FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56559/00 
by Katarzyna SOBOTIAK 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 5 July 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 30 July 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Katarzyna Sobotiak, is a Polish national who was born in Dżuryn and lives in Brzeg. She is represented by Mr Jan Piątkowski, a lawyer practising in Św. Katarzyna. The respondent Government were represented by Mr Krzysztof Drzewicki, Government’s Agent and, subsequently, by Mr Jakub Wołąsiewicz, of the Ministry of the Foreign Affairs.

A.  The circumstances of the case

Civil proceedings concerning a compensation claim to local self-governmental and governmental authorities for damage to the applicant’s (and her husband’s) farm caused by a refuse tip located nearby, commenced on 11 February 1993.

On 23 June 1997 the Opole Regional Court dismissed the action.

On 17 December 1997 the Wrocław Court of Appeal dismissed the appeal of the applicant and her husband. On 29 November 1999 the Supreme Court allowed their appeal on points of law, quashed both judgments given in the proceedings and remitted the case for re-examination.

On 9 July 2001 the Opole Regional Court, having re-examined the case, granted the plaintiffs PLN 371,328 compensation from the municipality. The plaintiffs and the defendant municipality both appealed.

On 29 March 2002 the Wrocław Court of Appeal reduced the compensation. On 1 September 2002 the same court rejected the plaintiffs’ appeal on points of law on formal grounds, a decision upheld by the Supreme Court on 10 January 2003.

On 30 July 1999, when the domestic proceedings were still pending, the applicant introduced her application, complaining about the excessive length of these proceedings. The application was registered on 13 April 2000.

On 4 December 2001 the Court communicated the application, having applied Article 29 § 3 of the Convention.

The parties have not reached agreement as to friendly settlement.

By a letter of 15 October 2004 the Registry of the Court informed the applicant that it was open to her to avail herself of a domestic remedy in respect of the length of proceedings, as provided for by Article 18 of the 2004 Act.

In reply, by a letter of 11 November 2004, the applicant informed the Court that she did not intend to avail herself of this remedy.

B.  Relevant domestic law and practice

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.

COMPLAINT

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

THE LAW

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

The Government considered that the complaint was manifestly ill-founded. They have not referred to the remedies introduced by the 2004 Act.

The applicant stated explicitly that she had no wish to lodge a complaint about a breach of the right to a trial within a reasonable time under the relevant provisions.

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 applicant 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 applicant, despite having been informed by the Registrar of the possibility of lodging a complaint about the length of the proceedings under the 2004 Act, has chosen not to avail herself of this remedy.

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

For these reasons, the Court unanimously

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

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

SOBOTIAK v. POLAND DECISION


SOBOTIAK v. POLAND DECISION