FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48114/99 by Elzbieta ZARJEWSKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 November 2003 as a Chamber composed of:

Mr M. Pellonpää , President , Mrs V. Strážnická , Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 7 December 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Elzbieta Zarjewska , is a Polish national who was born in 1946 and lives in GrudziÄ…dz, Poland. The respondent Government were represented by Mr K. Drzewicki , of the Ministry of Foreign Affairs.

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

1. Proceedings against a dentist and a health centre

On 18 February 1994 the applicant filed with the GrudziÄ…dz District Court ( sÄ…d rejonowy ) an action in which she claimed compensation from a dentist for alleged malpractice. Subsequently, she requested the court to stay the proceedings for half a year.

On 5 October 1994 the court refused the applicant’s request for exemption from the court costs. Her appeal against that decision was rejected as having been lodged out of the prescribed time-limit.

The applicant submits that she did not attend the hearing held on 8 February 1995 because she had not been informed about it.

On 1 March 1995 the applicant sued additionally the health centre at which the defendant worked. On the same day the court held a hearing. On 28 April 1995 it granted the applicant’s subsequent request for exemption from the court costs.

On 5 May 1995 the applicant requested the court to stay the proceedings for three months.

On 16 May 1995 the court held a hearing. It refused the applicant’s request to have the proceedings stayed.

On 6 June 1995 the court gave judgment, in which it dismissed the applicant’s action. She appealed.

On 6 October 1995 the Toruń Regional Court ( sąd wojewódzki ) quashed a part of the first-instance judgment and remitted the case, in this part, for re-examination. It dismissed the remainder of the appeal.

On 11 December 1995 the District Court held a hearing. On 19 January 1996 the case was transferred to the Regional Court, because the applicant had increased the amount of the compensation claimed.

The Regional Court held hearings on 9 May 1996 and in October 1996. The hearing scheduled for 3 December 1996 was adjourned due to the absence of a witness and the defendant’s representative.

On 16 January 1997 the court held a further hearing, at which it ordered an expert opinion. On 13 June 1997 the experts returned the case file to the court, submitting that the applicant had refused to undergo a medical examination. On 18 June 1997 she requested the appointment of other experts.

The court held hearings on 21 November 1997 and 10 February 1998.

On 10 February 1998 it gave judgment, in which it dismissed the action. The applicant appealed.

On 18 June 1998 the Gdańsk Court of Appeal ( sąd apelacyjny ) dismissed her appeal. She lodged a cassation appeal with the Supreme Court.

On 26 July 2001 the Supreme Court dismissed that cassation appeal.

2. Proceedings against physicians

On 27 April 1995 the applicant filed with the GrudziÄ…dz District Court an action in which she claimed compensation for alleged malpractice on the part of physicians who had performed a laser operation on her face.

On 5 May 1995 the court transferred the case to the Toruń District Court.

On 10 July 1995 the latter court refused the applicant’s request for exemption from the court costs. On 9 August 1995 the Toruń Regional Court dismissed her appeal against that decision.

On 7 September 1995 the District Court summoned the applicant to specify the defendant party.

On 13 October 1995 the first hearing was held. Subsequently, the applicant increased the claimed amount.

The court summoned her to specify her claim. It adjourned the hearing scheduled for 14 November 1995 due to the applicant’s failure to comply with its order relating to her claim.

On 20 November 1995 she increased the amount of the claimed compensation.

On 23 November 1995 the court exempted the applicant from the court costs and transferred the case to the Toruń Regional Court, following the increase of the applicant’s claims.

On 7 March 1996 the court held a hearing. On 3 April 1996 it ordered the preparation of an expert opinion. The opinion was submitted to the court on 30 May 1996.

On 27 June 1996 the applicant challenged that opinion. On 16 September 1996 she requested the court to appoint another expert.

At the hearing held on 17 September the court requested the applicant to indicate other experts that could prepare the opinion. She provided the required information on 28 October 1996. On 6 December 1996 the court ordered another expert opinion, which was supposed to be prepared by 31 March 1997. In July 1997 the Warsaw Academy of Medicine, in charge of the preparation of that opinion, informed the court that due to the prolonged absence of an expert it was unable to set up a three-member commission to examine the case, whereas the applicant had refused to be examined by only two members. In November 1997 the court summoned the Academy to expedite the work on the opinion, on pain of a fine. The opinion was submitted to the applicant in March 1998. On 17 April 1998 she challenged it.

On 17 April 1998 the court held a hearing.

On 24 April 1998 the Toruń Regional Court gave judgment, in which it dismissed the action. The applicant appealed.

On 20 October 1998 the Gdańsk Court of Appeal dismissed her appeal. The applicant lodged a cassation appeal with the Supreme Court. On 24 November 1998 a legal-aid lawyer was appointed for her. On 11 January 1999 the Supreme Court summoned that lawyer to rectify procedural defects of that cassation appeal.

On 31 August 2001 the Supreme Court refused to entertain the applicant’s cassation appeal. It relied on a provision of the newly amended Code of Civil Procedure empowering it to leave without examination manifestly ill-founded appeals or appeals in cases where no serious legal issue arises.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that in both sets of proceedings the courts had not informed her that the burden of proof had been on her and that she had had the right to legal aid. She further complained about alleged restrictions on her access to the case-file and threats allegedly uttered by the court. The applicant complained that in the proceedings against the dentist the court had refused to examine witnesses proposed by her.

2. The applicant complained under Article 6 § 1 of the Convention that the proceedings in her cases had exceeded a reasonable time.

THE LAW

1. The applicant alleged a breach of her right to a fair trial as provided in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Without prejudice to the issue as to whether the applicant’s allegations could raise an issue under Article 6  § 1 of the Convention, the Court observes that her submissions concerning the domestic courts’ alleged failure to provide her with certain information, as well as those relating to her access to the case-file and threats, were not supported by any evidence. Nor did the applicant show that she had availed herself of any domestic remedies in this connection.

As regards the alleged refusal to examine witnesses on the applicant’s behalf, the Court notes that the applicant did not specify what witnesses she had wished to have examined and what relevance their examination would have had to the merits of the case. Furthermore, she did not provide any documents showing that she had ever made such a request before the domestic court and, if so, that it had been declined.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” principle, provided in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The proceedings against a dentist and a health centre began on 18 February 1994 and ended on 26 July 2001. They thus lasted 7 years, 5 months and 8 days. The proceedings against physicians began on 27 April 1995 and ended on 31 August 2001. They thus lasted 6 years, 4 months and 4 days.

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint in respect of both sets of proceedings is required. Accordingly, the application to the case of Article 29 § 3 of the Convention should be discontinued.

For these reasons, the Court unanimously

Declares admissible , without prejudging the merits, the complaint concerning the length of both sets of proceedings;

Declares the remainder of the application inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President