EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 29697/96

Władysław Gładkowski

against

Poland

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

29697/96 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-38)              3

A. The particular circumstances of the case

(paras. 16-36)              3

B. Relevant domestic law

(paras. 37-38)              6

III. OPINION OF THE COMMISSION

(paras. 39-65)              7

A. Complaint declared admissible

(para. 39) 7

B. Point at issue

(para. 40) 7

C. As regards Article 6 para. 1 of the Convention

(paras. 41-64)              7

CONCLUSION

(para. 65) 11

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION                           12

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Polish citizen, born in 1927 and resident in Kluczbork in Poland.

3. The application is directed against Poland.  The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.

4. The case concerns the length of civil proceedings relating to the applicant's claim for compensation.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 23 March 1995 and registered on 4 January 1996.

6. On 21 May 1997 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 20 August 1997, after the second extension of the time-limit fixed for this purpose.  The applicant replied on 15 October 1997.

8. On 4 March 1998 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 12 March 1998 and they were invited to submit such further information or observations on the merits as they wished.  The parties did not avail themselves of this opportunity.

C. The present Report

11. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 9 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. On 30 July 1985 the applicant had an operation on his leg in the Central Hospital of the Ministry of the Interior.  Apparently, the operation was not successful as, from December 1985 to  May 1986, from 11 January to 28 September 1986 and, again, from 28 June to 26 July 1989, he underwent further surgical treatment in various hospitals and clinics.  Since his condition had not improved and he was permanently unable to walk, on an unspecified date following the termination of his treatment the Social Security ( Zakład Ubezpieczeń Społecznych ) assessed him as having the so-called "first degree of disability" (i.e., resulting from an incurable disease or permanent invalidity).

17. On 14 October 1989 the applicant lodged a claim  with the  Warsaw Regional Court (Sąd Wojewódzki ), seeking compensation from the Central Hospital of the Ministry of the Interior.  He requested compensation for the inappropriate medical treatment which had resulted in his disability.  He also asked the court to grant him legal assistance and a general exemption from court fees.  On 28 September 1989 and 13 November 1989, respectively, the court granted his requests.

18. On 20 December 1989 the Warsaw Regional Court directed the applicant's officially-appointed lawyer to submit, within the fourteen-day time-limit, a pleading containing the precise statement of claim,  on pain of the claim submitted by the applicant on 14 October 1989 being returned to him.  Since the lawyer failed to comply with the court's direction, it returned the applicant's original pleading to him on 15 January 1990.  On an unspecified date the applicant appealed against this order to the Supreme Court (Sąd Najwyższy ).  He further requested the Supreme Court to grant him retrospective leave to appeal out of time as, apparently, he had failed to comply with the time-limit prescribed for his appeal.  Finally, following several procedural motions by the applicant and his lawyer, a pleading complying with the Warsaw Regional Court's request of 20 December 1989 was lodged with that court on 17 February 1990.  It was served on the defendant on an unspecified date.  On 5 March 1991 the defendant lodged its pleading in reply.

19. In the meantime, from an unspecified date in June 1990 to 3 December 1990, the case-file remained at the Supreme Court, which dealt with the applicant's appeal and his request for retrospective leave to appeal out of time on 26 June and 9 October 1990.

20. On 11 June 1991 the Warsaw Regional Court ordered that evidence be taken from witnesses and medical experts and that it be heard by the court of the applicant's place of residence, i.e. the Kluczbork District Court (Sąd Rejonowy ).  Subsequently, the Regional Court decided that the Wrocław District Court should hear evidence from the experts from the Wrocław Academy of Medicine, which were appointed to prepare a report.  The report in question was submitted to the Warsaw Regional Court on 19 June 1992.

21. Meanwhile, on several occasions, the applicant unsuccessfully requested the court to transfer his case to the Opole Regional Court, submitting that he was not able to travel from his place of residence to the court dealing with his case.  The last of these requests was dismissed on 25 January 1993 since the law did not permit such a transfer.

22. During a hearing held on 28 October 1993 the Warsaw Regional Court, upon the parties' request, ordered that evidence be taken from medical experts (an orthopaedist and an internist) of the Warsaw Academy of Medicine in order to establish whether or not there was a causal link between the operation carried out on 30 July 1985 and the applicant's disability and whether the diagnosis preceding his operation had been correct.  On 18 March 1994 the experts submitted their report.             

23. In the meantime, on 4 January 1994, the applicant complained to the Minister of Justice about the length of the civil proceedings instituted by him.  In a letter of 2 February 1994 the Minister of Justice informed him that the delay in the proceedings had resulted from the fact that the experts' report was not ready yet.  He also admitted that the applicant's objections to the excessive length of the proceedings were indeed well-founded and that, therefore, the case would be placed under the Minister's supervision.

24. On 7 September 1994 the Kluczbork District Court, on the request of the Warsaw Regional Court, heard evidence from the applicant.

25. On 18 September 1995 the Warsaw Regional Court held a hearing.  It took evidence from the surgeon who had treated the applicant and performed the operation allegedly resulting in the applicant's disability.  On the same day the applicant filed a pleading.  He requested the court to give a preliminary judgment in his case.

26. On 13 November 1995 the court held the next hearing.  It was adjourned since the applicant's lawyer requested the court to call further evidence from medical experts.

27. On 9 February 1996 the court, apparently finding that there was a discrepancy between the two medical reports, requested experts of the Faculty of Internal Diseases of the Jagiellonian University in Cracow (i.e. an internist, an orthopaedist and a cardiologist) to prepare a report assessing whether the applicant's disability had resulted from the original surgical treatment and whether the diagnosis of his disease, his operation and his post-operation treatment had been correctly carried out.

28. On 12 February 1996 the applicant filed his next pleading.  He again requested the court to give a preliminary judgment.  He also withdrew his lawyer's request for further evidence from medical experts to be called, in view of the excessive delay in obtaining such evidence and the fact that the proceedings in question had meanwhile lasted over six years.

29. On 8 March 1996 the experts from the Jagiellonian University informed the court that the Faculty of Internal Diseases was not competent to prepare a report relating to the applicant's previous surgical treatment and his disability.

30. On 16 March 1996 the applicant complained to the Chief Justice of the Warsaw Court of Appeal (Sąd Apelacyjny ) about the unusual length of the proceedings in his case.  In a letter of 22 April 1996 the Chief Justice apologised to the applicant for the delay in the proceedings which, in his view, was partly attributable to the court dealing with the case. He also stated that the difficulties in obtaining experts' reports had fundamentally affected the proper course of the proceedings in question.

31. On 30 April 1996 the court requested experts from the Poznań Academy of Medicine to prepare a report in the applicant's case.  Subsequently, the experts informed the court that they would not be able to prepare the requested report for several months.

32. On 17 September 1996 the court requested experts from the Łódź Academy of Medicine to prepare a report in the applicant's case within one month.  Since the experts failed to do so, on 14 January and 20 February 1997 the court issued reminders to them.  On 13 May 1997 the experts submitted their report to the court.  The court scheduled a hearing for 11 September 1997 in order to hear evidence from the experts.  The hearing was adjourned for unspecified reasons.

33. Subsequently, on an unspecified date, the applicant requested the court to order that evidence from the experts from the Łódź Academy of Medicine be heard by the court of his place of residence, i.e. the Kluczbork District Court.  In particular, he stressed the fact that he was unable to travel due to his disability and had not, to date, been able to participate in any hearings.  He stated that he wished to examine the experts in person and put questions to them.  On an unspecified date the court ordered that evidence from the experts be heard by the Łódź District Court on 12 December 1997.  The applicant was notified of this decision on 26 November 1997.

34. On 12 November 1997 the applicant filed a pleading, amending his claim so as to increase the amount of compensation sought, submitting that since 14 October 1989, i.e. the date on which he had lodged his original claim, the purchasing power of the monies at stake had significantly decreased.

35. On 26 November 1997 the applicant lodged a complaint with the Warsaw Regional Court, submitting that he had repeatedly requested that evidence from the experts should be heard by the Kluczbork District Court.  He was an invalid.  He had not been able to participate in a single hearing throughout the entire proceedings.  As a result, he had been put in a disadvantageous position in comparison to the opposing party.  Thus, the refusal to grant his request had severely impaired his access to court which, in any event, had been (and was) limited by the nature of his disability.  He again requested the court to order that evidence from experts be heard by the Kluczbork District Court.

36. On 19 February, 5 March, 23 April and 1 June 1998 the next hearings in the applicant's case were to take place but were cancelled for unspecified reasons.  Afterwards, on an unspecified date, the court, of its own motion, called evidence from an accountancy expert, asking him to establish the income which the applicant would have received if he had been able to be employed.  The proceedings are still pending before the court of first instance.

B. Relevant domestic law

37. The Polish Code of Civil Procedure refers to the question of "speediness of proceedings" in relation to proceedings as a whole.  In particular, under Section 6 of the Code,  the court competent to deal with the case shall ensure that proceedings are not excessively prolonged and endeavour , as far as possible without prejudicing the determination of the case, to resolve the case at the first hearing held.

38. Chapter III of the Code, entitled "Evidence", refers to the assessment and admissibility of evidence.  Under its provisions read as a whole, it is the duty of a litigant to prove all the facts relevant to the claim submitted to the court, whereas it is for that court to assess the relevance of any evidence to the resolution of the case.  The parties do not have an unlimited right to call evidence, as it is for the court to decide at any stage of the proceedings whether or not the evidence already adduced by them is sufficient for the determination of the claim in question.             

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

39. The Commission has declared admissible the applicant's complaint that the length of the proceedings in his case exceeded a "reasonable time" within the meaning of Article 6 para. 1 of the Convention.

B. Point at issue

40. Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

41. The applicant complains under Article 6 para. 1 of the Convention about the length of the civil proceedings instituted by him before the Warsaw Regional Court.

42. Article 6 para. 1 of the Convention, insofar as relevant, states:

"1. In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by ... [a] ... tribunal established by law. ..."

43. The applicant submits that the length of the proceedings in his case clearly exceeded a "reasonable time" within the meaning of Article 6 para. 1 of the Convention.  Thus, the proceedings have been pending before the court of first instance for nearly nine years.  The Warsaw Regional Court was (and is), however, either unable or unwilling to determine the claim submitted to it.  Moreover, his case is not a complex one as the only issue to be determined is whether there is a causal link between the operation on his leg carried out at the hospital (for which the defendant is responsible) and his subsequent disability.

44. The applicant further stresses that neither his conduct nor the way in which he has exercised his procedural rights can be regarded as factors contributing to the length of the proceedings in question.  He is an invalid, permanently unable to walk, and the entire proceedings were conducted without his personal participation.  The fact that he requested the court to order that some parts of the evidence be heard by the court of his place of residence, i.e. the Kluczbork District Court, cannot be held against him; after all the Warsaw Regional Court repeatedly ordered that evidence be heard before various other courts, apparently for the experts' convenience.  The applicant concludes that the excessive length of the proceedings in his case resulted from inactivity on the part of the Warsaw Regional Court.

45. The Government submit that in the light of the criteria relevant to the notion of a "reasonable time" within the meaning of Article 6 para. 1 of the Convention, deriving from the Convention organs' case-law, the length of the proceedings in the applicant's case was reasonable even though they have, as a whole, lasted for a regrettably long time.

46. They firstly argue that the applicant's case is a very complex one.  The Warsaw Regional Court, in order to determine his claim properly, had to establish whether or not there was a causal link between the operation which the applicant had undergone in 1985 and his disability.  Accordingly, the court had to assess the facts relevant to his claim in the light of reports by medical experts.  Upon the parties' requests, the court ordered that evidence be taken from experts on three occasions.  Moreover, due to the particularly complex medical problems arising from the applicant's operation and his subsequent treatment, the court ordered that reports be submitted by experts from scientific institutes, i.e. Academies of Medicine.  There was, however, a discrepancy between the conclusions of the first two reports.  Since this discrepancy concerned a complex medical problem, the Warsaw Regional Court ordered that fresh evidence from experts be obtained.

47. The Government further submit that the court faced difficulties in finding appropriate experts.  It is true that, regrettably, this contributed to slowing down the proceedings.  However, the Warsaw Regional Court, by making consistent efforts aimed at obtaining evidence which was decisive for the outcome of the case, displayed due diligence in dealing with the applicant's case.  It made various, and eventually successful, attempts to find the appropriate experts and to supervise their work, in particular by means of extensive correspondence with the experts and frequent reminders addressed to them.  It held hearings at regular intervals and, when necessary, ordered that evidence be heard by other courts so as to avoid any further delay in the proceedings.  Finally, regard must be had to the fact that, in recent years, medical institutes throughout Poland have been overburdened by the number of courts' requests for expert reports.  As a consequence, the Polish judiciary has been dealing with a general problem of obtaining evidence from experts promptly.

48. In their opinion, the conduct of the applicant was a main factor contributing to the length of the proceedings concerned, especially at an early stage of the proceedings.  Since the applicant had failed to comply with the Warsaw Regional Court's direction to submit a pleading containing the precise statement of claim and, subsequently, lodged an appeal with the Supreme Court, the court of first instance was unable to deal with his case until 5 January 1991.  Furthermore, the applicant also requested the court to order that evidence be heard by the Kluczbork District Court and lodged other motions and appeals.  He had the right to do so; however, he should also have been aware that it might result in the prolongation of the proceedings.

49. Finally, the Government stress that the applicant had undergone his operation on 30 July 1985 but lodged the claim for compensation arising from the allegedly inappropriate treatment as late as 14 October 1989.  The lapse of time between these two events partly contributed to the complexity of his case and resulted in the court and experts having significant difficulties in establishing whether or not there was a causal link between the medical treatment in question and the applicant's disability.

50. The Commission notes that the proceedings in question commenced on 14 October 1989 when the applicant launched his civil action for compensation and that, since then, they have been pending before the court of first instance, i.e. the Warsaw Regional Court.  Their overall length has, to date, been nearly nine years (see paras. 17 and 36).

51. The Commission has already found in its decision on admissibility that, by reason of its competence ratione temporis , it can examine the applicant's complaint only insofar as it relates to the proceedings after 30 April 1993 (i.e. the date on which Poland's declaration acknowledging the right of individual petition took effect) onwards, taking into consideration the stage of the proceedings reached at this date.  Consequently, the length of the proceedings to be examined under Article 6 para. 1 of the Convention currently amounts to about five years and four months.

52. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Convention organs' case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see Eur. Court HR, Proszak v. Poland judgment of 16 December, Reports of Judgments and Decisions 1997-VIII, No. 59, p. 2772, para. 32).

53. It further reiterates that, in the context of judicial proceedings, experts' work is subject to the control of a judge, who remains responsible for the preparation and speedy conduct of the proceedings and who, in particular, has a duty to ensure that the task of preparing expert reports is properly discharged (see, e.g. Eur. Court HR, Billi v. Italy judgment of 26 February 1993, Series A no. 257-G, p. 89, para. 19; Proszak v. Poland judgment loc. cit. No. 10474/83, Dec. 12.3.89, D.R. 60, p. 78). 

54. As regards the complexity of the applicant's case the Commission observes that the determination of his claim relates solely to the question of whether, and if so to what extent, his previous medical treatment was a cause of his disability.  Moreover the court has, to date, heard no evidence from witnesses, except for the applicant and the surgeon who had operated on him (see paras. 17 and 24-25).

55. It is true that, due to the nature of the claim to be determined, evidence needed to be taken from medical experts in order to establish whether there was a causal link between the applicant's operation and his subsequent disability.  It is also true that the Warsaw Regional Court admitted such evidence on three occasions as, apparently, there was a discrepancy between the two first reports (see, paras. 20, 22, 26-29 and 31-32).

56. In the Commission's view, however, lack of unanimity between the experts can hardly be seen as an element substantially complicating the case because the resolution of such problems, which frequently arise in judicial practice, falls totally within courts' general power to admit and assess  the evidence before them and, thus, accept or reject any conclusions reached in expert reports.  Accordingly, having regard to the character of the legal and factual issues involved in the determination of the applicant's claim, the Commission does not consider that his case is a particularly complex one.

57. Nor does it consider that the conduct of the applicant materially contributed to the overall length of the proceedings.  In this respect the Commission notes that the arguments relied on by the Government (in particular those relating to the initial phase of litigation which, clearly, falls outside the temporal competence of the Commission) are not convincing, especially when the time taken up by the applicant's failure to clarify his statement of claim is compared with the overall length of the litigation concerned.  Also, the lapse of time between the date on which the applicant had undergone the operation on his leg and the date on which he submitted his claim to the court cannot be held against him.  It is clear that during this period he was undergoing further treatment aimed at improving his condition, which came to an end as late as 26 July 1989, i.e. some mere three months before the proceedings started (see paras. 16 and 18-19).

58. In contrast, the Commission finds that the manner in which the Warsaw Regional Court has been dealing with the applicant's case has been a main factor substantially prolonging the proceedings.  This finding concerns, first of all, the incoherent attempts made by that court in order to obtain evidence from medical experts.  The applicant's claim could not, indeed, be determined without obtaining such evidence.  However, the first expert report had already been submitted to the court on 19 June 1992.  That being so, the court had had at its disposal evidence relevant to the determination of the case before the start of the period to be considered under Article 6 para. 1 of the Convention commenced (see, para. 20).

59. Had the court, without a long delay, prepared the case for a hearing, thus prompting the parties to clarify their positions on the report, it would have speedily decided whether or not further evidence from experts should be obtained.  Yet the Commission observes that the court waited for more than sixteen months before ordering, on 28 October 1993, upon the parties' request, that fresh evidence from medical experts be taken.  It obtained the second report on 18 March 1994, i.e. after a reasonably short period of about five months.  There was, apparently, a discrepancy between the two reports; but, according to the rules laid down in the Polish Code of Civil Procedure with respect to the admissibility and assessment of evidence, the court could have decided the case at this stage as it had the power to accept or reject any of the conclusions reached in those reports (see paras. 27, 38 and 46).

60. Nevertheless, on 9 February 1996 (i.e. at the point when nearly two years had elapsed from the date on which the second experts' report had been submitted), upon the applicant's request, the court called other experts, asking them to report on the same issue as that put to the previous experts.  Neither the fact that the applicant (with whom the burden of proof in respect of the claim lay) withdrew his request on 12 February 1996, nor the difficulty of finding suitable experts prompted the Warsaw Regional Court to reconsider its decision.  It is true that it made some efforts to supervise the experts' work by issuing two reminders to them.  Despite this, the third expert report was submitted to the court after approximately fifteen months, i.e. on 13 May 1997 (see paras. 27-32).

61. The proceedings are still pending because, after cancelling all of the four hearings which were to be held between 19 February and 1 June 1998, and after a lapse of approximately one year from the date on which the court had had at its disposal the final report prepared by the medical experts, the court ordered that evidence from an accountancy expert be obtained (see paras. 36 and 47).

62. In this context the Commission observes that this last substantial period of inactivity on the part of the court lacks any rational explanation and seems to be the negation of its previous efforts to urge the medical experts to submit their report promptly.

63. Finally, the Commission also notes that with respect to planning its schedule of hearings in the proceedings the Warsaw Regional Court acted with similar slowness.  This was, however, a simple consequence of the fact that almost the entire period under consideration was taken up by the court's search for expert evidence and that the procedural activity displayed by the court in this connection was to little avail because its actions aimed at obtaining this evidence were, in general, incoherent and ineffective.  Throughout the entire period under consideration it scheduled eight hearings in all.  They were held at intervals of from several weeks to nearly two years (e.g. no hearing was scheduled between 13 November 1995 and 11 September 1997) and five of them were cancelled for unspecified reasons (see paras. 22, 25-26, 32 and 36).

64. In sum, the Commission, assessing the circumstances of the present case in the light of the criteria established by case-law and, more particularly, having regard to the delays in the proceedings for which the authorities were responsible, considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement laid down by Article 6 para. 1 of the Convention.                              

CONCLUSION

65. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

   M.-T. SCHOEPFER                          J.-C. GEUS

      Secretary                                  President

to the Second Chamber                     of the Second Chamber