FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38564/97 by Barbara JANIK against Poland

The European Court of Human Rights (Fourth Section) , sitting on 6 July 2000 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 , [Note1]

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 30 May 1997 and registered on 12 November 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 deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1947 and living in Stalowa Wola , Poland.

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

On 7 June 1990 the Stalowa Wola District Court ( Sąd Rejonowy ) dissolved the relationship resulting from joint ownership of matrimonial property ( wspólność ustawowa małżeńska ) between the applicant and her husband. On 10 June 1991 the court gave divorce decree.

1. Proceedings concerning the property adjustment order

On 2 October 1990 the applicant filed a petition for a property adjustment order ( wniosek o podział majątku dorobkowego ) with the Stalowa Wola District Court. The matrimonial property consisted of, among other things, commercial estate and shares in a limited liability company. On 9 October 1990 the case was transferred to the Tarnobrzeg Regional Court ( Sąd Wojewódzki ). On 16 May 1991 the court stayed the proceedings. It discontinued the proceedings on 6 September 1991.

On 21 December 1993 the applicant filed a new petition for a property adjustment order.  She also requested the court to secure her claim.  On 28 February 1994 the Stalowa Wola District Court issued an interim order enjoining her ex-husband from disposing of their matrimonial property. On 29 June 1994, ruling on the defendant’s appeal, the Tarnobrzeg Regional Court amended the interim order by limiting its scope to a certain part of the matrimonial property. On 28 April 1995 the Regional Court referred the applicant’s request for her claim to be secured to the District Court.

In the meantime, on 16 March 1994, the District Court had stayed the proceedings.  The applicant appealed against this decision. On 18 August 1994 the Regional Court quashed the contested decision and instructed the lower court to join the case with another case brought by the applicant, which concerned her claim for annulment of a contract concluded by her ex-husband (see below 2) Proceedings concerning the applicant’s claim for annulment of contracts).  On 6 September 1994 the District Court decided to join these two cases and then, on 14 October 1994, it reversed its previous decision and decided to deal with them separately. On 12 April 1995 the District Court rejected the applicant’s appeal against the latter order as being lodged out of time. On 26 July 1995 the District Court granted her retrospective leave to appeal against the order of 14 October 1994.

On 13 October 1995 the District Court rejected the applicant’s request for the case to be transferred to the Regional Court. The Regional Court dismissed her appeal on 10 November 1995. The Rzeszów Court of Appeal ( Sąd Apelacyjny ) upheld this decision on 12 January 1996.

On 11 March 1996 the District Court stayed the proceedings because it considered that the future property adjustment depended on the outcome of the proceedings relating to the annulment of contracts concluded by the defendant.  The Regional Court quashed this decision on 23 April 1996.

On 17 October 1996 the District Court dismissed the defendant’s request for the interim order of 28 February 1994 to be amended.

On 28 November 1996 the Regional Court dismissed the applicant’s request for the proceedings concerning her request to secure her claim to be resumed  On 15 January 1997 the District Court rejected the applicant’s request for her claim to be secured.

On 11 February 1997 the District Court dismissed her request for her ex-husband to be ordered to produce documentary evidence. On 28 February 1997 the court dismissed another, similar request. On 7 March 1997 the District Court dismissed her appeal against the decision of 11 February 1997.

On 22 April 1997 the District Court rejected the applicant’s request for the court order of 8 April 1997 to be served on her. On 27 May 1997 the Regional Court upheld this decision.

Later, the applicant challenged the impartiality of the judges of the District Court.  The Regional Court dismissed her challenge on 22 and 25 July 1997 respectively.

On 6 November 1998 the District Court gave a preliminary ruling, which determined an inventory of matrimonial property. The applicant appealed against the ruling.

On 13 January 1999 the District Court exempted the applicant from court fees due for lodging an appeal.  The appellate hearing took place on 18 February 1999. On 4 March 1999 the Tarnobrzeg Regional Court upheld the decision of 6 November 1998. On 19 May 1999 the Regional Court rejected the applicant’s request for the minutes of the appellate hearing to be rectified.

On 31 May 1999 the Regional Court rejected her request for an interim order to be issued and dismissed her appeal against the decision of 19 May 1999.

On 16 June 1999 the Regional Court declared her cassation appeal inadmissible as being lodged out of time. She appealed against this decision to the Supreme Court ( Sąd Najwyższy ).

On 20 October 1999 the Supreme Court upheld the decision of the Tarnobrzeg Regional Court of 16 June 1999, declaring the applicant’s cassation appeal inadmissible as being lodged out of time.  On 15 December 1999 the applicant requested the Supreme Court to reopen the proceedings terminated by the decision of 20 October 1999.

In the meantime, on 20 May 1999, the defendant had filed a cassation appeal against the judgment of the Tarnobrzeg Regional Court of 4 March 1999. On 25 January 2000 the applicant filed her pleading with the Supreme Court. The proceedings are pending in the Supreme Court.

2. Proceedings concerning the applicant’s claim for annulment of contracts

On 15 November 1993 the applicant requested the Stalowa Wola District Court to declare a contract concluded by her ex-husband null and void. She submitted that her ex-husband had disposed of their matrimonial property without obtaining her consent (which was a statutory prerequisite for concluding a contract affecting matrimonial property).

The District Court held hearings on 23 February and 16 March 1994. On the latter date the court stayed the proceedings because it considered that the determination of the claim depended on the outcome of the proceedings concerning the property adjustment order (see above).  The applicant appealed but she had apparently failed to observe the prescribed time-limit.  On 27 April 1994 the District Court granted her retrospective leave to appeal out of time against the decision of 16 March 1994.  On 18 August 1994 the Tarnobrzeg Regional Court quashed the decision to stay the proceedings.

On 6 September 1994 the District Court decided to join these two cases but, on 14 October 1994, it reversed its previous decision and decided to deal with them separately.

On 27 September 1996 the District Court rejected the applicant’s challenge to the impartiality of the judge who dealt with her case. This decision was upheld by the Regional Court on 14 November 1996.

On 28 August 1996 the applicant modified her original claim and requested the court to declare several other contracts concluded by her ex-husband null and void. On 12 December 1996 the District Court dismissed her modified claim because the applicant had not specified its value. On 7 February 1997 the court dismissed her appeal because she had not complied with the formal requirements for lodging such appeals.

On 7 March 1997 the District Court rejected the applicant’s request for costs of the proceedings to be fixed provisionally and her further request for an interim order.  On 21 March 1997 the District Court refused to give reasons in writing for its decision of 7 March 1997.  The Regional Court upheld this decision on 10 July 1997. On 28 January 1998 the Regional Court quashed the decision of 7 March 1997 but upheld the decision to dismiss the applicant’s modified claim.

On 29 August and 13 October 1997 the Regional Court rejected the applicant’s request for certain proceedings connected with the determination of her original claim to be reopened.  The Rzeszów Court of Appeal upheld this decision on 28 November 1997

On 25 February 1998 the District Court found that, in view of the value of the claim, it was no longer competent to deal with the subject-matter and referred the case to the Tarnobrzeg Regional Court.  The applicant’s appeal against this decision was rejected as being inadmissible in law on 13 March 1998. On 7 April 1998 the District Court exempted the applicant from court fees due for lodging an appeal. The Regional Court dismissed her appeal on 19 June 1998.

On 22 September 1998 the Regional Court held a hearing. On 2 October 1998 it ordered that some of the applicant’s claims be dealt with by the District Court.  On 20 October 1998 the Regional Court exempted the applicant from court fees due for lodging an appeal and rejected her request for the minutes of the hearing of 22 September 1998 to be rectified.  On 18 December 1998 the Rzeszów Court of Appeal quashed the decision of 2 October 1998 and remitted the case to the Regional Court.

On 7 April 1999 the Regional Court dismissed the applicant’s claims. On 24 May 1999 the Regional Court rejected her appeal against this decision because she had not complied with certain formal requirements. The Rzeszów Court of Appeal upheld this decision on 25 June 1999.

On 19 April 1999 the Regional Court rejected her request for an interim order and for the minutes of the hearing of 7 April 1999 to be rectified.  On 4 May 1999 the Regional Court dismissed her appeal against this decision. These proceedings were terminated on 25 June 1999.

On 21 December 1999 the Supreme Court upheld the decision of the Rzeszów Court of Appeal of 25 June 1999, finding that the applicant had not complied with formal requirements for lodging her appeal.

Later, on an unspecified date, the applicant requested the Supreme Court to reopen the proceedings. On 24 March 2000 the Supreme Court referred the case to the Tarnobrzeg Regional Court since the Regional Court was competent to deal with the applicant’s request.

COMPLAINTS

1. In respect of the proceedings concerning the property adjustment order, the applicant submits the following complaints:

a) under Article 6 § 1 of the Convention, about the length of the proceedings;

b) under Article 6 § 1 and Article 13 of the Convention, that the proceedings have been unfair and that certain judges have been biased against her;

c) under Article 1 of Protocol No. 1 to the Convention, that she has been unable to enjoy her property rights.

2. In respect of the proceedings relating to her claim for annulment of contracts, the applicant submits the following complaints:

a) under Article 6 § 1 of the Convention, about the length of the proceedings;

b) under Article 6 § 1 and Article 13 of the Convention, that the proceedings were unfair;

c) under Article 1 of Protocol No. 1 to the Convention, that she could not enjoy her property rights.

THE LAW

1. In respect of the proceedings concerning the property adjustment order and the proceedings relating to her claim for annulment of contracts, the applicant complains under Article 6 § 1 of the Convention that their length exceeded a “reasonable time”.

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

2. In respect of the proceedings concerning the property adjustment order the applicant also submits the following complaints:

a) under Article 6 § 1 and Article 13 of the Convention, that they have been unfair and that certain judges have been biased against her;

b) under Article 1 of Protocol No. 1 to the Convention, that she has been unable to enjoy her property rights.

However, the Court notes that the proceedings in question are still pending before the domestic courts and that, therefore, these complaints are premature.

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

3. In respect of the proceedings concerning her claim for annulment of contracts, the applicant submits the following further complaints:

a) under Article 6 § 1 and Article 13 of the Convention, that the proceedings were unfair;

b) under Article 1 of Protocol No. 1 to the Convention, that she could not enjoy her property rights.

The Court recalls that the obligation to exhaust domestic remedies contained in Article 35 § 1 of the Convention also requires the individual to follow the procedural rules attached to the remedy.  Failure to do so, or a mistake in so doing, will vitiate the individual’s compliance with that obligation (Eur. Comm. HR, no. 21782/93, Dec. 26.6.95, D.R. 82-A, p. 5).

In the present case, the Court finds that the applicant, when lodging her appeal against the judgment of the Tarnobrzeg Regional Court of 7 April 1999, failed to comply with the formal requirements laid down by Polish law in respect of such appeals.

It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints that the length of the proceedings concerning the property adjustment order and the length of the proceedings relating to the claim for annulment of contracts exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)