FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 13401/03
by Jerzy PARDUS
against Poland
The European Court of Human Rights (Fourth Section), sitting on 9 September 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 26 March 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jerzy Pardus, is a Polish national who was born in 1945 and lives in Warsaw. He is represented before the Court by Mr B. Pardus, a lawyer practising in Warsaw.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. First set of proceedings for payment
On 10 June 1994 the applicant lodged a claim for payment against a certain company with the Warsaw District Court.
On 8 May 1995 the Warsaw District Court granted the claim and gave an order of payment.
On an unspecified date the defendant appealed.
On 26 June 1996 the court stayed the proceedings.
Following a request by the applicant, on 29 January 1996 the court resumed the proceedings.
Subsequently the case lay dormant until 30 September 2002.
On 30 September 2002 the applicant requested the court to reconstruct the case file. He had become aware in the course of another set of proceedings against the member of the management board of the defendant company that the case file was incomplete.
On 25 May 2004, after the reconstruction proceedings, the Warsaw District Court held that the reconstruction of the file was not possible and decided to continue the main proceedings for payment on the basis of the case file as it stood.
On 22 November 2005 the Warsaw District Court rejected the defendant’s appeal lodged against the order of payment. This decision became final on 6 January 2005.
2. The applicant’s complaint under the 2004 Act in relation to the above proceedings
On 22 November 2005 the applicant lodged a complaint with the Warsaw Regional Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a ruling declaring that the length of the proceedings before the Warsaw District Court had been excessive and just satisfaction.
On 26 January 2005 the Warsaw Regional Court gave a decision in which it acknowledged the excessive length of the proceedings (5 years and 8 months of inactivity on the part of the Warsaw District Court) but refused to grant the applicant any just satisfaction, holding that he had failed to reason his request.
3. Criminal proceedings against the applicant (complaint lodged with the Court on 22 September 2003)
On 17 September 1992 the applicant was arrested and, on 18 September 1992, detained on suspicion of having illegally distributed alcohol and handled stolen goods.
On 6 November 1992 the applicant was released from detention.
On the same day the applicant was placed under police supervision. He had to report to the police station twice a week and could not leave the city without the prosecutor’s permission. This preventive measure was quashed by the Warsaw Regional Court in a decision of 1998, six years after its imposition.
On 27 June 1994 the applicant was indicted.
On 18 September 2000 the Warsaw District Court gave judgment, acquitted the applicant of two counts of the offences with which he had been charged, found him guilty of handling stolen goods, and sentenced him to a fine.
On 4 June 2001 the applicant’s lawyer appealed against that judgment.
On 30 August 2002 the Warsaw Regional Court quashed the first-instance judgment and remitted the case to the Prosecutor to complete the investigation.
On 28 January 2003 the Warsaw Regional Prosecutor stayed the investigation.
On 19 February 2003 the applicant’s lawyer appealed against that decision.
On 7 April 2003 the Warsaw Appellate Prosecutor dismissed the appeal.
On 14 February 2005 the Warsaw Regional Prosecutor discontinued the investigation.
4. Second set of proceedings for payment (complaint lodged with the Court on 5 May 2003)
On 9 August 1994 the applicant lodged a civil claim for payment with the Kraków District Court.
On 22 July 1996 the Kraków District Court gave an order of payment and granted the claim. The order of payment was subsequently quashed by a judgment of 13 December 2002.
On 16 January 2003 the applicant lodged an appeal with the Kraków Regional Court.
On 27 October 2007 the applicant’s lawyer informed the Court that the proceedings had been terminated, without, however, specifying the date of a final decision.
The applicant has failed to make use of the domestic remedies against the excessive length of judicial proceedings.
5. Enforcement proceedings no. 1 (complaint lodged with the Court on 6 June 2003)
On 6 January 1993 the Warsaw District Court granted the applicant’s claim for payment and, subsequently, on the basis of that judgment, the applicant instituted enforcement proceedings.
On 16 September 2004 the Bailiff of the Warsaw District Court (Komornik Sądowy przy Sadzie Rejonowym) discontinued the proceedings.
The applicant has failed to make use of the domestic remedies against the excessive length of judicial proceedings.
6. Enforcement proceedings no. 2 (complaint lodged with the Court on 17 December 2005)
The applicant was a party to enforcement proceedings before the Bailiff of the Kraków District Court.
On 9 November 2000 the bailiff stayed the enforcement proceedings due to the death of the debtor.
On 9 March 2005 the applicant lodged a complaint against the excessive length of the proceedings with the Kraków Regional Court. He relied on Section 5 of the 2004 Act.
On 14 September 2005 the Kraków Regional Court gave a decision and rejected the applicant’s complaint on account of a procedural mistake. Relying on the relevant provisions of the Code of Civil Procedure, the court found that, due to the inactivity of the creditor, who should have requested the appointment of a curator for the unknown heirs, the enforcement proceedings had terminated ipso iure, one year after the proceedings were stayed, that is, on 9 November 2001.
The applicant has failed to make use of the domestic remedies against the excessive length of judicial proceedings.
7. Enforcement proceedings no. 3 and a complaint against the inactivity of the bailiff (complaint lodged with the Court on 4 November 2003)
On 24 July 2000 the applicant requested the Szczecin Bailiff to institute enforcement proceedings. The proceedings are apparently still pending.
On 13 October 2003 the applicant complained to the Szczecin Regional Court about inactivity on the part of the bailiff.
On 14 November 2004 the applicant lodged two complaints with the Szczecin Regional Court. He sought a declaration that the enforcement proceedings and the proceedings instituted by his complaint about inactivity had been excessively long and just-satisfaction in the amount of 10,000 Polish zlotys (PLN).
On 2 May 2005 the Szczecin Regional Court gave a decision, acknowledged that the enforcement proceedings had indeed been lengthy and awarded the applicant PLN 4,000. At the same time the court dismissed the applicant’s complaint as regards the length of the proceedings instituted by his inactivity complaint, finding that their length could not be attributed to the court because the case file had been transferred to the Court of Appeal for another set of proceedings.
8. Proceedings for compensation against the Bailiff of the Szczecin District Court (complaint lodged with the Court on 4 November 2003)
On 9 July 2001 the applicant lodged a claim for compensation against the Bailiff of the Szczecin District Court with the Szczecin Regional Court.
On 3 October 2003 the Szczecin Regional Court gave judgment and dismissed the applicant’s claim.
On 15 November 2003 the applicant appealed.
On 13 May 2004 the Poznan Court of Appeal dismissed the appeal.
On 12 August 2004 the applicant lodged a cassation appeal.
On 3 March 2005 the Supreme Court dismissed the cassation appeal.
On 15 November 2004 the applicant complained about the excessive length of the proceedings to the Poznań Court of Appeal.
On 18 January 2005 the Poznań Court of Appeal acknowledged the excessive length of the impugned proceedings and granted the applicant just satisfaction in the amount of PLN 3,000.
The Court notes that at the time when the compensation was granted the proceedings had been pending for four years and 6 months at two levels of jurisdiction.
9. Third set of proceedings for payment against K.F and I.M. (complaint application lodged with the Court on 4 November 2003)
On 7 November 2004 the applicant also lodged a complaint about the excessive length of another set of proceedings for payment against a certain K.F and a certain I.M. which he had instituted before the Szczecin District Court. However, the applicant failed to provide the Court with any information as regards the outcome of those proceedings. Neither did he submit any relevant documents.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the unreasonable length of all the sets of proceedings in which he was involved.
In relation to the criminal proceedings against him, he alleges a violation of Article 6 § 2 of the Convention, Article 5 § 1 of the Convention and Article 2 of Protocol No 4 in that the preventive measure imposed , that is to say, police supervision which lasted for almost 6 years, amounted to deprivation of his liberty and freedom of movement.
THE LAW
The applicant complains about the length of all the sets of proceedings in which he was involved under Article 6 § 1 of the Convention, which, in its relevant part, provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ...”
As regards the first set of the proceedings for payment, in which the domestic court acknowledged their excessive length but refused to grant any just satisfaction, the Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary to give notice of this part of the application to the respondent Government.
As regards the civil proceedings for payment before the Kraków Court and two sets of enforcement proceedings in Warsaw and in Kraków, the Court finds that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.
The Court notes that the impugned proceedings came to an end after 16 January 2003, on 16 September 2004 and on 9 November 2001 respectively, that is, less than three years before 17 September 2004, the date on which the 2004 Act came into force.
It further observes that, pursuant to section 16 of the 2004 Act, it was open to persons such as the applicant to seek compensation in tort from the State Treasury, relying on Article 417 of the Civil Code for damage caused by the allegedly excessive length of proceedings in which a judicial decision on the merits of the case had already been given (see Turzyński v. Poland (dec.), no. 10453/03, 22 November 2005).
The Court has already examined whether a civil action for damages brought under section 16 of the 2004 Act read together with Article 417 of the Civil Code was an effective remedy in respect of the length of judicial proceedings. It held, having regard to the characteristics of these remedies and notwithstanding the absence of established judicial practice in respect of such claims, that these remedies were effective in respect of persons who, on 17 September 2004, when the 2004 Law entered into force, could still lodge such an action with the competent domestic court (see Krasuski v. Poland, judgment of 14 June 2005, §§ 69-72).
It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
As regards the two sets of the proceedings in which domestic courts granted just satisfaction, the Court notes that the amounts granted correspond to approximately 31%, in the enforcement proceedings in Szczecin, and to approximately 60%, in the proceedings against the Szczecin Bailiff, of what the Court would be likely to have awarded to the applicant at the relevant time and in accordance with its practice. In this connection and on the basis established in the Court’s case-law, the Court considers that the applicant can no longer claim to be a victim of a violation of his Convention rights (Cocchiarella v. Italy [GC], no. 64886/01, §§ 69‑107, ECHR 2006-..., and Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006 - ...).
It follows that this part of the application is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
The applicant also alleges a violation of Article 6 § 2 of the Convention, which reads as follows:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The applicant submitted that the domestic authorities considered him guilty notwithstanding the fact that he had been acquitted by the court of first instance. The Court, having examined all the material submitted to it, finds nothing in the case file that would justify the applicant’s allegations as regards the alleged breach of Article 6 § 2 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
As regards the applicant’s complaint under Article 5 § 1 of the Convention and Article 2 of Protocol No 4, the Court notes that the police supervision of the applicant terminated in 1998 and that his application was lodged with the Court on 22 September 2003.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
As regards the proceedings for payment before the Szczecin District Court, the applicant, despite having been requested to do so, has failed to submit any information or documents to support his allegations.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the excessive length of the first set of civil proceedings for payment and the excessive length of criminal proceedings against the applicant;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy