FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26250/02 
by Jadwiga WIDAWSKA and Katarzyna WIDAWSKA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 5 January 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr K. Traja
 Mr S. Pavlovschi
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 26 June 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Jadwiga Widawska and her daughter Katarzyna Widawska, are Polish nationals who were born in 1955 and 1980 respectively and live in Warszawa.

A. The circumstances of the case

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

On 21 August 1995 the first applicant, Ms Jadwiga Widawska, lodged a motion for an order declaring her marriage null and void. On 14 November 1997 she also lodged a motion with the Warszawa-Mokotów District Court for an increase of maintenance for her daughter, Ms Katarzyna Widawska, the second applicant. The motion was transmitted to the Warsaw Regional Court where the proceedings concerning the invalidation of marriage were pending in order to examine the applicant's motions together.

On 29 December 1998 the Warsaw Regional Court declared the applicant's marriage null and void but did not rule on the maintenance claim. On 28 December 2001 the Warsaw Court of Appeal amended the judgment in that it set aside the finding that the applicant's husband had married her in a bad faith.

Following the lack of ruling on the maintenance issue in the judgment of 29 December 1998, on 26 July 1999 Ms Katarzyna Widawska lodged a renewed motion for an increase of maintenance with the Warszawa-Mokotów District Court arguing that she had started to study and as a consequence had higher maintenance costs. On 29 September 2000 the district court increased the alimony from 80 PLN to 200 PLN per month. On 18 January 2001 the Warsaw Regional Court dismissed the appeal of the second applicant's father.

B. Relevant domestic law

1.  Provisions of the Civil Code applicable as from 1 September 2004

On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury's liability for tort under Article 417 of the Civil Code – by, inter alia, adding a new Article 4171 and creating a tortious liability of the State for its omission to enact legislation (the so-called “legislative omission”; zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings.

Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows:

“3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”

However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date.

2.  The Law of 17 June 2004

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act.

Article 2, in so far as relevant, reads as follows:

“1.  Parties to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Article 5 provides, in so far as relevant:

“1.  A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 (see paragraph 46 below) in the following terms:

“A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.

Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:

“1.  A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage occurred.”

Article 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:

“1.  Within six months after the date of entry into force of this law persons who, before that date, lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court was lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

2.  A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.

3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”

COMPLAINTS

1. Ms Jadwiga Widawska, the first applicant, complains under Article 6 § 1 of the Convention about the length of proceedings concerning the invalidation of her marriage.

2. She further complains about the outcome of the invalidation of marriage proceedings in that the court unjustly found no bad faith on the part of her husband.

3. Ms Katarzyna Widawska, the second applicant, complains under Article 6 § 1 about the excessive length of the maintenance proceedings.

THE LAW

1. Ms Jadwiga Widawska, the first applicant, alleges that the length of civil proceedings concerning the invalidation of her marriage was excessive.

The Court observes that the proceedings in question were terminated on 28 December 2001. Thus, at the moment of entry into force of the Law of 17 June 2004 (“the 2004 Act”) less than 3 years had passed within which period the applicant was entitled to lodge a claim under Article 417 in conjunction with Article 442 of the Civil Code.

The Court notes that the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time created a new legal situation with respect to the question of delays of proceedings. In contrast to the previous regulations, the possibility of seeking damages under Article 417 of the Civil Code for the protracted length of judicial proceedings which have terminated has an explicit legal basis.

The Court observes that the applicant has not exhausted this remedy, which the Court held to be effective within the meaning of Article 13 of the Convention (see Krasuski v. Poland, no. 61444/00, §§ 67 – 72).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The first applicant further complains about the outcome of the proceedings concerning the invalidation of her marriage.

The Court reiterates that according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, Daktaras v. Lithuania (dec.), no. 42095/98, 11/01/2000).

The Court finds no elements, which would indicate that in the present case the national courts went beyond their proper discretion as to the assessment of the evidence before them.

It follows that this part of 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 of the Convention.

3. Ms Katarzyna Widawska, the second applicant, complains under Article 6 § 1 that the civil proceedings concerning the maintenance have exceeded a reasonable time.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the second applicant's complaint concerning the length of the maintenance proceedings;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

WIDAWSKA v. POLAND DECISION


WIDAWSKA v. POLAND DECISION