FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53804/00 by Marian WITKOWSKI against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 4 February 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 29 September 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Marian Witkowski , is a Polish national, who was born in 1952 and lives in Biłgoraj . He is represented before the Court by Mr Adam Włoch , a lawyer practising in Cracow .

A. The circumstances of the case

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

On 1 March 1993 the applicant was arrested on suspicion of trading in children. He was released on the next day.

On 23 April 1993 he was arrested under a “wanted” notice at the border checkpoint in Słubice , when trying to leave Poland. On the same day the police searched his apartment.

By a decision of 27 April 1993 the Zamość Governor, at the police’s request, annulled the applicant’s passport.

On 27 April 1993 the prosecutor charged the applicant with the offence of trading in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code of 1969, then in force. On the same day the applicant was detained on remand.

The applicant appealed against the decision imposing detention on him.  On 7 May 1993 the Zamość Regional Court dismissed his appeal, finding that his detention was necessary to ensure the proper course of the proceedings, since the applicant posed the risk of absconding.

On 9 June 1993 the applicant requested the prosecuting authorities to release him from detention and to apply other, more lenient, preventive measures. On 14 June 1993 the Zamość District Prosecutor dismissed his request. On 19 June 1993 the applicant appealed against this decision. By a decision of 24 June 1993 the Lublin Regional Prosecutor dismissed his appeal.

By a decision of 9 July 1993 the Zamość Regional Court prolonged the applicant’s detention until 23 October 1993. The court considered that the previous grounds for detaining the applicant remained still valid. The applicant appealed. On 22 July 1993 the Lublin Court of Appeal upheld the detention order and the reasons therefor.

By a decision of 13 October 1993, upheld by the decision of the Lublin Court of Appeal of 28 October 1993, the Zamość Regional Court prolonged the applicant’s detention until 23 January 1994. On 16 November 1993 the Zamość District Prosecutor decided to release him on bail. On 22 November 1993 the applicant was released after bail had been paid.

During the investigations, numerous press articles and the applicant’s photos were published in the national and local press, informing the public about the applicant’s case, about the charges brought against him and against his co-accused. The applicant filed several complaints with the prosecuting authorities, complaining about extensive information given to the media about his case and about allegedly improper service of his correspondence by the prison administration.

In the letters of 30 July 1993 and of 8 October 1993 the prosecuting authorities admitted that the letters to the applicants had not been served on him in accordance with the relevant provisions. The remaining complains were considered unfounded.

On 22 October 1993 the applicant lodged complaint with the court that in the proceedings concerning his detention on remand he was deprived of access to his case-file. Apparently, that complaint was later dismissed by the court.  

On 30 December 1993 the Zamość District Prosecutor Office stayed the criminal proceedings against the applicant and his co-accused insofar as they concerned charges under Article IX, considering that time-consuming international investigations had been instituted concerning these charges and that there had been no progress in the case in this respect in view of the slowness of the investigations conducted by the foreign authorities.

On 3 February 1994 the prosecuting authorities resumed the  proceedings.

On 30 June 1994 the Zamość District Prosecutor lodged a bill of indictment against the applicant and other persons with the Lublin Court of Appeal. The applicant was charged with the offences of trading in children and with inciting third parties to giving false testimony.

On 16 September 1994 the Lublin Court of Appeal transferred the case to the Warsaw Regional Court. Subsequently, the proceedings were conducted before that court. A number of hearings were held before the first-instance court.

On 1 September 1998 a new Criminal Code entered into force. Article IX of the Transitional Provisions of the Criminal Code of 1969 was thereby repealed.

On 3 November 1999 the Warsaw Regional Court discontinued criminal proceedings against the applicant and against his co-accused insofar as they concerned charges under Article IX. The court recalled that in view of the fact that Article IX had ceased to be in force, the prosecuting authorities had amended the charges by qualifying the acts with the commission of which the applicants had been charged as an offence punishable under Article 253 § 2 of the new Code. The court considered that this qualification could not be upheld. There were no grounds on which to accept that the notion of “trading in children” included also acts which could be only regarded as organising illicit adoptions. It was only under the new Criminal Code, in force since 1 September 1998, that organising illicit adoptions had become a criminal offence. Consequently, the court had to discontinue the proceedings pursuant to Article 17 § 1 item 1 of the new Code, which provided that the criminal proceedings had to be discontinued if the charges against the accused had not been made out.

The prosecutor appealed.

On 4 February 2000 the Warsaw Court of Appeal, amended the contested decision in part, considering that the proceedings against the accused concerning the charges of trading in children should have been discontinued on the ground that the acts with which they had been charged had not amounted to a criminal offence at the time of their commission. The court recalled that the accused had been indicted on charges of trading in children on the basis that they had, in order to gain profit, visited hospitals, orphanages and hostels for single mothers, trying to persuade biological parents to place their children for adoption, in certain cases for money. Their actions had further been described as taking children away from biological parents and taking further care of them, as well as taking steps to institute adoption proceedings. The accused had allegedly also arranged transfers of children to foreign citizens and made payments to the biological parents. The court considered that these acts could not be qualified as trading in children either within the meaning of the repealed Article IX of the Transitional Provisions of the old Code, or as trading in human beings within the meaning of § 2 of Article 253 of the new Criminal Code. Such acts could only be construed as the organisation of foreign adoptions for profit. As a result, the impugned acts (between 1990-1993) had not constituted criminal offences, since it was only under the 1997 Criminal Code, which had entered into force on 1 September 1998, that they could have been qualified as falling within the ambit of Article 253 § 2 of that Code. Consequently, the proceedings should have been discontinued on the ground that the acts concerned did not correspond with the constituent elements of the offence of trading in children as defined by Polish law at the material time, and not on the ground that the charges against the accused had not been made out.

B. Relevant domestic law and practice

a) Provisions governing criminal responsibility for the offence of trading in children

Article IX of the Transitional Provisions of the Criminal Code of 1969 provided that a person who delivered, enticed or abducted other persons for purposes of prostitution, even with that person’s consent, committed an offence punishable by a prison sentence of not less than three years. Under § 2 of this provision the same sentence could be imposed on a person who practised trading in women or children.

Under Article 2 of the Transitional Provisions of the new Criminal Code, the Transitional Provisions to the 1969 Code were repealed.

Under Article 253 § 1 of the new Code, a person who trades in human beings, even with their consent, commits an offence punishable by a prison sentence of not less than three years. Pursuant to § 2 of the same Article, a person who, with a view to obtaining profit, organises adoptions of children in a manner contrary to the law, commits an offence punishable by a prison sentence of between three months and five years.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the fact that he was publicly branded by press articles and by official statements as a “child trafficker” amounted to a breach of that provision.

The applicant complains under Article 5 that his detention on remand was unlawful as there could not have been a reasonable suspicion of his having committed a crime of child trafficking as his acts consisted only of giving assistance in foreign adoptions.

He complains under Article 5 § 4 of the Convention that in the proceedings concerning his detention on remand he was deprived of access to his case-file.

The applicant complains under Article 5 § 5 of the Convention, that he should be entitled  to compensation for unjustified detention.

The applicant complains under Article 6 § 1 that the criminal proceedings against him exceeded a reasonable time.

He complains under Article 6 § 2 that his right to be presumed innocent until a final judgment of a competent court was breached by a hostile press campaign in which official statements as to his alleged involvement were made.

The applicant complains under Article 7 that he was charged with acts which could not be reasonably construed as criminal offences and that this was done for political motives.

The applicant finally complains under Article 8 that in the press campaign details concerning his family were given to the media by the prosecuting authorities.

THE LAW

1. The applicant complains under Article 3 of the Convention that the fact that he was publicly branded by the press articles and by official statements as a “child trafficker” amounted to a breach of that provision. He also complains under Article 8 that in the press campaign details concerning his family were given to the media by the prosecuting authorities.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted.

The Court first notes that is has not been shown that the applicant lodged any civil action with the court concerning infringement of his or his family’s personal rights. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant also complains under Article 5 that his detention on remand was unlawful as there could not have been a reasonable suspicion of his having committed a crime of child trafficking as his acts consisted only of giving assistance in foreign adoptions. He also complains under Article 5 § 4 of the Convention that in the proceedings concerning his detention of remand he was deprived of access to his case-file.

Under Article 35 § 1 of the Convention, 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 the application was lodged on 21 May 2001. The applicant was remanded in custody on 27 April 1993 and released on 22 November 1993. The last set of proceedings concerning his detention was held before the Lublin Court of Appeal on 28 October 1993. This is more than six months before the date on which he submitted his application to the Court. It follows that these complaints are introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant complains under Article 5 of the Convention, that he should be entitled  to compensation for unjustified detention.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted.

The Court notes that it has not been shown that the applicant lodged an action with the court claiming compensation in respect of his unjustified detention. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. The applicant complains under Article 6 § 2 that his right to be presumed innocent was breached by a hostile press campaign in which official statements as to his alleged involvement in child trafficking were made. He also complains under Article 7 that he was charged with acts which could not be reasonably construed as criminal offences and that this was done for political motives.

The Court recalls that a defendant who has been acquitted cannot claim to be a victim of violations of the Convention concerning the proceedings against him ( Eur . Comm. HR, No. 13156/87, Dec. 1.07.1992, D.R. 73, p. 5). In the present case the court discontinued the proceedings in part concerning the charges of alleged child trafficking,  considering that the acts with which the applicant had been charged did not amount to a criminal offence. Such a decision, by which the judicial authority finds that no criminal offence had been committed by the accused, is similar to an acquittal. Consequently, the applicant cannot claim to be a victim of a violation of the Convention, as required by Article 34 of the Convention. Accordingly, this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3.

5. He also complains under Article 6 § 1 that the criminal proceedings against him exceeded a reasonable time.

The Court recalls that an applicant, who complains about the length of criminal proceedings is not prevented from claiming to be a “victim” by the fact that the proceedings ended in his acquittal ( Eur . Comm. HR, No. 13156/87, Dec. 1.07.1992, D.R. 73, p. 5).  Moreover, the Court notes that the proceedings concerning other charges against the applicant are still pending. Having regard to its above considerations as to the applicant’s status as a victim in respect of the alleged procedural violations of Article 6 of the Convention, the Court is of the view that the applicant can claim to be a victim of a breach of the Convention insofar as excessive length of criminal proceedings is alleged.

It 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 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of criminal proceedings against him;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President