FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51635/99 
by Istvan TATRAI and Others 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 May 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 1 October 1999,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the partial decision of 19 March 2002.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are:

-      Anna Jagusiak-Tátrai, a Polish citizen, born in 1957 and resident in Warsaw,

-      her husband - István Tátrai, a Hungarian citizen, born in 1952 and resident in Warsaw,

-      Krystyna Jagusiak, a Polish citizen, born in 1930 and resident in Warsaw. She is the mother of the first applicant.

A.  The circumstances of the case

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

In 1994 the first applicant was evicted from her room in a house by H.J., who, together with the first and third applicant, co-owned the house.

On 31 January 1995 the applicants lodged a motion with the Warsaw District Court claiming restitution of de facto possession of a room in a house where they had lived.

The court held hearings on 19 May, 27 September, 1 December 1995, 27 March, 28 June 15 November 1996 and 12 March 1997.

On 15 May 1997 an on-site inspection was carried out. The applicants attended the inspection.

On 26 May 1997 the court ordered an expert opinion with respect to the state of nine locks at the property at issue. The expert opinion was submitted to the court on 25 January 1998.

On 9 March 1998 the applicants challenged the expert opinion and requested that the case be transferred to the public prosecutor's office with a view to the filing of charges against the expert who, in their view, was biased. They also requested that the civil case be stayed pending a clarification of the expert's position.

The court held hearings on 3 April, 2 September and 9 December 1998.

On 25 January 1999 the Warsaw District Court ordered the applicants to pay the fee for the expert report submitted in January 1998.

On 1 February 1999 the applicants lodged an appeal with the Warsaw Regional Court against this decision. By a decision of 1 June 1999 the Warsaw Regional Court reduced the amount to be paid for the expert's fee.

The court held hearings on 17 March and 25 June 1999.

On 15 December 1999 the expert submitted his supplementary opinion to the court.

On 8 January 2000 the applicants challenged the supplementary expert opinion. Later on, they challenged the court's decision of 10 April 2000 awarding remuneration to the expert. On 27 April 2000 the Warsaw District Court rejected their motion.

The court held hearings on 6 June, 18 June and 11 July 2001.

By a judgment of 21 November 2001 the Warsaw District Court dismissed the applicants' claim. The court stated that the testimony of eleven witnesses, the on–site inspection and the expert's opinion had proved beyond any reasonable doubt that the applicants had never lived in the room, which constituted a part of apartment no.2.

On 21 January 2002 the first applicant lodged an appeal. On 30 January 2002 the Warsaw Regional Court rejected the appeal as being lodged out of time.

On 3 February 2002 the second applicant lodged an appeal against the first-instance judgment. On 8 February 2002 the Warsaw District Court rejected the appeal as being lodged out of time.

The applicants' further appeals were dismissed by the Warsaw Regional Court on 7 October 2002.

On 1 October 1999, the date on which the application was lodged with the Court, they were pending before the Warsaw District Court.

B.  Relevant domestic law and practice1

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

Section 2 of the 2004 Act reads, in so far as relevant:

“1.  Parties to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Section 5 reads, in so far as relevant:

“1.  A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1.  The court shall dismiss a complaint which is unjustified.

2.  If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

3.  At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

4.  If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1.  Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

...”

On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings in their case had exceeded a “reasonable time” within the meaning of this provision.

They complained under Article 1 of Protocol No 1 to the Convention that as a result of the protracted proceedings they were deprived of the use of their own property.

They also complained under Articles 8 and 13 of the Convention that they had been maltreated by the courts in the course of the proceedings.

THE LAW

1. The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings in their case had exceeded a “reasonable time” within the meaning of this provision.

The Government pleaded non-exhaustion of domestic remedies in that the applicants had not made use of the remedies provided for by the 2004 Act.

The applicants did not address that issue.

Pursuant to Article 35 § 1 of the Convention:

“  The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”

The Court observes that the present application was lodged with the Court when the relevant proceedings were pending before the domestic court.

It further observes that, pursuant to section 18 of the 2004 Act, it was open to persons such as the applicants in the present case whose case was pending before the Court, to lodge within six months from 17 September 2004 a complaint about the unreasonable length of the proceedings with the relevant domestic court, provided that their application to the Court had been lodged in the course of the impugned proceedings and that it had not yet been declared admissible.

The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Michalak v. Poland (dec.), no. 24549/03; §§ 37-43).

However, the applicants, despite having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, have chosen not to avail themselves of this remedy.

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

2. The applicants complained under Article 1 of Protocol No 1 to the Convention that as a result of the protracted proceedings they were deprived of the use of their own property.

The Court recalls that the obligation to exhaust domestic remedies contained in Article 35 § 1 of the Convention also requires the individual to follow the procedural rules attached to the remedy. Failure to do so, or a mistake in so doing, will vitiate the individual's compliance with that obligation (Eur. Comm. HR, no. 21782/93, Dec. 26.6.95, D.R. 82-A, p.5).

In the present case, the Court finds that the applicants, when lodging their appeal against the judgment of the Warsaw District Court of 21 November 2001, failed to comply with the formal requirements laid down by Polish law in respect of such appeals.

If follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

3. The applicants further complained under Articles 8 and 13 of the Convention that they had been maltreated by the courts in the course of the proceedings.

However, those complaints have not been supported by any material evidence. Nor have the applicants stated any factual basis for their Convention claims.

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

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention ;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

1 For a more detailed rendition of the relevant domestic legal provisions see Charzyński v. Poland (dec.) no. 15212/03, §§ 12-23; and Michalak v. Poland (dec.) no. 24549/03, §§ 12-23, to be published in ECHR 2005-…; also available on the Court’s Internet site: echr@coe.int


TATRAI AND OTHERS v. POLAND DECISION


TATRAI AND OTHERS v. POLAND DECISION