FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37437/97 by Maria KUBISZYN against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 October 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr M. Pellonpää , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 5 September 1996 and registered on 22 August 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 21 September 1999,

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,  Maria Kubiszyn, is a Polish national, born in 1964 and living in Witków Śląski, Poland.

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

On 23 June 1994 the applicant’s husband filed a divorce petition with the Wałbrzych Regional Court ( Sąd Wojewódzki ). He submitted that the breakdown of their marriage was irretrievable. He did not request the court to rule on the question of who was at fault in respect of the breakdown of their marriage.

On 26 August 1994 the applicant filed a pleading. She requested the court to dismiss the petition as, in her view, her husband was at fault in respect of the breakdown of their marriage and, therefore, he had no right to petition for divorce.

On 19 October 1994, in response to the applicant’s submission, her husband requested the court to find that the applicant was responsible for the marital breakdown.

On 1 September 1995 the court issued a decision ordering the applicant’s husband to pay 170 Polish zlotys of family maintenance pending trial.

The court further proceeded to obtain evidence to establish which of the parties had been responsible for the breakdown of their marriage. It held 12 hearings on the following dates: 26 August, 6 December 1994; 31 January, 21 March, 16 May, 1 September, 28 November 1995; 9 January, 13 February, 19 March, 17 April and 26 April 1996. The court heard evidence from at least 12 witnesses. It was established that as a consequence of constant conflicts between the spouses the applicant had returned to her parents. Her husband had lived with his new partner since February 1993 and in November 1995 their child was born. On 26 April 1996 the court, having found that the breakdown of their marriage was irretrievable, gave divorce order. The court considered that both spouses had been at fault in respect of the breakdown of their marriage. It further vested custody rights over their minor child with the applicant and obliged her husband to pay maintenance for the child.

On 28 May 1996 the applicant filed an appeal against the above judgment. She claimed that her husband had been exclusively responsible for the failure of their marriage and that, therefore, divorce was inadmissible in law.

On 5 July 1996 the Wrocław Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case to the Wałbrzych Regional Court. The court found that the fact that the applicant’s husband had been at fault in respect of the marital breakdown had been established beyond any reasonable doubt; however, the lower court had not determined properly to what extent the applicant had contributed to that breakdown.

On 10 October 1996 the applicant filed a request for her maintenance claims to be secured, in particular by ordering her husband to pay maintenance for the child in a higher amount. The court considered that further evidence regarding the financial situation of both parties should be obtained. On 9 April 1997 the court amended its decision of 1 September 1995 concerning the family maintenance pending trial, increasing it to 250 Polish zlotys. It dismissed the remainder of the applicant’s maintenance claims.

On 6 June 1997 the Wałbrzych Regional Court ordered that evidence be obtained from experts in psychiatry, psychology and pedagogics. On 27 November 1997 experts from the Family Diagnostics Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) prepared their report.

Subsequently, the court held hearings on the following dates: 13 November 1996, 9 April 1997, 13 February, 16 March, 24 April and 15 May 1998.

On 15 May 1998 the Wałbrzych Regional Court pronounced divorce, finding that both spouses had been at fault in respect of the breakdown of their marriage. The court vested custody rights over their child with the applicant but ordered that certain crucial decisions concerning the child’s future should be taken jointly by the parents. The court also fixed a schedule of visits and access between the applicant’s husband and the child. The court further ruled on maintenance to be paid by the applicant’s husband for the child and dismissed the applicant’s request for maintenance.

On 16 June 1998 the applicant filed an appeal, submitting that her husband “[had] ruined their marriage”. She contested the way in which the first-instance court had assessed evidence before it.

On 5 August 1998 the Wrocław Court of Appeal upheld the contested judgment. On the same day the applicant applied to the court to grant her legal assistance and to exempt her from court fees in cassation proceedings. On 28 September 1998 the Wrocław Court of Appeal dismissed her application.

On 12 November 1998 the applicant filed a cassation appeal against the judgment of the Court of Appeal of 5 August 1998. On 5 January 2001 the Supreme Court ( Sąd Najwyższy ) held a hearing and on the same date it dismissed the applicant’s cassation appeal.

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 23 June 1994 and ended on 5 January 2001. They therefore lasted six years, six months and twelve days.

According to the applicant, 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 applicant’s 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 application admissible, without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President