FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29537/95 by Zbigniew RADAJ against Poland and Sweden

and

Application no. 35453/97

by Zbigniew RADAJ

against Poland

The European Court of Human Rights ( Fourth Section ) sitting on 14 October 1999 as a Chamber composed of

Mr M. Pellonpää, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova , judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 February 1994 by Zbigniew Radaj against Poland and Sweden and the application introduced on 4 October 1996 by Zbigniew Radaj against Poland, and registered on 13 December 1995 and 27 March 1997, under file nos. 29537/95 and 35453/97, respectively;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1953, resides in Warsaw .

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

A. Particular circumstances of the case

1 . Divorce proceedings

On 26 October 1993 the Warszawa- Mokotów District Court dissolved the applicant’s marriage, awarded custody of the applicant’s son Ł., born in 1985, to his mother M.R. and ordered the applicant to pay child support in a sum of 1,000,000 (old) Polish zlotys per month.

2. Administrative proceedings concerning the register of inhabitants

In 1992 and 1993 the competent administrative authorities repeatedly declined the applicant’s requests that his wife’s name be struck off the list of inhabitants of an apartment in a co-operative housing which had belonged to her and the applicant during their marriage, considering that the legal requirements therefor were not met.

On 9 May 1996 the applicant complained to the police that unknown persons had moved into his apartment.

On 19 May 1995 the Mayor of Warszawa- Ursynów ( Burmistrz gminy ) again refused to strike the applicant’s wife’s name off the list of inhabitants.

Subsequently the applicant submitted numerous complaints and sent letters to the administrative authorities and to the housing co-operative, submitting various complaints about his former wife’s conduct.

3. Proceedings concerning charges of insults of and uttering threats against judges and prosecutors

a) On unspecified dates, apparently in 1989 or 1990, and again later in 1993, the Warsaw District Court convicted the applicant of insulting judges and of uttering threats and imposed unspecified sentences on him.

b) On an unspecified date criminal proceedings were instituted against the applicant on suspicion of uttering threats against judges and prosecutors.

On 24 January 1996 the Warszawa- Wola District Prosecutor discontinued the investigations against the applicant on suspicion of insulting judges and prosecutors, i.e. of having committed an offence provided for in Article 236 of the Criminal Code, having regard to a psychiatric expert opinion according to which the applicant could not be held criminally responsible on psychiatric grounds. The prosecutor decided to request the court to give an order for the applicant’s committal to a psychiatric hospital under Article 99 of the (old) Criminal Code.

On 22 February 1996 the applicant lodged an appeal against this decision, arguing that the medical opinion was entirely false and aimed only at obstructing the applicant’s legitimate fight for justice against a corrupt judicial system.

In April 1996 the applicant’s psychiatric examination on an out-patient basis was ordered by the Warsaw District Court. Apparently the applicant refused to co-operate with the psychiatrists.

On 6 May 1996 a hearing before the Warsaw District Court was held in the proceedings.

On 15 May 1996 the applicant’s lawyer requested the court to stay the proceedings until a final judgment would be given in the criminal proceedings in which the applicant had been charged with persistent failure to pay child support. It was recalled that in the latter proceedings the Warsaw District Court had on 19 February 1996 ordered the applicant’s committal to a psychiatric hospital, pursuant to Article 99 of the Criminal Code. These proceedings were apparently pending before the appellate court. It was argued that the final outcome of those proceedings was of paramount importance for the proceedings concerned.

On 24 June 1996 the applicant requested that presiding judge L.W. step down, alleging that she was biased, as shown in particular by the fact that she had opened and read the applicant’s correspondence with the European Commission of Human Rights.

On 12 July 1996 the applicant refused to consent to a psychiatric examination.

On 15 July 1996 the applicant again complained to the President of the District Court about the manner in which the judge was proceeding in the case and requested to be examined by reliable psychiatrists.

Apparently the applicant’s request to stay the proceedings was unsuccessful.

On 9 September 1996 the Warsaw District Court dismissed the applicant’s motion for judge L.T. to step down, considering that the applicable statutory requirements were not met.

On 28 September 1996 the applicant lodged an appeal against this decision, submitting in particular that the judge had opened his mail from the European Commission of Human Rights, which was in breach of the Convention and which showed manifestly that she was biased against him.

On an unspecified date in October 1996, the court ordered the applicant to undergo an observation in a psychiatric hospital in order to assess whether the requirements for his psychiatric internment were met. The applicant lodged an appeal against this decision, which was rejected on 30 October 1996 as no appeal against this decision lay.

On 15 November 1996 the applicant was placed in Pruszków-Tworki psychiatric hospital for observation.

On 27 December 1996 the applicant requested the court to admit as evidence a further expert opinion of psychiatrists, who would assess whether medical expert reports, prepared in the criminal case concerning the charges of his failure to pay child support, were reliable.

On 21 January 1997 the applicant’s psychiatric observation was terminated. On 17 February 1997 he was discharged from the hospital.

On 21 March 1997 the applicant requested the court to assign a lawyer paid from the legal aid scheme to represent him in the case, in view of the fact that he had given notice on the power of attorney of advocate H. W.-K., who had been representing him. Apparently the court granted later his request. On 15 May 1997 the applicant complained to the court, alleging that lawyer J.V. had failed in his duty to represent him effectively, and requested the court to assign a new lawyer to the case.

On 24 June 1997 the applicant complained to the Minister of Justice, alleging procedural irregularities committed in connection with his appeal of 22 November 1996 against a decision of 30 October 1996 by which the court had rejected the applicant’s appeal against a decision to place him for observation in a psychiatric hospital.

On 12 August 1997 the Warsaw Regional Court declined to entertain the applicant’s appeal against the decision of 30 October 1996, considering that in any event the appeal had become devoid of purpose, the applicant’s observation having been terminated on 21 January 1997.

4. Criminal proceedings concerning charges of persistent failure to pay child support

On an unspecified date criminal proceedings were instituted against the applicant on charges of persistent failure to pay child support. On 7 March 1995 the applicant was remanded in custody. In an opinion of 18 April 1995 a psychiatrist stated that he should undergo a hospital observation in order to establish whether he could be held criminally responsible.

On 15 May 1995 the Warsaw District Court ordered the applicant to undergo observation in a psychiatric hospital. The applicant remained in the hospital from 20 July 1995 to 15 November 1995. In a medical opinion prepared following the observation, the psychiatrists concluded that he suffered from long-term paranoid reaction and that his remaining at liberty could pose a serious threat to public order.

On 19 February 1996 the Warsaw District Court acquitted the applicant of charges of persistent failure to comply with his obligations to pay child support, considering that he could not be held criminally responsible on medical grounds. The court, having regard to the medical opinion of psychiatrists J.C. Z., J.M. and S.G., committed the applicant to a psychiatric mental hospital, pursuant to the provisions of Article 99 of the Criminal Code.  The court took into consideration the experts’ conclusion that the applicant suffered from paranoid reaction as shown by numerous letters he had been sending to various State authorities, alleging corruption on the part of many authorities and stating that he was a victim of universal conspiracy. In his letters he had also had been proffering insults against many persons acting in their official capacity. The court further concluded that, in the light of the experts’ opinion, the applicant posed a threat to public order and that, therefore, the conditions laid down in Article 99 of the Criminal Code were met.

The applicant’s officially assigned lawyer lodged an appeal against this decision. On 29 April 1996 the applicant submitted his complementary pleadings to the court. On 25 July 1996 the Warsaw Regional Court upheld the contested decision.

On 29 July 1996 the applicant requested the Minister of Justice to lodge a cassation appeal against this judgment. On 4 September 1996 the Minister of Justice refused to do so, considering that the judgment was in conformity with the law and that the court, in the assessment of ample medical evidence gathered in the proceedings, did not overstep the limits of its appreciation set out by law.

On 15 November 1996 the applicant was placed in Pruszków Tworki hospital.

On 21 November 1996 the applicant’s lawyer lodged a cassation appeal with the Supreme Court against the decision of 25 July 1996, which had been served on her on 20 November 1996.

On 6 February 1997 the Warsaw District Court decided that, in view of the medical expert opinion of 31 January 1997, the applicant’s current condition was such as to warrant a conclusion that he had ceased to pose a threat to public order, and ordered his release from the psychiatric hospital.

Subsequently, on 9 December 1997, the applicant’s lawyer, acting on instructions, which the applicant had meanwhile been changing several times, had withdrawn the cassation appeal from the Supreme Court. Apparently the applicant again changed his mind again later on and in a letter to the Warsaw Bar Council of 30 December 1997 complained that the lawyer had overstepped the limits of his power of attorney and had acted in breach of his professional obligation of diligence.

Finally, by a judgment of 14 January 1998 the Supreme Court amended the contested decisions of 19 February 1996 and 25 July 1996 in that it set them aside in their part concerning the order to commit the applicant to a psychiatric hospital. The court stated that the lower courts had failed to take into consideration the nature of the offence committed by the applicant. The fact that the offence had not been of a violent character should have had a bearing on their reasoning. In the assessment of the medical expert opinions which served as a basis for their decisions, they had not taken into consideration the nature and clinical manifestations of the applicant’s mental disturbance. The courts in their decisions had failed to refer to the circumstances capable of substantiating their conclusion that the applicant’s remaining at liberty would entail a serious threat to public order. In particular, it had not been demonstrated with sufficient clarity why the courts had considered that such a threat in the applicant’s case would indeed be serious, as required by Article 99 of the Criminal Code. In this connection, the court referred to the applicant’s voluminous correspondence with various authorities and to the allegations and insults contained therein. It stressed that, whereas it was true that the applicant had certainly manifested a querulous attitude, he had on no occasion resorted to physical violence. Therefore there were no sufficient grounds for the conclusion that, had he remained at liberty, he would indeed have become dangerous to others. The court emphasised that the applicant’s conduct could eventually warrant a medical intervention, but not an application of a penal measure, involving deprivation of liberty.

The applicant subsequently complained to various authorities about the proceedings before the Supreme Court.

5 . Civil proceedings concerning the applicant’s claim for eviction

On 17 April 1997 the applicant lodged a civil action with the Warszawa- Mokotów District Court, claiming eviction from his apartment of persons to whom his wife had rented it without his consent.

On 14 May 1997 the applicant requested the court to take steps in order to encourage the parties to conclude a court settlement.

On 9 June 1997 the court dismissed the applicant’s request to have a lawyer paid from the legal aid scheme assigned to represent him in the case, and on 12 June 1997 refused to grant exemption from the court fee.

On 24 June 1997 the tenant moved out of the apartment. Apparently, the proceedings were later discontinued.

6 . Proceedings concerning the applicant’s claim for payment of rent against his former tenant

On an unspecified date in 1997 the applicant lodged a civil action against the former tenant of his apartment with the Warsaw District Court, claiming payment of rent overdue.

On 22 December 1997 he lodged an appeal against a certain procedural decision of the court. On 7 January 1998 the court ordered the applicant to pay court fee due for this appeal. The applicant lodged an appeal against this order. On 9 April 1998 the Warsaw Regional Court dismissed it, finding that the contested decision complied with the applicable legal provisions.

On 4 May 1998 the applicant requested to be granted exemption from court fee in connection with the proceedings as a whole and asked for legal aid.

On 9 June 1998 the Warszawa- Mokotów District Court rejected the applicant’s appeal against the decision of 22 December 1997, finding that the applicant had failed to pay court fee within the time-limit which had expired on 13 May 1998. On the same day the court imposed a fine on the applicant for having insulted the court in a certain letter to the court, dated 22 May 1998.

The applicant lodged an appeal against both decisions, submitting that in fact he had lodged his appeal on 4 May 1998. The proceedings are apparently pending before the first-instance court.

7 . Civil proceedings concerning child support

On 20 September 1996 the applicant’s former wife lodged with the Warszawa- Mokotów District Court a motion to have the child support augmented, arguing that the applicant had been persistently failing in his obligation to pay such support since June 1992 and that the sums due, which were clearly insufficient to meet reasonable needs of her son, had been paid by the Child Support Fund of the Social Insurance Board.

On 1 October 1996 the case was transferred to the Warsaw District Court as in view of the addresses of the parties, it was the latter which, under the applicable provisions of the Code of Civil Procedure, had jurisdiction to examine it. The applicant lodged an appeal against this decision. On 28 October 1996 the District Court set this decision aside as manifestly unjustified, having regard to the actual addresses of the parties.

On 8 November 1996 the applicant submitted written pleadings to the court, containing various procedural requests, including a request that the proceedings be stayed and that a lawyer paid by legal aid scheme be assigned to represent him.

On 17 December 1996 the Court increased the sum of monthly child support for the applicant’s son to 250 PLZ. On 1 January 1997 the applicant lodged an appeal. On an unspecified later date the applicant submitted to the appellate court a copy of his request for judge E.W to step down, which he had submitted to the court on 24 March 1997 in the proceedings concerning his access rights.

At a hearing held later before the Warsaw Regional Court, the applicant agreed to pay child support in the sum fixed by the District Court, and on 24 June 1997 the Warsaw Regional Court discontinued the appellate proceedings as, in view of the settlement of the case, had become devoid of purpose.

On 17 September 1997 the applicant complained to the President of the Court of Appeal that the proceedings before the first-instance court had been conducted by judge E.W. who was biased against him.

In reply of 20 October 1997 the Deputy President of the Court of Appeal recalled that in the proceedings concerning child support the applicant had failed to submit a request for judge E.W. to step down.

8. Proceedings concerning the claim for division of conjugal property

On an unspecified date civil proceedings for division of conjugal property were instituted before the Warszawa- Mokotów District Court.

On 4 March 1996 the applicant requested that the presiding judge step down as she had allegedly committed numerous procedural errors to his detriment.

On 13 March 1996 the District Court dismissed the applicant’s request that the presiding judge A. J. step down, considering that the relevant statutory requirements were not complied with. The applicant lodged an appeal.

On 10 May 1996 the District Court exempted the applicant from court fees and ordered that the Warsaw Bar assign a lawyer to represent him in the case. The applicant lodged an appeal against this decision. In a letter of 25 July 1996 the judge requested him to inform the court whether he wished to pursue his appeal, pointing out that the contested decision was to his favour. On 5 August 1996 the applicant complained to the President of the Regional Court about this letter, alleging that judge B. L. had been acting in bad faith in his case and to his detriment, and to the Minister of Justice.             

On 18 July 1996 the applicant requested that the case-file be sent to the psychiatric hospital where he was undergoing a psychiatric observation, so that he could have access to it. On 25 August 1996 he reiterated his request.

On 21 August 1996 the President of the Regional Court informed the applicant that his challenge of judge A.J. would be examined after the judge concerned came back from holidays.

In a letter of 3 September 1996, the applicant requested his lawyer J.K. to ensure that he obtain access to the case-file in the psychiatric hospital, and to make appropriate arrangements so that the applicant could attend the next hearing to be held on 25 September 1996.

In a letter of 10 September 1996 the Deputy President of the Warszawa - Mokotów District Court informed the applicant that the case-file would be sent to the hospital after the proceedings concerning his challenge of the judge come to end.

In a letter to the applicant of 30 September 1996 the Deputy President of the Regional Court stated that no irregularities had been found in the manner in which the court had dealt with the applicant’s request for exemption from court fees and in the proceedings in which he had been granted assistance of a lawyer paid by the legal aid scheme.

On 4 November 1996 the applicant again requested the officially assigned lawyer to visit him in the psychiatric hospital in order to discuss the strategy to be followed in the case.

On 28 January 1997 a hearing was held, attended by the applicant’s lawyer. In a letter of 30 January 1997 the applicant reiterated his request that the lawyer visit him at the hospital.

On 22 March 1997 the applicant’s former wife lodged pleadings with the court. On 27 March 1997 the applicant lodged his pleadings with the court, requesting that the apartment in the housing co-operative which he had purchased during the marriage be awarded to him.

On 28 March 1997 the applicant complained to the Warsaw Bar that his lawyer had failed in his obligations to deal with the case diligently.

On 3 April 1997 the applicant lodged further pleadings with the court, essentially objecting to each and every argument put forward by his former wife and questioning her credibility. On 4 April 1997 he submitted further pleadings to the court. On 7 April 1997 the applicant requested that the case be transferred to another court, alleging lack of impartiality on the part of all judges of the District Court, caused by the fact that they had participated in various proceedings in which he had been involved, including criminal cases.

On 8 April 1997 a hearing was held in the case. The applicant failed to attend.

On 24 April 1997 the applicant’s lawyer informed the court that he had given notice of the power of attorney received from the applicant.

On 13 May 1997 the applicant requested the court to appoint another lawyer financed from the legal aid scheme, pointing out that his officially appointed lawyer had failed to act diligently in the case and that his privately hired lawyer had given notice of his power of attorney.

In a letter of 20 May 1997 the Warsaw Bar informed the applicant that an investigation of his complaint against his officially appointed lawyer had been held and that his allegations had proved unfounded. The applicant lodged an appeal. In a decision of 10 June 1997 the National Council of the Bar held that there were no grounds on which to find that the lawyer J.K. had failed in his obligation to act diligently on the applicant’s behalf. In particular, as the applicant had repeatedly appealed against every court decision, including those, which were to his favour, the lawyer’s task was necessarily difficult. Given that the case was civil, it had not been necessary for the lawyer to have personal contact with the applicant during his internment in the psychiatric hospital.

In a letter of 16 June 1997 to the National Council of the Bar the applicant complained that this decision was erroneous.

On 24 June 1997 the applicant reiterated his request that a new lawyer, a honest one this time, be assigned to the case. The proceedings are apparently pending.

9. Proceedings concerning the applicant’s access rights

On 26 February 1997 the applicant lodged with the Warszawa- Mokotów District Court an action in which he requested the court to give an order changing the access arrangements in respect of his son Ł., born in 1985. He submitted that he was strongly emotionally attached to the boy and that, as a result of the conflict between him and his former wife, he could not see him as often as he would like. He also submitted a number of other arguments, in particular relating to the allegedly unlawful steps taken by his former wife as regards his relationship with his son.

On 24 March 1997 the applicant requested that judge E.W step down, alleging that she was biased against him.

On 25 March 1997 the court granted the applicant an exemption from the court fees.

On 27 April 1997 the court allowed the applicant’s request that judge E.W. step down.

On 2 April 1997 the Court ordered that the case be transferred to the Warsaw District Court, having regard to the child’s address. The applicant lodged an appeal against this decision and on 20 May 1997 complained to the Minister of Justice about the alleged procedural irregularities in that the court had failed to forward his appeal to the appellate court. In a reply of 24 July 1997 the Judge - Supervisor in Civil Cases informed the applicant that his complaints had been investigated and that a date for an examination of his appeal had been fixed for 28 July 1997.

On 28 July 1997 the Warsaw Regional Court set aside the decision of 2 April 1997. The proceedings are apparently pending.

10. The applicant’s requests to institute criminal proceedings against third parties

On 9 May 1997 the Warszawa- Mokotów District Court refused to institute criminal proceedings against the applicant’s wife. The applicant complained about it to the President of the Court.

On 24 September 1998 the Warsaw District Military Prosecutor refused to institute, at the applicant’s request, criminal proceedings concerning the alleged profanation of graves of soldiers of the Russian tsarist army in R. The applicant’s appeal against this decision was subsequently dismissed.

The applicant also repeatedly and unsuccessfully requested to institute criminal proceedings against numerous persons involved in various proceedings to which he was a party, including policemen, prosecutors and judges, alleging corruption, incompetence, participation in a conspiracy against him and wilful neglect on their part.

11. The applicant’s correspondence with the European Commission of Human Rights

Two letters from the Secretariat of the European Commission of Human Rights, posted on 20 March 1996 and on 14 May 1996, were intercepted, opened and read by the administration of Warszawa- Służewiec , where the applicant was detained on remand, and by the Warsaw District Court, before which criminal proceedings against the applicant were pending at that time.

On 29 April 1996 the applicant requested the President of the Warsaw District Court to explain what was the legal basis on which the court opened and read his correspondence with the European Commission of Human Rights.

This letter remained unanswered.

12. Proceedings concerning the prosecutor’s request to have the applicant’s committal to a psychiatric hospital ordered by a court

On an unspecified date, in the context of criminal proceedings concerning unspecified charges, the prosecutor requested the Warsaw Regional Court to order the applicant’s committal to a psychiatric institution.

From 15 November 1996 to 21 January 1997, on the court’s order, the applicant underwent psychiatric observation in the Pruszków-Tworki hospital.

On 10 April 1997 the prosecutor, having regard to the medical expert opinion of 31 January 1997, waived his request to have the applicant committed to a psychiatric institution. On the same day, the Warsaw District Court decided that there were no grounds on which to order the applicant’s committal to a mental hospital. The applicant lodged an appeal against this decision. On 13 May 1997 the Warsaw Regional Court declined to examine his appeal, considering that no appeal lay against the contested decision as it was in the applicant’s favour.

13. The applicant’s efforts to obtain political asylum in Sweden

On 4 March 1994 the applicant submitted to the Swedish authorities a request for political asylum in Sweden . He argued that he was a victim of political persecution by the Polish authorities and that his conviction by Polish courts was a part of this persecution campaign. He alleged that he was subject to incessant harassment and that his political views were unfavourably looked on by the authorities. He referred in particular to the fact that criminal proceedings had been instituted against him and that numerous decisions to his detriment had been given in various proceedings before Polish authorities. Apparently, his request was later refused, and on 2 January 1995 he was expelled from Sweden . He submitted numerous complaints in connection with his efforts to obtain asylum to various Swedish and Polish authorities.

B. Relevant domestic law

a) Conditions for the detention of persons of unsound mind who are not criminally responsible were laid down in the Polish Criminal Code, as it stood at the material time:

Article 99:

“If it has been established that a person has committed an offence in a state of mental disorder [excluding his criminal responsibility], and his remaining at liberty entails a serious danger to public order, the court shall commit him to a mental hospital or another appropriate institution.”

Article 101:

“In cases provided for in Article 99 ... the period of detention is not determined in the decision of committal to the psychiatric institution; the court shall order release if the detention ceases to be necessary.”

According to the case-law of the Polish Supreme Court, a threat to public order is to be determined on the basis of the situation obtaining at the time when the offender’s detention in the psychiatric institution is imposed. The assessment of the existence and the degree of such threat should be made in the light of an expert medical opinion. For a decision ordering detention in a psychiatric hospital to be given, it is not necessary that the expert medical opinion should state expressly that public order would be threatened if the offender were to remain at liberty. It suffices that such a conclusion may be drawn from the expert medical opinion taken as a whole ( Orzecznictwo Sądu Najwyższego , Izba Karna i Wojskowa 1974, item 47). A threat to public order is considered serious if an offender’s remaining at liberty gives rise to a risk that he might commit an unlawful act ( Orzecznictwo Sądu Najwyższego , Izba Karna i Wojskowa 1972, item 183).

b) Correspondence of persons detained on remand with the Convention organs

Situation of persons detained on remand is governed by the Code of Execution of Criminal Sentences. Under Article 89, all correspondence of a detainee is censored, unless a prosecutor and a court decide otherwise. No provision of the Code provides for any remedy to contest the manner or scope of the censorship of a detainee’s correspondence.

The rights of persons detained on remand as regards their correspondence are further set out in Rule 33 of the Rules on Detention on Remand. They provide that the correspondence of persons detained on remand is subject to censorship by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings.

c) Compensation for unjustified conviction, detention on remand or committal to a psychiatric institution

Chapter 50 of the Polish Code of Criminal Procedure (old), entitled "Compensation for unjustified conviction, detention on remand or arrest", provided that the State was liable for wrongful convictions or for unjustifiedly depriving an individual of his liberty in the course of criminal proceedings against him, and also for wrongful committal to a psychiatric institution.

Article 487 of the Code of Criminal Procedure, as it stood at the material time, provided, insofar as relevant:

"1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging an extraordinary appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.

...

4. The provisions of the present chapter shall be applied by analogy to manifestly unjustified arrest or detention on remand."

Article 488 of the Code of Criminal Procedure, as applicable at the material time, in its relevant part provided:

"1. A request for compensation shall be submitted to a regional court in whose jurisdiction the decision giving rise to the request for compensation was given at first instance. ...

2. The court shall consist of three judges. Cases relating to requests for compensation shall be given priority and no court fees shall be required from the person concerned."

The Code of Criminal Procedure enacted in 1969, was replaced by a new Code of Criminal Procedure which entered into force on 1 September 1998. The provisions governing compensation for wrongful conviction, unjustified detention on remand and committal to psychiatric institution remained largely unchanged, with certain exceptions of no relevance to the present case.

COMPLAINTS

The applicant complains under Article 6 of the Convention that in the judicial proceedings to which he was a party the courts, acting as a part of the conspiracy of the State authorities against him, repeatedly breached applicable provisions of procedural law. The applicant alleges that various actions of the authorities were in part designed to cover up the procedural flaws and substantive shortcomings that they had committed when dealing with his cases. The applicant further complains that the Polish authorities, including the police, the prosecuting authorities, the courts, the prison administration and the psychiatrists, acted to his detriment in order to deprive him of any rights.

The applicant further complains, relying on Article 6 of the Convention, that the courts wrongly assessed evidence, reached untenable conclusions as to the facts and, as a result, the decisions and judgments given in his cases were erroneous and given with a manifest disregard to elementary justice and contrary to any notion of equity. He alleges that the courts lacked impartiality and that the judges who had taken part in one set of the proceedings to which he was a party, were then allowed to sit in court panels in other proceedings, which negatively affected his right to a fair hearing. He submits that in the criminal proceedings his defence rights were breached in that he could not put forward his arguments to the court.

The applicant complains under Article 6 of the Convention that his requests to have criminal proceedings instituted against various persons were declined.

The applicant alleges, invoking Article 5 of the Convention, that the psychiatrists were all part of the conspiracy against him and that, as a result, the medical opinions issued in his cases did not reflect his actual condition. He complains that on no occasion he should have been committed to the psychiatric hospital and that the courts abused psychiatry in a manner known from the communist years, only in order to persecute him.

The applicant complains, invoking Article 8 of the Convention, that the judicial decisions taken in all the proceedings in which the family law issues were examined, amount to breaches of his and his child’s right to respect for their family life. The applicant further complains that, while he was detained on remand, his correspondence with the organs of the European Convention of Human Rights was intercepted by the court before which criminal proceedings against him were pending, opened and read.

The applicant complains that the Swedish authorities refused to grant him political asylum.

THE LAW

1. The Court finds it necessary to join the applications under Rule 43 § 1 of the Rules of Court.

2. Insofar as it may be understood that the applicant’s complaints relate to a period prior to 1 May 1993, the Court recalls that Poland recognised the competence of the European Commission of Human Rights to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation 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 this part of the application is outside the competence ratione temporis of the Court and is therefore inadmissible as incompatible with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

3. The applicant complains, relying on Article 6 of the Convention, that the courts wrongly assessed evidence, reached untenable conclusions as to the facts and, as a result, the decisions and judgments given in his cases were erroneous.

Article 6 of the Convention, insofar as relevant, reads:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in 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. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45 and 46; the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in the Court’s official Reports ).

In the present case, the Court notes that the applicant had ample opportunity to put forward his arguments to the courts and that he availed himself thereof in full, submitting numerous pleadings, advancing detailed factual and legal arguments and actively arguing his case. The Court further notes that in certain cases the applicant was represented by lawyers, either officially assigned to his cases, or privately hired by him. The Court sees no indication that the applicant was hindered in any manner from arguing his case effectively.

It follows that this part of the application is therefore manifestly ill-founded within the meaning of Article 35 para . 3 of the Convention.

The Court further notes that the applicant has failed to show that an appeal was lodged against the judgment given on 26 October 1993 by the Warszawa - Mokotów District Court in the divorce proceedings. Likewise, he has not shown that he filed an appeal against the criminal proceedings in which he was charged with insulting judges and in which the Warsaw District Court gave a judgment on an unspecified date in 1993, even assuming that the Court has jurisdiction ratione temporis to examine this part of the application.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies under Article 35 § 4 of the Convention.

The Court further observes that the proceedings concerning the applicant’s claim for division of the conjugal property and for payment of rent by his former lodgers are still pending before the Warszawa- Mokotów District Court and that no final judicial decision has been given in this case. Likewise, the applicant has not shown that in the proceedings in which he claimed that the access arrangements be changed the courts gave a final judgment. The applicant has not, therefore, in accordance with Article 35 § 3 of the Convention, exhausted domestic remedies which were open to him under Polish law, and that this part of the application must be declared inadmissible under Article 35 § 4 of the Convention.

Insofar as the applicant alleges that the courts lacked impartiality, the Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. When it is being decided whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the party to the proceedings is important, but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, among other authorities, the Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A, p. 14, § 30; the Remli v. France judgment of 23 April 1996, Reports of judgments and decisions 1996-II, p. 574, § 46).

Turning to the circumstances of the present case, the Court first notes that the applicant alleges lack of impartiality on the part of all judges involved in the proceedings to which he was a party, but that he does not adduce ascertainable facts capable of substantiating this complaint so as to cast doubt on the impartiality of judges concerned. He mostly relies on the outcome of the proceedings, which, is, in the Court’s opinion, in the absence of indications to the contrary, not sufficient to accept that the courts lacked impartiality. The applicant refers also to the fact that certain judges participated in several sets of proceedings to which he was a party. In the absence of circumstances capable of calling into question the judges’ impartiality, the very fact that the judge participated in several sets of proceedings to which the applicant was a party does not, in the Court’s view, suffice for a finding that it lacked impartiality.

It follows that this part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

As regards in particular the proceedings concerning child support, in which the proceedings were discontinued on 24 June 1994 because the parties concluded a settlement before the Warsaw Regional Court, the Court further notes that in these proceedings the applicant failed to submit a request that the first-instance judge step down, and he has not, therefore, in accordance with Article 35 § 3 of the Convention exhausted domestic remedies which were open to him under Polish law. This part of the application must be declared inadmissible under Article 35 § 4 of the Convention.

4. The applicant further complains under Article 6 of the Convention that his requests to have criminal proceedings instituted against various persons were declined.

The Court recalls that the right of access to a court does not include a right to have criminal proceedings instituted against a third person (Eur. Comm. HR, No. 22998/93, Dec. 14.12.1996, D.R. 87-A, p. 24). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

5. The applicant complains that the facts of the case, and in particular the decisions taken by the courts in the cases concerning his family life, give rise to a violation of Article 8 of the Convention.

The Court has examined this complaint as it has been submitted by him. However, having considered the facts of the case as a whole, the Court finds that the applicant’s complaint does not disclose an appearance of a violation of the applicant’s right to respect to family life, guaranteed by Article 8 of the Convention.

6. Insofar as the applicant complains that the Swedish authorities refused to grant him political asylum, the Court observes that the right to be granted asylum is not, as such, included among the rights and freedoms guaranteed by the Convention. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

7. The applicant further complains that the decisions concerning his committal to a psychiatric hospital were unlawful and unjustified. He finally complains that while he was detained on remand, his correspondence with the organs of the European Convention of Human Rights was intercepted by the court before which criminal proceedings against him were pending, opened and read.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO JOIN THE APPLICATIONS ;

DECIDES TO ADJOURN the examination of the applicant ’s complaints against Poland, that his committal to a psychiatric hospital was unjustified and unlawful, and that his correspondence with the organs of the European Commission of Human Rights was intercepted, opened and read by the judicial authorities;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President