Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24541/94

by Piotr WIERZBICKI

against Poland

The European Commission of Human Rights sitting in private on

26 February 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

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 20 January 1994 by

Piotr WIERZBICKI against Poland and registered on 6 July 1994 under file

No. 24541/94;

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

22 February 1996 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1935, is a journalist

residing in Warsaw. He is represented before the Commission by Mr. Jacek

Hofman, a lawyer practising in Warsaw.

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

summarised as follows:

1. Particular circumstances of the case

On 30 June 1993 S. N., a candidate for Parliament, brought a court

action against the applicant before the Warsaw Regional Court (S*d

Wojewódzki) in accordance with Article 139 of the Election Act (see

Relevant domestic law). He submitted that the newspaper of which the

applicant was an editor-in-chief had published information that he had

been an informant of the secret police of the former communist regime.

He contended that this was false. He demanded that the applicant

publicly revoke this statement and apologise for it by placing paid

announcements in numerous newspapers.

On 1 July 1993 the Warsaw Regional Court declared itself incompetent

to deal with the matter and transmitted the case to the Lódz Regional

Court.

On 22 July 1993 the Lódz Regional Court decided that the case should

be considered in ordinary contentious proceedings applicable to claims

for protection of reputation under Article 24 of the Civil Code and

transmitted the case to the Warsaw Regional Court.

Upon appeal, the Lódz Court of Appeal (S*d Apelacyjny) on

4 August 1993 quashed this decision as it considered that the case should

be dealt with by the Lódz Regional Court in special proceedings under

Article 139 of the Election Act.

On 6 August 1993 the Lódz Regional Court summoned the applicant by

fax at his work address to appear at a court hearing on 7 August 1993.

On the same day the applicant's lawyer sent a letter to the court in

which he protested against the summons having been sent to the

applicant's work instead of his private address and informed the Court

that the applicant should be considered as not having been duly summoned.

He requested that the hearing be adjourned.

At the hearing on 7 August 1993 the Lódz Regional Court summoned the

applicant to adduce evidence to show that the information concerning the

plaintiff S. N. was true.

On 12 August 1993 the applicant submitted a power of attorney for

his representative and applied for resumption of the proceedings in a

contentious manner as the proceedings provided for by Article 139 of the

Election Act had not led to a decision on the merits within three days

as stipulated in this Act. He requested the Court to call the former and

current Ministers of Internal Affairs as witnesses and to request the

Ministry to submit numerous documents as evidence.

On 24 August 1993 the Lódz Regional Court summoned the applicant at

work, and his lawyer at his office, to appear at a hearing on

25 August 1993. Both summonses were made by fax.

At the hearing on 25 August 1993 before the Lódz Regional Court the

applicant's lawyer was present, the applicant apparently not. The Court

pronounced the decision on the same day and upheld the plaintiff's claim.

The Court considered that in the proceedings concerned the time-

limits for serving summonses set out in the Code of Civil Procedure did

not apply. The applicant's lawyer had been aware of the proceedings

since 6 August 1993; he had been given a power of attorney on

11 August 1992 and had submitted the request to produce evidence on

16 August 1993. Thus he had had enough time to prepare his arguments.

The Court indicated that it had requested the Ministry of Internal

Affairs to produce the documents requested by the applicant. On

20 August 1993 the Ministry had refused to do so as those documents were

subject to official secrecy and could be produced in court only in

criminal proceedings, in accordance with the Bureau of State Security

Act. The Court observed that it could not call the witnesses proposed

by the applicant. They could only have submitted evidence as to whether

S. N. had been put on the list, but not as to whether he had in fact been

an informant. Thus, as the applicant had not submitted any other

evidence to prove that the information concerning S. N. was true, the

Court found against him.

The applicant appealed against this decision, invoking, inter alia,

Article 6 of the Convention. He contended that the proceedings were null

and void as neither the applicant nor his lawyer had been summoned to the

hearing on 25 August 1993 with at least three days' notice as provided

for by Article 149 para. 3 of the Code of Civil Procedure. Furthermore,

the applicant's interests could not have been presented and protected

properly as he was not given sufficient time between receiving the

summons and the date of the hearing. The applicant further argued that,

as all his requests to call witnesses and evidence had been refused, he

had been denied an opportunity to prove the facts essential for the

decision on the merits.

On 31 August 1993 the Lódz Court of Appeal dismissed the appeal.

The Court considered that the complaint concerning the summons was

unfounded. Both the applicant and his lawyer had been summoned a day

before the hearing, which was justified, given the special nature of the

proceedings, as provided for by Article 139 of the Election Act. The

Court recalled that although this provision provided for such cases to

be decided within 48 hours, failure to do so did not oblige the Court to

deal with the case in a normal civil contentious procedure, to which the

provisions of the Code of Civil Procedure, invoked by the applicant,

would apply. Moreover, the applicant, knowing the special nature of the

proceedings, should have expected that he might be summoned from one day

to the other and should have taken effective measures to ensure that the

summons reached him in time. These considerations applied in particular

as the applicant was represented by a lawyer, who was under a

professional obligation to take appropriate measures to this effect. In

any event, the lawyer received the summons in time to appear at the

hearing, even though he contended unconvincingly that he had learned

about the date of the hearing from a journalist. As to the merits, the

Court considered that the burden of proof lay on the defendant, who had

failed to demonstrate that, at the time when the information at issue was

published, he had possessed sufficient evidence that S. N. had been an

informant.

2. Relevant domestic law and practice

Article 139 of the Election Law provides that a candidate in

parliamentary elections can bring a court action, claiming rectification

of information published about him during the election campaign and

compensation. The court shall decide the case within 48 hours. The

court can order the publisher of the information immediately to rectify

the information and to apologise publicly to the plaintiff, if the

information proves to be false or inaccurate. The court may order the

defendant to pay compensation to the plaintiff. The court shall decide

in a civil non-contentious procedure.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the

proceedings were not fair in that he was summoned to court hearings only

on the preceding day; thus, he did not have sufficient time to prepare

his arguments; moreover, this prevented him from participation in person

at the hearings.

The applicant further complains that all his requests for hearing

evidence were dismissed by the Court. He submits that his request to the

Court to demand the Ministry of Internal Affairs to present documents as

evidence was refused by the Ministry on the grounds that they constituted

a State secret, and the Court refused to call any witnesses requested by

the applicant. Thus, the applicant was deprived of all means of

defending his interests.

The applicant calls the courts' impartiality into question, as the

Lódz Regional Court jeopardised his right to have his interests presented

by a lawyer by summoning him at such short notice.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 January 1994 and registered on

6 July 1994.

On 26 June 1995 the Commission decided to communicate the

application to the Polish Government who were invited to submit their

observations on its admissibility and merits before 6 October 1995. At

the Government's request dated 5 October 1995, the time-limit for the

submission of the observations was subsequently extended until

8 December 1995. No further extension of the time-limit was requested.

By letter of 18 January 1996 the Government were informed that the

application was being considered for inclusion in the list of cases for

examination by the Commission at its session in February/March 1996.

THE LAW

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

that all his requests for hearing evidence were dismissed by the Court.

He submits that his request to the Court to demand the Ministry of

Internal Affairs to present documents as evidence was refused by the

Ministry on the grounds that they constituted a State secret, and the

Court refused to call any witnesses requested by the applicant. Thus,

the applicant was deprived of all means of defending his interests.

The applicant further complains that the proceedings were not fair

in that he was summoned to court hearings only on the preceding day;

thus, he did not have sufficient time to prepare his arguments.

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

provides:

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

everyone is entitled to a fair ...hearing... by an... impartial

tribunal ..."

a) The Commission observes that the courts ordered the applicant to

publish paid apologies in numerous newspapers, which entailed significant

sums, and to pay compensation. Thus his pecuniary interests were at

stake. The Commission concludes that Article 6 (Art. 6) of the

Convention is applicable to the special proceedings provided for by the

Election Act as these proceedings concerned the applicant's civil rights

and obligations.

b) The Commission recalls that the above complaints were communicated

to the Polish Government, who have been invited to submit observations

on their admissibility and merits. The time-limit for the submission of

such observations was extended, at the Government's request, until

8 December 1995. The Government, who have been informed that the

application is considered for inclusion in the agenda of the Commission

at its present session, did not request an extension of this time-limit

and did not submit any observations.

The Commission recalls the Convention organs' case-law, according

to which the parties must be invited to participate in the examination

of the facts by the Commission, though such an examination cannot be

hindered by the manner in which the parties in fact participate (see No.

8007/77, Dec. 10.7.78, D.R. 13, p. 85).

It is the normal practice of the Commission, where an application

has been communicated to the respondent Government, in part or as a

whole, not to declare the complaint concerned inadmissible for failure

to exhaust domestic remedies, unless this matter has been raised by the

Government in their observations. The Commission considers that the same

principle should be applied where, as in the present case, the respondent

Government have not submitted any observations at all (see No. 22947/93,

Dec. 11.10.93, unpublished). Moreover, it appears that in the present

case there were no further remedies available to the applicant.

It follows that this part of the application cannot be rejected

under Article 26 (Art. 26) of the Convention for non-exhaustion of

domestic remedies.

Having examined these complaints, the Commission finds that they

raise serious questions of fact and law which are of such complexity that

their determination should depend on an examination of the merits. These

complaints cannot, therefore, be regarded as being manifestly ill-founded

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

and no other ground for declaring them inadmissible has been established.

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

the Convention that the Lódz Regional Court was not impartial as it

jeopardised the applicant's right to have his interests presented by a

professional legal representative by summoning him at a short notice.

The Commission observes that both the applicant and his lawyer were

summoned by fax on 24 August 1993 to appear at a hearing on

25 August 1993. The lawyer was eventually present at this hearing. The

Commission finds no indication of lack of impartiality of the Court in

that it summoned both the applicant and his lawyer in this manner, having

regard to the special provisions of Article 139 of the Election Act.

This complaint is therefore manifestly ill-founded 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 of the case,

the applicant's complaint under Article 6 para. 1 of the

Convention that he did not have a fair hearing;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.- C. KRÜGER) (S. TRECHSEL)

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WIERZBICKI v. POLAND

WIERZBICKI v. POLAND

LEXI