FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52690/99 by Lech MAJEWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 24 August 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström , Ms L. Mijović , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 18 June 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Lech Majewski , is a Polish national, who was born in 1955. He is presently detained in the Stare Bobolice Prison, Poland.

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

A. Events of 14 December 1989 and subsequent criminal proceedings

In December 1989 riots broke out in the Nowogard Remand Centre ( Areszt Åšledczy ), where the applicant was detained, as well as in other remand centres in Poland.

On 14 December 1989 the applicant, with several other detainees, was transferred to the Białystok Remand Centre. Upon their arrival at 8 p.m. the detainees left the prison van one-by-one. The prison guards formed a corridor between the car and the building and, as the detainees were passing, they beat them with their fists and truncheons and kicked them.

The applicant and other detainees complained about this treatment to various institutions.

In May 1991 the Regional Prosecutor lodged a bill of indictment against the Governor of the Białystok Remand Centre and his two deputies.

On 28 October 1994 the Białystok District Court gave judgments in the criminal cases against the Governor and his deputies. It established that the Governor of the Remand Centre by his instructions “to treat prisoners so that they would find it difficult to move” had effectively agreed that the prison guards use force, in particular, truncheons. In carrying out the Governor’s instructions tacitly approved by his deputies, the prison guards had beaten a total of 68 prisoners over a period of several days. The District Court further found that the Governor had acted in order to prevent riots in the Białystok Remand Centre and that the prisoners had not suffered any serious injuries. In consequence, the District Court conditionally discontinued the criminal proceedings ( umorzenie postępowania ). Since no appeal was lodged against the judgment, it became final.

B. Civil proceedings against the Białystok Remand Centre

1. Facts before 1 May 1993

On 10 November 1990 the applicant lodged a civil action for compensation against the State Treasury - the Białystok Remand Centre with the Białystok District Court ( Sąd Rejonowy ). He alleged that upon his arrival in the Białystok Remand Centre, on 14 December 1989, he had been beaten and insulted by the prison guards and had subsequently not received proper medical care. The applicant claimed that in consequence of the excessive use of force against him he had sustained a spinal injury and suffered permanent disability.

At the first hearing held on 20 December 1990 the court appointed a lawyer under a legal aid scheme for the applicant and ordered a copy of the case-file concerning the criminal investigation concerning the events of December 1989.

On 31 January 1991 the court held a hearing at which the applicant’s court-appointed lawyer, Mr B.Z., was present. The court stayed the proceedings.

On 17 July 1992 the Białystok District Court resumed the proceedings. However, on 12 August 1992 it decided to stay them again in view of the fact that the criminal proceedings against the Governor of the Białystok Remand Centre were pending.

2. Facts after 1 May 1993

On 29 May 1995 the Białystok District Court resumed the proceedings on the grounds that the criminal proceedings against the Governor of the Remand Centre had ended. The court further decided that the Białystok Regional Court ( Sąd Wojewódzki ) was competent to deal with the case.

On 18 January 1996 the Białystok Regional Court held the first hearing.

In October 1996 the applicant modified his claim. He requested 250,000 Polish zlotys (PLN) in compensation and a monthly pension.

In January 1997 the applicant was heard before the Trzcianka District Court.

In June 1997 the applicant complained to the President of the Białystok Regional Court about the delay in the examination of his case. The President acknowledged that the proceedings had been excessively long and decided to supervise them personally. The applicant also complained to the Ombudsman about the length of the proceedings.

Between 18 September and 18 November 1997 the trial court held four hearings.

On 27 November 1997 the Białystok Regional Court gave judgment. It partly allowed the applicant’s action. The court acknowledged that the applicant had suffered moral damage as a result of the illegal actions of the state agents and awarded him compensation. The Regional Court dismissed the applicant’s allegations that the incident had caused a spinal injury and dismissed the remainder of his claims for compensation.

It appears that the applicant’s court-appointed lawyer refused to lodge an appeal against the judgment on his behalf. On 23 February 1998 the applicant lodged an appeal that he had prepared himself.

The State Treasury also lodged an appeal against this judgment.

On 4 March 1998 the Białystok Regional Court ordered the applicant’s court appointed lawyer to rectify a formal shortcoming in the applicant’s appeal by attaching an additional copy of his appeal.

On 16 March 1998 the lawyer informed the court that he was unable to comply with this order since he did not have a copy of the appeal which had been prepared by his client. He further suggested that the court notify the applicant directly about the formal shortcoming in his appeal.

On 26 March 1998 the Białystok Regional Court rejected the appeal lodged by the applicant because it did not satisfy formal requirements and the shortcoming had not been rectified within the allocated time-limit. The court considered that, according to the Code of Civil Procedure, if a party to the proceedings were represented by a court-appointed lawyer, all court correspondence should be sent to the representative.

On 7 May 1998 the Białystok Court of Appeal ( Sąd Apelacyjny ) held a hearing and examined the appeal lodged by the State Treasury. The hearing was held in the absence of the State Treasury’s representative. The applicant’s court-appointed lawyer was present. The appellate court gave judgment in which it allowed the State Treasury’s appeal, quashed the impugned judgment, and dismissed the applicant’s action.

On an unspecified later date the applicant’s court-appointed lawyer refused to lodge a cassation appeal against this judgment on his behalf. It appears that he found no legal grounds to do so.

The applicant complained about his lawyer’s failure to lodge a cassation appeal on his behalf to the Regional Bar Council ( Okręgowa Rada Adwokacka ). On 13 November 1998 the Regional Bar Council instituted disciplinary proceedings against the lawyer.

On 15 February 1999 the Regional Bar Disciplinary Council dismissed the applicant’s complaint and discontinued the disciplinary proceedings.

C. Civil proceedings against the Szczecin Remand Centre

1. Facts before 1 May 1993

On 28 January 1991 the applicant lodged a civil action for compensation against the State Treasury- Szczecin Remand Centre with the Szczecin Regional Court ( Sąd Wojewódzki ) . He claimed PLN 2,500 in compensation for an accident which had occurred in 1983, during his detention in the Szczecin Remand Centre. The applicant further complained that the medical treatment he had received at the material time had been inadequate.

2. Facts after 1 May 1993

On 11 March 1994 the trial court held the first hearing. The applicant, who had been in detention since 1977, was not present at the hearing because he had failed to return to prison from leave. At that hearing, the court stayed the proceedings on the grounds that the applicant’s address could not be established.

On 20 November 2000 the Szczecin Regional Court resumed the proceedings.

On 24 April 2001 the trial court held a hearing at which it ordered that an expert opinion be obtained.

On 13 December 2001 the court held a second hearing at which it decided that the applicant would be heard by another court since he had been transferred to a different prison.

On 11 February 2002 the applicant was heard before the Trzcianka District Court.

On 26 March and 7 May 2002 the Szczecin Regional Court held hearings.

On 24 May 2002 the trial court gave judgment. It dismissed the applicant’s action.

The applicant’s court-appointed lawyer lodged an appeal against that judgment.

On 13 November 2002 the PoznaÅ„ Court of Appeal allowed his appeal, quashed the Regional Court’s judgment and remitted the case to the first ‑ instance court.

The case is pending before the Szczecin Regional Court.

COMPLAINTS

1. The applicant complains under Articles 6 § 1 of the Convention about the unreasonable length of both sets of civil proceedings.

2. He further complains under Article 6 § 1 of the Convention about the outcome of the proceedings in that he lost the case and did not receive any compensation.

3. The applicant also complains under Articles 6 § 1 and 13 of the Convention about the unfairness of the first set of civil proceedings. In particular he alleges that his court-appointed lawyer did not diligently represent his interests.

4. The applicant also complains that in 1989 he was subjected to torture and inhuman and degrading treatment.

5. Finally, the applicant complains that he was deprived of his right to be temporarily released from prison.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that the length of both sets of the proceedings exceeded a reasonable time.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains under Article 6 § 1 of the Convention about the outcome of the proceedings in that he lost the case and did not receive any compensation.

The relevant part of Article 6 § 1 of the Convention provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court observes that in this complaint the applicant does not allege any particular failure to respect his right to a fair hearing but objects to the unfavourable outcome of the proceedings.

In this respect the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the States Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no 30544/96, ECHR 1999-I, § 28).

The Court does not consider that the unfavourable outcome of the proceedings had in itself any bearing on the applicant’s right to a fair trial.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. In his letter of 14 June 1999 the applicant complained that in the first set of proceedings he did not have a “fair trial” in that his court ‑ appointed lawyer had not acted diligently, had never contacted him and had not lodged an appeal against the Regional Court’s judgment on his behalf. The applicant further complained that his lawyer had refused to lodge a cassation appeal with the Supreme Court on his behalf.

The Court firstly recalls that, that the conduct of the defence is essentially a matter between the defendant and his counsel, and, as such, cannot, other than in special circumstances, incur the State’s liability under the Convention (see, mutatis mutandis , the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 18, § 36 and Tuzinski v. Poland ( dec ), no. 40140/98, 30 March 1999). However, leaving aside the question whether the conduct of the applicant’s court-appointed lawyer in this case could engage the responsibility of the State, the Court notes that the final domestic decision within the meaning of Article 35 § 1 of the Convention was given on 7 May 1998 by the Białystok Court of Appeal.

The relevant part of Article 35 § 1 of the Convention provides as follows:

“1. The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken...”

The Court notes that following the delivery of the Court of Appeal’s judgment of 7 May 1998, the applicant’s court-appointed lawyer refused to lodge a cassation appeal with the Supreme Court on his behalf. The applicant failed to specify the date on which he learned about this refusal. However, that occurred not later than 13 November 1998, the date on which the Regional Bar Council initiated disciplinary proceedings into his allegations against the lawyer. This was more than six months before the date on which the applicant submitted this complaint to the Court.

It follows that this complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4. The applicant further complains, under Article 3 of the Convention, that in 1989 he was subjected to torture and inhuman and degrading treatment.

Article 3 of the Convention provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

However, the Court notes that this complaint relate to the events which took place before 1 May 1993, the date on which Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect.

It follows that this part of the application is inadmissible as being incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to paragraph 4 of that Article.

5. Finally, the applicant complains that he was deprived of his right to be temporarily released from prison. However, the Court notes that the right relied on is not a right included in the rights and freedoms guaranteed by the Convention (see Zawoluk v. Poland , no. 27092/95, Commission decision of 12 April 1996, unreported).

Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints that the length of two sets of proceedings relating to his claims for compensation exceeded a “reasonable time” within the meaning of Article 6 § 1 of the Convention;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President