CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 juin 1999

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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 26 February 1997 by Janina DEWICKA   against Poland and registered on 19 November 1997 under file no. 38670/97;     Having regard to the report provided for in Rule 49 of the Rules of Court;     Having regard to the observations submitted by the respondent Government on 19   February 1999 and the observations in reply submitted by the applicant on 29 March 1999;     Having deliberated;     Decides as follows: THE FACTS       The applicant is a Polish national, born in 1911 and living in Wrocław, Poland.     The facts of the case, as submitted by the parties, may be summarised as follows.   A.   Particular circumstances of the case   On 18 February 1991 the applicant requested the Polish Telecommunications Office in Wrocław ( Telekomunikacja Polska ) to enter into a contract to provide her with telecommunication services and to install a telephone line in her apartment, submitting that it was justified in view of humanitarian reasons such as her old age and disability (in particular, the fact that her mobility, sight and hearing were seriously impaired).   She maintained that a total inability to communicate with the outside world in case of emergency was endangering her life.   On 19 March 1991 the office replied that at the current stage of development of its services, installing a telephone line in her apartment was technically impossible, although (time and progress in the necessary works permitting) the request would be granted in the near future.   Since no such contract had been concluded between the parties by spring 1993, on 19   June 1993 the applicant sued the Polish Telecommunications Office in Wrocław in the Wrocław-Fabryczna District Court ( Sąd Rejonowy ), seeking a judgment ordering the defendant to enter into a contract for the provision of telecommunication services with her and to install a telephone line in her apartment.   She also requested the court to exempt her from court fees and grant her legal assistance.   In that respect she relied on a medical certificate describing her state of health.   On 24 June 1993 the court, finding that the Wrocław-Krzyki District Court was competent to deal with the applicant’s claim, referred her case to the latter court.   The case was registered with the Civil Division of that court on 19 July 1993.   On 20 July the court ordered the applicant to adduce, within seven days, evidence in support of her request for exemption from court fees and legal assistance   On 3 August 1993 the Wrocław-Krzyki District Court granted the applicant a general exemption from court fees and legal assistance.   Later, on 13 August 1993, it served the statement of claim on the defendant company, ordering it to submit a reply within seven days.   On 6 September 1993 the trial court listed the first hearing in the applicant’s case for 12   October 1993.   During the hearing, the court established that a similar claim had been lodged by a person living in the same building as the applicant and registered under file no.   IC 214/93 with the Civil Division of the Wrocław-Śródmieście Court.   Apparently, that court had already ordered in those proceedings that expert evidence be obtained to establish whether it was technically possible to install a telephone line in the building.   Considering that such expert evidence might be relevant for the outcome of the applicant’s case, her lawyer requested the court to stay the proceedings.   On 20 October 1993 the defendant’s lawyer lodged a similar request with the court.   On 28 October the court ordered that the proceedings be stayed until the termination of case no. I C 214/93. Later, on an unspecified date, the Wrocław-Śródmieście District Court obtained a report from M., a telecommunications expert, according to whom it was technically possible to install a telephone line in the building.   On 28 October 1994 the court gave judgement.   On 10 March 1995 the applicant sent a letter to the Wrocław-Krzyki District Court, requesting it to proceed with the determination of her claim.   She also stated that it was high time that her claim was decided as it had been submitted for adjudication in 1993 and that both her age (she was eighty-four at this time) and the state of her health called for a speedy resolution of the proceedings.   The court deemed her letter to be a request for the proceedings to be resumed, to which it gave effect on 20 March 1995.   On 11 May 1995 the court held a hearing.   During that hearing the court decided to obtain evidence contained in the case-file of case no.   I   C   1280/94.   That case-file comprised material relating to a similar claim lodged by L.W., the applicant’s grandson, who lived in the same building as she did. The court further ordered that evidence from L.W. be heard and adjourned the trial to 22 June 1995.   After the trial date, on 28 June 1995, the court ordered that the material contained in the case-file no. IC 214/93 be obtained and taken into consideration.   On 3 July 1995 the Wrocław Town Social Welfare Office ( Miejski Ośrodek Pomocy Społecznej ) issued a decision granting the applicant the so-called “domiciliary services” ( usługi pielęgnacyjne ) in view of the fact that she suffered from sclerosis , her sight and hearing were seriously impaired, she was unable to attend to herself and needed care from third persons.   On 11 August 1995 the court ordered that the applicant’s lawyer submit, within seven days, a reply to a pleading filed by the defendant on an unspecified date.   Later, on 11   September 1995, the court issued a reminder to the lawyer, ordering him to submit the reply in question within three days.   On 15 September, 20 November and 4 December 1995 the court made certain orders relating to unspecified procedural issues.   On 19 January 1996 the court took evidence from the applicant at her home as it considered that, given her age and disability, she was unable to appear before it.   Apparently, the court encountered certain difficulties in communicating with the applicant.   A few days later, on 23 January 1996, the court ordered the applicant’s lawyer to submit a medical certificate stating whether the applicant was able to understand and lodge pleadings in her case.   On 4 March 1996 the court ordered that evidence from an expert in telecommunications be obtained in order to establish whether it was technically possible to install a telephone line in the applicant’s apartment.   The expert submitted his report to the court on 16 April 1996.   He concluded that even though installing a telephone line in the applicant’s apartment had been technically possible since as early as 1994, she had failed to comply with certain formal requirements for persons wishing to enter into a contract for telecommunication services, which had resulted in her being ineligible to enter into such a contract.   In particular, the applicant had not submitted documentary evidence demonstrating that priority should have been given to her application for the provision of telecommunication services.   Moreover, at the relevant time the Polish Telecommunications Office in Wrocław had had to deal with many similar requests lodged prior to that of the applicant.     On 17 April 1996 the court ordered that copies of the report be served on the parties and that they be obliged to submit any comments they wished to make within seven days.   A   copy of the report was served on the applicant on an unspecified date.   Subsequently, on 10   May 1996, the court listed a hearing for 8   August 1996.     On 10 August 1996 the applicant filed a motion with the court, challenging the impartiality of the expert.   She submitted that the expert was a permanent employee of the defendant and had, therefore, an interest in supporting the arguments of her opponent.   She requested the court to reject the expert’s report and order that fresh evidence be obtained from another, objective expert.   In the applicant’s opinion, the expert (who had been appointed at her expense) had manifestly violated basic principles of professional conduct and payment of the fee for preparing his report had not been justified.   The court should, therefore, either order the expert to pay back the fee or appoint another expert at its own expense.   On 19 August 1996 the court ordered the applicant’s lawyer to submit a medical certificate stating whether the applicant was able personally to give statements to (and file motions with) the court.   The next hearing was held on 31 October 1996; on that day the court ordered that fresh evidence from another expert be obtained, but on the applicant’s expense.   Later, on 14   January 1997, the court requested experts at the Institute of Telecommunications and Acoustics of Wrocław Technical University to prepare a report within one month.   On 21 February 1997 the experts from the Institute submitted their report to the court.   They concluded that during the period from June 1993 to 12 February 1997 installing a telephone line in the applicant’s apartment had been technically possible and, consequently, the defendant had had no reason for not entering into a contract for the provision of telecommunication services with the applicant.   Later, on an unspecified date, the applicant filed a pleading with the court, amending the statement of claim.   On a further unspecified date the court served a copy of her pleading on the defendant.   On 6 March 1997 the presiding judge ordered that fees for the expert report be provisionally borne by the court.   On 26 May 1997 the court held a hearing but adjourned the proceedings to 14 July 1997.   However, in July 1997 a massive flood inundated the south-west of Poland, severely affecting Wrocław and, as a result, the proceedings in the applicant’s case were stayed ex lege on an unspecified date.   On 18 August 1997 the Wrocław-Krzyki District Court held a hearing and gave judgment dismissing the applicant’s claim.   On 9 September 1997 the applicant filed an appeal against this judgment with the Wrocław Regional Court ( Sąd Wojewódzki ). An appellate hearing was held on 21 January 1998.   The court gave judgment the same day, granting the applicant’s claim.   A copy of the judgment was served on the applicant on an unspecified date.   Shortly afterwards, the applicant requested the appellate court to provide her with an enforcement order; however, the court informed her that she should lodge her motion with the court of first instance, which was competent to keep the records of the case in its archives and, if requested, provide the parties to the proceedings with a copy of the final judgment, together with an enforcement order.   Subsequently, on an unspecified date, the case-file was transferred to the Wrocław-Krzyki District Court.   It was received at the court’s registry on 2 April 1998.   In the meantime, on 16 March 1998 the applicant had requested the Wrocław-Krzyki District Court to provide her with an enforcement order.   As of 20 March 1999, she had not received that order.   B.   Relevant domestic law and practice   a)   Relevant provisions of the Code of Civil Procedure     Section 6 of the Code, which sets out a general principle known as the “expedition of civil proceedings” ( zasada szybkości postępowania ), provides:   “     The court shall counteract delays in proceedings and shall - insofar as it is possible [to do so] without prejudicing the [proper] elucidation of the case - endeavour to determine the case at the first hearing held.”     Section 781 1 of the Code, contained in Book Two, entitled “Enforcement proceedings”, provides as follows:   “     The court shall examine a motion for an issue of an enforcement order promptly; [such a motion] shall be examined within three days from the date on which it has been lodged with the court.”   Before a creditor can institute enforcement proceedings against a debtor, he or she must, as an indispensable statutory prerequisite, obtain a court order of enforcement (Sections 776 and 883 of the Code of Civil Procedure).   In practice, a court issues such a decision by stamping a copy of a final judgment with the set text of the order, which must be followed by the signature of a judge.   No court session is held to examine a motion for the issue of an enforcement order.   b)   Constitutional provisions     Article 45 § 1 of the Polish Constitution (which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997) states:   “     Everyone shall have the right to a fair and public hearing, without undue delay, before a competent, impartial and independent court.” Article 79 § 1 of the Constitution, which refers to a constitutional complaint, states:   “     In accordance with principles specified by statute, everyone whose constitutional freedoms and rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act upon which basis a court or organ of public administration has given a final decision on his freedoms, rights or obligations as specified in the Constitution.”     COMPLAINT     The applicant complains under Article 6 § 1 of the Convention that the Polish courts failed to determine her civil claim within a “reasonable time” and that, even though those courts eventually upheld her claim, they have failed to provide her with an enforcement order, which has resulted in her being unable to enforce the final judgment and thus to satisfy her claim.     PROCEDURE     The application was introduced on 26 February 1997 before the European Commission of Human Rights and registered on 19 November 1997.     On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.     On 15 December 1998, the Court decided to communicate the application to the respondent Government.   It also decided to give priority to the application, pursuant to Rule 41 of the Rules of Court.     The Government’s written observations were submitted on 19 February 1999, after an extension of the time-limit fixed for that purpose.   The applicant replied on 29 March 1999.     THE LAW     The applicant complains under Article 6 § 1 of the Convention that the Polish courts failed to determine her civil claim within a “reasonable time” and that, even though those courts eventually upheld her claim, they have failed to provide her with an enforcement order, which has resulted in her being unable to enforce the final judgment and thus to satisfy her claim.     Article 6 § 1 of the Convention provides, insofar as relevant:   “     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. ...”   In a letter of 19 February 1999, to which they attached their observations, the Government submit that in their view the applicant’s signature on page 8 of the application form differs substantially from her signatures on other pleadings.   They maintain, moreover, that “they reserve their right to question whether the applicant is an author of the application form and a victim of an alleged violation”.   The applicant, in her pleading, replies that the Government’s doubts as to the validity of her petition are entirely unfounded.   She admits that, given her age and serious disability, she could not, for obvious reasons, file her application without the help of third parties.   Similarly, she could by no means prepare her case herself.   However, the mere fact that she is unable to write down her complaints does not mean that she should be deprived of her right to lodge an individual petition with the Court, as guaranteed by the Convention.   The Court notes that the Government, after obtaining the applicant’s reply, have not contested her victim status further.   The Court has nevertheless examined the issue of validity of the applicant’s petition of its own motion.   In so doing, it has had regard to all the material in its possession and taken account of the age of the applicant and the nature of the ailments from which she suffers.     Assessing the relevant facts as a whole, the Court has found no cause to doubt that the application submitted in the applicant’s case was a valid and genuine expression of her right of individual petition under Article 34 of the Convention.       The Government further maintain that the applicant has failed to exhaust all the remedies available to her under Polish law and has not, therefore, complied with the requirements of Article 35 § 1 of the Convention.     The Government begin by pointing out that Section 6 of the Code of Civil Procedure sets out a general principle of expedition in civil proceedings, regardless of their stage.   On the other hand, under Section 781 1 of the Code of Civil Procedure courts are obliged to examine a motion for the issue of an enforcement order within three days.   In the present case, the applicant lodged her motion under that section on 18 March 1998 but the court failed to issue the enforcement order in time.   In the Government’s opinion, in those circumstances, the applicant should have lodged a constitutional complaint with the Constitutional Court under Article 79 of the Constitution.   In her complaint, she should have contested the compatibility of Section 781 1 with Article 45 of the Constitution, which reflects and enforces the right set out in Article 6 of the Convention, in particular by guaranteeing an individual the right to have a fair and public hearing of his or her case without undue delay.     The Government conclude from this that a constitutional complaint is a remedy whereby the applicant could have mounted an effective challenge to the Wrocław-Krzyki Court’s inactivity in failing to issue the enforcement order sought by her.     The applicant submits that she became aware of this particular remedy after being acquainted with the Government’s observations.   She further maintains that, on account of her difficult financial situation, she would in any event have been unable to bear the legal fees for the preparation of a constitutional complaint (which must be filed and signed by a lawyer, on pain of the complaint being rejected).     The Court recalls that that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international or arbitral organ to use first the remedies provided by the national legal system.   However, there is no obligation under Article 35 § 1 to have recourse to remedies which are inadequate or ineffective (see, for example, the Selçuk and Asker v.   Turkey judgment of 24 April 1998, Reports 1998-II, p. 907, § 65).     Turning to the facts of the present case, the Court observes at the outset that Article 79 of the Polish Constitution guarantees, in plain words, an individual the right to obtain a Constitutional Court ruling on the conformity of any provision on which a final decision - of a court or a public administration - on his or her constitutional rights or freedoms is based.   However, it cannot be said that Article 79, while defining the legal prerequisites for lodging a constitutional complaint refers - even implicitly - to the diametrically opposite situation where - as in the applicant’s case - the competent judicial authority has failed to give a decision.     The Court moreover notes that the Government, when raising their preliminary objection, have not provided any example from the domestic practice or the case-law of the Constitutional Court demonstrating that a constitutional complaint can be put forward successfully regardless of the absence of a “final decision” as referred to in Article 79 of the Constitution.     Nor have the Government convinced the Court that challenging the constitutionality of Section 781 1 of the Code of Civil Procedure, a provision which obliges courts to give a speedy decision on a request for an enforcement order and thus strengthens an individual’s right to have his civil rights under a final judgment enforced without undue delay, would have remedied the applicant’s situation.     In the light of the foregoing, the Court considers that a constitutional complaint cannot be deemed to be an effective and adequate remedy which, in order to meet the requirements of Article 35 § 1 of the Convention, an individual complaining of inactivity on the part of the judiciary in Poland must exhaust.     It follows that the Government’s preliminary objection on non-exhaustion must be dismissed.     The Government further contend that, in any event, the application is inadmissible as manifestly ill-founded.     Referring to the criteria for the notion of a “reasonable time” developed by the Court in respect of Article 6 of the Convention, they submit that three of those criteria should be taken into account in the present case: its complexity, the conduct of the relevant judicial authorities and that of the applicant.     In the Government’s opinion, the applicant’s case was of some complexity.   First of all, due to the specific factual and legal circumstances of the case, the trial court had to obtain evidence from two experts and consider materials contained in the files of two other cases, nos. I C 214/93 and I C 1280/94 respectively.   In addition, one of those cases was pending in the Wrocław-Śródmieście District Court.   The need to hear evidence from the applicant in her home was yet another factor contributing to the complexity of the case.     Furthermore, the Government point out that the courts acted with due diligence in handling the applicant’s case.   During the proceedings, which up to the date of the judgment of the Wrocław Regional Court lasted about four and a half years, the courts listed ten hearings in all and issued several orders aimed at ensuring that the case was dealt with properly.   Nor were there any substantial delays in the proceedings.   The only exception was the period of about one year and a half for which the proceedings were stayed at the joint request of the parties.   Also, the delivery of the first-instance judgment was delayed for a month because of the flood in Wrocław; however, this hold-up should be regarded as an event due to force majeure .     Without contesting the applicability of Article 6 to the enforcement phase of the proceedings, the Government, which in that regard refer to the Zappia v. Italy judgment, concede that the question of whether, and if so when, the right asserted by the applicant actually became effective must be assessed by reference to the Convention and not on the basis of national law.   They repeat, however, that the applicant, by lodging a constitutional complaint, could have challenged any inactivity on the authorities’ part at this stage of the proceedings.     As regards the conduct of the applicant, the Government, on the one hand, acknowledge that she did not contribute substantially to the length of the proceedings.   On the other, they submit that the period of nearly one and a half years during which the proceedings were stayed at the applicant’s request should be attributed to her.   They also maintain that the fact that the applicant, after the delivery of the second expert report, amended her statement of claim, brought about a further (albeit short) delay in the proceedings.     The applicant replies that, in view of her personal circumstances, it cannot be said that her civil claim was determined “within a reasonable time”, as required by Article 6 § 1 of the Convention.   In her situation, five years is a long period.   Moreover, despite the fact that her claim was judicially determined on 21 January 1998, she has since then been unable to enforce the final judgement and satisfy her claim.     The applicant admits that she requested the trial court to stay the proceedings until the termination of the proceedings in the case no. I C 214/94, which was at the time pending in the Wrocław Śródmieście District Court.   She considered that it might accelerate the proceedings since the relevant case concerned a similar claim previously lodged by a person living in the same building and the same issue of whether it was technically possible to install a telephone line in the building was to be resolved in that case.   She expected, moreover, that the trial court would resume the proceedings in her case without undue delay.   Yet the court, regardless of the fact that the judgment in those other proceedings was given on 28 October 1994, did not proceed with her case.   Several further months elapsed and she was forced to complain to the court in March 1995, before it listed a hearing.     The applicant further criticises the manner in which the Wrocław-Krzyki District Court proceeded to obtain evidence from experts and states that in that regard the court likewise failed to handle her case with due diligence.   She first stresses the fact that the expert report referring to the crucial question of whether it was technically feasible to install a telephone line in the building in which she lived was already at the court’s disposal by the time it obtained the relevant case-file no. IC 214/93.   Despite this, the court did not decide to obtain a further expert report until March 1996 and, what is more, ruled that that report should be prepared by a permanent employee of the defendant.   When she successfully challenged the impartiality of that expert, the court ordered that fresh evidence from another expert be obtained, delaying the proceedings until the end of 1996.       The applicant also maintains that the court of first instance unnecessarily prolonged the proceedings by repeatedly obliging her lawyer to submit medical certificates concerning her ability to give statements and file pleadings, a matter of no apparent relevance for the determination of her claim.   Moreover, she had submitted an adequate medical certificate together with her statement of claim and request for legal assistance.     The Court considers, in the light of the parties’ submissions, that the application raises serious issues of law and fact under the Convention, the determination of which should depend on an examination of its merits.   The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.   No other grounds for declaring it inadmissible have been established.       For these reasons, the Court, unanimously,     DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.         Vincent Berger   Matti Pellonpää   Registrar   President