CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 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. 26622/95                       by Marek ZMALINSKI                       against Poland           The European Commission of Human Rights (Second Chamber) sitting in private on 29 November 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 31 March 1994 by Marek ZMALINSKI against Poland and registered on 3 March 1995 under file No. 26622/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         On 21 November 1991 the applicant's employer, a Cooperative U., transferred him to another post.         On 11 December 1991 the applicant filed an action with the Warsaw-Praga District Court (S*d Rejonowy), requesting reassignment to his previous post.         On 28 April 1992 the Cooperative's Board took a resolution to divest the applicant of his membership in the Cooperative and dismissed him from work.   On 5 May 1995 he filed an action with the Warsaw Regional Court (S*d Wojewódzki), asking for the resolution of the Cooperative concerning his membership and his dismissal to be declared null and void and for reinstatement.   On 14 May 1992 he submitted an alternative claim for compensation.         On 16 June 1992 the applicant filed an action with the Warsaw- Praga District Court for rectification of his references.   Apparently this claim was later joined to the case relating to the applicant's transfer to another post and compensation therefor.   On 1 October 1992 a hearing was held in these proceedings.         On 5 November 1992 the Warsaw Regional Court dismissed the applicant's action for reinstatement and compensation as it found that the dismissal was justified.         On 11 February 1993 the Warsaw Court of Appeal (S*d Apelacyjny) quashed this judgment and ordered that the case be reconsidered, finding that the Regional Court had been superficial in examining the case and had failed to cite relevant evidence to substantiate its findings.         On 16 June 1993 the Warsaw Regional Court dismissed the applicant's action for reinstatement and compensation.         On 19 August 1993 the Warsaw-Praga District Court suspended the proceedings concerning the applicant's transfer to another post, and his claim for compensation and rectification of the references, considering that the outcome of the proceedings relating to the applicant's dismissal would be decisive for the further conduct of this case.   In a letter of the same day the applicant requested that the minutes of the hearing of 19 August 1993 be supplemented and rectified. He also complained that a request to take evidence which he had made on 25 March 1993 had not been dealt with.         On 22 September 1993 the applicant appealed against the decision to suspend the proceedings.         On 11 October 1993 the applicant concluded a settlement with the Cooperative before the Warsaw-Praga District Court relating to the rectification of his references.         On 21 October 1993 the Warsaw Regional Court dismissed the applicant's appeal against the decision to suspend the proceedings.         In a letter of 6 November 1993 the Helsinki Foundation requested the President of the Warsaw Court of Appeal to investigate the reasons for delay in dealing with the applicant's case before the Warsaw Regional Court.   It indicated that the applicant had not received the one-paged reasons for the judgment of 16 June 1993 until ten weeks after the date on which the judgment was pronounced and that it had taken the Court two months to determine whether the applicant had filed an appeal within the time-limit.         In a letter of 21 December 1993 the President of the Court of Appeal informed the Helsinki Foundation that the complaint about the length of proceedings was well-founded and that necessary steps would be taken to expedite the proceedings.         On 17 March 1994 the Warsaw Court of Appeal upheld the judgment of the Regional Court of 16 June 1993.         On 16 April 1994 the Warsaw-Praga District Court resumed the proceedings concerning the applicant's transfer and compensation claim, which had been suspended since 21 October 1993.         On 8 August 1994 the Warsaw-Praga District Court dismissed the applicant's action in the proceedings concerning the applicant's transfer and compensation claim.         The applicant filed an appeal.   On 24 November 1994 the Court pronounced a judgment supplementing the judgment of 8 August 1994 and dismissing the applicant's application for the negative assessment of his work to be deleted from his personal file held by his former employer.   The applicant filed a further appeal against this judgment. The proceedings are pending before the Warsaw Regional Court.   COMPLAINTS         The applicant complains under Article 6 of the Convention that he was denied access to court as he had been pressurized to conclude a partial settlement before the Warsaw-Praga District Court.   He submits that the Warsaw-Praga District Court was not impartial in examining the case concerning his application for the Cooperative's resolution on the dismissal to be declared null and void, as the decision of the Warsaw Regional Court of 21 October 1993 to suspend the proceedings concerning his transfer and compensation claim determined the outcome of these proceedings.   He complains that the courts lacked impartiality.         The applicant further submits that the conduct of his case by the courts amounts to a violation of Articles 8, 10 and 11 of the Convention.   In particular, his right to freedom of association was breached in that the courts accepted his being penalised by the Cooperative for criticising its governing bodies.         The applicant finally complains under Article 6 para. 1 of the Convention of the length of both sets of civil proceedings.   THE LAW   1.     Insofar as the applicant complains under Article 6 (Art. 6) of the Convention that he was denied access to court as he had been pressurized to conclude a partial settlement before the Warsaw-Praga District Court, the Commission observes that the applicant has not substantiated this complaint.   There are no elements in the case-file which would indicate that either the other party or the court exerted any pressure on him.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant submits that the Warsaw-Praga District Court was not impartial in examininig the case concerning his application for the Cooperative's resolution on the dismissal to be declared null and void, as the decision of the Warsaw Regional Court of 21 October 1993 to suspend the proceedings concerning his transfer and compensation claim determined the outcome of these proceedings.   He complains that the courts   lacked impartiality.         The Commission recalls the Convention organs' case law, according to which the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21, para. 46).         In the present case, the Commission notes that the applicant has failed to indicate how the decision to suspend the proceedings concerning his transfer and his compensation claim could have determined the outcome of the other proceedings.   On the contrary, the Court considered that the outcome of the proceedings relating to the applicant's dismissal would be decisive for the further conduct of the case concerning the transfer and compensation.   The Commission has found no element in support of the allegation that the decision to suspend the proceedings, which originated from the factual background closely intertwined with the other case, affected the impartiality of the courts.   The applicant mainly refers to the outcome of the proceedings concerning his dismissal and does not adduce ascertainable facts which would be susceptible of throwing any doubt on the impartiality of the judges concerned.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant further submits that the conduct of his case by the courts amounts to a violation of Articles 8, 10 and 11 (Art. 8, 10, 11) of the Convention.   In particular, his right to freedom of association was breached in that the courts accepted his being penalised by the Cooperative for criticising its governing bodies.         The Commission considers that this complaint raises no issue under the Articles of the Convention invoked by the applicant.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the proceedings concerning the application for the Cooperative's resolution on his dismissal to be declared null and void.         The Commission recalls that Poland recognised the Commission's competence 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". Where the Commission, by reason of its competence ratione temporis, can 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 complaints insofar as they relate to the events after 30 April 1993, taking into consideration the stage of the proceedings reached at that date.         The Commission observes that the proceedings were instituted by the applicant on 5 May 1992 and terminated on 17 March 1994.   Therefore they lasted one year and ten months, of which ten months after the date of recognition of the right of individual petition by Poland.         The Commission further recalls the Convention organs' case-law, according to which the reasonableness of the delay in civil proceedings must be considered with regard to the circumstances of the particular case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (cf. Eur. Court H.R., H. v. UK judgment of 8 July 1987, Series A no. 120, p. 59, para. 71).         In the present case the Commission observes that the case was complex as it involved interrelated issues of law of association and labour law.   It is true that it took the Court ten weeks to provide the applicant with written grounds of the judgment of first instance and then two months to establish whether the appeal had been filed in time. However, the overall length of the proceedings does not appear excessive under Article 6 para. 1 (Art. 6-1) of the Convention, in particular having regard to the period which falls outside the Commission's competence ratione temporis.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.     The applicant finally complains about the length of the proceedings concerning his transfer to another post and his compensation claim, instituted in December 1991 and still pending before the court of second instance.   The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government.         For these reasons, the Commission, unanimously,         DECIDES TO ADJOURN   the examination of the applicant's complaint       concerning the length of the proceedings relating to the       applicant's transfer and his compensation claim,         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber     President of the Second Chamber          (M.-T. SCHOEPFER)                     (H. DANELIUS)