CASE OF RAWA v. POLAND
Violation of Art. 6-1;Non-pecuniary damage - financial award
Nicolas Bratza
8. The applicant was born in 1930 and lives in Warsaw. 9. The applicant, a professional army officer, took an early retirement in 1965. 10. On 13 June 1994 the applicant filed a civil action against the Ministry of National Defence, claiming that he had been deprived of adequate medical treatment, to which he was entitled as a retired army officer. He maintained that numerous errors committed by military dentists and their incompetence had led to irreversible bodily harm and damage to his health. 11. On 21 July 1994, on the Warsaw Regional Court’s order, the applicant particularised his claim. He sought a finding of the defendant’s liability, a sum of 1 PLN as compensation, and reimbursement of legal costs. On 3 August 1994 the Warsaw Regional Court gave a decision stating its lack of jurisdiction and forwarded the case to the Warsaw District Court. 12. On 8 August 1994 the applicant extended his claim and alleged that his heart illness had been caused by the defendant ministry. On 5 September 1994 the applicant submitted, on the court’s order, a statement of his financial and family situation. On 21 September 1994 the court exempted the applicant from the court fees. 13. On 22 September, 12 and 27 October 1994, the applicant filed his further objections as to the work and conduct of the dentists concerned. On 5 December 1994 the Ministry of National Defence sent copies of the applicant’s statement of claim to the Central Clinical Hospital at the Warsaw Medical Academy and to the court. The Ministry also declared that the hospital had been authorised to represent the State Treasury in the case. On 20 December 1994 the defendant’s counsel filed a reply to the applicant’s statement of claim with the court and requested it to summon three dentists as witnesses. 14. The applicant submitted his further pleadings on 21 November, 27 December 1994 and 21 February 1995. The hearing scheduled for 28 February had to be adjourned due to illness of the judge rapporteur. The applicant’s further pleadings were lodged with the court on 21 March, 11 and 24 April, 7 and 31 May, 16 and 30 June, 20 July, and 1, 7 and 21 August 1995. On 28 August 1995 the court held a hearing. It heard the applicant and one witness. Subsequently the applicant filed his pleadings on 21 September, 9 and 23 October 1995. 15. The second hearing was held by the court on 30 October 1995. The court interviewed one witness, a dentist who had treated the applicant in the defendant ministry polyclinic. The other witness, summoned for that date, failed to appear. The court accordingly adjourned the hearing. 16. The applicant filed his pleadings on 24 November and 19 December 1995. The subsequent hearing was fixed for 21 December 1995. It had to be adjourned as the defendant’s lawyer and the witness failed to comply with the summons. The applicant was told by the judge that the next hearing would be held on 15 February 1996, at 9.15 a.m. 17. On 15 February 1996 the applicant appeared before the court an hour after the hearing had begun. He complained to the President of the Warsaw District Court that he had not been properly informed about the time fixed for the hearing. He further complained that, after having waited several years for the trial, he had been denied the opportunity of questioning witnesses and had not been allowed to examine the minutes of the hearing. The President of the District Court was of the view that the applicant’s complaint was unfounded, explaining that the applicant himself bore the blame for having arrived late for the hearing. 18. On the same day the court decided to appoint professor J.P. as an expert. The applicant filed his further pleadings on 1 January, 12 and 19 February, 10 and 22 April 1996. In May 1996 the expert opinion reached the court. The applicant filed his pleadings and motions, inter alia as to the expert opinion, on 15 May, 19 and 26 July, 6, 19, 20 and 26 August 1996. On 10 September 1996 the defendant’s lawyer submitted her observations as to the expert opinion. 19. The applicant submitted his new pleadings and various motions on 19 September, 11 December 1996, 11 February, 4, 10, 12 and 24 March, 7, 17 and 21 April, 12 May, 18 and 20 August 1997. On 21 August 1997 the applicant submitted two sets of questions to the expert, altogether fifty questions. He submitted further pleadings on 4 November 1997, and 2 and 16 February 1998. 20. In 1996 and 1997 hearings were scheduled by the Warsaw District Court on the following dates: 23 September 1996, 12 November 1996, 17 December 1996, 14 January 1997, 7 March 1997, 17 June 1997 and on two other unspecified dates. On 21 August 1997 the Warsaw District Court stated its lack of jurisdiction to entertain the case and the case was subsequently transferred to the Warsaw Regional Court. As on each occasion the court expert, professor J.P., failed to attend, the hearings were adjourned. 21. On 18 February 1998 the Warsaw Regional Court sent letters to J.P.’s two addresses - to the hospital and to his home address - in order to set a date for the hearing. The court’s secretary also telephoned to the hospital to inform the expert about the need to achieve some progress in the proceedings, and to reiterate that a date had to be fixed so that he could finally attend the hearing. The expert informed the court that he could be present on 8, 9 and 14 July 1998, at 9 a.m. 22. On 3, 12, 18, 30 March, 20 April and 29 June 1998 the applicant filed his further pleadings with the Regional Court. In a letter of 31 March 1998, in reply to the applicant’s earlier letter of complaint to the Ministry of Justice of 19 February 1998 about the lack of progress in the proceedings, the President of the Warsaw Regional Court admitted that the proceedings were too slow, but in his opinion the court could not be blamed for it, since the delay had mainly been caused by the persistent failure of the expert J.P. to attend hearings. 23. During the hearing held on 14 July 1998, the court took the oral evidence of the expert J.P. On 15 July 1998 the applicant filed a list of his further claims with the court. On 17 July 1998 at a session held in camera the court decided that additional expert opinions should be prepared within thirty days. The court subsequently made a few attempts to appoint experts, but they refused to prepare their opinions for various reasons. The experts’ refusals were submitted to the court on 31 August, 20 October, 3 and 28 December 1998. On 31 July 1998 the Warsaw Regional Court answered the applicant’s question of 27 July 1998 concerning the decision of 17 July 1998 to take additional evidence. 24. The applicant filed his new pleadings with the court on 24 September, 29 October 1998, 15 January and 19 February 1999. On 5 March 1999 the court sent to the applicant a list of experts practising in other towns and asked him if he would agree to visit one of them at his own expense. On 11 March 1999 the applicant informed the court that he had chosen the expert A.K.S. living in Kraków. The applicant filed his new pleadings on 12,13 May and 8 June 1999. 25. On 9 June 1999 the court requested A.K.S. to submit her report. On 30 June 1999 the expert opinion prepared by professor A.K.S. was submitted to the court. On 31 June 1999 the expert explained that she had not been able to complete her opinion earlier due to serious family problems. She also informed the court that she had summoned the applicant for 22 June 1999, at 10 a.m. He had not reported for the examination and answered that he could only do so in the afternoon. Following that, the applicant formulated a list of questions addressed to the expert and submitted that list to the court. On 18 August, 2 and 27 September 1999, 6 and 28 April 2000 the applicant lodged his further pleadings with the court. 26. On 11 May 2000 the defendant’s lawyer submitted her observations on the merits of the case and informed the court that the Ministry of National Defence had to be summoned as a party to the proceedings. 27. On 17 May 2000 the President of the Warsaw Regional Court, in reply to the applicant’s letter of 30 March 2000 addressed to the Ministry of Justice, informed him once again that difficulties in hearing the evidence, as well as other reasons beyond the court’s control, had contributed to the excessive length of proceedings. It was true that no hearings had been held since 30 June 1999, but this was due to the fact that it was of primary importance for the court to establish which institution had assumed the obligations of the Central Clinical Hospital at the Warsaw Medical Academy after the reforms of the public system of health services, which had become effective from 1 January 1999. 28. The applicant countered these arguments in two letters of complaint written to the Ministry of Justice of 22 and 25 May 2000. He complained inter alia that the expert had not managed to take a stand on a number of questions he had asked. 29. On 22 May 2000 the court summoned the Ministry of National Defence as a party to the proceedings and on the same date it informed the hospital about it. On 13 June 2000 the Ministry of Justice informed the applicant that the President of the Warsaw Regional Court in his letter of 17 May 2000 had given convincing grounds as to why the proceedings were prolonged, but that the case would thereafter be placed under its administrative supervision in order to expedite the proceedings. 30. On 3 July 2000 the applicant filed a letter with the Chancellor of the Jagiellonian University in Kraków contesting the expert opinion of 30 June 1999. On 3 October 2000 the university informed the court that the expert A.K.S. had died on 23 September 2000. 31. On 14 September 2000 the applicant sent a letter of complaint to the Ministry of Justice, stating that he was not satisfied with the vague explanations he had obtained as to the length of the proceedings. 32. On 5 October 2000 the defendant filed its reply to the applicant’s statement of claim. On 9 October 2000 the university answered the applicant’s letter of 3 July 2000 and informed him that professor A.K.S. had been an expert appointed in the case and the university could not interfere with her opinion. On 25 September 2000 the defendant Ministry’s lawyer submitted its reply to the statement of claim. 33. On 18 October 2000 the court held a hearing in the case. The applicant contested the opinion prepared by A.K.S. On 27 October 2000 the court informed the Mazowsze Governor that he would be summoned as a co-defendant in the case. 34. On 13 November 2000 the applicant was informed by the Complaints Department in the Ministry that the Warsaw Regional Court had been notified of the expert’s death and that a new expert had been appointed. The proceedings would be resumed as soon as the appropriate expert opinion was submitted. 35. On 28 November 2000 a new expert opinion was ordered by the court. On 30 November 2000 the representative of the Mazowsze Governor stated that it was the Minister of National Defence who should be summoned as a defendant in the case. On 4, 22 and 27 December 2000 the applicant submitted his further pleadings. On 11 December 2000 the court received a letter from expert M.Z., refusing to prepare his opinion because of his heavy workload. On 14 December 2000 the expert refused the reiterated request of the court. 36. The applicant filed his new pleadings on 23 and 30 January, 12 February, 16 and 21 March and 11 April 2001. On 24 April 2001 the court ordered expert J.P. to prepare his opinion in the case. On 30 May 2001 the expert refused to do so. The court ordered the Dental Institute of the Warsaw Medical Academy to appoint an expert in order to prepare an opinion. The expert from the institute likewise refused to prepare a report and stated that the first opinion prepared by the expert J.P. had been a professional and conclusive one. The applicant submitted his further pleadings to the court on 13 September, 2, 8 and 24 October 2001. 37. On 1 October 2001 the Ministry of Justice answered the applicant’s letters and informed him that the length of proceedings in the present case was caused by the difficulties in obtaining an expert opinion. Answering the subsequent complaint of the applicant, the Ministry informed him that the independent court was considering the case and that no measures could be taken by the Ministry to interfere with the course of the proceedings. On 26 November 2001 the applicant submitted further pleadings to the court. 38. The court held a hearing on 13 December 2001. On 19 December 2001 it gave judgment and dismissed the applicant’s claim. On 20 December 2001 the applicant requested to be served with the written grounds of the judgment. He was served with these on an unspecified date and in June 2002 he lodged an appeal against the first-instance judgment. 39. The proceedings are pending. 40. Article 287 of the Code of Civil Procedure provides that a court shall impose a fine on an expert who, without reasonable cause, consistently fails to comply with his or her obligation to submit a report to the court, or submits such report with a delay.