FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60299/00 
by Edward BOGACZ 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 November 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 23 February 2000,

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, Mr Edward Bogacz, was a Polish national who was born in 1958, died in 2000, and lived in Warszawa. He is represented before the Court by his widow, Mrs M. Bogacz, and Mr Z. Cichoń, a lawyer practising in Kraków.

A. The circumstances of the case

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

On 28 June 1994 a bill of indictment in respect of the applicant, then a police officer, and four other individuals was submitted to the Warsaw District Court (sąd rejonowy). They were charged with accepting bribes.

The court placed the applicant under police supervision.

Despite the applicant’s numerous petitions the District Court did not hold any hearings.

On 11 October 2000 the applicant died.

On 12 February 2002 the Warsaw District Court issued a decision to discontinue the proceedings with respect to the applicant due to his death.

B. Relevant domestic law

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.  A party 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).”

Pursuant to section 3:

“A complaint may be lodged:

4)  in criminal proceedings – by a party or a victim even if he is not a party;

5)  in civil proceedings – by a party (strona), an intervener (interwenient uboczny) or a participant (uczestnik postępowania); ...”

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 15 provides for an additional compensatory remedy:

“1.  A party whose complaint has been allowed may seek compensation from the State Treasury ... for the damage it suffered as a result of the unreasonable length of the proceedings.”

Section 16 further specifies that:

“A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”

Section 18 lays down the following transitional rules in relation to the applications already pending before the Court:

“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.

2.  A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.

3.  The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”

COMPLAINTS

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

THE LAW

1. The applicant’s widow standing

The Court first notes that the applicant died on 11 October 2000, while the case was pending before the Court. His widow, Mrs Bogacz, requests that the proceedings be continued. She submits that the criminal charges laid against her late husband affected his reputation and due to the excessive length of the proceedings he was never given the chance to prove his alleged innocence.

The Court recalls that when an applicant dies during the proceedings, the heirs or next of a kin of the applicant may in principle pursue the application on the applicant’s behalf provided that they are shown to have a legitimate interest to justify the continuation of the examination of the case (see Krempovskij v. Lithuania (dec.), no. 37193/97, 20 April 1999; M.B. v. Poland, (dec.) no. 34091/96, 8 March 2001; Sildedzis v. Poland, no. 45214/99, 24 May 2005).

The Court considers that Mrs Bogacz has a legitimate interest to pursue the application in her late husband’s stead.

2. As to exhaustion of domestic remedies

In the present case a question arises whether the applicant’s widow should be required to exhaust the new remedy under of the 2004 Act, given that the application was introduced prior to 17 September 2004 (the date of entry into force of the Act) and while the proceedings complaint were still pending.

The Court notes that the 2004 Law contains, in its Section 18, provisions of a transitional character concerning persons who had lodged applications with the Court complaining about the length of proceedings, while those proceedings were still pending before domestic courts. It was open to them to lodge, within six months from 17 September 2004, a complaint provided for by Section 5 of that Law with a competent domestic court.

However, the Court is aware of the fact that the applicant could not avail himself of the remedies as described above. Pursuant to Article 3 of the 2004 Act, a complaint about a breach of the right to a trial within a reasonable time with regard to criminal proceedings may be lodged only by a party or a victim. The applicant died in 2000, therefore long before the entry into force of the 2004 Act.

As regards the applicant’s wife, she was never a party to the criminal proceedings against her husband, which were discontinued after his death. Therefore, under the domestic law she was not entitled to complain about the length of the proceedings in question. This conclusion, submitted by the applicant’s lawyer, has not been disputed by the Government.

In the light of the foregoing, the Court considers that the Law of 17 June 2004 cannot be regarded as an effective remedy in the applicant’s case. Consequently, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

3. Alleged violation of Article 6 § 1 of the Convention

The applicant’s complaint relates to the length of the proceedings, which began on 28 June 1994. No hearing was held until the applicant’s death on 11 October 2000. The proceedings ended on 12 February 2002 when they were discontinued due to the applicant’s death. They therefore lasted over 7 years without any action being taken by the court.

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza 
 Registrar President

BOGACZ v. POLAND DECISION


BOGACZ v. POLAND DECISION