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
Full & Egal Universal Law Academy