FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32734/96 by Adam WASILEWSKI against Poland

The European Court of Human Rights ( Fourth Section ) sitting on 3 February 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova, judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 May 1996 by Adam Wasilewski against Poland and registered on 22 August 1996 under file no. 32734/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 13 July 1999 and the observations in reply submitted by the applicant on 27 September 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1974 and living in Pruszkow.

He is represented before the Court by his father who is his legal guardian.

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

Before the applicant’s birth his mother had a car accident during pregnancy. She was hit by a car with a Swedish registration. Shortly after his birth, the applicant was diagnosed as suffering from certain serious malformations. When he was two years old he was operated for brain hygroma. In 1976 the Warsaw Regional Court decided that “Warta” Insurance Company was liable for the results of the applicant’s mother’s accident, both those which had already come to light and those which might manifest themselves in the future. The Court also awarded the applicant compensation for pecuniary and non-pecuniary damage and ordered that the defendant should pay a monthly disability pension to him.

In 1988 the applicant’s family emigrated to Germany where they were granted residence permits, obtained certain social insurance benefits and the applicant underwent medical treatment. In 1990 they returned to Poland.

In February 1991 the applicant lodged an action with the Warsaw Regional Court claiming an increase of the pension paid by “Warta” Insurance Company and payment of the pension so increased from 1988.

On 7 December 1993 the Warsaw Regional Court dismissed the applicant’s appeal against a refusal of the Social Insurance Board to grant him a disability pension. The court considered that the applicant did not comply with the applicable legal requirements in that only persons whose disability had been assessed as being more severe than minor were entitled to claim such benefit, whereas the applicant’s disability had been assessed as minor by a decision of a competent medical board.

On 14 April 1994 the Warsaw Court of Appeal dismissed the applicant’s appeal against this judgment. The Court considered that the lower court had not committed any errors of fact or law in finding that the applicant did not comply with the statutory requirements for receiving disability pension.

On 17 June 1994, in the proceedings which he had lodged in 1991 with the Warsaw Regional Court, the applicant requested that the court order that security be paid in order to safeguard his claim in these proceedings. He argued that his situation was very difficult, in particular as he was unfit for work, did not have sufficient income for his subsistence and that his parents could not bear the financial burden of his maintenance.

By a decision of 14 September 1994 the Warsaw Regional Court legally incapacitated the applicant.

On 18 October 1994 the Pruszków District Court appointed the applicant’s father as his legal guardian.

On 25 October 1994 the Warsaw Regional Court allowed the applicant’s appeal against a decision of the Social Insurance Board and granted him family and care allowance.

On 10 March 1995 the Warsaw Regional Court gave a judgment in the proceedings against “Warta” Insurance Company. The court found that the applicant suffered from various ailments related in part to his mother’s accident in 1974. The defendant’s civil liability for the results of this accident had been established by the 1976 judgment. In 1985, in view of the fact that the applicant’s condition required special care and educational assistance, his monthly pension had been increased to 20,000 zlotys.

In 1988 the applicant’s family had emigrated to Germany. As the applicant’s father was of German origin, they had received residence permits and medical insurance. In 1990 they had returned to Poland. In 1990 the applicant had finished primary school and had begun secondary education in a commercial school. In 1991 he had left the school as he had considerable difficulties in following the curriculum. The Social Assistance authorities had been paying a permanent monthly allowance to him and the defendant had been paying him a pension, which had been increased three times. The defendant had also paid certain sums as advance on lost earnings and as a reimbursement of certain training costs.

The court considered that in view of changes in the applicant’s situation, resulting from the passage of time, he was entitled to claim an increase of his pension. The court considered that the applicant’s claim for pension for the period during which his family had lived in Germany, in a sum of 5,300 DM per month, was excessive, regard being had to the normal costs of living in Germany at that time. Their decision to emigrate had not been justified by any extraordinary circumstances such as persecution by the authorities. It had most probably been motivated, as was the case of other Polish families emigrating at that time, by their wish to improve the family’s financial situation and, in their particular case, to ensure better medical treatment to the applicant. However, there were no grounds on which to accept that the defendant should pay a pension such as would have covered the higher costs of the applicant’s livelihood in Germany, and even less so the exorbitant sum claimed by him. Thus, the court continued, in the calculation of the pension for that period, it would proceed from the assumption that the applicant had remained in Poland.

The court further established that the applicant, in view of his learning difficulties, had required special educational assistance and had had private lessons. The court thus awarded certain sums in this respect. As regards the applicant’s income which he could have received had he not been handicapped, the court observed that it was extremely difficult in the circumstances of the case to assess what kind of occupation and income the applicant could possibly have had. The court had regard to the applicant’s young age, his lack of experience and of any specialised schooling, and considered that he would most probably have received a salary equivalent to the minimum salary provided for by law.

The court further examined the question of whether the applicant’s health necessitated that he be under constant surveillance of either one of his parents or of a paid educator. The court had regard to three medical expert opinions, of two psychologists and one psychiatrist, the conclusions of which were divergent as to whether such necessity indeed arose, and concluded that the applicant was sufficiently independent as not to require continuous care.

In conclusion, the court in part dismissed and in part allowed the applicant’s claim against “Warta” Insurance Company. It ordered the defendant to pay certain sums for disability pension in arrears due from 1988 to 1995 and to pay the applicant a monthly disability pension of PLZ 260 from 1 March 1995, and dismissed the applicant’s claims over and above it.

The applicant lodged an appeal against this judgment.

In a letter of 28 August 1995 the applicant complained to the President of the Regional Court that the case-file had not been transferred to the Court of Appeal in order for his appeal to be considered by that Court.

In a reply of 20 September 1995, the President informed him that the case-file had not been transmitted to the Court of Appeal because it was first necessary to examine his challenge to one of the judges and his request for the order for security. The decision concerning the challenge of the judge had been taken on 18 September 1995 and the decision in respect of the request for the security order would be made as soon as the latter decision became final.

On 3 October 1995 the Warsaw Regional Court in part dismissed and in part rejected, for procedural reasons, the applicant’s civil action against the author of the 1974 car accident, his insurance company in Sweden and “Warta” Insurance Company in which he claimed compensation for non-pecuniary damage. The court considered that the claim was res iudicata insofar as it concerned “Warta”, since in 1976 it had already been ordered, by virtue of the judgment of the same court, to pay compensation for pecuniary and non-pecuniary damage resulting from the accident. The court dismissed the action insofar as it was directed against both the author of the accident and his foreign insurance company, considering that, as “Warta” had, ex lege , taken over their obligations towards the applicant, they had not been liable towards him.

On 3 January 1996 the applicant again complained to the President of the Regional Court that the case-file of the proceedings against “Warta”, in which the judgment had been given on 10 March 1995, had not been transmitted to the Court of Appeal. In reply of 23 January 1996 the President informed him that the delay had been caused by the fact that the applicant had submitted the following requests after the first-instance judgment had been rendered: for appointment of a lawyer within the framework of the legal aid system, for rectification of a clerical error in the judgment, for interpretation of the judgment, for a judge to step down and for an order for security to be paid. The last relevant decision had been made on 8 December 1995 and on 4 January 1996 the case-file had been transmitted to the Court of Appeal.

In a letter of 29 January 1996 to the Court of Appeal the applicant alleged that the proceedings before the Regional Court had been deliberately prolonged by that court, acting in the interest and on the instigation of the defendant.

On 22 February 1996 the Warsaw Court of Appeal dismissed the applicant’s appeal against the judgment of 3 October 1995.

On 13 March 1996 the Warsaw Court of Appeal set aside the judgment of 10 March 1995 insofar as the lower court had partly dismissed the applicant’s claims and insofar as the court had exempted the applicant from the obligation to pay legal costs, and ordered that the case be reconsidered by the Regional Court. The court considered that certain conclusions of the lower court were not supported by the evidence to which that court had had regard, and that it had not established certain factual circumstances relevant for the determination of the applicant’s claim.

On 30 April 1996 the Warsaw Court of Appeal refused the applicant’s request to reopen the proceedings in the case in which it had given judgment on 22 February 1996, finding that the applicable legal requirements were not complied with.

On 24 July 1996 the applicant’s father complained to the Minister of Justice that the courts were particularly slow in dealing with the case against “Warta” Insurance Company, in which the first-instance judgment had been given on 10 March 1995 by the Warsaw Regional Court.

On 21 August 1996 the Minister of Justice refused to lodge a cassation appeal against the judgment of 22 February 1996, considering that the impugned judgment was not flagrantly breaching law and that the statutory requirement for lodging a cassation appeal by the Minister was thus not satisfied.

On 29 August 1996 the applicant’s father requested the Regional Court to make an order for security to be paid in the proceedings against “Warta”, which had been remitted to that court following the judgment of the Court of Appeal of 13 March 1996.

A hearing fixed for 18 November 1996 for the purpose of the examination of the applicant’s request for security order was adjourned. On the same day the applicant complained thereof to the President of the Court of Appeal, stressing that the proceedings in this case remained pending for an unreasonably long time.

In a reply of 27 November 1996 the President of the Court of Appeal acknowledged that there was unjustified delay in the examination of the case by the Regional Court following the Court of Appeal’s judgment of 13 March 1996. The President of the Regional Court had been instructed to take appropriate measures to expedite the proceedings.

In a letter to the applicant of 2 December 1996 the Minister of Justice conceded that the proceedings were excessively long and that in certain periods the Regional Court had not been conducting the case speedily, in particular as certain hearings had been adjourned without a date for a new hearing being fixed. The participants to the proceedings, including the experts and the parties, had not been sufficiently disciplined by the court in order to comply with their procedural obligations as to the attendance of hearings and the submission of expert reports and other evidence within the time-limits. Accordingly, the proceedings were made subject to supervision by the President of the Court of Appeal.

By a decision of 20 December 1996 the Pruszków District Court granted the applicant’s father’s request for a permission for the applicant to undergo medical treatment in the United States.

Apparently, in 1996 the Regional Court made an order for security to be paid to safeguard the applicant’s claims against “Warta” Insurance Company.

On 3 March 1997 the applicant complained to the Prime Minister about the length of the proceedings. He referred in particular to the Minister of Justice’s letter of 2 December 1996 and maintained that the courts’ failure to deal with the case speedily amounted to a breach of Articles 2 and 6 of the Convention.

On 3 April 1997 he requested the President of the Supreme Court that, in view of the excessive length of the proceedings which remained pending for almost seven years, the examination of the case be taken over by the Supreme Court.

On 22 May 1997 the Warsaw Court of Appeal dismissed the applicant’s appeal against a decision of the Regional Court, taken on an unspecified date, by which the latter court had refused to increase the sum of security claimed by the applicant.

On 27 May 1997 the applicant complained to the President of the Civil Division of the Court of Appeal about this decision, alleging that it deprived the applicant of minimum subsistence means and that he was thereby deprived of the possibility of undergoing medical treatment abroad.

By a letter of 5 August 1997 the Registry of the Supreme Court informed the applicant that the law did not provide for the possibility of any case being taken over by the Supreme Court.

On 17 September 1997 a hearing was held before the Regional Court.

On 17 November 1997, the applicant’s legal guardian filed a motion challenging the competence of the expert psychiatrist who was to assess the applicant’s state of health. Subsequently, the court appointed another expert.

On 24 November 1997 the Regional court increased the sum of the security paid to the applicant from 640 to 740 Polish zlotys. Subsequently the applicant lodged with the court two motions to increase the sum of security paid to the applicant: on 16 February 1998, claiming a security of 1,500 Polish zlotys, and on 5 March 1998 requesting a security of 5,000 Polish zlotys.

On 14 April 1998 the Regional Court appointed a legal counsel paid by the legal aid scheme to represent the applicant before the court.

By a decision of 18 May 1998 the Regional Court increased the security paid to the applicant from 740 to 900 Polish zlotys. At the hearing held on this day the applicant filed a motion alleging a lack of impartiality on the part of experts co-operating with the Warsaw Institute of Psychiatry and Neurology.

On 21 May 1998 the applicant requested the court to give written grounds for its decision of 18 May 1998. On 6 July 1998 the applicant lodged an appeal against this decision, submitting that the sum awarded as security was insufficient.

On 11 September 1998 the Warsaw Court of Appeal dismissed the applicant’s appeal against the decision of 18 May 1998.

On 22 October 1998 the Warsaw Regional Court in Warsaw requested the Medical Academy Hospital to appoint a team of expert neurologists and psychiatrists, who would prepare an opinion on the applicant’s health. On 29 October 1998 the Hospital replied that it did not have sufficient psychiatric staff for the purposes of preparing such an opinion and suggested that the court appoint another medical establishment. Subsequently the court requested Pruszków Psychiatric Hospital to prepare the expert report on the applicant’s case. On 18 November 1998 that hospital requested the court to appoint experts from another hospital, referring to negative opinions expressed by the applicant’s legal guardian about the professional competence of psychiatrists working at the hospital.

On 23 December 1998 the Warsaw Regional Court requested the hospital at Nowowiejska Street to appoint a team of experts with a view to preparing a medical opinion as to the applicant’s health. On 5 January 1999 this hospital informed the court it did not employ neurologists who could prepare the requested opinion.

On 28 January 1999 the applicant again requested again the court to increase the sum of security to 5,000 Polish zlotys.

On 2 February 1999 the Warsaw Regional Court again asked the Warsaw Institute of Psychiatry and Neurology to appoint a team of experts psychiatrists and neurologists to present an opinion concerning the applicant’s health. The court stressed that psychiatrists who had previously been involved in the examinations of the applicant should not participate in the preparation of the opinion.

The hearing scheduled for 22 February 1999 was adjourned because the representative of the defendant was ill.

On 30 March 1999 the Pruszków District Court appointed two expert psychiatrists to prepare an opinion in connection with criminal proceedings instituted against the applicant concerning his alleged involvement in a burglary.

On 19 April 1999 the Regional Court dismissed another motion concerning the applicant’s claim for increase of security.

The proceedings are still pending before the Warsaw Regional Court.

COMPLAINT

The applicant complains under Article 6 of the Convention that the civil proceedings in his case against “Warta” Insurance Company pending before the Warsaw Regional Court are unreasonably long.

THE LAW

The applicant ’s complaint relates to the length of the proceedings, which began in February 1991 and are still pending. They have therefore already lasted nine years.

According to the applicant, the length of the proceedings – a period of nine years – 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 APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Vincent Berger Matti Pellonpää Registrar President