CEDH · CASELAW;REPORTS;ENG — 3 décembre 1997

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                           SECOND CHAMBER                    Application No. 28616/95                        Szczepan Styranowski                               against                               Poland                      REPORT OF THE COMMISSION                    (adopted on 3 December 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-47) . . . . . . . . . . . . . . . . . . . . .3             The particular circumstances of the case           (paras. 16-47). . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 48-68) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaint declared admissible           (para. 48). . . . . . . . . . . . . . . . . . . . .7        B.    Point at issue           (para. 49). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Article 6 para. 1 of the Convention           (paras. 50-67). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 68). . . . . . . . . . . . . . . . . . . . 10   DISSENTING OPINION OF MR P. LORENZEN JOINED BY MRS G.H. THUNE, MM F. MARTINEZ, I. CABRAL BARRETO, E.A. ALKEMA11   APPENDIX I:     PARTIAL DECISION OF THE COMMISSION                AS TO THE ADMISSIBILITY OF THE APPLICATION . 12   APPENDIX II:    FINAL DECISION OF THE COMMISSION                AS TO THE ADMISSIBILITY OF THE APPLICATION . 18   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant, a Polish citizen born in 1923, is a retired judge residing in Olsztyn.   3.    The application is directed against Poland.   The respondent Government were represented by Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.   4.    The case concerns the length of civil proceedings.   The applicant invokes Article 6 of the Convention.   B.    The proceedings   5.    The application was introduced on 24 July 1995 and registered on 21 September 1995.   6.    On 27 June 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 6.   It declared the remainder of the application inadmissible.   7.    The Government's written observations were submitted on 28 October 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 29 November 1996.   8.    On 27 June 1996 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention.   9.    The text of the Commission's decision on admissibility was sent to the parties on 21 April 1997.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs   G.H. THUNE, President           MM    J.-C. GEUS                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN                E. BIELIUNAS                E.A. ALKEMA                A. ARABADJIEV   12.   The text of this Report was adopted on 3 December 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS        The particular circumstances of the case   16.   In May 1991 the applicant retired.   The Social Insurance authorities calculated his retirement pension on the basis of his contributions at the level of about 45 per cent of his salary, in accordance with the relevant provisions of the Retirement Pensions Act of 1972.   The applicant's pension was calculated on the basis of his actual salary upon retirement, which was equivalent to 314 per cent of an average salary.   17.   On 1 December 1991 the Social Insurance authorities in Olsztyn issued a new decision, in accordance with the amendment of the Retirement Pensions Act of 17 October 1991, reducing the applicant's retirement pension by 1.075,600 zlotys.   This pension was calculated on the assumption, introduced by that amendment, that the applicant's income upon retirement had not exceeded a maximum level of 250 per cent of an average salary, regardless of his actual salary at that moment.   18.   On 17 December 1991 the applicant appealed against this decision to the Olsztyn Regional Court - Labour and Social Insurance Division (S*d Wojewódzki - S*d Pracy i Ubezpieczen Spolecznych).   He submitted that the 250 per cent ceiling introduced by the October 1991 amendment deprived him of a part of his retirement pension.   19.   On 17 December 1991 the applicant also filed a compensation claim against the Social Insurance with the Olsztyn District Court (S*d Rejonowy).   He complained that his retirement pension had been recalculated and reduced in accordance with generally applicable rules, i.e. disregarding the fact that his actual salary upon retirement had been equivalent to 314 per cent of an average salary.   He submitted that the Social Insurance, in accepting the law which had imposed a ceiling of 250 per cent of an average salary as the highest basis on which a retirement pension could be calculated, had failed to respect its obligations towards the applicant.   These obligations originated from the applicant's payment of contributions to the social security retirement pension scheme for forty-four years.   No legal provisions throughout this period provided for any ceiling such as the one introduced by the October 1991 Act.   Thus the action of the Social Insurance had given rise to a liability towards the applicant based on tort.   20.   In a judgment of 11 February 1992 the Constitutional Court (Trybunal Konstytucyjny), having examined, upon the Ombudsman's motion, the October 1991 Retirement Pensions Act as to its compatibility with the Constitution,   ruled that certain provisions of the Act were incompatible with the Constitution.   21.   On 25 May 1992 the Warsaw Court of Appeal - Labour and Social Insurance Division (S*d Apelacyjny - S*d Pracy i Ubezpieczen Spolecznych) complied with the request submitted by all the Olsztyn Regional Court (S*d Wojewódzki) judges to have the applicant's appeal against the Social Insurance decision of 1 December 1991 examined by another court in view of the fact that the applicant had been their superior for many years.   The case was accordingly transferred to the Warsaw Regional Court - Labour and Social Insurance Division.   This Court held a hearing on 8 September 1992 and dismissed the applicant's appeal against the decision of 1 December 1991, considering that the impugned decision was in conformity with the relevant provisions of the Retirement Pensions Act as amended by the October 1991 Act.   22.   Subsequently on 9 February 1993 the Social Insurance authorities issued a new decision concerning the applicant's retirement pension on the basis of certain new documents indicating that the applicant's salary upon his retirement had in fact been higher than the amount which had served as basis of the December 1991 decision.   The applicant appealed against this decision, complaining again that the basis on which to recalculate his pension should not have been limited to 250 per cent of the average salary as provided for by the relevant legal provisions.   On 14 May 1993 the Warsaw Regional Court - Labour and Social Insurance Division allowed the applicant's appeal as regards the period until 1 January 1992 and dismissed it insofar as it related to the period after that date, i.e. after the entry into force of the October 1991 Act.   The Court considered that the 250 coefficient had been provided for in the relevant provisions of the October 1991 Act applicable after this date and that in applying these provisions to the applicant's case the Social Insurance had been acting in accordance with the law.   23.   In the proceedings concerning the compensation claim, on 20 May 1992 the Warsaw Court of Appeal complied with the request submitted by all the Olsztyn Regional Court judges to have the compensation case examined by another court as regards any decisions to be taken by the appellate court.   The Court decided that in view of the fact that the applicant had been a Deputy President of the Olsztyn Regional Court, the appeal proceedings in the case should be transferred to the Ostrol*ka Regional Court.   On 19 June 1992 the case-file reached the Ostrol*ka Regional Court.   24.   On 26 June 1992 the Warsaw Court of Appeal complied with the request submitted by all the Olsztyn District Court judges to have the compensation case examined by another court and decided that in view of the fact that the applicant had been a Deputy President of the Olsztyn Regional Court, the case should be transferred to the Szczytno District Court.   25.   On 29 September 1992 the Ostrol*ka Regional Court, at the request of the judges of the Szczytno District Court, decided that the case should be examined in the first instance by the Przasnysz District Court.   26.   The first hearing, fixed for 9 November 1992, was adjourned as the Court did not receive a confirmation that the defendant Social Insurance had received the summons.   27.   On 17 November 1992 the applicant informed the Przasnysz District Court that he maintained his claim and requested that a certain witness be heard.   The Przasnysz Court requested the Olsztyn District Court to hear this witness.   28.   The hearing fixed for 24 November 1992 was adjourned as the witness requested by the applicant failed to appear.   29.   The date of a hearing was fixed for 30 December 1992.   The applicant requested that this hearing be adjourned.   The Olsztyn District Court fixed a new hearing for 14 January 1993 and heard the witness requested by the applicant on that date.   30.   On 19 January 1993 the applicant requested that the Court rectify the minutes of the hearing held on 14 January 1993.   The Court complied with this request on 15 April 1993.   31.   On 18 May 1993 the hearing was adjourned as the defendant had not submitted the confirmation that it had received the summons.   32.   On 17 September 1993 the applicant complained to the Przasnysz District Court about the length of the compensation proceedings and requested that the date of the next hearing be fixed.   He also requested that the former Prime Minister who had been in office until June 1993 be heard as a witness to support the applicant's claim that in the past the social security contributions had been used by the State for other purposes than paying social insurance benefits.   33.   On 20 September 1993 the applicant requested that a date of the next hearing be fixed with no delay.   On the same date the presiding judge ordered that the applicant be informed that due to serious staffing difficulties the date of the hearing would be fixed later.   34.   The next hearing was fixed for 25 January 1994.   On 21 January 1994 the applicant informed the Przasnysz Court that he would be unable to attend the hearing at which his attendance was not obligatory.   He maintained his claim and referred to the Constitutional Court's judgment of 11 February 1992 in which the Court had stated that certain provisions of the October 1991 amendment to the Retirement Pensions Act were incompatible with the Constitution.   On 25 January 1994 the hearing was adjourned as the parties did not appear.   35.   The next hearing was fixed for 23 September 1994.   On 16 September 1994 the applicant informed the Przasnysz Court that he would be unable to attend the hearing at which his attendance was not obligatory.   He maintained his claim and requested again that the former Prime Minister be heard, referring to his letter of 17 September 1993.   36.   On 23 September 1994 the hearing was further adjourned as the Court decided to request the Social Insurance authorities to submit the applicant's case-file.   This case-file reached the Court on 27 October 1994.   37.   On 7 December 1994 the applicant complained to the Minister of Justice about the length of the proceedings and in particular about the hearings having been adjourned on numerous occasions without justification.   38.   In reply, in a letter of 10 January 1995 the President of the Ostrol*ka Regional Court informed the applicant that his case should be considered as being "privileged" since the hearings in his case had been fixed for 9 November 1992, 24 November 1992, 25 January 1993, 18 May 1993 and 23 September 1994.   In view of the fact that the Przasnysz Court was understaffed, these intervals between the hearings were sufficient to secure appropriate progress in the proceedings.   It should be noted that the applicant had failed to appear at all these hearings.   The next hearing had been set for 7 February 1995 and the case was ready for a prompt ruling.   39.   In a letter of 11 January 1995 the applicant stressed that he had been present at the hearing of 14 January 1993 and had extensively pleaded his case.   It was true that he had not been present at other hearings, but he had requested that the case be considered in his absence.   Moreover, the court had never required his attendance at any of the hearings.   After the hearings the applicant had submitted several letters to the court in which he explained his position in the light of the progress in the case.   It had not transpired from the information which he had obtained on the phone after every hearing that any of the hearings had been adjourned because of his absence or his failure to submit documents or evidence required by the court.   40.   In a letter to the Court of 2 February 1995 the applicant informed the Przasnysz District Court that he would be unable to attend the hearing on 7 February 1995 as his attendance was not obligatory. He maintained his claim and submitted further legal reasoning to support his claim.   41.   On 7 February 1995 the Przasnysz District Court rejected the applicant's claim, considering that the matter was res iudicata since the issue of the ceiling to which the applicant's retirement pension was subjected had been ruled on in two sets of proceedings, terminated by the judgments of 8 September 1992 and 14 May 1993, respectively.   42.   On 8 February 1995 the applicant requested that the written grounds be prepared.   They were served on the applicant on 3 April 1995.   43.   On 5 March 1995 there was a fire in the building of the Przasnysz District Court.   44.   On 6 April 1995 the applicant lodged an appeal against the decision of 7 February 1995.   45.   On 13 July 1995 the Ostrol*ka Regional Court quashed the decision of 7 February 1995 and ordered that the case be reconsidered.   The Court observed that in the first proceedings the only issue which had been decided by the court was whether the calculation of the applicant's retirement benefits complied with the relevant legal provisions.   In the compensation proceedings the applicant claimed compensation for the alteration of the conditions of the contract with the Social Insurance and his claim was based on tort.   As these two claims were not identical, the second claim could not be considered as being affected by res iudicata.   46.   The next hearing was held on 3 October 1995.   The court adjourned the pronouncement of the judgment.   The judgment was pronounced on 17 October 1995.   On 29 October 1995 the applicant requested that the written grounds be prepared.   They were served on him on 5 December 1995.   On 13 December 1995 the applicant filed an appeal. On 16 January 1996 the Ostrol*ka Regional Court dismissed the applicant's appeal.   47.   On 11 March and 23 April 1996 the applicant requested that the reasoned judgment be served on him.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   48.   The Commission has declared admissible the applicant's complaint that the civil proceedings lasted too long.   B.    Point at issue   49.   The point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.    As regards Article 6 para. 1 (Art. 6-1)   of the Convention   50.   Article 6 para. 1 (Art. 6-1) of the Convention in its relevant part reads:        "In the determination of his civil rights and obligations      ... everyone is entitled to a fair ... hearing within a      reasonable time ..."   51.   The case concerned the applicant's compensation claim against the local branch of the Social Insurance in which he complained that his retirement pension had been recalculated and reduced in accordance with generally applicable rules. He argued that the defendant was liable in tort therefor.   The Commission considers that Article 6 (Art. 6) is therefore applicable to the proceedings in question as they concerned civil liability in tort.   52.   The proceedings complained of began on 17 December 1991 when the applicant lodged his compensation claim with the Olsztyn District Court.   They ended on 16 January 1996, the date on which the Ostroleka Regional Court dismissed the applicant's appeal.   53.   The Commission recalls that Poland has recognised the right of individual petition only in regard to events occurring after the date of that recognition.   Consequently, the period to be considered started on 1 May 1993, the date on which the recognition by Poland of the right of individual petition took effect.   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 (see No. 7984/77, Dec. 11.7.79, D.R. 16, p. 92).   Therefore, the proceedings have lasted four years and one month, out of which the period to which the Commission's examination relates is two years, eight months and sixteen days.   54.   The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   55.   The applicant submits that the case was not complex, as shown by the written grounds of the judgment in which the court dismissed his claim in a summary manner, and that the facts were not in dispute between the parties.   56.   With regard to the conduct of the authorities the applicant further submits that his professional status as a retired judge of the Olsztyn Regional Court did not warrant that all the judges of the Olsztyn   District Court step down.   The Ostrol*ka Regional Court transferred the case back to the Szczytno District Court which was within the jurisdiction of the Olsztyn Regional Court.   This contributed to the further prolongation of the proceedings.   The defendant remained passive throughout the proceedings, as shown by the fact that his representative was present at only one hearing, and disregarded the summonses.   Two hearings were adjourned as there was no confirmation in the case-file that the defendant had received the summonses.   The Court failed to take any steps to establish whether the defendant had really not received them.   The applicant emphasises in this regard that he always received the summonses on time.   The passivity of the Social Insurance cannot be held against the applicant.   57.   The applicant contends that the case was ready for a decision already in early 1994, as he argued in his letter to the Court of 24 April 1994.   The Court should have requested the submission of the case-file of another civil case at an earlier stage of the proceedings concerned.   The written grounds of the decision of 7 February 1995 were prepared only on 3 April 1995.   The fire in the Court did not destroy the case-file and therefore it should not have affected the conduct of the proceedings.   The Government do not mention the applicant's letters to the President of the Court and the Minister of Justice in which he complained about the delays in the proceedings.   58.   The Government first contend that the length of the proceedings, which, after 30 April 1993, lasted two years and eight months, is justified by the particular circumstances of the case.   The case should be regarded as very complex as to its legal contents.   The complex character of the legal issues involved is shown by the fact that the compatibility of the October 1991 Act with the Constitution was subject to the scrutiny of the Constitutional Court, which decided on 11 February 1992 that certain provisions of the Act were incompatible with the Constitution.   In his compensation claim the applicant argued that the defendant was liable in tort.   Such cases are usually difficult for the courts to decide as it must be established that the statutory conditions of such liability provided for by law are met. The compensation case was linked to the applicant's appeal against the decision of the Social Insurance authorities of 1 December 1991 and the Przasnysz Court had to request the Warsaw Court to transmit the case-file.   59.   The Government concede that no delays in the proceedings can be attributed to the applicant.   However, certain delays are attributable to the conduct of the parties.   On 9 November 1992 and 18 May 1993 the hearings were adjourned as there was no confirmation in the case-file that the summonses had been served on the defendant.   The court cannot be held responsible therefor.   On 24 November 1992 the hearing was adjourned as a witness failed to appear.   On 25 January 1994 and 23 September 1994 the hearings were adjourned as both parties failed to appear.   In the course of the proceedings the applicant filed appeals against certain decisions.   60.   As regards the conduct of the authorities, the Government submit that there were no shortcomings for which the courts could be held responsible.   The dates of hearings were set at the shortest intervals possible.   On 5 March 1995 there was a fire in the Przasnysz Court. The applicant's file was not destroyed, but serious difficulties in the functioning of the Court ensued.   The applicant's former professional status as a judge in the Olsztyn Regional Court and the fact that he had been a direct superior of civil judges in the jurisdiction of that Court caused many judges to step down, which entailed certain delays in the proceedings.   61.   The Government conclude that the length of the proceedings complied with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   62.   As regards the complexity of the case, the Commission considers that establishing the facts could not give rise to any difficulties, as no facts were in dispute between the parties.   The complexity of the case, on which the Government mostly rely, was purely of a legal nature. The applicant, in his claim, relied directly on the Constitution and on the principle lex retro non agit with regard to his social insurance rights acquired under the previous legislation. Therefore the courts had to reply to his arguments which, being of a constitutional-law nature, are rarely dealt with in the case-law of the Polish courts.   The Commission further notes that it took the courts two years and two months to reject the action after finding that the claim constituted res iudicata.   In the Commission's opinion, that   is a long period in which to make such a finding.   63.   The Commission further considers that the Government have not shown how the fact that the October 1991 Retirement Pensions Act was being examined by the Constitutional Court as to its compatibility with the Constitution could have any bearing on the conduct of the present case.   It must be noted in this respect that the judgment of the Constitutional Court was pronounced as early as 11 February 1992, thus at a very early stage of the proceedings concerned and before the time whose lenngth is to be assessed in this case.   64.   The Commission further notes that the Government concede that no delays in the proceedings can be attributed to the applicant, but that certain delays occurred for reasons "concerning the parties to the proceedings", in particular the defendant.   However, it was for the court, by taking appropriate procedural measures, to prevent the defendant Social Insurance authorities, which were a State-run public-interest institution, from delaying the proceedings to the detriment of the applicant.   The Commission observes that the court remained passive in this respect.   In particular, it did not enquire as to why the confirmation that the defendant had received the summonses had not been submitted to the court before the two hearings which were consequently adjourned.   The Commission further notes that the applicant's case-file was not destroyed in the fire in the Przasnysz District Court in March 1995.   Therefore it does not find it established that it could have affected the conduct of the proceedings, as the Government maintain.   65.   The   Commission observes that there were significant intervals between certain hearings, i.e. from 18 May 1993 to 25 January 1994 and from 25 January 1994 to 23 September 1994.   No convincing explanation has been given therefor.   66.   As regards the applicant's conduct, the Commission observes that his presence at the hearings was not obligatory. It has not been shown that his absence prevented the court from pursuing the case.   As no facts were   in dispute between the parties, the Commission considers that the applicant's personal presence did not affect the conduct of the proceedings.   He submitted his extensive arguments as to the legal aspects of the case in his frequent written submissions to the court, presented in a clear and professional manner.   67.   In the light of the criteria established by case-law and having regard to the particular circumstances of the case, the Commission considers that the length of the proceedings concerned was excessive and failed to meet the "reasonable time" requirement under Article 6 para. 1 (Art. 6-1) of the Convention.        CONCLUSION   68.   The Commission concludes, by 10 votes to 5, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber                                                    (Or. English)                DISSENTING OPINION OF Mr P. LORENZEN                            JOINED BY                Mrs G.H. THUNE, MM F. MARTINEZ,                 I. CABRAL BARRETO, E.A. ALKEMA        I am unable to join the majority in finding a violation of Article 6 para 1 for the following reasons.        According to the case-law of the European Court of Human Rights the reasonableness of the length of court proceedings is to be determined in the light of the circumstances of the case, and normally an overall assessment is called for.        The period to be considered in the present case began on 17 December 1991 when the applicant lodged his compensation claim with the Olsztyn District Court and ended with the judgment of 16 January 1996 of the Ostrol*ka Regional Court.   The proceedings thus lasted approximately 4 years and 1 month out of which the period which the Commission is competent to examine directly is 2 years, 8 months and 16 days.        The proceedings had to be transferred to different jurisdictions because of the applicant's earlier post as a judge and they were finally decided by two instances.   As submitted by the Government the proceedings seem to have concerned legal questions of some complexity which is supported by the fact that the applicant presented extensive and frequent written submissions on the merits of the case.        Even if procedural errors concerning the summonses of the defendant and the necessity of the presence of the applicant caused some delay and that the proceedings were also prolonged by some periods of inactivity, an overall assessment cannot in my opinion lead to the conclusion that the total lenght of the proceedings was excessive.