CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                          Application No. 24559/94                        by Lechoslaw GIBAS                        against Poland         The European Commission of Human Rights (Second Chamber) sitting in private on 6 September 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 14 December 1993 by Lechoslaw Gibas against Poland and registered on 7 July 1994 under file No. 24559/94;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on 15       February 1995 and the observations in reply submitted by the       applicant on 20 April 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Polish citizen born in 1928, is a retired engineer residing in Sosnowiec.         The facts of the case, as submitted by the parties, may be summarised as follows:   Particular circumstances of the case         In 1951 the Kraków Regional Health Department seized property in Rajcza owned by the applicant's mother.   The property was subsequently used as a sanatorium for children.   Eventually the applicant's mother concluded an agreement with the sanatorium to the effect that the rent due was reduced by 50 per cent; in exchange the sanatorium undertook to make all necessary repairs at the property.   Apparently in 1958 an administrative decision allocated the property to the sanatorium.         On 8 December 1977 the applicant, apparently as heir to his mother, filed an action against the sanatorium with the Zywiec District Court requesting that repairs be made as provided for by the agreement. The case was later transmitted to the Bielsko Biala Regional Court (S*d Wojewódzki).         In October 1978 the applicant complained to the President of the Bielsko Biala Regional Court about the fact that no hearing had been held.         On 14 November 1978 the sanatorium instituted administrative proceedings requesting the expropriation of the applicant's property. As a result, in December 1978 the proceedings were suspended. Apparently, the decision to expropriate was given on a certain later date.   On 28 July 1983 the Minister of Administration quashed the expropriation.   On 20 November 1983 the applicant requested resumption of the proceedings.   On 6 February 1984 he complained to the President of the Court that no decision had been taken.   On 24 February 1984 the President informed the applicant that the decision would be taken at a hearing scheduled for 14 March 1984.         On 14 March 1984 the proceedings were resumed and on 20 March 1984 the applicant filed a memorial extending his claim.   He sought compensation for the depreciation of the property and requested that it be returned to him.   On 24 August 1984 the Court transmitted a copy of the memorial to the defendant.   On 15 October 1984 the applicant complained to the President of the Court that the Court did not act diligently and thus the proceedings did not progress.   There was no reply to this letter.         On 16 November 1984 the Bielsko Biala Regional Court decided to suspend the proceedings as the defendant had again submitted a motion for expropriation of the real property in question to the municipal administration.   The applicant filed an appeal to the Supreme Court (S*d Najwyzszy) against the decision of adjournment; he also requested the Bielsko Biala Regional Court to be exempted from paying the court fee.   On 8 December 1984 the Regional Court dismissed the latter request.   The applicant appealed against this decision to the Supreme Court.         On 20 November 1984 the applicant complained of the length of the proceedings to the Minister of Justice.   Upon the Minister's request, the President of the Court informed the applicant on 29 December 1984 that the case file would be sent to the Supreme Court to enable it to consider two appeals.         On 5 May 1985 the applicant wrote a letter to the President of the Bielsko Biala Regional Court, complaining that the Court's decisions were not duly served on the defendant, thus causing unnecessary delays.         On 10 June 1985 the President replied that the file had not yet been sent to the Supreme Court as the applicant had failed to submit the required two copies of his appeal against the decision to suspend the proceedings.         On 4 July 1985 the Supreme Court quashed the decision of 16 November 1984 to suspend the proceedings as the administrative proceedings relating to expropriation had not been instituted since. The Court found that the defendant had submitted his motion to an authority which was not competent to deal with this request.         On 10 March 1986 the applicant complained to the Minister of Justice of the length of the proceedings and of lack of diligence on the part of the Court.   On 20 June 1986, upon request of the Minister of Justice, the President of the Court informed the applicant that the decision would be given after the judge had come back from holidays, i.e. after 15 August 1986.   On 17 November 1986 the applicant complained to the Minster of Justice as there was no progress in the case since the last hearing on 19 June 1986.         On 31 December 1986 the President of the Court informed the applicant that the case file would be sent to the Supreme Court as the applicant and court experts had appealed against a decision on the expert's remuneration.         On 7 December 1987 the applicant complained to the Council of State and to the Parliament about the length of proceedings.   These complaints were transmitted to the President of the Bielsko Biala Regional Court for reply.   On 25 January 1988 the President informed the applicant that the proceedings would be terminated as soon as the Court had heard one last witness and the parties.         On 30 April 1988 the Bielsko Biala Regional Court suspended the proceedings.   On 6 October 1988 the Supreme Court quashed this decision.   The Supreme Court considered the suspension unfounded as the other proceedings referred to by the Regional Court were not related to the proceedings in question.         On 28 November 1988 the applicant complained to the Minister of Justice.   In his reply of 6 February 1989 the Minister admitted that the proceedings were too long, but refused to take any steps in order to accelerate them, as these proceedings were already under supervision of the President of the Bielsko Biala Regional Court.   On 20 February 1989 the applicant reiterated his complaint, pointing out that this supervision proved to be ineffective.         On 22 November 1989 the Bielsko Biala Regional Court pronounced a partial judgment, ordering the defendant to restore the property in question to the applicant.   The defendant appealed against this decision.   On 30 August 1990 the Supreme Court quashed the decision and referred the case back to the Bielsko Biala Regional Court.   The Supreme Court considered that the Court had failed to establish sufficiently the facts of the case, in particular as to the character and contents of the parties' rights and obligations.         On 8 January 1991 the Bielsko Biala Regional Court pronounced a partial judgment, ordering the defendant to leave the property and restore it to the applicant.         On 10 October 1992 the applicant extended his claim, requesting that the defendant reimburse half of the rent which he had retained.         On 22 November 1993 the Court dismissed the defendant's request for an expert opinion by the Kraków Polytechnic and ordered the expert O. to prepare an expert opinion.         The applicant appealed against this decision. On 9 April 1994 the Bielsko Biala Regional Court rejected the appeal as no appeal against this decision was possible.   At the same date the Court changed its decision of 22 November 1993, dismissed O. as an expert as he had failed to prepare his report and ordered the Kraków Polytechnic to prepare an expert opinion.         On 21 October 1994 this expert opinion was submitted to the Court.   The next hearing was fixed for 8 February 1995.         The proceedings relating to the claim for compensation for the depreciation of the property are still pending.   Relevant domestic law         The Judicial Organisation Act of 1985 provides that the supervision of the administrative aspects of judicial proceedings is carried out by the Minister of Justice.   The Minister entrusts these functions to the presidents of the courts.   The Rules of Procedure of the Courts, a ministerial order of 1991, state that the presidents of the courts or other persons authorised by them shall deal with complaints concerning the administrative aspects of judicial proceedings.   The Code of Administrative Procedure is applicable in such proceedings, and in particular its Chapter VIII on Complaints and Proposals.         This Chapter provides that citizens have a right to submit complaints to the state administration and municipal authorities.   In particular, they can complain about the negligence of the authorities concerned, about alleged violations of law, about legitimate interests of the parties having been breached, and about prolonged or bureaucratic conduct of administrative proceedings.   The party who submitted the complaint is informed of the manner in which the complaint is dealt with.   COMPLAINT         The applicant complains under Article 6 of the Convention that his case has not been decided within a reasonable time, as the court action was filed over sixteen years ago and there has been no progress in the proceedings since 1 May 1993, i.e. the date of recognition of the right of individual petition by Poland.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 14 December 1993 and registered on 7 July 1994.         On 12 October 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         By letter of 19 January 1994 the Government were informed that the time-limit for the submission of observations had expired on 23 December 1994.         The Government's written observations were submitted on 20 February 1995.   The applicant replied on 26 April 1995.         On 11 April 1995 the Commission granted the applicant legal aid.   THE LAW   1.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that his case has not been decided within a reasonable time, as the court action was filed over sixteen years ago and there has been no progress in the proceedings since 1 May 1993, i.e. the date of recognition of the right of individual petition by Poland.         Article 6 para. 1 (Art. 6-1) of the Convention provides, as far as relevant:         "In the determination of his civil rights and obligations...,       everyone is entitled to (a) hearing within a reasonable time..."   2.     The Government submit that the application, insofar as it relates to events prior to the date of recognition of the right of individual petition by Poland, is outside the competence ratione temporis of the Commission.         The Commission recalls that Poland recognised the competence of the Commission 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".   It follows that the Commission is not competent to examine complaints relating to violations of the Convention by acts, decisions or events that have occurred prior to this date.         The Commission further recalls that in cases where it can, by reason of its competence ratione temporis, only examine part of the proceedings, it can take into account, in order to assess the length, the stage reached in the proceedings at the beginning of the period under consideration (see No. 7984/77, Dec. 11.7.79, D.R. 16 p.92).   It follows that the Commission 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.   3.     Under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted.         The Government contend that the applicant cannot be regarded as having exhausted available domestic remedies with regard to the complaint about the length of the proceedings.   a)     The Government submit that there is no single general remedy available under Polish law to complain about the length of proceedings. However, they submit that the usual judicial remedies, i.e. appeals against procedural and substantive court decisions, could be employed in this respect. The applicant failed to show that he had exercised any judicial remedies since 1 May 1993.   Moreover, as the applicant has not availed himself of any judicial remedies, it is not clear from which date the six months' period should be calculated.   Thus, the applicant cannot be regarded as having complied with this requirement.         The applicant submits that there is no effective remedy available under Polish law to complain about the length of proceedings.   The Government have not shown that the law of civil procedure enables a party to civil proceedings to rely on the complaint about the excessive length thereof in an appeal against any decision, whether procedural or on the merits.   Even assuming that the judicial remedies referred to by the Government can be regarded as effective remedies, which is not the case,   they could not have been employed after 1 May 1993, as there has been no decision on the merits since that date.   As to three procedural decisions taken by the Court after that date, they all related to the appointment of experts and no appeal against them was possible.         The Commission recalls the Convention organs' case-law, according to which the decisive question in assessing the effectiveness of a remedy concerning a complaint about the length of proceedings is whether the applicant can raise this complaint before domestic courts by claiming specific redress; in other words, whether a remedy exists that could answer his complaints by providing a direct and speedy, and not merely indirect, protection of the rights guaranteed in Article 6 (Art. 6) of the Convention (Eur. Court H.R., Deweer judgment of 27 February 1980, Series A   no. 35, p. 16, para. 29;   No. 8890/80, Dec. 6.7.92, D.R. 29, p. 129).         The Commission considers that the judicial remedies referred to by the Government, i.e. appeals against decisions pronounced in the proceedings, cannot be regarded as being effective.   The applicant seeks a finding that there was a violation of his right under Article 6 para. 1 (Art. 6-1) of the Convention to a hearing within a reasonable time.   The judicial remedies referred to by the Government do not constitute a remedy for the breach complained of.   Their purpose is to have the decisions taken in the course of the proceedings set aside or amended.   The Government has not adduced any case-law or unanimous opinion of legal scholars to establish that the complaint of the length of proceedings can be relied on as an independent ground for appeal in civil proceedings.   b)     The Government further submit that an administrative hierarchical complaint about the length of proceedings may be lodged with the president of the competent court, or with the president of the superior court and with the Minister of Justice.    On numerous occasions the applicant submitted hierarchical complaints to various authorities. As a result, the proceedings were made subject to the supervision of the President of the Bielsko Biala Regional Court.         The applicant submits that during the period prior to 1 May 1993, the date on which the recognition by Poland of the right of individual petition became effective, he tried all conceivable remedies. He complained to the President of the Bielsko Biala Regional Court, to the Parliament, to the former Council of State and to the Minister of Justice.   Subsequently, on 25 May 1993, he again complained to the Minister of Justice.   In his reply of 26 July 1993 the Minister advised that no further action would be taken.   The supervision of the President of the Bielsko Biala Regional Court brought about no improvement in the conduct of the proceedings.   Thus, the applicant tried all available administrative remedies, without any of them being effective.   He submits that the Government have not provided details of the measures taken by the authorities which had resulted in an alleged acceleration of the proceedings.         The Commission recalls the Convention organs' case-law, according to which a hierarchical appeal which does not give the person making it a personal right to the exercise by the State of its supervisory powers cannot be regarded as an effective remedy for the purposes of Article 26 (Art. 26) of the Convention (No. 7464/76, Dec. 5.12.78., D.R. 14, p. 51).   The Commission has examined the nature of a hierarchical appeal under Polish law.   It notes that, according to the relevant provisions of the Polish Code of Administrative Procedure, a hierarchical appeal constitutes a complaint to a superior authority for the purpose of criticising any shortcomings in the administrative proceedings, either of a procedural nature or related to the merits of the case.   These provisions also apply to the administrative aspects of the procedure   before the courts.         Such a complaint is in fact an information submitted to the supervisory organ with the request to make use of its powers if it sees fit to do so.   If proceedings are taken upon this request, they take place exclusively between the supervisory organ and the official concerned, and the applicant will not be a party to these proceedings. Under the Code of Administrative Procedure the applicant is only entitled to obtain information about the way in which the supervisory organ has dealt with his hierarchical appeal.   As a result, a hierarchical appeal does not give the person employing it a personal right to the exercise by the State of its supervisory powers, and such an appeal does not constitute an effective remedy within the meaning of Article 26 (Art. 26) of the Convention.   c)     The Commission finds that it has not been established that the applicant had any effective remedy at his disposal which would have enabled him to submit his complaints under Article 6 para. 1 (Art. 6-1) of the Convention to the domestic authorities and would have contributed to a significant reduction of the length of the proceedings.         Accordingly, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.   4.     As regards the merits of the complaint, the Government contend that the case was very complex.   Thus expert opinions were necessary to assess the extent of the deterioration of the buildings.   In November 1993 the Court ordered an expert opinion to be prepared and in April 1994 it ordered a second one as the applicant questioned the correctness of the first one.   The proceedings were suspended from 1978 to 1983 and from 1984 to 1987 as other administrative proceedings had to be terminated.   The applicant's conduct also contributed to the length of the proceedings, as he appealed against many decisions. In particular, he filed an appeal against the partial judgment of 1989. Furthermore, the applicant filed objections against the expert opinion of the Kraków Polytechnic.   The report of expert O. was also questioned by the parties.   The authorities took many measures which accelerated the conduct of the proceedings.   The applicant's claims were for the most part satisfied in the judgment of 1991.   In May 1983 the judge rapporteur had to be replaced, as the previous judge had ceased to work in the Bielsko Biala Regional Court.         The applicant submits that the case is not as complex as the Government contend.   It is in part the length of the proceedings in itself which made the case more complex than it originally was since, as a result thereof, new elements emerged which had to be considered. At the present stage of the proceedings it is necessary to establish what repairs should be made to the building.   The Court did not order an expert opinion concerning this issue until 1989, and then only at the applicant's insistence.   The Court has not yet taken any steps which might have led to a decision on the remaining claim, including the taking of relevant evidence, relating to the rent retained by the defendant.   The applicant denies that his claim was satisfied for the most part by the restitution of property by virtue of the 1991 judgment, as the property had deteriorated and cannot be put to any use since then.   The change of judge rapporteur in May 1993 also contributed to the further prolongation of the proceedings.         The applicant contests the Government's statement that he appealed against the partial judgment of 1989, as it was in fact the defendant who did so.   The applicant did not, as the Government contend, question the expert opinion of the Kraków Polytechnic but only requested that it be supplemented.   Neither did he question the report of the expert O. as the latter did not in the end prepare any report. The applicant had to change his claim, for the last time on 10 October 1992, mostly on account of the lapse of time since the proceedings had been instituted and because new damage done to the property had come to light.   Regard must be had to the fact that many applicable laws changed since the beginning of the proceedings, which affected the relationship between the applicant and the defendant.   The applicant submits that the overall length of the proceedings exceeds any notion of reasonableness.         Having examined the application, the Commission finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                       (H. DANELIUS)