FOURTH SECTION

PARTIAL 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 21 September 1999 as a Chamber composed of

Mr M. Pellonpää, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova, Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 September 1996 by Maria Kubiszyn against Poland and registered on 22 August 1997 under file no. 37437/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1964 and living in Witków Śląski, Poland .

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

a) Criminal proceedings instituted by the applicant against her husband

On an unspecified date in 1994 the applicant brought a private prosecution against her husband, alleging that he had battered her.

On 7 February 1995 the Wałbrzych District Court (Sąd Rejonowy ) acquitted the defendant, finding that although a serious argument had taken place between the spouses - as a result of which both of them had sustained some minor injuries - it had not been proved beyond reasonable doubt that the applicant’s husband had committed a criminal offence.

On 10 March 1995 the applicant filed an appeal against this judgment. She requested the court to “alter the judgment by finding the accused guilty and to punish him accordingly”. On 25 April 1995 the Wałbrzych Regional Court (Sąd Wojewódzki ) dismissed her appeal.

On 24 May 1995 the applicant requested the Minister of Justice for leave to file an extraordinary appeal.

On 3 July 1996 the applicant was informed that her request could not be examined as she had failed to pay a fee. Later, it appeared that the applicant had in fact paid the fee in due time. However, by letter of 28 January 1997 the applicant was informed that no extraordinary appeal against an acquittal could be lodged after the expiry of 6 months from the date on which the judgment had become final.

b) Divorce proceedings

On 23 June 1994 the applicant’s husband filed a divorce petition with the Wałbrzych Regional Court . 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.

The court further proceeded to obtain evidence to establish which of the two parties had been at fault. 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, pronounced divorce. 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 therefore, divorce was inadmissible in law.

On an unspecified date in 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 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.

On an unspecified date 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. There is no information as to the ruling on that issue.

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 requested 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 request.

On 12 November 1998 the applicant filed a cassation appeal. The case is currently pending in the Supreme Court (Sąd Najwyższy ) .

COMPLAINTS

1. The applicant complains that the Wałbrzych District Court erroneously acquitted her husband in the criminal proceedings instituted by her. In particular, she submits that the court wrongly assessed evidence before it. She invokes Articles 8, 9, 10, 11, 12, 13 and 14 of the Convention in support of her complaint.

2. The applicant further complains about the unfairness of the divorce proceedings. She submits that the judges were biased against her and favoured her husband because of his financial position. She invokes Articles 8, 9, 10, 11, 12, 13 and 14 of the Convention in support of her complaint.

3. Lastly, the applicant complains that the length of the divorce proceedings exceeded a “reasonable time”. She does not invoke any specific provision of the Convention.

THE LAW

1. The applicant complains that the Wałbrzych District Court erroneously acquitted her husband in the criminal proceedings instituted by her. In particular, she submits that the court wrongly assessed evidence before it. She invokes Articles 8, 9, 10, 11, 12, 13 and 14 of the Convention in support of her complaint.

The Court recalls that the right to have criminal proceedings instituted against a third person and to have the person concerned convicted is not as such guaranteed by the Convention, unless it is decisive for the determination the applicant’s civil rights and obligations (Eur. Comm. HR, no. 23997/94, Dec. 15.5.1995, D.R. 81-B, p. 102).

However, in the present case it transpires from the applicant’s submissions that what she sought in the proceedings complained of was to have her husband convicted of a criminal offence.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

2. The applicant further complains about the unfairness of the divorce proceedings. She submits that the judges were biased against her and favoured her husband because of his financial position. She invokes Articles 8, 9, 10, 11, 12, 13 and 14 of the Convention in support of her complaint.

Under Article 35 § 1 of the Convention “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law”.

In this respect the Court recalls that the purpose of the rule referred to above is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court (see Eur. Court HR, the Fressoz and Roire v. France judgment of 21 January 1999, to be published in Reports 1999- ..., § 37).

The Court further notes that the proceedings in question are still pending before the Supreme Court and the applicant still has an opportunity to obtain redress before the national authorities.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 4 of the Convention.

3. Lastly, the applicant complains that the length of the divorce proceedings exceeded a “reasonable time”. She does not invoke any specific provision of the Convention.

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.

For these reasons, the Court,

by a majority,

DECIDES TO ADJOURN the examination of the applicant ’s complaint that the length of the divorce proceedings exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention; and

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President