AS TO THE ADMISSIBILITY OF

Application No. 31387/96

by Czesław KLINIECKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting in private on 21 October 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

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 25 September 1994 by Czesław KLINIECKI against Poland and registered on 6 May 1996 under file No. 31387/96;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1948, is a mechanic residing in Kuźnia Raciborska , in Poland.

The facts of the case, as submitted by the applicant, may be summarised as follows:

Since 1974, the applicant has been running an animal farm.  In 1990 he set up the GEM limited liability company ( spółka z ograniczoną odpowiedzialnością), which exported furs.

On 17 March 1992, while the applicant was abroad, a fire broke out in his warehouse and during the same night a significant number of furs were stolen.  The applicant turned to the General Insurance Company for compensation.  On the basis of an expert opinion his loss was estimated as amounting to 1 billion 500 million zloty .

The applicant was detained by the Racibórz District Prosecutor on 26 July 1992 on suspicion of having committed fraud on various occasions, in particular by having requested undue compensation from the insurance company, and by having presented documents attesting an incorrect estimation of the value of his property.  He was also suspected of having requested credits on behalf of his company after the bankruptcy proceedings against it had been instituted.

On 26 July 1992 the Racibórz District Prosecutor found that there was a reasonable suspicion that the applicant had committed the offences at issue.  The Prosecutor also found that the amounts involved were significant, and that there was a danger that the applicant might try to obstruct the investigation.  As a result, the Prosecutor ordered the applicant's detention on remand.

On 31 July 1992 the applicant appealed against this decision and requested his release.  His appeal was dismissed on an unspecified date. 

On 17 November 1992, after the applicant had been acquainted with the files of evidence against him, he filed a request for release and for the application of less severe preventive measures such as police supervision or bail.

On 24 November 1992 the Racibórz Prosecutor dismissed this request on the grounds that certain letters of the applicant addressed to his father, which had been intercepted, contained information aiming at obstructing the investigation.  The Prosecutor also found that the letters contained insulting and untrue statements about the Prosecutor's conduct.

On the same day the applicant filed yet another request for release in which he argued that, in respect of the danger of obstructing the investigation, the applicant had had several occasions to meet his father in person on the basis of the permission issued to him by the Prosecutor.

As to the offensive remarks relating to the conduct of the Racibórz District Prosecutor, the applicant observed that apparently personal considerations must have played a part in the decision of the Prosecutor.

The request for release was dismissed by the Prosecutor on an unspecified date.

On 2 December 1992 the Prosecutor filed a bill of indictment with the Katowice Regional Court (SÄ…d Wojewódzki w Katowicach ).  The trial was held on 23-24 February, 9 March, 25 May, 2 July and 6, 24 and 27 August 1993.

While the case was pending before the Katowice Regional Court, the applicant filed new requests for his release.  They were dismissed by the Katowice Regional Court on 25 May 1993 and 2 July 1993.

On 27 August 1993 the Katowice Regional Court convicted the applicant for concealing certain information concerning the financial situation of his company in order to obtain credit from a bank and for acting to the detriment of his company.  The court acquitted the applicant of the remaining charges, in particular the main charge concerning the request for undue compensation from the insurance company.  The applicant was sentenced to eighteen months' imprisonment and a fine of 30 million zloty .  

On the date, when the first instance judgment was rendered, i.e. 27 August 1993, the applicant was released from the detention.

Both the applicant and the Prosecutor appealed against this judgment.

On 17 March 1994 the Katowice Court of Appeal partly set aside the judgment as to the applicant's acquittal and referred the case back to the Regional Court.  The Court of Appeal noted, inter alia , that the previous court had wrongly assessed the evidence before it.

On 31 March 1995 the applicant complained to the District Prosecutor about several articles published in local newspapers in 1992.  One of these articles entitled "Cheating Insurance Company - unduly obtained 1 billion 300 million zloty " contained the following statements:

"The District Prosecutor accuses Czesław K. of having cheated the State Insurance Company to the amount of 1 billion 300 million zloty .  On 2 December the case went to the court."

Other articles invoked by the applicant were entitled: "Insurance quack" and "Hay businessman".

In his response of 12 April 1995 the Prosecutor informed the applicant that disclosing certain particulars of pending investigations was lawful and served the public interest.  The information disclosed by him was objective, and based on evidence.  Moreover, the press articles had not been authorised by him so certain shortcomings could not be attributed to him.

The applicant introduced a further civil action on an unspecified date in 1995.  The proceedings are apparently still pending.

On 23 February 1996, a new judgment was handed down by the Katowice Regional Court, which found the applicant guilty of additional offences and sentenced him to further eighteen months' imprisonment.             

The applicant appealed against this decision.  On 29 October 1996 the Katowice Court of Appeal upheld the judgment.

On 20 December 1996 the applicant filed a cassation appeal.  On 17 June 1997 the Supreme Court (SÄ…d Najwyższy ) set aside the judgment of the Katowice Regional Court and ordered the latter to reconsider the case.

The case is currently pending before the Katowice Regional Court.

COMPLAINTS

1. The applicant complains under Article 5 para. 3 of the Convention about the length of his detention on remand, which, in his view was unjustified, in particular at the later stage of the investigation, when the evidence was completed.

2. The applicant complains under Article 6 para. 1 of the Convention about the undue length of the criminal proceedings.

3. He furthermore complains under Article 6 para. 1 of the Convention that the proceedings were unfair, and had been instituted on the basis of anonymous and untrue information.

4. Finally, the applicant complains under Article 6 para. 2 of the Convention about a breach of the presumption of innocence by the Public Prosecutor who enabled the press to publish information concerning his case.

THE LAW

1. The applicant complains under Article 5 para. 3 of the Convention that his detention on remand was unjustified at the advanced stage of the investigation, and lasted unduly long.

Article 5 para. 3 of the Convention reads:

"Everyone arrested or detained in accordance with the provisions of para. 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial."

However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision, as Article 26 of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".

In the present case the detention on remand ended on 27 August 1993, whereas the application was submitted to the Commission on 25 September 1994, that is, more than six months later.

It follows that this complaint must be rejected under Article 27 para. 3 of the Convention.

2. The applicant complains under Article 6 para. 1 of the Convention that the criminal proceedings against him lasted unduly long.

Article 6 para. 1 of the Convention reads:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ..."

With regard to this complaint the Commission considers that further information is required and that the Government's observations on the application should be obtained under Rule 48 para. 2 (b) of the Commission's Rules of Procedure.  Accordingly, the Commission reserves the examination of this part of the application.

3. The applicant also complains under Article 6 para. 1 of the Convention about the unfairness of the respective proceedings.

However, the Commission notes that the proceedings complained of are still pending and therefore the complaint about their unfairness is premature.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

4. The applicant complains under Article 6 para. 2 of the Convention that the articles published in the local newspapers on the basis of a press release of the public prosecutor prejudged his guilt before he was convicted.             

Article 6 para. 2 of the Convention reads:

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

The Commission recalls 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 of the rights recognised in the Convention through any act, decision or event  having occurred after 30 April 1993". As the articles complained about by the applicant were published in December 1992 and the press release by the prosecutor was issued shortly before that date, the Commission finds that the complaint is outside its competence ratione temporis .

It is true that in 1995 the applicant complained to the District Prosecutor about these press articles and he submits that he instituted a civil action in this respect.  However, he failed to demonstrate that he pursued either his complaint to the Prosecutor or his civil claim and that he obtained a final decision.  Therefore, the complaint must be rejected for non-exhaustion of domestic remedies according to Article 27 para. 3 of the Convention. 

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaint about the length of criminal proceedings against him;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

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

      Secretary                                                              President

to the Second Chamber                                  of the Second Chamber