CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                         Application No. 24557/94                       by Zbigniew MUSIAL                       against Poland        The European Commission of Human Rights (Second Chamber) sitting in private on 6 September 1995, the following members being present:             Mr.   H. DANELIUS, President           Mrs. G.H. THUNE           MM.   G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN             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 10 January 1994 by Zbigniew Musial against Poland and registered on 7 July 1994 under file No. 24557/94;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having considered that the Government have not submitted any observations;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen born in 1953, is currently detained in a mental hospital in Rybnik.        The facts of the case, as submitted by the applicant, may be summarised as follows:        In 1986 the Katowice Regional Prosecutor instituted criminal proceedings against the applicant on suspicion of manslaughter of his wife.   On 18 October 1987 the applicant was examined by a medical panel of two psychiatrists who found that at the material time the applicant had lacked criminal responsibility and that he was dangerous to   public order.   The criminal proceedings were subsequently discontinued.   The Prosecutor requested the Court to order the applicant's internment.        On 8 February 1988 the Katowice Regional Court (S*d Wojewódzki) committed the applicant to a mental hospital.   The Court considered the submission of the Prosecutor that the applicant had killed his wife. The Court also took into consideration the medical expert opinion.   The Court concluded that the applicant was dangerous to public order.   The Supreme Court (S*d Najwyzszy) subsequently upheld this decision.        Apparently in 1991 the applicant unsuccessfully requested his release from the mental hospital.        On 10 January 1992 the Minister of Justice refused leave for an extraordinary appeal against the decision of 8 February 1988.        Subsequently the Minister of Justice and the Regional Prosecutor twice informed the applicant that there were no grounds for reopening the criminal proceedings.        On 16 March 1993 the applicant filed a request for release with the Katowice Regional Court.   He also insisted that he should be examined by a psychiatrist from the University of Cracow.   Apparently the Court consulted the psychiatrist responsible for the applicant in the Rybnik mental hospital and ordered a psychiatrist from Cracow University to examine the applicant.        On 25 June 1993 the applicant requested the reopening of the criminal proceedings.   In a letter of 15 September 1993 the Katowice Regional Prosecutor informed him that his request would not be considered.        On 26 April 1993 the Katowice Regional Court decided to adjourn the decision on the applicant's release until a medical expert opinion had been prepared by psychiatrists from a hospital other than the Rybnik hospital.         In early 1994 the applicant underwent an examination at Cracow University.        On 18 May 1994 the Katowice Regional Court informed the applicant that the case-file was still at the University and that the opinion was not yet ready.        On 21 June 1994 Cracow University informed the Katowice Regional Court that it could not send the file back to the Court as the medical opinion was still not ready.   On 21 July 1994 the Katowice Regional Court informed the applicant thereof.   COMPLAINTS        The applicant complains under Article 6 para. 3 (d) of the Convention about the decisions of the Public Prosecutor in the criminal investigations concerning the suspicion of manslaughter, relating to the admissibility of evidence.   He complains under Article 6 para. 2 of the Convention that he was convicted and committed to a mental hospital even though he was not guilty.   The applicant further complains that the decision to place him in the mental hospital was wrong as he is mentally fit and not dangerous.        The applicant complains about the refusals to reopen the proceedings and to grant leave for an extraordinary appeal.        He finally complains that the proceedings concerning the lawfulness of his psychiatric detention have been unreasonably long.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 January 1994 and registered on 7 July 1994.        On 22 February 1995 the Commission decided to communicate the application to the Polish Government who were invited to submit their observations on its admissibility and merits before 5 May 1995.        The Government did not request an extension of this time-limit and did not submit any observations. By letter of 17 July 1995 the Government were informed that the application was being considered for inclusion in the list of cases for examination by the Commission at its session beginning on 4 September 1995.     THE LAW   1.    The applicant complains under Article 5 para. 4 (Art. 5-4) of the Convention that the proceedings concerning the lawfulness of his detention have been unreasonably long.        Article 5 para. 4 (Art. 5-4) of the Convention provides:        "Everyone who is deprived of his liberty by arrest or detention      shall be entitled to take proceedings by which the lawfulness of      his detention shall be decided speedily by a court and his      release ordered if the detention is not lawful."   a)    The Commission recalls that Poland recognised the competence of the Commission to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".   It follows that the Commission is not competent to examine complaints relating to alleged violations of the Convention by acts, decisions or events that have occurred prior to this date.        However, the Commission further recalls the Convention organs' case-law, according to which where, by reason of its competence ratione temporis, the Commission can only examine part of the proceedings, 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).        It follows that the Commission is competent ratione temporis to examine the applicant's complaints insofar as they relate to the proceedings after 30 April 1993.   However, the Commission can take into account the stage reached at this date.   b)    The complaint under Article 5 para. 4 (Art. 5-4) of the Convention was communicated to the Polish Government who were invited to submit observations on its admissibility and merits before 5 May 1995.   The Government, who have been informed that the application is considered for inclusion in the agenda of the Commission at its present session, did not request an extension of this time-limit and did not submit any observations.        It is the normal practice of the Commission, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless this matter has been raised by the Government in their observations.   The Commission considers that the same principle should be applied where, as in the present case, the respondent Government have not submitted any observations at all (see No. 22947/93, Dec. 11.10.1993, D.R. 79-A).        It follows that this part of the application cannot be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies.   c)    The Commission further recalls the Convention organs' case-law, according to which the parties must be invited to participate in the examination of the facts by the Commission, though such an examination cannot be hindered by the manner in which the parties in fact participate (see No. 8007/77, Dec. 10.07.1978, D.R. 13   p. 85).        In the present case the proceedings in examination of the lawfulness of the applicant's detention began on 16 March 1993. The Commission observes that the period to be considered began only on 1 May 1993, i.e. the date on which the recognition of the right of individual petition against Poland took effect.   The Commission can, however, take into account the stage reached at this date (No. 7984/77, loc. cit.).   The period to be considered is therefore two years and four months.   The examination of the lawfulness of the applicant's psychiatric detention has not yet been completed as the relevant medical expert opinion, ordered by the court in early 1993, has not been prepared.        Having examined this complaint, the Commission finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.   2.    The applicant complains under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention about the decisions of the Public Prosecutor in the criminal investigations concerning the suspicion of manslaughter, relating to the admissibility of evidence.   Under Article 6 para. 2 (Art. 6-2) of the Convention he complains that he was convicted and committed to the mental hospital even though he was not guilty.   He further complains that the decision to place him in the mental hospital was wrong as he is mentally fit and not dangerous.   The applicant complains about the refusals to reopen the criminal proceedings against him and to grant leave for an extraordinary appeal.     a)    Insofar as the applicant's complaints relate to a period prior to 1 May 1993, the Commission recalls that Poland recognised the competence of the Commission to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Poland of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".        It follows that insofar as the application relates to the period before 30 April 1993, it is outside the competence ratione temporis of the Commission and therefore incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   b)    As regards the complaint of refusal to reopen the proceedings after 30 April 1993, the Commission recalls its established case-law according to which no right to a reopening of criminal proceedings is as such included among the rights and freedoms guaranteed by the Convention (No. 14739/89, Dec. 9.5.89, D.R. 60, p. 296).        It follows that the remainder of the application must be rejected as incompatible ratione materiae with the provisions of the Convention in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the complaint concerning the length of the proceedings in which      the lawfulness of the applicant's continued detention in a mental      hospital is examined,        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber        President of the Second Chamber          (M.-T. SCHOEPFER)                    (H. DANELIUS)