FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58369/00 by Henryk WALL against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 1 October 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , Mrs F. E lens-Passos , Deputy Registrar , Having regard to the above application introduced on 29 February 2000 and registered on 22 June 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Henryk Wall, is a Polish national, who was born in 1946 and lives in Warsaw. He is represented before the Court by Mr Adam WÅ‚och , 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 8 June 1993 the police searched the applicant’s apartment. They were allegedly rude to the applicant’s daughter, who as a result suffered nervous shock.

On 9 June 1993 the applicant was questioned as a witness.

On 17 November 1993 the prosecutor charged the applicant with trading in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code of 1969, then in force.

The applicant was apparently detained on remand for a certain period, which ended in December 1993.

During the investigations, numerous press articles were published in the national and local press, informing the public about the applicant’s case, about the charges proferred against him and against his co-accused. A prosecutor from the Lublin Regional Prosecutor’s Office gave a TV interview informing about the case. Other official statements of the prosecutors and officials of the Ministry of Justice were also published.

On 30 June 1994 the Warsaw District Prosecutor lodged a bill of indictment against the applicant and other persons with the Warsaw Regional Court. The applicant was charged with trading in children, while other persons were charged with numerous offences of trading in children and incitement to giving false testimony. Subsequently, criminal proceedings were conducted before that court. A number of hearings were held.

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 replaced.

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 punishable 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 neither be qualified as trading in children within the meaning of the repealed Article IX of the Transitory Provisions of the old Code, nor as trading in human beings within the meaning of § 2 of Article 253 of the new Criminal Code. Such acts could only be construed, regard being had to their nature, as organising foreign adoptions, in certain cases for commercial motives. As a result, these acts at the time of their commission, i.e. from 1990 to 1993, had not constituted criminal offences, given that 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, which penalised the organisation of adoptions for commercial motives. 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 the 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 Transitory Provisions of the Criminal Code of 1969 provided that a person who delivered, enticed or abducted other persons for prostitution purposes, 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 Transitory Provisions of the new Criminal Code, the Transitory 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 prison sentence of not less than three years. Pursuant to § 2 of the same Article, a person who, with a view of 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.

b) Case-law of the Polish courts and legal writings in cases in which charges of trading in children were brought against the accused

On 30 September 1994, the journal Rzeczpospolita published an article written by L.G., a renowned specialist in criminal law, entitled “Is it really trading with children?”. The author expressed strong doubts as to whether the offence punishable by Article IX of the Transitional Provisions of the 1969 Criminal Code could be applied in a context other than trading in human beings for the purposes of prostitution. It was emphasised that in view of the historical background of this provision, dating back to international treaties of 1910 concluded for the purposes of combating international networks deriving profits from prostitution, it could not be applied to situations concerning adoptions of children in which no allegations were made of there being any links or intentions related to organising prostitution.

On 29 November 1995 the Supreme Court, in reply to a legal question put to it by the Warsaw Court of Appeal, in the context of criminal proceedings concerning charges brought under Article IX of the Transitory Provisions of the Criminal Code of 1969 (as to whether the intent of coercing a victim of the offence of trading in children into practising prostitution was a constituent element of this offence), replied in the negative.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the behaviour of the police towards his daughter during the search on 8 June 1993 amounted to treatment prohibited by that provision. He further complains  that the fact that he was publicly branded by the press articles and by official statements as a child trafficker was also a breach of Article 3.

The applicant complains under Article 5 that 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 were only assisting in foreign adoptions.

He also 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 about the treatment inflicted on his daughter during the police search.

THE LAW

1. The applicant complains under Article 3 of the Convention that the behaviour of the police towards his daughter during the search on 8 June 1993 amounted to treatment prohibited by that provision. He further complains  that the fact that he was publicly branded by the press articles and by official statements as a child trafficker was also a breach of Article 3. The applicant finally complains under Article 8 about the treatment inflicted on his daughter during the police search.

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted and within six months from the date on which the domestic decision complained of has been given.

The Court first notes that is has not been shown that the applicant lodged any complaints or legal recourse against any of the measures complained of. As regards the complaint under Article 8 of the Convention, the Court also notes that the police searched the applicant’s apartment on 8 June 1993, which was more than six months before the date on which he submitted his application. 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 and for the failure to comply with the six-months time-limit.

2. The applicant complains under Article 5 that 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 were only assisting in foreign adoptions.

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 applicant was remanded in custody on an unspecified date in 1992 and released on an unspecified date in December 1993, which is more than six months before the date on which he submitted his application. It follows that this complaint is 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 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. 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 an acquitted defendant  cannot claim to be a victim of violations of the Convention which, according to him, took place in the course of 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 considering that the acts with which the applicant had been charged did not amount to a criminal offence. Such a decision must be regarded as having the same legal value as acquittal by which the judicial authority finds that no criminal offence had been committed by the accused. Consequently, the applicant could not therefore 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.

4. 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 in so far as the acquittal, not being directly connected to the length, cannot be considered as reparation for the alleged damage ( Eur . Comm. HR, No. 13156/87, Dec. 1.07.1992, D.R. 73, p. 5).  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.

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.

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.

Françoise E lens-Passos Nicolas Bratza                     Deputy Registrar President