Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 28616/95

Szczepan Styranowski

against

Poland

REPORT OF THE COMMISSION

(adopted on 3 December 1997)

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. 16-47) . . . . . . . . . . . . . . . . . . . . .3

The particular circumstances of the case

(paras. 16-47). . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 48-68) . . . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 48). . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 49). . . . . . . . . . . . . . . . . . . . .7

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

(paras. 50-67). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 68). . . . . . . . . . . . . . . . . . . . 10

DISSENTING OPINION OF MR P. LORENZEN JOINED BY

MRS G.H. THUNE, MM F. MARTINEZ, I. CABRAL BARRETO, E.A. ALKEMA11

APPENDIX I: PARTIAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION . 12

APPENDIX II: FINAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION . 18

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, a Polish citizen born in 1923, is a retired judge

residing in Olsztyn.

3. The application is directed against Poland. The respondent

Government were represented by Mr Krzysztof Drzewicki of the Ministry

of Foreign Affairs.

4. The case concerns the length of civil proceedings. The applicant

invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 24 July 1995 and registered on

21 September 1995.

6. On 27 June 1996 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 the admissibility and merits of the

applicant's complaint under Article 6. It declared the remainder of

the application inadmissible.

7. The Government's written observations were submitted on

28 October 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 29 November 1996.

8. On 27 June 1996 the Commission declared admissible the

applicant's complaint under Article 6 para. 1 of the Convention.

9. The text of the Commission's decision on admissibility was sent

to the parties on 21 April 1997.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing

a friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

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:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 3 December 1997 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.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(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.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

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

The particular circumstances of the case

16. In May 1991 the applicant retired. The Social Insurance

authorities calculated his retirement pension on the basis of his

contributions at the level of about 45 per cent of his salary, in

accordance with the relevant provisions of the Retirement Pensions Act

of 1972. The applicant's pension was calculated on the basis of his

actual salary upon retirement, which was equivalent to 314 per cent of

an average salary.

17. On 1 December 1991 the Social Insurance authorities in Olsztyn

issued a new decision, in accordance with the amendment of the

Retirement Pensions Act of 17 October 1991, reducing the applicant's

retirement pension by 1.075,600 zlotys. This pension was calculated

on the assumption, introduced by that amendment, that the applicant's

income upon retirement had not exceeded a maximum level of 250 per cent

of an average salary, regardless of his actual salary at that moment.

18. On 17 December 1991 the applicant appealed against this decision

to the Olsztyn Regional Court - Labour and Social Insurance Division

(S*d Wojewódzki - S*d Pracy i Ubezpieczen Spolecznych). He submitted

that the 250 per cent ceiling introduced by the October 1991 amendment

deprived him of a part of his retirement pension.

19. On 17 December 1991 the applicant also filed a compensation claim

against the Social Insurance with the Olsztyn District Court (S*d

Rejonowy). He complained that his retirement pension had been

recalculated and reduced in accordance with generally applicable rules,

i.e. disregarding the fact that his actual salary upon retirement had

been equivalent to 314 per cent of an average salary. He submitted

that the Social Insurance, in accepting the law which had imposed

a ceiling of 250 per cent of an average salary as the highest basis on

which a retirement pension could be calculated, had failed to respect

its obligations towards the applicant. These obligations originated

from the applicant's payment of contributions to the social security

retirement pension scheme for forty-four years. No legal provisions

throughout this period provided for any ceiling such as the one

introduced by the October 1991 Act. Thus the action of the Social

Insurance had given rise to a liability towards the applicant based on

tort.

20. In a judgment of 11 February 1992 the Constitutional Court

(Trybunal Konstytucyjny), having examined, upon the Ombudsman's motion,

the October 1991 Retirement Pensions Act as to its compatibility with

the Constitution, ruled that certain provisions of the Act were

incompatible with the Constitution.

21. On 25 May 1992 the Warsaw Court of Appeal - Labour and Social

Insurance Division (S*d Apelacyjny - S*d Pracy i Ubezpieczen

Spolecznych) complied with the request submitted by all the Olsztyn

Regional Court (S*d Wojewódzki) judges to have the applicant's appeal

against the Social Insurance decision of 1 December 1991 examined by

another court in view of the fact that the applicant had been their

superior for many years. The case was accordingly transferred to the

Warsaw Regional Court - Labour and Social Insurance Division. This

Court held a hearing on 8 September 1992 and dismissed the applicant's

appeal against the decision of 1 December 1991, considering that the

impugned decision was in conformity with the relevant provisions of the

Retirement Pensions Act as amended by the October 1991 Act.

22. Subsequently on 9 February 1993 the Social Insurance authorities

issued a new decision concerning the applicant's retirement pension on

the basis of certain new documents indicating that the applicant's

salary upon his retirement had in fact been higher than the amount

which had served as basis of the December 1991 decision. The applicant

appealed against this decision, complaining again that the basis on

which to recalculate his pension should not have been limited to

250 per cent of the average salary as provided for by the relevant

legal provisions. On 14 May 1993 the Warsaw Regional Court - Labour

and Social Insurance Division allowed the applicant's appeal as regards

the period until 1 January 1992 and dismissed it insofar as it related

to the period after that date, i.e. after the entry into force of the

October 1991 Act. The Court considered that the 250 coefficient had

been provided for in the relevant provisions of the October 1991 Act

applicable after this date and that in applying these provisions to the

applicant's case the Social Insurance had been acting in accordance

with the law.

23. In the proceedings concerning the compensation claim, on

20 May 1992 the Warsaw Court of Appeal complied with the request

submitted by all the Olsztyn Regional Court judges to have the

compensation case examined by another court as regards any decisions

to be taken by the appellate court. The Court decided that in view of

the fact that the applicant had been a Deputy President of the Olsztyn

Regional Court, the appeal proceedings in the case should be

transferred to the Ostrol*ka Regional Court. On 19 June 1992 the

case-file reached the Ostrol*ka Regional Court.

24. On 26 June 1992 the Warsaw Court of Appeal complied with the

request submitted by all the Olsztyn District Court judges to have the

compensation case examined by another court and decided that in view

of the fact that the applicant had been a Deputy President of the

Olsztyn Regional Court, the case should be transferred to the Szczytno

District Court.

25. On 29 September 1992 the Ostrol*ka Regional Court, at the request

of the judges of the Szczytno District Court, decided that the case

should be examined in the first instance by the Przasnysz District

Court.

26. The first hearing, fixed for 9 November 1992, was adjourned as

the Court did not receive a confirmation that the defendant Social

Insurance had received the summons.

27. On 17 November 1992 the applicant informed the Przasnysz District

Court that he maintained his claim and requested that a certain witness

be heard. The Przasnysz Court requested the Olsztyn District Court to

hear this witness.

28. The hearing fixed for 24 November 1992 was adjourned as the

witness requested by the applicant failed to appear.

29. The date of a hearing was fixed for 30 December 1992. The

applicant requested that this hearing be adjourned. The Olsztyn

District Court fixed a new hearing for 14 January 1993 and heard the

witness requested by the applicant on that date.

30. On 19 January 1993 the applicant requested that the Court rectify

the minutes of the hearing held on 14 January 1993. The Court complied

with this request on 15 April 1993.

31. On 18 May 1993 the hearing was adjourned as the defendant had not

submitted the confirmation that it had received the summons.

32. On 17 September 1993 the applicant complained to the Przasnysz

District Court about the length of the compensation proceedings and

requested that the date of the next hearing be fixed. He also

requested that the former Prime Minister who had been in office until

June 1993 be heard as a witness to support the applicant's claim that

in the past the social security contributions had been used by the

State for other purposes than paying social insurance benefits.

33. On 20 September 1993 the applicant requested that a date of the

next hearing be fixed with no delay. On the same date the presiding

judge ordered that the applicant be informed that due to serious

staffing difficulties the date of the hearing would be fixed later.

34. The next hearing was fixed for 25 January 1994. On

21 January 1994 the applicant informed the Przasnysz Court that he

would be unable to attend the hearing at which his attendance was not

obligatory. He maintained his claim and referred to the Constitutional

Court's judgment of 11 February 1992 in which the Court had stated that

certain provisions of the October 1991 amendment to the Retirement

Pensions Act were incompatible with the Constitution. On

25 January 1994 the hearing was adjourned as the parties did not

appear.

35. The next hearing was fixed for 23 September 1994. On

16 September 1994 the applicant informed the Przasnysz Court that he

would be unable to attend the hearing at which his attendance was not

obligatory. He maintained his claim and requested again that the

former Prime Minister be heard, referring to his letter of

17 September 1993.

36. On 23 September 1994 the hearing was further adjourned as the

Court decided to request the Social Insurance authorities to submit the

applicant's case-file. This case-file reached the Court on

27 October 1994.

37. On 7 December 1994 the applicant complained to the Minister of

Justice about the length of the proceedings and in particular about the

hearings having been adjourned on numerous occasions without

justification.

38. In reply, in a letter of 10 January 1995 the President of the

Ostrol*ka Regional Court informed the applicant that his case should

be considered as being "privileged" since the hearings in his case had

been fixed for 9 November 1992, 24 November 1992, 25 January 1993,

18 May 1993 and 23 September 1994. In view of the fact that the

Przasnysz Court was understaffed, these intervals between the hearings

were sufficient to secure appropriate progress in the proceedings. It

should be noted that the applicant had failed to appear at all these

hearings. The next hearing had been set for 7 February 1995 and the

case was ready for a prompt ruling.

39. In a letter of 11 January 1995 the applicant stressed that he had

been present at the hearing of 14 January 1993 and had extensively

pleaded his case. It was true that he had not been present at other

hearings, but he had requested that the case be considered in his

absence. Moreover, the court had never required his attendance at any

of the hearings. After the hearings the applicant had submitted

several letters to the court in which he explained his position in the

light of the progress in the case. It had not transpired from the

information which he had obtained on the phone after every hearing that

any of the hearings had been adjourned because of his absence or his

failure to submit documents or evidence required by the court.

40. In a letter to the Court of 2 February 1995 the applicant

informed the Przasnysz District Court that he would be unable to attend

the hearing on 7 February 1995 as his attendance was not obligatory.

He maintained his claim and submitted further legal reasoning to

support his claim.

41. On 7 February 1995 the Przasnysz District Court rejected the

applicant's claim, considering that the matter was res iudicata since

the issue of the ceiling to which the applicant's retirement pension

was subjected had been ruled on in two sets of proceedings, terminated

by the judgments of 8 September 1992 and 14 May 1993, respectively.

42. On 8 February 1995 the applicant requested that the written

grounds be prepared. They were served on the applicant on

3 April 1995.

43. On 5 March 1995 there was a fire in the building of the Przasnysz

District Court.

44. On 6 April 1995 the applicant lodged an appeal against the

decision of 7 February 1995.

45. On 13 July 1995 the Ostrol*ka Regional Court quashed the decision

of 7 February 1995 and ordered that the case be reconsidered. The

Court observed that in the first proceedings the only issue which had

been decided by the court was whether the calculation of the

applicant's retirement benefits complied with the relevant legal

provisions. In the compensation proceedings the applicant claimed

compensation for the alteration of the conditions of the contract with

the Social Insurance and his claim was based on tort. As these two

claims were not identical, the second claim could not be considered as

being affected by res iudicata.

46. The next hearing was held on 3 October 1995. The court adjourned

the pronouncement of the judgment. The judgment was pronounced on

17 October 1995. On 29 October 1995 the applicant requested that the

written grounds be prepared. They were served on him on

5 December 1995. On 13 December 1995 the applicant filed an appeal.

On 16 January 1996 the Ostrol*ka Regional Court dismissed the

applicant's appeal.

47. On 11 March and 23 April 1996 the applicant requested that the

reasoned judgment be served on him.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

48. The Commission has declared admissible the applicant's complaint

that the civil proceedings lasted too long.

B. Point at issue

49. The point at issue is whether there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

50. Article 6 para. 1 (Art. 6-1) of the Convention in its relevant

part reads:

"In the determination of his civil rights and obligations

... everyone is entitled to a fair ... hearing within a

reasonable time ..."

51. The case concerned the applicant's compensation claim against the

local branch of the Social Insurance in which he complained that his

retirement pension had been recalculated and reduced in accordance with

generally applicable rules. He argued that the defendant was liable in

tort therefor. The Commission considers that Article 6 (Art. 6) is

therefore applicable to the proceedings in question as they concerned

civil liability in tort.

52. The proceedings complained of began on 17 December 1991 when the

applicant lodged his compensation claim with the Olsztyn District

Court. They ended on 16 January 1996, the date on which the Ostroleka

Regional Court dismissed the applicant's appeal.

53. The Commission recalls that Poland has recognised the right of

individual petition only in regard to events occurring after the date

of that recognition. Consequently, the period to be considered started

on 1 May 1993, the date on which the recognition by Poland of the right

of individual petition took effect. The Commission further recalls

that in cases where it can, by reason of its competence ratione

temporis, only examine part of the proceedings, it can take into

account, in order to assess the length, the stage reached in the

proceedings at the beginning of the period under consideration (see

No. 7984/77, Dec. 11.7.79, D.R. 16, p. 92). Therefore, the proceedings

have lasted four years and one month, out of which the period to which

the Commission's examination relates is two years, eight months and

sixteen days.

54. 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 with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (see Eur. Court HR, Vernillo

v. France judgment of 20 February 1991, Series A no. 198, p. 12,

para. 30).

55. The applicant submits that the case was not complex, as shown by

the written grounds of the judgment in which the court dismissed his

claim in a summary manner, and that the facts were not in dispute

between the parties.

56. With regard to the conduct of the authorities the applicant

further submits that his professional status as a retired judge of the

Olsztyn Regional Court did not warrant that all the judges of the

Olsztyn District Court step down. The Ostrol*ka Regional Court

transferred the case back to the Szczytno District Court which was

within the jurisdiction of the Olsztyn Regional Court. This

contributed to the further prolongation of the proceedings. The

defendant remained passive throughout the proceedings, as shown by the

fact that his representative was present at only one hearing, and

disregarded the summonses. Two hearings were adjourned as there was

no confirmation in the case-file that the defendant had received the

summonses. The Court failed to take any steps to establish whether the

defendant had really not received them. The applicant emphasises in

this regard that he always received the summonses on time. The

passivity of the Social Insurance cannot be held against the applicant.

57. The applicant contends that the case was ready for a decision

already in early 1994, as he argued in his letter to the Court of

24 April 1994. The Court should have requested the submission of the

case-file of another civil case at an earlier stage of the proceedings

concerned. The written grounds of the decision of 7 February 1995 were

prepared only on 3 April 1995. The fire in the Court did not destroy

the case-file and therefore it should not have affected the conduct of

the proceedings. The Government do not mention the applicant's letters

to the President of the Court and the Minister of Justice in which he

complained about the delays in the proceedings.

58. The Government first contend that the length of the proceedings,

which, after 30 April 1993, lasted two years and eight months, is

justified by the particular circumstances of the case. The case should

be regarded as very complex as to its legal contents. The complex

character of the legal issues involved is shown by the fact that the

compatibility of the October 1991 Act with the Constitution was subject

to the scrutiny of the Constitutional Court, which decided on

11 February 1992 that certain provisions of the Act were incompatible

with the Constitution. In his compensation claim the applicant argued

that the defendant was liable in tort. Such cases are usually

difficult for the courts to decide as it must be established that the

statutory conditions of such liability provided for by law are met.

The compensation case was linked to the applicant's appeal against the

decision of the Social Insurance authorities of 1 December 1991 and the

Przasnysz Court had to request the Warsaw Court to transmit the

case-file.

59. The Government concede that no delays in the proceedings can be

attributed to the applicant. However, certain delays are attributable

to the conduct of the parties. On 9 November 1992 and 18 May 1993 the

hearings were adjourned as there was no confirmation in the case-file

that the summonses had been served on the defendant. The court cannot

be held responsible therefor. On 24 November 1992 the hearing was

adjourned as a witness failed to appear. On 25 January 1994 and

23 September 1994 the hearings were adjourned as both parties failed

to appear. In the course of the proceedings the applicant filed

appeals against certain decisions.

60. As regards the conduct of the authorities, the Government submit

that there were no shortcomings for which the courts could be held

responsible. The dates of hearings were set at the shortest intervals

possible. On 5 March 1995 there was a fire in the Przasnysz Court.

The applicant's file was not destroyed, but serious difficulties in the

functioning of the Court ensued. The applicant's former professional

status as a judge in the Olsztyn Regional Court and the fact that he

had been a direct superior of civil judges in the jurisdiction of that

Court caused many judges to step down, which entailed certain delays

in the proceedings.

61. The Government conclude that the length of the proceedings

complied with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention.

62. As regards the complexity of the case, the Commission considers

that establishing the facts could not give rise to any difficulties,

as no facts were in dispute between the parties. The complexity of the

case, on which the Government mostly rely, was purely of a legal

nature. The applicant, in his claim, relied directly on the

Constitution and on the principle lex retro non agit with regard to his

social insurance rights acquired under the previous legislation.

Therefore the courts had to reply to his arguments which, being of a

constitutional-law nature, are rarely dealt with in the case-law of the

Polish courts. The Commission further notes that it took the courts

two years and two months to reject the action after finding that the

claim constituted res iudicata. In the Commission's opinion, that is

a long period in which to make such a finding.

63. The Commission further considers that the Government have not

shown how the fact that the October 1991 Retirement Pensions Act was

being examined by the Constitutional Court as to its compatibility with

the Constitution could have any bearing on the conduct of the present

case. It must be noted in this respect that the judgment of the

Constitutional Court was pronounced as early as 11 February 1992, thus

at a very early stage of the proceedings concerned and before the time

whose lenngth is to be assessed in this case.

64. The Commission further notes that the Government concede that no

delays in the proceedings can be attributed to the applicant, but that

certain delays occurred for reasons "concerning the parties to the

proceedings", in particular the defendant. However, it was for the

court, by taking appropriate procedural measures, to prevent the

defendant Social Insurance authorities, which were a State-run

public-interest institution, from delaying the proceedings to the

detriment of the applicant. The Commission observes that the court

remained passive in this respect. In particular, it did not enquire

as to why the confirmation that the defendant had received the

summonses had not been submitted to the court before the two hearings

which were consequently adjourned. The Commission further notes that

the applicant's case-file was not destroyed in the fire in the

Przasnysz District Court in March 1995. Therefore it does not find it

established that it could have affected the conduct of the proceedings,

as the Government maintain.

65. The Commission observes that there were significant intervals

between certain hearings, i.e. from 18 May 1993 to 25 January 1994 and

from 25 January 1994 to 23 September 1994. No convincing explanation

has been given therefor.

66. As regards the applicant's conduct, the Commission observes that

his presence at the hearings was not obligatory. It has not been shown

that his absence prevented the court from pursuing the case. As no

facts were in dispute between the parties, the Commission considers

that the applicant's personal presence did not affect the conduct of

the proceedings. He submitted his extensive arguments as to the legal

aspects of the case in his frequent written submissions to the court,

presented in a clear and professional manner.

67. In the light of the criteria established by case-law and having

regard to the particular circumstances of the case, the Commission

considers that the length of the proceedings concerned was excessive

and failed to meet the "reasonable time" requirement under Article 6

para. 1 (Art. 6-1) of the Convention.

CONCLUSION

68. The Commission concludes, by 10 votes to 5, that in the present

case there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

(Or. English)

DISSENTING OPINION OF Mr P. LORENZEN

JOINED BY

Mrs G.H. THUNE, MM F. MARTINEZ,

I. CABRAL BARRETO, E.A. ALKEMA

I am unable to join the majority in finding a violation of

Article 6 para 1 for the following reasons.

According to the case-law of the European Court of Human Rights

the reasonableness of the length of court proceedings is to be

determined in the light of the circumstances of the case, and normally

an overall assessment is called for.

The period to be considered in the present case began on

17 December 1991 when the applicant lodged his compensation claim with

the Olsztyn District Court and ended with the judgment of

16 January 1996 of the Ostrol*ka Regional Court. The proceedings thus

lasted approximately 4 years and 1 month out of which the period which

the Commission is competent to examine directly is 2 years, 8 months

and 16 days.

The proceedings had to be transferred to different jurisdictions

because of the applicant's earlier post as a judge and they were

finally decided by two instances. As submitted by the Government the

proceedings seem to have concerned legal questions of some complexity

which is supported by the fact that the applicant presented extensive

and frequent written submissions on the merits of the case.

Even if procedural errors concerning the summonses of the

defendant and the necessity of the presence of the applicant caused

some delay and that the proceedings were also prolonged by some periods

of inactivity, an overall assessment cannot in my opinion lead to the

conclusion that the total lenght of the proceedings was excessive.

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STYRANOWSKI v. POLAND

STYRANOWSKI v. POLAND

LEXI