FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21398/02 by Daniela WÓJCIK and o thers against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 December 2007 as a Chamber composed of:

Nicolas Bratza , President, Giovanni Bonello , Kristaq Traja , Lech Garlicki , Ljiljana Mijović , Ján Šikuta , P ä ivi Hirvelä , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 16 May 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Daniela Wó jcik (“the first applic ant”), Mr J. Rzewuski, Mr T. Prokopski, Mr M. Taraszkiewicz, Ms D. Rubinkowska, Ms I. Paklerska, Ms J. Mielnik-Korzeniowska and Ms E. Paklerska-Przybo ś (“the other applicants”) are Polish nationals who were born in 1950 , 1958, 1924, 1928, 1941, 1929, 1930 and1952 respectively and live in Szczecin (D.W.), Gdynia (E.P.) and Koszalin . The Polish Government (“the Government”) were r epresented 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.

1. Main proceedings

Between 1979 and 1982 the Koszalin municipality singled out six apartments in a collective building in Koszalin and sold them to the applicants (or their legal predecessors). Each contract of sale included a transfer of ownership to an apartment and to a 1/6 share in the “common parts of the building” (staircase, the attic, etc.) and to the land under the building. The building also consisted of two commercial premises, apparently later let out by the municipality who remained the administrator of the building.

On 14 January 1992 the Koszalin Municipality lodged an action against the applicants (or their legal predecessors in some cases) for an adjustment of the land and mortgage register to the actual legal status of the building. The plaintiff submitted that the shares in the common parts of the building had been calculated erroneously and in breach of the law; the share in common parts, connected with the title to an apartment, should have corresponded to the proportion of a given apartment ’ s surface area in the whole building. In particular, the division of shares had not taken into considerations the municipality ’ s ownership in the commercial premises. The municipality claimed that the contracts at issue had been null and void in this respect.

Hearings were held on 12 August 1992, 9 September 1992, 2 June 1993 and 16 June 1993.

On 25 January 1994 an expert opinion was submitted to the court.

On 8 March 1994 the Koszalin Regional Court allowed the claim. On 8 June 1994 the applicants appealed to the Gdansk Court of Appeal.

On 9 November 1995 and on 22 November 1995 appeal hearings were held. The Court of Appeal decided to turn to the Supreme Court for an interpretation of two legal issues.

On 28 February 1996 the Supreme Court adopted a resolution constituting guidelines to be followed by the courts examining the case. It confirmed that the commercial premises could not have been considered as the “common parts of the building” to which the applicants shared the title.

On 12 June 1996 the Gdansk Court of Appeal quashed the judgment of the Regional Court and remitted the case.

On 4 April 1997 the court stayed the proceedings at the request of the plaintiff.

On 30 October 2000 the Koszalin Regional Court resumed the proceedings.

On 30 January 2003 an expert opinion was submitted. On 8 May 2003 an expert submitted a supplementary opinion.

On 29 November 2003 another expert opinion was submitted to the court.

On 22 December 2003 the Koszalin Regional Court delivered a judgment allowing the plaintiff ’ s claim and correcting each co-owner ’ s proportion of his/her share in the common parts of the building. On 17 February 2004 the applicants lodged an appeal.

On 9 December 2005 the Szczecin Court of Appeal dismissed the appeal.

On 26 January 2006 the judgment together with its written reasons was served on the applicants. The judgment is final.

2. Proceedings under the 2004 Act

On 3 March 2005 the first applicant lodged a complaint under 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”). She formulated her complaint as “concerning the excessive length of the proceedings” which had lasted since 1992 and sought just satisfaction. She provided the register number and the substance of the impugned proceedings.

On 31 March 2005 the Szczecin Court of Appeal rejected the first applicant ’ s complaint without examining its merits. The court first observed that the first applicant ’ s complaint had not contained a request to find that there had been an unreasonable delay in the impugned proceedings. The court also considered that the applicant had failed to indicate circumstances that would justify her request, as required by section 6 of the 2004 Act. The court found that the mere fact, relied on by the applicant, that the proceedings had lasted since 1992 could not suffice to find that the proceedings had lasted longer that was necessary. Therefore, according to section 9 of the Act, the complaint had to be rejected without requiring the plaintiff to complete it.

B. Rele vant domestic law and practice

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court ’ s decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and judgment s in the case s of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V and Wende and Kukówka v. Poland , no. 56026/00, § 38-42 , 10 May 2007 .

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention about the length of proceedings. They also complained under Article 1 of Protocol No. 1 about infringement of their right to the peaceful enjoyment of their possessions.

THE LAW

1. The applicant s complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

T he proceedings commenced on 14 January 1992 . However, the period to be taken int o consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. The proceedings ended on 9 December 2005. T hus the period under the Court ’ s scrutiny lasted twelve years and seven months for two level s of jurisdiction, the case having been remitted on one occasion to the first-instance court.

The Government submitted that the applicant s had not exhausted domestic remedies available to them under Polish law, as required by Article 35 § 1 of the Convention

T he Court notes that the first applicant ’ s length complaint was rejected on the grounds that it had not contained a request to find that there had been an unreasonable delay in the impugned proceedings and that the applicant had failed to indicate circumstances that would justify her request.

The Court has already examined situations where the applicants ’ length complaint s were rejected on formal grounds . The Court considered that when the relevant law provide d individuals with a possibility of lodging a complaint without being represented by a lawyer, the domestic court should advise applicants on how to remedy the formal d eficiencies of their complaints (see Wende and Kukó wka v. Poland , no. 56026/00, § 52-56, 10 May 2007 ; Wawrzynowicz v. Poland , no. 7 3192/01, § 52-56, 17 July 2007) .

However, the Court observes that the circumstances of the present case differ from those cited above in that the impugned proceedings continued for several months after the delivery of the decision rejecting the applicant ’ s length complaint . Therefore, the applicant could have remedied the formal deficiencies of her complaint by lodging a fresh one and following the court ’ s instructions, without prejudice to the running of the relevant time-limits laid down in domestic law.

Consequently, the Court is not satisfied that the applicant did everything that could reasonably be expected of her to exhaust this remedy.

The Court considers tha t the applicant has not exhausted domestic remedies with in the meaning of Article 35 § 1 of the Conven tion.

The Government further submitted that only the first applicant had lodged a complaint under the 2004 Act and she had acted solely on her own behalf. Consequently, all other applicants had failed to avail themselves of any remedies available to them under Polish law.

The applicants did not comment.

The Court considers tha t the other applicants have not exhausted domestic remedies with in the meaning of Article 35 § 1 of the Conven tion.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicants further complained about infringement of their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Insofar as it could be understood, they complained that the domestic courts did not grant them shares in the ownership of the commercial premises situated in the building.

The Court notes at the outset that Article 1 of Protocol No. 1 applies only to a person ’ s existing possessions ( Marckx v. Belgium , judgment of 13 June 1979, Series A no. 31, p. 23, § 50; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007 -... ). It does not guarantee the right to acquire property ( Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II; Kopecký v. Slovakia [GC], no. 44912/98, § 35(b), ECHR 2004-IX).

Consequently, a person who complains of a violation of his or her right to property must first show that such a right existed ( Pištorová v. the Czech Republic , no. 73578/01, § 38, 26 October 2004; Des Fours Walderode v. the Czech Republic (dec), no. 40057/98, 4 March 2003, ECHR 2004-V; Zhigalev v. Russia , no. 54891/00, § 131, 6 July 2006).

In the present case, having regard to the contracts concluded with the applicants or their legal predecessors concerning the sale of apartments, and to the judgments of the domestic courts delivered in the case, the Court considers that the applicants have not shown that they had any property rights to the premises in question. Likewise, the applicants have not established that they had any claim having a sufficient basis in national law and capable of being considered an “asset” falling within the scope of Article 1 of Protocol No. 1.

It follows that this part of the application is manifestly ill-founded and must also be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

3. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court by a majority

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President