FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33082/96 by Krzysztof WOJNOWICZ against Poland

The European Court of Human Rights ( Fourth Section ) sitting on 18 November 1999 as a Chamber composed of

Mr G. Ress, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr I. Cabral Barreto, Mr V. Butkevych, Mrs N. Vajić, 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 12 October 1995 by Krzysztof Wojnowicz against Poland and registered on 20 September 1996 under file no. 33082/96;

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 22 September 1997 and the observations in reply submitted by the applicant on 5 December 1997;

Having deliberated;

Decides as follows:

THE FACTS

The proceedings in question in the present case concern the length of civil proceedings to which the applicant is a party.

The following is a summary of these proceedings:

The applicant owned a company running a car repair shop jointly with M.K. and B.W.

On 21 September 1987 the applicant lodged an action with the Warsaw District Court against M.K. and B.W., requesting that the court dissolve the company and distribute its property to its shareholders.

The first hearing, to be held on 20 February 1987, was adjourned as one of the parties failed to appear. Subsequently, the judge rapporteur was changed. Likewise, the hearing set for 25 October 1988 was adjourned. On 24 January 1989 the applicant complained to the Ministry of Justice about the conduct of the proceedings. In a letter to the court of 26 January 1989, the applicant requested the court to accelerate the proceedings.

In a letter of 4 April 1989, the Ministry of Justice acknowledged that the proceedings had exceeded a reasonable time and that in view thereof the conduct of the proceedings would be henceforth supervised by the Ministry.

On 4 October 1989 the Warsaw District Court appointed an administrator for the company.

The hearing fixed for 26 November 1989 was adjourned, one of the parties not being present.

On 13 December 1989 the Warsaw Regional Court quashed the decision to appoint an administrator for the company. The case was subsequently assigned to a new judge rapporteur .

In a letter of 25 January 1990, the applicant complained to the president of the Parliamentary Commission on the Administration of Justice about the length of the proceedings. In a reply of 23 February 1990, the president of that Commission stated that the complaints were partly well-founded, in particular in that the court had failed sufficiently to supervise its experts. In a reply of 2 April 1990, the applicant stated that supervision by the Ministry had not brought about any tangible results. He further pointed out that the expert could not be held responsible for the delay as he had several times requested the court to give him access to the case-file and, for reasons unknown, this request had not been granted.

In a letter of 28 May 1990, the Minister of Justice informed the president of the Parliamentary Commission on the Administration of Justice that according to a progress report on the case, submitted to the Ministry by the President of the Warsaw District Court on 20 April 1990, the expert had obtained the case-file on 2 April 1990 and would present his opinion to the court before 30 May 1990.

On 10 June 1990 the applicant complained to the Ombudsman about the length of the proceedings. The Ombudsman transmitted the complaint to the President of the Warsaw District Court who, on 21 August 1990, informed the applicant that he had issued appropriate orders to accelerate the proceedings.

On 19 September 1990 the hearing was adjourned, one of the parties being absent. A new judge rapporteur was subsequently appointed.

On 18 March 1991 the court heard the expert. On 6 May 1991 the proceedings were suspended, as the parties attempted to reach an out-of-court settlement.

The hearings fixed on 2 August and 14 October 1991 were adjourned because one of the parties did not comply with the summonses. A new judge rapporteur took over.

On 18 November 1991 the applicant requested the court to set a date for a new hearing and to take measures in order to discipline the party who sabotaged the proceedings by his consistent refusal to participate.

Two further hearings, on 23 March and 25 May 1992, were adjourned as one of the parties was absent and the judge rapporteur changed again.

On 28 September 1990 the applicant complained to the President of the Warsaw Regional Court about the excessive length of the proceedings.

At the hearing on 19 October 1992, the court, presided over by yet another judge rapporteur , heard a witness and an expert.

On 28 January 1993 the court heard another witness and an expert.

On 5 March 1993 the court appointed an expert in accountancy, who submitted her findings to the court on 31 July 1993, having been twice urged by the court to speed up the preparation of her report. At a hearing held on 25 November 1993, the court heard this expert and, having regard to certain objections made by one of the parties, requested her to supplement her report. The expert submitted a further report on 6 January 1994.

.

On 1 March and 15 March 1994 the hearings were adjourned as on the first date a defendant, and on the second date his representative were absent.

On 10 May 1994 the court, at the request of B.W., one of the parties to the proceedings, admitted in evidence the expert opinion of a construction specialist. This expert opinion was submitted to the court on 2 August 1994. On 25 October 1994 the court questioned this expert.

On 17 November 1994 the Warsaw District Court pronounced a judgment, dissolving the company and assigning its property to the applicant. The defendant filed an appeal.

On 18 September 1995 the Warsaw Regional Court considered the appeal, set the first-instance judgment aside, finding that serious errors as to the substantive law had been committed, divided the case into two separate cases, the first one concerning the settlement of claims between the company's shareholders and the liquidation of the company, the second one relating to the division of the company's property, and ordered both cases to be reconsidered by the Warsaw District Court.

The case was subsequently assigned to another judge rapporteur . On 24 January 1996 the hearing before the District Court was adjourned due to the judge's ill health.

On 28 February 1996 a hearing was held during which the court examined the applicant's request for legal aid. Subsequently the judge rapporteur was changed.

On 10 June 1996 the hearing was adjourned due to the judge's ill health. On 26 August 1996 the case was once again assigned to another judge.

On 26 September 1996 a hearing was held in the case concerning the settlement of the shareholders' claims, and a new expert was appointed to prepare a report on the value of the property. He submitted his report to the court before 17 June 1997.

The hearing fixed for 17 June 1997 was adjourned as the expert failed to attend, although he had submitted his report. On 9 October 1997 the court rejected the applicant's request to have a new expert appointed to the case. At a hearing on 29 October 1997, the expert was questioned and the court requested him to supplement his opinion, but the date of the next hearing was not fixed. Subsequently, the hearing set for 4 March 1998 was adjourned as one of the parties and his lawyer failed to attend.

At the hearing on 13 May 1998 the court heard the same expert witness and requested the parties to submit their claims and evidence to the court.

At the hearing on 8 July 1998 witnesses called by one of the parties failed to attend. On 14 October 1998 the witnesses called by the applicant were questioned by the court. A hearing scheduled for 13 January 1999 was adjourned as both the applicant and the presiding judge were ill. On 3 March 1999 a hearing was adjourned because the lawyer of another party was ill. On 14 April 1999 the hearing was adjourned as one of the parties was ill. On 14 June 1999 the court heard evidence from the witnesses called by the applicant. The date of the next hearing was fixed for 20 October 1999.

As regards the case concerning the division of the company's property, the first hearing in these proceedings was set for 16 January 1998. The hearing was adjourned since one of the parties and his lawyer failed to attend. Likewise, a hearing fixed for 22 April 1998 was adjourned for the same reason. At a hearing held on 26 June 1998, a second expert was appointed to prepare an expert opinion. The hearing which was to take place on 17 June 1999 was adjourned as the expert failed to comply with the summons, and the date of the next hearing was set for 16 September 1999.

Both sets of proceedings are currently pending before the court of first instance.

COMPLAINTS

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

THE LAW

The proceedings in question began on 21 September 1987. Following the judgment of the Warsaw Regional Court of 18 September 1995, they were divided into two separate cases. They both are still pending.

According to the applicant, the length of the proceedings – a period of twelve years – is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

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

“In the determination of his civil rights and obligations ...against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal. “

(a) The Government first submit that the application, insofar as it relates to events prior to 1 May 1993, i.e. the date of recognition of the right of individual petition by Poland , is outside the competence ratione temporis of the Convention organs.

The Court recalls that Poland recognised the competence of the European Commission of Human Rights to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation 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 to the Convention, this limitation shall remain valid for the jurisdiction of the Court under that Protocol. It follows that the Court is not competent to examine complaints relating to violations of the Convention by acts, decisions or events that have occurred prior to 1 May 1993. However, in cases where it can, by reason of its competence ratione temporis , only examine part of the proceedings, it may take into account, in order to assess the length, the stage reached in the proceedings at the beginning of the period under consideration (see the Foti and Others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53). It follows that the Court is competent ratione temporis to examine the applicant's complaint insofar as it relates to the proceedings after 30 April 1993, taking into consideration the stage of the proceedings reached at this date.

(b) Under Article 35 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted.

The Government argue that the applicant has failed to exhaust all relevant domestic remedies in respect of his complaint about the length of the proceedings. They submit that the usual judicial remedies, i.e. interlocutory appeals against procedural judicial decisions, and appeals against judicial decisions on the merits, can be employed by parties to civil proceedings in this respect. The Government state that the applicant did not lodge appeals against any interlocutory decisions given in any of the cases concerned in order to complain about the conduct of the case by the courts. They further argue that after the court of first instance gives its judgments in both civil cases concerned, it will be open to the applicant to raise the complaint about the allegedly excessive length of proceedings in his appeals to the second-instance court.

The Government also contend that under Polish law there are further remedies of a non-judicial nature such as an intervention of a prosecutor or of a non-governmental organisations in the proceedings, as well as measures such as administrative hierarchical complaints about the length of civil proceedings. They submit that the applicant resorted to such remedies, by, inter alia , lodging complaints about the allegedly excessive length of the proceedings with the Ombudsman and with the President of the Regional Court , which further prolonged the proceedings.

The applicant refutes the Government's arguments, submitting that the remedies referred to by the Government cannot be regarded as being effective in respect of the length of proceedings. He submits that the extra-judicial procedures referred to by the Government consist only of complaints which do not give the person making them any right to set in motion any procedure in which the intervention of the State aimed at accelerating the proceedings is requested. According to the applicant, the Government's argument that his complaints to various authorities about the length of proceedings contributed to their prolongation is entirely groundless. In respect of the judicial procedures referred to by the Government, he stresses that he had no reasons for lodging such appeals as he did not call into question any decisions given by the domestic authorities in the proceedings. His only complaint related to the length of the proceedings, but under Polish law the possibility of lodging appeals against judicial decision is of no relevance as regards the excessive length of proceedings.

The Court recalls in this respect that, according to the case-law of the Convention organs, there is no effective remedy under Polish law to complain about the length of civil proceedings (Eur. Comm. HR, no. 24559/94, Dec. 6.9.1995, D.R. 82-B, p. 76). In the light of the submissions of the parties to the present case, the Court sees no reason for departing from established case-law. Therefore, the Court finds that the applicant did not have at his disposal an effective remedy which would have enabled him to submit the substance of his complaint under Article 6 § 1 of the Convention to the domestic authorities. Accordingly, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

(c) As regards the substance of the complaint, the Government submit that the case is complex both on the facts and the law, in particular because there were three parties to the case and because they changed their position in the course of the proceedings. They argue that the applicant and the other parties contributed to the length of the proceedings. The Government conclude that the overall length of the proceedings was reasonable and that there were no major irregularities which would be attributable to the authorities.

The applicant first submits that the case cannot be regarded as complex as there are but three parties to the case and as only two witnesses were heard. He stresses that the property concerned consists merely of a car repair garage, now in ruins as a result of the length of the proceedings. As regards the conduct of the authorities, the applicant stresses that there were long delays caused by the negligence of experts who were slow in the preparation of their reports. The applicant emphasises that the court did not take any measures in order to call to order the experts who were slow or negligent, and concludes that the responsibility for delays resulting from the provision of expert opinions rests ultimately with the State. The applicant relies in this respect on the Capuano v. Italy judgment of 25 June 1987 (Series A no. 119, p. 14, § 32). He further submits that there were long intervals between the hearings, inter alia, between 5 March 1993 and 25 November 1993,

between 10 May 1994 and 20 October 1994 and between 26 August 1996 and 13 October 1997. The applicant concludes that the proceedings have already lasted twelve years and one months which, even taking into consideration the Convention organs' limited competence ratione temporis to examine individual petitions against Poland , is far too long.

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, the Court considers 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