CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 avril 1999

.s800EAC49 { font-size:12pt } .s598389FD { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:16pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s23A41E03 { width:36pt; display:inline-block } .sBA8DCCFC { width:35.45pt; display:inline-block } .s31BEBB9E { width:7.26pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sE55CAA3E { width:1.26pt; display:inline-block } .s796BDE8F { width:14.11pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s29100277 { font-family:Arial; font-weight:bold } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .s21B97EC1 { width:25.99pt; display:inline-block } .s3985515B { margin-top:0pt; margin-left:36pt; margin-bottom:0pt } .s936EB0A2 { width:17.01pt; display:inline-block } .s8354CF86 { width:259.15pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .sFBBFC6C9 { width:290.51pt; display:inline-block } FOURTH SECTION   PARTIAL 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 20 April 1999 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 ,   with   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 report provided for in Rule 49 of the Rules of Court;     Having deliberated;     Decides as follows:   THE FACTS     The applicant is a Polish national, born in 1974 and living in Pruszków.     He is represented before the Court by his father who is his legal guardian.     The facts of the case, as submitted by the applicant, 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 accident, both for those which had already come to light and for those which might manifest themselves in the future. The Court also awarded to 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 came back to Poland.     In February 1991 the applicant lodged an action with the Warsaw Regional Court claiming 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 orders 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 come back 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. Subsequently he stayed at home. He had several times breached legal order. 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 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 the increase of the 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 pension such as would have covered higher costs of the applicant’s livelihood in Germany, and even less so in the exorbitant sum claimed by him. Thus, the court continued, in calculation of 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 a minimum salary provided for by law.     The court further examined a litigious question 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 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 of 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 decision in respect of the request for the security order would be made as soon as the latter decision would become 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 in which he claimed compensation for non-pecuniary damage. The court considered that the claim was res iudicata insofar as it concerned “Warta” Insurance, 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” Insurance, 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 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 in its part by which the lower court had partly dismissed the applicant’s claims and in the part by which the court had exempted the applicant from an 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 the judgment of 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 thus the statutory requirement for lodging a cassation appeal by the Minister was 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” Insurance Company, 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 a 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 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 case be taken over for the examination 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.     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 a 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 a possibility for any case to be taken over by the Supreme Court.     The proceedings are pending before the Warsaw Regional Court.     COMPLAINTS     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 applicant submits that it should be possible to him to receive adequate medical treatment in a country and in medical institution freely chosen by him, and that the party responsible for his disability should finance it even before a final judgment in this respect is pronounced. He complains that the Polish authorities frustrate his efforts to obtain medical treatment in the United States.     The applicant complains that his right to life is breached by the fact that he does not dispose of sufficient subsistence means, as a result, inter alia , of the prolongation of the civil proceedings pending before the Warsaw Regional Court. He further submits that the State should provide him with means of subsistence by way of a judicial order for security to be paid. The applicant submits that he is entitled to receive compensation for his disability. The applicant relies on Article 2 of the Convention.     The applicant finally submits that he is discriminated against and that his claims were in part dismissed by the Warsaw Regional Court because of his German origin. He alleges that the courts deliberately prolong the proceedings in his case so as to penalise him for his two years’ emigration to Germany. He refers in this respect to certain passages in the Regional Court’s judgment of 10 March 1995. Article 14 of the Convention is invoked in this respect. THE LAW   1.   The applicant complains under Article 6 of the Convention that the civil proceedings in the case pending before the Warsaw Regional Court are unreasonably long.     The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.   2.   The applicant submits that it should be possible to him to receive adequate medical treatment in a country and in medical institution freely chosen by him, and that he is prevented by the Polish authorities from having such treatment.     The Court first notes that in fact, in its decision of 20 December 1996, the Pruszków District Court granted the applicant’s legal guardian’s request for a permission to arrange for the applicant’s medical treatment in the United States. The Court also notes that the Polish authorities did not take any decisions which could be interpreted as amounting to a prohibition of medical treatment abroad. The Court finally recalls that the Convention does not guarantee the right to any particular standard of medical services or the right to access to medical treatment in any particular country.     It follows that this complaint is incompatible ratione materiae with the Convention. Accordingly, it must be dismissed pursuant to Article 35 § 3 of the Convention.   3.   The applicant complains that his right to life is breached by the fact that he does not have sufficient subsistence means at his disposal as a result, inter alia , of the prolongation of the civil proceedings pending before the Warsaw Regional Court. He further submits that the State should provide him with means of subsistence. The applicant submits that he is entitled to receive compensation for his disability. He relies on Article 2 of the Convention.     Insofar as the applicant’s complaints relate to his difficult financial situation, the Court recalls that neither Article 2 nor any other provision of the Convention can be interpreted as conferring on an individual a right to enjoy any given standard of living, or a right to obtain financial assistance from the State. The Court observes that, in any event, the applicant, as indicated in the Regional Court’s judgment of 10 March 1995, was receiving monthly financial assistance from the Social Assistance authorities. It follows that this complaint is incompatible ratione materiae with the Convention and must be dismissed pursuant to Article 35 § 3 of the Convention.     The Court further observes that the treatment complained of, i.e. the prolongation of the proceedings pending before the Warsaw Regional Court and the fact that in these proceedings the court made an order for security in a sum which, in the applicant’s opinion, appears to be insufficient, do not expose the applicant to any danger to life or limb such as to bring it within the ambit of Article 2 of the Convention. Accordingly, this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.   4.   The applicant finally submits that he is discriminated against and that his claims were in part dismissed by the Warsaw Regional Court because of his German origin. Article 14 of the Convention is invoked in this respect.     The Court notes that the applicant refers to certain passages in the written grounds of the Warsaw Regional Court’s judgment of 10 March 1995. The court considered in particular that the decision of the applicant’s family to emigrate to Germany had not been justified by any extraordinary circumstances such as persecution by the authorities and that had most probably been motivated, as was the case of other Polish families emigrating at that time, by a 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 pension such as would have covered higher costs of the applicant’s livelihood in Germany.     The Court notes that this judgment was subsequently set aside by the Warsaw Court of Appeal and the proceedings are again pending before the Regional Court. The applicant has not exhausted domestic remedies available to him under Polish law and his complaint is therefore premature. It follows that this part of the application must be declared inadmissible for non-exhaustion of domestic remedies under 35 § 1 of the Convention.       For these reasons, the Court, unanimously,   DECIDES TO ADJOURN the examination of the applicant’s complaint that the civil proceedings pending before the Warsaw Regional Court since 1991 last excessively long;   DECLARES INADMISSIBLE the remainder of the application.           Vincent Berger   Matti Pellonpää   Registrar   President