Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26629/95

by Witold LITWA

against Poland

The European Commission of Human Rights sitting in private on

15 September 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 August 1994 by

Witold LITWA against Poland and registered on 3 March 1995 under file

No. 26629/95;

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 20 May

1996 and the observations in reply submitted by the applicant on

10 July 1996 and 6 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1946, is a pensioner

residing in Kraków. He is disabled. He is blind in one eye and his

sight in the other is severely impaired.

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

summarised as follows:

A. Particular circumstances of the case

1. Uncontested facts

On 5 May 1994 at noon the applicant came to the Kraków Post

Office No. 30 to check his postal box. He was accompanied by W.K. The

applicant's postal box had been opened and was empty. The parties give

different versions of the subsequent events (see 2 a) below).

On the same day, at 12.20 p.m. the applicant was taken by police

officers to the Kraków Sobering Up Centre (Izba Wytrzezwien) and

detained there for six hours and thirty minutes. The staff of the

centre filled out the applicant's detention card. This document reads

as follows: "(...) the applicant was arrested for making a row at the

post office in a state of intoxication. He was examined at 12.45 p.m.

by a physician XY [name and signature illegible]. (...) Circumstances

concerning intoxication: smell of alcohol - [the applicant] refused

to take a breath test. Behaviour: lucid and talkative. Mood:

average. Walk: unsteady. Speech: blurred. Vomits: none. Pulse:

steady, regular. Heart: action steady; clear tones. Pupils: normal.

(...) Injuries: none. Other ailments: sight considerably impaired.

Description of intoxication: moderate. Solution: intoxication

justifying the detention in the sobering up centre for six hours.

Behaviour, mental and physical state during detention: good. Objects

to be kept in the centre's custody: identity cards, PLZ [old] 654,700,

watch, keys (eighteen items), tear-gas gun, (illegible description of

other items), purse. Release from the sobering up centre: after six

hours and thirty minutes [the applicant] was sober and could be

released. The objets to be returned to the detainee from the centre's

custody: PLZ [old] 4,700 remaining after the deduction of PLZ [old]

650,000 for the costs of staying in and transportation to the sobering

up centre. [The applicant] refused to sign the document." The

applicant submits a different version of certain details concerning his

detention in the sobering up centre (see 2 b) below).

On 10 May 1994 the applicant requested the Kraków District

Prosecutor (Prokurator Rejonowy) to institute criminal proceedings

against the police officers who had arrested him on 5 May 1994 and

against the staff of the Kraków Sobering Up Centre. He alleged that

the policemen had beaten him up and complained about the behaviour of

the staff of the centre.

On 29 May 1994 the applicant sued the State Treasury before the

Kraków Regional Court (S*d Wojewódzki) seeking compensation "for

unlawful attacks of the State's agents on 5 May 1994 and the theft of

his personal possessions." He did not rely on any specific substantive

provision of domestic civil or criminal law. Apparently, the court

presumed that the applicant's claim should be examined as a claim for

compensation for manifestly unjustified arrest, based on Section 487

para. 4 of the Code of Criminal Procedure. On 29 June 1994 the

applicant lodged supplementary pleadings with the court, increasing

the amount of the compensation claimed.

On 7 July 1994 the court cancelled the hearing as the applicant

had not been duly summoned. The next hearing was held on 20 September

1994. The applicant increased his claim to old PLZ 200,000,000,

stating that he had not requested compensation for unjustified

detention but for "deprivation of his rights". The court decided to

officially appoint a lawyer for the applicant in order to clarify the

nature of his claims. On 15 November 1994 the applicant's counsel

requested the court to consider evidence from the records of the Kraków

Sobering Up Centre, concerning the circumstances of the applicant's

detention.

On 28 November 1994, during the hearing, the applicant stated

that he wished to pursue the claim as it had been submitted by him.

On the same day the Kraków Regional Court dismissed the applicant's

claim, finding that the applicant's arrest of 5 May 1994 was justified

in view of the fact that: "he had caused a breach of the peace in the

Kraków Post Office No. 30 in a state of intoxication. The police

intervened upon the request of the postal clerks. Since the applicant

smelt of alcohol, he was brought to the Kraków Sobering Up Centre where

it was established that he was moderately intoxicated." The court did

not refer to any legal basis for the applicant's arrest and subsequent

detention. In respect of the claims relating to the alleged taking of

the applicant's possessions, the court found that such claims, on

account of their civil nature, should be brought before a civil court

in separate proceedings.

On 1 December 1994 the Kraków-Sródmiescie District Prosecutor,

on suspicion that offences of assault, theft and infringement of the

applicant's personal rights had been committed, instituted

investigations relating to the applicant's complaint of 10 May 1994.

On 5 December 1994 the applicant filed an appeal against the

decision of the Kraków Regional Court of 28 November 1994, submitting

that the decision was not based on any sound evidence, but only on the

statements of the policemen who had assaulted him. He further stated

that he had been assaulted by the policemen and that his personal

belongings had been stolen. The applicant relied on Articles 3, 6

para. 1 and 8 of the Convention and asserted that "he had filed an

action against an audacious robbery by civil servants".

On 25 January 1995 the Kraków Court of Appeal (S*d Apelacyjny)

dismissed the applicant's appeal, considering that on 5 May 1994 the

applicant had come to the post office and "caused breach of the peace".

Since, according to the police officers and a subsequent examination

by a physician, he had been moderately intoxicated, his detention was

justified. The court also found that the applicant's personal

belongings had been deposited in the centre's custody and the applicant

had refused to take them back upon his release.

On 28 February 1995 the Kraków-Sródmiescie District Prosecutor

discontinued the investigations instituted on the applicant's request.

In the course of the proceedings the applicant was summoned, but he

failed to appear.

On 1 December 1995 the Kraków Regional Prosecutor (Prokurator

Wojewódzki), upon the applicant's appeal, quashed the decision of 28

February 1995 and ordered supplementary investigations.

On 19 February 1996 J.K, a constable of the Kraków-Grzegorzki

Police heard evidence from W.K., an eye-witness of the events of 5 May

1994 at the post office. According to the witness, on the date of the

incident he met the applicant and accompanied him to the post office.

The applicant went to the building, while he stood on the street

keeping the applicant's dog on the leash. Shortly afterwards, the

applicant came out of the building. He was agitated by the fact that

his postal box had been opened. They went to the office together and

immediately two policemen approached the applicant who asked the

witness to go out. The policemen checked the witness's identity and

he left the post office. He saw policemen taking the applicant to the

police car and leaving. Since the applicant remained calm during the

entire incident, the witness did not know why he was taken by the

policemen.

On 26 February 1996 the Kraków-Grzegorzki Police discontinued the

investigations, finding that no offence had been committed. This

decision was confirmed by the Kraków-Sródmiescie District Prosecutor

on 27 February 1996.

On 5 March 1996 W.K., after having been acquainted with the

reasons for the decision of 26 February of the Kraków-Grzegorzki

Police, made a statement before a notary. In the statement, he

contested the description of the events made on the basis of his oral

testimony given to police on 19 February 1996. According to the

witness's statements, he had met the applicant one hour before the

incident in question took place and accompanied him to the post office.

The applicant was sober and calm. He raised his voice when he demanded

an explanation from the postal clerks, however, due to the clamour

being made by a large number of clients who were queuing in front of

the post office counters at the same time.

On 5 April 1996 the Kraków-Sródmiescie District Prosecutor re-

opened ex officio the investigations concerning the events of 5 May

1994. On 23 May 1996 the prosecutor again discontinued the

investigations, finding that no offence had been committed. This

decision was served on the applicant on 4 June 1996. The applicant

failed to appeal against the decision of 23 May 1996.

2. Facts in dispute between the parties

a) Circumstances of the applicant's arrest on 5 May 1994

The Government submit that the applicant started to make a row

at the Post Office No. 30 in Kraków when he found his postal box had

been opened, in particular by shouting and twisting the postal box

door. He did not react to the explanation given by the post office

manager and went on being aggressive. The manager therefore called the

police. Upon the policemen's arrival, the applicant was still making

a row and refused to show them his identity card and to leave the post

office. Thus, the policemen took the applicant outside, holding him

by his arms, and seated him in a patrol car. Since the applicant's

behaviour clearly indicated that he was intoxicated, they took him to

the Kraków Sobering Up Centre. In this respect, the Government submit

a copy of the record of W.K.'s oral testimony given on 19 February 1996

before J.K., a constable of the Kraków-Grzegorzki Police Station.

The applicant observes that he only asked the postal clerks why

his postal box had been opened. They refused to listen to his

complaints and immediately called the police alleging that he had

behaved offensively. Upon the policemen's arrival, he showed them his

identity card. Subsequently, the policemen took him to the police car.

They refused to take his guide dog to the car and left it on the

street. In this respect the applicant refers to the notarised

statement of 5 March 1996 by W.K., the eye-witness of the incident.

b) Circumstances of the applicant's detention in the Kraków Sobering

Up Centre

The applicant submits that, following his arrival at the sobering

up centre, a physician made only a superficial examination of his

condition and did not carry out any appropriate tests to confirm that

he was intoxicated. Moreover, when he was released, the staff of the

centre handed him a bag allegedly containing his belongings, refusing

however to check whether all his possessions were returned to him.

They showed a deep disregard for his obvious blindness and left him

without the keys to his flat and his money.

B. Relevant domestic law and practice

1. Arrest of intoxicated persons under the Law of 26 October 1982

on Education in Sobriety and Counteracting Alcoholism (as amended).

Chapter 2 of the Law, entitled; "Measures concerning persons

abusing alcohol", containing Sections 21-40, refers to two categories

of persons: "addicted to alcohol" and "intoxicated". Sections 21-38

deal with voluntary or compulsory treatment of "persons addicted to

alcohol", whereas Sections 39-40 set out measures which may be imposed

on "intoxicated persons".

According to Section 39 of the Law (in the version applicable at

the material time), sobering up centres shall be organised and managed

by the municipalities of towns in which the number of inhabitants

exceeds 50,000.

Section 40 of the Law (in the version applicable at the material

time) provided:

1. Intoxicated persons who behave offensively in a public

place or a place of employment, or are in a condition endangering

their life or health, or are themselves endangering other

persons' life or health, may be brought to a sobering up centre

or a public health-care establishment, or to their place of

residence.

2. In the absence of a sobering up centre, such persons may be

brought to a police station.

3. [Intoxicated] persons who have been brought to a sobering

up centre or a police station shall remain there until they

become sober but for no longer than twenty-four hours. (...)

A person arrested under Section 40 of the Law is not entitled to

take proceedings relating to the lawfulness of his deprivation of

liberty since, according to Section 206 of the Code of Criminal

Procedure, only a person arrested on suspicion of having committed an

offence may appeal against a decision to arrest him (the Supreme Court

judgment of seven judges of 12 February 1992, No. I KZP 43/91,

published in OSNKW 1992 No. 5-6/32).

The Ordinance of the Minister of Administration, Local Economy

and Environmental Protection of 7 May 1983 on bringing intoxicated

persons to sobering up centres, organisation of those centres, medical

care provided by them and fees for transportation to and staying in

sobering up centres or police stations (repealed by an Ordinance of the

Minister of Health and Social Care of 23 October 1996) set out detailed

rules relating to detention in a sobering up centre.

Paragraph 9 of the Ordinance (in the version applicable at the

material time) provided:

1. A person brought to a sobering up centre shall promptly be

given a medical examination.

2. A physician, following the medical examination, shall

ascertain whether such person should be placed in a sobering up

centre, or should be placed in a hospital or other medical

establishment, or whether there are no signs of intoxication

justifying a placement in a sobering up centre.

Paragraph 16 of the Ordinance provided:

An alcohol test shall be done upon the request of the intoxicated

person (...).

According to paragraph 21 of the Ordinance, both a stay in and

transportation to a sobering up centre are subject to charges estimated

at 20% and 4 % respectively of an average monthly salary in the public

sector. If the person concerned does not have sufficient money, a

sobering up centre is entitled, under paragraph 22, to take a lien over

his possessions.

2. Disturbance of public order is a minor offence punishable under

Section 51 of the Code of Administrative Offences, which in the version

applicable at the material time provided:

1. Anyone who, by shouting or by noisy, alarming or other

unruly behaviour disturbs public peace or order, a citizens'

night's rest or who behaves offensively in a public place, shall

be punished by a maximum of two months imprisonment (...) or a

fine of between old PLZ 100,000 and 1,500,000.

2. If the behaviour in question is of a rowdy nature or the

person concerned has been intoxicated, he shall be punished by

a maximum imprisonment of three months (...) or a fine of between

old PLZ 100,000 and 5,000,000.

3. Claim for compensation for manifestly unjustified arrest or

detention on remand.

Under Section 487 para. 4 of the Code of Criminal Procedure, a

person arrested is entitled to compensation for manifestly unjustified

arrest. Such claims shall be examined in criminal proceedings, but the

criminal court shall apply the relevant civil rules relating to the

assessment of damages.

4. Domestic remedies against ill-treatment by the State's agents

a) Under criminal law

In principle, acts of ill-treatment causing physical harm amount

to criminal offences prosecuted under the relevant provisions of the

Criminal Code on various forms of assault. In instances concerning

ill-treatment amounting to moral harm, in particular an attack on the

privacy or dignity of the person concerned, a victim may avail himself

of two remedies. Firstly, in cases concerning acts committed by police

officers he may, under Section 142 of the Police Act of 6 April 1990

(as amended), request the prosecutor to institute criminal proceedings

against police officers who have infringed his privacy or other

personal rights (including dignity and physical inviolability).

Secondly, he may bring, under Sections 181 and 182 of the Criminal

Code, a private prosecution against any other person who has insulted

him or trespassed against him.

According to the so-called "principle of legality" contained in

Section 255 of the Code of Criminal Procedure, the authorities are

obliged to institute criminal proceedings ex-officio in any case of

suspicion that an offence has been committed. However, in practice

such proceedings are frequently instituted on a victim's request.

b) Under civil law

Sections 417 et seq. of the Polish Civil Code provide for the

State's liability in tort.

Section 417 para. 1 of the Civil Code provides:

1. The State Treasury shall be liable for damage caused by a

civil servant in the course of his duties.

According to the well-established jurisprudence of the Polish

Supreme Court, a plaintiff seeking damages under Section 417 of the

Civil Code must show that the act or omission in question is unlawful

and that the State's agent committed a fault (the Supreme Court

judgments: No. I PR 468/70 of 29.12.70, unpublished, No. I CR 24/71 of

19.4.71, unpublished and No. I CR 152/74 of 11.4.74, unpublished).

Thus, in practice, a civil action based on Section 417 of the

Civil Code, which is directed against the agent of the State who has

committed acts of ill-treatment, cannot be isolated and examined

separately from the criminal proceedings relating to the same issue

since their outcome is decisive for establishing the "unlawfulness" of

those acts. Furthermore, a claim based on Section 417 of the Civil

Code which has been lodged prior to the institution of criminal

proceedings will be dismissed as premature, whereas if that claim is

lodged when those proceedings are pending, the civil proceedings are

stayed according to Section 177 of the Code of Civil Procedure.

COMPLAINTS

1. The applicant complains under Article 5 para. 1 of the Convention

that his detention in the Kraków Sobering Up Centre on 5 May 1994 was

unjustified as he was not drunk and his behaviour did not amount to

disturbing public order. He also submits that his detention was

unlawful and arbitrary.

2. He further complains under Article 3 of the Convention that on

5 May 1994 the police officers beat him up while they attempted to

apprehend him and that, subsequently, the staff of the Kraków Sobering

Up Centre treated him in a degrading manner, in particular by showing

disregard for his obvious disability.

3. Finally, the applicant complains under Article 1 of Protocol No.

1 to the Convention that as a result of having been arrested and kept

in the Kraków Sobering Up Centre he lost his guide dog, the keys to his

flat and his glasses, which made his life significantly more difficult.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 August 1994 and registered

on 3 March 1995.

On 29 February 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 20 May

1996, after an extension of the time-limit fixed for that purpose. The

applicant replied on 10 July 1996 and on 6 January 1997.

On 2 July 1996 the Commission granted the applicant legal aid.

The translation of the Government's observations was submitted

on 23 May 1997.

THE LAW

1. The applicant complains under Article 5 para. 1 (Art. 5-1) of the

Convention that his detention in the Kraków Sobering Up Centre on 5 May

1994 was unjustified as he was not drunk and his behaviour did not

amount to disturbing public order. He also submits that his detention

was unlawful and arbitrary.

Article 5 para. 1 (Art. 5-1) of the Convention provides:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by

a competent court;

b. the lawful arrest or detention of a person for non-

compliance with the lawful order of a court or in order to secure

the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offence

or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the

purpose of educational supervision or his lawful detention for

the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of

the spreading of infectious diseases, of persons of unsound mind,

alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent

his effecting an unauthorised entry into the country or of a

person against whom action is being taken with a view to

deportation or extradition."

The Government submit that the applicant's detention was fully

justified and that no arbitrary decisions were made. In this respect

the Government essentially refer to the outcome of the proceedings

relating to the applicant's claim for compensation for manifestly

unjustified arrest which were terminated by the decision of the Kraków

Court of Appeal of 25 January 1995, finally dismissing the claim. The

Government contend that the applicant's conduct and condition were

sufficient grounds for his detention, pointing out that the applicant

refused to take a breath test which could have determined the exact

concentration of alcohol in his blood.

The applicant submits that his detention was arbitrary and

unlawful since any deprivation of liberty must have an adequate basis,

whereas in his case such a basis did not exist. In particular, he was

not detained on suspicion of having committed an offence, nor did he

cause a disturbance in a public place, nor did he endanger his own or

other persons' life or health within the meaning of Section 40 of the

Law of 26 October 1982 on Education in Sobriety and Counteracting

Alcoholism. In this respect he refers to a notarised statement of

W.K., an eye-witness of the incident, which was given on 5 March 1996,

according to which the applicant had been sober and calm both before

and during his arrest. In addition, the applicant refers to the report

made by the physician who examined him upon his confinement in the

Kraków Sobering Up Centre, from which it transpires that the applicant

was lucid. Furthermore, he contends that the medical examination

concerning his alleged intoxication was superficial and based only on

certain physical appearances which did not meet the requirements of

substantial medical proof.

After a preliminary examination of the present complaint in the

light of the parties' submissions, the Commission considers that it

raises complex issues of law and of fact under the Convention, the

determination of which should depend on an examination of the merits.

This complaint cannot, therefore, be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds of inadmissibility

have been established.

2. The applicant also complains under Article 3 (Art. 3) of the

Convention that on 5 May 1994 the police officers beat him up while

they attempted to apprehend him and that, subsequently, the staff of

the Kraków Sobering Up Centre treated him in a degrading manner, in

particular by showing disregard for his obvious disability.

Article 3 (Art. 3) of the Convention provides:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Government contend that the applicant has not complied with

the requirements of Article 26 (Art. 26) of the Convention since he has

exhausted only some of the remedies available to him under Polish law.

The Government submit that the applicant had two sets of domestic

remedies at his disposal, namely a claim for compensation for

manifestly unjustified arrest or detention on remand based on Section

487 para. 4 of the Code of Criminal Procedure (which may be vindicated

in criminal proceedings) or a claim for damages related to unjustified

detention (i.e. beating, theft during detention) based on Sections 417-

421 of the Civil Code (which may be vindicated before the civil courts

under the rules of tort). The Government object that the applicant

failed to pursue a civil action based on Section 417 of the Civil Code

after his claim for compensation for manifestly unjustified detention

had been finally dismissed by the Kraków Court of Appeal on 25 January

1995. The applicant submits that on 29 May 1994 he sued the State

Treasury before the Kraków Regional Court seeking compensation for

violation of his personal rights by the police officers, for theft of

his personal belongings by those officers and for his mental suffering

resulting from the incident of 5 May 1994. He asserts that his action

was of a civil nature and that the court, contrary to his intentions,

itself arbitrarily decided that his claim should be examined in

criminal proceedings as an action filed under Section 487 para. 4 of

the Code of Criminal Procedure.

The Commission reiterates that the rule set forth in Article 26

(Art. 26) dispenses States from answering before an international body

for their acts before they have had an opportunity to put matters right

through their own legal system. However, since Article 26 (Art. 26)

must be applied with some degree of flexibility and without excessive

formalism, it does not require merely that use should be made of

remedies designed to challenge decisions already given. It normally

requires also that the complaints intended to be made subsequently at

Strasbourg should have been made to those same courts, at least in

substance and in compliance with the formal requirements and time-

limits laid down in domestic law (see, inter alia, Eur. Court HR, Sadik

v. Greece judgment of 15 November 1996, Reports of Judgments and

Decisions ... para. 30 et seq.).

As regards the present case, the Commission observes that on 10

May 1994 the applicant requested the Kraków Regional Prosecutor to

institute criminal proceedings against the police officers who had

arrested him on 5 May 1994 and against the staff of the Kraków Sobering

Up Centre. The subsequent investigations were conducted into alleged

offences of assault, theft and infringement of the applicant's personal

rights. On 23 May 1996 the Kraków-Sródmiescie District Prosecutor

discontinued the investigations. The applicant failed to appeal

against this decision.

According to Polish law and practice, an action for damages based

on Section 417 of the Civil Code, if directed against the State's agent

who allegedly committed acts of ill-treatment, cannot be examined in

isolation and separated from the criminal proceedings relating to the

same issue, since their outcome is decisive for establishing the

"unlawfulness" of those acts. Therefore, the outcome of the criminal

proceedings instituted on the applicant's request constituted a prior

condition for bringing a civil claim for damages for the alleged ill-

treatment. In the present case the Government have not provided the

Commission with any clear example from domestic practice capable of

justifying a different conclusion. Accordingly, the Commission does

not share the Government's view that the question whether the applicant

has or has not exhausted remedies available to him under Polish law is

related to his failure to bring a civil action under Section 417 of the

Civil Code.

However, the Commission observes that the applicant, by his

failure to appeal against the decision discontinuing the criminal

proceedings instituted on his request and directly related to the

substance of his complaints submitted under Article 3 (Art. 3) of the

Convention, did not make use of a remedy which was available to him

under domestic law in respect of these complaints and has not,

therefore, complied with requirements under Article 26 (Art. 26) of the

Convention as to the exhaustion of domestic remedies.

It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies according to Article 27 para. 3

(Art. 27-3) of the Convention.

3. Finally, the applicant complains under Article 1 of Protocol No.

1 (P1-1) to the Convention that as a result of having been arrested and

kept in the Kraków Sobering Up Centre on 5 May 1994 he lost his guide

dog, the keys to his flat and his glasses, which made his life

significantly more difficult.

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

"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."

As regards the admissibility ratione temporis of the present

complaint, the Government submit that they do not have any reservations

regarding the temporal competence of the Commission since all the

complaints raised by the applicant concern 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 recognised in the

Convention through any act, decision or event occurring after 30 April

1993".

However, the Commission observes that the events concerning this

part of the applicant's complaints took place on 5 May 1994, i.e. prior

to 10 October 1994, which is the date of entry into force of Protocol

No. 1 to the Convention with respect to Poland. In accordance with the

generally recognised rules of international law, the Protocol only

governs, for each Contracting Party, facts subsequent to its entry into

force with respect to that Party (see No. 220/56, Dec. 15.7.57,

Yearbook 1 pp. 157, 159; No. 9453/81, Dec. 13.12.82, D.R. 31 pp. 204,

208).

It follows that the remainder of the application is incompatible

ratione temporis with the provisions of the Convention within the

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

For these reasons, the Commission,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint under Article 5 para. 1 of the Convention

that his detention on 5 May 1994 was unlawful and ujustified;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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WITOLD LITWA v. POLAND

WITOLD LITWA v. POLAND

LEXI