FOURTH SECTION

PARTIAL 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 7 June 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. B erger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 9 June 1998 and registered on 8 October 1998,

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 deliberated, decides as follows:

THE FACTS

The applicants, Jadwiga Szymikowska and Zygmunt Szymikowski, are Polish nationals , born in 1945 and 1941 respectively and living in Gdańsk .

The facts of the case, as submitted by the applicants , 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.

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

On 28 August 1990 the court ordered two other expert opinions.

The next hearing was held on 9 July 1991, despite the fact that the opinions had been issued already in March 1991.

The court held hearings 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, despite the applicants’ allegations, there was no indication of lack of impartiality on the part of the court and 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 it and remitted the case for re-examination.

The Warsaw 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. It held a hearing on 4 December 1995.

On 19 April 1996 it ordered the parties to the proceedings not to carry out any construction works in the building.

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 ( Sąd Apelacyjny ) 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.

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.

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

The hearing scheduled for 12 February 1999 was adjourned. 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.

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 indeed numerous petitions submitted by the applicants’ neighbours caused the 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 of their contribution to the delay.

On 25 January and 20 June 2000 the court held hearings. On 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 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.

The proceedings are pending.

COMPLAINTS

1. The applicants complain under Article 6 § 1 of the Convention that the proceedings have exceeded a reasonable time.

2. They further complain under Article 6 § 1 of the Convention about the lack of impartiality of the court before which the proceedings are pending, submitting that a judge acting in the same circuit participates in them as the opposing party.

THE LAW

1. The applicants complain under Article 6 § 1 of the Convention about the allegedly unreasonable length of the proceedings.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

2. The applicants complain under Article 6 § 1 of the Convention about the alleged lack of impartiality of the court dealing with their case.

The Court notes that the proceedings are still pending and it cannot speculate on how they would proceed. Therefore it is premature at this stage to determine whether or not there has been the alleged breach of the right to a “fair … hearing … by an … impartial tribunal” in the present case.

It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint that [Note1] the proceedings have exceeded a reasonable time;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.