Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27092/95

by Wlodzimierz ZAWOLUK

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 January 1995

by Wlodzimierz ZAWOLUK against Poland and registered on 24 April 1995

under file No. 27092/95;

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 1959, is currently

serving a prison sentence in Jastrz*bie Zdrój prison.

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

summarised as follows:

In 1992 the applicant was detained in Starogard psychiatric

hospital. On 23 June 1992 a police team was requested to come to the

hospital to restrain the applicant, who refused to take injections.

During the police action the applicant sustained an injury. As a

result of this incident, he subsequently underwent hospital treatment

and eventually lost one eye.

Apparently in September or October 1992 the applicant filed an

action against the State Treasury with the Gdansk Regional Court (S*d

Wojewódzki), claiming compensation for loss of his eyesight. On an

uncertain later date the Starogard Public Prosecutor instituted

criminal investigations concerning the applicant's injury.

On 16 October 1992 the Starogard police, acting on behalf of the

State Treasury, requested that the civil proceedings be suspended as

the outcome of the criminal investigations was of decisive importance

for the further conduct of the civil case.

On 18 November 1992 the Prosecutor ordered that an expert opinion

be prepared as to what injuries the applicant had sustained during the

police intervention on 23 June 1992 and whether they could have

originated from the acts of the police.

On 23 November 1992 the Gdansk Regional Court suspended the civil

proceedings, considering that the outcome of the criminal

investigations was of decisive importance for the State Treasury's

liability for the applicant's injury.

On 26 March 1993 a further expert opinion was ordered as to

whether the injury of the applicant's eye could have been caused by a

cardboard cap of a "smoke-glare" bullet, which the police had fired

twice during the June 1992 intervention.

On 29 April 1993 the criminal investigations were suspended as

the second expert opinion of the forensic medicine specialist was still

outstanding.

On 21 October 1993, in reply to the applicant's complaint, the

Ombudsman informed him that he had requested the Starogard District

Prosecutor to inform him about the progress in the investigations.

On 7 December 1993 the District Prosecutor informed the applicant

that the investigations were still suspended as the expert opinion had

not been submitted.

On 7 March 1994 the District Prosecutor informed the applicant

that the proceedings were still suspended as the second expert opinion

had not been submitted.

On 28 June 1994 the Starogard Gdanski District Court (S*d

Rejonowy) convicted the applicant of assaulting a doctor and one of the

policemen during the events on 23 June 1992 and sentenced him to one

year's imprisonment.

On 6 January 1995 the applicant complained to the President of

the Gdansk Regional Court that there was no progress in the civil

proceedings. In reply, the President informed him on 27 January 1995

that the civil proceedings would be resumed after the criminal

investigations had come to an end.

On 24 January 1995 the Forensic Medicine Department of the Gdansk

Medical Academy submitted the expert opinion.

On 1 February 1995 the Starogard Gdanski Public Prosecutor

terminated the criminal proceedings, finding that on 23 June 1992 the

applicant had refused to be transferred to another ward. He had

menaced medical staff with a knife and a metal pole and hit a doctor

several times, breaking his hand, causing a cut wound of his elbow and

an injury of the abdomen. The hospital director had called the police.

A team of four policemen had tried to negotiate with the applicant, who

had refused to cooperate and stated that he was "ready for anything".

As the director had refused to have tear gas used in the hospital, an

anti-terrorist police squad had been called, which first had undertaken

negotiations with the applicant and, after the negotiations failed, had

used a net to overpower the applicant and twice fired a "smoke-glare"

bullet in his direction. As the police had approached the applicant

afterwards to handcuff him, blood had been found on his hands. The

Prosecutor concluded that the use of the force in the case had been

legitimate and justified by the applicant's aggressive behaviour; that

the police had not overstepped the limits set out in the legal

provisions concerning the use of force and, consequently, that no

offence had been committed.

On 4 May 1995 the Gdansk Regional Public Prosecutor dismissed the

applicant's appeal against this decision, considering that it was based

on extensive evidence which had been assessed in a meticulous and

logical way.

On a date not specified in 1995 the civil proceedings were

resumed.

On 22 June 1995 the applicant complained to the Minister of

Justice about the length of the civil proceedings. On 1 July 1995 the

Ministry informed him that his complaint had been transferred for reply

to the President of the Gdansk Regional Court.

A hearing was to be held on 2 October 1995. The Gdansk Regional

Court informed the applicant and asked him to submit his final requests

for evidence. However, eventually that hearing was adjourned as the

witness to be heard, a paramedic who had seen the police intervention

in 1992, failed to appear, and a date of the next hearing was set for

20 November 1995.

On 3 October 1995 the applicant complained to the President of

the Gdansk Regional Court that he had not received in time the

information about the hearing of 2 October.

On 9 October 1995 the Katowice Regional Court refused to suspend

further execution of the applicant's penalty, considering that the

applicant's wish to take part personally in the civil proceedings did

not constitute a relevant ground for release.

On 20 October 1995 the Gdansk Regional Court informed the

applicant that his presence at the hearing on 2 October 1995 had not

been required by law and not necessary because the hearing of himself

had not been foreseen on this date. The questioning of the parties was

to be taken as concluding evidence and, given that the applicant was

in prison, the court might consider having this evidence taken by

another court.

On 6 November 1995, in reply to the court's letter of

20 October 1995, the applicant again complained about the length of the

proceedings.

COMPLAINTS

The applicant complains under Article 3 of the Convention about

the ill-treatment which he had suffered during the police action in

1992. He complains that he did not receive appropriate assistance from

any of the authorities and that his compensation case is still pending

before the first instance court.

The applicant further complains that his requests to have the

execution of his penalty suspended or to be temporarily released, so

that he could participate in the civil proceedings, were dismissed.

THE LAW

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

Convention about the ill-treatment which he had suffered during the

police action in 1992. He complains that he did not receive

appropriate assistance from any of the authorities. The Commission

notes that the alleged ill-treatment occurred on 26 June 1992.

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 occurring after 30 April 1993". The

Commission is not competent to examine complaints relating to

violations of the Convention by acts, decisions or events that have

occurred prior to this date.

Therefore, the Commission observes that the facts alleged, as

they occurred before 30 April 1993, are outside its competence ratione

temporis and the applicant's complaints in this respect must therefore

be rejected as being incompatible with the provisions of the Convention

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

2. The applicant further complains that his requests to have the

execution of his penalty suspended or to be temporarily released, so

that he could participate in the civil proceedings, were dismissed.

However, the Convention does not grant a right to have the execution

of a prison sentence suspended or to be granted temporary release.

This complaint is therefore incompatible ratione materiae with the

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

Convention.

3. The applicant finally complains about the length of the civil

proceedings for compensation which were instituted in 1992 and which

are still pending before the first instance court. The Commission,

which has examined this complaint under Article 6 para. 1 (Art. 6-1)

of the Convention, considers that it cannot, on the basis of the file,

decide this complaint without the observations of both parties.

The Commission therefore considers that this part of the

application must be adjourned.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint

concerning the length of the civil proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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ZAWOLUK v. POLAND

ZAWOLUK v. POLAND

LEXI