CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s959B95E9 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sFCAD7A46 { width:199.27pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt }       FIRST SECTION DECISION Application no. 35110/10 Roman WILCZYŃSKI against Poland The European Court of Human Rights (First Section), sitting on 12   September 2017 as a Committee composed of:   Aleš Pejchal, President,   Krzysztof Wojtyczek,   Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above application lodged on 16 June 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Roman Wilczyński, is a Polish national who was born in 1961 and lives in Warsaw. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The background 4.     On an unspecified date in 2003 the applicant was indicted on charges of   fraud in case no. V K 1357/03 before the Warsaw District Court. This set of proceedings apparently lasted until 2012. 5.     On 9 February 2006, during a public hearing, one of the witnesses at the applicant’s trial, a certain P.J.M., called him a “swindler, bandit and thief” ( oszust, bandyta i złodziej ) in front of the court, the prosecutor, five other accused and defence counsels. 6.     The applicant had previously sued P.J.M. and obtained a final ruling in 2005. In 2001 P.J.M. had informed the prosecution service that the applicant had threatened him, but had afterwards withdrawn those allegations. 2.     Proceedings for defamation brought by the applicant 7.     On 29 June 2006 the applicant lodged a private bill of indictment against P.J.M. with the Warsaw District Court. He accused P.J.M. of having committed the offence of defamation ( pomówienie ) under Article   212   §   1 of the Criminal Code. 8.     On 18 July 2006, by order of the court, the applicant rectified certain procedural shortcomings in his bill of indictment. 9.     On 23 December 2008 the District Court set a date for a conciliation session ( posiedzenie pojednawcze ) for 14 February 2009. The session was later postponed to 17 February 2009 but then eventually cancelled because the parties had not been duly summoned and the presiding judge was on sick-leave. 10.     The session was eventually held on 18 March 2009. The conciliation attempt failed since the applicant refused to accept an apology from the defendant or to settle the case. The applicant stated that he “would only be satisfied with a conviction”. 11.     On 16 April 2009 the District Court discontinued the criminal proceedings against P.J.M., holding that the offence committed by him had posed such an insignificant danger to society that it did not justify further examination of the case. 12.     The applicant appealed. The first appellate hearing, scheduled for 13   August 2009, was adjourned because the applicant had meanwhile filed an application to correct various grammatical errors in the written reasoning of the first-instance decision. 13.     On 5 November 2009 the Warsaw Regional Court ( Sąd Okręgowy ) quashed the first-instance decision. 14.     On 19 January 2010 the trial started at the District Court and the bill of indictment was read out during the first hearing. The subsequent hearing, scheduled for 12 March 2010, was adjourned as the court had failed to summon the defendant. 15.     On 25 May 2010 the court held a hearing and ordered that the defendant undergo a psychiatric examination. It also appointed legal aid counsel for him. 16.     The next hearing was set for 18 August 2010. 17.     On 7 October 2010 the District Court convicted P.J.M. as charged and sentenced him to a fine of 150 Polish zlotys (PLN – approximately 37   Euros (EUR)). 18.     The defendant failed to lodge an appeal in accordance with the formal requirements. The applicant did not appeal. The judgment became final on 27   November 2010. 3.     Proceedings under the 2004 Act 19.     On 20 April 2010 the applicant lodged a complaint under the Law of   17   June   2004 on complaints about a breach of the right to a trial within a   reasonable time (ustawa o skardze na naruszenie prawa strony do   rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez   nieuzasadnionej zwłoki – “the 2004 Act”) with the Warsaw Regional Court. He sought PLN 20,000 (approximately EUR 5,000) in compensation for the undue length of the defamation proceedings, the maximum amount available under the 2004 Act. The applicant did not ask the court to issue any specific directions to the trial court aimed at the acceleration of the proceedings, as provided in section 6(3) of the 2004 Act. 20.     On 13 May 2010 the Regional Court ruled that the proceedings before the District Court had been unduly lengthy and awarded the applicant PLN 3,000 (approximately EUR 750) in compensation. The court held that it was clear that the length of the proceedings had been excessive, in particular having regard to the long period of time which had elapsed before the first hearing in the case. This, in   the court’s view, justified granting the applicant PLN 3,000, which it considered sufficient, given that he had not supplied any evidence demonstrating that a higher award should be made. B.     Relevant domestic law and practice 1.     Defamation proceedings 21.     Article 212 § 1 of the Criminal Code provides, in so far as relevant, as   follows: “Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics as may lower that person, group or entity in public esteem or undermine public confidence in their capacity necessary for a given position, occupation or type of   activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding one year.” 22.     An injured party may seek to have criminal proceedings instituted against the perpetrator under a private bill of indictment. 2.     Proceedings under the 2004 Act 23.     A detailed description of the relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in   particular the applicable provisions of the 2004 Act, are presented in the Court’s decisions in the cases of Charzyński v.   Poland (dec.), no.   15212/03, §§   12-23, ECHR 2005-V, and Ratajczyk v.   Poland (dec.), no.   11215/02, ECHR 2005-VIII, and its judgments in the cases of Krasuski v.   Poland , no.   61444/00, §§   34-46, ECHR 2005-V, and Krzysztofiak v. Poland , no.   38018/07, §§   22-31, 20 April 2010. COMPLAINTS 24.     The applicant complained under Articles 6 and 3 of the Convention about the length of the proceedings. THE LAW A.     Article 6 of the Convention 25.     The applicant alleged a violation of Article 6 § 1 of the Convention in that the criminal proceedings for defamation instituted by him against P.J.M. had lasted four years and six months in total at two levels of jurisdiction. That Article reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 26.     The Court should first determine whether Article 6 § 1 of the Convention applies to this case. The domestic proceeding complained of originated from a private bill of indictment against a certain P.J.M., thus the applicant was clearly not the subject of a criminal charge within the meaning of Article 6 § 1 of the Convention. 27.     Furthermore, according to the principles laid down in its case-law, the Court must ascertain whether there was a “dispute” (“ contestation” ) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, while the outcome of the proceedings must be directly decisive for the right in question. 28.     The Court has previously held that the right to enjoy a good reputation was a civil right within the meaning of Article 6 § 1 of the Convention (see Golder v. the United Kingdom , 21 February 1975, §§   26 ‑ 27, Series A no. 18). However, it must be reiterated that the Convention does not guarantee, as such, the right to institute criminal proceedings against third parties, for the right of access to a court which Article 6 of the Convention secures for everyone wishing to obtain a decision relating to his or her civil rights does not extend to a right to have criminal proceedings brought against a third party with a view to securing his or her conviction (see the following Commission decisions: X. v. the Federal Republic of Germany , no. 7116/75, 4 October 1976, Decisions and Reports (DR)   7,   p.   91; Monica Wallén v. Sweden , no. 10877/84, 16 May 1985, DR   43, p.   184; and Istvánné Rékási v. Hungary , no.   31506/96, 25   November 1996, DR 87-A, p. 164). The Convention does not confer any right to “private revenge” or to an actio popularis (see Perez v.   France [GC], no. 47287/99, § 67, ECHR 2004 ‑ I). 29.     In the present case the applicant considered that P.J.M. had defamed him and in response he brought a private bill of indictment. He chose a criminal-law response, although it was open to him to claim compensation in civil proceedings for the alleged damage to his personal rights. During the criminal proceedings against P.J.M the applicant rejected any attempt at conciliation and refused to accept an apology from the defendant. He indicated that he was interested solely in obtaining a conviction. The applicant did not seek financial compensation, either in his bill of indictment or later during the proceedings. 30.     The Court considers that the applicant in the instant case instituted the criminal proceeding in order to secure P.J.M.’s conviction and did not seek to exercise his civil rights related to the alleged offence (see Asociación de vítimas del terrorismo v. Spain (dec.), no. 54102/00, ECHR   2001 ‑ V). Accordingly, there was no civil component connected with the criminal component (see Perez , cited above, § 67, with further references). While it is conceivable that Article 6 may be applicable even in the absence of a claim for financial reparation, it is necessary to find that the outcome of the proceedings was decisive for the “civil right” in question (see Helmers v.   Sweden , 29 October 1991, § 29, Series A no. 212 ‑ A). In the present case the applicant failed to justify that link (compare and contrast Kuśmierek v.   Poland , no. 10675/02, § 49, 21 September 2004). The Court concludes that the instant proceedings related exclusively to the determination of a criminal charge against P.J.M. 31.     In the light of the foregoing, the Court is bound to find that the criminal proceedings concerned neither a “dispute” (“ contestation ”) over the applicant’s civil rights and obligations, nor the determination of any criminal charge against him within the meaning of Article 6 of the Convention. 32.     Accordingly, the complaint relating to an alleged violation of Article   6 § 1 of the Convention must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article   35   §   3 of the Convention. B.     Article 3 of the Convention 33.     Relying on Article 3 of the Convention, the applicant also alleged that the excessive length of the proceedings in his case had amounted to a breach of that provision. Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols (see Wilczyński and Wilczyński v. Poland (dec.), nos. 7362/09 and 7405/09, 18 December 2012). 34.     It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 5 October 2017. Renata Degener   Aleš Pejchal Deputy Registrar   President