FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37443/97

by Maciej LISIAK

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 15 June 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr V. Butkevych ,

Mr J. Hedigan , Judges ,

with 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 24 February 1997 by Maciej LISIAK  against Poland and registered on 22 August 1997 under file no. 37443/97;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1968 and living in Bielsko-Biała .

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

A. Particular circumstances of the case

On 10 August 1991 the applicant was arrested by the police on suspicion of homicide. On 12 August 1991 the Bielsko-Biała District Prosecutor ( Prokurator Rejonowy ) charged the applicant with homicide and uttering threats and detained him on remand.

On 30 April 1992 the Bielsko-Biała Regional Prosecutor lodged a bill of indictment with the Bielsko-Biała Regional Court .

On 14 October 1992 the Bielsko-Biała Regional Court quashed the detention order. The Bielsko-Biała Regional Prosecutor appealed against this decision. The Katowice Court of Appeal dismissed his appeal on 4 November 1992. The court found that a “reasonable suspicion” that the applicant had committed the offences in question was no longer justified as the only witness, who had originally incriminated him, had significantly altered his testimony.

On 25 May 1994 the Bielsko-Biała Regional Court acquitted the applicant. On 12 October 1994 the Bielsko-Biała Regional Prosecutor filed an appeal against this judgement.

On 9 March 1995 the Katowice Court of Appeal quashed the first-instance judgement and remitted the case to the Bielsko-Biała Regional Prosecutor, finding that further evidence should be obtained. In particular, the court ordered the prosecutor to obtain evidence from experts in psychology, in order to establish the perception skills and personality of S.U . , the main prosecution witness, and to assess the credibility of evidence heard from this witness.

On 12 May 1995 the Bielsko-Biała Regional Prosecutor requested the Institute of Forensic Experts ( Instytut Ekspertyz Sądowych) in Cracow to prepare a report.

The experts from the institute fixed the dates of the examination for 19 December 1995 and 12 February 1996 respectively. However, the witness did not keep his appointment for the examination on either of these dates. Eventually, he appeared before the experts on 9 May 1996 and was examined by them on this day.

The experts submitted their report on 16 September 1996.

On 30 April 1997 the Bielsko-Biała Regional Prosecutor lodged a new bill of indictment with the Bielsko-Biała Regional Court . He indicted the applicant on the charges of homicide and uttering threats. The court scheduled at least one hearing in 1997 and then scheduled several hearings for unspecified dates in 1998. The proceedings are still pending in the Bielsko-Biała Regional Court .

B. Relevant domestic law

A t the material time, p ursuant to Sections 242 § 1 and 244 § 1 of the Polish Code of Criminal Procedure of 1969, organs conducting criminal proceedings could have recourse to various means designed to urge a lay or expert witness to comply with his or her obligation arising in connection with those proceedings. In particular, a court or, at the investigative stage, a prosecutor could impose a fine on a witness or an expert who, after having been properly summoned, failed to appear before the competent organ without a reasonable cause. The competent authorities could also order that a witness (and in certain circumstances an expert or an interpreter) be brought before this organ by the police.

A fine could also be imposed on an expert who, without a reasonable cause, repeatedly failed to comply with his or her obligation to submit a report to the court.

COMPLAINTS

1. The applicant complains under Article 5 § 1 of the Convention that his detention on remand lacked any grounds.

2. He further complains under Article 6 § 1 of the Convention that the length of the criminal proceedings against him exceeded a “reasonable time”.

THE LAW

1. The applicant complains under Article 5 § 1 of the Convention that his detention on remand lacked any grounds.

The Court observes that Poland recognised the competence of the Convention organs to receive individual 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". It further recalls that, pursuant to Article 6 of Protocol No. 11 to the Convention, this limitation shall remain valid for the jurisdiction of the Court under that Protocol.

In respect of the present case the Court notes that the Bielsko-Biała Regional Court quashed the order for the applicant’s detention on 14 October 1992. On 4 November 1992, upon the Bielsko-Biała Regional Prosecutor’s appeal, the Katowice Court of Appeal upheld this decision. Consequently, the applicant was released prior to 1 May 1993, the date on which Poland ’s declaration acknowledging the right of ind ividual petition with a temporal limitation 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, and it must be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicant further complains under Article 6 § 1 of the Convention that the length of the criminal proceedings against him exceeded a “reasonable time”.

The Court considers that it cannot, on the basis of the 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 complaint to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint that the length of criminal proceedings against him exceeded a “reasonable time”;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President