FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30215/96 by Tadeusz JANUSZEWSKI and SÅ‚awomir WICHERKIEWICZ against Poland

The European Court of Human Rights ( Fourth Section ) sitting on 27 October 1999 as a Chamber composed of

Mr M. Pellonpää, President , Mr A. Pastor Ridruejo,

Mr G. Ress, Mr L. Caflisch, 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 25 October 1995 by Tadeusz Januszewski And SÅ‚awomir Wicherkiewicz against Poland and registered on 16 February 1996 under file no. 30215/96;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Polish national s. T he first applicant was born in 1942, the second applicant was born in 1950. They both live in Warsaw .

They are represented before the Court by Mr Ireneusz Zieliński , a lawyer practising in Warsaw .

A. Particular circumstances of the case

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

The applicants are two businessmen running a non-commercial partnership ( spółka cywilna ) . On an unspecified date in 1993 a trustee of an estate of a certain insolvent company sued the applicants in the Rzeszów Regional Court (Commercial Division) (Sąd Wojewódzki - Wydział Gospodarczy ) for payment of a debt. On a further unspecified date the applicants filed a counter-claim.

On 9 June 1994 the court held a hearing. During the hearing the applicants requested the court to fix a new hearing date for the end of the fruit season. The court granted their request and listed the next hearing for 8 September 1994, which was duly recorded in the minutes. Subsequently, during the same hearing, the applicants also requested the court to synchronise this hearing with a hearing before the same court, which was to be held in another case to which the applicants were parties.

On 8 September 1994 the applicants were not present at the hearing as they considered that a summons should be served on them in order to confirm the hearing date. On 22 September 1994 the court gave judgment ordering the applicants to pay the sum sought by the plaintiff. It rejected their counter-claim.

A copy of the judgment was not served on the applicants. They became aware of the judgment and its content as late as 11 October 1994. On this date they filed an appeal and a request to grant them retrospective leave to appeal out of time. They submitted that, to their understanding, on 9 June 1994 the court had not definitely fixed a new hearing date and therefore they had waited for a formal notification. The applicants also requested the court to rectify the minutes of the hearing of 9 June 1994 by inserting the following paragraph: “The court revises its order concerning the date of the next hearing and it will fix the date ex officio , synchronising it with a hearing in a case no. ... . The court shall notify the parties of that date.”

On 29 November 1994 the Rzeszów Regional Court dismissed the applicants' request for leave to appeal out of time. The court found that the minutes of the hearing had unambiguously indicated that the date of the next hearing had been fixed for 8 September 1994 and the court had correctly considered that the applicants had been duly notified of the hearing. The court also took into account the fact that the plaintiff had had no doubts as to the date of the hearing in question. Moreover, the applicants had been represented by a lawyer and any potential misunderstanding could have not been considered as a plausible justification for their failure to appeal within the prescribed time-limit. The applicants appealed against this decision.

On 28 April 1995 the Rzeszów Court of Appeal (Sąd Apelacyjny ) upheld the contested decision. The court observed that a party to the proceedings was expected to act with all due diligence and if the applicants had had any doubts as to the definite hearing date, they could easily have verified them.

On 28 February 1995 a single judge, sitting as the Rzeszów Regional Court dismissed the applicants' request to rectify the minutes of the hearing. The court based its decision on the same grounds as those contained in the decision dismissing the applicants' request for leave to appeal out of time. On 10 April 1995 the applicants' further appeal was dismissed by the same court, sitting as a panel of three judges.

Subsequently, the applicants unsuccessfully requested the Minister of Justice for leave to file an extraordinary appeal. In letters of 19 January 1995 and of 17 March 1995 the Minister informed them that he would not examine the requests as both the proceedings concerning their request for leave to appeal out of time and the proceedings relating to their request for rectification of the minutes were still pending. In a letter of 31 October 1995 the Minister informed them that he could not rule on their request for leave to file an extraordinary appeal in respect of the judgment of 22 September 1994 because such a leave could not be granted in a commercial case after the expiry of six months from the date on which the judgment had become final. In respect of the second decision, the Minister found that there was no basis for granting the applicants leave to file an extraordinary appeal.

B. Relevant domestic law and practice

Section 149 § 2 of the Code of Civil Procedure reads, insofar as relevant:

“The parties and the [other] persons concerned shall be notified of a hearing date; such notification is effected either by service of a summons or [in case of an adjournment of a hearing] by fixing a date during the hearing. A summons shall always be served on the party which has been absent at the hearing ... .”

Section 168 § 1 of the Code of Civil Procedure reads, insofar as relevant:

“If the party to proceedings fails to comply with the prescribed time-limit without its fault, the court shall, on that party's request, grant leave to appeal out of time ... .”

COMPLAINTS

1. The applicants complain that the court's failure to serve on them a summons notifying them of the date of the hearing of 8 September 1994 deprived them of access to a court. They invoke Article 6 § 1 of the Convention.

2. The applicants further complain under Article 13 of the Convention that length of the proceedings concerning their request for leave to appeal out of time and the proceedings concerning their request for rectification of the minutes of the hearing deprived them of the right to be granted leave to file an extraordinary appeal to the Supreme Court.

THE LAW

1. The applicants complain that the court's failure to serve on them a summons notifying them of the date of the hearing of 8 September 1994 deprived them of access to a court. They invoke Article 6 § 1 of the Convention.

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

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

The Court recalls that while Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules concerning the national courts' internal procedure, which is primarily a matter for regulation by national law.

The Court further recalls that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see the Edificaciones March Gallego S.A. v. Spain judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 290, § 33).

Furthermore, the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person's access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see the Edificaciones March Gallego S.A. judgment, cited above, § 34).

In the present case the applicants argue that the court's failure to notify them of the hearing date deprived them of the effective access to a court.

The Court firstly observes that, pursuant to Section 149 § 2 of the Code of Civil Procedure, the Polish courts are under no obligation to serve a summons on the party which was present at the previous hearing in his case and was whereby aware of the date.

In the Court's opinion, the fact that the applicants misunderstood their situation and expected that the trial court would notify them of the hearing date, does not amount to an infringement of their “right to a court” guaranteed by Article 6 § 1 of the Convention. In particular, regard must be had to the fact that the proceedings concerned two business entities and that the applicants were represented by a lawyer. Moreover, a period of three months elapsed between the two hearings in question. During this time the applicants could have verified the hearing date in the court's registry.

In view of the above considerations, the Court concludes that the applicants' absence at the hearing and all the consequences which their absence entailed on their procedural rights were due to their failure to display diligence, a diligence which should normally be expected from a party to civil proceedings.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicants further complain under Article 13 of the Convention that the length of the proceedings concerning their request for leave to appeal out of time and the proceedings concerning their request for rectification of the minutes of the hearing deprived them of the right to be granted leave to file an extraordinary appeal to the Supreme Court.

The Court, noting that the applicants' complaint also concerns the question of lack of access to the Supreme Court, which by its nature falls within the scope of Article 6 § 1 of the Convention cited above, has examined their complaint under Article 6 § 1 and Article 13 of the Convention read together.

Article 13 of the Convention provides:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Court recalls that Article 6 § 1 of the Convention embodies the "right to a court", of which the right to access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see the Aydin v. Turkey judgment of 25 September 1997, Reports of Judgments and Decisions 1997-VI, p. 1894, § 99).

On the other hand, Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see the Aydin judgment, cited above).

In this context the Court further recalls that neither Article 6 § 1 nor Article 13 of the Convention do, however, guarantee the right to appeal or to a second level of jurisdiction, the latter being recognised under Article 2 of Protocol No. 7 only in respect of persons convicted of a criminal offence. They do not, furthermore, require that there should be several levels of jurisdiction (see Eur. Comm. HR, no. 28863/95, Dec. 1.7.1998, unpublished).

In the present case the applicants, who were entitled to lodge an appeal against the judgment given in their case by the court of first instance and who did, however, fail to do so due to a procedural mistake on their part, complain about the fact that their extraordinary appeal to the Supreme Court was not allowed and, as a consequence, not examined by that court.

However, as the Court has already observed, since no right to appeal or to several levels of jurisdiction is guaranteed under the Convention, a party to court proceedings cannot claim a Convention right to extraordinary appellate remedies in the highest domestic court against the final judgment given in his case, in particular in addition to the normal appeals already available before the ordinary courts.

It follows that the remainder of the application is inadmissible as being incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President