Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24557/94

by Zbigniew MUSIAL

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 6 September 1995, 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 10 January 1994

by Zbigniew Musial against Poland and registered on 7 July 1994 under

file No. 24557/94;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having considered that the Government have not submitted any

observations;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1953, is currently

detained in a mental hospital in Rybnik.

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

summarised as follows:

In 1986 the Katowice Regional Prosecutor instituted criminal

proceedings against the applicant on suspicion of manslaughter of his

wife. On 18 October 1987 the applicant was examined by a medical panel

of two psychiatrists who found that at the material time the applicant

had lacked criminal responsibility and that he was dangerous to public

order. The criminal proceedings were subsequently discontinued. The

Prosecutor requested the Court to order the applicant's internment.

On 8 February 1988 the Katowice Regional Court (S*d Wojewódzki)

committed the applicant to a mental hospital. The Court considered the

submission of the Prosecutor that the applicant had killed his wife.

The Court also took into consideration the medical expert opinion. The

Court concluded that the applicant was dangerous to public order. The

Supreme Court (S*d Najwyzszy) subsequently upheld this decision.

Apparently in 1991 the applicant unsuccessfully requested his

release from the mental hospital.

On 10 January 1992 the Minister of Justice refused leave for an

extraordinary appeal against the decision of 8 February 1988.

Subsequently the Minister of Justice and the Regional Prosecutor

twice informed the applicant that there were no grounds for reopening

the criminal proceedings.

On 16 March 1993 the applicant filed a request for release with

the Katowice Regional Court. He also insisted that he should be

examined by a psychiatrist from the University of Cracow. Apparently

the Court consulted the psychiatrist responsible for the applicant in

the Rybnik mental hospital and ordered a psychiatrist from Cracow

University to examine the applicant.

On 25 June 1993 the applicant requested the reopening of the

criminal proceedings. In a letter of 15 September 1993 the Katowice

Regional Prosecutor informed him that his request would not be

considered.

On 26 April 1993 the Katowice Regional Court decided to adjourn

the decision on the applicant's release until a medical expert opinion

had been prepared by psychiatrists from a hospital other than the

Rybnik hospital.

In early 1994 the applicant underwent an examination at Cracow

University.

On 18 May 1994 the Katowice Regional Court informed the applicant

that the case-file was still at the University and that the opinion was

not yet ready.

On 21 June 1994 Cracow University informed the Katowice Regional

Court that it could not send the file back to the Court as the medical

opinion was still not ready. On 21 July 1994 the Katowice Regional

Court informed the applicant thereof.

COMPLAINTS

The applicant complains under Article 6 para. 3 (d) of the

Convention about the decisions of the Public Prosecutor in the criminal

investigations concerning the suspicion of manslaughter, relating to

the admissibility of evidence. He complains under Article 6 para. 2

of the Convention that he was convicted and committed to a mental

hospital even though he was not guilty. The applicant further

complains that the decision to place him in the mental hospital was

wrong as he is mentally fit and not dangerous.

The applicant complains about the refusals to reopen the

proceedings and to grant leave for an extraordinary appeal.

He finally complains that the proceedings concerning the

lawfulness of his psychiatric detention have been unreasonably long.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 January 1994 and registered

on 7 July 1994.

On 22 February 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 5 May 1995.

The Government did not request an extension of this time-limit

and did not submit any observations. By letter of 17 July 1995 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 beginning on 4 September 1995.

THE LAW

1. The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention that the proceedings concerning the lawfulness of his

detention have been unreasonably long.

Article 5 para. 4 (Art. 5-4) of the Convention provides:

"Everyone who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings by which the lawfulness of

his detention shall be decided speedily by a court and his

release ordered if the detention is not lawful."

a) 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". It

follows that the Commission is not competent to examine complaints

relating to alleged violations of the Convention by acts, decisions or

events that have occurred prior to this date.

However, the Commission further recalls the Convention organs'

case-law, according to which where, by reason of its competence ratione

temporis, the Commission can only examine part of the proceedings, it

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

in the proceedings at the beginning of the period under consideration

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

It follows that the Commission is competent ratione temporis to

examine the applicant's complaints insofar as they relate to the

proceedings after 30 April 1993. However, the Commission can take into

account the stage reached at this date.

b) The complaint under Article 5 para. 4 (Art. 5-4) of the

Convention was communicated to the Polish Government who were invited

to submit observations on its admissibility and merits before 5 May

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.

It is the normal practice of the Commission, where a case has

been communicated to the respondent Government, not to declare the

application 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.

11.10.1993, D.R. 79-A).

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.

c) The Commission further 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. 10.07.1978, D.R. 13 p. 85).

In the present case the proceedings in examination of the

lawfulness of the applicant's detention began on 16 March 1993. The

Commission observes that the period to be considered began only on 1

May 1993, i.e. the date on which the recognition of the right of

individual petition against Poland took effect. The Commission can,

however, take into account the stage reached at this date (No. 7984/77,

loc. cit.). The period to be considered is therefore two years and

four months. The examination of the lawfulness of the applicant's

psychiatric detention has not yet been completed as the relevant

medical expert opinion, ordered by the court in early 1993, has not

been prepared.

Having examined this complaint, the Commission finds that it

raises serious questions of fact and law which are of such complexity

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

This part of the application 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 it

inadmissible has been established.

2. The applicant complains under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention about the decisions of the Public

Prosecutor in the criminal investigations concerning the suspicion of

manslaughter, relating to the admissibility of evidence. Under Article

6 para. 2 (Art. 6-2) of the Convention he complains that he was

convicted and committed to the mental hospital even though he was not

guilty. He further complains that the decision to place him in the

mental hospital was wrong as he is mentally fit and not dangerous. The

applicant complains about the refusals to reopen the criminal

proceedings against him and to grant leave for an extraordinary appeal.

a) Insofar as the applicant's complaints relate to a period prior

to 1 May 1993, 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 by Poland of the rights

recognised in the Convention through any act, decision or event

occurring after 30 April 1993".

It follows that insofar as the application relates to the period

before 30 April 1993, it is outside the competence ratione temporis of

the Commission and therefore incompatible with the provisions of the

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

b) As regards the complaint of refusal to reopen the proceedings

after 30 April 1993, the Commission recalls its established case-law

according to which no right to a reopening of criminal proceedings is

as such included among the rights and freedoms guaranteed by the

Convention (No. 14739/89, Dec. 9.5.89, D.R. 60, p. 296).

It follows that the remainder of the application must be rejected

as incompatible ratione materiae with the provisions of the Convention

in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the complaint concerning the length of the proceedings in which

the lawfulness of the applicant's continued detention in a mental

hospital is examined,

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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MUSIAL v. POLAND

MUSIAL v. POLAND

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