CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 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 }                          Application No. 25403/94                       by Krzysztof DROZD                       against Poland         The European Commission of Human Rights sitting in private on 5 March 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.    M. de SALVIA, Deputy 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 3 February 1994 by Krzyszof DROZD against Poland and registered on 10 October 1994 under file No. 25403/94;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the observations submitted by the respondent Government on       20 November 1995;   -      the information of 8 November 1995 and 27 November 1995 and the       applicant's comments of 30 November 1995;   -      the observations in reply submitted by the applicant on       10 January 1996;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows:         The applicant, a Polish citizen born in 1960, is a businessman residing in Warsaw.         On 22 February 1993 the Siedlce Regional Public Prosecutor issued a warrant for the arrest of the applicant, suspected of aggravated fraud. On the same day the applicant was arrested by the police and remanded in custody.   He tried to avoid arrest by hiding in a couch.         On 26 February 1993 the Siedlce Regional Prosecutor declined to deal with the applicant's appeal against the warrant of arrest.   On 9 March 1993 the Siedlce Regional Court (S*d Wojewódzki) dismissed the applicant's further appeal against this warrant as there were sufficient grounds to believe that the applicant had committed the offence, based on testimony of two witnesses and a letter of a bank.   The Court considered that there was a risk of the applicant absconding.   The Court referred to the seriousness of the offence, having regard to the very substantial sums apparently involved in the fraud.         On 24 March 1993 the Public Prosecutor in the Ministry of Justice upheld the refusal to entertain the applicant's complaint of 26 February 1993, considering that the applicant's behaviour before and during his arrest justified the conclusion that there was a risk of absconding.   With regard to the applicant's submissions that his mother was terminally ill with cancer and needed his care, he observed that in the past the applicant had not been taking care of her and that her neighbour was presently doing so.   There were also reasonable grounds to consider that the applicant had committed the offence at issue.         On 2 April 1993 the Siedlce Regional Prosecutor declined to deal with the applicant's further request for release.   The applicant appealed against this decision, contending, inter alia, that there was no evidence to support charges against him.   On 5 May 1993 the Prosecutor in the Ministry of Justice upheld the appealed decision as the suspicion against the applicant was supported by the testimony of two further witnesses and of the co-accused, and by further documents.   In the course of the investigations new facts had come to light which showed that the applicant should be charged with further offences.   There was a risk of absconding and collusion, demonstrated inter alia by the fact that in the course of the investigations computers of one of the applicant's firms had surreptitiously been taken away from its headquarters, apparently by the applicant's accomplices.   Before his arrest the applicant had sold his shares in his firm to a third party, apparently in order to avoid criminal responsibility.   The applicant had been refusing to confirm receipt of a summons to appear before the Public Prosecutor.   At the time of the arrest he had been hiding in the couch.   As to his mother's situation, though it was true that she needed assistance, being ill with cancer, she was being taken care of by her neighbour and, having a considerable property, could afford to hire a paid help.         On 12 August 1993 the Siedlce Regional Court prolonged the applicant's detention until 20 November 1993 as the reasons herefor continued to exist.   The Court referred to the earlier decisions relating to the applicant's detention.   The Court noted that further witnesses had to be heard.   The applicant appealed against this decision, contending that he required medical treatment and that his mother was terminally ill.         On 13 August 1993 the applicant was transferred to the prison hospital in Warsaw.   On 31 August 1993 a medical panel of the Central Hospital of the Detention Centre at Rakowiecka Street examined him and concluded that he should be released to undergo medical treatment in a specialised hospital.   On 14 September 1993 the applicant was examined in the Warsaw Medical Academy.   On 27 September 1994 he refused to undergo a biopsy in the Academy as he would have to be taken thereafter to the prison hospital which, in his view, would not have secured sufficient medical care.         On 12 October 1993 the Siedlce Regional Prosecutor transmitted the applicant's appeal against the decision of the Siedlce Regional Court of 12 August 1993 to the Siedlce Regional Court, but failed to include in the file the opinion of the medical panel and other medical documents. Subsequently the Siedlce Regional Court transmitted the case-file to the Lublin Court of Appeal (S*d Apelacyjny) for a decision on the appeal.         On 18 October 1993 the Lublin Court of Appeal upheld the decision of 12 August 1993 as the evidence sufficiently indicated that the suspicion against the applicant was well-founded.   The applicant's medical condition, a tumour in the cheek, could not justify his release as he had refused to undergo treatment in the prison hospital as well as the biopsy in the Medical Academy.   As the applicant's mother now was in hospital, she did not need his assistance.   The Court considered, however, that the applicant should be allowed to visit his mother in hospital in the presence of a policeman.         On 4 November 1993 the applicant's mother died.   The applicant did not see his mother before she died and did not attend her funeral.         On 4 November 1993 the applicant complained to the Minister of Justice that his detention was unjustified as his acts did not constitute criminal offences.         On 19 November 1993 the Siedlce Regional Prosecutor closed the investigations and transmitted a bill of indictment to the Siedlce Regional Court.         On 25 November 1993 the Siedlce prison governor requested the applicant's release on medical grounds.         On 5 January 1994 the applicant complained to the Siedlce Regional Court that the Siedlce Regional Prosecutor had not taken any appropriate action with regard to the recommendation of the medical panel of 31 August 1993.   He alleged that the Prosecutor had failed to present this document to the Lublin Court of Appeal deciding on 18 October 1993 upon prolongation of his detention.   He contended that the Prosecutor had presented to the Court only an opinion of another physician who had not participated in the medical panel of 31 August 1993.   He complained that he was not receiving appropriate medical treatment and that the prison's motion of 23 November 1993 had not been dealt with.   The applicant further complained that neither he nor his counsel were granted access to the case-file.         On 19 January 1994 the applicant received a copy of the bill of indictment.         On 10 February 1994 the applicant underwent a medical examination.         On 21 February 1994 the Siedlce Regional Prosecutor informed the applicant that it did not transpire from an internal enquiry that his medical documents had not been duly presented to the Lublin Court of Appeal in October 1993.         On 24 February 1994 a medical certificate was issued, stating that the applicant's condition was worsening and that he should be treated in a hospital specialised in face surgery.   On 8 March 1994 the Siedlce Regional Court refused to release the applicant.   The Court considered that the suspicion that the applicant had committed the offence at issue was supported by evidence given by the applicant's co-accused.   As to the applicant's health, the court noted that the doctors had not been unanimous as to the required therapy; the disease had been worsening in fact as the applicant refused to cooperate with the doctors.   Further detention would not seriously endanger his health or life as he could be treated in an appropriate civil hospital without being released.         The applicant appealed against this decision.   He pointed out that his medical condition had not been treated and that it had continuously been worsening over the last eight months.   He submitted that the Regional Court had not referred to the medical opinion of 31 August 1993, stating that the applicant should be released to undergo treatment and operation outside the prison.         On 19 March 1994 the applicant requested to be released on bail. He submitted that his detention was unjustified as there was no risk of absconding or collusion.   Moreover, his condition called for specialised medical treatment, which was not available in the prison hospital.         On 24 March 1994 the Lublin Court of Appeal quashed the decision of 8 March 1994 and referred the case back to the Siedlce Regional Court. The Court of Appeal considered that the medical opinion submitted to the lower court did not contain information sufficient for a full assessment of whether the applicant should be released for health reasons. Moreover, this opinion was prepared by one of the physicians who had participated in the medical panel of 31 August 1993, which prejudged the outcome of the examination.   Thus another medical examination should be ordered.         On 29 April 1994 the applicant underwent the examination in a specialised ward of the Warsaw Medical Academy.   A provisional opinion was issued that his condition necessitated treatment in a university hospital.         On 18 May 1994 the applicant complained in a letter to the Lublin Court of Appeal that the Siedlce Court of Appeal was not diligent enough in dealing with his case.   In particular, the Court had failed to consider the consequences of the medical expert opinion for the further detention of the applicant.         On 19 May 1994 the Siedlce Regional Court dismissed the applicant's complaint that it was not territorially competent to consider the case.         On 22 September 1994 the applicant was released.   The case was transferred to the Warsaw Regional Court and is still pending.   COMPLAINTS         The applicant complains under Article 3 of the Convention that he was not afforded adequate medical treatment.   He further complains that he was not permitted to see his dying mother or to attend her funeral.         Under Article 4 para. 1 of the Convention he complains that he spent 18 months in detention without any examination of whether his detention was justified.         Under Article 5 para. 1 of the Convention the applicant complains that his detention was arbitrary as none of the grounds set out in this provision applied in his case.   In particular he had not committed nay criminal offence as stated in Article 5 para. 1 (c).         Under Article 5 para. 3 of the Convention he contends that his detention was unreasonably long.   He complains that he was not brought before a judge who reviewed the lawfulness of his detention and to whom he could have presented his argument.         The applicant complains under Article 5 para. 4 of the Convention that no authority properly reviewed the lawfulness of his detention. Every appeal authority only repeated arguments of the lower authority without any analysis of their well-foundedness.         The applicant complains under Article 6 para. 1 of the Convention that the judges and prosecutors were biased against him.         Under Article 6 para. 3 of the Convention he complains that his requests to appoint bookkeeping experts were refused.         Under Article 7 para. 1 of the Convention the applicant complains that he was charged on account of acts which did not constitute criminal offences under national law as his acts were in fact usual decisions taken in the management of his firm.         Under Article 8 of the Convention he complains that all his letters to and from the Commission and the Ombudsman have been opened and read by the Regional Court.   His other letters have also been opened and read even after the investigations were closed and the indictment was sent to court.         Under Article 11 of the Convention the applicant complains that his right to freedom of association was breached in that documents relating to an association which he founded were unjustifiably included in the case-file.         The applicant complains that he had no effective remedy to complain about breaches of his rights as his complaints to higher authorities were routinely transmitted to be dealt with by those persons about whom he had complained.         Under Article 14 of the Convention the applicant complains that he was discriminated against in the enjoyment of his rights under the Convention on the grounds of his personal wealth.   He alleges that the Siedlce Regional Public Prosecutor T.Z. told him that he would remain in custody as he was rich.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 3 February 1994 and registered on 10 October 1994.   The applicant was informed in the registration letter that the proceedings of the Commission are confidential and the contents of case-file, including the observations of the parties and correspondence, must not be made public.         On 6 April 1995 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.         By letter of 8 November 1995 the Government expressed their concern about the publicity in the Polish media concerning the applicant's case before the Commission.   In particular, in a November issue of the newspaper "Smiechu Warte" a copy of the Commission's letter of 7 August 1995 to the applicant was published. This letter informed the applicant that the request of the Government for an extension of the time-limit for the submission of the observations had not been granted. In a neighbouring column a critical comment about the case was published, signed by L. B., a candidate in the presidential election.   Both L.B. and the applicant are on the editorial board of the newspaper.   In his comment L.B. strongly criticised the Government for having failed to submit the observations in time and called the public servants representing the Government in the proceedings before the Commission "uneducated and corrupt".   The Government stated that the applicant must have been directly and deliberately involved in publishing the letter as he was on the editorial board. The Government further drew the Commission's attention to the fact that the newspaper concerned disseminates extremist anti-semitic views.   They stated that the article in question created an imbalance in informing the general public of the case before the Commission.   This breach of confidentiality was even more aggravated by its political context, namely the fact that it had been committed during the presidential campaign and used for the purposes of that campaign.   It could seriously jeopardise the credibility of the Convention system in Poland.    The Government requested that the Commission should reject the application on the ground of abuse of the right of petition within the meaning of Article 27 para. 2 of the Convention.         On 20 November 1995 the Government submitted their observations.         By letter of 22 November 1995 the applicant was requested to comment on the confidentiality issue before 30 November 1995.         By letter of 27 November 1995 the Government further informed the Secretariat that in May 1995 the publication "Forum against Corruption" published a letter of 10 April 1995 from the Secretariat of the Commission in which the applicant was informed of the Commission's decision to communicate the case to the Government.   The Government pointed out that the responsibility of the applicant for publication of this letter was well established as the applicant was on the editorial board of the newspaper.   The Government reiterated their deep concern about the publication of the Secretariat's two letters in newspapers and leaflets of wide distribution and about abusing the applicant's case for political purposes in the course of the presidential campaign.   They indicated that in comments to the letters their authors resorted to insulting statements against the Government and accused the civil servants responsible for dealing with the applications to the Commission of corruption and incompetence.         By letter of 30 November 1995 the applicant replied that the Commission's letter of 7 August 1995 could have been published as it only concerned the proceedings before the Commission and not the merits of the case.   He submitted that it had not been stated in this letter that it was confidential.   He further submitted that there was a bill being discussed in the Polish Parliament with the alleged purpose of limiting the right of individual petition.   He made general   allegations about violations of human rights in Poland by the State.         On 10 January 1996 the applicant submitted his observations in reply.   REASONS FOR THE DECISION         In view of the information provided in the Government's letters of 8 November 1995 and 27 November 1995 and the applicant's letter of 30 November 1995, the Commission finds it necessary to consider whether it is justified to continue the examination of the present application within the meaning of Article 30 para. 1 of the Convention.         Article 30 para. 1, so far as relevant, reads as follows:         "The Commission may at any stage of the proceedings decide to       strike a petition out of its list of cases where the circumstances       lead to the conclusion that : ...              c.   for any other reason established by the Commission, it is            no longer justified to continue the examination of the            petition.         However, the Commission shall continue the examination of a petition       if respect for human rights as defined in this Convention so       requires."         The Commission notes that the applicant made public confidential information concerning the proceedings before the Commission.   In particular the applicant disclosed the Commission's decision to communicate the case to the respondent Government by quoting in extenso the Commission's letter informing him thereof on a strictly confidential basis.   He further published the letter in which an extension of the time-limit for submission of the observations by the Government had been refused and criticised the delays in the proceedings on the part of the Government.   The applicant must have been aware of the confidentiality of the proceedings as he had been informed thereof.         The Commission considers that the parties are obliged to respect the confidentiality of its proceedings.   In this respect, the Commission refers to Article 33 of the Convention which provides that the "Commission shall meet in camera" and to Rule 47 of its Rules of Procedure.   In the present case, the applicant's responsibility for disclosure of confidential information concerning the proceedings before the Commission has been established as the applicant is on the editorial boards of both newspapers concerned.   The Commission finds that the applicant's conduct constitutes a serious breach of confidentiality.   The explanations given by the applicant do not disclose any circumstances which could justify his conduct.         In these circumstances, the Commission considers that it is no longer justified to continue the examination of the application within the meaning of Article 30 para. 1 (c) of the Convention (c.f., mutatis mutandis, No. 20915/92, Comm. Report 3.3.95, D.R. 80-A, p. 74).         Moreover, as regards the issues raised in the present case, the Commission finds no reasons of a general character affecting respect for human rights, as defined in the Convention, which require the further examination of the application by virtue of Article 30 para. 1 in fine of the Convention.         In view thereof, the Commission finds that it is not necessary to consider whether the facts of the case amount to an abuse of the right of petition within the meaning of Article 27 para. 2 of the Convention.         For these reasons, the Commission by a majority         DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.   Deputy Secretary to the Commission        President of the Commission              (M. de SALVIA)                        (S. TRECHSEL)