THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42096/98
by Mirosława SKAWIŃSKA
against Poland
The European Court of Human Rights (Third Section), sitting on 16 October 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrL. Loucaides,
MrJ. Makarczyk
MrP. Kūris,
MrsF. Tulkens,
MrK. Jungwiert,
MrsH.S. Greve, judges,
and Mrs S.Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 12 November 1997 and registered on 8 July 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Polish national, born in 1957 and living in Łódź, Poland.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant
On 8 December 1992, relying on information provided by a certain X, the Łódź-Górna District Prosecutor (Prokurator Rejonowy) opened an investigation against the applicant concerning theft and obstructing X’s use of certain objects.
On 30 July 1993 the District Prosecutor submitted the bill of indictment to the Łódź District Court (Sąd Rejonowy).
On 16 May 1994 the court ordered a psychiatric examination of the applicant. It considered that her behaviour in the course of the proceedings and the nature of her pleadings caused it doubt whether she was capable of understanding the meaning of the criminal act allegedly committed by her and whether she was capable of taking part in the proceedings.
On 14 June 1994 the examination was carried out. The applicant submits that it lasted a few minutes and the psychiatrists seemed not to have read the case-file. On the same day the court ordered the applicant to undergo observation in a psychiatric hospital, relying on the psychiatrists’ statement that they had not been able to prepare their opinion on the basis of their single examination. The applicant appealed.
On 6 July 1994 the Łódź Regional Court (Sąd Wojewódzki) amended the decision under appeal by indicating that the observation would not last more than three weeks. The court dismissed the remainder of the applicant’s appeal.
On 3 November 1994 the Łódź District Court held a hearing at which it decided to make an enquiry with a psychiatric hospital about a date on which the observation could be carried out. The applicant appealed that decision, pointing out that the psychiatrists’ opinion of 14 June 1994 was of a poor quality and that the court had overlooked the fact that during her observation her child would be left without care. She submitted that her requests to be examined by other psychiatrists or to undergo short observations in a hospital with the possibility of returning home every day so as to take care of her child had been refused. The appeal was rejected as not provided for by law in such cases.
On 25 September 1995 the applicant was placed for three weeks in a psychiatric hospital. She submits that she was treated with strong medicines which severely affected her health and consciousness. On the basis of the observation, the psychiatrists stated that the applicant suffered from stress caused by court proceedings as well as from delusions.
On 20 November 1995 the District Court stayed the proceedings, considering that the applicant was unable to participate because of her mental illness.
On 17 June 1996 psychiatrists examined her and found that her health had deteriorated.
On 21 July 1997 the court rejected the applicant’s challenge to the participation in the proceedings of one of the judges.
On 26 February 1998 the court refused her request that the proceedings be resumed. The court considered that a decision to resume the proceedings should be based on a psychiatric opinion confirming that the applicant’s health was no longer an obstacle to her participation. It noted that the opinions available to it were not persuasive in this respect, and that the applicant kept failing to attend further examinations.
On 24 August 1999 the court resumed the proceedings.
On 5 January 2000 the applicant requested that the psychiatrists who issued the opinions on her mental health be excluded from the proceedings.
On 7 April 2000 the Łódź District Court gave a judgment in which it acquitted the applicant. The prosecutor appealed.
On 12 October 2000 the Łódź Regional Court dismissed the appeal.
2. Civil proceedings against X
On 23 January 1993 the applicant filed with the Łódź District Court an action in which she claimed compensation from X. She alleged that X had either stolen or damaged several objects belonging to her.
The court held the first hearing in October 1993, during which the defendant made a counterclaim.
Subsequently, the court transferred the case to the Łódź Regional Court.
In November 1994 the court held a hearing, which the defendant failed to attend. After the defendant’s repeated absences, the applicant requested the court to take appropriate measures. In the summons for the following hearing, scheduled for May 1995, the court warned the defendant that his failure to attend would result in the case being examined in his absence. At that hearing a certain Ms Y requested that she be allowed to join the proceedings as an intervener (interwenient uboczny).
The hearing scheduled for 1 December 1995 was adjourned because the applicant was in hospital. The proceedings were subsequently stayed.
Having left the hospital, in February 1996, the applicant requested that the proceedings be resumed. The court summoned her lawyer to confirm that request. Following the applicant’s complaint to the President of the Regional Court, a further hearing was scheduled for 22 October 1996.
On an unspecified date in 1997 the court ordered an expert opinion.
On an unspecified date the court excluded from the proceedings the examination of the applicant’s claims concerning the alleged infringement of her personal rights (dobra osobiste) by X.
On 23 September 1997 the Łódź Regional Court delivered its judgment, in which it awarded the applicant compensation of PLN 2,000 and dismissed X’s counterclaim.
On 23 March 1998 the court gave judgment relating to the personal rights. It awarded the applicant compensation of PLN 10,000 and ordered the defendant to publish his apologies to the applicant in a newspaper.
The applicant submits that on several occasions witnesses failed to attend the hearings.
3. Criminal proceedings against X and Y
On 6 January 1998 the applicant brought a private prosecution against Y and X, submitting that they had slandered her.
On 12 January 1998 the Łódź District Court transferred the case to the District Prosecutor, considering that the nature of the offence alleged by the applicant called for the opening ex officio of an investigation.
The District Prosecutor refused to initiate the investigation. However, that refusal was quashed and on 20 March 1998 the investigation commenced.
On 14 April 1998 the prosecutor discontinued the investigation, considering that there was no indication that the alleged offence had been committed.
On 11 May 1998 the Łódź District Court discontinued the proceedings initiated by the private prosecution brought by the applicant. It observed that, in the light of the prosecution’s findings, the case was res iudicata. The applicant appealed that decision.
On 3 June 1998 the Łódź Regional Court quashed the contested decision and remitted the case for re-examination.
A hearing was scheduled for 20 November 1998 for the purpose of reaching a settlement between the parties to the proceedings, but to no avail.
The court scheduled a further hearing for 5 January 1999. Before that date the accused requested free legal assistance and X informed the court that he had been mentally ill. The applicant requested that, instead of ordering his psychiatric examination, which would delay the proceedings, a psychiatrist be present at the hearings. The court ordered that X be examined.
On 26 January 1999 the registry of the District Court informed the applicant that a fine of PLN 500 had been imposed on her for offending that court’s authority in her pleadings of 7 January 1999.
The psychiatrists did not confirm X’s allegations about his mental health and the court scheduled a hearing for 11 June 1999. Before that hearing the applicant requested free legal assistance and petitioned that the proceedings be stayed for a short time because of her illness. She also requested that, in the event of her non-attendance at the hearing, her absence should not be interpreted as indicating her wish to withdraw the private prosecution.
On 11 June 1999 the District Court refused the applicant’s request and discontinued the proceedings, considering that she had failed to support her petition with relevant medical certificates. The applicant appealed and on 14 July 1999 the Łódź Regional Court quashed the decision and remitted the case for a re-examination.
The court held hearings on 2 December 1999, 18 January, 15 February, 21 March, 18 April, 16 May, 12 September, 18 October and 20 November 2000. The accused failed to appear at several of the hearings.
In December 2000, in the course of other criminal proceedings against him, an arrest warrant was issued in respect of X. The applicant submits that he has not to date been found.
The proceedings appear to be pending.
4. Proceedings concerning compensation for alleged unjustified arrest
On 26 February 1998, in the course of the criminal proceedings against the applicant (see Section 1 above), she was arrested on the court’s premises while reading a case-file. She was kept for two hours under arrest and subsequently escorted to a psychiatric hospital. At the hospital the applicant refused to undergo an examination and was released.
On 14 May 1998 she filed with the Łódź Regional Court a claim for compensation for the alleged manifestly unjustified arrest.
On 21 August 1998 the court dismissed the claim, considering that the psychiatric examination was necessary in order to determine whether the applicant was able to participate in the criminal proceedings against her, which was a prerequisite for taking a decision to resume them. It noted that the arrest on 26 February 1998 had been preceded by her failure to attend the prescribed examinations and her declarations that she would not attend. The court found that in such circumstances the arrest was justified and there were no grounds for imposing any liability under the provisions of the Code of Criminal Procedure on compensation for a manifestly unjustified arrest. The applicant appealed.
On 17 December 1998 the Łódź Court of Appeal (Sąd Apelacyjny) dismissed her appeal.
On 30 January 1999 the applicant’s legal-aid lawyer refused to lodge a cassation appeal on her behalf, relying on the lack of any grounds therefor. Although the time-limit for lodging an appeal was to expire within about week of that date, the applicant did not take any further steps to lodge an appeal.
Subsequently, the applicant filed with the Supreme Court a request that the Court of Appeal’s judgment be held null and void, but to no avail.
5. Civil proceedings against Z
On 2 June 1998 the applicant filed with the Łódź Regional Court an action in which she requested that the purchase of a property by a certain Z from X be declared void. She submitted that the purchase would affect the enforcement proceedings against X.
On 14 June 1999 the court dismissed her action.
The applicant appealed and on 14 October 1999 the Łódź Court of Appeal quashed the judgment and remitted the case for re-examination.
On 3 November 2000 the District Court dismissed the action. The applicant appealed.
It appears that the proceedings are still pending.
6. Civil proceedings against the legal-aid lawyer
On 2 July 1999 the applicant filed with the Łódź District Court an action in which she claimed compensation from her legal-aid lawyer who refused to lodge a cassation appeal on her behalf in the proceedings concerning compensation for her allegedly unjustified arrest (see Section 4 above).
In January 2000 she increased the amount claimed, as a result of which the case had to be transferred to the Łódź Regional Court.
On 11 October 2000 the Regional Court dismissed the action, considering that, contrary to the applicant’s submissions, the right to a court did not fall within the category of personal rights (dobra osobiste), the breach of which she alleged. In addition, it observed that civil liability for a breach of personal rights arises only in respect of conduct which is unlawful. The court noted that the lawyer had informed the criminal court about his refusal to lodge the appeal, relying on the lack of any grounds. He further analysed a draft appeal submitted by the applicant and again refused to lodge it. The court found that the lawyer’s conduct was in compliance with the Code of Criminal Procedure and thus could not be considered unlawful.
The applicant appealed, but on 11 April 2001 the Łódź Court of Appeal dismissed her appeal. The applicant submits that a legal-aid lawyer, appointed in the course of those proceedings, refused to lodge a cassation appeal against that judgment.
7. Other proceedings
On 11 July, 18 July and 25 September 2000 the applicant filed with the Łódź Regional Court actions against various judges of the local courts, submitting that they had unlawfully imposed several fines on her, been responsible for the delay in the criminal proceedings against her and unlawfully ordered her psychiatric examinations. The proceedings appear to be still pending.
B. Relevant domestic law and practice
Article 23 of the Civil Code provides:
“Personal rights of a human being, in particular (...) reputation (cześć) (...), shall be protected by civil law, regardless of protection provided for by other provisions.”
Article 24 of that Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator abandon the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that in the course of the criminal proceedings against her she was subjected to degrading treatment. She maintains that this treatment resulted from the breach by the judges of the Code of Criminal Procedure and that the judges, seemed convinced that, regardless of what they did with the applicant, they would not face the consequences of their decisions.
2. The applicant complains under Article 5 § 1 (b) of the Convention that she was unlawfully detained in the psychiatric hospital in 1995 on the basis of a short examination by unprepared psychiatrists. The applicant submits that the observation seriously endangered her health, and even life, and was ordered at a stage of the proceedings when it was clear that she was innocent.
3. The applicant further complains under Article 6 § 1 of the Convention that in the proceedings concerning compensation for her alleged unjustified arrest she was deprived of the right to a hearing by a court. She submits that the Code of Criminal Procedure leaves the decision whether to lodge a cassation appeal to lawyers representing the parties to the proceedings, as a result of which she could not have her case examined by the Supreme Court.
4. The applicant next complains under Article 6 § 1 of the Convention that she could not appeal against the decision of 26 January 1999 imposing a fine on her in the course of the criminal proceedings against X and Y. She submits that Polish law does not guarantee the right to an appeal against such decisions, in breach of the right to a two-instance court procedure. In her letter of 14 January 2001 the applicant appears to extend this complaint to further decisions imposing fines on her in the course of various proceedings in 1999 and 2000. In her letter of 15 May 2001 she also raises a complaint under Article 13 of the Convention in respect of those fines.
5. The applicant, moreover, complains under Article 6 § 1 of the Convention in respect of the proceedings against the legal-aid lawyer that she was deprived of the right to a hearing by an independent and impartial tribunal. She further invokes Article 14 of the Convention, submitting that the violation of Article 6 resulted from the lack of protection against discrimination based on the fact that individuals who are not lawyers cannot lodge a cassation appeal.
6. The applicant complains, furthermore, under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against her, the civil proceedings against X, the criminal proceedings against X and Y, as well as the civil proceedings against Z.
7. The applicant complains, in addition, under Article 6 § 3 (c) of the Convention that in the criminal proceedings against her the court refused her requests that her legal-aid lawyer, in whom she had lost confidence, be replaced by another lawyer or that an additional lawyer be appointed.
8. The applicant also complains under Article 6 § 3 (d) of the Convention that in the criminal proceedings against her the court refused to examine certain witnesses proposed by the defence.
9. The applicant finally complains in respect of the proceedings against Z that she had no effective remedy as regards the delays in the proceedings caused deliberately by the judges and their decisions, decisions which she claims were taken in contravention of domestic law.
THE LAW
1. The applicant complains under Article 3 of the Convention that she was treated in a degrading manner in the course of the criminal proceedings against her.
Article 3 of the Convention provides:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The Court recalls that to fall within the scope of Article 3 ill-treatment must attain a minimum level of severity, which depends on all the circumstances of the case. Treatment has been held by the Court to be “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating or debasing them (see, inter alia, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 65, § 100).
The Court observes in this connection that a court order issued by a criminal court requiring an accused to submit to a psychiatric examination is a normal procedural decision which must be permitted whenever there are any doubts as to the criminal responsibility of the accused. It is understandable that a person affected by such a measure has an interest that it should not be taken unless objective circumstances prevailing at the relevant time so require. Nevertheless, the obligation to comply with such an order does not, as such, constitute degrading treatment (see X. v. the Federal Republic of Germany, application no. 8334/78, Commission decision of 7 May 1981, DR 24, p. 103).
In so far as the applicant in the instant case complains about the court decisions ordering her to undergo psychiatric observation and the examinations carried out, the Court considers that there are no reasons which would cast doubt on the assessment made by the courts as to the appropriateness of ordering the examinations; nor do the facts disclose any appearance of a breach of Article 3 as regards the actual conduct of the examinations.
As far as the applicant complains about other decisions issued in those proceedings and the judges’ general attitude towards her, the Court finds that the applicant has not substantiated her allegations that the matters relied on amounted to degrading treatment or were calculated to degrade her.
It follows that the applicant’s complaints under Article 3 are manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains under Article 5 § 1 (b) of the Convention about the psychiatric observation to which she was subjected.
Article 5 of the Convention provides, in so far as relevant:
“1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
b the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;”
The Court notes that the final decision concerning that observation was taken on 6 July 1994 and that the applicant was placed in a psychiatric hospital for three weeks on 25 September 1995. Regardless of which of these dates is taken into account, and having regard to the date of introduction of the application (12 November 1997), the complaint must be rejected as having been lodged more than six months after the final domestic decision was taken. The complaint is therefore inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.
3. The applicant complains under Article 6 § 1 of the Convention about her legal-aid lawyer’s refusal to lodge a cassation appeal on her behalf in the proceedings concerning the allegedly unjustified arrest and the alleged shortcomings of the Code of Criminal Procedure on this issue. The relevant part of Article 6 § 1 of the Convention provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Court firstly observes that Article 34 of the Convention guarantees the right of individual petition to those who claim to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols.
By the term “High Contracting Parties” is understood their official organs. A lawyer, even if he or she is officially appointed to a case, cannot be considered an organ of a State. Therefore, his or her acts or omissions are not, in theory, directly attributable to a State authority and cannot, other than in special circumstances, incur the latter’s liability under the Convention (see, mutatis mutandis, M. P. M. L. v. Spain, application no. 27266/95, Commission decision of 21 October 1996, DR 87-B, p. 100).
The Court notes that in the present case legal representation was compulsory for the purpose of lodging a cassation appeal to the Supreme Court and the applicant was granted free legal aid in this connection. The applicant’s lawyer informed her and the second-instance court that he would not lodge the cassation appeal on her behalf because, in his opinion, that remedy would lack any prospects of success in the proceedings before the Supreme Court. He also analysed a draft appeal submitted by the applicant, but did not find any grounds for pursuing an appeal.
The Court sees no indication of negligence on the part of the lawyer (cf. Rutkowski v. Poland (dec.), no. 45995/99, ECHR 2000-XI). Nor does it find any special circumstances which could engage the respondent State’s responsibility under Article 6 § 1 of the Convention. In addition, the Court notes that the applicant learnt about the lawyer’s refusal to pursue an appeal one week before the expiry of the time-limit for lodging the cassation appeal. It would have been open to the applicant to apply for the appointment of another lawyer. She did not so.
For the above reasons, this part of the application must be rejected as being manifested ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicant complains under Articles 6 § 1 and 13 of the Convention that she could not lodge an appeal against decisions imposing fines on her.
Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
(a) The Court does not find it necessary to examine whether Article 6 of the Convention applies to proceedings concerning the imposition of fines for contempt of court under Polish law (cf. the Ravnsborg v. Sweden judgment of 23 March 1994, Series A no. 283-B, p. 29, §§ 30-36), since in any event the Convention itself does not guarantee the right to appeal or to a second level of jurisdiction. Although Article 2 of Protocol No. 7 provides for the right of appeal in criminal matters, Poland has not ratified that Protocol.
It follows that this complaint must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
(b) As regards the complaint under Article 13, the Court reiterates that this provision requires a remedy only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, inter alia, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 59, ECHR 2000-IV).
Having regard to the above considerations relating to Article 6 § 1, it finds the applicant’s Article 13 complaint incompatible ratione materiae with the provisions of the Convention and rejects it, in accordance with Article 35 §§ 3 and 4.
5. The applicant complains under Articles 6 § 1 and 14 of the Convention that in the compensation proceedings against the legal-aid lawyer the courts deprived her of the right to a fair trial and, not being a lawyer, she was discriminated against on the ground of her profession.
Article 14 of the Convention provides:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The Court firstly notes that the applicant has not substantiated her submissions concerning the alleged refusal to lodge a cassation appeal on her behalf by the lawyer appointed to represent her in those proceedings and it is not clear whether she has exhausted all domestic remedies, within the meaning of Article 35 § 1 of the Convention. Nevertheless, even assuming that she exhausted all available remedies, her complaints under Articles 6 and 14 are inadmissible in any event for the following reasons.
(a) The Court finds that the applicant’s complaint under Article 6 § 1 relates to the fact that the courts refused to grant her compensation on account of her legal-aid lawyer’s alleged infringement of her right of access to court. It notes that this complaint is limited to a mere challenge to the outcome of the civil proceedings. The applicant sought a ruling on the lawyer’s conduct. The domestic court found on the facts that he had not acted unlawfully. In the absence of any elements of arbitrariness in the decision-making process, it is not for the Court to contradict that finding of fact. In so far as the applicant complains that domestic law does not guarantee a right of access to court to sue a lawyer who refuses to comply with a client’s instructions, the Court recalls that Article 6 § 1 extends only to contestations (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States” (see Z. and Others v. the United Kingdom, [GC] no. 29392/95, § 87, to be published in ECHR-2001).
No procedural shortcomings in the proceedings have been alleged and the Court, for its part, considers that the facts as submitted disclose no appearance of a violation of any of the rights guaranteed by Article 6 § 1.
It follows that the complaint under Article 6 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
(b) As regards the complaint under Article 14, the Court finds that the alleged discrimination concerns the enjoyment of the right of access to court guaranteed by Article 6. It recalls, however, that the requirement of legal representation before the supreme judicial organ does not, as such, contravene the requirements of a fair trial (see Spadrna v. the Czech Republic, application no. 26345/94, Commission decision of 29 November 1995, unpublished).
Further, the Court reiterates that Article 14 safeguards from discrimination individuals placed in analogous situations (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, § 32). It notes that the obligation to have a cassation appeal to the Supreme Court lodged by a lawyer is a requirement of general application. The applicant relies solely on the fact that lawyers alone can lodge that remedy themselves, without providing any information about other individuals placed in a situation similar to hers, namely other litigants, who are exempted from the obligation. The Court sees no appearance of discrimination in the mere fact that lawyers are not required to be represented by other lawyers for the purposes of cassation proceedings.
For the above reasons, this part of the application must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
6. The applicant complains under Article 6 § 1 of the Convention about the unreasonable length of criminal proceedings against her and civil proceedings against X.
The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of them to the respondent Government.
7. The applicant complains under Article 6 § 1 of the Convention about the unreasonable length of criminal proceedings against X and Y and civil proceedings against Z.
(a) Criminal proceedings against X and Y
The Court observes that although those proceedings relate to the applicant’s right to enjoy a good reputation, which is considered a “civil right” within the meaning of Article 6 (see, inter alia, the Helmers v. Sweden judgment of 29 October 1991, Series A 212-A, § 27), their purpose is not to protect that right. It would appear that the applicant is motivated solely by the prosecution and conviction of the alleged perpetrators and the issue at stake is whether X and Y committed a criminal offence (see, mutatis mutandis, Kubiszyn v. Poland (dec.), no. 37437/97, 21 September 1999, unpublished).
Furthermore, the Court notes that under Polish law there exists a civil law remedy which makes it possible for the person concerned to claim compensation for an encroachment upon one of his or her “personal rights”, which include, inter alia, the right to enjoy a good reputation. It appears that the applicant did avail herself of that remedy in respect of X.
Therefore, the Court considers that the proceedings at issue do not involve the determination of the applicant’s civil rights or obligations, nor any criminal charge against her, within the meaning of Article 6 § 1 of the Convention. The applicant’s complaint about their allegedly unreasonable length must be rejected as being incompatible ratione materiae, pursuant to Article 35 §§ 3 and 4 of the Convention.
(b) Civil proceedings against Z
The Court recalls that the reasonableness of the length of proceedings is to be determined in the light of the circumstances of the case and with reference to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant in the dispute (see, inter alia, Comingersoll v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV).
The Court observes that the proceedings in question have lasted so far approximately 3 years and 3 months. It further observes that courts at three judicial levels have given judgments in the course of the proceedings. There is no indication of any significant periods of inactivity attributable to the courts.
Therefore, this complaint must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
8. The applicant complains under Article 6 § 3 (c) and (d) about the violation of her defence rights and her right to have witnesses proposed by the defence examined in the criminal proceedings against her.
The relevant part of Article 6 § 3 of the Convention provides:
“3 Everyone charged with a criminal offence has the following minimum rights: ...
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
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 Court recalls that an accused’s acquittal, in general, excludes that person from claiming to be a victim of a violation of the procedural guarantees of Article 6 (see Heaney and McGuinness v. Ireland, no. 34720/97, ECHR 2000-XII, § 43).
Having regard to the fact that the applicant was acquitted in the impugned proceedings, the Court rejects this complaint as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
9. The applicant complains under Article 13 of the Convention about the lack of an effective remedy in respect of the excessive length of the civil proceedings against Z.
The Court recalls that this provision requires a remedy only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, inter alia, the Athanassoglou and Others v. Switzerland judgment cited above, § 59).
Having regard to its above finding that the applicant’s complaint in respect of the length of the proceedings in question is manifestly ill-founded, the Court considers that the applicant has no arguable claim to be a victim of a violation of Article 6 § 1 of the Convention. Therefore, the Court rejects the complaint under Article 13 as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the allegedly unreasonable length of the criminal proceedings against the applicant and the civil proceedings against X;
Declares inadmissible the remainder of the application.
S. DolléJ.- P. Costa
RegistrarPresident
Full & Egal Universal Law Academy