AS TO THE ADMISSIBILITY OF

Application No. 36424/97

by Stanisława WALEWSKA

against Poland

The European Commission of Human Rights (Second Chamber) sitting in private on 9 September 1998, 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

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 June 1996 by Stanisława Walewska against Poland and registered on 10 June 1997 under file No. 36424/97;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1933, is retired and resides in Siedlisko .

The facts of the case, as submitted by the applicant, can be summarised as follows:

Particular circumstances of the case

In August 1984 the applicant's son was drafted for two years mandatory military service.  In 1985 he was admitted to the Warsaw Military Hospital with symptoms of colagenosis and later a diagnosis of malignant lymphoma was established.  He died on 20 September 1986.

The applicant and her husband lodged a compensation claim with the Wolsztyn District Court (Sąd Rejonowy ).  On 28 April 1988 the court dismissed the claim, considering that the applicant's son's illness was not related in any way to his military service, as shown by evidence before the court, including the evidence given by his military superiors and a medical expert report of the Forensic Medicine Department of the Poznań Medical Academy.  It had been stated in this report that there had not been any causal link between the conditions of the military service and the applicant's son's illness and death.

The applicant lodged an appeal.  On 31 August 1989 the Zielona Góra Regional Court (SÄ…d Wojewódzki ) quashed the impugned judgment and ordered that the case be re-examined, considering that the lower court had failed to establish all the facts necessary for a decision on the applicant's claim with sufficient precision, in particular whether her son had been subjected to harmful radiation, and that its assessment of the evidence had been superficial.

On an unspecified later date the Institute of Occupational Medicine in Łódź lodged its expert report with the Wolsztyn District Court.  The conclusion of the report was that there was no causal link between the conditions of the applicant's son military service and his death.

On 8 November 1991 an expert opinion of the Radionuclear Medicine Department of the Central Military Hospital of the Military Medical Academy in Łódź was filed with the court.  It was stated in the opinion that the applicant's son had not been subjected to ionising radiation. During his service he had been working with radar.  The so-called microwave radiation used in radars was not known to have any harmful effects on human health.  It was further stated that the applicant had apparently confused ionising radiation with other kinds of electromagnetic radiation.  The conclusion was that there was no causal link between the applicant's son's death from cancer and the conditions of his military service.  The author of the opinion referred also to the identical conclusions of another expert opinion contained in the case-file.

On 20 July 1992 the Institute of Occupational Medicine submitted a further opinion to the Wolsztyn District Court, in which it was stated that the military unit in which the applicant's son had served had used radars ; that it was true that radars were a source of radiation, but that this radiation, being of a non- ionising character, was not carcinogenic and could not have been a cause of the applicant's son's death.

On an unspecified later date the applicant requested that the proceedings be stayed and the other party apparently agreed to this.  The court complied with her request on 7 September 1992.

In a letter to the applicant of 11 September 1992, the Director of the Institute of Occupational Medicine reiterated that her son could have been subjected during his service to microwave radiation used in radars , but that such radiation did not have a carcinogenic effect and could not have been a cause of his illness and death.

In a further letter to the applicant of 6 January 1993, the Director of the Institute pointed out that the applicant seemed to confuse ionising radiation which was known to have harmful effects on human health, with non- ionising radiation.  The latter, used inter alia in radars , television, radio and microwave ovens, was not sufficiently strong to cause the ionisation of any biological matter and thus could not be harmful to living organisms.  It was further stated that the persons who had prepared the expert opinion of 20 July 1992 had had full access to the medical case-file of the applicant's son and had prepared the expert opinion on the basis thereof.

On 28 February 1996 the Wolsztyn District Court discontinued the civil proceedings, considering that they had remained stayed for over three years and the parties had not requested that they be resumed.

Relevant domestic law

Article 182 para. 1 of the Code of Civil Procedure provides that the court shall discontinue proceedings that were stayed upon the joint request of the parties, if no request for their resumption is submitted during three years from the date on which they were stayed.

COMPLAINTS

The applicant complains in substance under Article 2 of the Convention that her son died as a result of harmful radiation he had been subject to during his military service. She further complains in substance under Article 6 of the Convention that the civil proceedings were discontinued as she did not have at her disposal any evidence to show that her son had died as a result of his service and thus could not prove that her claim was well-founded, even though she remains persuaded that her son did not die of natural causes.

THE LAW

1. The applicant complains that her son died as a result of the harmful conditions of his military service.  The Commission notes that the death of the applicant's son occurred on 20 September 1986.

The Commission recalls that Poland recognised the competence of the Commission to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".  The Commission is not competent to examine complaints relating to alleged violations of the Convention by acts, decisions or events that have occurred prior to this date.

Therefore, even assuming that the death of the applicant's son due to the allegedly harmful conditions of his military service  could raise any issue under Article 2 of the Convention, the Commission observes that the facts alleged, as they occurred before 1 May 1993, April 1993, are outside its competence ratione temporis and the applicant's complaints in this respect must be rejected as being incompatible with the provisions of the Convention within the meaning of its Article 27 para. 2.

2. The applicant complains in substance about the unfairness of the civil  proceedings.

The Commission first observes that the proceedings before the Wolsztyn District Court were stayed on 7 September 1992 at the applicant's request.  They were subsequently discontinued on 28 February 1996 in pursuance of Article 182 para. 1 of the Code of Civil Procedure, in view of the fact that none of the parties had submitted a request for their resumption. As the decision to discontinue the proceedings was given after the date from which Poland has recognised the right of individual petition, the Commission cannot reject this complaint as being outside its competence ratione temporis . The Commission has therefore examined whether the decision to discontinue the proceedings, which was the only one taken after 30 April 1993, was in compliance with the requirements of Article 6 para. 1 of the Convention, which states, insofar as relevant:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... "

The Commission observes that the proceedings were stayed at the applicant's request.  She did not request that they be resumed.  The Commission further notes that she has acknowledged that she did not have at her disposal any further evidence to prove that her claim was well-founded as regards the causal link between her son's death and his military service.  It does not transpire from the documents in the case-file that the applicant was denied access to any documents concerning her son's medical history.  The Commission considers that, in the light of the applicant's submissions, there is no indication that she could not have put forward any arguments she might have had to support her claim and to request that the proceedings be resumed in the light thereof, or that the court's decision to discontinue the proceedings was arbitrary.

It follows that this part of the application must be declared manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

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

      Secretary                                                                         President

to the Second Chamber                                             of the Second Chamber