Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26766/95

by Slawomir PAPIEWSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 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 24 August 1994 by

Slawomir Papiewski against Poland and registered on 20 March 1995 under

file No. 26766/95;

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 16

September 1996 and the observations in reply submitted by the

applicant on 13 November 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1942, is a civil servant

residing in Ryki.

The facts of the case, as submitted by the parties, may be

summarised as follows:

A. Particular circumstances of the case

In January 1990 the applicant paid 13,000,000 zlotys to the "D."

company as a loan for one year, with 250 per cent of interest provided

for in the contract between the applicant and the company. Later in

1990 the owner of the company, L.G., left Poland, having embezzled all

the funds deposited with his company.

On 29 October 1990 the Warsaw District Court (S*d Rejonowy)

adjudged thirteen million zlotys to the applicant in civil proceedings

against the "D." company.

On 7 May 1993 the applicant requested the Warsaw Regional Court

(S*d Wojewódzki), Economic Division, to include his unenforced claim

of thirteen million zlotys in the list of the "D." company's debts in

the bankruptcy proceedings.

On 10 May 1993 the applicant filed a civil claim against L.G.,

to be ruled on in the criminal proceedings against L.G., claiming the

sum of two hundred fifty-one million zlotys, consisting in the main

claim owed to him and legal interest accumulated since 1990.

At an unspecified later date the Court, pursuant to Article 55

of the Code of Criminal Procedure, refused to entertain civil actions

against L.G. within the framework of criminal proceedings, including

the applicant's action.

On 8 February 1994 the applicant complained to the Minister of

Justice that it had proved impossible for him to have the 1990 judgment

enforced as the defendant did not possess any property, and about the

length of the criminal proceedings against L.G.

On 16 March 1994, in reply to the applicant's complaint, the

Warsaw Court of Appeal (S*d Apelacyjny) informed him that the criminal

proceedings against L.G. were pending before the Regional Court and

that an expert opinion of an auditing specialist had been ordered. The

proceedings had been adjourned and no date had been fixed for the next

hearing.

On 30 September 1994 the applicant again complained to the

Minister of Justice about the length of the criminal proceedings

against L.G. which made it impossible to have his civil claim decided,

and of the impossibility to have the 1990 judgment enforced.

On 25 October 1994 the Warsaw Court of Appeal informed the

applicant that the criminal case was complex and that the date for the

next hearing would be set soon, the expert opinion having been

prepared.

On 29 March 1996 the Warsaw Regional Court convicted L.G. of

aggravated fraud committed from 17 November 1989 to 11 May 1990 and

sentenced him to twelve years imprisonment and a fine. The Court also

ordered L.G. to pay 801,811 zlotys as compensation to the estate in

bankruptcy.

On 7 October 1996 the manager of the estate in bankruptcy paid

to the applicant a sum of 781 zlotys (7,810,000 before the reform of

Polish currency of 1 January 1996) to satisfy his claim against the

"D." company registered on the creditor's list.

B. Relevant domestic law

Articles 52 to 60 of the Polish Code of Criminal Procedure set

up a legal framework for civil claims to be ruled on in criminal

proceedings. A person affected by a criminal offence may bring a civil

action, concerning civil claims arising from the offence, to be ruled

on by a court in criminal proceedings. Pursuant to Article 55, the

court may allow the civil action or refuse to entertain it. If an

action has been allowed, the injured person can join the proceedings

as a plaintiff. In such proceedings the plaintiff may only put forward

such evidence as is necessary to establish the circumstances on which

his or her claim is based. In certain circumstances the court, when

pronouncing judgment in the criminal proceedings, may decline to rule

on the civil claim. If the court does so, the plaintiff can request

within 30 days that the case be transferred to a civil court. The date

of filing the civil claim with the criminal court will then be regarded

as the date on which the claim was filed with the civil court.

Regarding the determination of the civil claim, the provisions

of the Code of Civil Procedure apply to the proceedings before the

criminal court.

COMPLAINTS

The applicant complains under Article 6 of the Convention about

the length of the criminal proceedings against L.G., in which he filed

a civil claim against the accused. He submits that the superior court

and the Ministry of Justice did not take any steps to accelerate the

proceedings.

He complains that the court's failure to rule in the case against

L. G. amounts to a lack of respect for his family life within the

meaning of Article 8 of the Convention as he has been deprived of

significant financial means.

Under Article 1 of Protocol No. 1 to the Convention he complains

that he cannot enforce the judgment of 29 October 1990 against the "D."

company as it has no property. He further submits that the State

should have taken appropriate legislative measures in order to make it

impossible for citizens to fall prey to fraud in such circumstances as

in his case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 August 1994 and registered

on 20 March 1995.

On 15 May 1996 the Commission decided to communicate the

applicant's complaint concerning the length of the proceedings to the

respondent Government.

The Government's written observations were submitted on

16 September 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 13 November 1996.

THE LAW

1. The applicant complains under Article 6 (Art. 6) of the

Convention about the length of the criminal proceedings against L.G.,

in which he filed a civil claim against the accused.

Article 6 (Art. 6) of the Convention in its relevant part reads:

"1. In the determination of his civil rights and obligations ...

everyone is entitled to a fair ... hearing within a reasonable

time by (a)... tribunal..."

The Government submit that the applicant cannot claim to be

a victim of the alleged violation of Article 6 para. 1 (Art. 6-1) of

the Convention as regards the length of the criminal proceedings

against L.G. This is so, firstly, as the criminal charges against L.G.

concerned allegations of fraud committed to the detriment of the "D."

company, not to the detriment of any individuals. Consequently, the

applicant could not suffer any disadvantage by the alleged length of

these proceedings. This argument applies with all the more force as

the applicant's civil claim against the company has been dealt with in

civil proceedings in which the court found in his favour and ordered

the company to pay him the sums deposited with the company.

The Government further emphasise that the applicant was not

a party to the criminal proceedings against L.G. either as a plaintiff

or as a private prosecutor. This was so as the Warsaw Regional Court

refused to entertain his civil action in these proceedings, pursuant

to Article 55 of the Code of Criminal Procedure. The Court considered

that the indictment against L.G. had charged him with fraud to the

detriment of the "D." company and not to the detriment of any

individuals. There was, therefore, no plausible causal link between

any damage suffered by any individuals and the charges which were to

be examined in the criminal proceedings. The Government contend that,

consequently, the outcome of these proceedings could not affect in any

manner the applicant civil rights. The same holds true for the length

of these proceedings, regardless of their actual duration, which, in

any event, was not excessive.

The Government note that the claims against an estate in

bankruptcy are subject to a separate regulation and that the

applicant's civil claim as confirmed by the Warsaw Regional Court's

judgment of 29 October 1990 was submitted to the court in such

proceedings concerning the "D." company. Such proceedings constitute

a relevant remedy as regards the applicant's civil claim.

The Government conclude that this complaint should be declared

inadmissible for being incompatible ratione personae with the

Convention.

The applicant submits that the Government's argument as to the

application's incompatibility ratione personae with the Convention is

unacceptable as it sanctions impractical and defective legal

regulations which, in particular, make individuals vulnerable to fraud

in circumstances similar to the L.G. case. The law should primarily

aim at compensation of damage suffered by an individual as a result of

such fraud. Consequently, the Government should not base their

argument on formal considerations. Under relevant Polish regulations

he did not have effective access to a court which would rule on his

civil claim as the Warsaw Regional Court refused to entertain his civil

action in the criminal proceedings against L.G. He was thus deprived

of a forum where he could personally present his arguments and

submissions to a court. Consequently, he was deprived of a possibility

of claiming satisfaction and the right to peaceful enjoyment of

property was infringed.

The applicant further submits that even though he was not a party

to the proceedings against L.G., he had a practical legal interest in

their ending promptly. He maintains that the Government's reasoning

condones the incompatibility of Polish law with international

conventions, and with the European Convention of Human Rights in

particular. As the Polish constitutional order does not expressly

provide for direct applicability of international instruments by the

courts, regardless of the Constitutional Court's judgment of 7 January

1992, the legal system does not ensure respect for human rights.

The applicant complains that his financial claim was not

satisfied, either in the criminal proceedings against L.G. or in any

other proceedings which were conducted before the Polish courts.

The applicant finally submits that the Government's submissions

are theoretical and that they fail to take into account the

particularities of his individual situation.

The Commission first recalls that even if criminal proceedings

concern in the first place the determination of a criminal charge

against a third person, their result could in this case be directly

decisive for establishing the applicant's right to the compensation

claimed (see Eur. Court HR, Moreira de Azevedo v. Portugal judgment of

23 October 1990, Series A no. 189, p. 16 et seq., para. 66).

However, the Commission observes that it has been established

in the present case that the Warsaw Regional Court, pursuant to Article

55 of the Code of Criminal Procedure, refused to entertain the

applicant's civil claim. Consequently, the applicant could not join the

proceedings as a plaintiff and was not a party thereto. Accordingly,

the proceedings at issue did not concern his civil rights and

obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. Therefore this provision is not applicable.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant complains that the court's failure to rule in the

criminal case against L.G. amounts to a lack of respect for his family

life within the meaning of Article 8 (Art. 8) of the Convention as he

has thereby been deprived of significant financial means.

The Commission considers that in the light of its above findings

as to the applicant's lack of legal interest in the conduct and outcome

of the criminal proceedings against L.G., no interference with the

applicant's right to respect for his family life can be found in this

respect. It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Under Article 1 of Protocol No. 1 (P1-1) to the Convention he

complains that he cannot enforce the judgment of 29 October 1990

against the "D." company as it has no property.

Article 1 of Protocol No. 1 (P1-1) reads:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission observes that on 7 October 1996 the manager of the

estate in bankruptcy paid to the applicant a sum of 781 zlotys to

satisfy his claim against "D." company lodged with the Warsaw Regional

Court on 7 May 1993 in accordance with the legal rules concerning

bankruptcy proceedings. It is true that this sum was smaller than that

which the applicant had paid in 1990 to the "D." company. However, even

assuming that the acts of the manager of bankruptcy acting as

a representative of public interest and appointed by a court could

entail the responsibility of the State, the fact that it was impossible

to satisfy all creditors in the bankruptcy proceedings due to the lack

of assets on the part of the bankrupt company does not infringe the

applicant's right to peaceful enjoyment of property within the meaning

of Article 1 of Protocol No. 1 (P1-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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PAPIEWSKI v. POLAND

PAPIEWSKI v. POLAND

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