FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35843/97 by Krystyna MALINOWSKA against Poland

The European Court of Human Rights ( Fourth Section ) sitting on 20 January 2000 as a Chamber composed of

Mr M. Pellonpää, 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 Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 November 1996 by Krystyna Malinowska against Poland and registered on 29 April 1997 under file no. 35843/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 28 June 1999 and the observations in reply submitted by the applicant on 9 August 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1932 and living in Złotokłos , Poland .

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

On 4 March 1982 the applicant filed with the Warsaw District Court ( SÄ…d Rejonowy ) a civil action against certain Messrs A.B and W.I. claiming 116,000 old zlotys (PLZ) in compensation. The applicant submitted that in 1979 the defendants had leased from her a greenhouse and borrowed 16 tonnes of coal, which they subsequently used to heat it. Since they had failed to either return the coal or pay for it before the agreed deadline of 31 October 1981, the applicant commenced litigation seeking payment for the value of the coal.

On 29 February 1984 the Warsaw District Court delivered a judgment in which it awarded to the applicant PLZ 101,600. Both A.B. and W.I. appealed against that judgment to the Warsaw Regional Court ( Sąd Wojewódzki ). On 18 December 1984 the Regional Court quashed the judgment and ordered that the case be joined with another action, which had been lodged by the applicant on 29 November 1983 and in which she sought from the same defendants damages in relation to their breach of the lease agreement which required them to make investments in a greenhouse, the subject of the said lease.

On 16 October 1985 the Warsaw District Court joined the two cases in which the proceedings had been initiated by the applicant on 4 March 1982 and 29 November 1983. There had been 9 hearings held in the latter proceedings before the cases were joined.

During the next hearing held on 4 December 1985 one of the defendants was not present. The applicant informed the court about the increase in the amount of her claim. The counsel for the applicant’s son, who had joined the proceedings as an intervenor , asked the court to conclude the proceedings on that date.

On 3 February 1986 the case file was transmitted to a court expert.

On 26 August 1986 the applicant asked the District Court to fix the date of the next hearing, pointing out that the case had been laying dormant since 4 December 1985.

             During the hearing held on 4 December 1986 the counsel for one of the defendants informed the court that he had not received a copy of an expert opinion mailed on 28 October 1986 and requested that the hearing be adjourned. The court decided that an additional expert opinion should be prepared and adjourned the hearing after the parties had failed to reach a friendly settlement.

             On 30 December 1986 the expert opinion requested on 4 December 1986 reached the court.

             The next hearing took place on 29 January 1987. The counsel for the defendants and a court expert failed to attend.

During the hearing held on 28 April 1987 the court took evidence from an expert.

             The next hearing was held on 19 May 1987. The applicant and the counsel for the intervenor did not appear. The court allowed the intervenor’s request that the hearing be adjourned.

             During the hearing held on 24 June 1987 the court took evidence from an expert. The next hearing was fixed for 18 August 1987. On that date the applicant and the defendant A.B. were not present although they had received the summonses. The court agreed to the request submitted by the applicant’s son that the minutes of the hearing held on 24 June 1987 be corrected.

The next hearing was held on 10 September 1987. On that occasion the applicant, the counsel for the intervenor , a court expert and a witness did not appear.

During the hearing held on 7 October 1987 the defendants were not present. The court examined one witness and a court expert.

On 26 November 1987 the applicant, the defendants and a court expert failed to attend a hearing.

The next hearing was held on 17 December 1987. The court examined the applicant, the intervenor and one of the defendants. It also requested the Piaseczno Municipal Office to submit a file concerning the leaseholders of the greenhouse.

In a letter of 15 January 1988 the court inquired of the Piaseczno Municipal Office about the reasons for delay in submitting a file requested on 17 December 1987.              It appears that on 25 May 1988 the court again requested the Piaseczno Municipal Office to submit the file. On 10 June 1988 the Piaseczno Municipal Office informed the court that the file included only two documents which had already been sent to it on 4 March 1988 and again submitted them.

On 20 June 1988 the case file was transferred to an expert who subsequently submitted his opinion on 18 January 1989.

During the hearings held on 14 April and 23 June 1989 the defendant A.B. was not present. On 22 September 1989 both defendants were present but the applicant and her son failed to appear before the court.

On 29 November 1989 the hearing was adjourned until 31 January 1990, as none of the two lay judges sitting on the case was present.

On 5 February 1990 the applicant filed with the court a request to re-hear two experts.

The next hearing was held on 29 March 1990. Both defendants and a court expert failed to appear. The lawyer who was considered to act as counsel for both defendants informed the court that he in fact never represented the defendant W.I.

During the hearing held on 20 June 1990 the defendant A.B. was absent. The next hearing was held on 25 June 1990 and was attended by all the parties. On that occasion the court proposed to the parties the conclusion of a friendly settlement.

On 12 October 1990 the defendant A.B. failed to appear before the court. The next hearing, fixed for 11 January 1991, was not attended by the applicant’s son and both defendants. On 20 March 1991 the defendant A.B. again failed to appear before the court.

On 7 May 1991 the court revoked the applicant’s partial exemption from the payment of court fees. On 23 May 1991 the applicant appealed against that decision.

The hearing held on 29 May 1991 was adjourned because of the absence of both lay judges.

The next hearing was held on 4 September 1991. The court examined the applicant.

During the hearing held on 6 November 1991, which was not attended by the defendant A.B., the court took evidence from the defendant W.I. It also instructed the counsel for the intervenor to submit documents concerning the construction of the greenhouse and instructed the expert to update his opinion.

On 10 December 1991 the applicant asked the court to take evidence from a witness K. O.

The next hearing was held on 8 January 1992.

On 4 March 1992 the hearing was adjourned until 29 April 1992 as one of the lay judges was absent due to his illness. The court decided that one of the witnesses, who was not present on that date, should be requested to submit an explanation of his failure to attend. In default thereof he would be fined. It also decided to advise the witness that another absence at the hearing could result in the execution of a warrant authorising police to bring him before the court.

The next two hearings were held on 29 April and 17 June 1992.

During the hearing held on 7 September 1992 the applicant’s son explained that her illness prevented her from attending the hearing and asked the court to adjourn it. After proposing a friendly settlement to the parties the court adjourned the hearing until 2 November 1992.

On 2 November 1992 the hearing was adjourned until 14 December 1992 as none of the lay judges was present. On 14 December 1992 the absence of one of the lay judges led to a further adjournment until 11 January 1993.

During the hearing held on 11 January 1993 the Warsaw District Court decided that the case would be transferred to the Warsaw Regional Court as the applicant had increased the amount of her claim.

In a letter of 3 March 1993 the applicant asked the Regional Court to expedite the proceedings pointing to the fact that they had already taken more than eleven years and that during that time she had retired and her health had deteriorated.

During the hearing held on 12 April 1993 both defendants, one of the lawyers and a witness failed to appear.

On 21 June 1993 the Regional Court adjourned the hearing as both defendants, the counsel for one of the defendants and the applicant and a witness were not present. The defendant A.B. had been notified about the service of the summons but failed to collect it, whereas the defendant W.I. had been served with the summons. The next hearing was fixed for 7 October 1993. On that date none of the defendants was present although they had been served with the summonses. The counsel for A.B. attended the hearing. The court heard one of the witnesses and adjourned the hearing until 17 January 1994.

On 24 November 1993 the applicant asked the court to serve the defendants with the summonses requiring their compulsory presence at the hearing on 17 January 1994, as their persistent failures to attend hearings had contributed to the excessive length of the proceedings.

On 17 January 1994 none of the defendants was present although they had been informed about the date of the hearing. The counsel for A.B. attended the hearing. The court further adjourned the case until 12 May 1994.

On 12 May 1994 the defendant A.B., his counsel and witnesses were not present. As the case file did not contain any confirmation of the service of the summonses, the hearing was adjourned until 19 September 1994.

In a letter of 30 May 1994 the press spokesman for the Ministry of Justice informed the applicant that, since the case was still pending before the Regional Court , he could not comment on it and was not in a position to respond to her inquiry concerning the date of the next hearing. He also expressed the opinion that the proceedings were approaching their conclusion.

On 2 August 1994 the applicant complained to the Warsaw Regional Court about the length of the proceedings and asked it to deliver a speedy decision on her claim.

On 19 September 1994 none of the defendants appeared before the court although they had been served with the summonses. The counsel for A.B. attended the hearing. The court further adjourned the case until 30 November 1994 and decided that both defendants would be served with the summonses informing them that should they fail to attend the hearing the court would not take evidence from them.

On 30 November 1994 the court heard the parties. The defendant A.B. accepted in part the applicant’s claim. The court adjourned the delivery of a judgment until 14 December 1994. On 13 December 1994 the applicant submitted to the court a letter supporting her claim. On 14 December 1994 the defendants filed with the registry of the Warsaw Regional Court a letter dated 12 December 1994 in which they requested that the investments they had made in the greenhouse be set off against any awards to be made by the court to the applicant. In view of those submissions the court decided to postpone the delivery of a judgment until 28 December 1994. However, no hearing was held on that date as the court decided to re-open the proceedings and scheduled the next hearing for 28 February 1995.

In response to the applicant’s complaint about the postponement of the delivery of the judgment, the President of the Warsaw Regional Court informed her on 30 January 1995 that it was justified by the fact that the defendants had raised a new claim in their letter of 12 December 1994. He also pointed out that he could not question the decision of an independent court.

On 28 February 1995 the court adjourned the hearing until 14 March 1995 since both defendants and the counsel for the defendant A. B. were not present and there was no confirmation of the service of the summonses. On 14 March 1995 the court further adjourned the case until 20 April 1995.

On 20 April 1995 the court adjourned the hearing until 18 May 1995 as one of the defendants was absent due to his illness. During the hearing held on 18 May 1995, at which the counsel for the defendant A.B. represented her client in his absence, all the parties declared that they did not intend to submit any further evidence. The court adjourned the delivery of a judgment until 25 May 1995 when it again postponed delivery until 1 June 1995.

On 1 June 1995 the Warsaw Regional Court delivered a judgment in which it awarded to the applicant 28,600 new zlotys (PLN) in damages together with costs incurred in the proceedings. The court considered that the evidence before it showed that the defendants had breached the lease agreement by not making investments in the renovation and upkeep of the greenhouse provided for by the terms of the agreement. It also pointed out that one of the defendants accepted in part the applicant’s claim during the hearing held on 30 November 1994. On 5 September and 3 November 1995 the defendants A. B. and W. I., respectively, appealed against that judgment.

During the hearing held on 25 January 1996 before the Warsaw Regional Court the defendant W.I. asked the court to extend the time-limit for the payment of the court fee for lodging an appeal.

On 29 January and 1 February 1996 the Warsaw Regional Court issued decisions concerning the payment of court fees by the defendants.

In a letter of 1 March 1996 the applicant complained to the Minister of Justice about the length of the proceedings in her case.

On 27 March 1996 the case file was transmitted to the Warsaw Court of Appeal ( SÄ…d Apelacyjny ).

The hearing held on 30 April 1996 before the Warsaw Court of Appeal was adjourned due to the justified absence of the defendant W.I. and the illness of the counsel for A.B.

On 12 June 1996 the Warsaw Court of Appeal quashed the judgment of 1 June 1995 and remitted the case to the Warsaw Regional Court . The appellate court pointed out that the court of first instance had failed to assess properly the evidence before it. In particular, it had not taken into account the evidence taken from several witnesses and experts. Furthermore, the Regional Court had not explained why it had based its award of damages to the applicant on her calculations while ignoring other relevant evidence in the case file. The appeal court also observed that, as it could not on its own consider the matters of fact but was obliged to follow the findings of the first-instance court, the erroneous assessment of the evidence by the Regional Court made it impossible for it to properly examine the reasoning of the court of first instance. Finally, the appellate court instructed the Regional Court to take additional expert evidence.

On 20 August 1996 the case file was returned to the Warsaw Regional Court .

On 3 October 1996 the applicant asked the Minister of Justice to expedite the proceedings. In response to her request, the President of the Warsaw Regional Court informed the applicant on 12 November 1996 that a judge rapporteur had been appointed in the case on 4 November 1996. He also advised her that the next hearing would be fixed at the beginning of 1997 as no free sessions were available in the court’s calendar before the end of 1996.

On 15 November 1996 the Regional Court requested the parties to submit their written pleadings concerning the appeal court’s decision of 12 June 1996 together with any requests concerning the evidence. On 17 January 1997 the applicant submitted her observations to the registry of the Regional Court and informed it that she had not been notified about the court’s request for such observations. It appears that the applicant learned about the request by inspecting the case file in the registry.

On 3 March 1997 the applicant lodged a request for exemption from the court fees.

The next hearing was held on 15 May 1997. On that date the applicant increased her claim to PLN 39.208. In addition, the defendant W.I. declared that he contested the applicant’s claims whereas A.B. requested the court to adjourn the hearing since his counsel was absent. The court fixed a time-limit until 25 July 1997 for the submission by the counsel for A.B. of pleadings concerning the decision of the Warsaw Court of Appeal of 12 December 1996 and written submissions made by the applicant on 15 January 1997 and 15 May 1997.

On 30 July 1997 the applicant requested the court that a time-limit of 25 July 1997 be considered as final since any extensions would provide the defendants with opportunities to further delay the proceedings. She also asked the court to deliver a partial judgment in relation to her claim concerning the coal as she considered that it was ready for decision.

On 16 September and 30 October 1997 the court again requested the counsel for A.B. to submit her observations. On 30 October 1997 the applicant complained to the court about the failure of the counsel for A.B. to submit written observations and asked it to expedite the proceedings. On 15 December 1997 the counsel for A.B. submitted her observations to the Regional Court . On 9 January 1998 the applicant filed her response to those observations. On 23 January 1998 the applicant again lodged a request for a partial judgment.

The next hearing was held on 11 May 1998. The counsel for the intervenor was not present because of her illness. The court dismissed the applicant’s request for a partial judgment on her claim concerning the coal and the adjournment of the examination of other claims. During the hearing the applicant submitted her written observations on the state of the greenhouse at the beginning of the lease. The hearing was adjourned at the request of the applicant and the intervenor . The date of the next hearing was fixed for 27 October 1998 as no hearing room was available before that date.

On 27 October 1998 none of the defendants appeared before the court. The applicant submitted her written observations on an expert opinion prepared by the court expert S.W. The counsel for the defendants asked the court to adjourn the hearing so that further evidence could be taken from the parties.

On 24 March 1999 the court fixed the next hearing for 6 June 1999. On 25 March 1999 the court transmitted the case file to a court expert. On 28 April 1999 the court expert requested the court that he be exempted from preparing an opinion as he was not qualified to do it. On 5 May 1999 the court transmitted the case file to another expert.

In a letter of 21 May 1999 the Ministry of Justice informed the applicant that it had inspected the progress in the court proceedings concerning her case. It showed that the proceedings should be expedited. Therefore, the Ministry requested the President of the Warsaw Court of Appeal to supervise the course of the proceedings. The Ministry also expressed an opinion that this would help to avoid in the future any unreasonable length of proceedings.

On 12 July 1999 the court expert returned the case file to the Warsaw Regional Court .

During the hearing held on 22 October 1999 the defendants requested the court to take evidence from witnesses and to allow them to submit a written calculation of expenses incurred by them in 1979. The applicant asked the court to reject this request pointing out that it would result in a further delay in the proceedings. The court rejected the defendants’ request to take evidence from witnesses and granted them a time-limit for the submission of a written calculation of their expenses.

The proceedings are still pending.

COMPLAINT

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

PROCEDURE

The application was introduced on 16 November 1996 before the European Commission of Human Rights and registered on 29 April 1997.

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 the Convention.

On 9 March 1999 the Court decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 28 June 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 16 August 1999.

THE LAW

1. The applicant complains that the proceedings in her case were not concluded within a reasonable time, contrary to Article 6 § 1 of the Convention, which in so far as relevant provides:

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

2.              The Government submitted that the part of the application relating to events which took place before 1 May 1993, when the declaration whereby Poland recognised the right of individual petition took effect, was outside the competence ratione temporis of the Court.

In this connection, the Court recalls that Poland recognised the competence of the European Commission of Human Rights to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Poland of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993”. According to Article 6 of Protocol No. 11 this limitation shall remain valid for the jurisdiction of the Court under that Protocol. It follows that the period to be taken into consideration by the Court starts on 1 May 1993. In order to determine the reasonableness of the length of time in question the Court will have regard to the state of the case on that date (see, among other authorities, the Podbielski v. Poland judgment of 30 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3395, § 31).

3. The Government invited the Court to declare the application inadmissible on the ground that it is manifestly ill-founded within the meaning of Article 35 of the Convention. In this connection, they contended that the subject matter of the applicant’s case did not call for particular urgency in deciding it. Furthermore, the Government submitted that the case involved both factual and legal complexity. In particular, they pointed out the following factors which contributed to the complexity: the number of participants involved in the proceedings, difficulties in collecting evidence on account of the lapse of time since the period when the facts contested by the parties took place, necessity to take expert evidence, frequent changes in the amounts of the claim and the court experts’ fees caused by inflation, an appeal against the first-instance court’s judgment and the appellate court’s decision to quash the judgment and remit it to the court of first instance. The Government also referred to “a number of other reasons”.

The Government further contended that the behaviour of the parties to the proceedings contributed to the delay as on numerous occasions they failed to attend hearings and asked for adjournments. The Government submitted that after 30 April 1993 the applicant failed to attend 11 hearings, which resulted in 13 months of delay.

With respect to the behaviour of domestic authorities, the Government claimed that the domestic courts showed diligence in the conduct of the proceedings. In particular, the courts adjourned several hearings at the request of the parties. They also followed the principles of Polish law allowing the parties to take an active approach in the course of the proceedings.

Finally, the Government submitted in the alternative that the facts of the case did not disclose a violation of Article 6 § 1 of the Convention.

The applicant contested the Government’s claim that her numerous failures to attend hearings contributed to the delay. She submitted that together with her son, who acted as an intervenor in the proceedings, they failed to attend very few hearings. What is more, their absence at the hearings always resulted from either an illness or other serious reasons. They always advised the courts in good time about their inability to attend a hearing. Furthermore, the applicant submitted that most of the changes in the amount of her claim, which eventually led to the transfer of the case to the Warsaw Regional Court , resulted from the high rate of inflation prevailing in Poland . She also pointed out that the case was less complicated than claimed by the Government.

Moreover, the applicant averred that the unreasonable length of the proceedings resulted from the behaviour of the courts which allowed the defendants to delay the proceedings, appointed incompetent experts, mailed summonses to incorrect addresses and examined many times the same witnesses and court experts. In addition, she pointed out that the fact that at least 8 judges presided over the case contributed to the delay.

The applicant also disagreed with the Government’s argument that the fact that there were many participants involved in the proceedings contributed to the delay. In this respect, she contended that approximately 17 persons involved in the proceedings did not explain their overall length which amounted to 17 years.

Finally, the applicant submitted that what was at stake in the proceedings for her was very significant as the compensation awarded by the court would allow her to pay for a private medical treatment of her illness.

The Court considers, in the light of the parties’ submissions, that the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Vincent Berger     Matti Pellonpää

  Registrar   President