CEDH · CASELAW;REPORTS;ENG — 22 octobre 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                           SECOND CHAMBER                      Application No. 27916/95                          Janusz Podbielski                               against                               Poland                      REPORT OF THE COMMISSION                    (adopted on 22 October 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-29) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-28). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (para. 29). . . . . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 30-49) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 30). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 31). . . . . . . . . . . . . . . . . . . . .6        C.    Article 6 para. 1 of the Convention           (paras. 32-48). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 49). . . . . . . . . . . . . . . . . . . . .8   DISSENTING OPINION OF Mr E.A. ALKEMA JOINED BY Mr F. MARTINEZ. . . . . . . . . . . . . . . . . . .9   APPENDIX : DECISION OF THE COMMISSION AS TO           THE ADMISSIBILITY OF THE APPLICATION   . . . . . . 10   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant   is a Polish citizen, born in 1949 and resident in Swidnica, Poland.   3.    The application is directed against Poland.   The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.   4.    The case concerns the length of the civil proceedings instituted by the applicant on 25 May 1992 which are still pending.   The applicant invokes Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 31 March 1995 and registered on 20 July 1995.   6.    On 18 October 1995 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 22 February 1996, after an extension of the time-limit fixed for this purpose.   The applicant replied on 9 April 1996.   8.    On 15 April 1997 the Commission declared the application admissible under Article 6 para. 1 of the Convention.   9.    The text of the Commission's decision on admissibility was sent to the parties on 22 April 1997 and they were invited to submit such further information or observations on the merits as they wished.   The parties did not avail themselves of this opportunity.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. G.H. THUNE, President           MM.   J.-C. GEUS                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN                E. BIELIUNAS                E.A. ALKEMA                A. ARABADJIEV   12.   The text of this Report was adopted on 22 October 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   16.   On 25 May 1992 the applicant sued   the municipality of Swidnica before the Walbrzych Regional Court (S*d Wojewódzki) seeking payment for construction works (which the applicant's company had carried out for the municipality on the basis of a contract dated 18 February 1991) and for pecuniary penalties resulting from the defendant's non- compliance with the terms of the contract.   On 7 September 1992 the Walbrzych Regional Court pronounced a partial judgment in which it declared   certain clauses of the contract between the parties null   and void as being in breach of civil law.   Upon the applicant's appeal, on 6 November 1992, the Wroclaw Court of Appeal (S*d Apelacyjny) quashed this judgment and ordered the case to be reconsidered.   Subsequently, on 1 February 1993 the Walbrzych Regional Court allowed the applicant's claim for payment and declared null and void another clause of the contract, pertaining to the penalties for delay in compliance with the contract.   On 27 April 1993 the Wroclaw Court of Appeal dismissed both the applicant's and the defendant's appeals.   17.   On 25 June 1993 the Ombudsman (Rzecznik Praw Obywatelskich) filed an extraordinary appeal on the applicant's behalf, submitting that the judgment of 27 April 1993 had been in flagrant breach of the substantive civil law and had unduly restricted the parties' freedom of contract.   18.   On 7 October 1993 the Supreme Court (S*d Najwyzszy) dismissed the extraordinary appeal considering that, contrary to previous legal opinion developed against the background of a planned economy, the Civil Code in fact allowed the parties to include clauses providing for pecuniary penalties for delay in compliance with pecuniary contractual obligations.   However, the Court found that in the present case the lower court was justified in declaring the relevant clauses null and void as these penalties were excessive and disproportionate to the value of the contract.   19.   Upon the applicant's request, on 28 January 1994 the Supreme Court re-opened the proceedings relating to the extraordinary appeal, amended its judgment of 7 October 1993 and partly quashed both impugned judgments, ordering that all the applicant's claims, save for the payment granted the applicant by the judgment of the Walbrzych District Court of 1 February 1993, be reconsidered by the court of first instance.   The Court stated, inter alia, that the previous judgments "had amounted to a violation of substantive civil law" ("zostaly wydane z obraz* prawa materialnego").   20.   Moreover, the Supreme Court expressed its opinion as to the legal assessment of the issue of the pecuniary penalties for the defendant's non-compliance with the terms of the contract and as to the issue of possible compensation for damage sustained by the applicant's company as a result of the above-mentioned non-compliance.   In particular, it explained why and how the relevant provisions of civil substantive law should be applied in the case.   The Supreme Court also gave guidelines as to the further course of the proceedings, holding that the court of first instance should establish the value of the claims.   21.   In the meantime, between 6 June and 20 July 1994, the Walbrzych Regional Court and the Wroclaw Court of Appeal examined the applicant's requests for an exemption from the court fees.   22.   In a judgment of 20 February 1995 the Walbrzych Regional Court held that the defendant was obliged to pay pecuniary penalties to the applicant, but reduced their amount to old PLZ 1,844,300,000 as it considered that the penalties fixed in the contract were excessive. The Court dismissed the applicant's claim for compensation of damage caused by the defendant's delay in payment as it considered that the applicant had not shown that his company had suffered more extensive damage than would be covered by the pecuniary penalties to be paid by the defendant.   23.   On 30 March 1995 the applicant appealed against the above-mentioned judgment, claiming that the court had failed to make certain findings of fact of relevance for the outcome of the case and had committed procedural errors.   24.   In the meantime, between 12 April and 25 May 1996 the courts of first and second instance examined the applicant's request for an exemption from the court fees due for lodging the appeal.   25.   On 31 August 1995 the Wroclaw Court of Appeal quashed the judgment of 20 February 1995 insofar as it had dismissed the applicant's claim for compensation of damage resulting from the defendant's delay in payment, ordering that this claim be reconsidered since the court of first instance had clearly failed to comply with the Supreme's Court legal opinion and guidelines expressed in respect of this matter.   Moreover, the Walbrzych Regional Court had wrongly formulated the questions to the accounting expert in that it had requested him to establish whether there was a causal link between the defendant's delay in payment and the damage sustained by the applicant company, which was a matter for the court to establish.   26.   On 23 October 1996 the Walbrzych Regional Court dismissed the applicant's claim for compensation of damage resulting from the defendant's delay in payment.   On 29 November 1996 the applicant filed an appeal against this judgment and requested the court to grant him an exemption from court fees.   27.   On 3 January 1997 the Walbrzych Regional Court exempted the applicant's company from all fees but the first new PLZ 20,000 and dismissed the remainder of the applicant's request.   The applicant appealed against this decision.   On 13 February 1997 the Wroclaw Court of Appeal dismissed his appeal, considering that the applicant's company did have sufficient financial means to pay the court fee.   28.   On 9 March 1997 the applicant again requested the Wroclaw Regional Court to grant him a further exemption from the court fees due for lodging the appeal, arguing that in the course of the prolonged litigation the financial situation of his company had changed considerably for the worse.   On 14 April 1997 the court exempted him from the court fees exceeding new PLZ 10,000.   On 9 June 1997, upon the applicant's appeal, the Wroclaw Court of Appeal upheld the decision of the court of first instance.   The proceedings as to the merits are still pending.   B.    Relevant domestic law   29.   At the material time Section 389 of the Code of Civil Procedure applied to cases in which a judgment was quashed by a higher court. This provision (in the version applicable at the material time) provided, insofar as relevant:        "Both an opinion as to the legal assessment of a case and      guidelines as to the further course of the proceedings given by      [any] appellate court are binding on [any] court which may deal      with such a case at first instance as well on [any] appellate      court which may subsequently reconsider that case ..."        When the Supreme Court has expressed its opinion on legal matters arising in a given case and has given guidelines as to how that case should proceed, both this opinion and these guidelines bind the relevant courts during the entire proceedings.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   30.   The Commission has declared admissible the applicant's complaint that the length of proceedings in his case exceeded "a reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   B.    Point at issue   31.   Accordingly, the issue to be determined iswhether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.    Article 6 para. 1 (Art. 6-1) of the Convention   32.   The applicant complains under Article 6 (Art. 6) of the Convention about the length of the civil proceedings instituted by him.   33.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, states:        "In the determination of his civil rights and obligations ...      everyone is entitled to a ... hearing within a reasonable time      by a ... tribunal established by law. ..."   34.   The applicant submits that the period of the proceedings in his case was unreasonably long.   He stresses that the case was not complex as it concerned only a determination of the obligations of the parties under an ordinary civil contract which had been clearly drafted.   Also, only one expert's report was submitted and considered in the course of the proceedings.   The report contained forty-four obvious arithmetical errors.   He asserts that he did not request the adjournment of the hearings.   35.   The applicant stresses that the striking feature of the case is that the judgments on the merits were repeatedly quashed due to the flagrant breaches of domestic law committed by the respective courts. This transpires from the judgments of the appellate courts.   It was mostly those errors of law which contributed to the length of the proceedings as, following the successive quashing of various judgments, his case had to be reconsidered on several occasions.   36.   The respondent Government maintain that the case was especially complex due to the legal issues considered by the courts.   In particular, the contract between the parties was unclear as regards the parties' rights and obligations in respect of pecuniary penalties for delay in compliance with the contractual obligations.   The complexity of the case is shown by the fact that it was examined on four occasions by the courts of first instance.   The various courts dealing with the case gave eight judgments in all, including two of the Supreme Court and three of the Wroclaw Court of Appeal.   Moreover, evidence needed to be taken from several experts.   37.   The Government submit that the applicant's conduct considerably contributed to the prolongation of the proceedings.   In particular, after the Supreme Court had handed down its judgment of 7 October 1993, he submitted a new claim for compensation of damage resulting from the defendant's non-compliance with the terms of the contract.   In addition, on several occasions, he requested the court to adjourn hearings, usually for one month, so as to allow a friendly settlement to be negotiated, which finally was not concluded.   As the applicant's lawyer was ill on several occasions, the service of certain decisions was delayed.   The applicant repeatedly appealed against the courts' decisions relating to his requests for an exemption from court fees. Finally, he also challenged the experts' report with the result that the court had to communicate his objections to the expert for reply.   38.   The Government contend that the prolongation of the proceedings cannot be attributed to the conduct of the courts which were particularly diligent in the handling of the case.   Nor can it be said that the proceedings lasted an unreasonably long time.   39.   The proceedings commenced on 25 May 1992, when the applicant lodged his civil claim with the Walbrzych Regional Court (see above, para. 16), and are still pending.   Their overall length has, therefore, exceeded five years and five months.   The Commission has already found in its decision on admissibility that, by reason of its competence ratione temporis, it can examine the applicant's complaint only insofar as it relates to the proceedings after 30 April 1993 (i.e. the date on which Poland's declaration acknowledging the right of individual petition took effect), taking into consideration the stage of the proceedings reached at this date.   Accordingly, the length of the proceedings to be examined under Article 6 para. 1 (Art. 6-1) of the Convention currently exceeds four years and five months.   40.   The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and having regard to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and the importance of what is at stake for the applicant in the litigation (see, inter alia, Eur. Court HR, Duclos v. France judgment of 17 December 1996, Reports of Judgments and Decisions ... para. 55).   41.   In the present case the courts concerned were called upon to interpret a civil contract relating to construction works, and to assess claims resulting from non-compliance with the terms of such a contract.   In the Commission's opinion the case was not, therefore, particularly complex.   42.   Moreover, already in its judgment of 28 January 1994, the Supreme Court expressed its opinion as to the legal assessment of the issue of the pecuniary penalties for the defendant's non-compliance with the terms of contract and as to the issue of possible compensation for damage sustained by the applicant's company   as a result of the above-mentioned non-compliance.   It explained why and how the relevant provisions of the national substantive civil law should be applied in the case.   The Supreme Court also gave guidelines as to the further course of the proceedings, holding that the court of first instance should establish the value of the claims (see above, paras. 19-20).   43.   According to Section 389 of the Polish Code of Civil Procedure, the Supreme Court's opinion on legal assessment, and its guidelines, were binding on the courts which were competent to deal with the case in the subsequent proceedings (see above, para. 29).   Thus, the judgment of 28 January 1994 in fact resolved principal legal issues of the case.   What remained to be examined was the actual assessment of the pecuniary penalties and damages resulting from non-compliance with the contract in the light of expert evidence, which was taken by the courts on one occasion only.   44.   As regards the conduct of the applicant, it is true that he appealed against the judgments on the merits and against the courts' decisions relating to the exemption from court fees.   However, he did not submit any other procedural requests that would have unduly prolonged the proceedings.   The examination of the applicant's requests for exemption from court fees lasted from 6 June to 20 July 1994, from 12 April to 25 May 1996, and from 29 November 1996 to 13 February 1997 and, finally, from 9 March to 9 June 1997 (see above, paras. 21, 24, 26-28 respectively).   It cannot, therefore, be said that the applicant substantially delayed the proceedings.   45.   As regards the conduct of the authorities, the court of first instance, i.e. the Walbrzych Regional Court, rendered two judgments in the applicant's case.   The first judgment of 20 February 1995 was partly quashed by the Wroclaw Court of Appeal on 31 August 1995, in view of the fact that the lower court had failed to comply with the binding legal opinion and guidelines expressed by the Supreme Court on 28 January 1994 (see above, paras. 22 and 25).   46.   On 23 October 1996, i.e. after a lapse of approximately thirty-three months from the date on which the Supreme Court had given its decision, the Walbrzych Regional Court rendered the second judgment dismissing the applicant's claim.   The proceedings are currently pending since the applicant appealed against this judgment on 29 November 1996 (see above, para. 26).   47.   Thus, the authorities, in particular the Walbrzych Regional Court, by their failure to follow the binding instructions of the Supreme Court, substantially contributed to the length of the proceedings in question.   48.   Accordingly, having regard to the delays for which the authorities were responsible, the Commission finds that the length of the proceedings at issue exceeded a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        CONCLUSION   49.   The Commission concludes, by 13 votes to 2, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber                DISSENTING OPINION OF Mr E.A. ALKEMA                    JOINED BY Mr F. MARTINEZ        I disagree with the majority's decision on two related grounds: firstly, on the issue of the length of the proceedings as such and, secondly, on the reasons given for finding that the reasonable time has been exceeded in this case.        The proceedings at issue are still pending.   As of today they have lasted five years and five months or, if calculated from the date on which Poland's declaration acknowledging the right of individual petition took effect, almost four years and six months.   During that period eight complete or partial court decisions were taken, not counting some further decisions on court fees.   No substantial lapses of time without any judicial activity occurred during that period. Therefore, I consider that there has been no undue delay in the instant case.        In this respect the majority's decision seems not to be in line with the Commission's case-law, e.g. Nori (No. 19978/92 Dec. 1.12.94 - proceedings concerning an injunction to pay, which lasted eight years and three months before three instances).        Further I object to what is said in para. 47:        "Thus, the authorities, in particular the Walbrzych Regional      Court, by their failure to follow the binding instructions of the      Supreme Court, substantially contributed to the length of the      proceedings in question".        This is a somewhat cavalier paraphrase of the account in para. 25 of the facts:        "On 31 August 1995 the Wroclaw Court of Appeal quashed the      judgment ... since the court of first instance had clearly failed      to comply with the Supreme Court's legal opinion and guidelines      expressed in respect of this matter".        I particularly take exception to the idea of lower courts being under an obligation to "follow binding instructions" from a higher or supreme court. Of course, there are instances where the lower courts are faced with direct orders, e.g. to reopen proceedings or hear evidence from witnesses, with which they have to comply.   However, as far as a "legal opinion" or "guidelines expressed" by higher courts are concerned the courts have other competencies and other corresponding responsibilities.   Responsibilities which are inherent in judicial independence; responsibilities which may also vary with the specific competencies attributed to the courts in domestic law.        It is in principle not for the Commission to pass judgment on the manner in which these competencies are exercised.   Within a judicial system with second and even third instances, it is first and foremost a matter for those higher courts to assess the lower courts' exercise of their competencies.        Admittedly, such a system may be time-consuming but it also offers most valuable guarantees.   If civil parties, nevertheless, prefer speed to those guarantees they have the option of arbitration.