CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 25086/94                       by Bronislawa PROSZAK                       against Poland         The European Commission of Human Rights (Second Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              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 28 April 1994 by Bronislawa PROSZAK against Poland and registered on 6 September 1994 under file No. 25086/94;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having considered that the Government have not submitted any observations;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case as submitted by the applicant may be summarised as follows:         The applicant, a Polish citizen born in 1926, is a pensioner residing in Stalowa Wola.         On 20 December 1988 the applicant was assaulted and beaten by her neighbour R.T.   On 29 November 1989 the Stalowa Wola District Court (S*d Rejonowy) convicted the latter of assault and causing bodily harm and sentenced him to six months' imprisonment.   On 12 March 1990 the Tarnobrzeg Regional Court (S*d Wojewódzki) decided to discontinue the proceedings by virtue of the Amnesty Act.         On 25 October 1990 the applicant filed a civil action with the Stalowa Wola District Court against R.T. claiming compensation of five million zloty for damage resulting from the assault.   At an unspecified later date she increased her claim.         On 23 February 1993 the applicant underwent a psychiatric examination ordered by the Stalowa Wola District Court for the purposes of the civil proceedings for compensation.         On 8 June 1993 the Court held a hearing in the civil proceedings and heard a psychiatrist as an expert.         On 18 June 1993 the applicant refused to undergo a further psychiatric examination.   She contended that there were sufficient documents in the case-file relating to her mental health as she had already been examined by psychiatrists at least twice in the course of the proceedings.   She pointed out that she did not understand how a further psychiatric examination of the victim of an assault could be useful for the determination of the civil liability of the defender.         On 7 September 1993 the applicant informed the Court that she had been unable to attend a hearing on 2 September 1993 for health reasons and submitted a medical certificate to this effect.   She also complained about the length of the proceedings.         Subsequently the applicant complained to the President of the Stalowa Wola District Court about the delay in the proceedings.   On 18 October 1993 the President informed her that this was in part due to her refusal to undergo a further medical examination.   He found no indications of lack of diligence on the part of the Court.         On 26 October 1993 the applicant complained to the Minister of Justice about the length of the proceedings.   She submitted that the President of the Court had failed to reply to three of her complaints. She challenged the judge claiming that she had not diligently dealt with the case and was biased against the applicant.   On 2 November 1993 the Ministry transmitted this letter to the President of the Tarnobrzeg Regional Court.         On 16 November 1993 the applicant requested to be examined by a psychiatrist specialised in the syndrome of former prisoners of the German concentration camps as she had been imprisoned in Ravensbrück during the Second World War.         Subsequently the applicant formally challenged the judge rapporteur in her case on the ground that the proceedings had exceeded a reasonable time.         On 10 March 1994 the District Court in Stalowa Wola dismissed the applicant's challenge of the judge as lacking a basis in law.         The applicant apparently appealed against this decision, but her appeal was rejected as not complying with the formal requirements.   COMPLAINTS         The applicant complains that the length of the civil proceedings exceeds a reasonable time as no complex issues are involved.   She contends that there were several periods of inactivity in the proceedings;   that the Court is unable to determine the steps to be taken and that there is therefore no progress in the proceedings at least since September 1993.   The applicant relies on Article 6 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 28 April 1994 and registered on 6 September 1994.         On 17 January 1995 the Commission decided to communicate the complaint concerning the length of the civil proceedings to the Polish Government who were invited to submit their observations on its admissibility and merits before 28 March 1995.   The Commission declared the remainder of the application inadmissible.         At the Government's request the time-limit for the submission of the observations was subsequently extended twice, until 20 April and 30 May 1995, respectively.         The Government did not request a further extension of the time- limit and did not submit any observations.   By letter of 4 September 1995 the Government were informed that the application was being considered for inclusion in the list of cases for examination by the Commission at its session beginning on 16 October 1995.   THE LAW         The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the length of the civil proceedings exceeds a reasonable time.         As far as relevant, Article 6 para. 1 (Art. 6-1) of the Convention provides:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within a reasonable       time ..."   a)     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".   In accordance with the generally recognised principles of international law, the Commission is not competent to examine complaints relating to alleged violations of the Convention by acts, decisions or events that have occurred prior to this date.         However, the Commission further recalls the Convention organs' case-law, according to which where, by reason of its competence ratione temporis, the Commission can 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 (No. 7984/77, Dec. 11.7.79, D.R. 16 p. 92).         It follows that the Commission is competent ratione temporis to examine the applicant's complaints insofar as they relate to the proceedings after 30 April 1993 and that it can take into account the stage of the proceedings 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 Commission recalls that the complaint under Article 6 para. 1 (Art. 6-1) of the Convention was communicated to the Polish Government who were invited to submit observations on the admissibility and merits of the complaint.   The time-limit for the submission of such observations was extended, at the Government's request, twice, the last time until 30 May 1995.   No observations have been submitted within the time limit.         It is the normal practice of the Commission, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless this matter has been raised by the Government in their observations.   The Commission considers that the same principle should be applied where, as in the present case, the respondent Government have not submitted any observations at all (see No. 22947/93, Dec. 11.10.1993, to be published in D.R.).         It follows that this part of the application cannot be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies.   c)     The Commission further recalls the Convention organs' case-law, according to which the parties must be invited to participate in the examination of the facts by the Commission, though such an examination cannot be hindered by the manner in which the parties in fact participate (see No. 8007/77, Dec. 10.07.1978, D.R. 13   p. 85).         In the present case, in the examination of the complaint about the length of the civil proceedings, regard must be had to the Commission's competence ratione temporis.   The proceedings started on 25 October 1990, i.e. at the date at which the applicant filed a civil action with the Stalowa Wola District Court.   They are still pending in first instance.   The Commission observes that the period to be considered began only on 30 April 1993, i.e. the date on which the recognition of the right of individual petition against Poland took effect.   The period to be considered is therefore two years and five months.   However, in the examination of the reasonableness of the length of the proceedings after 30 April 1993, the stage reached in the proceedings at this date can be taken into account (see No. 7984/77, loc. cit.).         Having examined this complaint, the Commission finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This complaint cannot, therefore, be regarded as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring the complaint inadmissible has been established.         For these reasons, the Commission, unanimously,         DECLARES ADMISSIBLE, without prejudging the merits of the case,       the complaint about the length of the civil proceedings, insofar       as it relates to the period after 30 April 1993.   Secretary to the Second Chamber        President of the Second Chamber           (M.-T. SCHOEPFER)                       (H. DANELIUS)