AS TO THE ADMISSIBILITY OF
Appication No. 29716/96
by Maria KOSMIDER
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
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
A. ARABADJIEV
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 8 September 1994
by Maria KOSMIDER against Poland and registered on 5 January 1996 under
file No. 29716/96;
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
14 October 1996 and the observations in reply submitted by the
applicant on 22 November 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1936, is a pensioner
residing in Wolsztyn.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows:
1. Divorce proceedings
On 5 September 1989 the applicant filed a divorce action with the
Wolsztyn District Court (S*d Rejonowy). Later she asked for a finding
that the breakup of the marriage was exclusively her husband's fault.
The court scheduled an obligatory conciliatory session for 7 December
1989 but it was adjourned as the defendant failed to appear. The
session was held on 1 March 1990. During the session the applicant
refused to be reconciled with her husband. On 16 and 23 July 1990 she
filed further pleadings seeking an interim order resolving the position
regarding the joint use of the matrimonial home and the payment of
maintenance. She failed to specify the amount of maintenance sought.
On 12 September 1990 the court held a hearing and ordered the
defendant to pay maintenance of old PLZ 200,000. It also decided to
view the matrimonial home before making an order on the joint use of
the home by the parties during the divorce proceedings. On 6 November
1990 the court ruled on the joint use of the parties' home.
On unspecified dates the applicant appealed against both interim
orders. On 13 December 1990 she requested the court to grant her an
exemption from court fees. On 15 January 1991 the applicant requested
the court to amend the maintenance order, seeking payment of old PLZ
800,000. On 26 March 1991 she asked the court to grant her legal aid.
On 2 April 1991 the Wolsztyn District Court dismissed the
applicant's requests for amendment of the maintenance order and for
legal aid. The applicant appealed on 17 April 1991 to the Zielona Góra
Regional Court (S*d Wojewódzki). On 22 April 1991 she challenged the
impartiality of two judges dealing with her appeal. Subsequently,
on an unspecified date her appeal and challenge were dismissed.
On 4 November 1991 the court of first instance cancelled the
hearing as the applicant had failed to appear. On 5 November 1991 the
defendant requested the court to find that the breakup of the marriage
was the applicant's fault. During the hearing of 23 December 1991 the
applicant requested the court to stay the divorce proceedings on the
ground that the criminal proceedings relating to her allegations of
assault were pending against her husband. In addition, she again
requested the court to amend the interim maintenance order.
On 19 February 1992 the court amended the maintenance order.
Subsequently, on an unspecified date, the applicant appealed against
the amended order, increasing her claims.
On 2 December 1992 the Wolsztyn District Court, upon the
defendant's request, resumed the proceedings stayed on 23 December
1991. On the same day the applicant challenged the impartiality of the
presiding judge. This was dismissed by the Wolsztyn District Court
on 11 December 1992 as the applicant's challenge lacked any basis.
On 31 March 1993 she again challenged the impartiality of the presiding
judge. On 18 May 1993 the Wolsztyn District Court dismissed the
challenge finding that it was manifestly ill-founded. The court also
fined the applicant for lodging a groundless challenge. On 26 May 1993
she appealed against the above-mentioned decision. On 26 July 1993 the
Zielona Góra Regional Court quashed the fine but upheld the dismissal
of the challenge. In the meantime, between 26 May and 11 June 1993,
the case-file was transferred to the Poznan Regional Court in
connection with another appeal submitted by the applicant.
On 29 October 1993 the applicant requested the court to adjourn
the hearing as her lawyer had failed to appear and she did not wish to
be represented by his trainee. During the hearing of 24 November 1993
the court heard evidence from the witnesses and the parties.
On 25 November 1993 the Wolsztyn District Court pronounced judgment,
finding that the breakup of the marriage since at least 1985 was
obvious and that both parties, on account of their lack of mutual
cooperation and understanding, had provoked conflicts and various
arguments. In this respect the court essentially referred to evidence
given by the parties' adult children, observing that their statements
were credible in view of their close and frequent contact with the
parties. The court also referred to documentary evidence and noted
that on several occasions the applicant had requested the Wolsztyn
District Prosecutor (Prokurator Rejonowy) to institute criminal
proceedings against her husband, alleging that he had committed various
offences. However, all of the investigations into her allegations were
discontinued in view of the fact that no offence had been committed.
Finally, the court, in assessing the evidence given by the applicant's
witnesses found that their knowledge about the parties' marriage was
hearsay as it was based solely on the applicant's opinions expressed
to them. The court therefore ruled that both parties were at fault.
On 6 January 1994 the applicant filed an appeal against this judgment.
On 24 February 1994 the appeal was heard. On 3 March 1994 the
Zielona Góra Regional Court upheld the divorce judgment, finding that
the court of first instance had properly assessed the evidence before
it and correctly applied the law.
2. Criminal proceedings
On 16 June 1990 the applicant had an altercation with her
husband, witnessed by their son-in-law. On the same day she formally
notified the Wolsztyn District Police about the incident and requested
the police to institute criminal proceedings against her husband. Two
days later a surgeon diagnosed that her hand was broken in two places.
Subsequently, the Wolsztyn District Prosecutor opened investigations
into the applicant's allegations.
On 5 October 1990 the Wolsztyn District Prosecutor indicted the
applicant's husband for assault causing bodily harm, i.e. breaking the
applicant's hand.
On 11 December 1990 the Wolsztyn District Court held the first
hearing. During this hearing the applicant lodged an application under
Section 52 of the Code of Criminal Procedure, stating that she wished
to join the proceedings as a civil party, seeking compensation for the
injuries sustained. At the same time she submitted a statement of
claim.
On 8 January 1991 the court, upon the applicant's request,
adjourned the hearing. The hearing scheduled for 6 February 1991 was
cancelled since one of the jurors failed to appear. On 15 March and
24 April 1991 the subsequent hearings were cancelled on the defendant's
request. The hearings scheduled for 15 May and 4 June 1991 were
adjourned as further evidence needed to be taken. On 3 July 1991 the
court ordered that evidence be taken from medical experts.
On 8 November 1991 the court assigned an expert and, subsequently, on
16 January 1992 transmitted the case-file to the Faculty of Forensic
Medicine of the Poznan Academy of Medicine. On 5 March 1992 the
experts sent the case-file back to the court, refusing to prepare
a report in view of the fact that the court had not paid their fees.
On 27 March 1992 the Wolsztyn District Court stayed the
proceedings until 18 September 1992, i.e. the anticipated date on which
the medical report was to be ready.
On 15 October 1993 the court held the hearing and ordered that
evidence be heard from policemen and an expert. On 10 November 1993
the court held the next hearing and ordered that evidence be considered
from documents contained in the case-files relating to other
proceedings instituted by the parties.
In the meantime, on unspecified dates, the applicant repeatedly
requested the court to detain her husband on remand.
On 7 December 1993 and 15 March 1994 the court adjourned the
hearings since a court expert had failed to appear.
On 7 June 1994 the Wolsztyn District Court heard evidence from
an expert and acquitted the applicant's husband. As a consequence, the
court, according to Section 362 para. 2 of the Code of Criminal
Procedure, declined to rule on the applicant's civil claim. The court
observed that it transpired from the eye-witness statements that both
parties had jostled one another during the incident of 16 June 1990.
In addition both of them were in apparent conflict arising from the
breakup of their marriage, which cast doubts on their credibility.
Moreover, the applicant had not sought any medical help during the
subsequent two days, even if she had claimed that her hand had been
broken as early as the date of the incident and that she had
immediately felt severe pain. Instead of seeking a doctor's help at
the emergency surgery situated in the neighbourhood, she had come to
the police station, which was much further away. Further, according
to the experts' report, the nature of the applicant's injuries
indicated that they had resulted from sudden leaning rather than from
hitting by a third person. Finally, the court, having regard to the
principle of in dubio pro reo, acquitted the accused in view of the
reasonable doubts as to whether he had committed the offence charged.
On 14 June 1994 the applicant filed a notice of appeal.
Subsequently, on an unspecified date in July 1994, she filed an appeal
against the above-mentioned judgment.
On 4 October 1994 the Zielona Góra Regional Court adjourned the
appeal hearing because the defendant and the applicant's lawyer had
failed to appear. On 8 November 1994 the court again adjourned the
hearing since in the meantime the applicant had challenged the
impartiality of the judges dealing with the case. On 9 December 1994
the next hearing was adjourned as the defendant had failed to appear.
On 31 January 1995 the Zielona Góra Regional Court dismissed the
applicant's appeal, considering that the court of first instance had
carefully examined the evidence and had taken into consideration all
circumstances relevant for the outcome of the case.
B. Relevant domestic law
Sections 52 to 60 of the Polish Code of Criminal Procedure set
up a legal framework for civil claims to be ruled on in criminal
proceedings.
Section 52 of the Code of Criminal Procedure provides:
The injured person seeking to pursue his civil claims arising
from the offence in criminal proceedings may, until the
commencement of the main trial, file a civil action against the
accused.
Under Section 55 the court may allow a civil action or declare
it inadmissible. If an action has been allowed, the injured person may
join the proceedings as a plaintiff. During the trial he may put
forward only such evidence as is necessary to establish the
circumstances on which his claim is based. In practice, such evidence
concerns the establishment of guilt.
As regards the determination of a civil claim, the court applies
the Code of Civil Procedure.
A decision by the court to allow a civil action does not in any
way bind the trial court as to the adjudication of that claim as,
according to Section 362 of the Code of Criminal Procedure, even in
case of conviction the court may decline to rule on the claim if the
relevant evidence is insufficient to adjudicate on the claim in
question. In case of acquittal, the court shall decline to rule on the
claim.
COMPLAINTS
1. In respect of the divorce proceedings the applicant complains
under Article 6 para. 1 of the Convention that the courts lacked
impartiality and incorrectly assessed the evidence presented. She
submits that they based their decisions on entirely untrue allegations
by her husband and failed to properly indicate in their judgments the
evidence on which they relied. She also complains about the outcome,
unfairness and the length of these proceedings.
2. Under Article 6 para. 1 the applicant complains that the length
of the criminal proceedings instituted against her husband was
unreasonable. As a result thereof, her civil claim remained pending
before the courts for almost five years and was not determined at all
in these proceedings. The applicant complains that the courts lacked
impartiality and wrongly assessed the evidence in their judgments. She
contests the outcome of these proceedings, submitting that they were
unfair.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 September 1994 and registered
on 5 January 1996 .
On 15 May 1996 the Commission decided to communicate the
application to the respondent Government pursuant to Article 48 (b) of
the Convention.
The Government's written observations were submitted on
14 October 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 22 November 1996.
The translation of the Government's observations was submitted
on 24 June 1997.
THE LAW
1. The applicant raises various complaints under Article 6
(Art. 6) of the Convention in respect of the divorce and criminal
proceedings in which she was involved.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair hearing ... within
a reasonable time by an ... impartial tribunal ..."
2. The Government submit that the Convention entered into force with
respect to Poland on 19 January 1993. 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". Thus, the application, insofar as it relates to events prior
to this date, is outside the competence ratione temporis of the
Commission.
The Commission observes that the applicant's complaints relate
in part to a period prior to 1 May 1993, the date on which Poland's
declaration acknowledging the right of individual petition took effect.
Since, in that declaration Poland limited the Commission's competence
to facts subsequent to the declaration, the Commission, by reason of
its competence ratione temporis, can examine the applicant's complaints
only insofar as they relate to the period after this date.
3. The Commission further notes that the applicant's complaints
firstly relate to the divorce proceedings which as such indubitably
involved a determination of a "civil right" within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. As regards the
criminal proceedings complained of, the Commission observes that even
if they concerned in the first place the determination of a criminal
charge against a third person, their result was directly decisive for
establishing the applicant's right to the compensation claimed (see
Eur. Court HR, Moreira de Azvedo v. Portugal judgment of 23 October
1990, Series A no. 189, p. 16 et seq., para. 66). Accordingly, Article
6 para. 1 (Art. 6-1) is applicable in respect of both sets of
proceedings complained of.
4. With regard to the applicant's complaints about the judicial
decisions given in her cases, the Commission recalls that, in
accordance with Article 19 (Art. 19) of the Convention, its only task
is to ensure the observance of the obligations undertaken by the
Parties to the Convention. In particular, it is not competent to deal
with an application alleging that errors of law or of fact have been
committed by domestic courts, except where it considers that such
errors may have involved a possible violation of any of the rights and
freedoms set out in the Convention. The Commission refers, on this
point, to its established case-law (see e.g. No. 25062/94, Dec.
18.10.95, D.R. 83, p. 77).
5. The applicant also complains under Article 6 para. 1 (Art. 6-1)
of the Convention about the unfairness of the proceedings in which she
was involved, submitting that the courts in both her cases incorrectly
assessed the evidence presented and that they failed to properly
indicate in their judgments the evidence on which they relied.
The Commission reiterates that the admissibility of evidence is
primarily a matter for regulation by national law. As a rule, it is
for the national courts to assess the evidence before them, whereas it
is the Commission's task to ascertain whether the proceedings
considered as a whole, including the way in which evidence was taken,
were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April
1991, Series A no. 203, p. 10, para. 26).
As regards the divorce proceedings, the Commission observes that
the court of first instance found, after having heard several witnesses
and examined various documentary evidence, that both parties were at
fault for the breakup of their marriage. There is no indication that
the applicant, who was assisted by a lawyer, did not have an adequate
opportunity to examine the witnesses or to contest the probative value
of their statements. The findings of the court of first instance were
confirmed on appeal. In their reasons for the judgments, the courts
of both levels carefully examined the witnesses' statements and had due
regard to their credibility, referring to all the other material at the
courts' disposal. As a consequence, the Commission finds no elements
which would indicate that the courts went beyond their discretion while
assessing the evidence presented by the parties to the proceedings or
that they failed to give accurate reasons for their decisions, or that
the proceedings were unfairly conducted in any other way.
In respect of the criminal proceedings, the Commission notes that
the courts carefully evaluated the evidence at their disposal,
including the medical report and the eye-witness statements. Finally,
they found that the reasonable doubts as to the accused's guilt
justified the application of the principle in dubio pro reo resulting
in his acquittal. The reasons for the courts' judgments properly
reflected the assessment of the circumstances militating in favour of
and against the conclusion reached. As a result, the Commission has
found no indication that in respect of these proceedings the
applicant's right to a fair hearing was not respected.
6. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention about the length of both sets of the
proceedings.
The Commission has already observed that it can, by reason of its
competence ratione temporis, only examine the applicant's complaints
insofar as they relate to a period after 30 April 1993. However, it
recalls that with respect to the applicant's complaints about the
length of the proceedings in which she was involved, the Commission can
take into account, in order to assess their length, the stage reached
in these proceedings at the beginning of the period under consideration
(see No. 7984/77, Dec. 11.7.79, D.R. 16 p. 92).
In respect of the divorce proceedings the Government maintain
that insofar as the complaint refers to the entire proceedings, such
a long period of examining the case is regrettable in itself. However,
having regard to the concrete circumstances of the case and the notion
of a "reasonable time" set out in the Convention organs' case-law, the
length of the proceedings in question was not excessive. Firstly, the
case was complex as it involved not only a divorce, but also various
questions arising from the applicant's additional claims concerning
maintenance and use of the matrimonial home. Secondly, the applicant
contributed to the length of the proceedings, in particular by her
repeated challenges concerning the impartiality of the judges and the
number of her appeals against several interim orders. The Government
point out that she should have been aware that such conduct might lead
to a further prolongation of the proceedings. Lastly, the Government
contend that it is difficult to note an inactivity on the part of the
courts other than that resulting from the necessity to adjourn the
hearings due to the parties' conduct.
The applicant submits that the length of the divorce proceedings
was excessive, as clearly confirmed by the Government in their
observations. Therefore, the Commission should examine the proceedings
as a whole, i.e. have regard to the delays in the proceedings which
took place before and after 1 May 1993. The fact that she made normal
use of her rights cannot itself explain the considerable delays in the
proceedings and their overall length. The case was not complex.
Moreover, her challenges of the judges were justified by her opinion
that they conducted her case unfairly. The applicant concludes that
the proceedings as a whole were not terminated within a reasonable
time.
The Commission recalls that the reasonableness of the length of
the proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the following criteria:
the complexity of the case, the conduct of the applicant and of the
relevant authorities and the importance of what is at stake for the
applicant in the litigation (see, inter alia, Eur. Court HR, Duclos v.
France judgment of 17 December 1996, Reports 1996-VI, No. 25,
para. 55).
The Commission notes that the proceedings in question commenced
on 5 September 1989 when the applicant lodged a civil action for
divorce and ended on 3 March 1994 when the Zielona Góra Regional Court
pronounced a final judgment; as a whole they therefore lasted four
years, five months and twenty-six days, of which ten months and two
days were after the date on which the Commission's competence to
examine applications against Poland took effect.
The Commission further observes that the proceedings were of a
certain complexity. The dissolution of the parties' marriage was not
the only issue at stake for the parties, since they both requested the
court to rule on which one of them was at fault regarding the breakdown
of their marriage. Moreover, the proceedings concerned claims relating
to maintenance and matrimonial property.
As regards the conduct of the authorities, the Commission
considers that there were no substantial periods of inactivity in the
conduct of the case on their part during the period under
consideration. It is true that the examination of the applicant's
appeal of 26 May 1993 lasted until 26 July 1993; however, in the
meantime the case-file had been transferred to another court.
On 25 November 1993 the court of first instance rendered its judgment
and the appeal hearing was scheduled for as early as 24 February 1994.
In respect of the applicant, the Commission finds no indication that
her conduct caused any undue delays in the course of the proceedings
at issue.
In respect of the criminal proceedings, the Government maintain
that their duration after 1 May 1993 fully meets the requirements of
a "reasonable time".
The applicant submits that the proceedings were not terminated
"within a reasonable time" as they lasted almost five years.
Furthermore, for two years the court of first instance was unable to
obtain the medical expert's report. As a result, her civil claim was
not determined at all.
The Commission observes that the applicant joined the proceedings
as a civil party on 11 December 1990, submitting a statement of claim.
The proceedings were terminated on 31 January 1995. Therefore, the
proceedings relating to the determination of the applicant's civil
claim as a whole lasted four years, one month and twenty days, of which
one year and nine months were after the date on which the Commission's
temporal competence took effect.
In the light of the material submitted by the parties, the
Commission finds that the case was not particularly complex. During
the period under consideration, the case was examined at first instance
and on appeal. The court of first instance held five hearings at
intervals of a maximum of three months. Two of them were adjourned as
certain evidence needed to be taken. It is true that between
7 December 1993 and 7 June 1994 the case remained adjourned due to the
fact that the court's expert failed to appear on two occasions. This
resulted in a delay of six months which does not appear excessive. As
regards the appeal proceedings, they lasted between 14 June 1994 and
31 January 1995. The court scheduled four hearings, of which two were
adjourned on the parties' requests and one due to the applicant's
challenge concerning the judges. As a result, the Commission finds no
indication that the authorities failed to duly pursue the case. Nor
does it consider that the applicant considerably contributed to the
length of the proceedings complained of.
Assessing the facts of the case as a whole, the Commission
considers that neither the divorce proceedings, nor the criminal
proceedings exceeded a "reasonable time" within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention.
7. Insofar as the applicant complains that the courts dealing with
her cases lacked impartiality, the Commission notes that the applicant
failed to adduce any material or circumstances relating to this
complaint.
The Commission has examined the applicant's complaints as they
have been submitted by her and had regard to the relevant criteria
established in the Convention organs' case-law (see Eur. Court HR,
Thomann v. Switzerland judgment of 10 June 1996, Reports 1996-III,
No. 11, para. 30). However, it finds that the applicant's submissions
do not disclose any element to cast doubt on the impartiality of the
judiciary in question.
8. It follows that the application is inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy