JOPKIEWICZ v. POLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 24248/94

                      by Jerzy JOPKIEWICZ

                      against Poland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 1997, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

           Ms.   M.-T. SCHOEPFER, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 17 January 1994

by Jerzy JOPKIEWICZ against Poland and registered on 1 June 1994 under

file No. 24248/94;

      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

      18 October 1995 and the observations in reply submitted by the

      applicant on 6 January 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a Polish citizen born in 1947, was an engineer,

residing in Torun.  He died on 29 October 1995.  His daughter who

resides in Torun is a heir.  She expressed the wish to take over and

pursue the application, in accordance with her father's will.

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

summarised as follows:

      In 1988 the applicant was working exceptionally hard at his

employer's two plants.  On 29 December 1988 the applicant suffered a

stroke while he was at work.  In December 1991 the applicant filed an

action with the Torun Regional Court (S*d Wojewódzki) for rectification

of errors in the report of the accident, in particular to have the

accident acknowledged as an occupational one, and for compensation.

      On 27 April 1993 the Torun Regional Court dismissed the

applicant's action.  The Court found no sufficient reasons to attribute

the responsibility for the accident to the defendant employer as the

accident resulted from the applicant's health problems.

      Subsequently the applicant asked the Court to grant him free

legal assistance.  This request was apparently granted and on

29 June 1993 the Torun Bar informed the applicant that advocate M.G.

had been appointed to represent him in the appeal proceedings.  It

appears that later M.G. designated another lawyer, J.K., residing in

the vicinity of the Gdansk Court of Appeal (S*d Apelacyjny).

      On 29 July 1993 the Gdansk Court of Appeal held a hearing at

which neither the applicant nor J.K. were present.  The Court noted

that the parties to the proceedings were not present, though the

information of the date of the hearing had been properly served both

on the applicant and on his officially appointed lawyer, and included

this information into the transcript.  Thereupon the judge rapporteur

presented the case to the Court, which subsequently proceeded to

deliberations and dismissed the appeal.

Relevant domestic law

      The relevant provision of the Polish Code of Civil Procedure

reads as follows:

      Article 378:

      "A hearing before the court of appeal shall be held irrespective

      of whether one or both parties to the proceedings are absent..."

      Artykul 378:

      "Rozprawa przed s*dem rewizyjnym odbywa si* bez wzgl*du na

      stawiennictwo jednej lub obu stron. ..."

COMPLAINTS

      The applicant complained under Article 3 of the Convention that

the judgment of the Gdansk Court of Appeal sanctioned the conduct of

the applicant's former employer towards him, who had compelled him to

work very hard, which amounted to inhuman and degrading treatment.

      He complained under Article 6 of the Convention about unfairness

of the proceedings in that the Regional Court disregarded certain

evidence and wrongly assessed other evidence.  The applicant alleged

in particular that the Torun Regional Court was not impartial.  Thus,

when the proceedings were pending, the Regional Prosecutor was

negotiating the purchase of office premises from the defendant.

      The applicant further complained under Article 6 of the

Convention that the appeal proceedings were unfair in that he could not

put forward his submissions to the Court.  His interests were therefore

not properly presented and protected, particularly as the officially

appointed lawyer failed to appear before the Gdansk Court of Appeal

without any justification or notice.  He submitted that the Court

should have adjourned the proceedings to give him an opportunity to put

forward his arguments.

      The applicant further complained under Article 8 of the

Convention that the judgments complained of interfered with his private

and family life.

      Under Article 13 of the Convention he complained that the Court

of Appeal, by upholding the first instance judgment, confirmed the

errors of the Regional Court.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 17 January 1994 and registered

on 1 June 1994.

      On 22 February 1995 the Commission decided to communicate to the

respondent Government the applicant's complaint concerning the failure

of the officially appointed lawyer to be present before the Gdansk

Court of Appeal.

      The Government's written observations were submitted on

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

purpose was refused on 8 August 1995, the request for an extension

having been submitted after expiry of the time-limit.

      The applicant's daughter replied on 6 January 1996.

THE LAW

1.    The Commission notes that the applicant has died and that his

daughter has informed the Commission that she wishes to continue the

proceedings before the Commission.  She submitted that as one of her

father's heirs, she has a legitimate legal interest in the outcome of

the proceedings before the Commission.

      The Government opposed this wish, stating that the applicant's

daughter did not have sufficient legitimate interest in the outcome of

the proceedings.

      Under Article 25 para. 1 (Art. 25-1) of the Convention the

Commission "may receive petitions ... from any person ... claiming to

be a victim of the rights set forth in (the) Convention".

      The Commission considers that in the light of the Convention

organs' case-law (Eur. Court HR, Sadik v. Greece judgment of

15 November 1996, paras. 24-26, Reports 1996, to be published;

No. 25759/94, Dec. 26.2.96, not published), there is no obstacle to the

case being pursued by the applicant's daughter.

2.    a)   The applicant complained under Article 6 (Art. 6) of the

Convention about the unfairness of the proceedings in that the Regional

Court disregarded certain evidence and wrongly assessed other evidence.

The applicant alleged in particular that the Torun Regional Court was

not impartial in that, when the proceedings were pending, the Regional

Prosecutor was negotiating the purchase of office premises from the

defendant.

      Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

      "1.  In the determination of his civil rights and obligations

      ... everyone is entitled to a fair ... hearing ... by an

      independent and impartial tribunal ...

      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 of the rights recognised in the Convention

through any act, decision or event occurring after 30 April 1993".

The proceedings complained of ended with a judgment of the Torun

Regional Court of 27 April 1993.

      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).

      b)   The applicant further complained under Article 6 (Art. 6)

of the Convention that the appeal proceedings were unfair in that he

could not put forward his submissions to the Court because the

officially appointed lawyer failed to appear before the Gdansk Court

of Appeal without any justification or notice.

      The Government submit first that the applicant and his lawyer

were properly informed of the date of the hearing.  They should have

requested the court to adjourn the hearing if they had been genuinely

prevented from attending on the fixed date.  By failing to do so, they

have not exhausted domestic remedies.

      The Government further submit that the application is in any

event manifestly ill-founded.  They contend that the applicant was

given the opportunity to be effectively represented before the court

as he was granted the assistance of an officially appointed lawyer.

Moreover, he had been duly informed of the date of the hearing.

      The applicant submitted that in the appeal proceedings he was

granted the assistance of an officially appointed lawyer.  Thus the

case was sufficiently complex to warrant presentation of the appeal

arguments by a lawyer.  The applicant could legitimately have expected

that the lawyer would carry out his obligations properly and that he

would be present at the hearing.  He was therefore justified in not

appearing himself.  He was moreover under no legal obligation to

appear.  It should be stressed that the applicant did not have any

genuine possibility to ensure the proper conduct of the officially

appointed lawyer as there was lawyer-client relationship between them.

Therefore it fell to the court to ensure that the applicant's interests

were effectively represented.  The court limited itself to stating that

the parties were absent and proceeded to the deliberations, whereas it

should have adjourned the hearing and summoned the parties to the next

date.  There are no provisions in Polish law which would have prevented

the court from doing so.

      The Commission recalls that, according to Article 25 (Art. 25)

of the Convention, it is competent to receive petitions from any person

claiming to be a victim of a violation by one of the Contracting

Parties of the rights set out in the Convention.  The responsibility

of the Contracting Parties is incurred by the actions of its organs.

A lawyer, even if he or she is officially assigned, cannot be

considered as an organ of a State, and his or her actions are not

imputable to the State (No. 27266/95, Dec. 21.10.96, unpublished).

      In the present case, the Commission considers that the failure

of the officially assigned lawyers to be present at the hearing before

the Court of Appeal and their resulting failure to ensure effective

representation of his interests before that court, even if it could

justify filing a compensation claim against the lawyers by the

applicant, do not engage the direct responsibility of the State. It

follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.    The applicant complained under Article 3 (Art. 3) of the

Convention that the judgment of the Gdansk Court of Appeal sanctioned

the conduct of the applicant's former employer towards him, who had

compelled him to work very hard, which amounted to inhuman and

degrading treatment.

      Article 3 (Art. 3) of the Convention reads:

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

      The Commission observes that the treatment complained of

consisted of upholding the judgment of the lower court which dismissed

the applicant's civil claim to have his accident declared as accident

at work.  The Commission considers that the treatment concerned did not

attain the threshold of inhuman or degrading treatment within the

meaning of Article 3 (Art. 3) of the Convention as established in the

case-law of the Convention organs (cf. Eur. Court HR, Ireland v. United

Kingdom judgment of 18 January 1979, Series A no. 25, p. 56, para.

162).

      It follows that this complaint is manifestly ill-founded within

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

4.    The applicant further complained under Article 8 (Art. 8) of the

Convention that the judgments complained of interfered with his private

and family life.

      The Commission considers that no separate issue arises under this

provision of the Convention.  It follows that this complaint is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

5.    The applicant finally complained under Article 13 (Art. 13) of

the Convention that the Court of Appeal, by upholding the first

instance judgment, confirmed the errors of the Regional Court.

However, in accordance with the Commission's established case-law,

Article 6 para. 1 (Art. 6-1) of the Convention provides a more rigorous

procedural guarantee than Article 13 (Art. 13) of the Convention and

therefore operates as a lex specialis with regard to a civil right, to

the exclusion of the more general provisions of Article 13 (Art. 13)

of the Convention.

      It follows that this complaint is manifestly ill-founded within

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

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

 

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