CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 février 1996

.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. 24541/94                       by Piotr WIERZBICKI                       against Poland         The European Commission of Human Rights sitting in private on 26 February 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 20 January 1994 by Piotr WIERZBICKI against Poland and registered on 6 July 1994 under file No. 24541/94;         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       22 February 1996 ;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Polish citizen born in 1935, is a journalist residing in Warsaw.   He is represented before the Commission by Mr. Jacek Hofman, a lawyer practising in Warsaw.         The facts of the case, as submitted by the applicant, may be summarised as follows:   1.     Particular circumstances of the case         On 30 June 1993 S. N., a candidate for Parliament, brought a court action against the applicant before the Warsaw Regional Court (S*d Wojewódzki) in accordance with Article 139 of the Election Act (see Relevant domestic law).   He submitted that the newspaper of which the applicant was an editor-in-chief had published information that he had been an informant of the secret police of the former communist regime. He contended that this was false.   He demanded that the applicant publicly revoke this statement and apologise for it by placing paid announcements in numerous newspapers.         On 1 July 1993 the Warsaw Regional Court declared itself incompetent to deal with the matter and transmitted the case to the Lódz Regional Court.         On 22 July 1993 the Lódz Regional Court decided that the case should be considered in ordinary contentious proceedings applicable to claims for protection of reputation under Article 24 of the Civil Code and transmitted the case to the Warsaw Regional Court.         Upon appeal, the Lódz Court of Appeal (S*d Apelacyjny) on 4 August 1993 quashed this decision as it considered that the case should be dealt with by the Lódz Regional Court in special proceedings under Article 139 of the Election Act.         On 6 August 1993 the Lódz Regional Court summoned the applicant by fax at his work address to appear at a court hearing on 7 August 1993. On the same day the applicant's lawyer sent a letter to the court in which he protested against the summons having been sent to the applicant's work instead of his private address and informed the Court that the applicant should be considered as not having been duly summoned. He requested that the hearing be adjourned.         At the hearing on 7 August 1993 the Lódz Regional Court summoned the applicant to adduce evidence to show that the information concerning the plaintiff S. N. was true.         On 12 August 1993 the applicant submitted a power of attorney for his representative and applied for resumption of the proceedings in a contentious manner as the proceedings provided for by Article 139 of the Election Act had not led to a decision on the merits within three days as stipulated in this Act.   He requested the Court to call the former and current Ministers of Internal Affairs as witnesses and to request the Ministry to submit numerous documents as evidence.         On 24 August 1993 the Lódz Regional Court summoned the applicant at work, and his lawyer at his office, to appear at a hearing on 25 August 1993.   Both summonses were made by fax.         At the hearing on 25 August 1993 before the Lódz Regional Court the applicant's lawyer was present, the applicant apparently not.   The Court pronounced the decision on the same day and upheld the plaintiff's claim.         The Court considered that in the proceedings concerned the time- limits for serving summonses set out in the Code of Civil Procedure did not apply.   The applicant's lawyer had been aware of the proceedings since 6 August 1993; he had been given a power of attorney on 11 August 1992 and had submitted the request to produce evidence on 16 August 1993.   Thus he had had enough time to prepare his arguments. The Court indicated that it had requested the Ministry of Internal Affairs to produce the documents requested by the applicant.   On 20 August 1993 the Ministry had refused to do so as those documents were subject to official secrecy and could be produced in court only in criminal proceedings, in accordance with the Bureau of State Security Act.   The Court observed that it could not call the witnesses proposed by the applicant.   They could only have submitted evidence as to whether S. N. had been put on the list, but not as to whether he had in fact been an informant.   Thus, as the applicant had not submitted any other evidence to prove that the information concerning S. N. was true, the Court found against him.         The applicant appealed against this decision, invoking, inter alia, Article 6 of the Convention.   He contended that the proceedings were null and void as neither the applicant nor his lawyer had been summoned to the hearing on 25 August 1993 with at least three days' notice as provided for by Article 149 para. 3 of the Code of Civil Procedure.   Furthermore, the applicant's interests could not have been presented and protected properly as he was not given sufficient time between receiving the summons and the date of the hearing.   The applicant further argued that, as all his requests to call witnesses and evidence had been refused, he had been denied an opportunity to prove the facts essential for the decision on the merits.         On 31 August 1993 the Lódz Court of Appeal dismissed the appeal. The Court considered that the complaint concerning the summons was unfounded.   Both the applicant and his lawyer had been summoned a day before the hearing, which was justified, given the special nature of the proceedings, as provided for by Article 139 of the Election Act.   The Court recalled that although this provision provided for such cases to be decided within 48 hours, failure to do so did not oblige the Court to deal with the case in a normal civil contentious procedure, to which the provisions of the Code of Civil Procedure, invoked by the applicant, would apply.   Moreover, the applicant, knowing the special nature of the proceedings, should have expected that he might be summoned from one day to the other and should have taken effective measures to ensure that the summons reached him in time.   These considerations applied in particular as the applicant was represented by a lawyer, who was under a professional obligation to take appropriate measures to this effect.   In any event, the lawyer received the summons in time to appear at the hearing, even though he contended unconvincingly that he had learned about the date of the hearing from a journalist.   As to the merits, the Court considered that the burden of proof lay on the defendant, who had failed to demonstrate that, at the time when the information at issue was published, he had possessed sufficient evidence that S. N. had been an informant.   2.     Relevant domestic law and practice         Article 139 of the Election Law provides that a candidate in parliamentary elections can bring a court action, claiming rectification of information published about him during the election campaign and compensation.   The court shall decide the case within 48 hours.   The court can order the publisher of the information immediately to rectify the information and to apologise publicly to the plaintiff, if the information proves to be false or inaccurate.   The court may order the defendant to pay compensation to the plaintiff.   The court shall decide in a civil non-contentious procedure.   COMPLAINTS         The applicant complains under Article 6 of the Convention that the proceedings were not fair in that he was summoned to court hearings only on the preceding day; thus, he did not have sufficient time to prepare his arguments; moreover, this prevented him from participation in person at the hearings.         The applicant further complains that all his requests for hearing evidence were dismissed by the Court.   He submits that his request to the Court to demand the Ministry of Internal Affairs to present documents as evidence was refused by the Ministry on the grounds that they constituted a State secret, and the Court refused to call any witnesses requested by the applicant.   Thus, the applicant was deprived of all means of defending his interests.         The applicant calls the courts' impartiality into question, as the Lódz Regional Court jeopardised his right to have his interests presented by a lawyer by summoning him at such short notice.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 20 January 1994 and registered on 6 July 1994.         On 26 June 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 6 October 1995.   At the Government's request dated 5 October 1995, the time-limit for the submission of the observations was subsequently extended until 8 December 1995.   No further extension of the time-limit was requested.         By letter of 18 January 1996 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 in February/March 1996.   THE LAW   1.     The applicant complains under Article 6 (Art. 6) of the Convention that all his requests for hearing evidence were dismissed by the Court. He submits that his request to the Court to demand the Ministry of Internal Affairs to present documents as evidence was refused by the Ministry on the grounds that they constituted a State secret, and the Court refused to call any witnesses requested by the applicant.   Thus, the applicant was deprived of all means of defending his interests.         The applicant further complains that the proceedings were not fair in that he was summoned to court hearings only on the preceding day; thus, he did not have sufficient time to prepare his arguments.         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 fair ...hearing... by an... impartial       tribunal ..."   a)     The Commission observes that the courts ordered the applicant to publish paid apologies in numerous newspapers, which entailed significant sums, and to pay compensation.   Thus his pecuniary interests were at stake.   The Commission concludes that Article 6 (Art. 6) of the Convention is applicable to the special proceedings provided for by the Election Act as these proceedings concerned the applicant's civil rights and obligations.   b)     The Commission recalls that the above complaints were communicated to the Polish Government, who have been invited to submit observations on their admissibility and merits.   The time-limit for the submission of such observations was extended, at the Government's request, until 8 December 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.         The Commission 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. 10.7.78, D.R. 13, p. 85).         It is the normal practice of the Commission, where an application has been communicated to the respondent Government, in part or as a whole, not to declare the complaint concerned 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. 11.10.93, unpublished).   Moreover, it appears that in the present case there were no further remedies available to the applicant.         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.         Having examined these complaints, the Commission finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   These complaints 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 them inadmissible has been established.   2.     The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Lódz Regional Court was not impartial as it jeopardised the applicant's right to have his interests presented by a professional legal representative by summoning him at a short notice.         The Commission observes that both the applicant and his lawyer were summoned by fax on 24 August 1993 to appear at a hearing on 25 August 1993.   The lawyer was eventually present at this hearing.   The Commission finds no indication of lack of impartiality of the Court in that it summoned both the applicant and his lawyer in this manner, having regard to the special provisions of Article 139 of the Election Act. This complaint is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority         DECLARES ADMISSIBLE, without prejudging the merits of the case,       the applicant's complaint under Article 6 para. 1 of the       Convention that he did not have a fair hearing;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission             President of the Commission         (H.- C. KRÜGER)                          (S. TRECHSEL)