AS TO THE ADMISSIBILITY OF
Application no. 53656/00
by Jolanta ROLIŃSKA
The European Court of Human Rights (Fourth Section), sitting on 5 July 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 7 April 1999,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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 applicant, Ms Jolanta Rolińska, is a Polish national who was born in Kałuszyn and lives in Warszawa. The respondent Government were represented by Mr Krzysztof Drzewicki, of the Ministry of the Foreign Affairs and, subsequently, by Mr Jakub Wołąsiewicz, of the Ministry of the Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Civil proceedings complained of, concerning a claim for division of marital property, commenced in 1986.
On 7 April 1999, when the domestic proceedings were still pending, the applicant introduced her application, complaining about the excessive length of these proceedings. The application was registered on 4 January 2000.
On 19 April 2000 the Warsaw District Court gave a first-instance judgment.
On 4 December 2001 the Court communicated the application to the respondent Government, having applied Article 29 § 3 of the Convention.
The parties have not reached agreement as to friendly settlement.
By a letter of 15 October 2004 the Registry of the Court informed the applicant that it was open to her to avail herself of domestic remedy in respect of length of proceedings, as provided for by Article 18 of the 2004 Act.
In reply, by a letter of 11 November 2004, the applicant informed the Court that she did not intend to avail herself of this remedy.
B. Relevant domestic law and practice
On 17 June 2004 Polish Parliament adopted a new law ‘on complaint about a breach of a right to have one’s case heard within a reasonable time’. The act entered into force on 17 September 2004.
Section 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of the legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties. The length complaint must be lodged when the proceedings are still pending.
Pursuant to Section 2, if the court finds that the length complaint is well-founded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings. The court may also, award an appropriate amount of money to the complainant, in the amount not exceeding PLN 10,000.
Under Section 18, within six months after the entry into force of the Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention was entitled to lodge a length complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not yet been declared admissible by the European Court.
The applicant complains under Article 6 § 1 of the Convention about excessive length of judicial proceedings.
The applicant complains under Article 6 § 1 of the Convention about the excessive length of judicial proceedings. Article 6 § 1, insofar as relevant reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court observes that 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 (“the 2004 Act) entered into force.
Under Section 18 of this Act, it was open to persons who had brought a complaint about length of proceedings to the Court to lodge, within six months from 17 September 2004, a complaint provided for by Section 5 of that Act with a competent domestic court, provided that their application to Strasbourg Court had been lodged in the course of the proceedings concerned and that the Court has not yet adopted a decision on the admissibility of the case.
The Court recalls that it had held that this remedy provided by Polish law was effective in respect of excessive length of judicial proceedings as it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Michalak v. Poland (dec.), no. 24549/03, §§ 37-43).
The Court observes that the applicant, having been duly informed about the possibility of lodging a complaint about the length of judicial proceedings with competent domestic courts, has chosen not to avail herself of this remedy, which the Court held to be effective within the meaning of Article 13 of the Convention.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application inadmissible.
Michael O’Boyle Nicolas Bratza
ROLIŃSKA v. POLAND DECISION
ROLIŃSKA v. POLAND DECISION