FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42096/98 
by Mirosława SKAWIŃSKA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 March 2003 as a Chamber composed of

Sir Nicolas Bratza, President
 Mr M. Pellonpää
 Mrs V. Strážnická
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges,, 
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 12 November 1997,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mirosława Skawińska, is a Polish national, who was born in 1957 and lives in Łódź, Poland. She is not legally represented before the Court. The respondent Government are represented by Mr Krzysztof Drzewicki, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Criminal proceedings against the applicant

On 8 December 1992, relying on information provided by a certain X, the Łódź-Górna District Prosecutor (Prokurator Rejonowy) opened an investigation against the applicant concerning theft and obstructing X’s use of certain objects.

On 30 July 1993 the District Prosecutor submitted the bill of indictment to the Łódź District Court (Sąd Rejonowy).

X and witness L. K. failed to attend the hearing of 2 February 1994. On 8 February 1994 the court requested the police to provide the address of L. K.

The hearing scheduled for 28 February 1994 was adjourned because of the presiding judge’s illness.

The court held hearings on 30 March and 4 May 1994. The hearing scheduled for 11 May 1994 was adjourned due to the absence of three witnesses and the applicant’s lawyer.

On 16 May 1994 the court ordered a psychiatric examination of the applicant. It considered that her behaviour in the course of the proceedings and the nature of her pleadings caused it to doubt whether she was capable of understanding the meaning of the criminal act allegedly committed by her and whether she was capable of taking part in the proceedings.

On 23 May 1994 the court rejected the applicant’s eight petitions concerning evidence.

On 14 June 1994 the examination was carried out. The applicant submits that it lasted a few minutes and the psychiatrists seemed not to have read the case-file. The Government submit that the psychiatrists prepared a five-page opinion. On the same day the court ordered the applicant to undergo observation in a psychiatric hospital, relying on the psychiatrists’ statement that they had not been able to prepare their opinion on the basis of their single examination. The applicant appealed.

On 6 July 1994 the Łódź Regional Court (Sąd Wojewódzki) amended the decision under appeal by indicating that the observation would not last more than three weeks. The court dismissed the remainder of the applicant’s appeal.

In her letter of 14 July 1994 she requested the annulment of those decisions, alleging that they had been given by persons who were not judges.

On 25 July 1994 the court held a hearing. It imposed a fine on a witness for his failure to attend that hearing.

On 29 August 1994 the court issued an order concerning the taking of the applicant’s child into public care during her psychiatric observation, which was supposed to be carried out from 1 to 9 September 1994.

The applicant left Łódź with her child before the starting date of her observation. On 21 September 1994 her lawyer informed the court that he ceased to represent her in the proceedings.

On 14 October 1994 a legal-aid lawyer refused to represent the applicant.

On 18 October 1994 the court held a sitting concerning the applicant’s motion for a new expert opinion.

Subsequently, it adjourned a hearing at the request of the applicant, who had not accepted her new legal-aid lawyer.

On 28 October 1994 the Regional Court quashed the decision concerning the taking of the applicant’s child into public care.

On 3 November 1994 the District Court held a hearing at which it decided to make an enquiry with a psychiatric hospital about a date on which the observation could be carried out. The applicant appealed that decision, pointing out that the psychiatrists’ opinion of 14 June 1994 was of a poor quality and that the court had overlooked the fact that during her observation her child would be left without care. She submitted that her requests to be examined by other psychiatrists or to undergo short observations in a hospital with the possibility of returning home every day so as to take care of her child had been refused. The appeal was rejected as not provided for by law in such cases.

On 28 November 1994 the applicant submitted further pleadings.

On 7 December 1994 the Regional Court upheld the District Court’s order rejecting the applicant’s appeal against a decision concerning an expert opinion.

Between 28 November 1994 and 7 June 1995 the applicant filed with the court twenty-eight pleadings and motions.

On 14 June 1995 the Regional Court quashed the decision of 22 May 1995 staying the proceedings.

On 25 September 1995 the applicant was placed for three weeks in a psychiatric hospital. She submits that she was treated with strong medicines which severely affected her health and consciousness. On the basis of the observation, the psychiatrists stated that the applicant suffered from stress caused by court proceedings as well as from delusions.

On 20 November 1995 the District Court stayed the proceedings, considering that the applicant was unable to participate because of her mental illness.

On 7 May 1996 the court ordered a psychiatric opinion as to whether she was able to participate in the proceedings.

On 17 June 1996 psychiatrists examined the applicant and found that her health had deteriorated.

On 24 June 1996 the court refused the applicant’s request to remit the case to the prosecutor. On the same day it declined the legal-aid lawyer’s request to be released from the duty to represent the applicant.

On 4 September 1996 the Regional Court dismissed the applicant’s appeal against the decision staying the proceedings.

The applicant failed to appear at the psychiatric observation scheduled for 30 September 1996.

On 21 July 1997 the court rejected the applicant’s challenge to the participation in the proceedings of one of the judges.

On 28 August 1997 it held a sitting regarding the resumption of the proceedings. The court heard two experts in psychiatry and ordered a further opinion by other experts.

The applicant failed to attend the examination scheduled for 9 October 1997.

On 26 February 1998 the court refused her request that the proceedings be resumed. The court considered that a decision to resume the proceedings should be based on a psychiatric opinion confirming that the applicant’s health was no longer an obstacle to her participation. It noted that the opinions available to it were not persuasive in this respect, and that the applicant kept failing to attend further examinations.

On 11 June 1999 the court held a hearing concerning the applicant’s motion for the resumption of the proceedings. It ordered another expert opinion on the state of her mental health. The applicant having failed to attend two examinations, the experts prepared their opinion on the basis of the case-file.

On 24 August 1999 the court resumed the proceedings. It discontinued the proceedings in their part concerning one of the charges.

On 26 August 1999 the applicant filed a request concerning new evidence.

On 7 September 1999 she appealed against the reasoning for the decision resuming the proceedings.

On 9 September 1999 the court held a hearing concerning that appeal. The applicant failed to attend that hearing. She submits that she was not informed about that hearing. On 29 September 1999 the Regional Court upheld the reasoning challenged by the applicant.

In her pleadings of 30 December 1999 the applicant challenged the participation of the presiding judge in the proceedings. On 3 January 2000 she filed eight motions concerning evidence.

On 5 January 2000 the applicant requested that the psychiatrists who had issued the opinions on her mental health be excluded from the proceedings.

At the hearing of 11 January 2000 the court rejected the applicant’s motions concerning the psychiatrists and evidence.

Subsequently, the applicant filed four further pleadings and motions.

On 3 February 2000 the court held a hearing. Six witnesses failed to appear.

On seven occasions in February and March 2000 the applicant filed further pleadings.

On 1 March 2000 the court held a hearing. Six witnesses and one of the two experts summoned to the hearing failed to attend it.

The police informed the court that the whereabouts of witness K. K. were unknown and that witness K. P. lived in Germany, which made it impossible to serve summonses on them.

On 29 March 2000 the court held a hearing.

On 7 April 2000 the Łódź District Court gave a judgment in which it acquitted the applicant. The prosecutor appealed.

The hearing before the Łódź Regional Court, scheduled for 15 September 2000 was adjourned because of the presiding judge’s illness. On the same day the applicant challenged the impartiality of seven judges of that court.

On 2 October 2000 the court held a hearing.

On 12 October 2000 the Łódź Regional Court dismissed the appeal against the District Court’s judgment.

2. Civil proceedings against X

On 23 January 1993 the applicant filed with the Łódź District Court an action in which she claimed compensation from X. She alleged that X had either stolen or damaged several objects belonging to her.

On 2 March 1993 the court exempted the applicant from court fees. Subsequently, it appointed a lawyer for her.

The applicant’s lawyer requested the court not to fix the dates of hearings between 30 July and 18 August 1993 because of his leave.

On 2 November 1993 the defendant made a counterclaim.

The court held the first hearing on 5 November 1993. It did not allow legal adviser J. R. to represent the defendant.

On 10 November 1993 it exempted the defendant from court fees.

Subsequently, the court transferred the case to the Łódź Regional Court, because of its lack of jurisdiction. The Regional Court requested the District Court to submit the case-file of the criminal proceedings against the applicant, but the latter court could not do it before 25 July 1994.

On 29 November 1993 the Regional Court dismissed the defendant’s appeal against the decision refusing J. R. to represent him.

In November 1994 the court held a hearing, which the defendant failed to attend. He failed to appear also at the hearings held on 24 January and 24 March 1995. Subsequently, the applicant requested the court to take appropriate measures in respect of the defendant’s repeated absences. In the summons for the following hearing, scheduled for May 1995, the court warned the defendant that his failure to attend would result in the case being examined in his absence. At that hearing a certain Ms Y requested that she be allowed to join the proceedings as an intervener (interwenient uboczny).

On three occasions from May to July 1995 the applicant submitted pleadings challenging the defendant’s and intervener’s statements as to their financial situation. From July 1995 to September 1995 she sent three letters to the court.

The hearing scheduled for 1 December 1995 was adjourned because the applicant was in hospital. The proceedings were subsequently stayed.

Having left the hospital, in February 1996, the applicant requested that the proceedings be resumed. The court summoned her lawyer to confirm that request. On 17 September 1996 it resumed the proceedings.

Following the applicant’s complaint to the President of the Regional Court, a further hearing was scheduled for 22 October 1996.

At that hearing the court imposed fines on four witnesses who failed to appear.

On twelve occasions from July to November 1996 the applicant filed her pleadings.

The court held hearings on 17 January, 4 March and 18 April 1997.

On 7 May 1997 it rejected the applicant’s petitions concerning evidence.

On an unspecified date in 1997 the court ordered an expert opinion. On 4 June 1997 it ordered an opinion relating to jewellery.

In June 1997 the applicant submitted 18 letters, motions and statements.

On 10 June 1997 the court dismissed her request to quash the decision exempting X from court fees.

On 9 September 1997 it held a hearing.

On an unspecified date the court excluded from the proceedings the examination of the applicant’s claims concerning the alleged infringement of her personal rights (dobra osobiste) by X.

On 23 September 1997 the Łódź Regional Court delivered its judgment, in which it awarded the applicant compensation of PLN 2,000 and dismissed X’s counterclaim.

On 23 March 1998 the court gave judgment relating to the personal rights. It awarded the applicant compensation of PLN 10,000 and ordered the defendant to publish his apologies to the applicant in a newspaper.

 

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against her, as well as the civil proceedings against X exceeded a reasonable time.

2. In her observations dated 28 June 2002 the applicant raises an additional complaint concerning the alleged violation of her right of access to a court in the course of the criminal proceedings against her.

THE LAW

A. Exhaustion of domestic remedies

The Government are of the opinion that the applicant exhausted all remedies available at the time of lodging her application with the Court. They note, however, that on 4 December 2001 the Polish Constitutional Court gave judgment, in consequence of which a remedy in respect of the excessive length of proceedings has been created. Consequently, the Government request that the Court stay the proceedings in the present case and suggest that the applicant initiates the relevant civil proceedings.

The Court reiterates that Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).

The Court notes that, although the Government submit that at the time of lodging the present application the applicant had no available remedy at her disposal, they maintain that she should avail herself of a remedy, which has allegedly existed since the date of the above-mentioned judgment of the Polish Constitutional Court. It observes that the Government’s objection is confined to the mere statement that a judgment of the Constitutional Court created a new remedy. No further information as to the contents of that judgment or any juridical practice relating thereto has been provided. In the absence of such information and having regard to the above-mentioned principle, the Court finds that the Government have failed to substantiate their contention that the remedy at issue is an effective one. As long as there is no case-law of the Supreme Court or, at least, of appellate courts applying the Constitutional Court’s judgment to individual cases, the Court is unable to recognise the existence of any effective remedy in the length of procedure cases.

Furthermore, the Court refers to its case-law to the effect that no remedy in respect of the excessive length of proceedings exists under Polish law (see: in respect of criminal proceedings Kudła v. Poland [GC], no. 30210/96, § 159, ECHR 2000-XI, in respect of civil proceedings Gibas v. Poland, no. 24559/94, Commission decision of 6 September 1995, Decisions and Reports 82-A, p. 76 and Witczak v. Poland (dec.), no. 47404/99, 23 October 2001, unreported).

For these reasons, the Court finds that the application cannot be rejected for non-exhaustion of domestic remedies.

B. Article 6 of the Convention

1. The applicant’s first complaint relates to the length of the criminal proceedings against her and the civil proceedings against X.

Article 6 § 1 of the Convention provides, in so far as relevant:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court recalls that the reasonableness of the length of proceedings is to be determined in the light of the circumstances of the case and with reference to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant in the dispute (see, inter alia, Comingersoll v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV).

(a) The criminal proceedings against the applicant began on 8 December 1992 and ended on 12 October 2000. They therefore lasted 7 years, 10 months and 4 days, out of which the period of 7 years, 5 months and 12 days falls within the Court’s competence ratione temporis, Poland having recognised the right of individual petition as from 1 May 1993.

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

(b) The civil proceedings against X began on 23 January 1993 and ended on 23 March 1998. They therefore lasted 5 years and 2 months, out of which the period of 4 years, 10 months and 23 days falls with the Court’s competence ratione temporis.

The Government are of the view that the case was rather complex. They point out that expert opinions had to be ordered.

The Government state that the applicant largely contributed to the delay in the proceedings. They make reference to her lawyer’s request that no hearings be scheduled during his leave in 1993 and the applicant’s treatment in hospital. The Government mention numerous pleadings submitted by the applicant.

They submit that the domestic authorities showed due diligence, by, inter alia, the examination of the case despite the defendant’s absence, after his failure to attend a number of hearings, and declining the applicant’s request for the staying of the proceedings. The Government further emphasise that the prolongation of the proceedings was caused by certain witnesses and X.

The applicant is of the opinion that the first-instance court wrongly admitted Y as an intervener, which delayed the examination of the case. She makes reference to an expert, who, in her opinion, was incompetent and prepared his opinion with a delay.

The Court finds that, contrary to the Government’s contention, the case at issue does not appear particularly complex. It agrees that the applicant is partially responsible for the prolongation of the proceedings.

The Court notes that the Regional Court attempted to accelerate the proceedings by the examination of the case in the defendant’s absence and imposing fines on the witnesses who failed to attend hearings.

For these reasons and having regard to the fact that in the course of the proceedings two judgments were given, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The second complaint concerns the right of access to a court.

However, the Court notes that this complaint was lodged on 28 June 2002 and the final decision, within the meaning of Article 35 § 1 of the Convention, was taken on 12 October 2000.

It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

 

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint relating to the length of the criminal proceedings against her;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza 
       Deputy Registrar President

SKAWINSKA v. POLAND DECISION


SKAWIŃSKA v. POLAND DECISION