AS TO THE ADMISSIBILITY OF

                      Appication No. 29716/96

                      by Maria KOSMIDER

                      against Poland

     The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

           Mrs. G.H. THUNE, President

           MM.  J.-C. GEUS

                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 8 September 1994

by Maria KOSMIDER against Poland and registered on 5 January 1996 under

file No. 29716/96;

     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

     14 October 1996 and the observations in reply submitted by the

     applicant on 22 November 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, a Polish citizen born in 1936, is a pensioner

residing in Wolsztyn.

A.   Particular circumstances of the case

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

summarised as follows:

1.   Divorce proceedings

     On 5 September 1989 the applicant filed a divorce action with the

Wolsztyn District Court (S*d Rejonowy).  Later she asked for a finding

that the breakup of the marriage was exclusively her husband's fault.

The court scheduled an obligatory conciliatory session for 7 December

1989 but it was adjourned as the defendant failed to appear.  The

session was held on 1 March 1990. During the session the applicant

refused to be reconciled with her husband.  On 16 and 23 July 1990 she

filed further pleadings seeking an interim order resolving the position

regarding the joint use of the matrimonial home and the payment of

maintenance.  She failed to specify the amount of maintenance sought.

     On 12 September 1990 the court held a hearing and ordered the

defendant to pay maintenance of old PLZ 200,000.  It also decided to

view the matrimonial home before making an order on the joint use of

the home by the parties during the divorce proceedings.  On 6 November

1990 the court ruled on the joint use of the parties' home.

On unspecified dates the applicant appealed against both interim

orders.  On 13 December 1990 she requested the court to grant her an

exemption from court fees.  On 15 January 1991 the applicant requested

the court to amend the maintenance order, seeking payment of old PLZ

800,000.  On 26 March 1991 she asked the court to grant her legal aid.

     On 2 April 1991 the Wolsztyn District Court dismissed the

applicant's requests for amendment of the maintenance order and for

legal aid.  The applicant appealed on 17 April 1991 to the Zielona Góra

Regional Court (S*d Wojewódzki).  On 22 April 1991 she challenged the

impartiality of two judges dealing with her appeal.  Subsequently,

on an unspecified date her appeal and challenge were dismissed.

     On 4 November 1991 the court of first instance cancelled the

hearing as the applicant had failed to appear.  On 5 November 1991 the

defendant requested the court to find that the breakup of the marriage

was the applicant's fault.  During the hearing of 23 December 1991 the

applicant requested the court to stay the divorce proceedings on the

ground that the criminal proceedings relating to her allegations of

assault were pending against her husband.  In addition, she again

requested the court to amend the interim maintenance order.

     On 19 February 1992 the court amended the maintenance order.

Subsequently, on an unspecified date, the applicant appealed against

the amended order, increasing her claims.

           On 2 December 1992 the Wolsztyn District Court, upon the

defendant's request, resumed the proceedings stayed on 23 December

1991.  On the same day the applicant challenged the impartiality of the

presiding judge.  This was dismissed by the Wolsztyn District Court

on 11 December 1992 as the applicant's challenge lacked any basis.

On 31 March 1993 she again challenged the impartiality of the presiding

judge.  On 18 May 1993 the Wolsztyn District Court dismissed the

challenge finding that it was manifestly ill-founded.  The court also

fined the applicant for lodging a groundless challenge.  On 26 May 1993

she appealed against the above-mentioned decision.  On 26 July 1993 the

Zielona Góra Regional Court quashed the fine but upheld the dismissal

of the challenge.  In the meantime, between 26 May and 11 June 1993,

the case-file was transferred to the Poznan Regional Court in

connection with another appeal submitted by the applicant.

     On 29 October 1993 the applicant requested the court to adjourn

the hearing as her lawyer had failed to appear and she did not wish to

be represented by his trainee.  During the hearing of 24 November 1993

the court heard evidence from the witnesses and the parties.

On 25 November 1993 the Wolsztyn District Court pronounced judgment,

finding that the breakup of the marriage since at least 1985 was

obvious and that both parties, on account of their lack of mutual

cooperation and understanding, had provoked conflicts and various

arguments.  In this respect the court essentially referred to evidence

given by the parties' adult children, observing that their statements

were credible in view of their close and frequent contact with the

parties.  The court also referred to documentary evidence and noted

that on several occasions the applicant had requested the Wolsztyn

District Prosecutor (Prokurator Rejonowy) to institute criminal

proceedings against her husband, alleging that he had committed various

offences.  However, all of the investigations into her allegations were

discontinued in view of the fact that no offence had been committed.

Finally, the court, in assessing the evidence given by the applicant's

witnesses found that their knowledge about the parties' marriage was

hearsay as it was based solely on the applicant's opinions expressed

to them.  The court therefore ruled that both parties were at fault.

On 6 January 1994 the applicant filed an appeal against this judgment.

     On 24 February 1994 the appeal was heard.  On 3 March 1994 the

Zielona Góra Regional Court upheld the divorce judgment, finding that

the court of first instance had properly assessed the evidence before

it and correctly applied the law.

2.   Criminal proceedings

     On 16 June 1990 the applicant had an altercation with her

husband, witnessed by their son-in-law. On the same day she formally

notified the Wolsztyn District Police about the incident and requested

the police to institute criminal proceedings against her husband.  Two

days later a surgeon diagnosed that her hand was broken in two places.

Subsequently, the Wolsztyn District Prosecutor opened investigations

into the applicant's allegations.

     On 5 October 1990 the Wolsztyn District Prosecutor indicted the

applicant's husband for assault causing bodily harm, i.e. breaking the

applicant's hand.

     On 11 December 1990 the Wolsztyn District Court held the first

hearing.  During this hearing the applicant lodged an application under

Section 52 of the Code of Criminal Procedure, stating that she wished

to join the proceedings as a civil party, seeking compensation for the

injuries sustained.  At the same time she submitted a statement of

claim.

     On 8 January 1991 the court, upon the applicant's request,

adjourned the hearing.  The hearing scheduled for 6 February 1991 was

cancelled since one of the jurors failed to appear.  On 15 March and

24 April 1991 the subsequent hearings were cancelled on the defendant's

request.  The hearings scheduled for 15 May and 4 June 1991 were

adjourned as further evidence needed to be taken.  On 3 July  1991 the

court ordered that evidence be taken from medical experts.

On 8 November 1991 the court assigned an expert and, subsequently, on

16 January 1992 transmitted the case-file to the Faculty of Forensic

Medicine of the Poznan Academy of Medicine.  On 5 March 1992 the

experts sent the case-file back to the court, refusing to prepare

a report in view of the fact that the court had not paid their fees.

     On 27 March 1992 the Wolsztyn District Court stayed the

proceedings until 18 September 1992, i.e. the anticipated date on which

the medical report was to be ready.

     On 15 October 1993 the court held the hearing and ordered that

evidence be heard from policemen and an expert.  On 10 November 1993

the court held the next hearing and ordered that evidence be considered

from documents contained in the case-files relating to other

proceedings instituted by the parties.

     In the meantime, on unspecified dates, the applicant repeatedly

requested the court to detain her husband on remand.

     On 7 December 1993 and 15 March 1994 the court adjourned the

hearings since a court expert had failed to appear.

     On 7 June 1994 the Wolsztyn District Court heard evidence from

an expert and acquitted the applicant's husband.  As a consequence, the

court, according to Section 362 para. 2 of the Code of Criminal

Procedure, declined to rule on the applicant's civil claim.  The court

observed that it transpired from the eye-witness statements that both

parties had jostled one another during the incident of 16 June 1990.

In addition both of them were in apparent conflict arising from the

breakup of their marriage, which cast doubts on their credibility.

Moreover, the applicant had not sought any medical help during the

subsequent two days, even if she had claimed that her hand had been

broken as early as the date of the incident and that she had

immediately felt severe pain.  Instead of seeking a doctor's help at

the emergency surgery situated in the neighbourhood, she had come to

the police station, which was much further away.  Further, according

to the experts' report, the nature of the applicant's injuries

indicated that they had resulted from sudden leaning rather than from

hitting by a third person.  Finally, the court, having regard to the

principle of in dubio pro reo, acquitted the accused in view of the

reasonable doubts as to whether he had committed the offence charged.

     On 14 June 1994 the applicant filed a notice of appeal.

Subsequently, on an unspecified date in July 1994, she filed an appeal

against the above-mentioned judgment.

     On 4 October 1994 the Zielona Góra Regional Court adjourned the

appeal hearing because the defendant and the applicant's lawyer had

failed to appear.  On 8 November 1994 the court again adjourned the

hearing since in the meantime the applicant had challenged the

impartiality of the judges dealing with the case.  On 9 December 1994

the next hearing was adjourned as the defendant had failed to appear.

On 31 January 1995 the Zielona Góra Regional Court dismissed the

applicant's appeal, considering that the court of first instance had

carefully examined the evidence and had taken into consideration all

circumstances relevant for the outcome of the case.

B.   Relevant domestic law

     Sections 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.

     Section 52 of the Code of Criminal Procedure provides:

     The injured person seeking to pursue his civil claims arising

     from the offence in criminal proceedings may, until the

     commencement of the main trial, file a civil action against the

     accused.

     Under Section 55 the court may allow a civil action or declare

it inadmissible.  If an action has been allowed, the injured person may

join the proceedings as a plaintiff.  During the trial he may put

forward only such evidence as is necessary to establish the

circumstances on which his claim is based.  In practice, such evidence

concerns the establishment of guilt.

     As regards the determination of a civil claim, the court applies

the Code of Civil Procedure.

     A decision by the court to allow a civil action does not in any

way bind the trial court as to the adjudication of that claim as,

according to Section 362 of the Code of Criminal Procedure, even in

case of conviction the court may decline to rule on the claim if the

relevant evidence is insufficient to adjudicate on the claim in

question.  In case of acquittal, the court shall decline to rule on the

claim.

COMPLAINTS

1.   In respect of the divorce proceedings the applicant complains

under Article 6 para. 1 of the Convention that the courts lacked

impartiality and incorrectly assessed the evidence presented.  She

submits that they based their decisions on entirely untrue allegations

by her husband and failed to properly indicate in their judgments the

evidence on which they relied.  She also complains about the outcome,

unfairness and the length of these proceedings.

2.   Under Article 6 para. 1 the applicant complains that the length

of the criminal proceedings instituted against her husband was

unreasonable.  As a result thereof, her civil claim remained pending

before the courts for almost five years and was not determined at all

in these proceedings.  The applicant complains that the courts lacked

impartiality and wrongly assessed the evidence in their judgments.  She

contests the outcome of these proceedings, submitting that they were

unfair.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 8 September 1994 and registered

on 5 January 1996 .

     On 15 May 1996 the Commission decided to communicate the

application to the respondent Government pursuant to Article 48 (b) of

the Convention.

     The Government's written observations were submitted on

14 October 1996, after an extension of the time-limit fixed for that

purpose.  The applicant replied on 22 November 1996.

     The translation of the Government's observations was submitted

on 24 June 1997.

THE LAW

1.   The applicant raises various complaints under  Article 6

(Art. 6) of the Convention in respect of the divorce and criminal

proceedings in which she was involved.

     Article 6 (Art. 6) of the Convention, insofar as relevant,

provides:

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

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

     a reasonable time by an ... impartial tribunal ..."

2.   The Government submit that the Convention entered into force with

respect to Poland on 19 January 1993.  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".  Thus, the application, insofar as it relates to events prior

to this date, is outside the competence ratione temporis of the

Commission.

     The Commission observes that the applicant's complaints relate

in part to a period prior to 1 May 1993, the date on which Poland's

declaration acknowledging the right of individual petition took effect.

Since, in that declaration Poland limited the Commission's competence

to facts subsequent to the declaration, the Commission, by reason of

its competence ratione temporis, can examine the applicant's complaints

only insofar as they relate to the period after this date.

3.   The Commission further notes that the applicant's complaints

firstly relate to the divorce proceedings which as such indubitably

involved a determination of a "civil right" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.  As regards the

criminal proceedings complained of, the Commission observes that even

if they concerned in the first place the determination of a criminal

charge against a third person, their result was directly decisive for

establishing the applicant's right to the compensation claimed (see

Eur. Court HR, Moreira de Azvedo v. Portugal judgment of 23 October

1990, Series A no. 189, p. 16 et seq., para. 66).  Accordingly, Article

6 para. 1 (Art. 6-1) is applicable in respect of both sets of

proceedings complained of.

4.   With regard to the applicant's complaints about the judicial

decisions given in her cases, the Commission recalls that, in

accordance with Article 19 (Art. 19) of the Convention, its only task

is to ensure the observance of the obligations undertaken by the

Parties to the Convention.  In particular, it is not competent to deal

with an application alleging that errors of law or of fact have been

committed by domestic courts, except where it considers that such

errors may have involved a possible violation of any of the rights and

freedoms set out in the Convention.  The Commission refers, on this

point, to its established case-law (see e.g. No. 25062/94, Dec.

18.10.95, D.R. 83, p. 77).

5.   The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention about the unfairness of the proceedings in which she

was involved, submitting that the courts in both her cases incorrectly

assessed the evidence presented and that they failed to properly

indicate in their judgments the evidence on which they relied.

     The Commission reiterates that the admissibility of evidence is

primarily a matter for regulation by national law.  As a rule, it is

for the national courts to assess the evidence before them, whereas it

is the Commission's task to ascertain whether the proceedings

considered as a whole, including the way in which evidence was taken,

were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April

1991, Series A no. 203, p. 10, para. 26).

     As regards the divorce proceedings, the Commission observes that

the court of first instance found, after having heard several witnesses

and examined various documentary evidence, that both parties were at

fault for the breakup of their marriage.  There is no indication that

the applicant, who was assisted by a lawyer, did not have an adequate

opportunity to examine the witnesses or to contest the probative value

of their statements.  The findings of the court of first instance were

confirmed on appeal.  In their reasons for the judgments, the courts

of both levels carefully examined the witnesses' statements and had due

regard to their credibility, referring to all the other material at the

courts' disposal.  As a consequence, the Commission finds no elements

which would indicate that the courts went beyond their discretion while

assessing the evidence presented by the parties to the proceedings or

that they failed to give accurate reasons for their decisions, or that

the proceedings were unfairly conducted in any other way.

     In respect of the criminal proceedings, the Commission notes that

the courts carefully evaluated the evidence at their disposal,

including the medical report and the eye-witness statements.  Finally,

they found that the reasonable doubts as to the accused's guilt

justified the application  of the principle in dubio pro reo resulting

in his acquittal.  The reasons for the courts' judgments properly

reflected the assessment of the circumstances militating in favour of

and against the conclusion reached. As a result, the Commission has

found no indication that in respect of these proceedings the

applicant's right to a fair hearing was not respected.

6.   The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention about the length of both sets of the

proceedings.

     The Commission has already observed that it can, by reason of its

competence ratione temporis, only examine the applicant's complaints

insofar as they relate to a period after 30 April 1993.  However, it

recalls that with respect to the applicant's complaints about the

length of the proceedings in which she was involved, the Commission can

take into account, in order to assess their length, the stage reached

in these proceedings at the beginning of the period under consideration

(see No. 7984/77, Dec. 11.7.79,  D.R. 16  p. 92).

     In respect of the divorce proceedings the Government maintain

that insofar as the complaint refers to the entire proceedings, such

a long period of examining the case is regrettable in itself.  However,

having regard to the concrete circumstances of the case and the notion

of a "reasonable time" set out in the Convention organs' case-law, the

length of the proceedings in question was not excessive.  Firstly, the

case was complex as it involved not only a divorce, but also various

questions arising from the applicant's additional claims concerning

maintenance and use of the matrimonial home. Secondly, the applicant

contributed to the length of the proceedings, in particular by her

repeated challenges concerning the impartiality of the judges and the

number of her appeals against several interim orders.  The Government

point out that she should have been aware that such conduct might lead

to a further prolongation of the proceedings.  Lastly, the Government

contend that it is difficult to note an inactivity on the part of the

courts other than that resulting from the necessity to adjourn the

hearings due to the parties' conduct.

     The applicant submits that the length of the divorce proceedings

was excessive, as clearly confirmed by the Government in their

observations.  Therefore, the Commission should examine the proceedings

as a whole, i.e. have regard to the delays in the proceedings which

took place before and after 1 May 1993.  The fact that she made normal

use of her rights cannot itself explain the considerable delays in the

proceedings and their overall length.  The case was not complex.

Moreover, her challenges of the judges were justified by her opinion

that they conducted her case unfairly.  The applicant concludes that

the proceedings as a whole were not terminated within a reasonable

time.

     The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the following criteria:

the complexity of the case, the conduct of the applicant and of the

relevant authorities and the importance of what is at stake for the

applicant in the litigation (see, inter alia, Eur. Court HR, Duclos v.

France judgment of 17 December 1996, Reports 1996-VI, No. 25,

para. 55).

     The Commission notes that the proceedings in question commenced

on 5 September 1989 when the applicant lodged a civil action for

divorce and ended on 3 March 1994 when the Zielona Góra Regional Court

pronounced a final judgment; as a whole they therefore lasted four

years, five months and twenty-six days, of which ten months and two

days were after the date on which the Commission's competence to

examine applications against Poland took effect.

     The Commission further observes that the proceedings were of a

certain complexity.  The dissolution of the parties' marriage was not

the only issue at stake for the parties, since they both requested the

court to rule on which one of them was at fault regarding the breakdown

of their marriage.  Moreover, the proceedings concerned claims relating

to maintenance and matrimonial property.

     As regards the conduct of the authorities, the Commission

considers that there were no substantial periods of inactivity in the

conduct of the case on their part during the period under

consideration.  It is true that the examination of the applicant's

appeal of 26 May 1993 lasted until 26 July 1993; however, in the

meantime the case-file had been transferred to another court.

On 25 November 1993 the court of first instance rendered its judgment

and the appeal hearing was scheduled for as early as 24 February 1994.

In respect of the applicant, the Commission finds no indication that

her conduct caused any undue delays in the course of the proceedings

at issue.

     In respect of the criminal proceedings, the Government maintain

that their duration after 1 May 1993 fully meets the requirements of

a "reasonable time".

     The applicant submits that the proceedings were not terminated

"within a reasonable time" as they lasted almost five years.

Furthermore, for two years the court of first instance was unable to

obtain the medical expert's report.  As a result, her civil claim was

not determined at all.

     The Commission observes that the applicant joined the proceedings

as a civil party on 11 December 1990, submitting a statement of claim.

The proceedings were terminated on 31 January 1995. Therefore, the

proceedings relating to the determination of the applicant's civil

claim as a whole lasted four years, one month and twenty days, of which

one year and nine months were after the date on which the Commission's

temporal competence took effect.

     In the light of the material submitted by the parties, the

Commission finds that the case was not particularly complex.  During

the period under consideration, the case was examined at first instance

and on appeal.  The court of first instance held five hearings at

intervals of a maximum of three months.  Two of them were adjourned as

certain evidence needed to be taken.  It is true that between

7 December 1993 and 7 June 1994 the case remained adjourned due to the

fact that the court's expert failed to appear on two occasions.  This

resulted in a delay of six months which does not appear excessive.  As

regards the appeal proceedings, they lasted between 14 June 1994 and

31 January 1995.  The court scheduled four hearings, of which two were

adjourned on the parties' requests and one due to the applicant's

challenge concerning the judges.  As a result, the Commission finds no

indication that the authorities failed to duly pursue the case.  Nor

does it consider that the applicant considerably contributed to the

length of the proceedings complained of.

     Assessing the facts of the case as a whole, the Commission

considers that neither the divorce proceedings, nor the criminal

proceedings exceeded a "reasonable time" within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention.

7.   Insofar as the applicant complains that the courts dealing with

her cases lacked impartiality, the Commission notes that the applicant

failed to adduce any material or circumstances relating to this

complaint.

     The Commission has examined the applicant's complaints as they

have been submitted by her and had regard to the relevant criteria

established in the Convention organs' case-law (see Eur. Court HR,

Thomann v. Switzerland judgment of 10 June 1996, Reports 1996-III,

No. 11, para. 30).  However, it finds that the applicant's submissions

do not disclose any element to cast doubt on the impartiality of the

judiciary in question.

8.   It follows that the application is inadmissible as being

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