice by courts of two instances, but the first ruling was given as late as nearly two and a half years after he had initiated the proceedings.  This period of inactivity on the part of the Warsaw District Court lacks any sensible explanation and, if counted against the overall length of the proceedings, must be considered a very substantial delay.  The courts, he adds, made all their rulings at sessions held in camera and the case was examined in a written procedure, without a single hearing being held.

The applicant also stresses that even though the case was simple, much was at stake for him in the proceedings, both in terms of the value of the property attached and the potential serious consequences for his pecuniary rights in case of putting his assets on sale.

Furthermore, in the first ruling given in his case the court, having confused his two separate appeals filed against two different actions taken by the bailiff, committed a manifest error.   This event inevitably prolonged the determination of the case, which not necessarily had to be twice examined by two court instances.

The applicant invites the Court to find that also in these proceedings his right to a “hearing within a reasonable time” was not respected.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the 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