Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29680/96

by Iwona SIEMIENSKA-KLEDZIK

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 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 31 August 1995 by

Iwona Siemienska-Kledzik against Poland and registered on 4 January

1996 under file No. 29680/96;

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 5 June

1997 and the observations in reply submitted by the applicant on

5 August 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1954, is a lawyer

residing in Poznan.

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

summarised as follows:

In 1982 the applicant married K. K. On 19 September 1987 K. K.

filed an action for divorce with the Poznan District Court (S*d

Rejonowy). He requested the court to dissolve the marriage without

determining who was at fault in its breakdown.

The court subsequently held three hearings in an attempt to

obtain a reconciliation of the parties, on 5 and 29 January and on

1 April 1988. The applicant was not present at any of these hearings

and on each occasion she submitted a medical certificate to the effect

that her bad health and medical treatment prevented her from

participation in the proceedings.

In a letter of 29 April 1988, in reply to the court's enquiry as

to when the applicant would be able to participate in the proceedings,

the Neurological Medical Centre informed it that the applicant was

undergoing treatment and that her participation could lead to the

deterioration of her condition.

On 13 May 1988 K. K. requested that the court pronounce an

annulment of the marriage instead of divorce. He submitted that the

applicant had been suffering from mental disorder and that she had

entered into the marriage in bad faith, being aware thereof.

He requested the court to order a psychiatric expert opinion as to the

applicant's mental condition.

On 21 June 1988 a medical expert, R.G., submitted his opinion to

the court. He stated that the applicant suffered from a psychogenic

syndrome, which was not a psychiatric illness. This syndrome had

already existed when she entered into the marriage. The expert

indicated that a further opinion of a neurologist was advisable.

At a hearing on 9 September 1988 the applicant was not present

due to bad health. She submitted a relevant medical certificate. Her

counsel requested that the hearing be adjourned so that he could submit

a reply to the annulment claim. On 25 September the applicant withdrew

her power of attorney.

On 11 October 1988 the applicant requested that criminal

proceedings on the charge of maltreating her be instituted against her

husband.

On 23 January 1989 a psychologist, E.K., stated in a further

expert report which had been ordered by the court that the applicant

had manifested certain characteristics of an abnormal personality,

which did not, however, amount to an impediment to marriage. There

were no indications that the applicant had entered into her marriage

in bad faith.

On 9 February 1989 the Poznan District Prosecutor joined the

proceedings.

On 23 March 1989 the Poznan District Prosecutor refused the

applicant's request to institute criminal proceedings against K. K. for

ill-treatment by, inter alia, submitting false information to the

court in the divorce proceedings. The Prosecutor found that there was

insufficient evidence for a finding that a criminal offence had thus

been committed.

In a further expert report of 5 April 1989 a neurologist, J.M.,

stated that the applicant's condition had not amounted to an impediment

to marriage. It was further stated that an analysis of the applicant's

medical history had not furnished any grounds for a finding that she

had been suffering from psychiatric illness. He shared the conclusions

of the psychologist's expert report.

At a hearing on 24 April 1989 the applicant was represented by

a new counsel. The parties requested that the court hear evidence from

certain witnesses. The applicant's husband and the Public Prosecutor

requested that the court order a fourth expert report.

At a hearing on 5 June 1989 the experts R.G. and E.K. were

questioned. They confirmed the conclusions contained in their reports.

The court further heard evidence from four witnesses. The hearing was

adjourned in order to question the expert J.M. and, again, R.G.

On 5 September 1989 the hearing was adjourned as the experts had

failed to comply with the summonses.

At a hearing on 6 October 1989 the experts again failed to

attend, but they had submitted letters explaining the reasons for their

inability to attend. At the plaintiff's request, the court ordered

that the fourth expert, psychiatrist M. S., submit her report as to the

applicant's mental health. The court dismissed the applicant's request

for alimony to be paid pending a final judgment in the divorce

proceedings.

On 24 September 1990 the expert M. S. submitted her report.

On 22 October 1990 the Poznan Regional Court (S*d Wojewódzki),

upon the applicant's appeal, quashed the decision of 6 October 1989 and

decided that her request for alimony should be reconsidered. At a

hearing on 22 February 1991 the court ordered the plaintiff to pay

monthly alimony to the applicant.

At a hearing on 22 February 1991 the experts R.G., E.K. and M.S.

failed to attend.

At a hearing on 18 March 1991 these experts, as well as the

expert J.M., gave evidence. They upheld the conclusions contained in

their reports.

On 2 April 1991 the Poznan District Court annulled the

applicant's marriage, finding that she had been suffering from mental

disorder. The court relied, inter alia, on four medical expert

opinions as to her condition. The court found that the applicant had

been ill when she entered into the marriage.

The applicant lodged an appeal against this judgment.

On 27 September 1991 the Poznan Regional Court quashed this

judgment and ordered the case to be reconsidered. The court observed

that the written grounds of the impugned judgment were laconic and

chaotic. The lower court had failed to establish with sufficient

clarity the nature of the applicant's alleged mental disorder. Four

medical expert opinions had been submitted to the court, but it had not

clearly indicated the evidence on which it had relied when establishing

particular facts. On the whole, the assessment of the evidence had

been superficial. The conclusion as to the applicant's condition at

the time when she entered into the marriage was therefore ill-founded.

The Court ordered the lower court to ensure that there was an

unequivocal psychiatrist's opinion as to whether the applicant's

condition when she entered the marriage was such as to correspond to

any known psychiatric disorder.

The case was subsequently transmitted to the Poznan Regional

Court which had become competent to examine the case as a first-

instance court due to a change of the relevant legislation.

On 10 February 1992 the hearing before the Regional Court was

adjourned so that the applicant could submit her claim for a higher

alimony to be paid pending the final decision in the case.

At a hearing on 27 April 1992 the court heard evidence from two

experts, R.G. and M.S. In view of their divergent conclusions as to

the applicant's mental health, the applicant's counsel requested that

two further experts from outside Poznan should prepare new reports and

that witnesses be heard. On 30 April 1992 the applicant withdrew her

request for new expert opinions. However, the court appointed two

experts. One of them refused to prepare the report in view of his

personal contacts with one of the parties. The other expert likewise

refused. The court appointed W.M. as an expert, who on 8 March 1993

submitted his report to the effect that the applicant had not been

suffering from any mental disorder.

At a hearing on 2 June 1993 the court heard evidence from the

expert W. M., who confirmed his conclusions. The plaintiff requested

that a further psychiatrist be appointed as expert and the court

complied with the request by appointing two experts who later submitted

their report.

At a hearing on 28 April 1994 the court heard evidence from these

experts who stated that the applicant had not suffered from any mental

disorder when she entered into her marriage.

At a hearing on 29 August 1994 the court heard evidence from one

witness and from the plaintiff, and decided not to question the

applicant as she had not been participating in the proceedings.

At a hearing on 28 November 1994 the plaintiff changed the claim

to a divorce claim and further witnesses were questioned. By a letter

of 9 December 1994 the applicant's lawyer consented to the change of

the claim and requested that the plaintiff be declared at fault in the

breakdown of the marriage.

At a hearing on 26 April 1995 the court heard evidence from one

witness requested by the applicant. The court decided that, in the

light of his submissions, it was necessary to call as witnesses the

applicant's sister and the plaintiff's mother. These witnesses were

questioned at a hearing on 30 August 1995.

On 11 September 1995 the Poznan Regional Court dissolved the

applicant's marriage for reasons "concerning the applicant, but for

which she was not responsible".

COMPLAINTS

The applicant complains under Article 3 of the Convention that

her husband ill-treated her and that the proceedings, in particular the

fact that psychiatric expert opinions were prepared, and the statements

as to her mental health contained in the grounds of the annulment

judgment of 1991, constitute inhuman and degrading treatment.

She further complains under Article 5 para. 1 of the Convention

that the proceedings deprived her of personal liberty.

She complains under Article 6 para. 1 of the Convention about the

length of the proceedings.

She complains under Article 8 of the Convention that erroneous

psychiatric opinions were submitted to the court in the proceedings and

that this amounted to an interference with her private life. These

reports were irrelevant to the proceedings as in the proceedings for

annulment only her mental state at the date of the marriage could have

been of any significance.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 August 1995 and registered

on 4 January 1996.

On 17 January 1997 the Commission decided to communicate the

applicant's complaint concerning the length of the divorce proceedings

to the respondent Government.

The Government's written observations were submitted on 7 June

1997, after an extension of the time-limit fixed for that purpose.

The applicant replied on 5 August 1997.

THE LAW

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

Convention about the length of the divorce proceedings.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"1. In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a

reasonable time ..."

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

relates to events prior to 1 May 1993, i.e. the date of recognition of

the right of individual petition by Poland, is outside the competence

ratione temporis of the Commission.

The applicant does not address this issue.

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".

It follows that the Commission is not competent to examine complaints

relating to violations of the Convention by acts, decisions or events

that have occurred prior to this date.

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 (Eur. Court HR, Foti v. Italy judgment of

10 December 1982, Series A no. 56, p. 18, para. 53). It follows that

the Commission is competent ratione temporis to examine the applicant's

complaint insofar as it relates to the proceedings after 30 April 1993,

taking into consideration the stage of the proceedings reached at this

date.

b) Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with a matter after all domestic remedies have been

exhausted.

The Government contend that the applicant cannot be regarded as

having exhausted available domestic remedies with regard to the

complaint about the length of the proceedings. The Government submit

that there is no single general remedy available under Polish law to

complain about the length of proceedings. However, they submit that

the usual judicial remedies, i.e. appeals against procedural and

substantive court decisions, could be employed in this respect. The

applicant has not shown that she relied on the length of proceedings

in the appeal which she filed against the judgments of 1991. Neither

has she complained about the length of the proceedings in her appeals

against the procedural decisions.

The applicant submits that she could not have availed herself of

any judicial remedies as she was not served with any judicial decisions

pronounced in the proceedings.

The Commission recalls in this respect its finding that there is

no effective remedy under Polish law to complain about the length of

civil proceedings (No. 24559/94, Dec. 6.9.95, D.R. 82-B, p. 76).

Therefore the Commission finds that it has not been established that

the applicant had any effective remedy at her disposal which would have

enabled her to submit her complaints under Article 6 para. 1 (Art. 6-1)

of the Convention to the domestic authorities. Accordingly, the

application cannot be declared inadmissible for non-exhaustion of

domestic remedies.

c) As regards the substance of the complaint, the Government submit

that the case should be regarded as highly complex as to its legal and

factual aspects, in particular in the parts of the proceedings which

concerned the claim for annulment. It was necessary to establish

whether the applicant had suffered from any mental disorder at the time

when she entered into her marriage and, if this were the case, whether

this disorder had subsequently ceased to exist. As the expert reports

were divergent, it was necessary for the court to question the experts.

The experts' oral submissions not being concordant, the court, upon the

parties' requests, including the applicant's request of 27 April 1992,

ordered that five expert opinions be submitted. Pursuant to the Civil

Code, experts shall be questioned at a hearing if doubts as to the

circumstances of the case subsist after they have submitted their

reports to the court.

As regards the conduct of the authorities, the Government submit

that there were no periods of inactivity in the conduct of the case

other than those which were imposed by the provisions of civil

procedure or dictated by the necessity to have the expert reports ready

within a reasonable time. The dates of the hearings were fixed without

undue delays. They were dictated by the judges' workload.

As regards the conduct of the applicant, the Government contend

that it was principally her conduct which contributed to the length of

the proceedings. She was not present at any of the hearings and

persistently refused to undergo a medical examination by the experts.

She further prolonged the proceedings by the withdrawal of the power

of attorney to her counsel.

The Government conclude that the proceedings after 30 April 1993

were concluded within a reasonable time within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention. Consequently, this complaint

should be declared manifestly ill-founded.

The applicant generally disagrees with all the Government's

submissions and submits that the proceedings lasted too long and were

conducted in an incompetent manner.

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 the complaint is

required.

2. The applicant complains under Article 8 (Art. 8) of the

Convention that erroneous psychiatric opinions were submitted to the

court in the proceedings and that this amounted to an interference with

her private life.

Article 8 (Art. 8) of the Convention in its relevant part provides:

"1. Everyone has the right to respect for his private ...

life...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission first observes that it has not been established

that the applicant actually underwent psychiatric examinations in the

framework of the proceedings. However, even assuming that the expert

reports were prepared on the basis of the applicant's medical documents

concerning her preceding medical treatment, the Commission considers

that this amounts to an interference with her private life within the

meaning of Article 8 para. 1 (Art. 8-1) of the Convention, and thus

falls to be justified under Article 8 para. 2 (Art. 8-2) of the

Convention.

The Commission notes that, when deciding that expert reports

should be prepared for the purpose of the divorce and annulment

proceedings, the courts acted pursuant to Section 278 of the Code of

Civil Procedure which authorises the court to appoint experts if

specialised knowledge is necessary for a judicial decision. The

interference was therefore "in accordance with the law".

The Commission further considers that the decisions concerned

pursued the legitimate aim of "protection of the rights and freedoms

of others", within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

The Commission must next determine whether the interference was

"necessary in a democratic society" within the meaning of Article 8

para. 2 (Art. 8-2). This condition implies that the interference

corresponds to a pressing social need and, in particular, that it is

proportionate to the legitimate aim pursued.

The Commission observes that an assessment of the parties' mental

health on entering into marriage is one of several crucial factors to

be taken into consideration by the courts when deciding on a claim for

annulment of marriage. In the present case, the circumstances which

were examined by the experts within the framework of the annulment

proceedings, i.e. the applicant's mental health, were thus relevant to

the case. The divorce and annulment proceedings, by their very nature,

entail an examination of private aspects of a person's life which in

itself is not contrary to Article 8 (Art. 8) of the Convention. The

applicant does not claim that the contents of the expert reports were

leaked to the public or that they harmed her reputation. The

Commission further notes that the applicant herself applied at least

once for an expert report to be prepared on the state of her mental

health and that the preparation of the expert reports did not entail

taking any coercive measures against her. The Commission therefore

considers that the interference complained of was "necessary in a

democratic society" within the meaning of Article 8 para. 2 (Art. 8-2)

of the Convention.

It follows that this part of the application is manifestly ill-

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

Convention.

3. The applicant complains under Article 3 (Art. 3) of the

Convention that her husband ill-treated her and that the proceedings,

in particular the contents of the psychiatric expert opinions and the

statements as to her mental health contained in the grounds of the

annulment judgment of 1991, constitute inhuman and degrading treatment.

Article 3 (Art. 3) of the Convention reads:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission notes that this complaint is directed in part

against the applicant's former husband. As it concerns a private

person, it follows that this part of the application is incompatible

ratione personae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

Insofar as this complaint is directed against the public

authorities , the Commission recalls that according to the case-law of

the Convention organs, ill-treatment must attain a minimum level of

severity if it is to fall within the scope of Article 3 (Art. 3) of the

Convention (Eur. Court HR, Ireland v. United Kingdom judgment of

18 January 1979, Series A no. 25, p. 65, para. 162). The Commission

acknowledges that the emotional distress which the divorce proceedings

might have caused the applicant, was indubitably difficult for her.

However, the Commission considers that it did not reach the threshold

of severity required to fall within the ambit of Article 3 (Art. 3) of

the Convention. It follows that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The applicant finally complains under Article 5 para. 1

(Art. 5-1) of the Convention that the divorce proceedings deprived her

of personal liberty.

The Commission observes that Article 5 (Art. 5) of the Convention

protects the "right to liberty and security of person". Physical

liberty of the person is to be understood as being guaranteed by this

provision. Thus, the mere fact that the applicant was a party to the

divorce proceedings cannot be regarded as deprivation of liberty within

the meaning of Article 5 (Art. 5) of the Convention. It follows that

this part of the application is manifestly ill-founded within the

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

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that the proceedings concerning the claim

for divorce and for annulment of marriage exceeded a reasonable

time;

DECLARES INADMISSIBLE the remainder of the application.

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

Secretary President

to the Second Chamber of the Second Chamber

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SIEMIENSKA-KLEDZIK v. POLAND

SIEMIENSKA-KLEDZIK v. POLAND

LEXI