Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27382/95

by Miroslaw KRUPINSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 17 October 1994

by Miroslaw KRUPINSKI against Poland and registered on 23 May 1995

under file No. 27382/95;

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

7 May 1996 and the observations in reply submitted by the

applicant on 24 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Australian citizen born in 1939, is an engineer

residing in Albany in Australia. He previously had Polish citizenship.

Particular circumstances of the case

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

summarised as follows:

On 29 September 1982 the Navy Military Court (S*d Marynarki

Wojennej) in Gdynia convicted the applicant of pursuing illegal trade

union activities, which had been banned by the military regime upon

introduction of martial law on 13 December 1981. The applicant was

sentenced to three years and six months' imprisonment. On 28 September

1982 the Military Chamber of the Supreme Court upheld the judgment.

The applicant served twenty-one months of imprisonment.

On 10 December 1991 the President of the Military Chamber of the

Supreme Court (Przewodnicz*cy Izby Wojskowej S*du Najwyzszego) filed

an extraordinary appeal against this judgment.

On 21 January 1992 the Supreme Court (S*d Najwyzszy) quashed the

judgment, considering that the applicant's conviction was contrary to

the principle nullum crimen sine lege as the trade union activities in

question had taken place from 13 to 15 December 1981, whereas the

official promulgation of the Decree on Martial Law, banning trade union

activities, had been effected only on 18 December 1981. The Court

accordingly acquitted the applicant.

On 20 October 1993 the applicant filed a request with the Supreme

Court for an extraordinary appeal against the judgment of 1982. This

request was sent by a recommended letter from Sydney.

In a letter of 23 November 1993 the Supreme Court informed the

applicant that his application for leave for an extraordinary appeal

would not be entertained as it was devoid of purpose, the applicant's

acquittal having been pronounced on 21 January 1992 by the Supreme

Court. Any claim for compensation could be dealt with by the Navy

Military Court in Gdynia, to which the applicant's letter of

18 October 1992 had been forwarded on 23 November 1993. It was further

stated in the letter that the applicant had been represented before the

Supreme Court by a lawyer M., practising in Gdansk. The Court further

suggested that the applicant, in his own interest, should appoint his

representative for the possible compensation proceedings or that he

should establish an address in Poland for service of any documents

concerning these proceedings since this could significantly expedite

the proceedings.

On 17 February 1994 this letter was served on the applicant by

the Polish consulate in Sydney.

On 7 April 1994 the applicant filed a request with the Navy

Military Court in Gdynia for compensation of 500,000 zlotys for

wrongful conviction. He sent this request by registered letter from

Sydney. He submitted that the Registry of the Supreme Court in its

letter of 23 November 1993 had wrongly informed him that the lawyer M.

had represented him during the extraordinary appeal proceedings.

In a letter of 8 March 1996 the Navy Military Court informed the

applicant that a first hearing would be held on 4 June 1996. In

accordance with the applicable laws, if no representative was

appointed, all communications to the applicant would be sent through

consular channels, as indicated in the previous communications to the

applicant.

On 4 June 1996 the Gdynia Navy Military Court held a hearing in

which it decided to request the applicant's former employers to submit

evidence concerning his salaries before he left Poland.

On 3 July 1996 the Gdynia Military Court decided that it was not

competent to entertain the case and transferred it to the Poznan

Regional Military Court (Wojskowy S*d Okr*gowy) as the Navy Military

Court had ceased to exist on 1 July 1996.

Relevant domestic law

Article 487 para. 1 of the Code of Criminal Procedure provides

that an accused, who has been acquitted as a result of the reopening

of the proceedings or of an extraordinary appeal, is entitled to

compensation from the State Treasury for the pecuniary and non-

pecuniary damage suffered as a result of deprivation of his liberty.

The proceedings concerning the compensation claim are to be held before

the regional court in whose area of competence the first instance

judgment was pronounced.

Article 124 of the Code provides that a party to proceedings

residing abroad is obliged to establish an address in Poland for the

purpose of service of the correspondence; in case of a failure to do

so, any correspondence shall be sent to his or her last known address

in Poland, or, if no such address is known, included in the case-file

and considered as having been served.

COMPLAINTS

The applicant complains that the failure of the Navy Military

Court to deal with his request or even to acknowledge receipt thereof

is in breach of his enforceable right to compensation for detention in

contravention of the provisions of Article 5 of the Convention, as

guaranteed by Article 5 para. 5 of the Convention.

He submits that he was not represented in the proceedings before

the Supreme Court and that in November 1993 the Registry of this Court

wrongly informed him that he had been represented by the lawyer M., who

in fact had left Poland in 1986. He submits that he learned of his

acquittal on 17 February 1994, as it was only on this date that the

Polish consulate in Sydney transmitted the relevant documents to him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 October 1994 and registered

on 23 May 1995.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 7 May

1996, after three extensions of the time-limits fixed for that purpose.

The applicant replied on 24 May 1996.

THE LAW

The applicant complains that the failure of the Navy Military

Court to deal with his request is in breach of his right to

compensation for detention in contravention of Article 5 para. 5

(Art. 5-5) of the Convention. The Commission has examined this

complaint under Article 6 para. 1 (Art. 6-1) of the Convention as

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

compensation claim.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

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

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

...

The Government concede that Article 6 (Art. 6) of the Convention

is applicable to proceedings concerning compensation claims for

deprivation of liberty referred to in Article 487 para. 1 of the Code

of Criminal Procedure and that such compensation claims are of a civil

character.

The Government further submit that the case is not complex.

However, the exact amount of compensation to be eventually awarded may

give rise to considerable difficulties.

The Government maintain that the applicant's conduct has

considerably contributed to prolonging the proceedings. In this

respect they refer to the fact that in the letter of 23 November 1993

the Supreme Court suggested that the applicant, in his own interest,

should appoint his representative for the possible compensation

proceedings or that he should establish an address in Poland for

service of any documents concerning these proceedings. The applicant

failed to do so, despite his legal obligation under Article 124 of the

Code of Criminal Procedure. The Government further state that in his

action of 7 April 1994 the applicant unequivocally refused to appoint

a counsel in Poland and indicated an address in Australia for the

purpose of service of court correspondence. Had he done so at the

beginning of the proceedings, this would undoubtedly have contributed

to their acceleration.

The Government finally submit that the length of the proceedings

before the Navy Military Court is reasonable and that there were no

shortcomings for which the court could be held responsible. As regards

the delay in service of the Supreme Court's judgment to the applicant,

this judgment was not served immediately as the applicant's address

was unknown to the Court. It was eventually served after he had

informed the Court of his address in Australia in his request for an

extraordinary appeal of 20 October 1993.

The Government conclude that the length of the compensation

proceedings complied with the requirements of Article 6 para. 1

(Art. 6-1) of the Convention. The application should thus be declared

manifestly ill-founded.

The applicant submits that he was never informed of the

requirements of Article 124 of the Code of Criminal Procedure. The

Supreme Court's letter referred to by the Government was only a

suggestion, not information of the relevant legal requirements. He

decided not to follow it as he did not see any technical reasons why

the court correspondence could not be served at his address in

Australia. With regard to the Navy Military Court's letter of

8 March 1996, the applicant emphasises that he had not received any

previous communications from that Court as it is implied in this

letter, including any information as to these requirements. He never

refused to appoint a counsel or establish an address in Poland as such

requirement was never laid down. There was no need to appoint a

counsel as the case was not complex and his claim was obviously well-

founded. Finally, the applicant emphasises that if the Court could

contact him at his Australian address in March 1996 through consular

channels, there had apparently been no legal impediments for doing so

earlier.

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 with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (Eur. Court HR, Vernillo v.

Italy judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

The Commission also recalls that in civil cases the exercise of the

right to a hearing within a reasonable time is subject to diligence

being shown by the party concerned (Eur. Court HR, Pretto and others

v. Italy judgment of 8 December 1983, Series A no. 71, pp. 14 et seq.,

paras. 33 et seq.).

The Commission observes that the case does not appear to be

complex. The only issue to be determined is the sum of compensation

and no facts are in dispute between the parties. The Commission

further observes that the authorities remained inactive between 7 April

1994, the date on which the applicant's compensation claim was filed

with the Navy Military Court, and 8 March 1996, the date of the

Court's first letter to the applicant, informing him of the date of the

first hearing to be held. The Commission further notes that the

applicant neither appointed a representative in Poland to represent him

before the Court nor established an address in Poland for service of

the court correspondence. In the Supreme Court's letter of 23 November

1993 he was informed that taking one of these measures would

significantly expedite the proceedings before the Navy Military Court.

It is true that he was not informed by the Supreme Court of the formal

requirements applicable to a party to the proceedings residing abroad

as stated in Article 124 of the Polish Code of Criminal Procedure.

However, the Court was under no legal obligation to do so. The

applicant should have been aware that it was in his best interest to

follow the suggestion contained in the Supreme Court's letter. He

further persisted in his refusal after the Navy Military Court informed

him of the relevant requirements in its letter of 8 March 1996. The

Commission considers that on the whole the applicant has not shown

appropriate diligence in that he failed to comply with the applicable

legal requirements concerning the service of court correspondence with

parties residing abroad.

In the light of the criteria established by the case-law and

having regard to the circumstances of the present case, the Commission

concludes that the length of the proceedings was not excessive.

It follows that 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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KRUPINSKI v. POLAND

KRUPINSKI v. POLAND

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