AS TO THE ADMISSIBILITY OF
Application No. 25085/94
by Grzegorz SAWICKI
against Poland
The European Commission of Human Rights sitting in private on
6 July 1995, the following members being present:
MM. C.A. NØRGAARD, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
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 31 December 1993
by Grzegorz Sawicki against Poland and registered on 6 September 1994
under file No. 25085/94;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1954, is a carpenter
currently serving a prison sentence in Fordon prison in Poland.
The facts of the case as submitted by the applicants may be
summarised as follows:
1. Particular circumstances of the case
On 20 May 1993 the Wloclawek District Court (S*d Rejonowy)
convicted the applicant of attempted theft and sentenced him to three
years' imprisonment and a fine of three million zlotys with 30 days'
imprisonment in default.
The applicant lodged an appeal against this decision. He
complained that the District Court had refused to hear one witness, who
had been heard in the course of the investigation, and to inspect the
scene of the crime. He also complained about the assessment of
evidence by the District Court.
On 18 November 1993 the Wloclawek Regional Court (S*d Wojewódzki)
dismissed the appeal. The Court considered that the refusal to hear
the witness was justified as he had been heard in the course of the
investigation. He had stated that he was not able to see the person
concerned in the act of committing the offence and consequently was not
able to identify the applicant. There were other witnesses who had
recognised the applicant. The Court considered that a visit to the
scene of the offence would be of no significance as the District Court
knew it ex officio. There was no indication that the District Court
was arbitrary in assessment of evidence.
On 12 April 1994 the Minister of Justice refused leave for an
extraordinary appeal.
Letters which the Commission's Secretariat sent to the applicant
on 24 January 1994, 24 March 1994 and 25 July 1994 were allegedly
stopped by the prison authorities, opened in his absence and handed to
him with delays of approximately twenty days. The prison authorities
posted the applicant's letters to the Commission only upon his
insistent requests.
2. Relevant domestic law
According to Article 30 para. 2 of the Rules of Execution of
Prison Sentences, the prisoner may correspond with foreign institutions
and organisations only with the permission of a prison governor.
According to Article 31 para. 1 the correspondence of a prisoner
shall be subjected to censorship by the prison governor, with the
exception of letters to and from legislative and administrative
authorities, the judiciary, the police and other state authorities.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the District Court refused to hear one witness who had been heard
during the investigation and to take evidence on the spot. He also
complains of the assessment of evidence by this Court.
The applicant further complains that three letters from the
Secretariat of the Commission were stopped, opened in his absence, read
and handed to him with delays of approximately twenty days. He alleges
that on several occasions the prison authorities first refused to post
his letters to the Commission and then only did so on his insistence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 December 1993 and registered
on 6 September 1994.
On 30 November 1994 the Commission decided to communicate the
application to the Polish Government who were invited to submit their
observations on its admissibility and merits before 21 February 1995.
At the Government's requests, dated 14 February, 16 March, 21 March and
13 April 1995, the time-limit for the submission of the observations
was subsequently extended four times, until 10 March, 31 March, 10
April and 30 April 1995, respectively.
By letter of 27 April 1995 the Government were informed that
the application was being considered for inclusion in the list of cases
for examination by the Commission at its June session.
THE LAW
1. The applicant complains that three letters from the Secretariat
of the Commission were stopped, opened in his absence, read and handed
to him with delays of approximately twenty days. He alleges that on
several occasions the prison authorities refused to post his letters
to the Commission and did so only on his insistence.
The Commission has examined these complaints under Article 8
(Art. 8) and Article 25 para. 1 (Art. 25-1) of the Convention.
Article 8 (Art. 8) of the Convention, insofar as relevant,
provides:
"1. Everyone has the right to respect for his ...
correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
Article 25 para. 1 (Art. 25-1) of the Convention, insofar as
relevant, provides:
"1. The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any person...
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in this Convention...
Those of the High Contracting Parties who have made such a
declaration undertake not to hinder in any way the effective
exercise of this right."
The Commission recalls that the application was communicated to
the Polish Government, who have been invited to submit observations on
their admissibility and merits. The time-limit for the submission of
such observations was extended, at the Government's request, four
times, the last time until 30 April 1995. No observations have been
submitted within the time-limit.
As regards the exhaustion of domestic remedies, it is the normal
practice of the Commission, where a case has been communicated to the
respondent Government, not to declare the application inadmissible for
failure to exhaust domestic remedies, unless this matter has been
raised by the Government in their observations. The Commission
considers that the same principle should be applied where, as in the
present case, the respondent Government have not submitted any
observations at all (see No. 22947/93, Dec. 11.10.93, unpublished).
Insofar as the complaint raises issues under Article 25 para. 1
(Art. 25-1) of the Convention, the Commission recalls that the general
rules of admissibility, including the provisions concerning the
exhaustion of domestic remedies, are not applicable with regard to the
complaints which raise a question under Article 25 para. 1 (Art. 25-1)
of the Convention (see No. 3591/68, Dec. 5.2.70, Collection 31, p. 37).
It follows that the complaint under Article 8 (Art. 8) of the
Convention cannot be rejected under Article 26 (Art. 26) of the
Convention for non-exhaustion of domestic remedies.
The Commission further recalls the Convention organs' case-law,
according to which the parties must be invited to participate in the
examination of the facts by the Commission, though such an examination
cannot be hindered by the manner in which the parties in fact
participate (see No. 8007/77, Dec.10.7.78, D.R.13 p. 85).
Having examined the complaint under Article 8 (Art. 8), the
Commission finds that it raises serious questions of fact and law which
are of such complexity that their determination should depend on an
examination of the merits. This complaint cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention , and no other ground for
declaring it inadmissible has been established.
2. The Commission further considers that the question whether the
applicant's right under Article 25 (Art. 25) of the Convention to
exercise his right of petition has been interfered with requires
further examination by the Commission.
3. The applicant further complains under Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention that the criminal proceedings were
unfair in that the Wloclawek District Court refused to hear one
witness, who had been heard in the course of the investigations, and
wrongly assessed evidence before it. The Court also refused to take
evidence on the spot.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing."
Article 6 para. 3 (Art. 6-3) of the Convention, insofar as
relevant, provides:
"3. Everyone charged with a criminal offence has the following
minimum rights:
...
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him."
The Commission recalls that Article 6 (Art. 6) of the Convention
does not grant the accused an unlimited right to secure the appearance
of witnesses in court. Furthermore, it is in the trial court's
discretion to refuse to take evidence which is considered irrelevant
or unobtainable (see. No. 8417/78, Dec. 4.5.79, D.R. 16 p. 200 and Eur.
Court H.R.; Engel and Others judgment of 8 June 1976, Series A no. 22,
pp. 38-39, para. 91). Moreover, according to the Convention organs'
case-law, it is primarily for the national courts to assess the
evidence before them. The Convention organs' task is to ascertain
whether the proceedings as a whole, including the way in which evidence
was taken, were fair (see Eur. Court H.R., Asch judgment of 26 April
1991, Series A, No. 203, p. 10, para. 26).
In the present case, the District Court refused to hear the
witness concerned as he had already been heard during the
investigations. The Court considered his evidence irrelevant as he had
stated that he had not recognised the person concerned while he was
committing an offence. Moreover, the Court refused to take evidence
on the spot, all relevant circumstances being known to the Court.
There are no elements which would indicate that the District Court went
beyond its discretion when appraising the evidence in the circumstances
of the present case.
It follows that the remainder 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 ADMISSIBLE, without prejudging the merits of the case,
the complaints under Article 8 (Art. 8) of the Convention;
DECLARES INADMISSIBLE the remainder of the application;
DECIDES TO PURSUE the examination of whether the applicant's
right under Article 25 (Art. 25) of the Convention was interfered
with.
Deputy Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)
Full & Egal Universal Law Academy