FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31387/96 by Czesław KLINIECKI against Poland

The European Court of Human Rights (Fourth Section) , sitting on 15 June 2000 as a Chamber composed of

Mr G. Ress, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mrs N. Vajić, Mr M. Pellonpää, judges ,

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 September 1994 and registered on 6 May 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 21 October 1998,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1948 and living in Kuźnia Raciborska , Poland.

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

Since 1974 the applicant has been running an animal farm. In 1990 he set up the GEM limited liability company ( spółka z ograniczoną odpowiedzialnością ), which operated the farm and traded furs and other merchandise. The applicant was a shareholder and the president of the company.

On 26 July 1992 the applicant was arrested, on suspicion of fraud, at the request of the Racibórz District Prosecutor ( Prokurator Rejonowy ).

On 2 and 23 December 1992 the Racibórz District Prosecutor filed with the Katowice Regional Court ( Sąd Wojewódzki ) two bills of indictment against the applicant. In particular, he charged him with an attempt to defraud the “P” insurance company by submitting a false compensation claim for 1,342,884,100 old zlotys (PLZ) concerning arson on his animal farm and the theft of merchandise from a warehouse located on the farm. In addition, the applicant was charged with making false representations about the arson and theft and with misleading a court expert, Mr W.W., in order to obtain an inflated valuation of the farm. The charges against the applicant also included two counts of conspiracy to defraud banks and one count of acting against the interests of the GEM company. Finally, the bills of indictment included a charge against Mr W.W. for having made false representations concerning the value of the farm. On 12 January 1993 the court decided that it would examine together all charges in both bills of indictment.

On 23 February 1993 the first hearing was held before the Katowice Regional Court. On this occasion the applicant, Mr W.W. and two witnesses were examined.

At hearings held on 24 February and 9 March 1993, the court examined 18 other witnesses.

A hearing fixed for 13 March 1993 was adjourned until 25 May 1993, because the judge rapporteur was ill.

During the hearing held on 25 May 1993, the court examined four more witnesses and two court experts and dismissed the request submitted by counsel for the applicant that he be released from detention.

On 16 June 1993 the Katowice Court of Appeal ( Sąd Apelacyjny ) rejected a complaint of the applicant’s counsel about the trial court’s decision dismissing his request for release submitted at the hearing held on 25 May 1993. On the same date the Court of Appeal also dismissed the applicant’s request of 3 June 1993 that he be released from detention.

The next hearing before the Katowice Regional Court was held on 2 July 1993. The court took evidence from two witnesses and two experts. In addition, it dismissed a request submitted by counsel for the applicant that he be released from detention.

On 28 July 1993 the Katowice Court of Appeal dismissed the applicant’s request of 5 July 1993 that he be released from detention.

During a hearing held on 6 August 1993, the court examined a witness and dismissed a request submitted by counsel for the applicant that he be released from detention. The next hearing took place on 24 August 1993.

On 27 August 1993 the Katowice Regional Court convicted the applicant of one count of conspiracy to defraud a bank, and of acting against the interests of the GEM company, and sentenced him to 18 months’ imprisonment and a fine of PLZ 30,000,000. It acquitted the applicant of the remaining charges. In addition, it acquitted Mr W.W.

On the same day the applicant was released, as his detention on remand was deducted from his prison sentence.

On 3 September 1993 the applicant requested the Katowice Regional Court that he be served with the reasoned judgment.

On 15 September 1993 the Katowice Court of Appeal dismissed the prosecutor’s complaint about the trial court’s decision to release the applicant from detention.

On 15 November 1993 the Katowice Regional Court delivered a reasoned judgment.

On unspecified dates the applicant and the prosecutor appealed against the judgment of 27 August 1993.

On 17 March 1994 the Katowice Court of Appeal quashed the part of the impugned judgment acquitting the applicant and remitted the case to the trial court.

On 11 April 1994 the case-file was returned to the Katowice District Court. Subsequently, the applicant asked the President of the Supreme Court ( SÄ…d Najwyższy ) and the Ombudsman ( Rzecznik Praw Obywatelskich ) to intervene in his case.

On 28 April 1994 the judge rapporteur in the applicant’s case was designated. On 4 October 1994 the rapporteur was replaced because of ill-health.

A hearing fixed for 25 October 1994 was adjourned. The Government submit that the adjournment resulted from the applicant’s illness. The applicant avers that he failed to attend the hearing because, on 24 October 1994, his ex officio counsel had advised him that he would not represent him anymore, that he would not attend the hearing and therefore it had not made any sense for the applicant to risk his health by attending the hearing.

The next hearing was scheduled for 16 November 1994. The applicant and his counsel did not attend. The Government submit that the applicant’s absence resulted from his failure to collect summonses.

On 21 December 1994 the hearing was adjourned because the applicant did not attend it. The Government claim that the applicant was advised by his counsel of the date of that hearing. The applicant contests that claim and submits that he did not attend the hearing because he did not know about it.

The next hearing took place on 24 January 1995. The applicant and his counsel were present. The court took evidence from the applicant and adjourned the hearing until 2 March 1995.

On 2 March 1995 the applicant attended the hearing, but his counsel failed to appear because of ill-health.

On 13 March 1995 the case-file was transmitted to the Ombudsman. It was returned to the Katowice District Court on 12 April 1995.

During a hearing held on 6 June 1995, the court examined ten witnesses and adjourned the hearing until 14 September 1995. The Government submit that the adjournment resulted from summer holidays.

The next two hearings took place on 14 September and 18 October 1995, when two, respectively three, witnesses testified. The Government submit that between those dates, the court obtained addresses of witnesses and certain documents relevant to the case.

On 29 November 1995 the court held a hearing at which three witnesses testified. At the next hearing, held on 16 January 1996, the court examined a court expert.

On 23 February 1996 the Katowice Regional Court examined two witnesses and delivered a judgment. The court found the applicant guilty of an attempt to defraud the “P” insurance company and of making false representations about the arson on the animal farm and the theft of merchandise from a warehouse located on it. The applicant was sentenced to 18 months’ imprisonment. At the same time, he was acquitted of the charge of conspiracy to defraud banks.

On an unspecified date the applicant appealed against the judgment of 23 February 1996. On 29 October 1996 the Katowice Court of Appeal dismissed his appeal.

On 20 December 1996 the applicant filed a cassation appeal with the Supreme Court.

On 17 June 1997 the Supreme Court allowed the applicant’s appeal, quashed the Regional Court’s judgment of 23 February 1996 and remitted the case to the trial court.

On 11 July 1997 the case-file was returned to the Katowice Regional Court. On 13 July 1997 a judge rapporteur was designated for the applicant’s case. He scheduled a first hearing for 24 March 1998.

On that date the court examined the applicant. During the next two hearings, held on 7 and 19 May 1998, several witnesses testified.

On 22 July 1998 the Katowice Regional Court examined a witness and delivered a judgment in which it acquitted the applicant. On 16 October 1998 the judge rapporteur gave a reasoned judgment.

On 16 November 1998 the prosecutor appealed against the judgment of 22 July 1998. The first hearing before the Katowice Court of Appeal was scheduled for 7 January 1999. It appears that the proceedings are still pending.

PROCEDURE

The application was introduced on 25 September 1994 before the European Commission of Human Rights and registered on 29 April 1997.

On 21 October 1998 the Commission decided to adjourn the examination of the applicant’s complaint about the length of the criminal proceedings against him and declared inadmissible his remaining complaints.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of the Convention.

On 8 February 1999 the Government submitted their observations on the application, after an extension of the time-limit fixed for that purpose. The applicant replied on 13 April 1999.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings.

THE LAW

The applicant complains that the criminal proceedings in his case were not concluded within a reasonable time, contrary to Article 6 § 1 of the Convention which, in so far as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a … hearing within a reasonable time ... by [a] ... tribunal ...”

                     The Government submitted that the part of the application relating to events which took place before 1 May 1993, when the declaration whereby Poland recognised the right of individual petition took effect, was outside the competence ratione temporis of the Court.

In this connection, the Court recalls that Poland recognised the competence of the European Commission of Human Rights to receive 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”. According to Article 6 of Protocol No. 11 this limitation shall remain valid for the jurisdiction of the Court under that Protocol. It follows that the period to be taken into consideration by the Court starts on 1 May 1993. In order to determine the reasonableness of the length of time in question the Court will have regard to the state of the case on that date (see, among other authorities, the Podbielski v. Poland judgment of 30 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3395, § 31).

The Government invited the Court to declare the application inadmissible on the ground that it was manifestly ill-founded within the meaning of Article 35 of the Convention. In this connection they contended that, in view of what was at stake for the applicant, the length of the proceedings did not have an adverse effect on his rights. The applicant had been released from detention on 27 August 1993, when the first judgment of the trial court had been delivered, and was at liberty during the subsequent court proceedings. Moreover, the Government submitted that the case was very complicated, as it involved several charges, two defendants, and numerous witnesses and court experts. In addition, the complexity was caused by the fact that the charges were based on both the Criminal Code and the Commercial Code and concerned diverse offences committed on different occasions. Several courts involved in the proceedings had to acquaint themselves with the case-file. The Government also pointed out that the fact that the first reasoned judgment of the trial court was 32 pages long showed the complexity of the case.

The Government further contended that “there were some obstacles in collecting evidence”. In this connection, they recalled that the courts had to find addresses of witnesses, serve summonses on witnesses and court experts, and request documents from different institutions. Still, with reference to the complexity of the case, the Government observed that “at the same time two sets of proceedings concerning the applicant were pending: the first one concerned the pardon of the applicant, the second one – on the adjournment of the execution of the penalty”.

Furthermore, the Government submitted that the applicant contributed to the length of the proceedings. On numerous occasions the applicant and his counsel filed requests for release from detention. In addition, the applicant had asked the Ombudsman to intervene in his case; as a result the case-file was transmitted to the Ombudsman’s office. The Government contended that the hearing on 25 October 1994 had been adjourned because of the applicant’s illness and the failure of his counsel to attend. What is more, the applicant’s unjustified failures to appear before the court resulted in the adjournments of the hearings on 16 November and 21 December 1994. In the Government’s opinion these facts show that the examination of the applicant’s case within a reasonable time was not always a matter of priority for him. On 2 March 1995 the hearing was again adjourned because of the absence of the applicant’s counsel. In addition, the applicant’s ex officio counsel had to be replaced because of his ill health.

Regarding the behaviour of the national authorities, the Government submitted that the domestic courts showed diligence in the conduct of the proceedings. Three courts were involved in the examination of the applicant’s case and, as a result, the case-file had to be transmitted between them on numerous occasions. In addition, the ill-health of a judge rapporteur led to the adjournment of a hearing fixed for 13 April 1993 and to a period of inactivity lasting over one month and a half when the case was pending before the Katowice Regional Court.

The applicant submitted that the length of the criminal proceedings in his case was unreasonable. He claimed that he had not attended the hearing scheduled for 25 October 1994 because on 24 October 1994 his ex officio counsel had advised him that he would not represent him anymore and that he would not attend the hearing and since it did not make any sense for him to risk his health by attending the hearing. Moreover, the applicant submitted that he had failed to appear before the court on 21 December 1994 because he had not known about that hearing. The applicant also contended that what was at stake in the proceedings was important to him. He was charged with criminal offences, interrogated and required to attend court hearings. The applicant submitted that his friends and family, unable to bear the pressure resulting from those circumstances, had left him.

The applicant further contested the Government’s submission that the length of the proceedings resulted from the fact that the case-file had to be circulated between different courts. In this connection, he pointed out that in 1995 it had taken only 30 days to transmit the case-file from the court located in Katowice to the Ombudsman’s office in Warsaw, whereas in 1996 108 days were needed to transmit the case-file between two courts situated in Katowice . This, in his view, shows the courts’ negligence. Furthermore, the applicant pointed out that the first hearing had been held in February 1993, i.e. 213 days after he had been detained. In addition, after the case had been remitted to the trial court, 289 days elapsed between the date on which the trial court received the case-file and the date on which the first hearing was held.

The Court considers, in the light of the parties’ submissions, that these complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President