CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 mars 2000

.s800EAC49 { font-size:12pt } .s598389FD { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:16pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s23A41E03 { width:36pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBA8DCCFC { width:35.45pt; display:inline-block } .s31BEBB9E { width:7.26pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sE55CAA3E { width:1.26pt; display:inline-block } .s86358990 { width:1.23pt; display:inline-block } .s4E78A3E7 { width:1.31pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s29100277 { font-family:Arial; font-weight:bold } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .s944BDE53 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt } .s4D28B2E2 { width:24pt; display:inline-block } .s21B97EC1 { width:25.99pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s58B8AE49 { clear:both; mso-column-break-before:always } .s5B366099 { font-family:Arial; text-decoration:underline; letter-spacing:-0.1pt } .sCC843BA8 { width:25.33pt; display:inline-block } .s6863D229 { width:26pt; display:inline-block } .s5BAD9705 { width:16.48pt; display:inline-block } .s35DC42DD { width:28.67pt; display:inline-block } .s556ED54D { font-family:Arial; font-weight:bold; letter-spacing:-0.1pt } .sD430EEA1 { margin:0pt 26.05pt 0pt 36pt } .s3985515B { margin-top:0pt; margin-left:36pt; margin-bottom:0pt } .sFA1563ED { margin:0pt 26.05pt 0pt 35.45pt; text-indent:0.55pt } .s57B9C53F { width:15.22pt; display:inline-block } .s7ED160F0 { text-decoration:none } .sB944F743 { display:none } .sA0390550 { width:31.21pt; display:inline-block } .s5E86F29D { width:230.8pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .sD49C56F { width:262.16pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s3C4DB099 { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:10pt } .s2303C453 { font-size:12pt; display:none } FOURTH SECTION   DECISION   AS TO THE ADMISSIBILITY OF   Application no. 27785/95 by Adam WŁOCH against Poland     The European Court of Human Rights (Fourth Section), sitting on 30 March 2000 as a Chamber composed of     Mr   M. Pellonpää, President ,   Mr   A. Pastor Ridruejo,   Mr   L. Caflisch,   Mr   J. Makarczyk,   Mr   V. Butkevych,   Mr   J. Hedigan,   Mrs   S. Botoucharova, judges ,   and   Mr   V. Berger, Section Registrar ,     Having regard to the above application introduced with the European Commission of Human Rights on 5 December 1994 and registered on 5 July 1995,     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 regard to the Commission’s partial decision of 19 October 1998,     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       The applicant, a Polish citizen born in 1941, is a lawyer practising in Kraków.   The facts of the case, as submitted by the parties, may be summarised as follows.     A.   The circumstances of the case   1.   Criminal proceedings against the applicant     On 25 June 1990 the then Deputy Minister of Justice A.S. sent a letter to the Presidents of Regional Courts stating that in 1989 there was a rapid growth of cases in which courts ruled on adoptions of Polish children and the adoptive parents were foreigners. As a result, approximately one thousand children had left the country for good. This data should be considered as disquieting, the more so as mainly small children had been adopted. The public opinion was alarmed by the growing figures of foreign adoptions. It was true that Polish law laid down the same requirements for adoptions, regardless of the nationality of the future adoptive parents and that the children’s welfare was a consideration of paramount importance for all adoption cases. However, the notion of welfare of a child should also include protection of national identity. Hence, foreign adoptions should be carried out only in exceptional cases and the courts should first examine whether the child could not find adoptive parents in Poland. The Presidents were invited to consider whether in cases in which the same persons were repeatedly acting as intermediaries in connection with the adoption proceedings, it was not advisable to inform the prosecution authorities accordingly. The Presidents were finally requested to supervise closely this category of cases and to undertake measures in order to eliminate the climate favourable for foreign adoptions.     The investigations concerning suspicions of illicit foreign adoptions with the applicant’s involvement began on an unspecified date in 1993.     On 19 September 1994 the Kraków Regional Prosecutor charged the applicant with trading in children and incitement to giving false testimony. On 20 September 1994 the Kraków Regional Prosecutor remanded the applicant in custody.     On 29 September 1994 the applicant was served with written grounds of the decision of 19 September 1994. The Regional Prosecutor principally referred therein to numerous case-files of adoption proceedings in which the applicant had acted as a representative of foreigners who had sought adoption of children. The Prosecutor had also regard to testimony given by numerous witnesses. It was established that in many cases the prospective adoptive parents had given the applicant a power of attorney a long time before adoption proceedings had been instituted, or even before a child was born. Biological parents had had full parental rights and had given their consent to adoption exclusively by foreigners. The applicant, having known their, usually difficult, financial situation, had been inciting them to give their children for adoption in exchange for financial recompense. It had been either the applicant himself or other persons assisting him, who had later been taking newborn children from hospital and placed them with third parties. The biological parents had not had any further contacts with the children and had not participated in caring for them. However, they had remained in permanent contact with the applicant. Subsequently, at court hearings in the adoption proceedings, they had been waiving their parental rights and had been giving their assent for adoption. The Prosecutor further considered that there was also a strong suspicion, supported by the evidence gathered in the investigations, that the applicant had been inciting the biological parents to give false evidence in the proceedings, in particular as regarded the circumstances in which they had met the adoptive parents. On most occasions they had testified that they had met the candidates for adoptive parents through common friends. Moreover, the applicant had exerted undue pressure on policemen taking certain measures in the proceedings against him. The Prosecutor further noted that the applicant had received remuneration for his services which in certain cases was inordinately high. The Prosecutor concluded that the circumstances of the case on the whole justified a suspicion that the applicant had been involved in a crime of trading in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code and that he had committed an offence of incitement to giving false testimony.     The applicant lodged an appeal against this decision. He argued, inter alia , that the acts with the commission of which he had been charged could not possibly amount to a crime of trading in children. He further argued that in view of the fact that a significant number of witnesses had already been questioned by the prosecuting authorities, the likelihood that his remaining at liberty would in any manner jeopardise the progress in the proceedings was unfounded.     On 4 October 1994 the Kraków Regional Court dismissed the applicant's appeal against the decision to remand him in custody. The court first acknowledged that the case was without precedent and that it raised difficult questions of fact and law. The court stated that in the assessment of the decision under appeal, it had limited itself to its appreciation from the point of view of provisions governing imposition and maintenance of detention on remand, but had refrained from examining closely the substantive law issues. The court further categorically observed that the evidence gathered so far did not justify a suspicion that the applicant had tried to exert undue pressure on policemen involved in the proceedings. However, the evidence in the case-file supported a reasonable suspicion that he had committed an offence punishable under Article IX § 2 of the Transitory Provisions of the Criminal Code, which covered abduction and trading in children for any purpose and in any form, including, in the court's opinion, situations in which offenders were motivated solely by profit. The court further considered that this provision should be interpreted in the light of the United Nations Convention on Children's Rights, ratified by Poland in 1991. The court disagreed with the applicant's argument that he had exclusively been acting in his capacity as a lawyer, having regard to the fact that it transpired from the evidence that in his actions undertaken in connection with the adoption cases he had largely overstepped the limits of what would normally be expected from a lawyer in such cases.   In particular, the applicant had been acting as a representative before the courts, but he had also been actively looking for children for adoption. He had also been taking de facto and legal measures in order to create artificially situations which would comply with the requirements of laws governing adoption. The court further agreed with the Prosecutor's conclusion that in many cases the applicant's remuneration was improperly high, which seemed to contravene Article 21 of the UN Convention on Children's Rights. This, in the court's view, indicated that the applicant had been motivated solely by profit.       The court further considered that, on the whole, the assessment of the evidence warranted a conclusion that legal requirements of detention on remand had been complied with.   Firstly, the voluminous evidence showed that the suspicion against the applicant was well-founded. Secondly, the complexity of the case and the necessity of taking further time ‑ consuming measures, such as questioning further witnesses and examining numerous documents, argued in favour of the applicant's continued detention in order to safeguard the proper conduct of the proceedings. The court finally considered that there was a risk that the applicant's release would jeopardise the proceedings, having regard in particular to the nature of the charges against him which had included fabricating of false evidence for the purposes of adoption proceedings, in order to mislead the courts.     The Government contend that the applicant’s lawyers participated in these proceedings. The applicant contests this.     On 28 October 1994 the Regional Prosecutor examined the applicant’s request for release submitted to the Minister of Justice on 22 September 1994 and refused to allow the applicant’s request.     On 2 November 1994 the applicant requested to be released, or to have his detention replaced by a more lenient preventive measure.     On 14 November 1994 the Kraków Regional Prosecutor declined to entertain the applicant's request for release. The Prosecutor considered that in the light of the applicant's medical records and those of his wife, there were no sufficient grounds to accept his argument that he should be released as there were no indications that his continued detention entailed any danger to life or limb, or any particular hardship for him or for his family.     On 23 November 1994 the Kraków Regional Prosecutor ordered that a medical expert opinion be prepared by two psychiatrists and one psychologist in order to establish whether the applicant's health was compatible with his detention and whether he could be held criminally responsible.     On 2 December 1994 the Kraków Appellate Prosecutor dismissed the applicant's appeal against the decision of the Regional Prosecutor of 14 November 1994. The Prosecutor considered that the assessment of the applicant's and his wife's medical records by the lower prosecutor had been correct. He further emphasised that the question whether the facts invoked by the prosecuting authorities to justify the applicant's detention could be considered as falling under Article IX of the Transitory Provisions of the Criminal Code, had already been examined by the Regional Prosecutor in his decision of 29 September 1994 and by the Regional Court in its decision of 4 October 1994.   Whereas it was true that the court had regarded this legal qualification as "controversial" (" kontrowersyjna "), it had accepted the prosecutor's arguments that the applicant's detention was justified.     On 5 December 194 the Kraków Regional Prosecutor assigned a further expert, a neuropsychology specialist, to examine the applicant in order to complete the medical data gathered in preparation of the expert report provided for by the decision of 23 November 1994.     On 5 December 1994 the applicant requested to be interrogated by the Regional Prosecutor.     On 12 December 1994 the Kraków Regional Prosecutor requested the Kraków Regional Court to prolong the applicant's detention until 28 February 1995.     In reply to the applicant's letter of 5 December 1994, the Regional Prosecutor informed him on 16 December 1994 that, in view of the fact that the expert report had to be prepared, he could not have been interrogated before the submission of the Prosecutor's request of 12   December 1994 for the prolongation of the detention to the court. It was further stated that the relevant legal provisions did not provide for a prosecutor's request for prolongation of detention on remand to be served on an accused. The applicant was also informed that in view of the fact that the evidence gathered in the investigations justified a conclusion that new developments were to be expected as regards further persons who would ultimately be charged in the case, the applicant's lawyer had been refused access to the case-file in order to safeguard the proper conduct of the proceedings.     In a letter of 16 December 1994 the applicant complained again that he had not been questioned in the investigations since the day of his arrest.     On 19 December 1994 the Kraków Regional Court, on the request of the Kraków Regional Prosecutor, prolonged the applicant's detention for three months.     In a letter of 21 December 1994 to the Regional Prosecutor the applicant complained that the proceedings concerning the extension of his pre-trial detention were not adversarial, contrary to the requirements of Article 5 of the European Convention for the Protection of Human Rights, as neither he nor his lawyer had been allowed access to the case-file. He also complained that he was not allowed to participate in religious services in prison and requested permission to obtain new books and newspapers from his family.     In a reply of 10 January 1995 the Regional Prosecutor stated that the applicant had not been questioned because further evidence had to be gathered in order to ensure that his questioning be effective.     On 11 January 1995 the Kraków Court of Appeal examined the applicant's appeal against the decision of 19 December 1994. The court stated that the acts with which the applicant had been charged could not reasonably be qualified as trading in children within the meaning of Article IX of the Transitional Provisions of the Criminal Code. This was so because, in   the assessment of what could constitute an offence of "trading in children", regard had necessarily be had to the fact that adoption was in a child's best interest, whereas the notion of trading in human beings inherently involved acts to the detriment of its victims. Whereas it was true, the court continued, that adoption did, to a certain extent, limit the liberty of the person to be adopted, its purpose was to improve the child's conditions of life and to enhance its prospects of well-being. Therefore, the adoption in itself had to be perceived as beneficial for the child. In the case under examination, it had not been established by the investigating authorities that the acts with which the applicant had been charged had caused any harm to any children or to other persons. The court attached particular importance to the fact that Section IX of the Transitional Provisions of the Criminal Code which penalised trading in human beings was to be replaced, following a proposal of a Committee charged with drafting a new Code, by a separate offence of organising adoptions for commercial purposes. This indicated, the court emphasised, that it was impossible to charge the applicant with the offence provided by Section IX of the Transitional Provisions, as the offence of trading in human beings was considered by a unanimous opinion of eminent legal scholars, members of the drafting Committee, to constitute an offence separate from that of organising adoptions for commercial purposes. The court concluded that the very fact that the applicant had acted as a lawyer in many adoption proceedings, and had received fees for it, was not sufficient for a reasonable suspicion that an offence punishable under Section IX had been committed. The applicant was released on the same day.     On 26 April 1995 A.S., who had meanwhile been nominated the First President of the Supreme Court, informed the press that he had taken an unpaid leave from his function in order to participate as a candidate in the election campaign for the office of President of Poland.     On 8 May 1995 the United States District Court for the Western District of Pennsylvania, upon letters rogatory of the Kraków Regional Prosecutor, ordered that certain witnesses be questioned in connection with the proceedings against the applicant. The court had regard to the information submitted by the Prosecutor that the Polish Criminal Code forbade Polish citizens to intervene in adoption proceedings for commercial motives and gaining profits. The testimony of the witnesses would be sought in order to obtain information concerning the process by which the adoptive parents had obtained knowledge of the possibility to adopt Polish children, on how they had proceeded to obtain the final judicial decisions on the adoption of these children, and on what had been the applicant's role.     On 17 June 1995 the applicant complained to the Minister of Justice about the manner in which the proceedings were conducted. He complained in particular that, despite the considerations contained in the Court of Appeal's decision of 11 January 1995 to release him, the criminal proceedings were still being pursued. He further submitted that his private telephone was tapped. He complained about the press campaign against him which, in his view, was inspired by Mr A.S., the President of the Supreme Court and at the same time a candidate in the national presidential election. He finally complained about the letters rogatory submitted to the American authorities.     In reply, in a letter of 4 July 1995, the Kraków Appellate Prosecutor informed the applicant that an examination of the case-files, which numbered 46 volumes, had shown that his complaints were ill-founded. The fact that the Court of Appeal had ruled that his detention should not be continued had no bearing on the issue of the applicant's criminal responsibility. As regards the complaint that his phone was tapped, it was stated that the prosecutor's office had not issued any authorisation for the applicant's phone being tapped. If the applicant had any information indicating that his phone was tapped illegally, it was open to him to request that criminal investigations in this respect be instituted. Insofar as the applicant complained that the criminal proceedings against him had been instituted for political motives, this complaint did not call for any comment, in particular in the light of the evidence gathered in the investigations and in view of A.S.' public statements. As regards the letters rogatory, their legal basis was to be found in Chapter XII of the Code of Criminal Procedure. The complaint that in the applicant's case they amounted to an "abuse of law" were unfounded.     In a letter to the Minister of Justice of 12 August 1995 the applicant complained that the reply of 4 July 1995 had failed to address his complaints adequately. He emphasised that in the light of the Kraków Court of Appeal's decision of 11 January 1995 the legal qualification of the charges against him was untenable. He further insisted that his allegations concerning phone tapping were well-founded, and that the Prosecutor was well aware thereof. He further stressed that he had in fact requested that an analysis be made, in the light of the material gathered by the police which had used informal methods of gathering the evidence, of a genuine influence which A.S., the President of the Supreme Court, who had made "protection of the Polish family" one of the crucial slogans of his presidential campaign, had exerted on the manner in which his case had been conducted. He finally stated that in the letters rogatory the Polish authorities had misled the American court as to the legal qualification of the charges against him.     In 1995 the prosecuting authorities obtained evidence taken upon letters rogatory to the French and Italian judicial authorities and also from the authorities of Connecticut, Michigan, Maryland, Virginia and Illinois.     In a letter of 9 April 1996 the applicant requested the Minister of Justice to supervise the conduct of the case. He complained that his passport had been invalidated and that the relevant proceedings were pending before the Supreme Administrative Court. He further submitted that he had not had any access to the files of the investigations. He complained that the case had been pending at least from the beginning of 1993 without any decision on the merits having been rendered, and that, as a result, his reputation had suffered.       In 1996 the prosecuting authorities obtained evidence taken following letters rogatory from the judicial authorities of New Jersey and New York.     On 27 May 1997 the Kraków Regional Prosecutor requested the New York courts to take further evidence from three witnesses.     On 16 December 1998 the Regional Prosecutor requested the Minister of Justice - Prosecutor General to give permission for a prolongation of the investigations. On 30   December 1998 the Minister prolonged the investigations until 30 June 1999.     On 4 February 1999 the Regional Prosecutor refused access to the case-file to the applicant, considering that this would jeopardise the proper course of proceedings in which the evidence was still being gathered.       The proceedings are still pending.       2.   Press publications concerning the applicant’s case     In the initial stage of the proceedings, after the applicant's arrest in particular, numerous articles were published in the national and local press, informing the public about the applicant's arrest and about the charges proffered against him.     On 22 September 1994 a national daily Rzeczpospolita published a note entitled “Advocates and trading in children” in which it was stated that, according to information given by Ms M. W.-Ś, a spokeswoman for the Kraków Regional Prosecutor, two lawyers from Kraków had been charged with ten counts of trading in children under Article IX of the Transitional Provisions of the Criminal Code. It was further stated that the investigation had been instituted a year before and that the supposed price for a child had been from 200,000 old Polish zlotys to 3000 new zlotys.   On 23 September 1994 Dziennik Polski , a local newspaper of Kraków, published an article entitled “Better late than never.” The author of the article said, inter alia , that lawyer Adam W. had been placing advertisements in foreign press for his services as a lawyer in adoption proceedings. He had received fees for his representing foreign clients in such proceedings. The lawyers charged in this case regarded children as merchandise. They had been purchasing children from their mothers and had been selling them afterwards, with a considerable profit, abroad. The article further relied on an interview with Mrs M. W.-Ś., the spokeswoman of the Kraków Regional Prosecutor’s Office who had stated that for the time being only the tip of the iceberg had come to light. The prosecuting authorities had at their disposal voluminous case-files, but, as the proceedings were pending, no further details should be revealed.   On the same day Czas Krakowski , a Kraków daily, published an article entitled “Salesmen in gowns. A child for dollars”.   On 30 September 1994, Rzeczpospolita published an article written by professor L.G., who later became the First President of the Supreme Court,   entitled “Is it really trading with children?”. The author expressed strong doubts as to whether the offence punishable by Article IX of the Transitional Provisions of the 1969 Criminal Code could be applied in context other than trading in human beings for the purposes of prostitution. It was emphasised that in view of the historical background of this provision, dating back to international treaties of 1910 concluded for the purposes of combating international networks deriving profits from prostitution, it could not be applied to situations concerning adoptions of children in which no allegations were made of there being any links or intentions related to organising prostitution.   On 6 October 1994, weekly magazine Nie published a copy of a notice available in the Consulate of the United States in Kraków according to which the applicant had been handling adoption cases before the Kraków courts, and made it known that the applicant had been arrested.   On an unspecified date after 11 January 1995, in a letter to Czas Krakowski the Spokesman of the Kraków Court of Appeal stated that it was regrettable that the press publications had not correctly reflected either the facts of the case, nor the reasoning of the Court of Appeal in its decision of 11 January 1995 by virtue of which the applicant had been released. It was further stated that the following considerations should be taken into account as regards this case: firstly, that there was no legal basis under Polish law penalising acting as intermediary for the purposes of adoption against a fee. Secondly, in the applicant’s case the Court of Appeal had not found that the applicant’s continued detention would satisfy applicable provisions of the Code of Criminal Procedure. Thirdly, the fact that detention on remand had been lifted did not have any bearing on the further course of the criminal proceedings and, in particular, on the criminal liability of the accused person. It was finally stressed that the courts were independent and that the Court of Appeal had given its decision having scrupulously examined all relevant elements of the case.     B.   Relevant domestic law and practice   a)   Evolution of Polish criminal legislation during the relevant period     Polish criminal legislation was amended several times during the relevant period. The Code of Criminal Procedure enacted in 1973 (“old” Code) was replaced by a new Code of Criminal Procedure, adopted by Parliament ( Sejm ) on 6 June 1997, which entered into force on 1 September 1998.   The “old” Code was significantly amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. This Law entered into force on 1 January 1996. However, the entry into force of the provisions concerning imposition of detention on remand was postponed until 4   August 1996. In   pursuance with these provisions, detention on remand was imposed by a judge (whereas before it was imposed by a prosecutor - see section (b) below).     The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly referred to as “the Interim Law of 1   December 1995”) entered into force on 1 January 1996.     b)   Preventive measures     The Polish Code of Criminal Procedure of 1969 (“old”), applicable at the relevant time, listed as "preventive measures", inter alia, detention on remand, bail and police supervision.     Articles 210 and 212 of the “old” Code of Criminal Procedure provided that before the bill of indictment was transmitted to the court, detention on remand was imposed by the prosecutor. The decision to impose detention on remand could be appealed against, within a seven-day time-limit, to the court competent to deal with the merits of the case.   In pursuance of   Article 222 of the Code, the prosecutor could order detention on remand for a period not exceeding three months. When, in view of the particular circumstances of the case, the investigations could not be terminated within this period, detention on remand could, if necessary, be prolonged by the court competent to deal with the merits of the case, upon the prosecutor's request, for a period not exceeding one year. This decision could be appealed against to a higher court.     c)   Grounds for detention on remand     Article 217 subparas. 1 (2) and (4) of the Code of Criminal Procedure, as applicable   at the material time, provided that detention on remand could be imposed if, inter alia, there was a reasonable risk that an accused will attempt to abscond or to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means, or an accused has been charged with an offence which creates a serious danger to society.     The notion of “danger to society” as set out in the Criminal Code related to the assessment of the seriousness of criminal offences and, if the "danger to society" represented by a given offence was serious, this was also an aggravating circumstance which the court had to take into consideration   when determining a sentence.     d)   Proceedings to examine the lawfulness of detention on remand     At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his or her detention and thus possibly obtain release. Under Article 221   §   2 of the “old” Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor.   Under Article 222 §§ 2(1) and 3 he could appeal against a further decision by that court prolonging his detention at a prosecutor's request. Finally, under Article   214 an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.     Under all the relevant provisions of the Code of Criminal Procedure of 1969 read together, a detainee was entitled to appeal against any decision prolonging his or her detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings.     e)   Provisions governing criminal responsibility for the offence of trading in children   Article IX of the Transitory Provisions of the Criminal Code of 1969 provided that a person who delivered, enticed or abducted other persons for prostitution purposes, even with this person’s consent, committed an offence punishable by a prison sentence of not less than three years. Under § 2 of this provision the same sentence could be imposed on a person who practised trading in women or children.   Under Article 2 of the Transitory Provisions of the new Code, which entered into force on 1 September 1998, the Transitory Provisions to the 1969 Code were repealed.   Under Article 253 § 1 of the new Code, a person who trades in human beings, even with their consent, commits an offence punishable by prison sentence of no less than three years. Pursuant to § 2 of the same Article, a person who, with a view of obtaining profit, organises adoptions of children in a manner contrary to the law, commits an offence punishable by prison sentence from three months to five years.     f)   Case-law of the Polish courts in cases in which charges of trading in children were brought against the accused     On 29 November 1995 the Supreme Court, in reply to a legal question put to it by the Warsaw Court of Appeal, in the context of criminal proceedings concerning charges made under Article IX of the Transitory Provisions of the Criminal Code of 1969, as to whether the intent of coercing a victim of the offence of trading with children into practising prostitution was a constituent element of this offence, replied in the negative.   On 3 November 1999 the Warsaw Regional Court, in the same criminal proceedings in which five accused had been charged with an offence punishable under Article IX of the Transitory Provisions of the Criminal Code of 1969, discontinued the proceedings against them. The court recalled that in view of the fact that this Article had ceased to be in force, the prosecuting authorities had amended the charges by qualifying the acts with the commission of which the applicants had been charged as offence punishable under Article 253 § 2 of the new Code. The court considered that this qualification could not be upheld. There were no grounds on which to accept that the notion of “trading in children” included also the acts, which could be only regarded as organising illicit adoptions. It was only under the new Criminal Code, in force since 1 September 1998, that organising illicit adoptions had become a criminal offence.   Consequently, the court had to discontinue the proceedings pursuant to Article 17 § 1 item 1 of the new Code, which provided that the criminal proceedings had to be discontinued if the charges against the accused had not been made out.   On 4 February 2000 the Warsaw Court of Appeal, following the prosecutor’s appeal against this decision, amended it in part, considering that the proceedings in their part concerning the charges of trading in children should have been discontinued on the ground that the acts, with which the accused had been charged, had not amounted to a criminal offence punishable at the time of their commission. The court recalled that the accused had been indicted with trading in children on the basis that they had, in order to gain profit, visited hospitals, orphanages and hostels for single mothers, trying to persuade biological parents to place their children for adoption, in certain cases against money. Their actions had further been described as taking children away from biological parents and taking further care of them, followed by undertaking measures to institute adoption proceedings. The accused had allegedly also arranged transfers of children to foreign citizens and made payments to the biological parents.   The court considered that these acts could neither be qualified as trading in children within the meaning of the repealed Article IX of the Transitory Provisions of the old Code, nor as trading in human beings within the meaning of § 2 of Article 253 of the new Criminal Code. Such acts could only be construed, regard having been to their nature, as organising foreign adoptions, in certain cases for commercial motives. As a result, these acts at the time of their commission, i.e. from 1990 to 1993, had not constituted criminal offences, given that it was only under the 1997 Criminal Code, which had entered into force on 1 September 1998, that they could have been qualified as falling within the ambit of Article 253 § 2 of that Code, penalising organisation of adoptions for commercial motives. Consequently, the proceedings should have been discontinued on the ground that the acts concerned had not coincided with the constituent elements of the offence of trading in children as defined by the Polish law at the material time, but not the ground that the charges against the accused had not been made out.       g)   Proceedings for compensation for unjustified detention     Chapter 50 of the Code of Criminal Procedure of 1969, as applicable at the material time , provided for compensation regarding damages arising out of imprisonment resulting from conviction which has subsequently been quashed and the convicted person was acquitted, for obviously unjustified detention on remand and for arrest and detention up to 48   hours. The Regional Court in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation were met. The decision of the Regional Court could be appealed to the Court of Appeal.   According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand had to be lodged within one year from the date on which the final decision terminating the criminal proceedings in question had become final. Therefore, in practice, a request for compensation for unjustified detention Article 487 of the Code of Criminal Procedure could not be lodged until the criminal proceedings against the person concerned were terminated (see also the decision of the Supreme Court no. WRN 106/96, 9.1.96, published in Prok. i Pr. 1996/6/13). The court competent to deal with such a request was obliged to establish whether the detention was justified in the light of all the circumstances of the case, in particular whether the authorities considered all the factors militating in favour of or against the detention (see, inter alia, the decision of the Supreme Court no. II KRN 124/95, 13.10.95, published in OSNKW 1996/1-2/7).   The proceedings relating to a request under Article 487 of the Code of Criminal Procedure were to be regarded as independent of original criminal proceedings in which the detention was imposed. They were not designed to secure release from detention but financial reparation for damage arising from unjustified detention on remand. The person concerned, by instituting such proceedings, could retrospectively seek a ruling as to whether his or her detention was justified. He or she could, however, put to test the lawfulness of continuing detention on remand and obtain his or her release.       COMPLAINTS     The applicant complains under Article 2 of the Convention that the authorities, by ordering his detention on remand, tried to take his life.     The applicant further complains under Article 3 of the Convention that his detention amounted to a degrading treatment, that he was lowered in the eyes of public opinion by the charges brought against him, that the conditions of his detention, in particular the fact that he was detained in the former cells of persons sentenced to capital punishment, were degrading, and that while detained he could not participate in religious services in prison.     The applicant further complains under Article 5 § 1 of the Convention that his detention on remand was unlawful as there could not have been a reasonable suspicion of his having committed a   crime within the meaning of Article 5 § 1 (c) of the Convention. He was at that time carrying out his normal professional obligations as an advocate, representing parties to various adoption proceedings. Therefore, regard being had to the nature of his profession, it could not have been reasonably inferred that his involvement in these duties could be qualified as an offence of trading in children. He submits that his detention lacked any reasonable legal basis under Polish law. He relies in particular on the decision of the Kraków Court of Appeal of 11   January 1995 which, in his submission, clearly indicates that the suspicion against him could not have been regarded as lawful.     The applicant complains under Article 5 § 4 of the Convention that the proceedings before the Kraków Regional Court in December 1994 and, upon appeal, before the Kraków Court of Appeal, concerning the prosecutor's request for extension of his detention, were not adversarial as neither he nor his lawyer were allowed access to the case-file, to the evidence gathered in the investigations and to the prosecutor's request for extension of detention.     The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings in his case are not being conducted within a reasonable time.     The applicant complains under Article 6 § 2 of the Convention that his right to be presumed innocent until a final judgment of a competent court was breached by a hostile press campaign inspired by the authorities, in which he was identified as a person running an illicit network of adoptions and in fact selling Polish children abroad, motivated solely by commercial purposes.     The applicant complains under Article 8 of the Convention that his private telephone communications are being intercepted by the prosecuting authorities.     THE LAW   1.   The applicant complains under Article 2 of the Convention that the authorities, by ordering his detention on remand, tried to take his life.     He further complains under Article 3 of the Convention that his detention amounted to a degrading treatment and that he was lowered in the eyes of public opinion by the charges brought against him.       Article 2 of the Convention, insofar as relevant, reads:   “1.     Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally …”   Article 3 of the Convention provides as follows:   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”   The Court observes that the applicant was detained on remand from 20 September 1994 to 11 January 1995, i.e. for a period of three months and twenty-one days. There is no indication that the conditions of his detention were different than those normally to be found in Polish detention centres or that any danger to the applicant’s life and limb arose during his detention. The Court further notes that the applicant does not allege that he was treated in a manner which would be in any way different from that applicable in respect of other detained persons. The Court does not find it established that the treatment of the applicant was contrary to the prohibition of degrading or inhuman treatment stipulated in Article 3 of the Convention, or that any issue arises in this respect under Article 2 of the Convention.   It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and rejected pursuant to Article 35 § 4 of the Convention.   2.   The applicant further complains under Article 5 § 1 of the Convention that his detention on remand was unlawful as there could not have been a reasonable suspicion of his having committed a   crime within the meaning of Article 5 § 1 (c) of the Convention. He was at that time carrying out his normal professional obligations as an advocate, representing parties to various adoption proceedings.   Article 5 § 1 of the Convention, insofar as relevant, reads as follows:   “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: …   (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so…”   a)   As regards the exhaustion of domestic remedies, the Government first argue that the applicant failed to exhaust the remedies available to him under Polish law. He should have instituted compensation proceedings claiming damages arising out of manifestly unjustified detention, provided for by Chapter 50 of the Code of Criminal Procedure as it stood at the material time. They emphasise that these provisions served as a legal basis for claiming compensation for manifestly unjustified detention on remand. Under the relevant case-law of the Polish courts, these proceedings were considered as an effective remedy for the purpose of reviewing the lawfulness of detention and granting compensation once detention was found unjustified. This was confirmed, inter alia , by a ruling of the Supreme Court of 6 February 1981 in which that Court stated that compensation could be awarded only in cases in which charges lacked any reasonable factual basis or where the detention lacked legal basis. Considering that in the present case the applicant complains that his right to liberty and security of a person was breached on the ground that his detention lacked any legal basis, he should have first tried available domestic remedy for protection of this right.   The Court recalls that, under the Convention organs’ case-law, where lawfulness of detention is concerned, an action for damages against the State is not a remedy which has to be exhausted because the right to obtain release from detention and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see Eur. Comm. HR, no. 12747/87, Dec. 12.12.1989, D.R. 64, pp. 97, 124).   The Court further recalls that, a ccording to Polish law and practice, a request for compensation for manifestly unjustified detention on remand under Article 487 of the Code of Criminal Procedure of 1969 enabled a detainee to seek, retrospectively, a ruling as to whether his detention in already-terminated criminal proceedings was justified, and to obtain compensation when it was not. The proceedings relating to such a request were designed to secure financial reparation for damage arising from the execution of unjustified detention on remand. As a consequence, this was not a remedy by which a detainee could challenge the lawfulness of his continuing detention on remand and obtain a release (see Eur.Comm. HR, no. 28358/95, Dec. 8.12.1997, unpublished).   As regards the domestic remedy referred to by the Government, the applicant submits that in his case these proceedings cannot be deemed to constitute an effective remedy as regards the complaint about the lack of legal basis of his detention. In the practice of the Polish courts, detention on remand can be found unjustified and compensation is granted only in cases of a manifest error in the decision on detention, for example as to the identity of the detained person. The applicant further argues that the Government’s argument as to the alleged non-exhaustion of domestic remedies is contradictory. On the one hand, they argue that his detention on remand was lawful. On the other hand, they seem to consider that he should exhaust domestic remedies based on an argument that his detention was unlawful and manifestly unjustified.   The Court observes that the applicant had at his disposal a specific judicial remedy to complain about the alleged unlawfulness of his arrest, i.e. a complaint to the court under Chapter 23 of the Code of Criminal Procedure against the detention order. The purpose of this remedy was to secure a judicial review as to whether the detention order was lawful and justified. The applicant did avail himself of this remedy by lodging an appeal against the detention order of 19 September 1994. The applicant further lodged an appeal with the Kraków Court of Appeal against the first-instance decision of 19 December 1994, prolonging the applicant’s detention for further three months. T he Court observes that the applicant does not complain that he has not obtained compensation for his detention in contravention of Article 5 § 5 of the Convention. As it is exclusively the lawfulness of his detention on remand which under examination in the present case, the Court considers that the remedy referred to by the Government, i.e. the compensation proceedings under Chapter 50 of the old Criminal Code, is not a relevant one i