DISSENTING OPINION OF Mr E. ALKEMA JOINED BY Mrs G.H. THUNE,

MM F. MARTINEZ, I.C. BARRETO, P. LORENZEN AND A. ARABADJIEV

We have voted against the Commission's conclusion that there has been a violation of Article 6 para. 1 of the Convention in the present case.  Our reasons are as follows.

Firstly, the overall period relevant under Article 6 under the Convention, involving twice the court of first instance and once the court of appeal, did not last long. It started on 13 April 1993, whereas from 1 May 1993 Poland's declaration acknowledging the right of individual petition took effect. It ended on 18 March 1996 when the court's decision was served on the applicant - rather then on 26 March 1996 the day at which the decision became final (see  48 of the report). Thus, it lasted a little less than three years.

Secondly, a delay of almost five months was attributable to the applicant, who refused to undergo a brain tomography (see  29-32). In this respect we do not share the majority's view expressed in  54 that the court could have decided the matter on the basis of the evidence before it. That it - in the end -  had to do so was only due to the applicant's refusal to cooperate.

Admittedly, the first hearing in the case was only held at 17 June 1994 i.e. after more than fourteen months. Nevertheless, generally, the courts acted with due speed and without any substantial delays.

Therefore, in our opinion, Article 6 para. 1 of the Convention has not been violated.