CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.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. 26614/95                       by Edward HUMEN                       against Poland                       __________         The European Commission of Human Rights (Second Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    G.H. THUNE, President            MM     J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 7 April 1994 by Edward HUMEN against Poland and registered on 3 March 1995 under file No. 26614/95;         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       1 April 1996 and the observations in reply submitted by the       applicant on 5 June 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Polish citizen born in 1950, is a worker residing in Gdansk, Poland.         The facts of the case, as submitted by the parties, may be summarised as follows:   A.     Particular circumstances of the case   a)     Proceedings relating to the request for compensation for unjustified conviction         On 5 January 1983 the Gdansk Regional Court (S*d Wojewódzki) convicted the applicant of participating in an illegal assembly and sentenced him, under martial law as then in force, to sixteen months' imprisonment.   On 8 June 1983 the Supreme Court (S*d Najwyzszy) upheld this judgment.         On 3 March 1993 the Supreme Court, upon an extraordinary appeal filed by the Prosecutor General (Prokurator Generalny), quashed the judgments of 1983 and acquitted the applicant, finding that he had exercised his basic civil liberties as "he had taken part in a peaceful and patriotic manifestation".         On 13 April 1993 the applicant lodged a request based on Section 487 of the Code of Criminal Procedure with the Gdansk Regional Court. He sought compensation for his unjustified conviction of 1983 and his detention on remand imposed in the course of those proceedings.   He also alleged that his health had been damaged as a result of his detention.   At the material time the applicant was serving a sentence imposed in other criminal proceedings in Kwidzyn prison.         On 15 June 1993 the Gdansk Regional Court requested the applicant to adduce certain documents relating to his request.         On 30 July 1993 the Gdansk Regional Court informed the applicant that it was dealing with requests for compensation submitted in the first six months of 1992.   The applicant's attention was drawn to the fact that he had failed to submit the documents requested on 15 June 1993.   The applicant adduced the documents in question on an unspecified date in September 1993 and requested the court to schedule a hearing.         On 6 November 1993 the Chief Justice of the Gdansk Regional Court, in reply to the applicant's complaint dated 10 August 1993, informed him that there were twenty-eight similar compensation cases registered with the Criminal Division of that court.   As a consequence, it was difficult to foresee precisely when a hearing in his case would take place.         On 9 November 1993 the applicant complained to the Supreme Court about the length of the proceedings in his case.   Subsequently, his complaint was transferred to the Gdansk Court of Appeal (S*d Apelacyjny) which, on 23 December 1993, informed the applicant that his case would probably be dealt with in the first three months of 1994.         On 8 January 1994 the Gdansk Regional Court, in reply to the applicant's subsequent complaint, informed him that it was still dealing with other requests for compensation submitted prior to his. However, a hearing in his case would be scheduled as soon as possible.         On 24 January 1994 the applicant again complained to the Gdansk Regional Court about the excessive length of the proceedings.   In a letter of 8 February 1994 the court informed the applicant that it was not feasible to schedule a hearing for any date in the first half of 1994.         On 14 February 1994 the applicant complained to the Chief Justice of the Gdansk Regional Court about the length of the proceedings and asked him when the first hearing would be held.   On 23 March 1994 the Chief Justice informed the applicant that his case would probably be dealt with in June or July 1994.         On 28 March 1994 the applicant complained to the Minister of Justice about inactivity on the part of the Gdansk Regional Court.         On 17 June 1994 the Gdansk Regional Court held a hearing and found that evidence needed to be taken from medical experts in order to assess whether there was a causal link between the state of the applicant's health and the detention imposed in 1983.   The court also called documentary evidence relating to the financial loss possibly sustained by the applicant as a result of the deprivation of his liberty and his subsequent conviction. The hearing was, accordingly, adjourned.         On 3 and 24 October 1994 the applicant complained to the Chief Justice of the Gdansk Regional Court about the length of the proceedings.   On 25 October 1994 the Chief Justice informed the applicant that on 20 October 1994 the case-file had been sent to the experts of the Faculty of Forensic Medicine of the Gdansk Academy of Medicine.   Therefore, the date of the next hearing could not be fixed until the experts had submitted their reports.         On 1 December 1994 the applicant was examined by a neurologist who expressed the opinion that the applicant should also undergo a brain tomography examination.   The Faculty of Radiology of the Gdansk Academy of Medicine fixed the date of the examination for 22 December 1994.         In the meantime, on 19 December 1994, the applicant had been granted twenty-four hours' leave from prison and had failed to return. He did not appear before the experts who were to carry out the brain tomography examination.   Apparently in view of that fact, on 13 January 1995, the Gdansk Regional Court stayed the proceedings.   On 17 February 1995 it resumed the proceedings as the applicant had informed the court that service of a summons or other court documents on him could be effected at his home address.   Subsequently, the court requested the experts to fix another date for the brain tomography examination.         On 11 April 1995 the Chief Justice of the Gdansk Regional Court informed the President of the Criminal Division of that court that the applicant had refused to give his consent for the brain tomography examination   and threatened to go on hunger-strike in order to obtain a date for the next hearing.         The Gdansk Regional Court scheduled a hearing for 2 June 1995. On the same day the court pronounced a decision partly granting the applicant's claim, i.e. awarding him the sum of new PLZ 5,000.   On 5 July 1995, upon the applicant's appeal, the Gdansk Court of Appeal quashed the decision of the court of first instance and remitted the case back to that court.         In the subsequent proceedings the Gdansk Regional Court held four hearings: on 11 October 1995 and on 12 January, 9 February and 6 March 1996.   On 6 March 1996 the court made a decision granting the applicant compensation in the sum of new PLZ 6,800.   The decision was served on the applicant on 18 March 1996.   Since he did not appeal against it, the decision became final on 26 March 1996.   On 1 October 1996 the applicant went to the Financial Department of the Gdansk Regional Court and received the sum granted in cash.   b)     Criminal proceedings against the applicant   i)     concerning the charge of aggravated theft         On 7 May 1992 the Gdansk District Court (S*d Rejonowy) convicted the applicant of aggravated theft and sentenced him to one year's imprisonment.   On 14 October 1992 the Gdansk Regional Court altered the sentence to two years' imprisonment, holding that the period of the applicant's detention on remand should be deducted from the sentence. As a result, the applicant served the remainder of this sentence from 29 January 1993 to 13 May 1994.   ii)    concerning the charge of burglary         On 29 January 1993 the applicant was arrested on suspicion of having committed burglary.   On 31 January 1993 the Gdansk District Prosecutor (Prokurator Rejonowy) detained him on remand in view of the reasonable suspicion that he had committed the offence in question. On 23 February 1993 the investigating prosecutor prolonged the detention on remand until 28 April 1993.         On 20 April 1993 the Gdansk District Court prolonged the applicant's detention for a further three months in view of the reasonable suspicion that he had committed the offence with which he had been charged and the fact that the investigations were not completed.   On 4 May 1993, upon the applicant's appeal, the Gdansk Regional Court upheld this decision.         On 18 May and 1 June 1993 the Gdansk District Prosecutor dismissed the applicant's subsequent requests for release in view of the reasonable suspicion that he had committed the offence in question and the need to complete the investigations.         On 9 June 1993 the Gdansk District Prosecutor lodged a bill of indictment with the Gdansk District Court.         On 28 July, 5 October and 13 October 1993 the Gdansk District Court dismissed further requests for release by the applicant in view of the serious nature of the charge laid against him.   On 3 November 1993 the Gdansk Regional Court dismissed the applicant's appeal against the decision of 5 October 1993, upholding the reasons given therefor.         Subsequently, the applicant challenged the presiding judge.   On 24 November 1993 the Gdansk District Court dismissed his challenge as there was no indication of lack of impartiality on her part.   However, shortly afterwards the presiding judge requested the Gdansk District Court to allow her to step down as the applicant had been uttering threats against her in his letters sent from prison.   The request was granted on 14 January 1994.         On 24 January and 21 February 1994 the Gdansk District Court again refused to release the applicant from detention on remand in view of the serious nature of the charge laid against him and the need to ensure the due course of the proceedings.   On 7 March 1994 the Gdansk Regional Court dismissed the applicant's appeal against the District Court's decision of 21 February 1994 holding that the reasons given therefor were justified.         On 19 April 1994 the Gdansk District Court held a hearing. During the hearing the applicant again unsuccessfully requested the court to release him.   The court found that the grounds previously given to justify his detention still existed.   On 5 May 1994 the Gdansk Court of Appeal dismissed the applicant's appeal against this decision.         On 13 May 1994 the Gdansk District Court convicted the applicant of burglary, sentenced him to two years and four months' imprisonment and deducted the period of his detention on remand from 29 January 1993 to 13 May 1994 from the sentence.         On 25 May 1994 the Gdansk District Court refused the applicant's request for release in view of the severity of the sentence imposed. On 13 June 1994 the Gdansk Regional Court dismissed the applicant's appeal against this decision.         On 22 September 1994 the Gdansk District Court ex officio rectified an error in the applicant's sentence of 13 May 1994 and ordered that the period of detention deducted from that sentence should have been deducted from the sentence imposed on him on 14 October 1992 since in the meantime the applicant had been serving the latter.         On 26 October 1994 the Gdansk District Court dismissed the applicant's appeal against the decision of 22 September 1994.   iii)   concerning the charge of uttering threats         On 12 January 1994 the Gdansk District Court convicted the applicant of uttering threats against K. and sentenced him to eight months' imprisonment.   On 15 April 1994 the Gdansk Regional Court upheld the judgment of 12 January 1994.   c)     Proceedings relating to the request for temporary suspension of sentence         On 16 September 1994 a single judge sitting as the Gdansk Regional Court refused to grant the applicant's request for temporary suspension of his sentence as the applicant's personal situation did not justify his release.   On 23 September 1994, upon the applicant's appeal, a panel of three judges sitting as the Gdansk Regional Court upheld the decision of 16 September 1994.   B.     Relevant domestic law and practice         Chapter 50 of the Polish Code of Criminal Procedure, entitled "Compensation for unjustified conviction, detention on remand or arrest", provides that the State is liable for wrongful convictions or for unjustifiedly depriving an individual of his liberty in the course of criminal proceedings against him.         Section 487 of the Code of Criminal Procedure (in the version applicable at the material time) provided, insofar as relevant:         "1.   An accused who, as a result of the reopening of the       criminal proceedings against him or of lodging an extraordinary       appeal, has been acquitted or resentenced under a more lenient       substantive provision, shall be entitled to compensation from the       State Treasury for the damage which he has suffered in       consequence of having served the whole or a part of the sentence       imposed on him.         ...         4.    The provisions of the present chapter shall be applied by       analogy to manifestly unjustified arrest or detention on remand."         Section 488 para. 1 of the Code of Criminal Procedure (in the version applicable at the material time) provided, insofar as relevant:         "1.   A request for compensation shall be submitted to a regional       court in whose jurisdiction the decision giving rise to the       request for compensation was given at first instance.         ...         2.    The court shall consist of three judges.   The cases       relating to requests for compensation shall be given priority and       no court fees shall be required from the person concerned."         In practice, a request for compensation based on the foregoing provisions is examined by a criminal court.   As regards the conduct of the proceedings, the court applies the rules of criminal procedure. However, in respect of the evaluation of the pecuniary or non-pecuniary damage sustained by an accused the court applies the principles set out in the Civil Code pertaining to the assessment of such damage.   The person concerned is entitled to compensation, covering any financial loss (e.g. arising from the impossibility of performing a professional activity), damage to health and psychological harm resulting from the execution of the sentence or detention on remand.   COMPLAINTS   1.     The applicant complains that the proceedings before the Gdansk Regional Court, which concerned his request for compensation for unjustified conviction in 1983, were unreasonably long.   2.     He also complains that on three occasions the Gdansk District Court and the Gdansk Regional Court convicted him on the basis of insufficient evidence and that they incorrectly assessed the evidence presented during the trials concerned.   3.     He submits that he was detained on remand in the burglary case and that the courts refused to order his release.   4.     The applicant further complains that he was refused a temporary suspension of his sentence.         He does not invoke any specific provisions of the Convention in support of his complaints.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 7 April 1994 and registered on 3 March 1995.         On 16 January 1996 the Commission decided to communicate the applicant's complaint concerning the length of the proceedings relating to his request for compensation for unjustified conviction to the respondent Government.         The Government's written observations were submitted on 1 April 1996.   The applicant replied on 5 June 1996.   The translation of the Government's observations was submitted on 17 June 1997.         On 9 July 1997 the Commission, pursuant to Rule 48 para. 2(a) of its Rules of Procedure, requested the respondent Government to submit information relating to the course of the proceedings complained of after 6 March 1996.   The Government submitted the information requested on 23 September 1997.   THE LAW   1.     The applicant complains that the proceedings relating to his request for compensation for unjustified conviction in 1983 were unreasonably long.   a)     Article 6 (Art. 6) of the Convention, insofar as relevant, provides:         "1.   In the determination of his civil rights and obligations       ... everyone is entitled to a ... hearing within a reasonable       time by [a] ... tribunal established by law. ..."         The Government submit that Article 6 (Art. 6) of the Convention is applicable in the present case.         The Commission notes that the proceedings complained of involved an examination of the applicant's request based on Section 487 of the Polish Code of Criminal Procedure.   This provision states that a person charged with a criminal offence, but subsequently acquitted or sentenced under a more lenient provision, shall be granted compensation for unjustified conviction and detention resulting from such conviction.   According to the domestic law and practice, requests for such compensation are examined by criminal courts under the general principles of civil law pertaining to the assessment of damage provided for by the Polish Civil Code.         Thus, assessing these proceedings under the relevant case-law (see, a contrario, Eur. Court HR, Masson and Van Zon judgment of 28 September 1995, Series A no. 327-A, p. 19 et seq. para. 48 et seq.) the Commission finds that they concerned a dispute over a right recognised under Polish law.   It further observes that the applicant's right was to financial reparation for pecuniary and non-pecuniary damage and that its nature was "civil", notwithstanding the origin of the dispute and the jurisdiction of the criminal courts.         Accordingly, the Commission finds that Article 6 (Art. 6) of the Convention is applicable in respect of the proceedings under consideration.   b)     The Government submit that they do not have any reservations regarding the temporal competence of the Commission since the applicant's complaint concerns acts, decisions and events which occurred after 30 April 1993.         It is true 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 and freedoms recognised in the Convention through any act, decision or event occurring after 30 April 1993."         However, the Commission notes that the proceedings complained of commenced on 13 April 1993 (i.e. when the applicant lodged his request for compensation with the Gdansk Regional Court), i.e. prior to 1 May 1993, the date on which Poland's declaration acknowledging the right of individual petition took effect.   Since, in that declaration Poland limited the Commission's competence to facts subsequent to the declaration, the Commission, by reason of its competence ratione temporis, can examine the applicant's complaint only insofar as it relates to the period after this date.   Nonetheless, 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).   c)     The Government submit that in the light of the relevant criteria for the notion of a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, deriving from the Convention organs' case-law, the length of the proceedings in the applicant's case before the Gdansk Regional Court was reasonable and no irregularities can be found in the authorities' conduct.         The Government maintain that the applicant's case was, undoubtedly, a complex one.   This was due to the number of claims submitted by the applicant.   In particular, he requested compensation for the deterioration of his financial situation on account of the imposition of detention on him.   As a result, the court needed to take documentary evidence relating to his business activity from a local tax office and trade guild.   He also requested compensation for the damage to his health resulting from his detention.   Accordingly, the court had to assess the facts relevant to his claim in the light of reports by medical experts, who expressed the opinion that the applicant should undergo a brain tomography.         The Government further submit that the conduct of the applicant was the main factor contributing to the length of the proceedings complained of.   On 15 June 1993 the Gdansk Regional Court requested him to submit documents relevant to his claim as he had failed to do so when lodging his request with the court on 13 April 1993.   The applicant adduced the documents concerned as late as September 1993. As a consequence, the court was not able to commence preparations for a hearing.   Furthermore, the applicant had failed to undergo the brain tomography on 22 December 1994 and, subsequently, did not consent to undergo it, although the next date for it was already scheduled for April 1995.   This delayed the preparation of the experts' report.         In contrast, there were no delays in the proceedings resulting from inactivity on the part of the relevant courts, save for those caused by the significant number of similar requests for compensation lodged with the Gdansk Regional Court and the shortage of staff in that court.   In comparison to other regions of Poland, the Gdansk Regional Court was confronted with a bigger number of such requests, as many convictions rendered by the courts of the Gdansk region under martial law were subsequently quashed as unjustified.         Moreover, the respective authorities immediately replied to the applicant's complaints about the length of the proceedings.   Thus, the Gdansk Court of Appeal and the Minister of Justice repeatedly informed him that the Gdansk Regional Court had to deal with such requests for compensation in chronological order.         As a consequence, the Gdansk Regional Court displayed due diligence in dealing with the applicant's case.   For instance, this transpires from the fact that it made efforts to schedule the brain tomography examination as soon as possible.   It also immediately resumed the proceedings which had been stayed after the applicant had failed to undergo this examination.         The applicant contests the Government's submissions.   He replies that the length of the proceedings in his case clearly exceeded a "reasonable time" within the meaning of Article 6 (Art. 6) of the Convention.   He stresses that the Gdansk Regional Court scheduled the first hearing more than one year after the date on which he had lodged his request.   Furthermore, that court ordered unnecessary evidence from a brain tomography test which resulted in the proceedings being substantially prolonged.         The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of this complaint is required.   2.     The applicant complains that on three occasions the Gdansk District Court and the Gdansk Regional Court convicted him on the basis of insufficient evidence, made erroneous findings of fact and incorrectly assessed the evidence presented during his trials.         The Commission finds that these complaints also fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   a)     It further notes that they firstly concern the proceedings relating to the charge of aggravated theft which were terminated by the judgment of the Gdansk Regional Court of 14 October 1992.         The Commission has already found that, by reason of its competence ratione temporis, it can examine the applicant's complaints only insofar as they relate to facts subsequent to 30 April 1993.         It follows that this part of the application is inadmissible as being incompatible ratione temporis with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)     As regards the applicant's complaints about the proceedings relating to the charge of burglary, which were terminated by the judgment of the Gdansk District Court of 13 May 1994, the Commission recalls that under Article 26 (Art. 26) of the Convention, it "may only deal with a matter after all domestic remedies have been exhausted".         In respect of these proceedings the Commission notes that the applicant appealed against the decision of the Gdansk District Court of 22 September 1994 concerning the deduction of his detention on remand from the sentence imposed.   However, he failed to appeal against that court's judgment on the merits to the Gdansk Regional Court.         As a result, the applicant has not complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   It follows that this part of the application must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   c)     With regard to the applicant's complaints about the proceedings relating to the charge of uttering threats, which were terminated by the judgment of the Gdansk Regional Court of 15 April 1994, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).         The Commission further reiterates that the admissibility of evidence is primarily a matter for regulation by national law.   As a rule, it is for the national courts to assess the evidence before them, whereas it is the Commission's task to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 26).         The Commission has examined the applicant's above complaints as they have been submitted by him.   However, it finds no indication that in the course of the proceedings complained of, he was debarred from putting forward his submissions, or that the courts concerned rejected any relevant evidence or that the proceedings were unfairly conducted in any other way.         It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant complains that in the burglary case he was detained on remand and the courts refused to release him.         The Commission examined this complaint under Article 5 para. 3 (Art. 5-3) of the Convention, which provides, insofar as relevant:         "3.   Everyone arrested or detained in accordance with the       provisions of paragraph 1 (c) of this Article ... shall be       entitled to trial within a reasonable time or to release pending       trial. ...".         The Commission finds that on 29 January 1993 the applicant was arrested on suspicion of having committed burglary.   He was convicted at first instance on 13 May 1994 by the Gdansk District Court. Moreover, from 29 January 1993 to 13 May 1994 the applicant served his sentence imposed by the final judgment of the Gdansk Regional Court of 14 October 1992.           The Commission, having regard to its competence ratione temporis, can examine the above complaint only insofar as it relates to the applicant's detention following 30 April 1993.         Furthermore, the period of the applicant's detention on remand following 13 May 1994 does not fall under Article 5 para. 3 (Art. 5-3) of the Convention since a person convicted at first instance and subsequently detained cannot be considered to be detained "for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence" within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) (see, mutatis mutandis, Eur. Court HR, B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 15, para. 39).         Accordingly, the Commission observes that the whole period of the applicant's detention on remand which could be considered under Article 5 para. 3 (Art. 5-3) of the Convention (i.e. from 1 May 1993 to 13 May 1994) was covered by a concurrent sentence arising from a previous conviction.         It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     Finally, the applicant complains that he was refused temporary suspension of his sentence.         However, the Commission recalls that the Convention does not guarantee the right to have the execution of a sentence suspended (No. 7648/76, Dec. 6.12.77, D.R. 11, p. 175).         It follows that the remainder of the application is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission, by a majority,         DECLARES ADMISSIBLE, without prejudging the merits, the       applicant's complaint about the length of the proceedings       relating to his request for compensation for unjustified       conviction;         unanimously,       DECLARES INADMISSIBLE the remainder of the application.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber