FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4922/02 
by Kazimierz BISZTA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 12 September 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mrs F. Elens-Passos, Deputy Section Registrar

Having regard to the above application lodged on 1 August 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kazimierz Biszta, is a Polish national who was born in 1953 and lives in Wrocław.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Civil proceedings for payment

On 12 March 1994 the applicant filed a claim for payment against a contractor before the Wrocław Regional Court, Commercial Law Division. On 21 February 1995 the case file was transferred to the competent Civil Law Division of the same court.

On 12 October 1995 the Wroclaw Regional Court dismissed the claim and the applicant lodged an appeal against this judgment. The judgment was quashed on 27 March 1996 by the Wroclaw Court of Appeal and the case remitted for re-examination.

On 24 October 1997 the Wroclaw Regional Court again disallowed the applicant’s action and his subsequent appeal was dismissed on 14 May 1998 by the Wroclaw Court of Appeal. The judgment was served on the applicant on 10 December 1998.

On 22 December 1998 the President of the Wroclaw Court of Appeal, in reply to the applicant’s hierarchical complaint, stated that the length of the proceedings was excessive.

On 11 January 1999 the applicant lodged a cassation appeal through his legal-aid lawyer appointed on 21 December 1998. He maintained, inter alia, that he had not been informed by the courts in due time about the possibility of having a legal-aid lawyer appointed to his case.

On 11 May 2001 the Supreme Court refused to entertain the cassation appeal, having found that there was no need of interpretation of provisions giving rise to serious difficulties, no flagrant breach of law and no grounds for nullity of proceedings. On 1 June 2001 this decision was served on the applicant.

On 22 October 2004 the applicant lodged a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) about excessive length of the proceedings. The complaint was rejected on 29 November 2004 by the Supreme Court on procedural grounds.

On several occasions in the course of the proceedings the applicant was exempted from the payment of court fees. On 21 December 1995 he requested an interim measure to be applied against his opponent. The court ordered him to pay a court fee on account of his request. On 8 January 1996, upon the applicant’s motion, the Wrocław Regional Court granted him an exemption.

Subsequently the applicant lodged a request for exemption from payment of the court fee for lodging an appeal against the decision refusing his request for an interim measure. On 15 February 1996, by a decision of the Wrocław Regional Court, he was exempted from payment of the court fee.

2. Civil proceedings for a disability pension

On 25 May 2000 the Social Agricultural Insurance suspended the applicant’s supplementary disability pension. The Wrocław Regional Court upheld this decision on 5 January 2001. The applicant lodged an appeal, which was dismissed on 9 October 2002 by the Wrocław Court of Appeal. On 22 October 2002 the Wrocław Court of Appeal refused to grant the applicant a legal-aid lawyer as a cassation appeal was not possible in the case. On 5 November 2002 the Wrocław Court of Appeal rejected the applicant’s appeal against this decision on procedural grounds.

3. Civil proceedings for alimony instituted by the applicant against his sons

On the applicant’s motion, on 24 April 2002 civil proceedings for alimony were instituted against his sons. On 8 October 2002 the Wrocław District Court dismissed the claim. The applicant appealed but the judgment was upheld on 29 January 2003 by the Wrocław Regional Court (decision served on the applicant on 17 March 2003). No cassation appeal against the judgment was possible.

4. Criminal proceedings against a third person for fraud

On 26 September 2001 the applicant requested criminal proceedings to be instituted against a contractor for fraud. On 2 October 2002 the Wrocław District Prosecutor discontinued the proceedings, having found no evidence that an offence had been committed. The applicant appealed and on 29 January 2003 the Wrocław District Court upheld the decision.

The applicant did not file any civil claims in the course of these proceedings.

5.  Criminal proceedings against third parties for appropriation of money

On 26 September 2001 the applicant requested the institution of criminal proceedings against third parties for appropriation of his aunt’s money. On 25 March 2002 the proceedings were discontinued for lack of evidence of a crime. The applicant appealed.

On 16 April 2002 the Radomsko District Prosecutor refused to examine his appeal as the applicant, not being a victim, did not have the right to lodge an appeal. The applicant appealed.

On 13 August 2002 the Radomsko District Prosecutor refused to examine the appeal against the decision of 16 April 2002 as being lodged outside the prescribed time limit. On 25 June 2003 the Radomsko District Court upheld this decision (it was served on the applicant on 20 August 2003).

The applicant did not file any civil claims in the course of these proceedings.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the excessive length of the civil proceedings for payment.

2. He alleges that the length of the civil proceedings for alimony also exceeded the reasonable time requirement.

3. He also complains, in substance under Article 6 § 1 of the Convention, about the unfavourable outcome of all the civil proceedings in which he was involved.

4. Under the same Article the applicant alleges that the decisions refusing to institute criminal proceedings against a third party for fraud and the criminal proceedings against third parties for appropriation of money were unfair.

5. With respect to the civil proceedings for a disability pension, the criminal proceedings for fraud and the criminal proceedings against third parties for appropriation of money, the applicant also alleges, relying on Article 1 of Protocol 1, that as a result of the outcome of the relevant proceedings his property rights were breached.

6. Under Article 6 § 1 of the Convention the applicant states that he was not informed in due time that a legal-aid lawyer could have been appointed to him.

7. He also relies on Article 14 of the Convention complaining that the courts requested him to pay court fees for lodging a request for an interim measure and an interlocutory appeal. Although he was finally exempted from payment of these fees, he should not have been requested to pay at all, since his financial situation was known to the courts.

8. Under the same Article the applicant claims that the refusal to grant him a legal-aid lawyer in the civil proceedings for a disability pension discriminated against him on the grounds of his financial situation.

THE LAW

1. The applicant complains about the excessive length of the civil proceedings for payment against a third party, invoking Article 6 § 1 to the Convention.

Article 6 § 1 reads as far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... within a reasonable time by [a] ... tribunal...” 

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant also alleges that the length of the civil proceedings for alimony was unreasonable.

The Court observes that the proceedings in question were terminated on 5 November 2002, that is less than 3 years before the entry into force of the Law of 17 June 2004. It follows that the applicant was entitled to lodge a claim under Article 417 in conjunction with Article 442 of the Civil Code.

The Court notes that the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time created a new legal situation with respect to the question of delays in proceedings. In contrast to the previous regulations, the possibility of seeking damages under Article 417 of the Civil Code for the protracted length of judicial proceedings which have terminated has an explicit legal basis.

The Court observes that the applicant has not exhausted this remedy, which the Court has already held to be effective within the meaning of Article 13 of the Convention (see Krasuski v. Poland, no. 61444/00, §§ 67 – 72).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant also complains, invoking Article 6 § 1 of the Convention, about the outcome of all the different sets of civil proceedings.

The Court reiterates that according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999- I).

In the light of all the material in its possession and insofar as the applicant’s complaints about the outcome of the relevant proceedings have been substantiated, the Court concludes that they do not disclose any appearance of a violation of the Convention. The Court finds no elements which would indicate that the national courts went beyond their proper discretion in their assessment of facts or that they reached conclusions which could be considered arbitrary.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant further complains under Article 6 § 1 of the Convention about the outcome of the criminal proceedings he instituted against third parties.

The Court reiterates the Convention does not guarantee the right to have criminal proceedings instituted against a third person or to have such a person convicted. Moreover the Convention does not confer any right to “private revenge” or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently – it must be indissociable from the victim’s exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right (cf. Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I). In the present case the applicant has not shown that any of his civil rights were asserted in the relevant proceedings.

It follows that the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

5. The applicant also complains that the outcome of the civil proceedings for a disability pension, the criminal proceedings against a third party for fraud and the criminal proceedings against third parties for appropriation of money constituted a breach of his property rights guaranteed by Article 1 of Protocol No. 1.

The Court notes that this complaint is linked to the complaints examined under Article 6 § 1 from the standpoint of a fair procedure guaranteed by that provision. Having regard to its finding under the fairness requirements of Article 6, the applicant’s complaint under Article 1 of Protocol No. 1 must be likewise dismissed, even assuming its applicability (Zanghì v. Italy, judgment of 19 February 1991, p. 47, § 23).

It follows that this part of the application must also be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6. The applicant further complains under Article 6 § 1 of the Convention about the lack of proper information on the part of the domestic courts about his right to a legal-aid lawyer.

It is to be observed that Article 6 cannot be read as imposing an obligation on domestic courts to inform the parties about their procedural rights and obligations, especially in civil proceedings. The Court also notes that the applicant participated actively in the proceedings lodging numerous successful requests and appeals. The Court finds no indication that the applicant’s position was in any way prejudiced through not having a legal-aid lawyer.

It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

7. The applicant also alleges that he was discriminated against in the civil proceedings for payment against a third party by the fact that the courts requested him to pay court fees for lodging a request for an interim measure and an interlocutory appeal.

The Court notes that the applicant was exempted from the fees, at his request, by the decisions of 8 January and 15 February 1996. Consequently, he cannot claim to be a victim of any violation of the rights guaranteed by the Convention.

It follows that this part of the application must be rejected as incompatible ratione personae pursuant to Article 35 §§ 3 and 4 of the Convention.

8. The applicant further complains under the same Article that in the civil proceedings for a disability pension he was denied a legal-aid lawyer.

The Court notes that the applicant failed to lodge an appeal against the decision of 5 November 2002, refusing to grant him a legal-aid lawyer, in compliance with the formal requirements set out in Polish law. Domestic remedies cannot be said to have been exhausted when an appeal has been rejected or not allowed because of a procedural mistake of an appellant (Jabłoński v. Poland, No. 33492/96 (dec.).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies attributable to the applicant’s procedural mistake.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning length of the civil proceedings for payment;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza 
 Deputy Registrar President

BISZTA v. POLAND DECISION


BISZTA v. POLAND DECISION