FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38226/03
by Grażyna KOMOROWSKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 10 June 2008 as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Ljiljana Mijović,
	David Thór Björgvinsson,
	Ján Šikuta,
	Päivi Hirvelä,
	Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 17 November 2003,
Having regard to the Court’s decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),
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, Ms Grazyna Komorowska, is a Polish national who was born in 1954 and lives in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  Proceedings for the division of property
In September 1996 the applicant divorced her husband.
On 2 September 1997 she lodged a request for the division of the matrimonial property with the Warsaw District Court (Sąd Rejonowy).
The applicant’s former husband agreed to the request but did not approve of her proposals for the division of the property.
Between September 1997 and September 2002 the court held various hearings (the applicant failed to specify the exact dates).
On an unspecified date in September 2002 the applicant requested the court to limit the division of the property to a quasi-proprietary right to a flat in a housing cooperative (spółdzielcze własnościowe prawo do lokalu), in order to “facilitate and expedite the proceedings”.
On 20 September 2002 the Warsaw District Court ordered that the above-mentioned right in the flat be sold at auction.
On 24 October 2002 the applicant’s former husband lodged an appeal against the court’s decision.
It appears that on an unspecified date in January 2003 the Warsaw Regional Court (Sąd Okręgowy) quashed the District Court’s decision and remitted the case.
The applicant did not specify the exact course of the proceedings between January 2003 and October 2005.
On 14 October 2005 the Warsaw District Court ordered the division of the property. It granted the quasi-proprietary right to the flat in the housing cooperative to the applicant’s former husband and ordered him to pay the applicant compensation.
On an unspecified date the applicant’s former husband lodged an appeal against the first-instance judgment.
On 14 September 2006 the Warsaw Regional Court dismissed that appeal.
2.  The applicant’s complaint under the 2004 Act
On 7 April 2005 the applicant lodged a complaint under the Law of 17 June 2004 on complaints of 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”). She set out the substance of her complaint about the impugned proceedings and explained that she had lodged a complaint about their length with the European Court of Human Rights, which had required her to make use of the new domestic remedy introduced for length-of-proceedings cases. At the end of her complaint she asked for: “a just judgment, as soon as possible, reparation of my moral and financial damage and compensation for years of stress, ruined health and compulsory contact with my former husband”.
On 11 May 2005 the Warsaw Regional Court (Sąd Okręgowy) rejected the complaint without examining the merits. Noting that the complaint did not contain a request to find that there had been an unreasonable delay in the impugned proceedings, it held that it had to be rejected under section 9 of the 2004 Act, without requiring the applicant to be given any opportunity to rectify her omission.
B.  Relevant domestic law and practice
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
COMPLAINTS
The applicant complained, without invoking any provision of the Convention, that her right to a fair trial within a reasonable time had been violated.
She also complained of a breach of her right to the peaceful enjoyment of her possessions and alleged a lack of appellate courts in Poland in civil cases.
THE LAW
A.  Alleged violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings
The applicant complained that the length of the proceedings in her case had been unreasonable. She relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
1.  The arguments of the parties
(a)  The Government’s plea of non-exhaustion of domestic remedies
The Government maintained that the applicant had failed to exhaust domestic remedies as she had not lodged a complaint about the breach of the right to a trial within a reasonable time in compliance with statutory requirements. They invited the Court to reject the application as being inadmissible.
The Government further submitted that, after the rejection of her complaint by the domestic court, the applicant could have lodged another complaint under section 5 of the 2004 Act, because the proceedings were still pending.
She could also have obtained further redress through a compensatory remedy, namely by bringing a civil action under Article 417 of the Civil Code, pursuant to section 15 of the 2004 Act.
(b)  The applicant’s submissions
The applicant did not comment on the Government’s preliminary objection.
2.  The Court’s assessment
The Court notes that pursuant to 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...”
It must accordingly determine whether the Government’s objection that domestic remedies have not been exhausted is well-founded in the instant case.
The Government’s plea of non-exhaustion of domestic remedies is based on three principal arguments. Firstly, the applicant had not lodged a complaint of a breach of her right to a trial within a reasonable time in accordance with the statutory requirements. Secondly, the applicant could have lodged another complaint after the rejection of her first complaint by the domestic courts. Lastly, she could have made a claim under Article 417 of the Civil Code for compensation for the damage suffered as a result of the excessive length of the proceedings.
As regards the complaint under section 5 of the 2004 Act, the Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing or putting an end to an alleged violation of the right to a hearing within a reasonable time, and of providing adequate redress for any violation that had already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).
In that connection, it observes that the applicant made use of that remedy and lodged a complaint about the length of the proceedings.
It further observes that, pursuant to section 6 of the 2004 Act, a complaint alleging a breach of the right to a trial within a reasonable time must include a request to find that there was an unreasonable delay in the impugned proceedings and circumstances to justify the request.
In the present case the applicant presented the substance of her allegations and informed the domestic court that she had lodged an application with the European Court of Human Rights. However, she did not include in her complaint a clear request to declare that the impugned proceedings had been too lengthy.
In this respect the Court notes that in its judgment in the similar case of Wende and Kukówka v. Poland, no. 56026/00, §§ 49-57, 10 May 2007 it found that the applicant had exhausted domestic remedies. However, in that case the applicant relied on a transitional provision of the 2004 Act which allowed a complaint to be lodged in respect of proceedings which had already ended. Under that provision a complainant could make use of the remedy within 6 months of the date on which the Act entered into force. Thus it was only available for a limited period. By contrast, in the present case, the impugned proceedings were still pending when the applicant’s complaint was rejected and continued for another year and 4 months. It was open to the applicant to lodge another complaint under section 5 of the 2004 Act throughout that period. Furthermore, the domestic court which rejected the applicant’s complaint clearly stated the reasons for doing so and invoked the relevant provisions of the 2004 Act. Therefore, the procedural mistake the applicant made when lodging her length complaint was made clear to her.
Having regard to the foregoing, the Court considers that it is not necessary to examine in detail whether the domestic court’s approach was too formalistic. In view of her right to lodge another length-of-proceedings complaint, the Court is not satisfied that she did everything that could reasonably be expected of her to exhaust domestic remedies. On that account, the Court is not required to address the Government’s further objection based on Article 417 of the Civil Code.
Having regard to the foregoing, the Court considers that the applicant failed to exhaust domestic remedies in that she did not lodge a further complaint under section 5 of the 2004 Act after the rejection of her first complaint by the domestic court for a procedural mistake. It follows that the complaint about the excessive length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B.  Other alleged violations of the Convention
The applicant also complained, without relying on any provision of the Convention, of unfairness in the impugned proceedings and of a violation of her right to the peaceful enjoyment of her possessions. She also complained that there were no appellate courts in Poland in civil cases.
The Court considers that these complaints should be considered under Article 6 § 1 of the Convention, Article 1 of Protocol No 1 and Article 13 respectively.
Having examined these complaints, and regardless of other possible grounds of inadmissibility, the Court finds nothing in the case file which might disclose any appearance of a violation of these Convention provisions.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
C.  Article 29 § 3 of the Convention
Having regard to the above considerations, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
	Lawrence Early	Nicolas Bratza 
	Registrar	President