FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38804/97 by Stanisław RAWA against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 June 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 18 April 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 23 October 2001,

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, Mr Stanisław Rawa , is a Polish national, who was born in 1930 and lives in Warsaw.

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

The applicant, a professional army officer, had to take an early retirement in 1965. On unspecified dates he was twice deprived of liberty and placed in a psychiatric hospital.

On 13 June 1994 the applicant filed a civil action against the Ministry of National Defence, claiming that he had been deprived of adequate medical treatment, to which he was entitled as a retired army officer. He maintained that numerous errors committed by military dentists and their incompetence had led to irreversible bodily injuries and damage to his health. Subsequently, he claimed damages.

On 21 July 1994, on the Warsaw Regional Court’s order, the applicant particularised his claim. He sought a finding of the defendant’s liability, a sum of 1 PLN as compensation, and reimbursement of legal costs. On 3 August 1994 the Warsaw Regional Court gave a decision stating its lack of jurisdiction in the present case and forwarding the case to the Warsaw District Court.

On 8 August 1994 the applicant extended his claim and alleged that his heart disease had been caused by the defendant. On 5 September 1994 the applicant submitted, on the court’s order, a statement of his financial and family situation. On 21 September 1994 the court exempted the applicant from the court fees.

On 22 September, 12 and 27 October 1994, the applicant filed his further objections as to the work and conduct of the dentists. On 5 December 1994 the Ministry of National Defence sent copies of the applicant’s action to the Central Clinical Hospital at the Warsaw Medical Academy and to the court. The Ministry stated that the hospital had been authorised to represent the State Treasury in the present case. On 20 December 1994 the defendant’s lawyer filed a reply to the applicant’s statement of claim. The lawyer requested the court to summon three dentists as witnesses.

The applicant submitted his further pleadings on 21 November, 27 December 1994, 21 February, 21 March, 11 and 24 April, 7 and 31 May, 16 and 30 June, 20 July, and 1, 7 and 21 August 1995. The hearing fixed for 28 February had to be adjourned due to illness of the judge rapporteur .

On 28 August 1995 the court held a hearing. It heard the applicant and one witness. Subsequently the applicant filed his pleadings on 21 September, 9 and 23 October 1995.

The second hearing was held on 30 October 1995. The court heard one witness - a dentist who had treated the applicant in the defendant’s policlinic. The other summoned witness failed to appear. The court adjourned the hearing.

The applicant filed his pleadings on 24 November and 19 December 1995. The subsequent hearing was fixed for 21 December 1995. It had to be adjourned as the defendant’s lawyer and the summoned witness failed to appear. The applicant was informed by the judge that the next hearing was fixed for 15 February 1996, at 9.15 a.m.

On 15 February 1996 the applicant appeared before the court an hour after the hearing had begun. He complained to the President of the Warsaw District Court that he had not been duly informed about the time fixed for the hearing. He further complained that, after having waited several years for the trial, he had been denied the opportunity of questioning witnesses and had not been allowed to examine the minutes of the hearing. The President of the District Court rejected the applicant’s complaint, explaining that the applicant himself bore the blame for having been late for the hearing.

On the same day the court decided to appoint professor J.P. as an expert. 17. The applicant filed his further pleadings on 1 January, 12 and 19 February, 10 and 22 April 1996. In May 1996 the expert opinion reached the court. The applicant filed his pleadings and motions, inter alia as to the expert opinion, on 15 May, 19 and 26 July, 6, 19, 20 and 26 August 1996. On 10 September 1996 the defendant’s lawyer submitted her observations as to the expert opinion.

The applicant submitted his letters and motions on 19 September, 11 December 1996, 11 February, 4, 10, 12 and 24 March, 7, 17 and 21 April, 12 May, 18 and 20 August 1997. On 21 August 1997 the applicant submitted two sets of questions to the expert (altogether 50 questions). He sent his further letters to the court on 4 November 1997, and 2 and 16 February 1998.

Between 1996 and 1998, ten hearings were scheduled by the court: on 23 September 1996, 12 November 1996, 17 December 1996, 14 January 1997,  7 March 1997, 17 June 1997, 9 September 1997, 5 February 1998 and on two unspecified dates. Each time the court expert, professor J.P., failed to attend and the hearings were adjourned.

On 21 August 1997 the Warsaw District court stated its lack of jurisdiction in the present case. On 5 February 1998 the case was transferred to the Warsaw Regional Court. On 18 February 1998 the Warsaw Regional Court sent letters to the expert’s two addresses: to the clinic and to his home address in order to agree the date of his presence before the court. The court’s secretary also telephoned to the clinic to inform the expert about the need to conclude the proceedings and about the summons. The expert informed the court that he could be present before the court on 8, 9 and 14 July 1998, at 9 a.m.

On 3, 12, 18 30 March, 20 April and 29 June 1998 the applicant filed his further letters. In a letter of 31 March 1998, in reply to the applicant’s letter of complaint to the Ministry of Justice of 19 February 1998 about the lack of progress in the proceedings, the President of the Warsaw Regional Court admitted that the proceedings were too slow, but in his opinion the court was blameless since the delay had been mainly caused by the persistent failure of the expert J.P. to attend hearings.

During the hearing held on 14 July 1998, the court took the oral evidence of the expert J.P. On 15 July 1998 the applicant filed a list of his nine claims. On 17 July 1998 at a closed-door session the court decided that additional expert opinions should be prepared in the next 30 days. The court made a few attempts to appoint experts, but they refused to prepare their opinions for various reasons.

The experts’ letters were submitted to the court on 31 August, 20 October, 3 and 28 December 1998. On 31 July 1998 the Warsaw Regional Court answered the applicant’s question of 27 July 1998 concerning the decision of 17 July 1998.

The applicant filed his new pleadings on 24 September, 29 October 1998, 15 January and 19 February 1999. On 5 March 1999 the court sent to the applicant a list of experts living in other towns, and asked him if he would agree to visit one of them at his own expense. On 11 March 1999 the applicant informed the court that he had chosen the expert A.K.S. living in Kraków . The applicant filed his new pleadings on 12,13 May and 8 June 1999.

On 9 June 1999 the court requested the expert to send her opinion. On 30 June1999 the expert opinion prepared by professor A.K.S. was finally submitted. On 31 June 1999 the expert explained that she had not been able to  complete her opinion earlier due to her serious family problems. She also informed the court that she had summoned the applicant for 22 June 1999, at 10 a.m. He had not come and answered that he could only come in the afternoon.

Following that, the applicant formulated a list of questions addressed to the expert.

On 18 August, 2 and 27 September 1999, 6 and 28 April 2000 the applicant filed his further pleadings. On 11 May 2000 the defendant’s lawyer submitted her observations in the case and informed the court that the Ministry of National Defence had to be summoned as a party to the proceedings.

On 17 May 2000 the President of the Warsaw Regional Court, in reply to the applicant’s letter of 30 March 2000 addressed to the Ministry of Justice, informed him once again that difficulties in hearing the evidence (as well as other reasons outside the court’s control) had contributed to the excessive length of proceedings. No hearings had been held since 30 June 1999 due to the fact that it was of primary importance for the court to establish which institution had assumed the obligations of the Central Clinical Hospital at the Warsaw Medical Academy after health sector reforms.

The applicant countered these arguments in two letters of complaint written to the Ministry of Justice of 22 and 25 May 2000. The applicant complained inter alia that the expert had not managed to take a stand on a number of questions he had posed  nine months earlier.

On 22 May 2000 the court summoned the Ministry of National Defence as a party and on the same date it informed the hospital about it. On 13 June 2000 the Ministry informed the applicant that the reasons provided by the President of the Warsaw Regional Court in the letter of 17 May 2000 were convincing and that the case would thereon be taken under its supervision in order to expedite the proceedings.

On 3 July 2000 the applicant filed a letter with the Chancellor of the Jagiellonian University in Kraków contesting the expert opinion of 30 June 1999. On 3 October 2000 the university gave notice that the expert A.K.S. had died on 23 September 2000.

On 14 September 2000 the applicant sent a letter of complaint to the Ministry of Justice, stating that he was not satisfied with the vague explanations he had obtained.

On 5 October 2000 the defendant filed his reply to the statement of claim. On 9 October 2000 the university answered the applicant’s letter of 3 July 2000 and informed him that professor A.K.S. had been an expert appointed in the case and the university could not interfere with her opinion. On 25 September 2000 the Ministry’s lawyer submitted its reply to the statement of claim.

On 18 October 2000 the court held a hearing The applicant contested the expert opinion. Due to the expert’s death the court decided to summon another one, M.Z. On 27 October 2000 the court informed the Mazowsze Governor ( Wojewoda ) that he would be summoned as a defendant in the present case.

On 13 November 2000 the applicant was informed by the Complaints Department in the Ministry that the Warsaw Regional Court had been notified of the expert’s death and that a new expert had been appointed. The proceedings would be resumed as soon as the appropriate expert opinion had been submitted.

On 28 November 2000 a new expert opinion was ordered by the court. On 30 November 2000 the representative of the summoned Mazowsze Governor stated that the Minister of the National Defence should be summoned as a defendant in the present case. On 4, 22 and 27 December 2000 the applicant submitted his further pleadings. On 11 December 2000 the court received a letter from the expert M.Z. refusing to prepare his opinion because of other duties. On 14 December 2000 the expert refused the subsequent request of the court.

The applicant filed his new pleadings on 23 and 30 January, 12 February, 16 and 21 March and 11 April 2001. On 24 April 2001 the court ordered expert J.P. to prepare his opinion in the case. On 30 May 2001 the expert refused to prepare an opinion. The court ordered the Dental Institute of the Warsaw Medical Academy to appoint an expert in order to prepare an opinion. The expert from the institute refused and stated that the first opinion prepared by the expert J.P. had been a professional and the conclusive one. The applicant submitted his further letters on 13 September, 2, 8 and 24 October 2001.

In October 2001 the Ministry of Justice answered the applicant’s letters and informed him that the length of proceedings in the present case was caused by the difficulties in obtaining an expert opinion. Answering the subsequent letter of the applicant, the Ministry informed him that the independent court would consider the case. On 26 November 2001 the applicant submitted a further letter to the court.

The court held a hearing on 13 December 2001. On 19 December 2001 it gave judgment and dismissed the applicant’s claim. On 20 December 2001 the applicant requested delivery of the judgment with its reasoning.

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 13 June 1994 are still pending  They have therefore already lasted approximately eight years.

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 is required.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President