RACISZ proti Polsku

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22254/02
by Adam RACISZ
against Poland

The European Court of Human Rights (Fourth Section), sitting on 17 October 2006 as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 17 July 2001,

Having regard to the decision of 10 November 2005 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, Mr Adam Racisz, was a Polish national who was born in 1950 and lived in Warszawa. He died on 17 September 2004. His application is pursued by his daughter –Ms Monika Racisz.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 4 May 1993 the applicant lodged an action with the Warsaw District Court for division of matrimonial property.

The court held 22 hearings.

Numerous hearings were adjourned during the proceedings. The reasons for the adjournments were: necessity of taking evidence from the case file of the applicant’s divorce proceedings, the request of the applicant’s former wife (“the other party”) to adjourn a hearing, the other party’s absence as she had not been summoned properly, the applicant’s absence, the other party’s request to appoint her a legal-aid lawyer, the other party’s request to appoint her a new legal-aid lawyer, ordering an expert opinion, the other party’s lawyer’s illness, the judge’s illness, the fact that the other party’s attorney had not been properly summoned and the other party’s illness.

On 7 July 2003 the parties concluded a friendly settlement.

On 14 July 2003 the court discontinued the proceedings as a friendly settlement had been concluded.

B. Relevant domestic law and practice

1. Domestic law concerning the excessive length of proceedings [1]

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. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.

On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Law 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 but only when they had not yet been remedied.

2. Article 922 §1 of the Civil Code

Article 922 §1 of the Civil Code deals with transmission of rights and obligations of a deceased person:

“Pecuniary rights and obligations of the deceased are transmitted at the time of his/her death to another person or persons in conformity with the regulations of this chapter.”

THE COMPLAINT

The applicant complained under Article 6 §1 of the Convention about the excessive length of the proceedings. Article 6 § 1 provides in its relevant part as follows:

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

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 4 May 1993 and ended on 14 July 2003 with the Warsaw District Court decision. Therefore they lasted ten years and two months in the first instance.

The Government noted that according to Article 922 §1 of the Civil Code the applicant’s daughter, being his heir, had been entitled to lodge a complaint under the 2004 Act (see domestic law referred to above).

The applicant’s daughter contested the Government’s argument, stating that as she had not belonged to any category of persons entitled to lodge a complaint set out in section 3 of the 2004 Act, she could not resort to any remedy provided for by the 2004 Act.

The Court accepts the Government’s argument and notes that according to Article 922 §1 of the Civil Code the applicant’s daughter had standing under the 2004 Act. The proceedings instituted under the 2004 Act engaged the deceased’s pecuniary right (right to a payment). As this right is transmittable mortis causa, there are no reasons to refuse the standing of the applicant’s heir (his daughter) in these proceedings.

The Government submitted that the applicant’s daughter had two of the remedies provided for under the 2004 Act at her disposal. They pointed out that the applicant’s daughter had not lodged a complaint under section 18 of the 2004 Act. The Government noted that the application had been lodged with the European Court of Human Rights on 17 July 2001 while the domestic proceedings had been pending and the Court had not adopted a decision as to the admissibility and merits at that time. Thus, this remedy was available in the present case.

The Court accepts the Government’s argument and notes that the requirements of section 18 of the 2004 Act were satisfied in this case. Thus the applicant’s daughter should have resorted to this remedy.

The Government further submitted that after the entry into force of the 2004 Act the applicant’s daughter could have resorted to the remedy provided for by Article 417 of the Civil Code (compensation claim in tort) read together with section16 of the 2004 Act.

The Court also accepts the Government’s argument that the applicant had the possibility of making use of the remedy provided for by Article 417 of the Civil Code read together with section 16 of the 2004 Act. The Court notes that the proceedings came to an end on 14 July 2003. Thus, on 17 September 2004, when the 2004 Act came into force, the three-year prescription period provided for by Article 417 of the Civil Code had not yet elapsed. Therefore the applicant also had the possibility to avail herself of the remedy provided for by Article 417 of the Civil Code read together with section 16 of the 2004 Act (see Ratajczyk v. Poland; (dec), 11215/02, 31 May 2005; Barszcz v. Poland, no. 71152/01, 30 May 2006).

Having regard to the choice of remedies the applicant’s daughter had, the Court considers that she has not exhausted domestic remedies within the meaning of Article 35 §1 of the Convention. The application must therefore be declared inadmissible according to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

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

Declares the application inadmissible.

T.L. Early Nicolas Bratza
Registrar President

[1] For a more detailed presentation of the relevant domestic law see Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005 Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005