CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 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. 29697/96                       by Wladyslaw GLADKOWSKI                       against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 4 March 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 23 March 1995 by Wladyslaw GLADKOWSKI against Poland and registered on 4 January 1996 under file No. 29697/96;        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      20 August 1997 and the observations in reply submitted by the      applicant on 15 October 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen born in 1927, is a retired physician residing in Kluczbork, Poland.        The facts of the case, as submitted by the parties, may be summarised as follows:   A.    Particular circumstances of the case        On 30 July 1985 the applicant had an operation on his leg in the Central Hospital of the Ministry of the Interior.   Apparently, the operation was not successful as, from December 1985 to   May 1986 and from 11 January to 28 September 1986 and, again, from 28 June to 26 July 1989, he underwent further surgical treatment in various hospitals and clinics.   Since his condition had not improved and he was permanently unable to walk, on an unspecified date following the termination of his treatment the Social Security (Zaklad Ubezpieczen Spolecznych) assessed him as having the so-called "first degree of disability" (i.e., resulting from an incurable disease or permanent invalidity).        On 14 October 1989 the applicant lodged a claim   with the   Warsaw Regional Court (S*d Wojewódzki), seeking compensation from the Central Hospital of the Ministry of the Interior.   He requested compensation for the inappropriate medical treatment which had resulted in his disability.   He also asked the court to grant him a general exemption from court fees and legal assistance.   On 28 September 1989 and 13 November 1989, respectively, the court granted his requests.        On 20 December 1989 the Warsaw Regional Court requested the applicant's officially-appointed lawyer to submit, within the fourteen- day time-limit, a pleading containing the precise statement of claim, on the pain of the applicant's claim submitted on 14 October 1989 being returned to him.   Since the lawyer failed to comply with the court's request, it returned the applicant's original pleading to him on 15 January 1990.   On an unspecified date the applicant appealed against this order to the Supreme Court (S*d Najwyzszy).   He further requested the Supreme Court to grant him retrospective leave to appeal out of time as, apparently, he had failed to comply with the time-limit prescribed for his appeal.   Finally, following several procedural motions by the applicant and his lawyer, a pleading complying with the Warsaw Regional Court's request of 20 December 1989 was lodged with that court on 17 February 1990.   It was served on the defendant on an unspecified date.   On 5 March 1991 the defendant lodged its pleading in reply.        In the meantime, from an unspecified date in June 1990 to 3 December 1990, the case-file remained in the Supreme Court, which dealt with the applicant's appeal and his request for retrospective leave to appeal out of time on 26 June and 9 October 1990.        On 11 June 1991 the Warsaw Regional Court ordered that evidence be taken from witnesses and medical experts and that it be heard by the court of the applicant's place of residence, i.e. the Kluczbork District Court (S*d Rejonowy).   Subsequently, the court decided that the Wroclaw District Court should hear evidence from experts since the relevant report was to be made by the Wroclaw Academy of Medicine.   The report in question was submitted to the Warsaw Regional Court on 19 June 1992.        Meanwhile, on several occasions, the applicant unsuccessfully requested the court to transfer his case to the Opole Regional Court, submitting that he was not able to travel from his place of residence to the court dealing with his case.   The last of these requests was dismissed on 25 January 1993.        On 28 October 1993, upon the parties' request, the Warsaw Regional Court ordered that evidence be taken from medical experts (an orthopaedist and an internist) of the Warsaw Academy of Medicine in order to establish whether or not there was a causal link between the operation carried out on 30 July 1985 and the applicant's disability and whether the diagnosis preceding his operation had been correct.        On 4 January 1994 the applicant complained to the Minister of Justice about the length of the civil proceedings instituted by him.        In a letter of 2 February 1994 the Minister of Justice informed the applicant that the delay in the proceedings had resulted from the fact that the experts' report was not ready yet.   He also admitted that the applicant's objections to the excessive length of the proceedings were indeed well-founded and that, therefore, the case would be placed under the Minister's supervision.        On 18 March 1994 the experts of the Warsaw Academy of Medicine submitted their report.        On 7 September 1994 the Kluczbork District Court, on the request of the Warsaw Regional Court, heard evidence from the applicant.        On 18 September 1995 the Warsaw Regional Court held a hearing. It took evidence from the surgeon who had treated the applicant and performed the operation allegedly resulting in the applicant's disability.   On the same day the applicant filed a pleading.   He requested the court to give a preliminary judgment in his case.        On 13 November 1995 the court held the next hearing.   It was adjourned since the applicant's lawyer requested the court to call further evidence from medical experts.        On 9 February 1996 the court requested experts of the Faculty of Internal Diseases of the Jagiellonian University in Cracow (i.e. internist, orthopaedist and cardiologist) to prepare a report assessing whether the applicant's disability had resulted from the original surgical treatment and whether the diagnosis of his disease, his operation and his post-operation treatment had been correctly carried out.        On 12 February 1996 the applicant filed his next pleading.   He again requested the court to give a preliminary judgment.   He also withdrew his lawyer's request for further evidence from medical experts to be called, in view of the excessive delay in obtaining such evidence and the fact that the proceedings in question had meanwhile lasted over six years.        On 8 March 1996 the expert from the Jagiellonian University informed the court that the Faculty of Internal Diseases was not competent to prepare a report relating to the applicant's previous surgical treatment and his disability.        On 16 March 1996 the applicant complained to the Chief Justice of the Warsaw Court of Appeal (S*d Apelacyjny) about the unusual length of the proceedings in his case.   In a letter of 22 April 1996 the Chief Justice apologised to the applicant for the delay in the proceedings which, in his view, was partly attributable to the court dealing with the case. He also stated that the difficulties in obtaining experts' reports had fundamentally affected the proper course of the proceedings in question.        On 30 April 1996 the court requested experts from the Poznan Academy of Medicine to prepare a report in the applicant's case. Subsequently, the experts informed the court that they could only prepare the requested report in several months' time.        On 17 September 1996 the court requested experts from the Lódz Academy of Medicine to prepare a report in the applicant's case within one month.        On 14 January and 20 February 1997 the court issued reminders to the experts.   On 13 May 1997 the experts submitted their report to the court.   The court scheduled a hearing for 11 September 1997 in order to hear evidence from the experts.   The hearing was adjourned.        Subsequently, on an unspecified date, the applicant requested the court to order that evidence from the experts from the Lódz Academy of Medicine be heard before the court of his place of residence, i.e. the Kluczbork District Court.   In particular, he stressed the fact that he was unable to travel due to his disability and had not, to date, been able to participate in any hearings.   He stated that he wished to examine the experts in person and put questions to them.   On an unspecified date the court ordered that evidence from the experts be heard by the Lódz District Court on 12 December 1997.        On 12 November 1997 the applicant filed a pleading and increased the amount of compensation claimed, submitting that since 14 October 1989, i.e. the date on which he had lodged his original claim, the purchasing power of the monies at stake had significantly decreased.         On 26 November 1997 a summons for the hearing scheduled for 12 December 1997 was served on the applicant.   On the same day he lodged a complaint with the Warsaw Regional Court, submitting that he had repeatedly requested that evidence from the experts should be heard by the Kluczbork District Court.   He was an invalid.   Throughout the entire proceedings he had not been able to participate in the hearings. As a result, he had been put in a disadvantageous position in comparison to the opposing party.   Thus, the refusal to grant his request had severely impaired his access to court which, in any event, had been (and was) limited by the nature of his disability.   He again requested the court to order that evidence from experts be heard before the Kluczbork District Court.        The proceedings are still pending before the court of first instance.   B.    Relevant domestic law and practice        The Polish Code of Civil Procedure refers to the question of "speediness of proceedings" in relation to proceedings as a whole.   In particular, under Section 6 of the Code,   the court competent to deal with the case shall ensure that proceedings are not excessively prolonged and endeavour, as far as possible without prejudicing the determination of the case, to resolve the case at the first hearing held.        Chapter III of the Code, entitled "Evidence", refers to the assessment and admissibility of evidence.   Under its provisions read together, it is the duty of a litigant to prove a fact or facts relevant to the claim submitted to the court, whereas it is for that court to assess the relevance of any evidence to the resolution of the case.   The parties do not have an unlimited right to call evidence, as it is for the court to decide at any stage of the proceedings whether or not the evidence already adduced by them is sufficient for the determination of the claim in question.     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention about the excessive length of the civil proceedings in his case.   He submits that such a delay amounts to a lack of effective access to a court within the meaning of this provision of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 23 March 1995 and registered on 4 January 1996.        On 21 May 1997 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 20 August 1997, after the second extension of the time-limit fixed for that purpose.   The applicant replied on 15 October 1997.     THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the excessive length of the civil proceedings in his case.   He submits that such a delay amounts to a lack of effective access to a court within the meaning of this provision of the Convention.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides:        "1.    In the determination of his civil rights and obligations      ... everyone is entitled to a ... hearing within a reasonable      time by [a] ... tribunal established by law. ... "     a)    The Government submit that the application, insofar as it relates to events prior to 30 April 1993, is outside the temporal competence of the Commission.   This part of the application is therefore inadmissible as being incompatible ratione temporis with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        The applicant replies that Poland, by ratifying the Convention, recognised its citizens' unlimited right to submit petitions under Article 25 (Art. 25) of the Convention.   As a result, the Commission is competent to examine the conduct of the civil proceedings complained of regardless of whether they went on or have been going on, before or after 30 April 1993.        The Commission observes that these proceedings commenced on 14 October 1989 (i.e. when the applicant commenced his civil action in the Warsaw Regional Court) and are still pending.   They relate in part to a period prior to 1 May 1993, the date on which Poland's declaration acknowledging the right of individual petition took effect.   Since, in that declaration, Poland limited the Commission's competence to facts subsequent to the declaration, the Commission, by reason of its competence ratione temporis, can examine the applicant's complaint about the length of these proceedings only insofar as it relates to the period after this date.   Nonetheless, 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).   b)    The Government submit that in the light of the criteria relevant to the notion of a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, deriving from the Convention organs' case-law, the length of the proceedings in the applicant's case was reasonable even though they, as a whole, have lasted for a regrettably long time.        Nevertheless, in assessing their overall length various factors must be taken into account.        First of all, the Government point out that the applicant's case is a very complex one.   The Warsaw Regional Court, in order to determine his claim properly, had to establish whether or not there was a causal link between the operation which the applicant had undergone in 1985 and his disability.   Accordingly, the court had to assess the facts relevant to his claim in the light of reports by medical experts. Upon the parties' requests, the court ordered that evidence be taken from experts on three occasions.   Moreover, due to the particularly complex medical problems arising from the applicant's operation and his subsequent treatment, the court ordered that reports be submitted by experts of scientific institutes, i.e. Academies of Medicine.   There was, however, a discrepancy between the conclusions of the first two reports.   Since it concerned a complex medical problem, the Warsaw Regional Court ordered that fresh evidence from experts be taken.        Secondly, the Government submit that the court faced difficulties in finding appropriate experts.   It is true that, regrettably, this contributed to slowing down the proceedings.   However, the Warsaw Regional Court, by making consistent efforts aimed at obtaining evidence which was decisive for the outcome of the case, displayed due diligence in dealing with the applicant's case.   It made various, and eventually successful, attempts to find the appropriate experts and to supervise their work, in particular by means of its extensive correspondence with the experts and frequent reminders addressed to them.   It held hearings at regular intervals and, when necessary, ordered that evidence be heard before other courts so as to avoid any further delay in the proceedings.   Finally, regard must be had to the fact that, in recent years, medical institutes throughout Poland have been overburdened by the number of courts' requests for expert reports. As a consequence, the Polish judiciary has been dealing with a general problem of obtaining evidence from experts in time.        As regards the conduct of the applicant, the Government maintain that it contributed to the length of the proceedings concerned, especially at an early stage of the proceedings.   Since the applicant had failed to comply with the Warsaw Regional Court's request to submit the pleading containing the precise statement of claim and, subsequently, had lodged an appeal with the Supreme Court, the court of first instance was unable to deal with his case until 5 January 1991.   Furthermore, the applicant also requested the court to order that evidence be heard before the Kluczbork District Court and lodged other motions and appeals.   He had the right to do so; however he should also have been aware that it might result in the prolongation of the proceedings.        Finally, the Government point out that the applicant had undergone his operation on 30 July 1985 but lodged the claim for compensation arising from the allegedly inappropriate treatment as late as 14 October 1989.   The lapse of time between these two events partly contributed to the complexity of his case and resulted in the court and experts having significant difficulties in establishing whether or not there was a causal link between the medical treatment in question and the applicant's disability.        The applicant generally contests the Government's submissions. He replies that the length of the proceedings in his case clearly exceeded a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Thus, the proceedings have been pending before the court of first instance for more than eight years.   The court was (and is), however, either unable or unwilling to determine the claim submitted to it.     The case is not complex at all as the only issue to be established is, as the Government have pointed out, whether there is a causal link between the operation on his leg and his subsequent disability.        Nor can it be said, in his opinion, that he contributed to the length of the proceedings in his case.   He is an invalid, permanently unable to walk and the entire proceedings were conducted without his personal participation.   The fact that he requested the court to order that some part of evidence be heard before the court of his place of residence, i.e. the Kluczbork District Court, cannot be held against him;   after all the Warsaw Regional Court repeatedly ordered that evidence be heard before various other courts which, in the Government's opinion, was justified.   The applicant concludes that the excessive length of the proceedings in his case resulted from inactivity on the part of the Warsaw Regional Court.        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 this complaint is required.          For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber