Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29697/96

by Wladyslaw GLADKOWSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 March 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

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

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 23 March 1995 by

Wladyslaw GLADKOWSKI against Poland and registered on 4 January 1996

under file No. 29697/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

20 August 1997 and the observations in reply submitted by the

applicant on 15 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1927, is a retired

physician residing in Kluczbork, Poland.

The facts of the case, as submitted by the parties, may be

summarised as follows:

A. Particular circumstances of the case

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 and

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 (Zaklad Ubezpieczen

Spolecznych) assessed him as having the so-called "first degree of

disability" (i.e., resulting from an incurable disease or permanent

invalidity).

On 14 October 1989 the applicant lodged a claim with the Warsaw

Regional Court (S*d 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 a general exemption

from court fees and legal assistance. On 28 September 1989 and

13 November 1989, respectively, the court granted his requests.

On 20 December 1989 the Warsaw Regional Court requested the

applicant's officially-appointed lawyer to submit, within the fourteen-

day time-limit, a pleading containing the precise statement of claim,

on the pain of the applicant's claim submitted on 14 October 1989 being

returned to him. Since the lawyer failed to comply with the court's

request, 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 (S*d Najwyzszy). 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.

In the meantime, from an unspecified date in June 1990 to

3 December 1990, the case-file remained in 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.

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 (S*d Rejonowy). Subsequently, the court decided that

the Wroclaw District Court should hear evidence from experts since the

relevant report was to be made by the Wroclaw Academy of Medicine. The

report in question was submitted to the Warsaw Regional Court on

19 June 1992.

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.

On 28 October 1993, upon the parties' request, the Warsaw

Regional Court 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 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

the applicant 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.

On 18 March 1994 the experts of the Warsaw Academy of Medicine

submitted their report.

On 7 September 1994 the Kluczbork District Court, on the request

of the Warsaw Regional Court, heard evidence from the applicant.

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.

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.

On 9 February 1996 the court requested experts of the Faculty of

Internal Diseases of the Jagiellonian University in Cracow (i.e.

internist, orthopaedist and 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.

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.

On 8 March 1996 the expert 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.

On 16 March 1996 the applicant complained to the Chief Justice

of the Warsaw Court of Appeal (S*d 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.

On 30 April 1996 the court requested experts from the Poznan

Academy of Medicine to prepare a report in the applicant's case.

Subsequently, the experts informed the court that they could only

prepare the requested report in several months' time.

On 17 September 1996 the court requested experts from the Lódz

Academy of Medicine to prepare a report in the applicant's case within

one month.

On 14 January and 20 February 1997 the court issued reminders to

the experts. 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.

Subsequently, on an unspecified date, the applicant requested the

court to order that evidence from the experts from the Lódz Academy of

Medicine be heard before 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 Lódz District Court on 12 December 1997.

On 12 November 1997 the applicant filed a pleading and increased

the amount of compensation claimed, 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.

On 26 November 1997 a summons for the hearing scheduled for

12 December 1997 was served on the applicant. On the same day he

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. Throughout the

entire proceedings he had not been able to participate in the hearings.

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 before

the Kluczbork District Court.

The proceedings are still pending before the court of first

instance.

B. Relevant domestic law and practice

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.

Chapter III of the Code, entitled "Evidence", refers to the

assessment and admissibility of evidence. Under its provisions read

together, it is the duty of a litigant to prove a fact or 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.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the excessive length of the civil proceedings in his case. He

submits that such a delay amounts to a lack of effective access to a

court within the meaning of this provision of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 March 1995 and registered

on 4 January 1996.

On 21 May 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 20 August

1997, after the second extension of the time-limit fixed for that

purpose. The applicant replied on 15 October 1997.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the excessive length of the civil proceedings in his

case. He submits that such a delay amounts to a lack of effective

access to a court within the meaning of this provision of the

Convention.

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

relevant, provides:

"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. ... "

a) The Government submit that the application, insofar as it relates

to events prior to 30 April 1993, is outside the temporal competence

of the Commission. This part of the application is therefore

inadmissible as being incompatible ratione temporis with the provisions

of the Convention within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

The applicant replies that Poland, by ratifying the Convention,

recognised its citizens' unlimited right to submit petitions under

Article 25 (Art. 25) of the Convention. As a result, the Commission

is competent to examine the conduct of the civil proceedings complained

of regardless of whether they went on or have been going on, before or

after 30 April 1993.

The Commission observes that these proceedings commenced on 14

October 1989 (i.e. when the applicant commenced his civil action in the

Warsaw Regional Court) and are still pending. They relate in part to

a period prior to 1 May 1993, the date on which Poland's declaration

acknowledging the right of individual petition took effect. Since, in

that declaration, Poland limited the Commission's competence to facts

subsequent to the declaration, the Commission, by reason of its

competence ratione temporis, can examine the applicant's complaint

about the length of these proceedings only insofar as it relates to the

period after this date. Nonetheless, 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 (No. 7984/77, Dec. 11.7.79,

D.R. 16, p. 92).

b) 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 (Art. 6-1) 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, as a whole, have lasted for a

regrettably long time.

Nevertheless, in assessing their overall length various factors

must be taken into account.

First of all, the Government point out 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 of scientific institutes, i.e. Academies of Medicine. There

was, however, a discrepancy between the conclusions of the first two

reports. Since it concerned a complex medical problem, the Warsaw

Regional Court ordered that fresh evidence from experts be taken.

Secondly, the Government 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 its 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 before 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 in time.

As regards the conduct of the applicant, the Government maintain

that it contributed 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 request to submit

the pleading containing the precise statement of claim and,

subsequently, had 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 before 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.

Finally, the Government point out 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.

The applicant generally contests the Government's submissions.

He replies that the length of the proceedings in his case clearly

exceeded a "reasonable time" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. Thus, the proceedings have been pending

before the court of first instance for more than eight years. The

court was (and is), however, either unable or unwilling to determine

the claim submitted to it. The case is not complex at all as the

only issue to be established is, as the Government have pointed out,

whether there is a causal link between the operation on his leg and his

subsequent disability.

Nor can it be said, in his opinion, that he contributed to the

length of the proceedings in his case. 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 part of evidence be heard before 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 which, in the

Government's opinion, was justified. The applicant concludes that the

excessive length of the proceedings in his case resulted from

inactivity on the part of the Warsaw Regional Court.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of this complaint is

required.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

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

Secretary President

to the Second Chamber of the Second Chamber

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GLADKOWSKI v. POLAND

GLADKOWSKI v. POLAND

LEXI