OPALSKA proti Polsku

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23491/02
by Hanna OPALSKA
against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 September 2006 as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 9 June 2002,

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 Hanna Opalska, is a Polish national who was born in 1953 and lives in Warsaw. 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 3 September 1993 a certain A.K. lodged with the Warsaw District Court (Sąd Rejonowy) a civil action against the applicant. The plaintiff claimed compensation for an accident which occurred on the applicant’s estate.

On 20 December 1993 the court held the first hearing. Subsequently, hearings were held on 28 October 1994 and 10 February 1995. Between 20 October 1995 and 10 January 1997 five hearings were held.

The next hearing was held on 19 January 1998. Subsequently, up until 16 March 2001, the court held fourteen hearings.

On 30 March 2001 the Warsaw District Court gave judgment in which it dismissed the action. The plaintiff appealed.

On 17 December 2001 the Warsaw Regional Court (Sąd Okręgowy) held a hearing. On 20 December 2001 it gave a judgment. The appellate court dismissed the plaintiff’s appeal.

B. Relevant domestic law

Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.

In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:

“1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.”

Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:

“1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.”

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 more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 34‑46, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§ 12‑23, ECHR 2005‑....

COMPLAINT

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

THE LAW

The applicant complained that the civil proceedings in which she was involved had not been concluded within a reasonable time, in breach of Article 6 § 1 of the Convention.

However, 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 notes that the impugned proceedings came to an end on 20 December 2001, i.e. less than three years before 17 September 2004, the date on which the 2004 Act had come into force.

It further observes that, pursuant to section 16 of the 2004 Act, it was open to persons such as the applicant to seek compensation in tort from the State Treasury, relying on Article 417 of the Civil Code for damage caused by the allegedly excessive length of proceedings in which a judicial decision on the merits of the case had already been given (see Turzyński v. Poland (dec.), no. 10453/03, 22 November 2005).

The Court has already examined whether a civil action for damages brought under section 16 of the 2004 Act read together with Article 417 of the Civil Code was an effective remedy in respect of the length of judicial proceedings. It held, having regard to the characteristics of these remedies and notwithstanding the absence of established judicial practice in respect of such claims, that these remedies were effective in respect of persons who on 17 September 2004, when the 2004 Law entered into force, could still lodge such an action with the competent domestic court (see Krasuski v. Poland, judgment of 14 June 2005, §§ 69‑72).

However, the applicant, despite having been informed by the Registry of the possibility of lodging a complaint about the length of the proceedings under section 16 of the 2004 Act read together with Article 417 of the Civil Code, 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.

T.L. Early Nicolas Bratza
Registrar President