EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 26614/95

Edward Humen

against

Poland

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

26614/95 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-37)              3

A. The particular circumstances of the case

(paras. 17-33)              3

B. Relevant domestic law

(paras. 34-37)              5

III. OPINION OF THE COMMISSION

(paras. 38-59)              6

A. Complaint declared admissible

(para. 38) 6

B. Point at issue

(para. 39) 6

C. As regards Article 6 para. 1 of the Convention

(paras. 40-58)              6

CONCLUSION

(para. 59) 9

DISSENTING OPINION OF Mr E. ALKEMA JOINED BY Mrs G.H. THUNE,

MM F. MARTINEZ, I.C. BARRETO, P. LORENZEN AND A. ARABADJIEV 10

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              11

I. INTRODUCTION

A. The application

2. The applicant is a Polish citizen, born in 1950 and resident in Gdańsk in Poland.

3. The application is directed against Poland.  The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.

4. The case concerns the length of proceedings relating to the applicant's request for compensation for his unjustified conviction.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 7 April 1994 and registered on 3 March 1995.

6. On 16 January 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 1 April 1996.  The applicant replied on 5 June 1996.

8. 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.

9. On 3 December 1997 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention about the length of proceedings relating to his request for compensation for his unjustified conviction.  It declared the remainder of the application inadmissible.

10. The text of the Commission's decision on admissibility was sent to the parties on 12 December 1997 and they were invited to submit such further information or observations on the merits as they wished.  The parties did not avail themselves of this opportunity.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

13. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. On 5 January 1983 the Gdańsk Regional Court (Sąd 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 (Sąd Najwyższy ) upheld this judgment.

18. On 3 March 1993 the Supreme Court, upon an extraordinary appeal filed by the Prosecutor General ( Prokurator Generalny ), quashed the above-mentioned judgments and acquitted the applicant, finding that he had exercised his fundamental civil liberties as "he had taken part in a peaceful and patriotic manifestation".

19. On 13 April 1993 the applicant lodged a request based on Section 487 of the Code of Criminal Procedure with the Gdańsk Regional Court.  He sought compensation for his unjustified conviction in 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 Kwidzyń prison.

20. On 15 June 1993 the Gdańsk Regional Court requested the applicant to produce certain documents relating to his request.  On 30 July 1993 the court informed him 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 produced the documents in question on an unspecified date in September 1993 and requested the court to schedule a hearing.

21. On 6 November 1993 the Chief Justice of the Gdańsk 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.

22. 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 Gdańsk Court of Appeal (Sąd Apelacyjny ) which, on 23 December 1993, informed the applicant that his case would probably be dealt with in the first three months of 1994.

23. On 8 January 1994 the Gdańsk Regional Court, in reply to a subsequent complaint from the applicant, 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.

24. On 24 January 1994 the applicant again complained to the Gdańsk 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.

25. On 14 February 1994 the applicant complained to the Chief Justice of the Gdańsk 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.

26. On 28 March 1994 the applicant complained to the Minister of Justice about inactivity on the part of the Gdańsk Regional Court.

27. On 17 June 1994 the Gdańsk Regional Court held the first hearing in the applicant's case 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 for documentary evidence of financial loss (if any) sustained by the applicant as a result of the deprivation of his liberty and his subsequent conviction. The hearing was, accordingly, adjourned.

28. On 3 and 24 October 1994 the applicant complained to the Chief Justice of the Gdańsk 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  experts at the Faculty of Forensic Medicine of the Gdańsk Academy of Medicine.  Therefore, the date of the next hearing could not be fixed until the experts had submitted their reports.

29. 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 Gdańsk Academy of Medicine fixed the date of the examination for 22 December 1994.

30. 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 keep his appointment for the brain tomography examination.  Apparently in view of that fact, on 13 January 1995, the Gdańsk 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.

31. On 11 April 1995 the Chief Justice of the Gdańsk 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.

32. The Gdańsk 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 PLN 5,000.  On 5 July 1995, upon the applicant's appeal, the Gdańsk Court of Appeal quashed that decision and remitted the case to the court of first instance.

33. In the subsequent proceedings the Gdańsk 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 PLN 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 Gdańsk Regional Court and received the sum awarded, in cash.

B. Relevant domestic law

34. 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.

35. 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."

36. Section 488 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.  Cases relating to requests for compensation shall be given priority and no court fees shall be required from the person concerned."

37. 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 relevant principles set out in the Civil Code.  The person concerned is entitled to compensation for any financial loss (e.g. loss of work), damage to health and psychological harm resulting from the execution of the sentence or detention on remand.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

38. The Commission has declared admissible the applicant's complaint that the length of the proceedings relating to his request for compensation for his unjustified conviction exceeded "a reasonable time" within the meaning of Article 6 para. 1 of the Convention.

B. Point at issue

39. Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

40. Article 6 para. 1 of the Convention, insofar as relevant, states:

"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."

41. The applicant submits that the length of the proceedings in his case clearly exceeded a "reasonable time" within the meaning of Article 6 of the Convention.  He stresses that the Gdańsk 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 examination which resulted in the proceedings being substantially prolonged.

42. The Government maintain that in the light of the relevant criteria for the notion of a "reasonable time" within the meaning of Article 6 para. 1 of the Convention, deriving from the Convention organs' case-law, the length of the proceedings in the applicant's case before the Gdańsk Regional Court was reasonable and no irregularities can be found in the authorities' conduct.

43. They emphasise that the applicant's case was 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 caused by his detention.  As a result, the court needed to obtain documentary evidence relating to his business activity from his 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 with the help of reports by medical experts, who expressed the opinion that the applicant should undergo a brain tomography .

44. 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 Gdańsk Regional Court requested him to submit documents relevant to his claim as he had failed to enclose these with his request of 13 April 1993.  The applicant produced 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 failed to undergo the brain tomography on 22 December 1994 and, subsequently, refused to undergo it, although it had already been rescheduled for April 1995.  This delayed the preparation of the experts' report.

45. In the Government's opinion, 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 Gdańsk Regional Court and the shortage of staff at that court.  The Gdańsk Regional Court was confronted with a larger number of such requests than courts in other regions of Poland, as many convictions rendered by the courts of the Gdańsk region under martial law were subsequently quashed as unjustified.

46. The Government conclude that the Gdańsk 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 resumed the proceedings, which had been stayed after the applicant had failed to undergo this examination, as soon as possible.

47. The Commission observes, first, that it has already found in its decision on admissibility that Article 6 of the Convention is applicable in respect of the proceedings in question, as they concerned a dispute over a right recognised under Polish law, namely to financial reparation for pecuniary and non-pecuniary damage arising from unjustified conviction.  It also found that the nature of the dispute was "civil", regardless of its origin and the fact that the criminal courts had jurisdiction (see Eur. Court HR, Georgiadis v. Greece judgment of 29 May 1997, to be published in Reports of Judgments and Decisions 1997, para. 34 et seq. and, a contrario , Eur. Court HR, Masson and Van Zon judgment of 28 September 1995, Series A no. 327-A, pp. 19 et seq., paras. 48 et seq.).

48. The Commission notes that these proceedings commenced on 13 April 1993, when the applicant lodged a request under Section 487 of the Code of Criminal Procedure and came to an end on 26 March 1996, when the decision on his request became final.  However, as the Commission has found in its above-mentioned decision on admissibility, it can, by reason of its competence ratione temporis , examine the applicant's complaint only insofar as it relates to the course of the proceedings from 1 May 1993 (i.e. the date on which Poland's declaration acknowledging the right of individual petition took effect) onwards.  Accordingly, the length of the proceedings to be examined under Article 6 para. 1 of the Convention is two years and nearly eleven months.

49. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Convention organs' case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see Eur. Court HR, Proszak v. Poland judgment of 16 December 1997, to be published in Reports of Judgments and Decisions 1997, para. 32).

50. It further reiterates that Article 6 para. 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time.  Moreover, a temporary backlog of court business does not entail a Contracting State's international liability if it takes appropriate remedial action with the requisite promptness (see Eur. Court HR, Pammel v. Germany judgment of 1 July 1997, to be published in Reports of Judgments and Decisions 1997, paras. 68-69).

51. In the present case the only issue to be determined by the courts concerned was the assessment of any damages to which the applicant was entitled for his imprisonment.  In the Commission's opinion the case was not, therefore, a complex one.

52. Moreover, according to Section 488 para. 2 of the Polish Code of Criminal Procedure, cases involving compensation for unjustified conviction should be given priority.  Since the domestic law expressly required that such cases should be conducted speedily, the domestic courts were expected to display particular diligence in dealing with the applicant's request.

53. As regards the applicant's conduct, it is true that on 15 June 1993 the Gdańsk Regional Court requested him to produce documents relating to his claim and that he submitted them on an unspecified date in September 1993, i.e. after a lapse of three months.  However, it does not appear that this delayed preparations for the hearing  since even on 6 November 1993 the authorities were still unable to foresee when any hearing could be scheduled (see paras. 20-21).

54. It is also true that on 22 December 1994 the applicant failed to undergo the brain tomography examination recommended by the experts and, subsequently, in April 1995, he refused to undergo it.  However, at this time the court already had expert evidence at its disposal.  Moreover, as the burden of proof in respect of the claim lay with the applicant, the court could have decided his case on the basis of the evidence before it.  Nor does it appear that this examination was in fact necessary or relevant for the outcome of the proceedings since, in the end, the courts determined the applicant's claim without it (see paras. 29-32).

55. Accordingly, the Commission considers that it cannot be said that the applicant's conduct materially contributed to the overall length of the proceedings.

56. In respect of the conduct of the authorities, the Commission observes that there were two substantial periods of inactivity on the part of the Gdańsk Regional Court, both during the initial stage of the proceedings.  The first hearing was held in the applicant's case as late as 17 June 1994, i.e. more than fourteen months after his request had been submitted.  On the same day the court ordered that evidence from medical experts be taken.  As a consequence, the case remained adjourned until 2 June 1995, that is to say for almost one year.  It took the court more than four months to send the case-file to the experts (from 17 June to 20 October 1994).  Subsequently, the courts waited for the results of the brain tomography examination which, as the Commission has already noted, eventually seemed to be unnecessary for the determination of the claim (see paras. 28-29 and 32).

57. In the Commission's view, neither the backlog of similar cases in the GdaÅ„sk Regional Court, nor the shortage of staff at that court provide a plausible explanation for the delay of more than two years at an early stage of the proceedings.  Moreover, in this respect the Government did not adduce any evidence showing that the authorities took any remedial action aimed at improving the situation, created by an overload of similar cases, in the GdaÅ„sk Regional Court.    

CONCLUSION

   M.-T. SCHOEPFER                               J.-C. GEUS

      Secretary                                   President

to the Second Chamber                      of the Second Chamber

(Or. English)

DISSENTING OPINION OF Mr E. ALKEMA JOINED BY Mrs G.H. THUNE,

MM F. MARTINEZ, I.C. BARRETO, P. LORENZEN AND A. ARABADJIEV

We have voted against the Commission's conclusion that there has been a violation of Article 6 para. 1 of the Convention in the present case.  Our reasons are as follows.

Firstly, the overall period relevant under Article 6 under the Convention, involving twice the court of first instance and once the court of appeal, did not last long. It started on 13 April 1993, whereas from 1 May 1993 Poland's declaration acknowledging the right of individual petition took effect. It ended on 18 March 1996 when the court's decision was served on the applicant - rather then on 26 March 1996 the day at which the decision became final (see  48 of the report). Thus, it lasted a little less than three years.

Secondly, a delay of almost five months was attributable to the applicant, who refused to undergo a brain tomography (see  29-32). In this respect we do not share the majority's view expressed in  54 that the court could have decided the matter on the basis of the evidence before it. That it - in the end -  had to do so was only due to the applicant's refusal to cooperate.

Admittedly, the first hearing in the case was only held at 17 June 1994 i.e. after more than fourteen months. Nevertheless, generally, the courts acted with due speed and without any substantial delays.

Therefore, in our opinion, Article 6 para. 1 of the Convention has not been violated.