AS TO THE ADMISSIBILITY OF
Application No. 27092/95
by Wlodzimierz ZAWOLUK
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 January 1995
by Wlodzimierz ZAWOLUK against Poland and registered on 24 April 1995
under file No. 27092/95;
Having regard to the report 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 1959, is currently
serving a prison sentence in Jastrz*bie Zdrój prison.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
In 1992 the applicant was detained in Starogard psychiatric
hospital. On 23 June 1992 a police team was requested to come to the
hospital to restrain the applicant, who refused to take injections.
During the police action the applicant sustained an injury. As a
result of this incident, he subsequently underwent hospital treatment
and eventually lost one eye.
Apparently in September or October 1992 the applicant filed an
action against the State Treasury with the Gdansk Regional Court (S*d
Wojewódzki), claiming compensation for loss of his eyesight. On an
uncertain later date the Starogard Public Prosecutor instituted
criminal investigations concerning the applicant's injury.
On 16 October 1992 the Starogard police, acting on behalf of the
State Treasury, requested that the civil proceedings be suspended as
the outcome of the criminal investigations was of decisive importance
for the further conduct of the civil case.
On 18 November 1992 the Prosecutor ordered that an expert opinion
be prepared as to what injuries the applicant had sustained during the
police intervention on 23 June 1992 and whether they could have
originated from the acts of the police.
On 23 November 1992 the Gdansk Regional Court suspended the civil
proceedings, considering that the outcome of the criminal
investigations was of decisive importance for the State Treasury's
liability for the applicant's injury.
On 26 March 1993 a further expert opinion was ordered as to
whether the injury of the applicant's eye could have been caused by a
cardboard cap of a "smoke-glare" bullet, which the police had fired
twice during the June 1992 intervention.
On 29 April 1993 the criminal investigations were suspended as
the second expert opinion of the forensic medicine specialist was still
outstanding.
On 21 October 1993, in reply to the applicant's complaint, the
Ombudsman informed him that he had requested the Starogard District
Prosecutor to inform him about the progress in the investigations.
On 7 December 1993 the District Prosecutor informed the applicant
that the investigations were still suspended as the expert opinion had
not been submitted.
On 7 March 1994 the District Prosecutor informed the applicant
that the proceedings were still suspended as the second expert opinion
had not been submitted.
On 28 June 1994 the Starogard Gdanski District Court (S*d
Rejonowy) convicted the applicant of assaulting a doctor and one of the
policemen during the events on 23 June 1992 and sentenced him to one
year's imprisonment.
On 6 January 1995 the applicant complained to the President of
the Gdansk Regional Court that there was no progress in the civil
proceedings. In reply, the President informed him on 27 January 1995
that the civil proceedings would be resumed after the criminal
investigations had come to an end.
On 24 January 1995 the Forensic Medicine Department of the Gdansk
Medical Academy submitted the expert opinion.
On 1 February 1995 the Starogard Gdanski Public Prosecutor
terminated the criminal proceedings, finding that on 23 June 1992 the
applicant had refused to be transferred to another ward. He had
menaced medical staff with a knife and a metal pole and hit a doctor
several times, breaking his hand, causing a cut wound of his elbow and
an injury of the abdomen. The hospital director had called the police.
A team of four policemen had tried to negotiate with the applicant, who
had refused to cooperate and stated that he was "ready for anything".
As the director had refused to have tear gas used in the hospital, an
anti-terrorist police squad had been called, which first had undertaken
negotiations with the applicant and, after the negotiations failed, had
used a net to overpower the applicant and twice fired a "smoke-glare"
bullet in his direction. As the police had approached the applicant
afterwards to handcuff him, blood had been found on his hands. The
Prosecutor concluded that the use of the force in the case had been
legitimate and justified by the applicant's aggressive behaviour; that
the police had not overstepped the limits set out in the legal
provisions concerning the use of force and, consequently, that no
offence had been committed.
On 4 May 1995 the Gdansk Regional Public Prosecutor dismissed the
applicant's appeal against this decision, considering that it was based
on extensive evidence which had been assessed in a meticulous and
logical way.
On a date not specified in 1995 the civil proceedings were
resumed.
On 22 June 1995 the applicant complained to the Minister of
Justice about the length of the civil proceedings. On 1 July 1995 the
Ministry informed him that his complaint had been transferred for reply
to the President of the Gdansk Regional Court.
A hearing was to be held on 2 October 1995. The Gdansk Regional
Court informed the applicant and asked him to submit his final requests
for evidence. However, eventually that hearing was adjourned as the
witness to be heard, a paramedic who had seen the police intervention
in 1992, failed to appear, and a date of the next hearing was set for
20 November 1995.
On 3 October 1995 the applicant complained to the President of
the Gdansk Regional Court that he had not received in time the
information about the hearing of 2 October.
On 9 October 1995 the Katowice Regional Court refused to suspend
further execution of the applicant's penalty, considering that the
applicant's wish to take part personally in the civil proceedings did
not constitute a relevant ground for release.
On 20 October 1995 the Gdansk Regional Court informed the
applicant that his presence at the hearing on 2 October 1995 had not
been required by law and not necessary because the hearing of himself
had not been foreseen on this date. The questioning of the parties was
to be taken as concluding evidence and, given that the applicant was
in prison, the court might consider having this evidence taken by
another court.
On 6 November 1995, in reply to the court's letter of
20 October 1995, the applicant again complained about the length of the
proceedings.
COMPLAINTS
The applicant complains under Article 3 of the Convention about
the ill-treatment which he had suffered during the police action in
1992. He complains that he did not receive appropriate assistance from
any of the authorities and that his compensation case is still pending
before the first instance court.
The applicant further complains that his requests to have the
execution of his penalty suspended or to be temporarily released, so
that he could participate in the civil proceedings, were dismissed.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention about the ill-treatment which he had suffered during the
police action in 1992. He complains that he did not receive
appropriate assistance from any of the authorities. The Commission
notes that the alleged ill-treatment occurred on 26 June 1992.
The Commission recalls that 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 of the rights recognised in the Convention
through any act, decision or event occurring after 30 April 1993". The
Commission is not competent to examine complaints relating to
violations of the Convention by acts, decisions or events that have
occurred prior to this date.
Therefore, the Commission observes that the facts alleged, as
they occurred before 30 April 1993, are outside its competence ratione
temporis and the applicant's complaints in this respect must therefore
be rejected as being incompatible with the provisions of the Convention
within the meaning of its Article 27 para. 2 (Art. 27-2).
2. The applicant further complains that his requests to have the
execution of his penalty suspended or to be temporarily released, so
that he could participate in the civil proceedings, were dismissed.
However, the Convention does not grant a right to have the execution
of a prison sentence suspended or to be granted temporary release.
This complaint is therefore incompatible ratione materiae with the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant finally complains about the length of the civil
proceedings for compensation which were instituted in 1992 and which
are still pending before the first instance court. The Commission,
which has examined this complaint under Article 6 para. 1 (Art. 6-1)
of the Convention, considers that it cannot, on the basis of the file,
decide this complaint without the observations of both parties.
The Commission therefore considers that this part of the
application must be adjourned.
For these reasons, the Commission, unanimously,
DECIDES TO ADJOURN the examination of the applicant's complaint
concerning the length of the civil proceedings;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy