FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43786/98 by Jadwiga SZYMIKOWSKA and Zygmunt SZYMIKOWSKI against Poland

The European Court of Human Rights (Fourth Section) , sitting on 10 September 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo ,

Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi ,

Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 9 June 1998,

Having deliberated, decides as follows:

THE FACTS

The applicants,  Jadwiga Szymikowska and Zygmunt Szymikowski, are Polish nationals, who were born in 1945 and 1941 respectively and live in Gdańsk. They are not legally represented before the Court. The respondent Government are represented by Mr Krzysztof Drzewicki, of the Ministry of Foreign Affairs.

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

The applicants share a plot of land and a house with another family (hereinafter: the neighbours).

On 17 June 1987 they filed with the Gdańsk District Court ( Sąd Rejonowy ) a petition in which they requested that the co-ownership of the plot of land and the house be dissolved.

At the first hearing, held on 20 July 1987, the court ordered two expert opinions. It did not schedule any hearings until 24 January 1989. Prior to 20 January 1989 the court ordered, at the neighbours’ request, three supplementary opinions.

On 19 April 1989 it forbade the neighbours to carry out any modifications in the cellar until the completion of the proceedings. On 27 September 1989 a similar order concerning the whole house was issued in respect of the applicants.

On 27 April 1990 the court ordered an expert opinion concerning the same issues as the one already prepared in those proceedings.

On 28 August 1990 and 25 January 1991 the court ordered four other expert opinions.

It held hearings on 9 July 1991, as well as on 17 February, 15 April and 2 June 1992.

On 29 April 1992 the President of the Gdańsk Regional Court ( Sąd Wojewódzki ), in reply to the applicants’ complaints, explained that the delay in the proceedings related to the expert opinions which had to be obtained in their course. He further stated that, contrary to the applicants’ allegations, there was no indication of lack of impartiality on the part of the court and that the mere fact that their neighbours were represented by their daughter, who was a judge in the same circuit, did not suffice to constitute a breach of their rights.

On 3 June 1992 the Gdańsk District Court gave judgment. The neighbours appealed and on 11 March 1993 the Gdańsk Regional Court quashed the judgment and remitted the case for re-examination.

The District Court held a hearing on 1 July 1993. On 27 October 1993 it held a viewing of the shared house. At other hearings in 1993 and 1994 the court ordered several expert opinions.

On 14 December 1994 it dismissed the neighbours’ challenge to the participation in the proceedings of the judges. On 11 May 1995 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) dismissed their appeal against that decision.

On 4 August 1995 the District Court ordered a new expert opinion.

On 30 October 1995 the neighbours’ representative requested the adjournment of the hearing scheduled for 13 November.

In 1994 and 1995 the neighbours submitted 13 letters and motions.

The court held a hearing on 4 December 1995. On 8 December 1995 the applicants submitted their observations.

On 19 April 1996 it ordered the parties to the proceedings not to carry out any construction works in the building. On 27 August 1996 the Gdańsk Regional Court quashed that decision and remitted the case.

On 4 September 1996, in reply to the applicants’ complaint about the excessive length of the proceedings, the President of the Gdańsk Court of Appeal informed them that in the light of general principles set forth in the Code of Civil Procedure the Gdańsk District Court was obliged to examine exhaustively all the evidence before it and thus the applicants’ complaint was unsubstantiated. He further observed that the mere fact that a judge participated in the proceedings as one of the parties could not be a reason to institute disciplinary proceedings against her.

On 28 October 1996 the District Court forbade the neighbours to carry out any works in the house. On 23 May 1997 the Regional Court dismissed their appeal against that decision.

In the letter of 30 January 1997 the Ministry of Justice confirmed that the proceedings were lengthy and found that the applicants’ neighbours had contributed to the delay by their petitions contesting the expert opinions. It further noted that since 1994 the President of the Gdańsk Regional Court had supervised the course of the proceedings and made monthly reports on their progress. However, the Ministry found these measures ineffective and decided to take the proceedings under its administrative supervision.

On 27 August and 30 October 1997 the Gdańsk District Court held hearings. Subsequently, the court ordered further expert opinions, concerning chimneys in the house. On 3 March 1998 the applicants requested that a new expert opinion be ordered.

The court held hearings on 6 March, 16 October and 4 December 1998. On 18 August 1998 it held a view of the building.

The hearing scheduled for 12 February 1999 was adjourned at the request of the neighbours’ representative. The court held hearings on 5 March, 1 April and 10 May 1999. On 14 May 1999 it ordered another expert opinion, which was issued after five months due to the neighbours’ absence and the need to prepare an additional opinion.

On 30 June 1999, in reply to the applicants’ further complaint about the length of the proceedings, the President of the Gdańsk Court of Appeal wrote that numerous petitions submitted by the applicants’ neighbours had indeed caused delay in the proceedings. However, he considered that they were entitled to make use of the remedies guaranteed by law and the court was not empowered to reject those petitions only because they were contributing to the delay.

On 30 October 1999 the neighbours complained about the court’s decision concerning the costs of an expert opinion.

On 20 January 2000 their lawyer requested the extension of the time-limit for submission of their observations as to that opinion.

On 25 January and 20 June 2000 the court held hearings. On 23 February, 3 July and 31 August 2000 it ordered expert opinions.

On 5 September 2000 the President of the Gdańsk Regional Court, in reply to the applicants’ complaint, found that although the judge participating in the proceedings as one of the parties had contributed to their delay by her numerous petitions concerning the evidence, she could not be deprived of the right to pursue her and her parents’ case only because she was a judge in the same circuit.

On 8 February 2001 the District Court held a hearing.

The hearing scheduled for 27 April 2001 was adjourned because of the absence of the applicants’ lawyer. The court ordered an additional expert opinion.

At the hearing held on 20 June 2001 it ordered another expert opinion.

The proceedings are still pending.

THE LAW

The applicants’ complaint relates to the length of the proceedings, which began on 17 June 1987 and are still pending. They have therefore already lasted  15 years, 2 months and 23 days , out of which the period of 9 years, 4 months and 10 days falls within the Court’s competence ratione temporis , Poland having recognised the right of individual petition as from 1 May 1993.

According to the applicants, 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 applicants’ 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 remainder of the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President