AS TO THE ADMISSIBILITY OF
Application No. 27382/95
by Miroslaw KRUPINSKI
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
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 October 1994
by Miroslaw KRUPINSKI against Poland and registered on 23 May 1995
under file No. 27382/95;
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
7 May 1996 and the observations in reply submitted by the
applicant on 24 May 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Australian citizen born in 1939, is an engineer
residing in Albany in Australia. He previously had Polish citizenship.
Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows:
On 29 September 1982 the Navy Military Court (S*d Marynarki
Wojennej) in Gdynia convicted the applicant of pursuing illegal trade
union activities, which had been banned by the military regime upon
introduction of martial law on 13 December 1981. The applicant was
sentenced to three years and six months' imprisonment. On 28 September
1982 the Military Chamber of the Supreme Court upheld the judgment.
The applicant served twenty-one months of imprisonment.
On 10 December 1991 the President of the Military Chamber of the
Supreme Court (Przewodnicz*cy Izby Wojskowej S*du Najwyzszego) filed
an extraordinary appeal against this judgment.
On 21 January 1992 the Supreme Court (S*d Najwyzszy) quashed the
judgment, considering that the applicant's conviction was contrary to
the principle nullum crimen sine lege as the trade union activities in
question had taken place from 13 to 15 December 1981, whereas the
official promulgation of the Decree on Martial Law, banning trade union
activities, had been effected only on 18 December 1981. The Court
accordingly acquitted the applicant.
On 20 October 1993 the applicant filed a request with the Supreme
Court for an extraordinary appeal against the judgment of 1982. This
request was sent by a recommended letter from Sydney.
In a letter of 23 November 1993 the Supreme Court informed the
applicant that his application for leave for an extraordinary appeal
would not be entertained as it was devoid of purpose, the applicant's
acquittal having been pronounced on 21 January 1992 by the Supreme
Court. Any claim for compensation could be dealt with by the Navy
Military Court in Gdynia, to which the applicant's letter of
18 October 1992 had been forwarded on 23 November 1993. It was further
stated in the letter that the applicant had been represented before the
Supreme Court by a lawyer M., practising in Gdansk. The Court further
suggested that the applicant, in his own interest, should appoint his
representative for the possible compensation proceedings or that he
should establish an address in Poland for service of any documents
concerning these proceedings since this could significantly expedite
the proceedings.
On 17 February 1994 this letter was served on the applicant by
the Polish consulate in Sydney.
On 7 April 1994 the applicant filed a request with the Navy
Military Court in Gdynia for compensation of 500,000 zlotys for
wrongful conviction. He sent this request by registered letter from
Sydney. He submitted that the Registry of the Supreme Court in its
letter of 23 November 1993 had wrongly informed him that the lawyer M.
had represented him during the extraordinary appeal proceedings.
In a letter of 8 March 1996 the Navy Military Court informed the
applicant that a first hearing would be held on 4 June 1996. In
accordance with the applicable laws, if no representative was
appointed, all communications to the applicant would be sent through
consular channels, as indicated in the previous communications to the
applicant.
On 4 June 1996 the Gdynia Navy Military Court held a hearing in
which it decided to request the applicant's former employers to submit
evidence concerning his salaries before he left Poland.
On 3 July 1996 the Gdynia Military Court decided that it was not
competent to entertain the case and transferred it to the Poznan
Regional Military Court (Wojskowy S*d Okr*gowy) as the Navy Military
Court had ceased to exist on 1 July 1996.
Relevant domestic law
Article 487 para. 1 of the Code of Criminal Procedure provides
that an accused, who has been acquitted as a result of the reopening
of the proceedings or of an extraordinary appeal, is entitled to
compensation from the State Treasury for the pecuniary and non-
pecuniary damage suffered as a result of deprivation of his liberty.
The proceedings concerning the compensation claim are to be held before
the regional court in whose area of competence the first instance
judgment was pronounced.
Article 124 of the Code provides that a party to proceedings
residing abroad is obliged to establish an address in Poland for the
purpose of service of the correspondence; in case of a failure to do
so, any correspondence shall be sent to his or her last known address
in Poland, or, if no such address is known, included in the case-file
and considered as having been served.
COMPLAINTS
The applicant complains that the failure of the Navy Military
Court to deal with his request or even to acknowledge receipt thereof
is in breach of his enforceable right to compensation for detention in
contravention of the provisions of Article 5 of the Convention, as
guaranteed by Article 5 para. 5 of the Convention.
He submits that he was not represented in the proceedings before
the Supreme Court and that in November 1993 the Registry of this Court
wrongly informed him that he had been represented by the lawyer M., who
in fact had left Poland in 1986. He submits that he learned of his
acquittal on 17 February 1994, as it was only on this date that the
Polish consulate in Sydney transmitted the relevant documents to him.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 October 1994 and registered
on 23 May 1995.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 7 May
1996, after three extensions of the time-limits fixed for that purpose.
The applicant replied on 24 May 1996.
THE LAW
The applicant complains that the failure of the Navy Military
Court to deal with his request is in breach of his right to
compensation for detention in contravention of Article 5 para. 5
(Art. 5-5) of the Convention. The Commission has examined this
complaint under Article 6 para. 1 (Art. 6-1) of the Convention as
concerning the length of the proceedings relating to the applicant's
compensation claim.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"1. In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time
...
The Government concede that Article 6 (Art. 6) of the Convention
is applicable to proceedings concerning compensation claims for
deprivation of liberty referred to in Article 487 para. 1 of the Code
of Criminal Procedure and that such compensation claims are of a civil
character.
The Government further submit that the case is not complex.
However, the exact amount of compensation to be eventually awarded may
give rise to considerable difficulties.
The Government maintain that the applicant's conduct has
considerably contributed to prolonging the proceedings. In this
respect they refer to the fact that in the letter of 23 November 1993
the Supreme Court suggested that the applicant, in his own interest,
should appoint his representative for the possible compensation
proceedings or that he should establish an address in Poland for
service of any documents concerning these proceedings. The applicant
failed to do so, despite his legal obligation under Article 124 of the
Code of Criminal Procedure. The Government further state that in his
action of 7 April 1994 the applicant unequivocally refused to appoint
a counsel in Poland and indicated an address in Australia for the
purpose of service of court correspondence. Had he done so at the
beginning of the proceedings, this would undoubtedly have contributed
to their acceleration.
The Government finally submit that the length of the proceedings
before the Navy Military Court is reasonable and that there were no
shortcomings for which the court could be held responsible. As regards
the delay in service of the Supreme Court's judgment to the applicant,
this judgment was not served immediately as the applicant's address
was unknown to the Court. It was eventually served after he had
informed the Court of his address in Australia in his request for an
extraordinary appeal of 20 October 1993.
The Government conclude that the length of the compensation
proceedings complied with the requirements of Article 6 para. 1
(Art. 6-1) of the Convention. The application should thus be declared
manifestly ill-founded.
The applicant submits that he was never informed of the
requirements of Article 124 of the Code of Criminal Procedure. The
Supreme Court's letter referred to by the Government was only a
suggestion, not information of the relevant legal requirements. He
decided not to follow it as he did not see any technical reasons why
the court correspondence could not be served at his address in
Australia. With regard to the Navy Military Court's letter of
8 March 1996, the applicant emphasises that he had not received any
previous communications from that Court as it is implied in this
letter, including any information as to these requirements. He never
refused to appoint a counsel or establish an address in Poland as such
requirement was never laid down. There was no need to appoint a
counsel as the case was not complex and his claim was obviously well-
founded. Finally, the applicant emphasises that if the Court could
contact him at his Australian address in March 1996 through consular
channels, there had apparently been no legal impediments for doing so
earlier.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (Eur. Court HR, Vernillo v.
Italy judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).
The Commission also recalls that in civil cases the exercise of the
right to a hearing within a reasonable time is subject to diligence
being shown by the party concerned (Eur. Court HR, Pretto and others
v. Italy judgment of 8 December 1983, Series A no. 71, pp. 14 et seq.,
paras. 33 et seq.).
The Commission observes that the case does not appear to be
complex. The only issue to be determined is the sum of compensation
and no facts are in dispute between the parties. The Commission
further observes that the authorities remained inactive between 7 April
1994, the date on which the applicant's compensation claim was filed
with the Navy Military Court, and 8 March 1996, the date of the
Court's first letter to the applicant, informing him of the date of the
first hearing to be held. The Commission further notes that the
applicant neither appointed a representative in Poland to represent him
before the Court nor established an address in Poland for service of
the court correspondence. In the Supreme Court's letter of 23 November
1993 he was informed that taking one of these measures would
significantly expedite the proceedings before the Navy Military Court.
It is true that he was not informed by the Supreme Court of the formal
requirements applicable to a party to the proceedings residing abroad
as stated in Article 124 of the Polish Code of Criminal Procedure.
However, the Court was under no legal obligation to do so. The
applicant should have been aware that it was in his best interest to
follow the suggestion contained in the Supreme Court's letter. He
further persisted in his refusal after the Navy Military Court informed
him of the relevant requirements in its letter of 8 March 1996. The
Commission considers that on the whole the applicant has not shown
appropriate diligence in that he failed to comply with the applicable
legal requirements concerning the service of court correspondence with
parties residing abroad.
In the light of the criteria established by the case-law and
having regard to the circumstances of the present case, the Commission
concludes that the length of the proceedings was not excessive.
It follows that the application is 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