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FOURTH
SECTION
CASE OF BOCZOŃ v. POLAND
(Application
no. 66079/01)
JUDGMENT
STRASBOURG
30
January 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Boczoń v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 9 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 66079/01) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Dariusz Boczoń (“the applicant”),
on 25 April 2000.
- The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- On
1 December 2005 the
Court decided to communicate the complaint concerning the length of
the proceedings to the Government. Applying Article 29 § 3 of
the Convention, it decided to rule on the admissibility and merits of
the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Gorlice.
- The
applicant served in the army between 1988 and 1989 and was dismissed
due to his health problems. He maintained that his physical and
mental health problems resulted from his military service.
- On
27 December 1995 he applied for a military disability pension. On
8 February 1996 the Social Insurance Authority refused to grant
his request. On 20 February 1996 the applicant appealed against this
decision to the Kraków Regional Court.
- On
19 March 1996 the Regional Court requested an expert opinion
concerning the applicant’s health. On 8 May 1996 the expert
submitted his opinion. Subsequently, the court requested that two
additional medical opinions be prepared.
- On
14 June 1996 the applicant’s lawyer requested the court to
admit another expert opinion.
- On
25 June 1996 another expert submitted her opinion to the court.
- On
24 July 1996 the Regional Court forwarded two expert opinions to the
applicant for comment. The applicant’s lawyer submitted his
observations on 14 August 1996.
- On
20 August 1996 the Regional Court held a hearing. The applicant
submitted documentation on his medical treatment, which was
subsequently forwarded to the medical experts. On 24 September
1996 and 5 November 1996 two experts submitted their supplementary
opinions.
12. On
2 December 1996 a hearing was held.
13. On
18 December 1996 the applicant’s lawyer challenged the experts’
opinions and demanded a new opinion to be prepared by the Institute
of Forensic Medicine in Krakow.
- On
22 January 1997 the Regional Court requested that the applicant be
examined by specialists in laryngology, neuropsychiatry and internal
medicine of the Institute of Forensic Medicine in Krakow.
- On
14 July 1997 the court requested the Institute to accelerate the
preparation of their opinion and to return the applicant’s
medical records to the court. On 8 August 1997 the Institute of
Forensic Medicine submitted their opinion.
- On
14 August 1997 the court forwarded the opinion to the applicant’s
lawyer for comment.
- On
22 September 1997 the applicant’s lawyer requested the court to
extend the time-limit for submitting his observations due to his
illness.
- On
2 October 1997 a hearing was held.
- On
18 October 1997 the applicant challenged the expert opinion of
8 August 1997 and requested an additional medical examination.
He also submitted an opinion prepared by a privately commissioned
expert. The court refused to admit this opinion as evidence in the
case.
- On
25 November 1997 the Institute of Forensic Medicine submitted a
supplementary opinion in which they maintained their previous
conclusions. On 9 January 1998 the applicant’s lawyer requested
the court to extend the time-limit for submitting his observations as
the applicant was to undergo another examination.
- A
hearing was held on 16 February 1998.
- On
20 February 1998 the applicant challenged the presiding judge. The
court rejected his motion on 10 March 1998.
- On
23 February 1998 the applicant informed the court that he had revoked
his lawyer’s power of attorney as he could no longer afford
private legal representation.
- On
18 May 1998 applicant requested that the hearing scheduled for 28 May
1998 be adjourned because of his medical examination planned for that
day. On 28 May 1998 the court adjourned the hearing until 26 June
1998.
- On
10 June 1998 the Nowy Sącz Regional Court requested the Kraków
Regional Court for the case file of the proceedings as its
examination was necessary to conduct proceedings for compensation
against the State Treasury instituted by the applicant and pending at
that time before the Nowy Sącz Regional Court.
- On
16 June 1996 the Kraków Regional Court rejected the request
because the next hearing in the case would be held very shortly.
- On
26 June 1998 the Regional Court held a hearing and delivered a
judgment, dismissing the applicant’s appeal against the
decision of the Social Insurance Authority of 8 February 1996.
- On
31 August 1998 the applicant appealed against the judgment.
- The
Regional Court in Krakow transferred the case file to the Krakow
Court of Appeal on 21 September 1998.
- Between
10 and 23 March 1999 the case file was forwarded to the Przemysl
District Court before which another of the applicant’s claims
for compensation was pending at that time
- On
14 April 1999 the applicant requested the Court of Appeal to
accelerate the examination of his appeal. On 20 April 1999 the
President of the court replied that since his case concerned pension
matters, the hearing would be scheduled sooner than would normally
have been the case.
- On
8 June 1999 the Kraków Court of Appeal dismissed the
applicant’s appeal. On 28 July 1999 the applicant’s
lawyer lodged a cassation appeal with the Supreme Court.
- On
19 April 2000 the Supreme Court dismissed his cassation appeal as
being ill-founded.
II. RELEVANT DOMESTIC LAW
- For a detailed presentation of the relevant domestic
law concerning the available remedies against excessive length of
proceedings, see Ratajczyk v. Poland (dec.), no. 11215/02,
ECHR 2005; Barszcz v. Poland, no. 71152/01, 30 May 2006, §§
26-35.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 27 December 1995 and
ended on 19 April 2000. It thus lasted 4 years and 3 months for three
levels of jurisdiction.
A. Admissibility
- The
Government submitted that the applicant had not exhausted remedies
available under Polish law. They maintained that from 17 September
2004 when the 2004 Act came into force, the applicant had a
possibility of lodging with the Polish civil courts a claim for
compensation for damage suffered due to the excessive length of
proceedings under Article 417 of the Civil Code read together with
section 16 of the 2004 Act. They argued that the three-year
prescription period for the purposes of a compensation claim in tort
based on the excessive length of proceedings could run from a date
later than the date on which a final decision in these proceedings
had been given.
- The
Government further submitted that such a possibility had existed in
Polish law even before the entry into force of the 2004 Act ever
since the judgment of the Constitutional Court of 4 December 2001,
which entered into force on 18 December 2001.
- The
applicant contested the Government’s arguments.
- The
Court observes that in the present case the proceedings were
concluded on 19 April 2000, which is more than three years before the
relevant provisions of the 2004 Act read together with the Civil Code
became effective. It follows that the limitation period for the
State’s liability in tort set out in Article 442 of the Code
Civil had expired before 17 September 2004.
- The
Court notes that the arguments raised by the Government are the same
as those already examined and rejected by the Court in previous cases
against Poland (see Małasiewicz v. Poland, no.
22072/02, §§ 32-34, 14 October 2003; Ratajczyk
v. Poland, (dec.), 11215/02, 31 May 2005; Barszcz
v. Poland, no. 71152/01, 30 May 2006) and that the
Government have not submitted any new circumstances which would lead
the Court to depart from its previous findings.
- For
these reasons, the Government’s plea of inadmissibility on the
ground of non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant complained about the length of the proceedings. He
maintained that the case had not been particularly complex. He
claimed that had his motions and evidence been admitted by the court,
the number of expert opinions needed would have been reduced.
- The
Government submitted that the case had been complex. They maintained
that, given the nature of the applicant’s claims, the court had
had to obtain several expert reports relating to his previous and
current state of health in order to establish whether there had been
a causal link between the applicant’s service in the army and
the deterioration of his health.
The
Government further argued that the applicant had contributed to the
length of the proceedings as he had instituted five other sets of
proceedings, related to the present case, before courts in different
cities. As a result, the court had received requests from those
courts to have the case file forwarded to them for examination.
As
regards the conduct of the public authorities, the Government were of
the view that the courts had conducted the proceedings with due
diligence. The Regional Court had set short time-limits for the
parties to submit their observations and had urged experts to present
their reports promptly.
- The
Government concluded that the length of the proceedings in question
had not been excessive as they had lasted only two years in the
first-instance court and about one year in each of the following
instances. Therefore, there had been no violation of the applicant’s
right to a hearing within a reasonable time.
- The Court reiterates that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case, the conduct of the applicant
and the relevant authorities and what was at stake for the applicant
in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII; Zynger
v. Poland, no. 66096/01, § 45, 13 July 2004). The
Court reiterates that special diligence is required in pension
disputes (see, inter alia, H.T. v. Germany, no.
38073/97, § 37, 11 October 2001).
- The
Court agrees that the case could be considered complex insofar as it
was necessary to conduct several medical examinations in order to
establish the merits of the applicant’s claim.
- With regard to the conduct of the authorities and of
the applicant, the Court reiterates that only delays attributable to
the State may justify a finding of a failure to comply with the
"reasonable time" requirement (see, among other
authorities, Proszak v. Poland, judgment of 16 December
1997, Reports of Judgments and Decisions 1997 VIII, § 40)
and that in civil proceedings the parties too must show "due
diligence" (see the Pretto and Others v. Italy judgment
of 8 December 1983, Series A no. 71, pp. 14-15, § 33).
- The
evidence before the Court does not disclose any significant period of
inactivity that could be attributable to the domestic courts. During
the period under consideration the case was examined by the Insurance
Authority and, subsequently, by three judicial instances, including
the Supreme Court. It is true that the opinions of several
medical experts were requested by the domestic courts. The Court
notes, however, that on several occasions the applicant contested the
experts’ opinions and demanded new medical examinations to be
conducted. The applicant also contested the opinion prepared by the
specialists whom he himself had designated (see paragraphs 16 and 23
above).
In
this connection the Court recalls that while the applicant is
entitled to make use of his or her procedural rights, he or she must
bear the consequences when it leads to delays (Malicka-Wąsowska
v. Poland (dec.), no. 41413/98, 5 April 2001). The Court observes
that the procedural right to challenge an expert opinion does not
entitle a party in the proceedings to challenge all successive
opinions with a view to obtaining a conclusion in his or her favour.
That may scarcely be regarded as consistent with the diligence which
must be shown by a plaintiff in civil proceedings and must have
contributed to the overall length of the proceedings in the present
case.
- The Court concludes that the proceedings in the
applicant’s case did not exceed a reasonable time within the
meaning of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE
6 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE
PROCEEDINGS
- The
applicant also complained about
the unfavourable outcome of the proceedings, alleging their
unfairness and bias on the part of the courts.
54. The
Court reiterates that, according to Article 19 of the Convention, its
duty is to ensure the observance of the engagements undertaken by the
Contracting Parties in the Convention. In particular, it is not its
function to deal with errors of fact or law allegedly committed by a
national court unless and insofar as they may have infringed rights
and freedoms protected by the Convention (see García Ruiz
v. Spain [GC], no. 30544/96, § 28, ECHR 1999- I).
55. In
the light of all the material in its possession and insofar as the
applicant’s complaint about the outcome has been substantiated,
the Court finds that it does not disclose any appearance of a
violation of the Convention. In particular, it finds no elements
which would indicate that the national courts went beyond their
proper discretion in the assessment of the facts or reached arbitrary
conclusions.
- It
follows that this complaint is manifestly ill-founded and must be
declared inadmissible in accordance with Article 35 §§ 3
and 4 of the Convention.
III. ALLEGED
VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicant also alleged that the unfairness of the proceedings
complained of had infringed his right to the peaceful enjoyment of
his possessions (that is his pension entitlement), as guaranteed by
Article 1 of Protocol No. 1. That Article reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The
preceding provisions shall not, however, in any way impair the right
of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties.”
- The
Court notes that even assuming the applicability of Article 1 of
Protocol No. 1, this complaint is linked to the unfairness complaint
examined above (paragraphs 53 - 56) and must therefore likewise be
declared inadmissible.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 30 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
