PARTIALLY DISSENTING OPINION OF Mr H. DANELIUS

JOINED BY MM G. JÖRUNDSSON, P. LORENZEN, E. BIELIŪNAS

In my opinion, Article 6 para. 1 of the Convention has been violated in the present case, for the following reasons.

Although the proceedings have been going on at least since 30 November 1991, the period whose length the Commission may evaluate started on 1 May 1993 as a consequence of the temporal limitation made by the Polish Government when it recognised the right of individual petition.  The case is still pending before the first instance court, which is the Wrocław Regional Court, and the length of the relevant part of the proceedings is therefore at the present time five years and more than four months.

I accept that the case before the Polish court has some complexity because of the nature of the offences and the number of accused.  It also appears that some delays should be attributed to the applicant himself.

As regards the conduct of the authorities, I note the following facts.

A striking feature is the large number of adjournments of hearings which have occurred in the present case.  Several of these adjournments were directly attributable to the court.  I note, in particular, that adjournments occurred for the following reasons: on 10 August 1993 because a lay judge failed to appear; on 23 August 1993 because the judge had to leave the court; on 22 October 1993 because the judge had received a promotion; on 1 March 1995 for personal reasons concerning the judge; on 22 April 1996 because the court had failed to inform the applicant's lawyer of the hearing.

A large number of adjournments - on 1 September, 17 September, 5 October and 3 December 1993, 5 March and 14 October 1996 and 28 February 1997 - were due to the fact that one or the other of the applicant's co-accused failed to attend a hearing.  It does not appear, however, that the court took any effective measures to prevent a repetition of such failures to attend, for example by bringing an absent person to the court by force, by threatening sanctions in connection with the summons to a hearing or by imposing sanctions for the failure to attend.

I consider that, in all these circumstances, the authorities must, to a significant extent, be considered responsible for the delays that have occurred in the proceedings and accordingly conclude that the charges against the applicant were not determined within a reasonable time.