BOROZYNSKI v. POLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 24086/94

                      by Waclaw BOROZYNSKI

                      against Poland

      The European Commission of Human Rights sitting in private on

2 December 1996, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

      Mr.  M. de SALVIA, Deputy Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 19 November 1993

by Waclaw BOROZYNSKI against Poland and registered on 3 May 1994 under

file No. 24086/94;

      Having regard to :

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      16 October 1995 and the observations in reply submitted by the

      applicant on 20 December 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

A.    Particular circumstances of the case

      The facts of the case as submitted by the parties may be

summarised as follows:

      The applicant is a Polish citizen born in 1924.  He resides in

Ostróda, Poland.

                                  I.

      On 24 April 1992 the Ilawa District Court (S*d Rejonowy)

convicted the applicant of aggravated theft and using false documents

and sentenced him to three years and eight months' imprisonment.  The

Court, which consisted of the professional judge J.C. and two lay

judges, considered evidence given inter alia by a policeman who had

seen the applicant at the scene of the crime at the material time and

had subsequently conducted the preliminary investigations.

      Upon the applicant's appeal, on 4 September 1992 the Olsztyn

Regional Court (S*d Wojewódzki) upheld the judgment of the District

Court of 24 April 1992.

      On 20 May 1993 the Minister of Justice refused leave for an

extraordinary appeal.

                                  II.

      On 6 July 1992 the applicant requested the Olsztyn Regional

Prosecutor to institute criminal proceedings for giving false evidence

against the policeman L.N. who had testified against him at the above

trial.

      On 3 August 1992 the Ilawa District Prosecutor refused to

institute criminal proceedings against the policeman.  It found no

indication that he had committed an offence and noted that his evidence

coincided with the evidence put forward by the co-accused.  Eventually

the Prosecutor instituted criminal proceedings against the applicant

for false denunciation.  During the investigation the applicant refused

to testify and apparently later waived his charges against L.N.

      The applicant challenged the trial judge J.C. presiding over the

Ilawa District Court in the proceedings relating to false denunciation.

The applicant contended that it was the same judge who had presided

over the Court which had convicted him in the previous proceedings,

while the facts of the two cases were closely interrelated.  The

President of the Court dismissed this challenge as having no statutory

basis.

      At the hearing before the Ilawa District Court on 10 March 1993

the applicant confirmed that he wished to withdraw his charges against

L.N.  The Court, consisting of judge J.C. and two lay judges,

nevertheless convicted the applicant of false denunciation of the

policeman who had testified against him in the previous criminal

proceedings and sentenced him to one year and six months' imprisonment.

      The applicant filed an appeal against this judgment with the

Olsztyn Regional Court, complaining inter alia that the judge who had

considered the first case should have stepped down as he was biased

against the applicant.  He submitted that the judge could not have

been impartial as an acquittal in the proceedings relating to false

denunciation would have raised doubts as to the well-foundedness of the

conviction for theft.  He further submitted that L.N.'s testimony in

the first set of proceedings had been false.

      On 6 May 1993 the Olsztyn Regional Court upheld the judgment of

10 March 1993.  The Court considered that under Rule 31 of the Code of

Criminal Procedure the challenge of the judge could not be granted (see

below, Relevant domestic law).  The Court considered that, as it

transpired from the District Court's judgment that the applicant had

been particularly malevolent in falsely denouncing the policeman, the

penalty was rightly determined accordingly to defend the previous

conviction  (" (...) wywody S*du Rejonowego wskazuj* na zlosliwosc

oskarzenia swiadka (...). Znalazlo to wyraz w wymiarze kary

uwzgl*dniaj*cej ochron* (...) zapadlego prawomocnego wyroku (...)".

      On 3 July 1993 the Olsztyn Regional Court prepared written

grounds for its judgment of 6 May 1993.

B.    Relevant domestic law

      The relevant requirement for a judge to step down is set out in

Article 31 of the Polish Code of Criminal Procedure which provides:

:

      Article 31:

      "A judge steps down if between him and one of the parties there

      exists a personal relationship of a kind that may cast doubt on

      his impartiality."

:

      Artykul 31:

      "S*dzia ulega wyl*czeniu, jezeli pomi*dzy nim a jedn* ze stron

      zachodzi stosunek osobisty tego rodzaju, ze móglby wywolywac

      w*tpliwosci co do bezstronnosci tego s*dziego."

COMPLAINTS

      The applicant complains that in the first set of proceedings the

Ilawa District Court wrongly refused to take certain evidence requested

by him and wrongly assessed the evidence.

      The applicant further complains that the second set of

proceedings, leading to conviction for false denunciation, was unfair,

as the same judge presided in both cases against him, while their

subjects were closely related.  He submits that the judge was not in

a position to be impartial as acquittal of the applicant in the second

set of proceedings would have called into question the well-foundedness

of the first judgment.  The applicant further alleges personal bias on

the part of the trial judge.

      He also complains about the outcome of the criminal proceedings.

      The applicant invokes Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 19 November 1993 and registered

on 3 May 1994.

      On 27 February 1995 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits.

      The Government's written observations were submitted on

16 October 1995,  after an extension of the time-limit fixed for that

purpose.  The applicant replied on 20 December 1995.

THE LAW

1.    The applicant complains under Article 6 (Art. 6) of the

Convention that in the first set of criminal proceedings against him

the court refused to take certain evidence requested by him and wrongly

assessed the evidence. The applicant also complains about the outcome

of these proceedings.

      The Commission recalls that Poland recognised the competence of

the Commission 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".  In the present case the proceedings concerned ended by a final

judgment of 4 September 1992.

      It follows that this part of the application is outside the

competence ratione temporis of the Commission and therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

2.    The applicant further complains under Article 6 (Art. 6) of the

Convention that the second set of proceedings, leading to his

conviction for false denunciation, was unfair, as the same judge

presided in both cases against him, while their subjects were closely

related.

a)    The Government first submit that the application in its part

relating to the proceedings before the Ilawa District Court is

incompatible ratione temporis with the Convention as these proceedings

ended on 10 March 1993, i.e. prior to 30 April 1993.  On the other

hand, the Commission is competent to examine the appeal proceedings

before the Olsztyn Regional Court, which came to an end on 6 May 1993.

However, it is to be noted that the applicant does not put into

question the fairness of the proceedings before the latter Court.  The

Government further submit that events prior to 1 May 1993 should be

taken into account merely as a background to the issues before the

Commission (Eur. Court HR, Hokkanen v. Finland judgment, Series A vol.

299, p. 19, para. 53).

      The applicant does not address this issue.

      The Commission recalls that when the Commission's competence

ratione temporis begins in the course of proceedings before a second

instance court, it may examine such proceedings, but not those at first

instance (No. 8261/78, Dec. 11.10.79,  D.R. 18, p. 150).

      The Commission further recalls that Poland has accepted its

jurisdiction in respect of "any act, decision or event occurring after

30 April 1993".

      The Commission notes that in the present case the second set of

the criminal proceedings came to an end before the Ilawa District Court

on 10 March 1993.  The applicant filed an appeal in which he complained

inter alia that the judge who had considered the first case should have

stepped down as he was biased against the applicant.  He submitted that

the judge could not have been impartial as an acquittal in the

proceedings relating to false denunciation would have raised doubts as

to the well-foundedness of the first conviction for theft.  This appeal

was examined by the Olsztyn Regional Court on 6 May 1993.  The Court

considered that under Article 31 of the Code of Criminal Procedure the

challenge of the judge could not have been allowed by the first

instance court as the relevant legal requirements of this provision had

not been complied with.

      The Commission notes that the applicant does not raise any

complaints as regards the fairness of the proceedings before the

Olsztyn Regional Court.  He complains only that this Court did not

rectify the alleged shortcomings of the proceedings before the District

Court.  The Commission observes that the proceedings before the Ilawa

District Court ended prior to 1 May 1993.  In the light of the

limitations contained in the Polish declaration as to the Commission's

competence ratione temporis, the Commission considers that this part

of the application is outside its competence ratione temporis and

therefore incompatible with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                        S. TRECHSEL

      Deputy Secretary                        President

      to the Commission                   of the Commission

 

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