CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.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. 29680/96                     by Iwona SIEMIENSKA-KLEDZIK                     against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 14 January 1998, the following members being present:             MM    J.-C. GEUS, President                M.A. NOWICKI                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS           Mrs   G.H. THUNE           MM    F. MARTINEZ                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN                E. BIELIUNAS                E.A. ALKEMA                A. ARABADJIEV             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 31 August 1995 by Iwona Siemienska-Kledzik against Poland and registered on 4 January 1996 under file No. 29680/96;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 5 June      1997 and the observations in reply submitted by the applicant on      5 August 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen born in 1954, is a lawyer residing in Poznan.        The facts of the case, as submitted by the parties, may be summarised as follows:        In 1982 the applicant married K. K.   On 19 September 1987 K. K. filed an action for divorce with the Poznan District Court (S*d Rejonowy).   He requested the court to dissolve the marriage without determining who was at fault in its breakdown.        The court subsequently held three hearings in an attempt to obtain a reconciliation of the parties, on 5 and 29 January and on 1 April 1988.   The applicant was not present at any of these hearings and on each occasion she submitted a medical certificate to the effect that her bad health and medical treatment prevented her from participation in the proceedings.        In a letter of 29 April 1988, in reply to the court's enquiry as to when the applicant would be able to participate in the proceedings, the Neurological Medical Centre informed it that the applicant was undergoing treatment and that her participation could lead to the deterioration of her condition.        On 13 May 1988 K. K. requested that the court pronounce an annulment of the marriage instead of divorce.   He submitted that the applicant had been suffering from mental disorder and that she had entered into the marriage in bad faith, being aware thereof. He requested the court to order a psychiatric expert opinion as to the applicant's mental condition.        On 21 June 1988 a medical expert, R.G., submitted his opinion to the court.   He stated that the applicant suffered from a psychogenic syndrome, which was not a psychiatric illness.   This syndrome had already existed when she entered into the marriage.   The expert indicated that a further opinion of a neurologist was advisable.        At a hearing on 9 September 1988 the applicant was not present due to bad health.   She submitted a relevant medical certificate.   Her counsel requested that the hearing be adjourned so that he could submit a reply to the annulment claim.   On 25 September the applicant withdrew her power of attorney.        On 11 October 1988 the applicant requested that criminal proceedings on the charge of maltreating her be instituted against her husband.        On 23 January 1989 a psychologist, E.K., stated in a further expert report which had been ordered by the court that the applicant had manifested certain characteristics of an abnormal personality, which did not, however, amount to an impediment to   marriage.   There were no indications that the applicant had entered into her marriage in bad faith.        On 9 February 1989 the Poznan District Prosecutor joined the proceedings.        On 23 March 1989 the Poznan District Prosecutor refused the applicant's request to institute criminal proceedings against K. K. for ill-treatment by, inter alia,   submitting false information to the court in the divorce proceedings.   The Prosecutor found that there was insufficient evidence for a finding that a criminal offence had thus been committed.        In a further expert report of 5 April 1989 a neurologist, J.M., stated that the applicant's condition had not amounted to an impediment to marriage.   It was further stated that an analysis of the applicant's medical history had not furnished any grounds for a finding that she had been suffering from psychiatric illness.   He shared the conclusions of the psychologist's expert report.        At a hearing on 24 April 1989 the applicant was represented by a new counsel.   The parties requested that the court hear evidence from certain witnesses.   The applicant's husband and the Public Prosecutor requested that the court order a fourth expert report.        At a hearing on 5 June 1989 the experts R.G. and E.K. were questioned.   They confirmed the conclusions contained in their reports. The court further heard evidence from four witnesses.   The hearing was adjourned in order to question the expert J.M. and, again, R.G.        On 5 September 1989 the hearing was adjourned as the experts had failed to comply with the summonses.        At a hearing on 6 October 1989 the experts again failed to attend, but they had submitted letters explaining the reasons for their inability to attend.   At the plaintiff's request, the court ordered that the fourth expert, psychiatrist M. S., submit her report as to the applicant's mental health.   The court dismissed the applicant's request for alimony to be paid pending a final judgment in the divorce proceedings.        On 24 September 1990 the expert M. S. submitted her report.        On 22 October 1990 the Poznan Regional Court (S*d Wojewódzki), upon the applicant's appeal, quashed the decision of 6 October 1989 and decided that her request for alimony should be reconsidered.   At a hearing on 22 February 1991 the court ordered the plaintiff to pay monthly alimony to the applicant.        At a hearing on 22 February 1991 the experts R.G., E.K. and M.S. failed to attend.        At a hearing on 18 March 1991 these experts, as well as the expert J.M., gave evidence.   They upheld the conclusions contained in their reports.        On 2 April 1991 the Poznan District Court annulled the applicant's marriage, finding that she had been suffering from mental disorder.   The court relied, inter alia, on four medical expert opinions as to her condition.   The court found that the applicant had been ill when she entered into the marriage.        The applicant lodged an appeal against this judgment.        On 27 September 1991 the Poznan Regional Court quashed this judgment and ordered the case to be reconsidered.   The court observed that the written grounds of the impugned judgment were laconic and chaotic.   The lower court had failed to establish with   sufficient clarity the nature of the applicant's alleged mental disorder.   Four medical expert opinions had been submitted to the court, but it had not clearly indicated the evidence on which it had relied when establishing particular facts.   On the whole, the assessment of the evidence had been superficial.   The conclusion as to the applicant's condition at the time when she entered into the marriage   was therefore ill-founded. The Court ordered the lower court to ensure that there was an unequivocal psychiatrist's opinion as to whether the applicant's condition when she entered the marriage was such as to correspond to any known psychiatric disorder.        The case was subsequently   transmitted to the Poznan Regional Court which had become competent to examine the case as a first- instance court due to a change of the relevant legislation.        On 10 February 1992 the hearing before the Regional Court was adjourned so that the applicant could submit her claim for a higher alimony to be paid pending the final decision in the case.        At a hearing on 27 April 1992 the court heard evidence from two experts, R.G. and M.S.   In view of their divergent conclusions as to the applicant's mental health, the applicant's counsel requested that two further experts from outside Poznan should prepare new reports and that witnesses be heard.   On 30 April 1992 the applicant withdrew her request for new expert opinions.   However, the court appointed two experts.   One of them refused to prepare the report in view of his personal contacts with one of the parties.   The other expert likewise refused.   The court appointed W.M. as an expert, who on 8 March 1993 submitted his report to the effect that the applicant had not been suffering from any mental disorder.        At a hearing on 2 June 1993 the court heard evidence from the expert W. M., who confirmed his conclusions.   The plaintiff requested that a further psychiatrist be appointed as expert and the court complied with the request by appointing two experts who later submitted their report.        At a hearing on 28 April 1994 the court heard evidence from these experts who stated that the applicant had not suffered from any mental disorder when she entered into her marriage.        At a hearing on 29 August 1994 the court heard evidence from one witness and from the plaintiff, and decided not to question the applicant as she had not been participating in the proceedings.        At a hearing on 28 November 1994 the plaintiff changed the claim to a divorce claim and further witnesses were questioned.   By a letter of 9 December 1994 the applicant's lawyer consented to the change of the claim and requested that the plaintiff be declared at fault in the breakdown of the marriage.        At a hearing on 26 April 1995 the court heard evidence from one witness requested by the applicant.   The court decided that, in the light of his submissions, it was necessary to call as witnesses the applicant's sister and the plaintiff's mother.   These witnesses were questioned at a hearing on 30 August 1995.        On 11 September 1995 the Poznan Regional Court dissolved the applicant's marriage for reasons "concerning the applicant, but for which she was not responsible".     COMPLAINTS        The applicant complains under Article 3 of the Convention that her husband ill-treated her and that the proceedings, in particular the fact that psychiatric expert opinions were prepared, and the statements as to her mental health contained in the grounds of the annulment judgment of 1991, constitute inhuman and degrading treatment.        She further complains under Article 5 para. 1 of the Convention that the proceedings deprived her of personal liberty.        She complains under Article 6 para. 1 of the Convention about the length of the proceedings.        She complains under Article 8 of the Convention that erroneous psychiatric opinions were submitted to the court in the proceedings and that this amounted to an interference with her private life.   These reports were irrelevant to the proceedings as in the   proceedings for annulment only her mental state at the date of the marriage could have been of any significance.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 31 August 1995 and registered on 4 January 1996.        On 17 January 1997 the Commission decided to communicate the applicant's complaint concerning the length of the divorce proceedings to the respondent Government.        The Government's written observations were submitted on 7 June 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 5 August 1997.     THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the divorce proceedings.        Article 6 (Art. 6) of the Convention, insofar as relevant, reads:        "1.   In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing within a      reasonable time ..."   a)    The Government first submit that the application, insofar as it relates to events prior to 1 May 1993, i.e. the date of recognition of the right of individual petition by Poland, is outside the competence ratione temporis of the Commission.        The applicant does not address this issue.        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". It follows that the Commission is not competent to examine complaints relating to violations of the Convention by acts, decisions or events that have occurred prior to this date.        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 (Eur. Court HR, Foti v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, para. 53).   It follows that the Commission is competent ratione temporis to examine the applicant's complaint insofar as it relates to the proceedings after 30 April 1993, taking into consideration the stage of the proceedings reached 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 Government contend that the applicant cannot be regarded as having exhausted available domestic remedies with regard to the complaint about the length of the proceedings.   The Government submit that there is no single general remedy available under Polish law to complain about the length of proceedings.   However, they submit that the usual judicial remedies, i.e. appeals against procedural and substantive court decisions, could be employed in this respect.   The applicant has not shown that she relied on the length of proceedings in the appeal which she filed against the judgments of 1991.   Neither has she complained about the length of the proceedings in her appeals against the procedural decisions.        The applicant submits that she could not have availed herself of any judicial remedies as she was not served with any judicial decisions pronounced in the proceedings.        The Commission recalls in this respect its finding that there is no effective remedy under Polish law to complain about the length of civil proceedings (No. 24559/94, Dec. 6.9.95, D.R. 82-B, p. 76). Therefore the Commission finds that it has not been established that the applicant had any effective remedy at her disposal which would have enabled her to submit her complaints under Article 6 para. 1 (Art. 6-1) of the Convention to the domestic authorities.   Accordingly, the application cannot be declared inadmissible for non-exhaustion of domestic remedies.   c)    As regards the substance of the complaint, the Government submit that the case should be regarded as highly complex as to its legal and factual aspects, in particular in the parts of the proceedings which concerned the claim for annulment.   It was necessary to establish whether the applicant had suffered from any mental disorder at the time when she entered into her marriage and, if this were the case, whether this disorder had subsequently ceased to exist.   As the expert reports were divergent, it was necessary for the court to question the experts. The experts' oral submissions not being concordant, the court, upon the parties' requests, including the applicant's request of 27 April 1992, ordered that five expert opinions be submitted.   Pursuant to the Civil Code,   experts shall be questioned at a hearing if doubts as to the circumstances of the case subsist after they have submitted their reports to the court.        As regards the conduct of the authorities, the Government submit that there were no periods of inactivity in the conduct of the case other than those which were imposed by the provisions of civil procedure or dictated by the necessity to have the expert reports ready within a reasonable time. The dates of the hearings were fixed without undue delays.   They were dictated by the judges' workload.        As regards the conduct of the applicant, the Government contend that it was principally her conduct which contributed to the length of the proceedings.   She was not present at any of the hearings and persistently refused to undergo a medical examination by the experts. She further prolonged the proceedings by the withdrawal of the power of attorney to her counsel.        The Government conclude that the proceedings after 30 April 1993 were concluded within a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Consequently, this complaint should be declared manifestly ill-founded.        The applicant generally disagrees with all the Government's submissions and submits that the proceedings lasted too long and were conducted in an incompetent manner.        The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.   2.    The applicant complains under Article 8 (Art. 8) of the Convention that erroneous psychiatric opinions were submitted to the court in the proceedings and that this amounted to an interference with her private life.        Article 8 (Art. 8) of the Convention in its relevant part provides:        "1.   Everyone has the right to respect for his private ...      life...        2.    There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission first observes that it has not been established that the applicant actually underwent psychiatric examinations in the framework of the proceedings.   However, even assuming that the expert reports were prepared on the basis of the applicant's medical documents concerning her preceding medical treatment, the Commission considers that this amounts to an interference with her private life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention, and thus falls to be justified under Article 8 para. 2 (Art. 8-2) of the Convention.        The Commission notes that, when deciding that expert reports should be prepared for the purpose of the divorce and annulment proceedings, the courts acted pursuant to Section 278 of the Code of Civil Procedure which authorises the court to appoint experts if specialised knowledge is necessary for a judicial decision. The interference was therefore "in accordance with the law".        The Commission further considers that the decisions concerned pursued the legitimate aim of "protection of the rights and freedoms of others", within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        The Commission must next determine whether the interference was "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2). This condition implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.        The Commission observes that an assessment of the parties' mental health on entering into marriage is one of several crucial factors to be taken into consideration by the courts when deciding on a claim for annulment of marriage.   In the present case, the circumstances which were examined by the experts within the framework of the annulment proceedings, i.e. the applicant's mental health, were thus relevant to the case.   The divorce and annulment proceedings, by their very nature, entail an examination of private aspects of a person's life which in itself is not contrary to Article 8 (Art. 8) of the Convention.   The applicant does not claim that the contents of the expert reports were leaked to the public or that they harmed her reputation.   The Commission further notes that the applicant herself applied at least once for an expert report to be prepared on the state of her mental health and that the preparation of the expert reports did not entail taking any coercive measures against her.   The Commission therefore considers that the interference complained of was "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains under Article 3 (Art. 3) of the Convention that her husband ill-treated her and that the proceedings, in particular the contents of the psychiatric expert opinions and the statements as to her mental health contained in the grounds of the annulment judgment of 1991, constitute inhuman and degrading treatment.        Article 3 (Art. 3) of the Convention reads:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission notes that this complaint is directed in part against the applicant's former husband.   As it concerns a private person, it follows that this part of the application is incompatible ratione personae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        Insofar as this complaint is directed against the public authorities , the Commission recalls that according to the case-law of the Convention organs, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention (Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1979, Series A no. 25, p. 65, para. 162).   The Commission acknowledges that the emotional distress which the divorce proceedings might have caused the applicant,   was indubitably difficult for her. However, the Commission considers that it did not reach the threshold of severity required to fall within the ambit of Article 3 (Art. 3) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant finally complains under Article 5 para. 1 (Art. 5-1) of the Convention that the divorce proceedings deprived her of personal liberty.        The Commission observes that Article 5 (Art. 5) of the Convention protects the "right to liberty and security of person".   Physical liberty of the person is to be understood as being guaranteed by this provision.   Thus, the mere fact that the applicant was a party to the divorce proceedings cannot be regarded as deprivation of liberty within the meaning of Article 5 (Art. 5) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint that the proceedings concerning the claim      for divorce and for annulment of marriage exceeded a reasonable      time;        DECLARES INADMISSIBLE the remainder of the application.         M.-T. SCHOEPFER                               J.-C. GEUS          Secretary                                   President    to the Second Chamber                       of the Second Chamber