CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 mai 2000

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Ress, President ,   Mr   A. Pastor Ridruejo,   Mr   J. Makarczyk,   Mr   V. Butkevych,     Mrs   N. Vajić,   Mr   J. Hedigan,   Mrs   S. Botoucharova, judges , and   Mr   V. Berger, Section Registrar ,     Having regard to the above application introduced with the European Commission of Human Rights on 9 May 1995 and registered on 6 May 1996,     Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,     Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,     Having deliberated, decides as follows: THE FACTS     The applicant is a Polish national, born in 1930 and living in Chicago, USA. He is represented before the Court by Mr   Zbigniew Cichoń, a lawyer practising in Kraków, Poland.   A.   The circumstances of the case     The facts of the case, as submitted by the parties, may be summarised as follows.     H.K., the applicant's brother, had been a member of the Polish resistance troops of the underground National Armed Forces ( Narodowe Siły Zbrojne ), commonly referred to as the “NSZ”. The NSZ had been founded in September 1942 and, originally, formed partisan forces fighting the Germans during the Second World War. At the end of 1943 the NSZ's command, considering that the defeat of the Germans was inevitable, decided that the main enemy was the communist Soviet Union and ordered that, from that time on, the NSZ should direct its attacks against the Red Army and the Polish communist partisan forces. After the liberation of Poland, some of the NSZ armed forces retreated to the West, while others, after being ordered not to attack the Red Army directly, established an underground resistance movement against the communist government. On 10 February 1948 H.K. was convicted by the Warsaw District Military Court ( Wojskowy Sąd Rejonowy ) in connection with, inter alia , his membership of the NSZ, which was considered an illegal organisation established with the aim of subverting the political and legal system of the State. He was sentenced to seven years' imprisonment and served his sentence to an unspecified date. On 7   August 1956 he was shot dead by a militia officer.     On 3 September 1993 the applicant lodged an application under section 3 § 1 of the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland ( Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu Państwa Polskiego ) (“the 1991 Act”) with the Warsaw Regional Court ( Sąd Wojewódzki ), seeking to have his late brother's conviction of 10 February 1948 declared null and void. Shortly afterwards, the court decided that the applicant's request would be examined together with a similar application, which had been lodged by the widow of his brother's co-defendant on 24 June 1993.     On 27 December 1993 the applicant's lawyer requested the court to fix a date for a hearing as soon as possible, submitting that his client was an elderly person suffering from various ailments and that the court should therefore give priority to his case.     On 9 November 1994 the applicant's lawyer again requested the Warsaw Regional Court to fix a date for a hearing, maintaining that his previous request had been to no avail and that the period of total inactivity on the part of that court had, in the meantime, exceeded one year.     On 21 November 1994 the Deputy Chief Judge of the Criminal Division of the Warsaw Regional Court informed the applicant that 10,000 similar applications had been lodged with that court during the previous three years. This had created inevitable organisational problems as the judges of the Criminal Division were doubly overburdened: by the number of criminal cases which they had to deal with as their normal work and by the extra work arising from the significant number of cases concerning applications for wrongful convictions to be declared null and void. Moreover, as far as possible, the court was giving priority to applications lodged by living victims of repression and, therefore, it had to postpone the examination of those lodged on behalf of deceased victims. However, and in any event, there was no possibility of clearing the existing backlog within the next few years.   On 7 April 1998 the Warsaw Regional Court listed a hearing in the applicant's case for 25 May 1998. On 25 May 1998 the court annulled the conviction of 10 February 1948 insofar as it concerned the charges relating to activities regarded as having been aimed at achieving independence for Poland. Since no party to the proceedings appealed within the statutory time-limit of seven days, the first-instance decision became final on 2   June   1998.   B.   Relevant domestic law and practice   The Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland sets out rules concerning the conditions under which certain politically-motivated convictions rendered from 1   January 1944 to 31 December 1956 can be declared null and void, and provides for the State's civil liability for such convictions. Section 1 § 1 of the Law provides, insofar as relevant:   "     Convictions or other decisions rendered by the Polish judicial, prosecuting or extra-judicial authorities during the period ... lasting from 1 January 1944 to 31 December 1956 shall be declared null and void if the offence with or of which the person concerned was charged or convicted related to activities undertaken by him with the aim of achieving independence for Poland, or if the decision in question was taken on the ground that he had undertaken such activity. The same applies to persons convicted of resisting the collectivisation of farm land and compulsory contributions of foodstuffs."     Under section 2 of the Law, a regional court or, in cases concerning military offences, a regional military court, is competent to deal with requests lodged under section 3 of the Law. Section 3 states, insofar as relevant:   "1.     A conviction or decision [referred to in Section 1 § 1] shall be declared null and void on an application lodged by [one of the following persons]: the Ombudsman, the Minister of Justice, a prosecutor, a victim of repression or any person authorised by law to lodge an appeal on his behalf; where a victim of repression has since died, or he has left the territory of Poland, or is mentally ill, such an application may be lodged by any of his close relatives: ... siblings or spouse, or by an association of persons persecuted for activities undertaken by them with the aim of achieving independence for Poland.   2.     The court shall determine the case at a hearing on the basis of the case-file of the organ which made the original decision. It may, where necessary, obtain additional evidence.   3.     A party entitled to file an application under paragraph 1 shall be entitled to appeal against a decision on whether or not the original decision should be declared null and void.   4.     Unless otherwise provided, the provisions of the Code Of Criminal Procedure shall apply by analogy to the proceedings [relating to applications under paragraph 1]; however, a prosecutor must participate in the hearing. A victim of repression [and other persons entitled under § 1 to lodge an application] or, with the court's leave, other persons may participate in the hearing. The court shall record the course of the hearing in the minutes."     According to section 2 § 1 in fine of the Law, a decision declaring the original conviction null and void shall be tantamount to a verdict of acquittal.       If such a conviction is declared null and void, a victim of repression is entitled, under section 8 § 1 of the Law, to compensation from the State Treasury for his wrongful conviction. This provision states:   "     A person whose conviction has been declared null and void shall be entitled to compensation from the State Treasury for pecuniary and non-pecuniary damage which he has suffered as a consequence of his conviction. Where the person concerned has since died, this entitlement shall be vested in his spouse, children and parents."   On 21 May 1993 the 1991 Act was amended to the effect that its provisions from that date on became applicable to persons who had been persecuted or convicted for political reasons by the Stalinist Soviet authorities by virtue of an agreement concluded on 26 July 1944 between the Polish Committee of National Liberation (“ PKWN” Polski Komitet Wyzwolenia Narodowego ) and the government of the USSR. Under that amendment, only the Warsaw Regional Court was competent to deal with applications lodged by this group of repressed or wrongly-convicted persons. Later, on 3 February 1995, the 1991 Act was again amended; this time to the effect that all regional courts could deal with applications lodged by such persons. The second amendment took effect on 1 April 1995.   COMPLAINT   The applicant complains under Article   6 § 1 of the Convention that the length of the proceedings in the Warsaw Regional Court relating to his application for his late brother's conviction to be declared null and void exceeded a “reasonable time” within the meaning of this provision.   PROCEDURE     The application was introduced on 9 May 1995 before the European Commission of Human Rights and registered on 6 May 1996.     On 9 September 1998 the Commission decided to communicate the application to the respondent Government.     On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.     The Government written observations were submitted on 13 November 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 15 December 1998. The Government submitted their supplementary observations on 9 February 1999.     On 7 July 1999 the President of the Chamber granted legal aid to the applicant.     On 25 April 2000 the Government submitted a translation of their observations of 13   November 1998. THE LAW   The applicant complains under Article   6 § 1 of the Convention that the length of the proceedings in the Warsaw Regional Court relating to his application for his late brother's conviction to be declared null and void exceeded a “reasonable time” within the meaning of this provision.     Article 6 § 1 stipulates, insofar as relevant:     “     In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by ... [a] tribunal. ...”   a)   Applicability of Article 6 § 1     The Government, in their pleading of 13 November 1998, maintain that proceedings initiated under the provisions of the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland are, for the purposes of Article 6 § 1 of the Convention, criminal proceedings with special features. They are conducted before a criminal court, under the rules of criminal procedure and their object is to determine whether or not certain convictions should be declared null and void on the ground that they were not instances of the fair administration of justice but forms of political repression. However, what is at stake for an applicant in such proceedings is in fact the moral satisfaction of obtaining the annulment of a wrongful conviction. Accordingly, in the Government's words, Article 6 may be applicable to the present case “only to some extent”.     The applicant submits that he agrees with the Government that Article 6 § 1 applies to the proceedings under its criminal head. In his view, however, the purpose of the proceedings complained of is not to afford moral satisfaction to the victims of political repression but to redetermine criminal charges unjustifiably laid against them in the period of totalitarian lawlessness.     Replying to the applicant's submissions, in their pleading of 9   February 1999, the Government however maintain that, insofar as the applicant himself was concerned, in the framework of the proceedings complained of no “criminal charge against him” was to be determined. On this basis, the Government argue that Article 6 – if it is indeed applicable – would apply only under its civil head.     The Court notes that the parties, although for not the same reasons, have conceded that Article 6 § 1 is applicable to the present case. It nevertheless considers it necessary to examine that issue and finds that Article 6 § 1 applies for the following reasons.     The Court accepts that, in general, the relevant proceedings have features similar to proceedings relating to an appeal against conviction as they can result either in the contested conviction being annulled (which under domestic law amounts to an acquittal) or in such conviction being – for all practical purposes – upheld. Therefore, for a victim of political repression who was convicted under totalitarian law, proceedings which he has set in motion under the 1991 Act will have the effect of redetermining the charges laid against him. They will not, however, have the same effect for anyone who, like the applicant in the present case, seeks to have the conviction of his relative annulled because, as the Government pointed out, they simply do not concern a “criminal charge against him”.   It emerges from the Court's case-law that Article 6 applies under its “civil head” if there was a “dispute” (“ contestation” ) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. That dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. The Court must also be satisfied that the result of the proceedings at issue was directly decisive for the right asserted (see, mutatis mutandis , the Georgiadis v. Greece judgment of 29 May 1997, Reports 1997-III, p. 958-59, §   30, and the Rolf Gustafson v.   Sweden judgment of 1 July 1997, Reports 1997-IV, p. 1160, § 38).   On the question of whether or not a given right is “civil” for the purposes of Article 6   §   1, the Court has consistently held that the concept of “civil rights and obligations” is not to be interpreted solely by reference to the respondent State's domestic law and that this provision applies irrespective of the status of the parties, the character of the legislation which governs how the dispute is to be determined and the character of the authority which is invested with jurisdiction in the matter (see the Georgiadis judgment cited above, § 34, ibid.).   Applying the above criteria to the present case, the Court observes that, regardless of how under Polish legislation the 1991 Act is characterised, section 3 § 1 of the Act entitles both certain public authorities – for instance the Minister of Justice – and close relatives of a deceased victim of political repression to seek on his behalf a review of his criminal conviction, on the same conditions as those laid down for the victim itself. It can therefore be said that Polish law not only acknowledges the State's responsibility for a miscarriage of justice but also recognises and protects a right to obtain, retrospectively, the acquittal of a deceased member of one's family if his conviction was in fact not the result of a lawful finding that he was guilty of a criminal offence but a form of State persecution for activities against the totalitarian system.   Furthermore, section 8 § 1 of the 1991 Act distinguishes between two categories of close relatives: those for whom the outcome of the proceedings is decisive for their pecuniary rights since, after the retrospective acquittal of a deceased victim of repression, they have a right to obtain compensation for his wrongful conviction (that is, his spouse, children or parents) and those who, like the applicant (a sibling), are not entitled to any financial reparation.   In the Court's view, the fact that the outcome of the proceedings concerned was not decisive for the applicant's pecuniary rights does not remove them from the scope of the civil limb of Article 6 § 1 and strip them of their “civil” nature. It considers that although the sentence of acquittal which the applicant sought, and obtained, allows him in the first place to clear his brother's name in the eyes of the law and of the public, it also allows the applicant himself to restore the honour and reputation of his family, which was for a long time inevitably tarnished in the public esteem and brought into disrepute by his brother's wrongful conviction.   On that basis, the Court concludes that the result of the proceedings in issue was decisive for rights which by their very nature were civil, namely, the applicant's right to enjoy a good reputation and his right to protect the honour of his family and restore its good name.   b)   Compliance with the “reasonable time” requirement     The Government maintain that the proceedings were completed “within a reasonable time”, as required by Article 6 § 1.     They point out that complicated issues of fact and law were involved in the examination of the case. In such cases it is often necessary to reconstruct parts of the case-file or, under section 3 § 2 of the 1991 Act, to obtain fresh evidence. Such cases must sometimes be examined jointly with other cases. For instance, the applicant's case was examined together with the application of another person.     The Government further submit that the significant number of similar applications lodged with the Warsaw Regional Court resulted in the court's facing an excessive workload. This, in turn, inevitably created a backlog of pending cases, both ordinary criminal ones and those relating to wrongful convictions. In this respect the Government also stressed that, when the applicant lodged his application, in the Warsaw Regional Court there was no separate section dealing with the annulment of wrongful convictions, such a section only being set up as late as 1 October 1995. They further submit that the Parliament committed a legislative mistake, amending the 1991 Act in such a way that, from 21 May 1993 to 1 April 1995, only a single court, namely the Warsaw Regional Court, could deal with applications for the annulment of convictions rendered by the Stalinist Soviet authorities.     The results of this mistake, they add, are demonstrated by the relevant statistics, which the Government cite, stressing that in 1993 there were 3,500 similar applications lodged with the Criminal Division of the Warsaw Regional Court, in 1994 there were 6,337, in 1995 there were 1,700, in 1996 and 1997 less than a thousand and, in 1998, only 388 as of 2 October 1998.     In the Government's opinion, the trial court did what could reasonably be expected of it. It decided that cases had to be classified according to their urgency and importance and therefore gave priority to applications submitted by living victims of repression. This criterion did not militate in favour of an immediate examination of the applicant's case.     Basing their argument on, among other authorities, the Zimmerman and Steiner v.   Switzerland judgment (Series A no. 66, § 29), the Government maintain that this temporary backlog of the court's business cannot be seen as involving the liability of the State authorities because they took, with the requisite promptness, remedial action aimed at improving the exceptional situation in the Warsaw Regional Court.     Lastly, the Government submit that they entertain doubts as to whether the applicant was indeed interested in the result of the proceedings because, after obtaining the letter of 21   November 1994, informing him where matters stood in the case, he remained totally passive.     The applicant does not agree with the Government that the case was complex. He submits that the trial court did not need to deal with any questions of fact, nor did it obtain fresh evidence. The ruling was based on an evaluation of whether the conviction in issue was lawful or wrong and to decide that the court needed to hold only one hearing.     In the applicant's view, the Government have not adduced valid arguments to justify a delay of nearly five years in determining such a simple case. In particular, neither the caseload in the trial court, nor the Parliament's erroneous decision to overburden the Warsaw Regional Court with extra work, nor the late decision to set up a special section dealing with wrongful convictions in that court can absolve the authorities from their responsibility for the slow conduct of the proceedings in issue.     The applicant goes on to argue that the Government, when relying on the Zimmermann and Steiner judgment, appear to overlook that the “remedial action” referred thereto must be “prompt” and result in the efficiency of the court being improved. The measures taken by the Polish authorities were late, not satisfactory and in no way resulted in his case being dealt with more expeditiously.     Referring to the Government's suggestion that his own conduct was passive, the applicant observes that it is difficult to see what else he could have been expected to do to accelerate the proceedings after his two previous requests for a hearing date to be fixed had been unsuccessful and the trial court had informed him that clearing the backlog would take several years.     In conclusion, the applicant invites the Court to find that the “reasonable time” requirement was not complied with in his case.     The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.       For these reasons, the Court, unanimously,     DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.             Vincent Berger   Georg Ress   Registrar   President