AS TO THE ADMISSIBILITY OF
Application No. 26766/95
by Slawomir PAPIEWSKI
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 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
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 24 August 1994 by
Slawomir Papiewski against Poland and registered on 20 March 1995 under
file No. 26766/95;
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 16
September 1996 and the observations in reply submitted by the
applicant on 13 November 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1942, is a civil servant
residing in Ryki.
The facts of the case, as submitted by the parties, may be
summarised as follows:
A. Particular circumstances of the case
In January 1990 the applicant paid 13,000,000 zlotys to the "D."
company as a loan for one year, with 250 per cent of interest provided
for in the contract between the applicant and the company. Later in
1990 the owner of the company, L.G., left Poland, having embezzled all
the funds deposited with his company.
On 29 October 1990 the Warsaw District Court (S*d Rejonowy)
adjudged thirteen million zlotys to the applicant in civil proceedings
against the "D." company.
On 7 May 1993 the applicant requested the Warsaw Regional Court
(S*d Wojewódzki), Economic Division, to include his unenforced claim
of thirteen million zlotys in the list of the "D." company's debts in
the bankruptcy proceedings.
On 10 May 1993 the applicant filed a civil claim against L.G.,
to be ruled on in the criminal proceedings against L.G., claiming the
sum of two hundred fifty-one million zlotys, consisting in the main
claim owed to him and legal interest accumulated since 1990.
At an unspecified later date the Court, pursuant to Article 55
of the Code of Criminal Procedure, refused to entertain civil actions
against L.G. within the framework of criminal proceedings, including
the applicant's action.
On 8 February 1994 the applicant complained to the Minister of
Justice that it had proved impossible for him to have the 1990 judgment
enforced as the defendant did not possess any property, and about the
length of the criminal proceedings against L.G.
On 16 March 1994, in reply to the applicant's complaint, the
Warsaw Court of Appeal (S*d Apelacyjny) informed him that the criminal
proceedings against L.G. were pending before the Regional Court and
that an expert opinion of an auditing specialist had been ordered. The
proceedings had been adjourned and no date had been fixed for the next
hearing.
On 30 September 1994 the applicant again complained to the
Minister of Justice about the length of the criminal proceedings
against L.G. which made it impossible to have his civil claim decided,
and of the impossibility to have the 1990 judgment enforced.
On 25 October 1994 the Warsaw Court of Appeal informed the
applicant that the criminal case was complex and that the date for the
next hearing would be set soon, the expert opinion having been
prepared.
On 29 March 1996 the Warsaw Regional Court convicted L.G. of
aggravated fraud committed from 17 November 1989 to 11 May 1990 and
sentenced him to twelve years imprisonment and a fine. The Court also
ordered L.G. to pay 801,811 zlotys as compensation to the estate in
bankruptcy.
On 7 October 1996 the manager of the estate in bankruptcy paid
to the applicant a sum of 781 zlotys (7,810,000 before the reform of
Polish currency of 1 January 1996) to satisfy his claim against the
"D." company registered on the creditor's list.
B. Relevant domestic law
Articles 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. A person affected by a criminal offence may bring a civil
action, concerning civil claims arising from the offence, to be ruled
on by a court in criminal proceedings. Pursuant to Article 55, the
court may allow the civil action or refuse to entertain it. If an
action has been allowed, the injured person can join the proceedings
as a plaintiff. In such proceedings the plaintiff may only put forward
such evidence as is necessary to establish the circumstances on which
his or her claim is based. In certain circumstances the court, when
pronouncing judgment in the criminal proceedings, may decline to rule
on the civil claim. If the court does so, the plaintiff can request
within 30 days that the case be transferred to a civil court. The date
of filing the civil claim with the criminal court will then be regarded
as the date on which the claim was filed with the civil court.
Regarding the determination of the civil claim, the provisions
of the Code of Civil Procedure apply to the proceedings before the
criminal court.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
the length of the criminal proceedings against L.G., in which he filed
a civil claim against the accused. He submits that the superior court
and the Ministry of Justice did not take any steps to accelerate the
proceedings.
He complains that the court's failure to rule in the case against
L. G. amounts to a lack of respect for his family life within the
meaning of Article 8 of the Convention as he has been deprived of
significant financial means.
Under Article 1 of Protocol No. 1 to the Convention he complains
that he cannot enforce the judgment of 29 October 1990 against the "D."
company as it has no property. He further submits that the State
should have taken appropriate legislative measures in order to make it
impossible for citizens to fall prey to fraud in such circumstances as
in his case.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 August 1994 and registered
on 20 March 1995.
On 15 May 1996 the Commission decided to communicate the
applicant's complaint concerning the length of the proceedings to the
respondent Government.
The Government's written observations were submitted on
16 September 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 13 November 1996.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention about the length of the criminal proceedings against L.G.,
in which he filed a civil claim against the accused.
Article 6 (Art. 6) of the Convention in its relevant part reads:
"1. In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing within a reasonable
time by (a)... tribunal..."
The Government submit that the applicant cannot claim to be
a victim of the alleged violation of Article 6 para. 1 (Art. 6-1) of
the Convention as regards the length of the criminal proceedings
against L.G. This is so, firstly, as the criminal charges against L.G.
concerned allegations of fraud committed to the detriment of the "D."
company, not to the detriment of any individuals. Consequently, the
applicant could not suffer any disadvantage by the alleged length of
these proceedings. This argument applies with all the more force as
the applicant's civil claim against the company has been dealt with in
civil proceedings in which the court found in his favour and ordered
the company to pay him the sums deposited with the company.
The Government further emphasise that the applicant was not
a party to the criminal proceedings against L.G. either as a plaintiff
or as a private prosecutor. This was so as the Warsaw Regional Court
refused to entertain his civil action in these proceedings, pursuant
to Article 55 of the Code of Criminal Procedure. The Court considered
that the indictment against L.G. had charged him with fraud to the
detriment of the "D." company and not to the detriment of any
individuals. There was, therefore, no plausible causal link between
any damage suffered by any individuals and the charges which were to
be examined in the criminal proceedings. The Government contend that,
consequently, the outcome of these proceedings could not affect in any
manner the applicant civil rights. The same holds true for the length
of these proceedings, regardless of their actual duration, which, in
any event, was not excessive.
The Government note that the claims against an estate in
bankruptcy are subject to a separate regulation and that the
applicant's civil claim as confirmed by the Warsaw Regional Court's
judgment of 29 October 1990 was submitted to the court in such
proceedings concerning the "D." company. Such proceedings constitute
a relevant remedy as regards the applicant's civil claim.
The Government conclude that this complaint should be declared
inadmissible for being incompatible ratione personae with the
Convention.
The applicant submits that the Government's argument as to the
application's incompatibility ratione personae with the Convention is
unacceptable as it sanctions impractical and defective legal
regulations which, in particular, make individuals vulnerable to fraud
in circumstances similar to the L.G. case. The law should primarily
aim at compensation of damage suffered by an individual as a result of
such fraud. Consequently, the Government should not base their
argument on formal considerations. Under relevant Polish regulations
he did not have effective access to a court which would rule on his
civil claim as the Warsaw Regional Court refused to entertain his civil
action in the criminal proceedings against L.G. He was thus deprived
of a forum where he could personally present his arguments and
submissions to a court. Consequently, he was deprived of a possibility
of claiming satisfaction and the right to peaceful enjoyment of
property was infringed.
The applicant further submits that even though he was not a party
to the proceedings against L.G., he had a practical legal interest in
their ending promptly. He maintains that the Government's reasoning
condones the incompatibility of Polish law with international
conventions, and with the European Convention of Human Rights in
particular. As the Polish constitutional order does not expressly
provide for direct applicability of international instruments by the
courts, regardless of the Constitutional Court's judgment of 7 January
1992, the legal system does not ensure respect for human rights.
The applicant complains that his financial claim was not
satisfied, either in the criminal proceedings against L.G. or in any
other proceedings which were conducted before the Polish courts.
The applicant finally submits that the Government's submissions
are theoretical and that they fail to take into account the
particularities of his individual situation.
The Commission first recalls that even if criminal proceedings
concern in the first place the determination of a criminal charge
against a third person, their result could in this case be directly
decisive for establishing the applicant's right to the compensation
claimed (see Eur. Court HR, Moreira de Azevedo v. Portugal judgment of
23 October 1990, Series A no. 189, p. 16 et seq., para. 66).
However, the Commission observes that it has been established
in the present case that the Warsaw Regional Court, pursuant to Article
55 of the Code of Criminal Procedure, refused to entertain the
applicant's civil claim. Consequently, the applicant could not join the
proceedings as a plaintiff and was not a party thereto. Accordingly,
the proceedings at issue did not concern his civil rights and
obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. Therefore this provision is not applicable.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant complains that the court's failure to rule in the
criminal case against L.G. amounts to a lack of respect for his family
life within the meaning of Article 8 (Art. 8) of the Convention as he
has thereby been deprived of significant financial means.
The Commission considers that in the light of its above findings
as to the applicant's lack of legal interest in the conduct and outcome
of the criminal proceedings against L.G., no interference with the
applicant's right to respect for his family life can be found in this
respect. 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. Under Article 1 of Protocol No. 1 (P1-1) to the Convention he
complains that he cannot enforce the judgment of 29 October 1990
against the "D." company as it has no property.
Article 1 of Protocol No. 1 (P1-1) reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission observes that on 7 October 1996 the manager of the
estate in bankruptcy paid to the applicant a sum of 781 zlotys to
satisfy his claim against "D." company lodged with the Warsaw Regional
Court on 7 May 1993 in accordance with the legal rules concerning
bankruptcy proceedings. It is true that this sum was smaller than that
which the applicant had paid in 1990 to the "D." company. However, even
assuming that the acts of the manager of bankruptcy acting as
a representative of public interest and appointed by a court could
entail the responsibility of the State, the fact that it was impossible
to satisfy all creditors in the bankruptcy proceedings due to the lack
of assets on the part of the bankrupt company does not infringe the
applicant's right to peaceful enjoyment of property within the meaning
of Article 1 of Protocol No. 1 (P1-1) of the Convention.
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.
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