CEDH · CASELAW;REPORTS;ENG — 4 septembre 1996

.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. 24559/94                           Lechoslaw GIBAS                               against                               Poland                        REPORT OF THE COMMISSION                    (adopted on 4 September 1996)                            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. 16-40) . . . . . . . . . . . . . . . . . . . . .3     III. OPINION OF THE COMMISSION      (paras. 41-56) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 41). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 42). . . . . . . . . . . . . . . . . . . . .6        C.    As regards Article 6 para. 1 of the Convention           (paras. 43-55). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 56). . . . . . . . . . . . . . . . . . . . .8     APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .9 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 1928 and residing in Sosnowiec.   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 civil proceedings.   The applicant invokes Article 6 of the Convention.     B.    The proceedings   5.    The application was introduced on 14 December 1993 and registered on 7 July 1994.   6.    On 12 October 1994 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 20 February 1995 two months after the fixed time-limit.   On 28 February 1995 the Commission (Second Chamber) decided to accept the Government's observations submitted after the time-limit.   The applicant replied on 26 April 1995.   On 11 April 1995 the Commission (Second Chamber) granted the applicant legal aid.   8.    On 6 September 1995 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 20 September 1995 and they were invited to submit such further information or observations on the merits as they wished.   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:        Ms.        G.H. THUNE, President      MM.        J.-C. GEUS                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                L. LOUCAIDES                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN                E. BIELIUNAS   12.   The text of this Report was adopted on 4 September 1996 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   16.   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.   17.   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).   18.   In October 1978 the applicant complained to the President of the Bielsko Biala Regional Court about the fact that no hearing had been held.   19.   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.   20.   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.   21.   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.   22.   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.   23.   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.   24.   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.   25.   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.   26.   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.   27.   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 experts' remuneration.   28.   On 7 December 1987 the applicant complained to the Council of State and to the Parliament about the length of the 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.   29.   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.   30.   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.   31.   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.   32.   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.   33.   On 10 October 1992 the applicant extended his claim, requesting that the defendant reimburse half of the rent which he had retained. In May 1993 the judge rapporteur was changed.   34.   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.   35.   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.   36.   On 21 October 1994 this expert opinion was submitted to the Court.   The next hearing was fixed for 8 February 1995.   37.   On 22 June 1995 the Bielsko Biala Regional Court pronounced a judgment awarding compensation to the applicant.   Both parties to the proceedings filed an appeal against this judgment with the Katowice Court of Appeal (S*d Apelacyjny).   On 13 July 1995 this judgment was served on the applicant.   38.   On 20 July 1995 the applicant requested that the judgment be completed by a decision as to certain claims on which the court had allegedly failed to rule.   39.   On 5 September 1995 the Bielsko Biala Regional Court rejected the applicant's request considering that the applicant had failed to comply with the seven days' time-limit for submission of a request to have the judgment completed and to invoke grounds which would justify this delay.   On 19 September 1995 the applicant appealed against this decision.   On 22 February 1996 the Katowice Court of Appeal dismissed this appeal.   40.   The hearing on the merits before the Katowice Court of Appeal was fixed for 22 April 1996, but eventually was not held.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   41.   The Commission has declared admissible the applicant's complaint relating to the length of the civil proceedings.     B.    Point at issue   42.   The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.     C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   43.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:        "1.   In the determination of his civil rights and obligations...      everyone is entitled to a ... hearing within a reasonable time      by (a) tribunal ..."   44.   The applicant submits that it was partly the length of the proceedings in itself which made the case more complex than it had originally been since, as a result thereof, new elements emerged which had to be considered.   The Court did not order an expert opinion until 1989, and then only at the applicant's insistence.   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.   A final decision concerning the claims for compensation for damage to the property has not been pronounced yet.   The change of judge rapporteur in May 1993 also contributed to the further prolongation of the proceedings.   45.   The applicant submits that he had to change and extend his claim in the course of the proceedings, 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.   No measures taken by the authorities as a result of his complaints about the length of the proceedings proved effective.   The applicant submits that the overall length of the proceedings exceeds any notion of reasonableness.   46.   The Government submit that the case was very complex.   Thus expert opinions were necessary to assess the extent of the deterioration of the buildings.   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.   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 1993 the judge rapporteur had to be replaced, as the previous judge had ceased to work in the Bielsko Biala Regional Court.   47.   The Commission observes that the proceedings complained of began on 8 December 1977 when the applicant lodged his action with the Zywiec District Court.   The proceedings are currently pending before the Katowice Court of Appeal.   48.   The Commission recalls that the period to be considered started on 1 May 1993, the date on which the recognition by Poland of the right of individual petition took effect.   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).   Therefore, the proceedings have lasted about eighteen years and nine months to date, out of which the period to which the Commission's examination relates is three years and four months.   49.   The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the 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 (see Eur. Court H.R., Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   50.   The Commission considers that the case, which was originally not particularly complex, has grown to be so in part as a result of the lapse of time as new circumstances affecting the applicant's claim came to light.   Moreover, the only issue which remains to be determined since the partial judgment of 8 January 1991 is the sum of compensation due to the applicant for deterioration of the property which cannot be regarded as being a particularly complex issue.   51.   As regards the conduct of the parties, the Commission finds that the applicant's conduct is not in itself sufficient to explain the length of the proceedings.   52.   As regards the conduct of the authorities the Commission notes that in May 1993 the judge rapporteur was changed.   There was a long interval of ten months between hearings before the Bielsko Biala Regional Court (9 April 1994 - 8 February 1995).   Furthermore, on 22 June 1995 this Court pronounced the first instance judgment in these proceedings and on 20 July 1995 the applicant filed a request that the judgment be completed.   On 5 September 1995 the Bielsko Biala Regional Court rejected this request, considering that it had been filed after the expiry of the time-limit.   It was on 22 February 1996 that the Katowice Court of Appeal upheld this rejection.   There was a period of inactivity of five months between these decisions.   On the whole, it took eight months (22 June 1995 - 22 February 1996) to decide on this procedural issue.   The next hearing on the merits before the Katowice Court of Appeal scheduled for 22 April 1996 was not held.   Thus there was no progress as regards the merits of the case since 22 June 1995. The case is still pending before this Court.   53.   The Commission further notes that in November 1993 the Court appointed O. as an expert.   Eventually the Court found it necessary to revoke him as he had failed to submit his expert opinion and appointed specialists from Kraków Polytechnic.   The Commission recalls that a court shall ensure that an expert appointed by the court performs his task expeditiously (Eur. Court H.R., Capuano v. Italy judgment of 25 June 1987, Series A no. 119, p. 13, para. 30).   54.   In view of these circumstances the Commission considers that in the period since 1 May 1993 it cannot be said that the authorities pursued the case with the diligence required for a good administration of justice.   They are therefore mainly responsible for the length of the proceedings.   55.   In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.     CONCLUSION   56.   The Commission concludes, unanimously, 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