CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 avril 2000

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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 19 June 1995 and registered on 28 June 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 21 October 1998,     Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,     Having deliberated, decides as follows: THE FACTS       The applicants are Polish citizens. The first applicant was born in 1946. He died of cancer on 31 December 1995. The second applicant, born in 1953, was the first applicant's former wife who subsequently returned to live with him. The third applicant is the daughter of the first and second applicants. The applicants are represented before the Court by Mr Adam Włoch, a lawyer practising in Kraków.     A.   The circumstances of the case     The facts of the case, as submitted by the parties, may be summarised as follows.     On 21 February 1994 the second applicant, who is a teacher, requested the Kraków educational authorities to issue her a licence to run an adoption agency ("agencja adopcyjna"). In reply, she was informed by an undated letter that centres dealing with adoption and custody matters could only be run by associations governed by the Associations Act, whose statutory purposes so provided.     On 19 September 1994 the Kraków Regional Prosecutor charged the first applicant with trading in children, an offence provided for by Article IX of the Transitory Provisions of the Criminal Code of 19 April 1969, applicable at the material time . On 20 September 1994 the first applicant was arrested. On the same day the applicant was examined by a psychiatrist from the Department of Psychiatry of the Jagiellonian University, since at the time of his arrest he had submitted that he had been suffering from depression for the last ten years. The medical opinion stated that, having regard to the first applicant’s state of mental health, he should be detained in the psychiatric ward of the Kraków Detention Centre.     On 21 September 1994 the Kraków Regional Prosecutor remanded him in custody for a period of three months on suspicion of trading in children. On the same day the prosecutor asked the Kraków Detention Centre to place the applicant in the psychiatric ward.     On 22 September 1994 the applicant was examined by a physician from the detention centre hospital. The medical examination did not show any pathological changes in the applicant’s thorax, skeleton, nervous system, urinary system or abdominal cavity. The physician recommended that the applicant should be seen by a psychiatrist and a specialist in internal medicine and should have an X-ray. An X-ray taken afterwards showed a shadow at the top of his right lung. On 11 October 1994 therefore the X-ray was repeated. It showed a shadow of 4 cm in his lung.     On 30 September 1994 written grounds of a decision of 19   September 1994 were served on the first applicant. The prosecutor considered that there was a strong suspicion that in September 1993 he had contacted Mr and Ms C. and, taking advantage of their difficult financial situation, convinced them to give for adoption their child which was soon to be born. At the beginning of October 1993, upon discharge of the mother from the hospital where the child had been born, he had placed it with third parties. The biological parents had not had any further contact with the child. Later, a week before a court hearing in the adoption proceedings, the first applicant had organised a meeting at the law firm of A.W. attended by Mr and Ms C. and an American couple, the Ks. On the day of the hearing and after a favourable decision as to adoption by Mr and Ms K. had been rendered by the court, the first applicant had given 8,500,000 old zlotys (PLZ) to the Cs. and had retained PLZ   1,500,000 for himself, apparently as reimbursement of costs which he had borne for the maintenance of the child. It had further been established that in November 1993 the first applicant had had contacts with K.B., who had been pregnant at that time. After her child had been born, he had taken it from K.B. upon her discharge from hospital and had placed the child with third parties. The mother had not had any further contact with the child. From June 1993 to November 1993 the first applicant had paid to K.B. PLZ 9,000,000 in monthly instalments of PLZ 1,500,000. The child had apparently later been adopted by another American family.     On 28 and 30 September 1994, the prosecutor consulted doctors from the detention centre hospital in order to establish whether the applicant could take part in the criminal proceedings conducted against him. They informed him that the applicant’s health did not prevent him from participating in the proceedings.     On 1 October 1994 the Office of Kraków Municipal Council registered the first applicant's company. In accordance with the terms of the registration certificate he was allowed to run a legal advice company, providing, inter alia , legal counselling concerning adoption proceedings and "cooperation with agencies dealing with adoption matters" (" współpraca z agencjami adopcyjnymi" ).     On 13 October 1994 the first applicant was examined by a lung specialist who ordered that he should undergo a new X-ray or tomographical examination, and bronchoscopy. On 17 October 1994 the detention centre established that the applicant could have a bronchoscopy at the Jan Paweł II Hospital in Kraków on 21 October 1994.     On 21 October 1994 the Kraków Regional Public Prosecutor had a phone conversation with doctors from the detention centre in order to establish whether the applicant could participate in the criminal proceedings. He was informed that the applicant was undergoing diagnostic tests since suspect shadows had been found in his right lung. By a letter of the same date the prosecutor requested the prison hospital to provide information in writing about the applicant’s health as soon as possible.     The tomography of the applicant’s lungs was carried out on 18 November 1994. Its interpretation, given on 23 November 1994, confirmed the presence of suspect changes in his lungs.     On 18 November 1994 the applicant’s defence counsel filed with the Regional Public Prosecutor’s Office a request for release based on Article 218 of the Code of Criminal Procedure, submitting that the applicant should be released as there was a suspicion that he was suffering from lung cancer.     On 21 November 1994 the Kraków Regional Prosecutor refused to release the applicant, having regard to the fact that information obtained from the detention centre hospital regarding the applicant’s health was insufficient to establish whether he was suffering from cancer.     On 30 November 1994 the applicant underwent a bronchoscopy.         On 6 December 1994 a panel of physicians of the Kraków detention centre hospital stated that the applicant should be released as he was suffering from lung cancer. The prosecutor requested that a further medical report be prepared concerning the compatibility of the applicant’s health with his continued detention. On 14 December 1994 two specialists from the Institute of Forensic Medicine of Kraków University confirmed that there was a strong likelihood that the applicant was suffering from lung cancer.     On 19 December 1994 the applicant was released. A   medical certificate issued on the day of his discharge from the prison hospital stated that cytological tests had shown the presence of suspect cells in his lungs. There was a strong likelihood that he was suffering from lung cancer. An examination by a lung specialist was urgently necessary. The applicant's condition also necessitated a tomographical examination of his lungs as well as a bronchoscopy. The applicant was also suffering from depression. While hospitalised, he had been receiving various drugs.     On 29 December 1994 the applicant was admitted to a hospital in Kraków. He subsequently underwent a course of radiation therapy.     On 11 January 1994 the Kraków Court of Appeal refused the public prosecutor's request for prolongation of detention on remand of another suspect detained in the same case, A.W., who was an advocate. The court stated that the acts with which A.W. 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 the offence of "trading in children", regard had necessarily to 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 the victims of such trade. Whereas it was true, the court continued, that adoption did, to a certain extent, limit the liberty of a person to be adopted, its purpose was to improve a child's conditions of life and to enhance its prospects of well-being.   Therefore, adoption in itself had to be perceived as being beneficial for a child. In the case under examination, it had not been established by the investigating authorities that the acts with which A.W. had been charged had caused any harm to any children, or to other persons. The court attached 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 by a committee charged with drafting a new Code, by a separate offence of organising adoptions for commercial purposes. It indicated, the court emphasised, that it was impossible to charge A.W. with the offence defined in Section IX of the Transitional Provisions, as the offence of trading in human beings was considered by an unanimous opinion of eminent legal scholars, members of the drafting committee, to constitute an offence separate from the one of organising adoptions for commercial purposes. The court concluded that the mere fact that A.W. had acted as a lawyer and as an intermediary in numerous 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.     On 21 February 1995 the first applicant underwent an operation. A part of his lungs was removed. During the operation the presence of metastases in his lymph nodes was established.     He was discharged from hospital on 23 March 1995.       On 31 December 1995 the applicant died of lung cancer.     On 31 January 1996 the second applicant requested that criminal proceedings be instituted concerning the causes of the first applicant's death. She submitted that, after his admission to the prison hospital, an X-ray had showed possible symptoms of cancer. At the beginning of October 1994 the prison medical services had accordingly notified the prosecutor and had pointed out the possibility of a quick and violent progress of the cancer. They had emphasised the necessity of the applicant's further examination by specialists and, possibly, of an operation. The second applicant further submitted that, throughout the first applicant's stay in the prison hospital, the prosecutor I. K.-B. had been informed on an ongoing basis by the applicant's lawyers of the fact that his continued detention entailed an immediate danger to his life. She had entirely disregarded this information. Likewise, she had disregarded the results of the first applicant's medical examinations. She had also ignored the medical opinions of the prison hospital and of the Forensic Medicine Institute indicating that the applicant's condition had been incompatible with his continued detention. She had kept refusing to release him, considering that the applicant had been prevaricating. The second applicant further stated   that the first applicant's treatment after his release had been ineffective, mainly owing to the fact that the illness had already been in an advanced stage. The first applicant had received a course of radiation therapy and had subsequently undergone the operation. The second applicant stated that the evidence to prove the accuracy of her assertions was to be found in the first applicant's medical records at the prison hospital and the Kraków Pulmonological Hospital, and in the applicant's medical records kept by the Kraków Forensic Medicine Institute.     The second applicant asserted that the first applicant's death had been caused by his detention from September to December 1994 and by the lack of any adequate treatment against cancer throughout that time. She submitted in particular that had the first applicant been released earlier to receive adequate treatment, he would have had a chance to be saved. The fact that during his detention he had been deprived of treatment, amounted, in the second applicant's opinion, to manslaughter within the meaning of the relevant provisions of the Criminal Code.     On 12 January 1996 the Ministry of Justice ordered that the investigation of the second applicant's allegations should be conducted by a prosecutor from a prosecutor's office outside of Kraków.     On 25 March 1996 the Kraków Regional Prosecutor, in view of the first applicant's death, discontinued the criminal proceedings against him.     On 8 March 1996 the Tarnów Regional District Prosecutor refused to institute criminal proceedings concerning the first applicant's death.       On 29 April 1996 the Appellate Prosecutor in Kraków quashed this decision and ordered that the investigations be resumed.     On 30 July 1996 the investigations were discontinued as the Public Prosecutor found that no criminal offence had been committed. Two copies of this decision were sent to the second applicant’s addresses in Kraków and in Nowy Targ. It is not contested that the first one was served on the applicant on 6 August 1996, and the second one on 12 August 1996.           The applicant lodged an appeal against this decision on 19 August 1996. On 22   August 1996 the Tarnów Regional Prosecutor refused to accept her appeal, considering that the seven-day time-limit should have been calculated from the date of the effective service of the decision on the second applicant, i.e. from 6 August 1996 and that, therefore, the applicant had submitted her appeal out of the statutory time-limit.     B.   Relevant domestic law   1.   Detention on remand     Under Chapter 23 of the Code of Criminal Procedure, as applicable at the material time, the lawfulness of the Public Prosecutor's detention order could be challenged before a court. The authorities competent to decide in relation to detention on remand were specified in Articles 210 and 212 of the Polish Code of Criminal Procedure, which at the material time read as follows:     Article 210:     "1. Preventive measures [including detention on remand] are imposed by the court; before a bill of indictment is sent to the court, they are imposed by the prosecutor (...)."     Article 212:     "1. The decision concerning preventive measures may be appealed [to the higher court] (...).   2. The prosecutor's order on detention on remand may be appealed to the court competent to consider the criminal proceedings at issue. (...)"   2.   Proceedings for compensation for unjustified detention     Chapter 50 of the Code of Criminal Procedure, 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 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 had been 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 under 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 had 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 the 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, challenge the lawfulness of continuing detention on remand and obtain his or her release.   3.   Civil liability in tort of the State Treasury     Under Article 417 of the Civil Code, the State Treasury is liable for damage caused by an agent of the State in the exercise of his or her duties.     COMPLAINT S   1.   The second and third applicants complained under Article 2 of the Convention that the fact that the first applicant was detained on remand for two months without any treatment against cancer was a direct cause of his death.   Had he been released immediately after cancerous changes were diagnosed in his lung, he would have had a chance of receiving adequate treatment which was not available in the Kraków prison hospital.     The first applicant complained that his detention on remand, despite the fact that he had been diagnosed as suffering from cancer, had caused him acute mental suffering and had made him fear for his life. He complained that his detention was thus in violation of Article 3 of the Convention.   2.   The applicants further complained under Article 5 § 1 of the Convention that, when the first applicant was arrested and detained on remand, there was no reasonable suspicion of his having committed a   crime within the meaning of Article 5 § 1 (c) of the Convention. He was at that time helping lawyer A.W. in carrying out certain official duties in connection with the adoption proceedings.   It could not have been reasonably inferred that his involvement in these duties could be qualified as the offence of trading in children. He submits that his detention lacked any reasonable legal basis under Polish law.   3.   The applicant further complains under Article 6 § 2 of the Convention that the press campaign against him instigated by the authorities held him guilty of the offence concerned before any judgment of a competent court had been given.   4.   The applicants finally complain that during the criminal proceedings their phone was tapped, without any legal basis therefor.       THE LAW   1.   The second and third applicants complained under Article 2 of the Convention that the fact that the first applicant was detained on remand for two months was a direct cause of his death.     The first applicant complained that his detention on remand, despite the fact that he had been diagnosed as suffering from cancer, had caused him acute mental suffering and had made him fear for his life. He complained that his detention was thus in violation of Article 3 of the Convention.   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 reads as follows:   “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”     The Government submit that the second applicant availed herself of one of the domestic remedies in respect of his complaints under Articles 2 and 3 of the Convention by lodging a request that criminal proceedings be instituted. However, in order to exhaust relevant domestic remedies she could also have sought compensation under the provisions of Article 417 of the Civil Code governing the liability in tort of the State Treasury for the allegedly inadequate medical treatment in the hospital at Kraków Detention Centre or for the acts of the Kraków Regional Prosecutor.     The applicants submit that the decision to discontinue the criminal proceedings of 30   July 1996 was sent to two addresses of the second applicant. It was effectively served on her at her permanent address in Nowy Targ on 6 August 1996. Subsequently, another copy of the same decision was served on her at her temporary address on 12 August 1996. The prosecutor wrongly considered that the seven-days time-limit for lodging an appeal should be calculated as from the first date. Thus, she should be considered to have exhausted relevant domestic remedies.   The Court recalls that, pursuant to Article 35 § 1 of the Convention, it can only deal with a matter after exhaustion of domestic remedies and within a period of six months from the date on which the final decision was taken. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (the Aksoy v. Turkey judgment of 18   December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52).     The Court further recalls the Convention organs’ case-law according to which in cases against Poland in which complaints under Articles 2 and 3 of the Convention were made, a request to the Public Prosecutor to have criminal proceedings instituted constitutes an effective and sufficient remedy to be exhausted before lodging an application with the Convention organs (Eur. Comm. HR, no. 25480/94, Dec. 22.05.1995, unpublished; European Court HR, no. 26761/95, Dec. 9.12.1999, unpublished; no. 43457/98, Dec. 15.06.1999, unpublished). Consequently, the Court does not share the Government’s view that the question whether the applicant lodged a civil action under Article 417 of the Civil Code is relevant for assessing whether the requirements of Article 35 of the Convention have been satisfied.   However, the Court further recalls that the requirement of exhaustion of domestic remedies cannot be regarded as satisfied when a domestic appeal has been rejected because of a procedural mistake by the appellant (Eur. Comm. HR, no. 18079/91, Dec. 4.12.1991, D.R. 72, p. 263)     The Court observes that on 30 July 1996 the criminal investigations into the causes of the first applicant’s death were discontinued as the Tarnów Regional Prosecutor found that no criminal offence had been committed. On 22 August 1996 the Tarnów Regional Prosecutor refused to accept the second applicant’s appeal considering that it had been submitted out of the seven-day statutory time-limit. On 18 October 1995 the Kraków Appellate Prosecutor upheld this decision.     The Court notes that it is not contested that it was on 6 August 1996 that the reasoned decision of 30 July 1996 was served on the second applicant. The Court therefore considers that the decision of 22 August 1996, rejecting her appeal for failure to comply with the seven-day time-limit, cannot be deemed arbitrary or unreasonable.   Accordingly, the Court considers that the second applicant has not exhausted relevant domestic remedies.   It follows that this part of the application must be rejected as being inadmissible within the meaning of Article 35 §§ 1 and 4 of the Convention.   2.   The applicants further complain under Article 5 of the Convention that, when the first applicant was arrested and detained on remand, there was no reasonable suspicion that he had committed a   crime within the meaning of Article 5 § 1 (c) of the Convention. He submitted that his detention lacked any reasonable legal basis under Polish law.     Article 5 of the Convention, insofar as relevant, reads:   “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;”     The Government argue that the first applicant failed to exhaust domestic remedies which were available to him in respect of his complaint under Article 5 § 1 (c) of the Convention as he did not lodge an appeal against the detention order of 21 September 1994 with a court, as provided for by Article 212 of the Code of Criminal Procedure as applicable at the material time. Thus, he did not avail himself of the possibility of having the lawfulness of his detention on remand examined by a court.           The Government further submits that the applicants should also 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. As regards the second and third applicants, the Government stress that in the case of the death of an accused person, a compensation claim could be lodged by persons who as a result of unjustified detention on remand have lost maintenance provided by the accused.     The applicant submits that the compensation procedure referred to by the Government cannot be considered an effective remedy.   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. 12.12.89, 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 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 his release (see European Comm. HR, no. 28358/95, Dec. 8.12.1997, unpublished). Insofar as the Government argue that this would have enabled the second and third applicants to obtain compensation for the detention of the first applicant, the Court observes that the applicants do not complain that they have not obtained compensation for the first applicant’s detention in contravention of Article 5 § 5 of the Convention. As it is exclusively the lawfulness of the first applicant’s detention on remand which is in issue in the present case, the remedy referred to by the Government is not a relevant one.   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. The purpose of this remedy was to secure a judicial review as to whether the detention order was lawful and justified. The applicant did not avail himself of this remedy. The Court further notes that under Polish law as it stood at the relevant time, in criminal proceedings in their investigative stage, i.e. before a bill of indictment had been lodged with a court competent to examine the merits of the case, it was open to a detained person to submit, at any time, a request for release to the prosecutor. Against a decision of a prosecutor an appeal to a hierarchically superior prosecutor lay. The purpose of the proceedings was, likewise, to secure a review of the lawfulness of detention and to obtain release if the circumstances of the case no longer justified continued detention. The applicant submitted a request for release to the Regional Prosecutor and his request was refused on 21   November 1994. However, the Court observes that the applicant failed to lodge an appeal against this decision with the Appellate Prosecutor.     Having regard to the fact that throughout his detention the applicant did not avail himself of remedies by which he could have the lawfulness of his detention examined, it follows that this part of the application must be rejected as being inadmissible within the meaning of Article 35 §§ 1 and 4 of the Convention.   3.   The applicants further complain under Article 6 § 2 of the Convention that the press campaign against him held him guilty of the offence concerned before any judgment of a competent court was rendered.     The Court observes that the criminal proceedings against the first applicant were discontinued on 25 March 1996. Consequently, he could not be considered to be a victim of a breach of his right to be presumed innocent.     It follows that this part of the application is manifestly ill-founded within the meaning of Article 34 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.   4.   The applicants finally complain that during the criminal investigations their phone was tapped, without any legal basis therefor.     The Court observes that th e applicants have failed to substantiate this complaint. It follows that this part of the application is manifestly ill-founded within the meaning of Article 34 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.       For these reasons, the Court, unanimously,   DECLARES THE APPLICATION INADMISSIBLE .         Vincent Berger   Matti Pellonpää   Registrar   President