FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41413/98 by Joanna MALICKA-WÄ„SOWSKA against Poland

The European Court of Human Rights (Fourth Section) , sitting on 5 April 2001 as a Chamber composed of

Mr G. Ress , President ,

Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 20 March 1998 and registered on 2 July 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 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 is a Polish national, born in 1943 and living in Warsaw.

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

On 27 August 1994 the applicant’s father died. On 4 October 1994 his widow, Ms K. Z. M., initiated court proceedings before the Civil Section of the Warsaw District Court ( Sąd Rejonowy ) in order to obtain a decision declaring his heirs. The case was registered under no. IV Ns 1027/94.

During the first hearing held on 7 November 1994 the applicant together with her brother and sister requested that an inventory of their father’s estate be taken as his last will did not include all his properties. It appears that the estate consisted of several works of art, furniture and other household effects situated in two flats occupied by Ms K. Z. M.

On 7 November 1994 the court decided that an inventory of the estate should be prepared. On the same day the applicant together with her brother and sister asked the court to apply interim measures to the estate.

On 27 December 1994 the court instructed the bailiff responsible for the fifth district in Warsaw to prepare an inventory of the estate. On 19 January 1995 the court’s instructions were transferred to the bailiff responsible for the eighth district where the estate was situated. The parties disagree about the numbers under which the proceedings concerning the drawing of an inventory by the bailiff were registered.

On 13 February 1995 a hearing was held.

During the hearing held on 14 April 1995, the applicant requested of the court that an art expert be present during the drawing of an inventory as the estate included several works of art. The applicant submits that although the court decided that it would rule on her request within fourteen days, it has never considered it. The applicant also inquired about the date on which the inventory would be prepared. At that stage the counsel for Ms K. Z. M. stated that the inventory had already been taken on 6 April 1995. However, the case file did not include a copy of the inventory. The Government disagree with the applicant and submit that the court “decided to urge the bailiff to prepare an inventory of the estate and to rule in camera within fourteen days upon receipt of the inventory of an estate on whether to appoint an art expert”.

On 20 April 1995 the District Court again requested the bailiff to take an inventory. The Government submit that on that day the inventory had reached the District Court but it was not aware of that fact.

On 30 May 1995 the applicant requested that the court reject the inventory as, contrary to the applicable legislation, it was prepared without any witnesses, did not list the estimates of individual objects and erroneously listed works of art as ordinary pieces of furniture.

During the hearing held on 21 June 1995, the applicant again asked the court to have a new inventory prepared since the one taken on 6 April 1995 covered only objects situated in one of two flats occupied by Ms K. Z. M. and did not include several works of art. The court heard three witnesses and instructed the parties to file within twenty-one days their final motions.

The Government submit that between June 1995 and January 1996 the parties submitted a number of requests. In particular, on 10 July 1995 the applicant asked the court to take evidence from seven witnesses.

On 10 July 1995 the applicant submitted to the District Court a statement of Ms K. Z. M.’s landlord confirming that she occupied two flats situated in the same building.

On 7 November 1995 the District Court instructed the applicant to submit four copies of her request filed on 30 May 1995 and to pay a court fee. On 20 November 1995 the applicant received the court’s instructions and on 23 November 1995 she submitted to the registry four copies of her request and paid the fee.

On 29 December 1995 the District Court decided that the applicant’s request of 30 May 1995 would not be admitted to the case-file as she had failed to follow the court’s instructions of 7 November 1995.

On 16 January 1996 the applicant asked the court to take evidence from a physician Z.K.

The next hearing was held on 17 January 1996. On that occasion the court examined three witnesses and the applicant submitted a motion concerning evidence.

In January 1996 the applicant visited the registry of the District Court, where she was informed about the court’s decision of 29 December 1995. After the applicant insisted that on 23 November 1995 she had filed four copies of her request and paid the fee, the employees of the registry inspected the archives and found the documents submitted by the applicant.

The Government submit that on 23 January 1996 the applicant asked the court to take into account certain medical evidence concerning her father. Consequently, the court requested three different institutions to submit medical documents. However, one of the requests was returned as the applicant had provided an incorrect address. She clarified it on 22 April 1996.

On 8 May 1996 a son of the witness Z. K. advised the court that she was abroad and therefore she would not be able to participate in the proceedings before mid-June.

During the next hearing, held on 10 May 1996, the court heard three witnesses.

On 27 and 29 May 1996 the applicant asked the court to take evidence from certain witnesses.

On 19 November 1996 the District Court asked the applicant to advise it in writing about the date on which she had been informed about the inventory taken on 6 April 1995. The Government submit that although the applicant had been asked to reply within seven days she submitted the requested information only on 9 December 1996. The applicant disagrees with the Government’s submission and avers that her reply of 7 December 1996 was given within seven days following the date on which the court’s request had been served on her.

On 12 March 1997 the court scheduled for 7 April 1997 a hearing concerning the inventory. However, on 7 April 1997 the case was adjourned as the judge rapporteur was ill.

During the hearing held on 18 April 1997 the court heard two witnesses.

On 28 April 1997 the applicant and her brother requested the court to make six corrections in the minutes of the hearing held on 18 April 1997. They also asked the court to hear again both witnesses examined on that day “should there be any doubts concerning our request”.

On 26 May 1997 the applicant and her brother asked the President of the Warsaw District Court to “carry out an inspection of a hearing to be held on 2 June 1997”. They submitted that “without prejudice to the honesty of the judge we consider that he shapes the [...] minutes by rejecting evidence which does not fit his vision of a future judgment, which is obviously unacceptable”.

The Government submit that during the hearing held on 2 June 1997 the court heard four witnesses and decided to adjourn the delivery of the final decision until 20 June 1997. The applicant claims that the court did not decide to adjourn the delivery of the judgment. She also submits that on that occasion Ms K.Z.M. stated that the inventory was complete except for a few details and that the court decided to close the proceedings

On 4 June 1997 the applicant again visited the registry of the District Court where she was informed that the judge responsible for her case was on maternity leave. On 6 June 1997 the applicant asked the President of the Warsaw District Court to appoint another judge in her case in order to expedite the proceedings.

On 9 June 1997 the applicant together with her brother and sister requested the District Court to make six corrections in the minutes of the hearing held on 2 June 1997.

On 20 June 1997 the court decided that it would not deliver the final decision and resumed the proceedings.

On 14 October 1997 a hearing concerning the inventory took place. The court decided to conduct future proceedings concerning the inventory in camera . On 17 October 1997 the proceedings concerning the inventory taken by the bailiff on 6 April 1995 came to an end as the court rejected the inventory. Subsequently, the court rectified at the request of the applicant a spelling mistake in the decision of 17 October 1997.

During the hearing held on 17 December 1997 the court decided to stay the proceedings in the case no. IV Ns 1027/94 because on 26 August 1997 the applicant instituted two sets of proceedings concerning her claim to declare Ms K.Z.M. unworthy of her husband’s inheritance (case no. IV C 5095/97) and the distribution of the estate left by the applicant’s father (case no. IV Ns 1016/97). In the case no. IV C 5095/97 on 11 June 1999 the appellate court dismissed the applicant’s appeal against the trial court’s decision of 3 March 1998, whereas in the case no. IV Ns 1016/97 the first-instance court returned to the applicant her pleadings as she had failed to comply with the formal requirements for lodging an action.

On 14 September 1999 the proceedings in the case no. 1027/94 were resumed. On 10 March 2000 a hearing took place. Subsequently, the number of the case was changed to IV Ns 363/00.

The next hearing took place on 14 April 2000.

On 27 April 2000 the applicant filed with the President of the Warsaw District Court a complaint concerning the conduct of hearings held on 10 March and 14 April 2000.

On 18 May 2000 a hearing took place. On that occasion the applicant together with her brother and sister requested the court not to close the proceedings before the inventory was taken. The court decided to decline that request.

On 19 May 2000 the applicant’s brother complained to the President of the Warsaw District Court about the court’s decision. In reply, the President advised him that he could lodge a formal appeal against the impugned decision. The applicant submits that subsequently a formal appeal was prepared but it is not clear whether it was actually filed.

On 13 July 2000 an inventory of the estate left by the applicant’s father was taken. However, the applicant together with her brother and sister were dissatisfied with it and on 14 July 2000 they lodged a complaint against it. The complaint was registered under no. IV Co 707/00. On 1 December 2000 the first hearing concerning that complaint took place. However, it was adjourned until 11 January 2001 as some of the parties to the proceedings failed to attend it.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the unreasonable length of the proceedings concerning a declaration of heirs. She also appears to raise that complaint in respect of the proceedings concerning the inventory taken by the bailiff.

THE LAW

The applicant complains that the length of the proceedings was in breach of Article 6 § 1 of the Convention, which in so far as relevant provides:

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

The Government contend that the facts of the present case do not disclose a violation of Article 6 § 1. They submit that the applicant’s case “has been of a particular degree of complexity”. The Warsaw District Court had to deal simultaneously with several sets of proceedings, all but one of which had been initiated by the applicant. Although the national authorities can be held partly responsible for some delays, it was the conduct of the applicant, which substantially delayed the proceedings. In particular, the Government point out that on 26 August 1997 she had initiated the proceedings in which she sought the declaration of unworthiness in respect of K.Z.M. and consequently the court had to stay the proceedings in respect of which the applicant now alleges an unreasonable delay.

The applicant disagrees with the Government. She avers that the national authorities should be blamed for the delay and that a part of it resulted from the Warsaw District Court’s chicaneries ( matactwa ).

The Court observes that the proceedings began on 4 October 1994 and appear to be still pending. With reference to its settled case-law on this matter, it will asses the reasonableness of the length of the impugned proceedings in the light of the particular circumstances of the case having regard to its complexity, to the conduct of the applicant and to that of the authorities dealing with the case (see, among other authorities, Malinowska v. Poland , no. 35843/97, 14.12.2000, § 38).

The Court firstly observes that the case involved a measure of complexity on account of the fact that the estate left by the applicant’s father apparently included several works of art whose valuation required expertise. In addition, the case disclosed procedural complexity since it involved several related sets of proceedings.

Furthermore, the Court considers that the conduct of the applicant significantly contributed to the length of the proceedings. On 26 August 1997 the applicant lodged an action in which she sought a declaration of unworthiness in respect of Ms K.Z.M. who on 4 October 1994 initiated the impugned proceedings. Consequently, the impugned proceedings were stayed between 17 December 1997 and 14 September 1999, i.e. for a period of almost one year and nine months. In the particular circumstances of the instant case, the Court considers that the resultant delay must be attributed to the applicant.

Moreover, the course of the impugned proceedings before they were stayed on 17 December 1997 and after they were resumed on 14 September 1999, that is – assuming that the proceedings are still pending – during a period of nearly four years and nine months, reveals on the part of the applicant very active behaviour. In particular, the applicant filed numerous requests in which she contested the evidence taken by the court, asked that additional evidence be taken or that witnesses already heard by the court be examined again. In addition, the applicant disputed the manner in which the minutes of hearings were taken, questioned the attitude of a judge and on 18 May 2000 requested the Warsaw District Court not to close the proceedings. The Court reiterates that while the applicant is entitled to make use of her procedural rights, she must bear the consequences when it leads to delays (see, mutatis mutandis , the Buchholz v. Germany judgment of 6 May 1981, Series A no. 42, pp. 21-22, § 63).

With respect to the conduct of the national authorities, the Court considers that although they contributed to some of the delays, in particluar because of administrative errors, the delays attributable to the competent authorities, even when viewed cumulatively, did not exceed a reasonable time within the meaning of Article 6 § 1. As to the applicant’s claim that a part of the overall delay resulted from the Warsaw District Court’s chicaneries, the Court is of the view that she has failed to submit any prima facie evidence in support of that allegation.

In sum, within the overall length of about six years and six months, the applicant contributed at least to the delay of nearly one year and nine months. In the light of this conduct of the applicant and the complexity of the case, the Court considers that the proceedings concerning a declaration of heirs, initially registered under no. IV Ns 1027/94, do not disclose an unreasonable delay within the meaning of Article 6 § 1.

Furthermore, in so far as it could be understood that the applicant raises a separate complaint about the unreasonable length of the proceedings concerning the inventory taken by the bailiff, which were terminated on 17 October 1997, the Court considers that in the light of the circumstances of the case, they were concluded within a reasonable time within the meaning of Article 6 § 1 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

       Søren Nielsen Georg Ress      Deputy Registrar President