CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 28 mars 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s21B97EC1 { width:25.99pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s42A0AEC7 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-after:avoid; font-size:12pt } .s595305E7 { font-family:Arial; font-weight:normal; text-decoration:underline } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s76CF415B { page-break-before:always; clear:both } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     215   28.03.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF BARANOWSKI v. POLAND   In a judgment delivered at Strasbourg on 28 March 2000 in the case of Baranowski v. Poland, the European Court of Human Rights held unanimously that there had been a violation of Article 5 § 1 (right to liberty and security) and Article 5 § 4 (right to have the lawfulness of detention decided speedily) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 30,000 Polish zlotys (PLN) for non-pecuniary damage and PLN 10,000 for legal costs and expenses.   1.   Principal facts   The applicant, Janusz Baranowski, a Polish national born in 1943 and living in Łódź (Poland), was a founder and president of the first Polish privately-owned insurance company “Westa” (declared insolvent in 1993). He was also a well-known politician and, at the beginning of the 1990s, was a senator (member of the Upper House of the Polish Parliament).   On 2 June 1993 the Łódź Regional Prosecutor charged the applicant with fraud and detained him on remand.   On 30 December 1993 the Łódź Regional Court, at the prosecutor's request, prolonged the applicant's detention until 31 January 1994. On 7 January 1994 the applicant lodged an appeal against this decision.   In the subsequent proceedings, the appellate court held that it "was purposeless" to examine the appeal and decided that it should be deemed to be an application for release.   It referred the appeal to the Łódź Regional Court.   Nevertheless, the Regional Court did not examine the appeal in question either as an application for release or under any other head.   On 11 January 1994 the Łódź Regional Prosecutor lodged a bill of indictment with the Łódź Regional Court.   On 1 February 1994, the applicant filed a formal petition with the Łódź District Prosecutor, informing him that the order for his detention had expired on 31   January 1994 and therefore his continued detention had become unlawful.   At the later stage of the proceedings the applicant was informed by the authorities that his detention continued under the bill of indictment and that, according to the domestic practice, his detention was still lawful because, after a bill of indictment had been lodged with the court, there was no need to make any separate decision on the prolongation of detention on remand.   On 7 February and 28 March 1994 the applicant lodged two applications for release with the Łódź Regional Court, arguing, in particular, that he should be released on health grounds.   The court considered that evidence from medical experts should be obtained.   In order to obtain that evidence, it adjourned the examination of the applications on five occasions.   Eventually, these two applications were examined jointly: on 24 May 1994 at first instance and on 5   July 1994 on appeal. On 22 October 1996 the applicant was released under police supervision.   The criminal proceedings against him are still pending in the court of first instance.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 24 May 1994.   Having declared the application partly admissible, the Commission adopted a report on 28 May 1998 in which it expressed the unanimous opinion that there had been a violation of Article 5 § 1 and Article 5 § 4 of the Convention.   It referred the case to the Court on 2   November 1998.   On 20 January 1999, the case was assigned to the First Section.     Judgment was given by a Chamber of seven judges, composed as follows:   Elisabeth Palm (Swedish), President , Luigi Ferrari Bravo [1] (Italian), Jerzy Makarczyk (Polish), Riza Türmen (Turkish), Boštjan Zupančič (Slovenian), Tudor Panţîru (Moldovan), Rait Maruste (Estonian), Judges ,   and also Michael O’Boyle , Section Registrar .   3.   Summary of the judgment [2]   Complaints   The applicant complained that his detention on remand, insofar as it had been effected under the bill of indictment and after the expiry of the detention order of 30 December 1993, had not been “lawful” within the meaning of Article 5 § 1 of the Convention.   He also complained that the Polish courts had failed to examine “speedily” the lawfulness of his detention under the bill of indictment and had therefore violated Article 5 § 4 of the Convention.   Decision of the Court   Article 5 § 1 of the Convention   The Court firstly referred to its case-law on the standard of “lawfulness” set by the Convention, stressing, in particular, that it is essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (Steel v. the United Kingdom judgment of 23 September 1998).   Turning to the facts of Mr Baranowski’s case, the Court observed that between 31 January and 24 May 1994 there had been no judicial decision authorising his detention and that he had been kept in detention solely on the basis of the fact that a bill of indictment had been submitted to the relevant court.   It further observed that the practice of keeping a person in detention under a bill of indictment had not been based on any specific legislative provision or case-law but stemmed from the fact that Polish criminal legislation had at the material time lacked clear rules determining the situation of a detainee in court proceedings after the expiry of a detention order made at the investigation stage.   The Court considered that the relevant legislation, by reason of that statutory lacuna, did not satisfy the test of “foreseeability” of a “law” for the purposes of Article 5 § 1 of the Convention.   It also considered that the practice which developed in response to the statutory lacuna, whereby a person was detained for an unlimited and unpredictable time and without his detention being based on a concrete legal provision or any judicial decision, was contrary to the principle of legal certainty.   The Court further pointed out that, for the purposes of Article 5 § 1 of the Convention, detention which extended over several months and which was not ordered by a court or by a judge or any other person “authorised … to exercise judicial power” could not be deemed to be “lawful”.   The Court considered that this requirement, even though not explicitly stipulated in paragraph 1 of Article 5, could be inferred from Article 5 read as a whole. Accordingly, the Court concluded that there had been a violation of Article 5 § 1.   Article 5 § 4 of the Convention   In respect of the proceedings which had been set in motion by the applicant’s requests for release dated 7 February 1994 and 28 March 1994 respectively, the Court considered that their duration (approximately 5 months as regards the first request and a little more than 3   months as regards the second) was incompatible with the notion of “speediness” laid down in Article 5 § 4.   The Court rejected the Government’s argument that the need to obtain medical evidence explained the overall length of the proceedings, considering that there were too lengthy intervals between the domestic court’s decisions to take evidence.   Referring to the applicant’s appeal of 7 January 1994, which he lodged against the detention order of 30 December 1993, the Court noted that this appeal had not been examined.   It considered, however, that since all the issues concerning the lawfulness of his detention had, in effect, been determined by the decision of the Court of Appeal of 5 July 1994, this decision could be seen as having addressed the arguments made by the applicant in that appeal.   Consequently, the Court found that the determination of the prolongation of the applicant’s detention until 31 January 1994 lasted from 7 January to 5 July 1994 (nearly 6 months) and that such a long delay had resulted in the appeal being of no legal or practical effect.   The Court, accordingly, concluded that there had also been a violation of Article 5 § 4.   Article 41 of the Convention   The Court did not find it appropriate to make any award for pecuniary damage in this case as it considered that there was no causal link between the breach established and the alleged financial loss.   As regarded non-pecuniary damage, the Court awarded 30,000 zlotys (PLN).   For costs and expenses, it awarded PLN 10,000.   *** The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Judge elected in respect of San Marino. [2] This summary by the registry does not bind the Court.