CEDH · PRESS;GENERAL;ENG — 19 octobre 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 } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB4D5CB4E { width:4.94pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   743   19.10.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF WŁOCH v. POLAND     In a judgment [1] delivered at Strasbourg on 19 October 2000 in the case of Włoch v. Poland, the European Court of Human Rights held unanimously that there had been no violation of Article 5 § 1 (right to liberty and security) or Article 6 § 1 (right to a fair trial within a reasonable time) of the European Convention on Human Rights. The Court further unanimously held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court). Under Article 41 (just satisfaction), the Court awarded the applicant 2,600 Polish zlotys (PLN) for legal costs and expenses. The Court also held that the non-pecuniary damage sustained by the applicant was adequately compensated by the finding of a violation.   1.     Principal facts   The applicant, Adam Włoch, a Polish national, was born in 1941 and lives in Kraków, Poland.   On 20 September 1994 Mr Włoch was remanded in custody on suspicion of being involved in trading in children, within the meaning of Article IX of the Transitional Provisions of the 1969 Criminal Code, and of inciting others to give false testimony. He was accused of encouraging parents to give up their children for adoption for money and of inciting biological parents to give false evidence in adoption proceedings, in particular regarding the circumstances in which they had met the adoptive parents. It was noted that he had received remuneration for his services which in certain cases was inordinately high.   On 11 January 1995 the Kraków Court of Appeal released him on the ground that the acts with which he had been charged could not reasonably be qualified as trading in children within the meaning of Article IX.   The criminal proceedings against him are still pending.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 5 December 1994. The application was transmitted to the Court on 1 November 1998 and on 30 March 2000 the Court declared the application partly admissible.   A hearing was held on 13 June 2000. Judgment was given by a Chamber of seven judges, composed as follows:   Georg Ress (German), President , Antonio Pastor Ridruejo (Spanish), Lucius Caflisch [2] (Swiss), Jerzy Makarczyk (Polish), Volodymyr Butkevych (Ukrainian), John Hedigan (Irish), Matti Pellonpää (Finnish), judges ,   and also Vincent Berger , Section Registrar .   3.     Summary of the judgment [3]   Complaint   The applicant complained of a violation of Article 5 (right to liberty and security) § 1 (c) of the Convention, because he was detained on remand when there was no reasonable suspicion that he had committed a crime. Considering that, at the time in question, he was carrying out his normal professional obligations as a barrister representing parties at various adoption proceeding, his involvement in these duties could not be qualified as an offence of trading in children. Therefore, his detention lacked any legal basis under Polish law at the relevant time.   He also complained, relying on Article 5 § 4, that various parts of the proceedings concerning the review of his detention on remand were not adversarial, as neither he nor his lawyer were allowed access to the case-file or to the evidence gathered in the investigations or to the prosecutor's request for the extension of his detention.   Under Article 6 § 1, he complained that the criminal proceedings in his case were not conducted within a reasonable time.   Decision of the Court   Government’s preliminary objections   The Government contended that the applicant’s complaint under Article 5 § 1(c) of the Convention should have been declared inadmissible as domestic remedies had not been exhausted, as required by Article 35 § 1 of the Convention.   The Court recalled its admissibility decision in the present case in which it had considered that the applicant had availed himself of available remedies in order to have the lawfulness of his detention examined by a court, by lodging an appeal against the detention order of 20 September 1994. Further, the Court noted that in order to have the Kraków Court of Appeal examine whether the prolongation of his detention would be justified, the applicant had appealed to that court against the decision of the Kraków Regional Court of 19   December 1994. The Court found no specific reasons to alter this conclusion.   The Government further submitted that the application should have been rejected as it amounted to an abuse of the right of individual application. The Court rejected this submission.   Article 5 § 1 of the Convention   The Court observed that the applicant’s detention on remand had been based on a suspicion that he had been involved in acts qualified under Polish substantive criminal law applicable at the material time as the offence of trading in children, and also on the ground that he had been inciting certain persons to give false evidence in judicial proceedings. The Court noted that the provision relating to the offence of trading in children had never before been applied by the Polish courts. This provision was therefore subject to serious difficulties of interpretation, in particular, regarding the acts which could be deemed to constitute the offence of trading in children.   The Court could not speculate on whether or not decisions of the Polish courts in the period subsequent to the applicant’s release on 11 January 1995 were likely to affect the future ruling in the criminal proceedings against the applicant, which are pending. Moreover, for the assessment of whether the applicant’s detention was in conformity with the requirements of Article 5 § 1(c) of the Convention as regards its lawfulness, the Court had to have regard to the legal situation as it stood at the material time. In the absence of any pertinent case-law, or unanimous legal opinion, the Court observed that the national courts had examined a number of elements which they deemed relevant for the assessment of the lawfulness of his detention.     The Court finally noted that had the applicant’s detention been based solely on the suspicion concerning his alleged involvement in the offence of trading in children, the legality of such detention, taking into account the contradictions existing in the interpretation of the domestic substantive criminal law at the material time, would have been doubtful. However, his detention had also been grounded upon the suspicion that he had committed an offence of inciting certain persons to give false evidence with intent to mislead the courts.   On the whole, the Court concluded that there was nothing to show that the interpretation of the provisions of substantive criminal law relied on by the domestic authorities concerning the applicant’s detention on remand was arbitrary or unreasonable, so as to render his detention unlawful. Consequently, the Court found no violation of Article 5 § 1.   Article 5 § 4 of the Convention   The Court first observed that, under the law on criminal procedure as it stood at the relevant time, detention on remand was imposed by a decision of a public prosecutor and an appeal against a detention order was possible. The law did not entitle either the applicant himself or his lawyer to attend the court session held in proceedings instituted following such an appeal. However, in the instant case, on 4 October 1994, Kraków Regional Court, apparently by way of exception, allowed the applicant’s lawyers to address the court. Afterwards they were ordered to leave the courtroom. It was therefore open for the prosecutor, who remained, to make any further submissions in support of the detention order, while neither the applicant nor his lawyers had an opportunity to formulate objections or comment.   The Court further notes that the applicant was informed of the reasons for suspicion against him in the written grounds of the detention order, issued on 29 September 1994. However, at this stage, the applicant and his counsel did not have access to the case-file.   In these circumstances, the Court held that the proceedings in which the applicant’s appeal against the detention order were examined were not compatible with the procedural requirements of Article 5 § 4. While the proceedings appear to have been conducted “speedily” within the meaning of this provision they did not provide the “fundamental guarantees of procedure applied in matters of deprivation of liberty”. In the absence of such guarantees in these proceedings, it is therefore necessary to consider whether the subsequent proceedings in which the applicant had an opportunity of having the lawfulness of his detention on remand reviewed by a court, were compatible with Article 5 § 4.   Subsequent proceedings concerning the review of the applicant’s continued pre-trial detention were instituted by the request of the Kraków Regional Prosecutor and were held in December 1994 and January 1995. Even assuming that these proceedings satisfied the procedural requirements of Article 5 § 4, given the lapse of time from the date on which the applicant was deprived of liberty, they cannot be said to have led to a decision being taken “speedily”. Consequently, the Court found that there had been a violation of Article 5 § 4.   Article 6 § 1 of the Convention.   The Court considered that the subject matter of the case before the domestic courts had undoubtedly been complex. The Court further held that there was nothing to suggest that the applicant was responsible for prolonging the proceedings.   As regards the conduct of the authorities, the Court observed that the proceedings, which were still pending, had mostly been prolonged as a result of the fact that the evidence had to be taken upon letters rogatory submitted to Italian, French and United States judicial authorities. The process of gathering evidence from Italy and France had been completed by the end of 1995. However, there were significant delays in obtaining evidence requested by letters rogatory from the American authorities. The Court noted that the prosecution took measures in order to expedite the proceedings. However, their efforts were to no avail. The Court concluded that the responsibility for the protracted character of the proceedings could not be ascribed to the Polish authorities. Accordingly, there was no violation of Article 6 § 1.   Article 41 of the Convention   The Court held that it could not speculate as to whether the applicant would have been detained if the procedural guarantees of Article 5 § 4 had been observed in his case. Consequently, the Court considered that the non-pecuniary damage was adequately compensated by the finding of a violation of this provision. The Court found no causal link between the facts in respect of which it found a breach of the Convention and the pecuniary damage for which the applicant sought compensation. The Court accordingly dismissed this claim, but awarded the applicant PLN 2,600 for costs and expenses.   *** 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] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.   [2] Judge elected in respect of Liechtenstein. [3] .     This summary by the Registry does not bind the Court.