Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25085/94

by Grzegorz SAWICKI

against Poland

The European Commission of Human Rights sitting in private on

6 July 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

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

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

Mr. M. de SALVIA, Deputy 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 31 December 1993

by Grzegorz Sawicki against Poland and registered on 6 September 1994

under file No. 25085/94;

Having regard to the reports 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 1954, is a carpenter

currently serving a prison sentence in Fordon prison in Poland.

The facts of the case as submitted by the applicants may be

summarised as follows:

1. Particular circumstances of the case

On 20 May 1993 the Wloclawek District Court (S*d Rejonowy)

convicted the applicant of attempted theft and sentenced him to three

years' imprisonment and a fine of three million zlotys with 30 days'

imprisonment in default.

The applicant lodged an appeal against this decision. He

complained that the District Court had refused to hear one witness, who

had been heard in the course of the investigation, and to inspect the

scene of the crime. He also complained about the assessment of

evidence by the District Court.

On 18 November 1993 the Wloclawek Regional Court (S*d Wojewódzki)

dismissed the appeal. The Court considered that the refusal to hear

the witness was justified as he had been heard in the course of the

investigation. He had stated that he was not able to see the person

concerned in the act of committing the offence and consequently was not

able to identify the applicant. There were other witnesses who had

recognised the applicant. The Court considered that a visit to the

scene of the offence would be of no significance as the District Court

knew it ex officio. There was no indication that the District Court

was arbitrary in assessment of evidence.

On 12 April 1994 the Minister of Justice refused leave for an

extraordinary appeal.

Letters which the Commission's Secretariat sent to the applicant

on 24 January 1994, 24 March 1994 and 25 July 1994 were allegedly

stopped by the prison authorities, opened in his absence and handed to

him with delays of approximately twenty days. The prison authorities

posted the applicant's letters to the Commission only upon his

insistent requests.

2. Relevant domestic law

According to Article 30 para. 2 of the Rules of Execution of

Prison Sentences, the prisoner may correspond with foreign institutions

and organisations only with the permission of a prison governor.

According to Article 31 para. 1 the correspondence of a prisoner

shall be subjected to censorship by the prison governor, with the

exception of letters to and from legislative and administrative

authorities, the judiciary, the police and other state authorities.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the District Court refused to hear one witness who had been heard

during the investigation and to take evidence on the spot. He also

complains of the assessment of evidence by this Court.

The applicant further complains that three letters from the

Secretariat of the Commission were stopped, opened in his absence, read

and handed to him with delays of approximately twenty days. He alleges

that on several occasions the prison authorities first refused to post

his letters to the Commission and then only did so on his insistence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 December 1993 and registered

on 6 September 1994.

On 30 November 1994 the Commission decided to communicate the

application to the Polish Government who were invited to submit their

observations on its admissibility and merits before 21 February 1995.

At the Government's requests, dated 14 February, 16 March, 21 March and

13 April 1995, the time-limit for the submission of the observations

was subsequently extended four times, until 10 March, 31 March, 10

April and 30 April 1995, respectively.

By letter of 27 April 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 June session.

THE LAW

1. The applicant complains that three letters from the Secretariat

of the Commission were stopped, opened in his absence, read and handed

to him with delays of approximately twenty days. He alleges that on

several occasions the prison authorities refused to post his letters

to the Commission and did so only on his insistence.

The Commission has examined these complaints under Article 8

(Art. 8) and Article 25 para. 1 (Art. 25-1) of the Convention.

Article 8 (Art. 8) of the Convention, insofar as relevant,

provides:

"1. Everyone has the right to respect for his ...

correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

Article 25 para. 1 (Art. 25-1) of the Convention, insofar as

relevant, provides:

"1. The Commission may receive petitions addressed to the

Secretary General of the Council of Europe from any person...

claiming to be the victim of a violation by one of the High

Contracting Parties of the rights set forth in this Convention...

Those of the High Contracting Parties who have made such a

declaration undertake not to hinder in any way the effective

exercise of this right."

The Commission recalls that the application was 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, four

times, the last time until 30 April 1995. No observations have been

submitted within the time-limit.

As regards the exhaustion of domestic remedies, 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. 11.10.93, unpublished).

Insofar as the complaint raises issues under Article 25 para. 1

(Art. 25-1) of the Convention, the Commission recalls that the general

rules of admissibility, including the provisions concerning the

exhaustion of domestic remedies, are not applicable with regard to the

complaints which raise a question under Article 25 para. 1 (Art. 25-1)

of the Convention (see No. 3591/68, Dec. 5.2.70, Collection 31, p. 37).

It follows that the complaint under Article 8 (Art. 8) of the

Convention cannot be rejected under Article 26 (Art. 26) of the

Convention for non-exhaustion of domestic remedies.

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.10.7.78, D.R.13 p. 85).

Having examined the complaint under Article 8 (Art. 8), 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 complaint 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 Commission further considers that the question whether the

applicant's right under Article 25 (Art. 25) of the Convention to

exercise his right of petition has been interfered with requires

further examination by the Commission.

3. The applicant further complains under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention that the criminal proceedings were

unfair in that the Wloclawek District Court refused to hear one

witness, who had been heard in the course of the investigations, and

wrongly assessed evidence before it. The Court also refused to take

evidence on the spot.

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

relevant, provides:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing."

Article 6 para. 3 (Art. 6-3) of the Convention, insofar as

relevant, provides:

"3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him."

The Commission recalls that Article 6 (Art. 6) of the Convention

does not grant the accused an unlimited right to secure the appearance

of witnesses in court. Furthermore, it is in the trial court's

discretion to refuse to take evidence which is considered irrelevant

or unobtainable (see. No. 8417/78, Dec. 4.5.79, D.R. 16 p. 200 and Eur.

Court H.R.; Engel and Others judgment of 8 June 1976, Series A no. 22,

pp. 38-39, para. 91). Moreover, according to the Convention organs'

case-law, it is primarily for the national courts to assess the

evidence before them. The Convention organs' task is to ascertain

whether the proceedings as a whole, including the way in which evidence

was taken, were fair (see Eur. Court H.R., Asch judgment of 26 April

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

In the present case, the District Court refused to hear the

witness concerned as he had already been heard during the

investigations. The Court considered his evidence irrelevant as he had

stated that he had not recognised the person concerned while he was

committing an offence. Moreover, the Court refused to take evidence

on the spot, all relevant circumstances being known to the Court.

There are no elements which would indicate that the District Court went

beyond its discretion when appraising the evidence in the circumstances

of the present case.

It follows that the remainder of 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 ADMISSIBLE, without prejudging the merits of the case,

the complaints under Article 8 (Art. 8) of the Convention;

DECLARES INADMISSIBLE the remainder of the application;

DECIDES TO PURSUE the examination of whether the applicant's

right under Article 25 (Art. 25) of the Convention was interfered

with.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A. NØRGAARD)

Menu

SAWICKI v. POLAND

SAWICKI v. POLAND

LEXI