CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         AS TO THE ADMISSIBILITY OF                           Appication No. 29716/96                       by Maria KOSMIDER                       against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs. G.H. THUNE, President            MM.   J.-C. GEUS                 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 8 September 1994 by Maria KOSMIDER against Poland and registered on 5 January 1996 under file No. 29716/96;        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      14 October 1996 and the observations in reply submitted by the      applicant on 22 November 1996;          Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen born in 1936, is a pensioner residing in Wolsztyn.     A.    Particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows:     1.    Divorce proceedings        On 5 September 1989 the applicant filed a divorce action with the Wolsztyn District Court (S*d Rejonowy).   Later she asked for a finding that the breakup of the marriage was exclusively her husband's fault. The court scheduled an obligatory conciliatory session for 7 December 1989 but it was adjourned as the defendant failed to appear.   The session was held on 1 March 1990. During the session the applicant refused to be reconciled with her husband.   On 16 and 23 July 1990 she filed further pleadings seeking an interim order resolving the position regarding the joint use of the matrimonial home and the payment of maintenance.   She failed to specify the amount of maintenance sought.        On 12 September 1990 the court held a hearing and ordered the defendant to pay maintenance of old PLZ 200,000.   It also decided to view the matrimonial home before making an order on the joint use of the home by the parties during the divorce proceedings.   On 6 November 1990 the court ruled on the joint use of the parties' home. On unspecified dates the applicant appealed against both interim orders.   On 13 December 1990 she requested the court to grant her an exemption from court fees.   On 15 January 1991 the applicant requested the court to amend the maintenance order, seeking payment of old PLZ 800,000.   On 26 March 1991 she asked the court to grant her legal aid.        On 2 April 1991 the Wolsztyn District Court dismissed the applicant's requests for amendment of the maintenance order and for legal aid.   The applicant appealed on 17 April 1991 to the Zielona Góra Regional Court (S*d Wojewódzki).   On 22 April 1991 she challenged the impartiality of two judges dealing with her appeal.   Subsequently, on an unspecified date her appeal and challenge were dismissed.        On 4 November 1991 the court of first instance cancelled the hearing as the applicant had failed to appear.   On 5 November 1991 the defendant requested the court to find that the breakup of the marriage was the applicant's fault.   During the hearing of 23 December 1991 the applicant requested the court to stay the divorce proceedings on the ground that the criminal proceedings relating to her allegations of assault were pending against her husband.   In addition, she again requested the court to amend the interim maintenance order.        On 19 February 1992 the court amended the maintenance order. Subsequently, on an unspecified date, the applicant appealed against the amended order, increasing her claims.              On 2 December 1992 the Wolsztyn District Court, upon the defendant's request, resumed the proceedings stayed on 23 December 1991.   On the same day the applicant challenged the impartiality of the presiding judge.   This was dismissed by the Wolsztyn District Court on 11 December 1992 as the applicant's challenge lacked any basis. On 31 March 1993 she again challenged the impartiality of the presiding judge.   On 18 May 1993 the Wolsztyn District Court dismissed the challenge finding that it was manifestly ill-founded.   The court also fined the applicant for lodging a groundless challenge.   On 26 May 1993 she appealed against the above-mentioned decision.   On 26 July 1993 the Zielona Góra Regional Court quashed the fine but upheld the dismissal of the challenge.   In the meantime, between 26 May and 11 June 1993, the case-file was transferred to the Poznan Regional Court in connection with another appeal submitted by the applicant.        On 29 October 1993 the applicant requested the court to adjourn the hearing as her lawyer had failed to appear and she did not wish to be represented by his trainee.   During the hearing of 24 November 1993 the court heard evidence from the witnesses and the parties. On 25 November 1993 the Wolsztyn District Court pronounced judgment, finding that the breakup of the marriage since at least 1985 was obvious and that both parties, on account of their lack of mutual cooperation and understanding, had provoked conflicts and various arguments.   In this respect the court essentially referred to evidence given by the parties' adult children, observing that their statements were credible in view of their close and frequent contact with the parties.   The court also referred to documentary evidence and noted that on several occasions the applicant had requested the Wolsztyn District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against her husband, alleging that he had committed various offences.   However, all of the investigations into her allegations were discontinued in view of the fact that no offence had been committed. Finally, the court, in assessing the evidence given by the applicant's witnesses found that their knowledge about the parties' marriage was hearsay as it was based solely on the applicant's opinions expressed to them.   The court therefore ruled that both parties were at fault. On 6 January 1994 the applicant filed an appeal against this judgment.        On 24 February 1994 the appeal was heard.   On 3 March 1994 the Zielona Góra Regional Court upheld the divorce judgment, finding that the court of first instance had properly assessed the evidence before it and correctly applied the law.     2.    Criminal proceedings        On 16 June 1990 the applicant had an altercation with her husband, witnessed by their son-in-law. On the same day she formally notified the Wolsztyn District Police about the incident and requested the police to institute criminal proceedings against her husband.   Two days later a surgeon diagnosed that her hand was broken in two places. Subsequently, the Wolsztyn District Prosecutor opened investigations into the applicant's allegations.        On 5 October 1990 the Wolsztyn District Prosecutor indicted the applicant's husband for assault causing bodily harm, i.e. breaking the applicant's hand.        On 11 December 1990 the Wolsztyn District Court held the first hearing.   During this hearing the applicant lodged an application under Section 52 of the Code of Criminal Procedure, stating that she wished to join the proceedings as a civil party, seeking compensation for the injuries sustained.   At the same time she submitted a statement of claim.        On 8 January 1991 the court, upon the applicant's request, adjourned the hearing.   The hearing scheduled for 6 February 1991 was cancelled since one of the jurors failed to appear.   On 15 March and 24 April 1991 the subsequent hearings were cancelled on the defendant's request.   The hearings scheduled for 15 May and 4 June 1991 were adjourned as further evidence needed to be taken.   On 3 July   1991 the court ordered that evidence be taken from medical experts. On 8 November 1991 the court assigned an expert and, subsequently, on 16 January 1992 transmitted the case-file to the Faculty of Forensic Medicine of the Poznan Academy of Medicine.   On 5 March 1992 the experts sent the case-file back to the court, refusing to prepare a report in view of the fact that the court had not paid their fees.        On 27 March 1992 the Wolsztyn District Court stayed the proceedings until 18 September 1992, i.e. the anticipated date on which the medical report was to be ready.        On 15 October 1993 the court held the hearing and ordered that evidence be heard from policemen and an expert.   On 10 November 1993 the court held the next hearing and ordered that evidence be considered from documents contained in the case-files relating to other proceedings instituted by the parties.        In the meantime, on unspecified dates, the applicant repeatedly requested the court to detain her husband on remand.        On 7 December 1993 and 15 March 1994 the court adjourned the hearings since a court expert had failed to appear.        On 7 June 1994 the Wolsztyn District Court heard evidence from an expert and acquitted the applicant's husband.   As a consequence, the court, according to Section 362 para. 2 of the Code of Criminal Procedure, declined to rule on the applicant's civil claim.   The court observed that it transpired from the eye-witness statements that both parties had jostled one another during the incident of 16 June 1990. In addition both of them were in apparent conflict arising from the breakup of their marriage, which cast doubts on their credibility. Moreover, the applicant had not sought any medical help during the subsequent two days, even if she had claimed that her hand had been broken as early as the date of the incident and that she had immediately felt severe pain.   Instead of seeking a doctor's help at the emergency surgery situated in the neighbourhood, she had come to the police station, which was much further away.   Further, according to the experts' report, the nature of the applicant's injuries indicated that they had resulted from sudden leaning rather than from hitting by a third person.   Finally, the court, having regard to the principle of in dubio pro reo, acquitted the accused in view of the reasonable doubts as to whether he had committed the offence charged.        On 14 June 1994 the applicant filed a notice of appeal. Subsequently, on an unspecified date in July 1994, she filed an appeal against the above-mentioned judgment.        On 4 October 1994 the Zielona Góra Regional Court adjourned the appeal hearing because the defendant and the applicant's lawyer had failed to appear.   On 8 November 1994 the court again adjourned the hearing since in the meantime the applicant had challenged the impartiality of the judges dealing with the case.   On 9 December 1994 the next hearing was adjourned as the defendant had failed to appear. On 31 January 1995 the Zielona Góra Regional Court dismissed the applicant's appeal, considering that the court of first instance had carefully examined the evidence and had taken into consideration all circumstances relevant for the outcome of the case.   B.    Relevant domestic law        Sections 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.        Section 52 of the Code of Criminal Procedure provides:        The injured person seeking to pursue his civil claims arising      from the offence in criminal proceedings may, until the      commencement of the main trial, file a civil action against the      accused.        Under Section 55 the court may allow a civil action or declare it inadmissible.   If an action has been allowed, the injured person may join the proceedings as a plaintiff.   During the trial he may put forward only such evidence as is necessary to establish the circumstances on which his claim is based.   In practice, such evidence concerns the establishment of guilt.        As regards the determination of a civil claim, the court applies the Code of Civil Procedure.        A decision by the court to allow a civil action does not in any way bind the trial court as to the adjudication of that claim as, according to Section 362 of the Code of Criminal Procedure, even in case of conviction the court may decline to rule on the claim if the relevant evidence is insufficient to adjudicate on the claim in question.   In case of acquittal, the court shall decline to rule on the claim.     COMPLAINTS   1.    In respect of the divorce proceedings the applicant complains under Article 6 para. 1 of the Convention that the courts lacked impartiality and incorrectly assessed the evidence presented.   She submits that they based their decisions on entirely untrue allegations by her husband and failed to properly indicate in their judgments the evidence on which they relied.   She also complains about the outcome, unfairness and the length of these proceedings.   2.    Under Article 6 para. 1 the applicant complains that the length of the criminal proceedings instituted against her husband was unreasonable.   As a result thereof, her civil claim remained pending before the courts for almost five years and was not determined at all in these proceedings.   The applicant complains that the courts lacked impartiality and wrongly assessed the evidence in their judgments.   She contests the outcome of these proceedings, submitting that they were unfair.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 8 September 1994 and registered on 5 January 1996 .        On 15 May 1996 the Commission decided to communicate the application to the respondent Government pursuant to Article 48 (b) of the Convention.        The Government's written observations were submitted on 14 October 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 22 November 1996.        The translation of the Government's observations was submitted on 24 June 1997.     THE LAW   1.    The applicant raises various complaints under   Article 6 (Art. 6) of the Convention in respect of the divorce and criminal proceedings in which she was involved.        Article 6 (Art. 6) of the Convention, insofar as relevant, provides:        "1.    In the determination of his civil rights and obligations      ... everyone is entitled to a fair hearing ... within      a reasonable time by an ... impartial tribunal ..."   2.    The Government submit that the Convention entered into force with respect to Poland on 19 January 1993.   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 by Poland of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".   Thus, the application, insofar as it relates to events prior to this date, is outside the competence ratione temporis of the Commission.        The Commission observes that the applicant's complaints relate in part to a period prior to 1 May 1993, the date on which Poland's declaration acknowledging the right of individual petition took effect. Since, in that declaration Poland limited the Commission's competence to facts subsequent to the declaration, the Commission, by reason of its competence ratione temporis, can examine the applicant's complaints only insofar as they relate to the period after this date.   3.    The Commission further notes that the applicant's complaints firstly relate to the divorce proceedings which as such indubitably involved a determination of a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   As regards the criminal proceedings complained of, the Commission observes that even if they concerned in the first place the determination of a criminal charge against a third person, their result was directly decisive for establishing the applicant's right to the compensation claimed (see Eur. Court HR, Moreira de Azvedo v. Portugal judgment of 23 October 1990, Series A no. 189, p. 16 et seq., para. 66).   Accordingly, Article 6 para. 1 (Art. 6-1) is applicable in respect of both sets of proceedings complained of.   4.    With regard to the applicant's complaints about the judicial decisions given in her cases, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or of fact have been committed by domestic courts, except where it considers that such errors may have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).   5.    The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention about the unfairness of the proceedings in which she was involved, submitting that the courts in both her cases incorrectly assessed the evidence presented and that they failed to properly indicate in their judgments the evidence on which they relied.        The Commission reiterates that the admissibility of evidence is primarily a matter for regulation by national law.   As a rule, it is for the national courts to assess the evidence before them, whereas it is the Commission's task to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 26).        As regards the divorce proceedings, the Commission observes that the court of first instance found, after having heard several witnesses and examined various documentary evidence, that both parties were at fault for the breakup of their marriage.   There is no indication that the applicant, who was assisted by a lawyer, did not have an adequate opportunity to examine the witnesses or to contest the probative value of their statements.   The findings of the court of first instance were confirmed on appeal.   In their reasons for the judgments, the courts of both levels carefully examined the witnesses' statements and had due regard to their credibility, referring to all the other material at the courts' disposal.   As a consequence, the Commission finds no elements which would indicate that the courts went beyond their discretion while assessing the evidence presented by the parties to the proceedings or that they failed to give accurate reasons for their decisions, or that the proceedings were unfairly conducted in any other way.        In respect of the criminal proceedings, the Commission notes that the courts carefully evaluated the evidence at their disposal, including the medical report and the eye-witness statements.   Finally, they found that the reasonable doubts as to the accused's guilt justified the application   of the principle in dubio pro reo resulting in his acquittal.   The reasons for the courts' judgments properly reflected the assessment of the circumstances militating in favour of and against the conclusion reached. As a result, the Commission has found no indication that in respect of these proceedings the applicant's right to a fair hearing was not respected.   6.    The applicant further complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of both sets of the proceedings.        The Commission has already observed that it can, by reason of its competence ratione temporis, only examine the applicant's complaints insofar as they relate to a period after 30 April 1993.   However, it recalls that with respect to the applicant's complaints about the length of the proceedings in which she was involved, the Commission can take into account, in order to assess their length, the stage reached in these proceedings at the beginning of the period under consideration (see No. 7984/77, Dec. 11.7.79,   D.R. 16   p. 92).        In respect of the divorce proceedings the Government maintain that insofar as the complaint refers to the entire proceedings, such a long period of examining the case is regrettable in itself.   However, having regard to the concrete circumstances of the case and the notion of a "reasonable time" set out in the Convention organs' case-law, the length of the proceedings in question was not excessive.   Firstly, the case was complex as it involved not only a divorce, but also various questions arising from the applicant's additional claims concerning maintenance and use of the matrimonial home. Secondly, the applicant contributed to the length of the proceedings, in particular by her repeated challenges concerning the impartiality of the judges and the number of her appeals against several interim orders.   The Government point out that she should have been aware that such conduct might lead to a further prolongation of the proceedings.   Lastly, the Government contend that it is difficult to note an inactivity on the part of the courts other than that resulting from the necessity to adjourn the hearings due to the parties' conduct.        The applicant submits that the length of the divorce proceedings was excessive, as clearly confirmed by the Government in their observations.   Therefore, the Commission should examine the proceedings as a whole, i.e. have regard to the delays in the proceedings which took place before and after 1 May 1993.   The fact that she made normal use of her rights cannot itself explain the considerable delays in the proceedings and their overall length.   The case was not complex. Moreover, her challenges of the judges were justified by her opinion that they conducted her case unfairly.   The applicant concludes that the proceedings as a whole were not terminated within a reasonable time.        The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and having regard to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and the importance of what is at stake for the applicant in the litigation (see, inter alia, Eur. Court HR, Duclos v. France judgment of 17 December 1996, Reports 1996-VI, No. 25, para. 55).        The Commission notes that the proceedings in question commenced on 5 September 1989 when the applicant lodged a civil action for divorce and ended on 3 March 1994 when the Zielona Góra Regional Court pronounced a final judgment; as a whole they therefore lasted four years, five months and twenty-six days, of which ten months and two days were after the date on which the Commission's competence to examine applications against Poland took effect.        The Commission further observes that the proceedings were of a certain complexity.   The dissolution of the parties' marriage was not the only issue at stake for the parties, since they both requested the court to rule on which one of them was at fault regarding the breakdown of their marriage.   Moreover, the proceedings concerned claims relating to maintenance and matrimonial property.        As regards the conduct of the authorities, the Commission considers that there were no substantial periods of inactivity in the conduct of the case on their part during the period under consideration.   It is true that the examination of the applicant's appeal of 26 May 1993 lasted until 26 July 1993; however, in the meantime the case-file had been transferred to another court. On 25 November 1993 the court of first instance rendered its judgment and the appeal hearing was scheduled for as early as 24 February 1994. In respect of the applicant, the Commission finds no indication that her conduct caused any undue delays in the course of the proceedings at issue.        In respect of the criminal proceedings, the Government maintain that their duration after 1 May 1993 fully meets the requirements of a "reasonable time".        The applicant submits that the proceedings were not terminated "within a reasonable time" as they lasted almost five years. Furthermore, for two years the court of first instance was unable to obtain the medical expert's report.   As a result, her civil claim was not determined at all.        The Commission observes that the applicant joined the proceedings as a civil party on 11 December 1990, submitting a statement of claim. The proceedings were terminated on 31 January 1995. Therefore, the proceedings relating to the determination of the applicant's civil claim as a whole lasted four years, one month and twenty days, of which one year and nine months were after the date on which the Commission's temporal competence took effect.        In the light of the material submitted by the parties, the Commission finds that the case was not particularly complex.   During the period under consideration, the case was examined at first instance and on appeal.   The court of first instance held five hearings at intervals of a maximum of three months.   Two of them were adjourned as certain evidence needed to be taken.   It is true that between 7 December 1993 and 7 June 1994 the case remained adjourned due to the fact that the court's expert failed to appear on two occasions.   This resulted in a delay of six months which does not appear excessive.   As regards the appeal proceedings, they lasted between 14 June 1994 and 31 January 1995.   The court scheduled four hearings, of which two were adjourned on the parties' requests and one due to the applicant's challenge concerning the judges.   As a result, the Commission finds no indication that the authorities failed to duly pursue the case.   Nor does it consider that the applicant considerably contributed to the length of the proceedings complained of.        Assessing the facts of the case as a whole, the Commission considers that neither the divorce proceedings, nor the criminal proceedings exceeded a "reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   7.    Insofar as the applicant complains that the courts dealing with her cases lacked impartiality, the Commission notes that the applicant failed to adduce any material or circumstances relating to this complaint.        The Commission has examined the applicant's complaints as they have been submitted by her and had regard to the relevant criteria established in the Convention organs' case-law (see Eur. Court HR, Thomann v. Switzerland judgment of 10 June 1996, Reports 1996-III, No. 11, para. 30).   However, it finds that the applicant's submissions do not disclose any element to cast doubt on the impartiality of the judiciary in question.   8.    It follows that the application is inadmissible as being 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