Bogdan SOBCZYNSKI v Poland - 355/04 [2007] ECHR 1201 (25 September 2007)

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The European Court of Human Rights (Fourth Section), sitting on 25 September 2007 as a Chamber composed of:

Having regard to the above applications lodged on 4 December 2003 and 9 October 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case 358/04 together,

The facts of the cases, as submitted by the applicant, may be summarised as follows.

In May 1991 the applicant lodged an action with the Warsaw Regional Court, claiming compensation from his former employer for a technical invention which he had made in the 1980s.

By a letter of 12 July 1994 the president of that court acknowledged that the proceedings had already lasted too long. He informed the applicant that the conduct of the proceedings would be placed under his administrative supervision.

On 11 February 1997 the Warsaw Court of Appeal allowed the applicant's appeal and quashed the contested judgment.

By a judgment of 9 November 1998 the Warsaw Regional Court dismissed the claim, finding that it had become time-barred. The applicant appealed.

On 7 October 2002 the Supreme Court dismissed the applicant's request for the re-opening of the proceedings, finding no statutory grounds on which to grant his request.

On 17 July 2000 the applicant lodged an action against his former employer, claiming compensation for profits which, he claimed, the defendant had derived from using the applicant's invention.

By a judgment of 8 April 2001 the Warsaw Regional Court dismissed the applicant's claim, finding it time-barred. Further, the court observed that, in any event, had the action been lodged in time, it would not have been allowed, given that the applicant had failed to submit sufficient evidence to show that his technical invention had indeed been covered by intellectual property law. The applicant appealed.

By a judgment of 17 April 2003, the Warsaw Court of Appeal dismissed the appeal.

On 18 April 2003 the applicant requested the court for legal aid for the purpose of lodging a cassation appeal with the Supreme Court. The request was allowed by a decision of 16 June 2003.

By a letter of 21 June 2003 the Bar informed the applicant that it had assigned a lawyer to the case. Due to a conflict of interest, on the same day the lawyer refused to prepare a cassation appeal. The Bar Association assigned a new lawyer to represent the applicant.

By a letter of 28 July 2003 the new lawyer informed the applicant that on 23 June 2003 the Bar Association had assigned him to the case. On 8 August 2003 the judgment of the appellate court, together with its written grounds, was served on the lawyer.

On 20 August 2003 and 1 September 2003 the applicant sent detailed letters to the lawyer containing his views on the case and indicating relevant legal provisions and case law that could be relied on in the preparation of the cassation appeal.

By a faxed letter of 3 September 2003 the lawyer sent the applicant a list of points to be raised in the final text of the cassation appeal.

By a faxed letter of 4 September 2003 the applicant commented on the draft and suggested certain changes as he was of the view that the document prepared by the lawyer did not meet the necessary requirements for a cassation appeal. He also submitted his own draft, requesting the lawyer to take it into account when preparing a final version.

On 9 September 2003 the lawyer informed the court that he had not found legal grounds on which to prepare the cassation appeal.

On 11 September 2003 the applicant requested the court to assign a new lawyer to the case. He submitted that the lawyer had neither sent him a final version of the cassation appeal nor refused to prepare one.

By a letter of 15 September 2003 the court informed the applicant that the lawyer had not found legal grounds on which to prepare a cassation appeal and that the time-limit had already expired on 8 September 2003.

On 20 September 2003 the applicant requested the Bar Association to assign a new lawyer to the case.

By a letter of 26 September 2003 the Bar Association informed the applicant that the court alone was competent to request the Bar Association to assign a new lawyer to the case.

By a decision of 2 October 2003 the court dismissed the applicant's request, on the ground that the former legal-aid lawyer had not found legal grounds on which to prepare a cassation appeal.

On 4 October 2004 the applicant wrote to the local Bar Association, complaining about the lawyer's refusal to deal with his case diligently. He emphasised that he had tried to facilitate the lawyer's work by indicating in a detailed manner legal provisions and case-law which could be invoked in the cassation appeal. As a result of the lawyer's conduct he had been irrevocably deprived of the possibility of lodging a cassation appeal.

By a letter of 1 March 2004 the Warsaw Bar of Legal Counsel informed the applicant that his complaint has been examined and that the lawyer had been requested to submit his version of the facts. It was noted that their accounts differed markedly.

By a letter of 30 March 2004 the applicant reiterated his complaints and stated that the conduct of the lawyer had caused him prejudice as he had been deprived of the possibility of lodging a cassation appeal within the time-limit provided for by law.

By a letter of 5 May 2004 the Dean of the Warsaw Bar of Legal Counsel informed the applicant that the matter had been examined and that there were no grounds on which to find that the lawyer had breached his professional obligations.

3. Proceedings in which the applicant sought compensation for the excessive length of the first set of civil proceedings

On 13 January 2005 the applicant lodged with the Warsaw Court of Appeal a civil action for compensation for damage arising out of the excessive length of the first set of civil proceedings. The applicant referred to section 16 of the 2004 Act.

By a decision of 28 February 2005 the Warsaw Court of Appeal rejected his action insofar as it concerned the proceedings which had been conducted before the Regional Court and ended with the judgment of 9 November 1998. It observed that under section 5 of the 2004 Act a complaint about the excessive length of proceedings could only be lodged if the proceedings were pending. It further noted that under section 16 of the Act it was possible to claim compensation for damage caused by the excessive length of civil proceedings after they had ended.

The applicant subsequently filed a claim for compensation with the Warsaw Court of Appeal under section 16 of the 2004 Act.

By a decision of 9 March 2005 the Warsaw Court of Appeal returned the applicant's statement of claim insofar as it related to the excessive length of the proceedings before that court. It noted that under the applicable provisions of the 2004 Act the Supreme Court was competent to deal with his claim. It further noted that pursuant to a resolution of the Supreme Court of 16 November 2004, legal representation in proceedings concerning a complaint about the excessive length of proceedings was mandatory.

The applicant complains, invoking Article 6 § 1 of the Convention, that the proceedings in his case, instituted in 1991, were unfair, and that the courts wrongly applied the relevant legal provisions and reached erroneous decisions.

He further complains that the case instituted in 1991 was not heard within a reasonable time.

The applicant complains that he did not have an effective remedy to complain about the length of the proceedings in which the final judgment on the merits of the case had been given in 1999 and which the court refused to re-open in 2002. He lodged a compensation claim with the Court of Appeal pursuant to section 16 of the 2004 Act. This provision made it possible to seek compensation for damage in respect of terminated proceedings. Nevertheless, the courts treated his compensation claim under section 16 of the 2004 Act as a length complaint under section 5 of this Act, which concerned pending cases, and rejected it.

The applicant complains under Article 6 § 1 of the Convention that he had been denied an effective access to the cassation court in the second set of the civil proceedings because his legal-aid lawyer had refused to prepare and lodge a cassation appeal. He was informed of this refusal after the time-limit for doing so had expired. This had given rise to an infringement of his right to a fair hearing and resulted in his irrevocably losing an opportunity to institute cassation proceedings.

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

On 30 September 2005 a Committee of the Court constituted under Article 38 of the Convention declared application no. 355/04, lodged by the applicant on 4 December 2003, inadmissible on account of the applicant's failure to exhaust domestic remedies. However, it notes that in his letter of 14 January 2005 the applicant informed the Court that he had in fact instituted relevant proceedings to obtain redress under the 2004 Act. The Court accepts that the applicant had recourse to the compensatory remedy provided for by section 16 of the 2004 Act read together with Article 417 of the Civil Code in respect of the first set of proceedings.

The Court therefore finds that the circumstances of the present case justify restoration of the application to its list of cases in accordance with Article 37 § 2 of the Convention.

However, under Article 35 § 1 of the Convention the Court may only deal with the matter within six months from the date on which the last domestic decision was taken. In so far as the applicant complains about the alleged unfairness and the outcome of the proceedings, the Court notes that they had come to an end on 14 October 1999 when the judgment on the merits of the applicant's claim had been given. The applicant lodged his application with the Court more than six months after that date.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

In so far as the applicant complains about the excessive length of these proceedings, the Court reiterates that the six month time-limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the date of the final decision in the process of exhaustion of domestic remedies. Only remedies which are normal and effective in respect of a Convention complaint are to be taken into account in this connection and an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make applications to authorities which have no power or competence to offer effective redress for the complaint in issue under the Convention (Fernie v. the United Kingdom (dec.), no. 14881/04, decision of 5 January 2006).

In the present case, the Court notes that the impugned civil proceedings came to an end on 14 October 1999. The applicant's complaint about the length of these proceedings was subsequently rejected by the Warsaw Court of Appeal. The court held that this remedy, in so far as it could be understood that it had been lodged under section 5 of the 2004 Act, was not available in the applicant's case. Subsequently, the same court refused to entertain the applicant's claim for damages caused by the excessive length of the same set of proceedings, having regard to the fact that it lacked jurisdiction to examine it. That court further noted that the Supreme Court was competent to do so.

The Court notes that the applicant has not availed himself of this remedy by pursuing the matter before the Supreme Court.

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

Having regard to its above conclusion, the Court is of the view that this complaint must, likewise, be rejected under Article 35 §§ 1 and 4 of the Convention for non exhaustion of domestic remedies.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

Decides to adjourn the examination of the applicant's complaint, filed under application no. 358/04, concerning the refusal to lodge a cassation appeal by the legal aid lawyer;

Decides to restore to the list application no. 355/04 and declares it inadmissible.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Bogdan SOBCZYNSKI v Poland - 355/04 [2007] ECHR 1201 (25 September 2007) URL: http://www.bailii.org/eu/cases/ECHR/2007/1201.html Cite as: [2008] ECHR 1089, [2007] ECHR 1201, [2007] ECHR 5555