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FOURTH
SECTION
CASE OF GĘBURA v. POLAND
(Application
no. 63131/00)
JUDGMENT
STRASBOURG
6
March 2007
FINAL
06/06/2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gębura v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 13 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 63131/00) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Leszek Gębura (“the
applicant”), on 12 May 2000.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged that a delay in releasing him from prison had given
rise to a violation of Article 5.
- On
17 March 2005 the President of the Fourth Section decided to give
notice of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, it was decided to examine the
merits of the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Starachowice.
- The
applicant was serving a prison sentence in Tarnów Mościce
Prison following three separate convictions. The overall term of his
imprisonment was due to come to an end on 6 January 2002.
- Pursuant
to the provisions of the Criminal Code applicable to re-offenders,
the applicant became eligible for conditional release after having
served three-quarters of the overall term of his imprisonment, namely
on 6 January 1999. After that date, the applicant requested a
court on several occasions to grant him conditional release. However,
his requests were denied on grounds of insufficient progress in his
rehabilitation. On 20 March 2000 the prison governor requested
the Tarnów Regional Court (Sąd Okręgowy) to
order the applicant's release (warunkowe przedterminowe
zwolnienie) in view of his satisfactory rehabilitation. The
Tarnów Regional Prosecutor objected to that request.
- On
22 March 2000 the Tarnów Regional Court gave a decision
ordering the applicant's conditional release for a three-year
probationary period. It placed the applicant under the court
officer's supervision and imposed certain other obligations on him.
- The
Tarnów Regional Prosecutor appealed against that decision. The
Regional Court did not amend its decision and transmitted the
prosecutor's appeal to the Cracow Court of Appeal (Sąd
Apelacyjny).
- The
hearing before the Court of Appeal was scheduled for 12 April 2000 at
8.45 a.m. On that day the Cracow Court of Appeal upheld the decision
of the Regional Court. No further appeal lay against the decision of
the Court of Appeal. In the applicant's submission, the Court of
Appeal's decision was delivered at 9 a.m.
- Later
on 12 April 2000, a certified copy of the Court of Appeal's decision
was sent to the Tarnów Regional Court, which received it on
13 April 2000. On the same day the Tarnów Regional Court
ordered the governor of the Tarnów Mościce Prison to
release the applicant and served him with a copy of the Court of
Appeal's decision. The governor received these documents on 14 April
2000.
- According
to the official release certificate, the applicant was released on
14 April 2000. The applicant submitted that he had been released
on that date at 4 p.m.
II. RELEVANT DOMESTIC LAW
A. Relevant constitutional provisions
- Article
41 § 1 of the Polish Constitution provides as follows:
“Inviolability and liberty of the person shall be
afforded to everyone. Any deprivation or limitation of liberty may be
imposed only in accordance with the principles and procedures laid
down by statute.”
B. Conditional release of a person serving a prison
sentence
- Article 77 § 1 of the 1997 Criminal Code reads as
follows:
“The court may conditionally release a person
serving a prison sentence from serving the remainder of that sentence
only when his/her behaviour, characteristics, personal circumstances
and way of life prior to the commission of the offence, the
circumstances in which the offence was committed and his/her
behaviour following the commission of the offence and while serving a
sentence, would justify a conclusion that, following [conditional]
release, the person would abide by the law and, in particular, would
not re-offend.”
Article
78 §§ 1-3 of the Criminal Code prescribes the minimum
prison term, depending on the type of sentence and offender, which
must be served before a convicted person may apply for conditional
release. However, the decision to grant conditional release is left
to the discretion of the court, which must be satisfied that the
conditions laid down in Article 77 § 1 of the Criminal Code
are met.
C. Execution of a decision granting conditional release
- When
conditional release is granted, a convicted person should be released
on completion of the necessary administrative formalities as
specified in the Ordinance (Zarządzenie) of the Minister
of Justice of 27 August 1998 on Administrative Acts concerning
Execution of Pre-Trial Detention and Sentences and Coercive Measures
resulting in Deprivation of Liberty.
Paragraph
3 of that Ordinance states, in so far as relevant:
“All administrative formalities shall be carried
out without delay (niezwłocznie) ... This concern in
particular (...) transmission of information and official
notifications ... and releasing.”
Paragraph
104.2 of the Ordinance provides that the convicted person should be
released upon receipt of a copy of the enforceable decision granting
him or her the conditional release. The release should be effected on
the day of the receipt of the relevant documents by the prison (§
104.3 of the Ordinance).
The
Ordinance does not prescribe any specific time-frame for the
execution of the decisions granting conditional release.
D. The State's liability for torts committed by its
officials
- The
relevant domestic law and practice concerning the State's liability
for torts committed by its officials are set out in paragraphs 34-37
of the Court's judgment in the case of Krasuski v. Poland, no.
61444/00, ECHR 2005–V (extracts).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained about a delay of over 48 hours in his release
from prison following the final decision granting him conditional
release given by the Court of Appeal in the morning of 12 April 2000.
He relied on Article 5 of the Convention, which reads, in its
relevant part, 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:
(a) the lawful detention of a person after
conviction by a competent court;
...”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The arguments of the parties
- The
applicant submitted that on 12 April 2000 at 9 a.m. the Cracow Court
of Appeal had upheld the Regional Court's decision granting him
conditional release. The applicant argued that he should have been
released on the same day, given that the distance between Cracow and
Tarnów was only about 100 km. Nevertheless, he had been
released from prison only on 14 April 2000 at 4 p.m.
- The
Government submitted that the Convention permitted deprivation of
liberty only in those cases which were enumerated in Article 5 and
only in accordance with a procedure prescribed by law. Article 5 §
1 (a) of the Convention provided for the lawful detention of a
person after conviction by a competent court. This category of
permissible detention concerned any prisoner serving a sentence where
“the lawful detention” was based on “conviction by
a competent court”. This normally referred to a prison
sentence, although that was not specifically indicated in the text.
The Government further observed that the execution of a prison
sentence was, as a rule, dependent on a further decision which was
not a matter for the courts but for the prosecution or prison
authorities. The actual order to serve the sentence might not
therefore emanate from a “competent court” but the
detention would still be lawful under Article 5 § 1 (a). This
would be so even where a prisoner's conditional release was revoked
for a breach of the conditions, entailing re-imprisonment for the
remaining term.
- The
Government submitted that in the present case the applicant had been
serving a prison sentence in Tarnów Mościce Prison
following three separate convictions. The overall term of his
imprisonment was due to come to an end on 6 January 2002. Thus, the
Government maintained that his detention had been lawful in that it
was based on a conviction by a competent court.
- The
Government further argued that the applicant had been released as
soon as the decision on his conditional release had been served on
the prison governor. Having regard to the foregoing, they maintained
that his detention between 12 April 2000 and 14 April 2000 had been
lawful under the Convention and in conformity with the applicable
domestic law, in particular the Ordinance of the Minister of Justice
of 27 August 1998 on Administrative Acts concerning Execution of
Pre-Trial Detention and Sentences and Coercive Measures resulting in
Deprivation of Liberty.
- Finally,
the Government noted that the applicant could have lodged a
compensation claim against the State Treasury under Article 417 of
the Civil Code if he had considered that he had been unlawfully
deprived of his liberty between 12 and 14 April 2000.
2. The Court's assessment
- The
Court recalls that Article 5 of the Convention guarantees the
fundamental right to liberty and security. That right is of primary
importance in a “democratic society” within the meaning
of the Convention (see De Wilde, Ooms and Versyp v. Belgium,
judgment of 18 June 1971, Series A no. 12, p. 36, §
65, and Winterwerp v. the Netherlands, judgment of 24 October
1979, Series A no. 33, p. 16, § 37). Its key purpose is to
prevent arbitrary or unjustified deprivations of liberty (see McKay
v. the United Kingdom [GC], no. 543/03, § 30,
ECHR 2006 ...).
26. All
persons are entitled to the protection of that right, that is to say,
not to be deprived, or to continue to be deprived, of their liberty
(see Weeks v. the United Kingdom, judgment of 2 March
1987, Series A no. 114, p. 22, § 40), save in
accordance with the conditions specified in paragraph 1 of Article 5.
The list of exceptions set out in Article 5 § 1 is an exhaustive
one and only a narrow interpretation of those exceptions is
consistent with the aim of that provision, namely to ensure that no
one is arbitrarily deprived of his or her liberty (see Amuur v.
France, judgment of 25 June 1996, Reports of Judgments
and Decisions 1996-III, p. 848, § 42; Labita v. Italy
[GC], no. 26772/95, § 170, ECHR 2000-IV; and Assanidze
v. Georgia [GC], no. 71503/01, § 170, ECHR
2004 II).
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and enshrine the obligation
to conform to substantive and procedural rules thereof. Although
it is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, under Article 5 § 1
failure to comply with domestic law entails a breach of the
Convention and the Court can and should review whether this law has
been complied with (see, among many other authorities,
Benham v. the United Kingdom, judgment of
10 June 1996, Reports 1996 III, p. 753, § 41,
and Assanidze v.
Georgia, cited above, § 171).
- However,
the “lawfulness” of detention under domestic law is the
primary but not always the decisive element. The Court must in
addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1,
which is to prevent persons from being deprived of their liberty in
an arbitrary fashion. The Court must moreover ascertain whether
domestic law itself is in conformity with the Convention, including
the general principles expressed or implied therein (see, among many
other authorities, Winterwerp, cited above, pp. 19-20, § 45,
and Baranowski v. Poland, no. 28358/95, § 51, ECHR
2000 III).
- On
this last point, the Court stresses that where deprivation of liberty
is concerned it is particularly important that the general principle
of legal certainty be satisfied. It is therefore essential that the
conditions for deprivation of liberty under domestic law be clearly
defined and that the law itself be foreseeable in its application, so
that it meets the standard of “lawfulness” set by the
Convention, a standard which requires that all law be sufficiently
precise to allow the person – if need be, with appropriate
advice – to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail (see
Steel and Others v. the United Kingdom, judgment of 23
September 1998, Reports 1998-VII, p. 2735, § 54).
- In
the instant case, the applicant was serving a prison sentence and
became eligible for conditional release on 6 January 1999. On
22 March 2000 the Tarnów Regional Court gave a decision
granting the applicant conditional release for a three-year
probationary period. That decision was upheld by the Cracow Court of
Appeal on 12 April 2000. In the applicant's account, which was not
contested by the Government, the Court of Appeal's decision was
delivered on 12 April at 9 a.m.
- As
regards the characteristics of conditional release under Polish law
as it stood at the material time, the Court notes that the applicant
had had a right to apply for conditional release after having served
the statutory minimum term of his prison sentence. It is true that
the granting of conditional release is left to the court's
discretion. However, once conditional release had been granted, the
applicant had the right to be released without delay, as provided for
in the Ordinance of the Minister of Justice of 27 August 1998 and on
completion of the necessary formalities.
- The
Government argued that, despite the Court of Appeal's final decision
of 12 April 2000, the applicant's continued detention until his
release on 14 April 2000 remained justified under Article 5 § 1
(a) as constituting “the lawful detention of a person after
conviction by a competent court”. The Court does not accept
that proposition. It is true that the Convention does not guarantee a
right to have a penalty imposed by a court in criminal proceedings
suspended for a probationary period (see X v. Switzerland,
no. 7648/76, Commission decision of 6 December 1977, Decisions and
Reports 11, p. 190). However, in so far as the domestic law provided
for such a right and once the conditional release had been granted,
the applicant had a right to be released. Consequently, his continued
detention following the final decision on his conditional release
cannot be considered “lawful” under Article 5 § 1
(a). That finding is not affected by the possibility of a revocation
of conditional release in cases where a person has failed to comply
with the relevant conditions or committed a new offence, provided
that there is a sufficient connection between his conviction and a
recall to prison (see Stafford v. the United Kingdom [GC],
no. 46295/99, § 81, ECHR 2002 IV).
- The
Government next argued that the applicant had been released as soon
as the decision on his conditional release was served on the governor
of Tarnów Mościce Prison. The applicant's release had
been effected in accordance with the Ordinance of the Minister of
Justice of 27 August 1998, under which the release of a
convicted person depended on the receipt of a certified copy of the
enforceable decision granting him or her conditional release.
- In
this connection the Court observes that although the applicant's
continued detention, following the final decision of the Court of
Appeal on his conditional release, ceased to be justified, he could
not have expected to be released immediately. The Court reiterates
that some delay in implementing a decision to release a detainee is
understandable and often inevitable in view of practical
considerations relating to the running of the courts and the
observance of particular formalities. However, the national
authorities must attempt to keep it to a minimum (Quinn
v. France, judgment of 22 March 1995, Series A no. 311, p.
17, § 42; Giulia Manzoni v. Italy, judgment of
1 July 1997, Reports 1997 IV, p. 1191, § 25 in
fine; K. F. v. Germany, judgment of 27 November 1997,
Reports 1997 VII, p. 2675, § 71; and
Mancini v. Italy, no. 44955/98, § 24, ECHR 2001 IX).
The Court reiterates that administrative formalities connected with
release cannot justify a delay of more than several hours (Labita,
cited above, and Nikolov v. Bulgaria, no.
38884/97, § 82, 30 January 2003).
- The
Court notes that the Ordinance of the Minister of Justice of
27 August 1998 invoked by the Government sets out in paragraph 3
a general principle that all administrative formalities had to be
carried out without delay, in particular those concerning
transmission of information and official notifications and related to
the release of a detainee (see relevant domestic law). It further
observes that the Court of Appeal dispatched a certified copy of its
decision on 12 April 2000. That copy was received by the Tarnów
Regional Court on 13 April 2000. On the same day the Regional Court
transmitted the decision to the prison and directed the applicant's
release. Those documents were received by the prison administration
on 14 April 2000. The Court observes that the Government have
not explained what means were used for the dispatch of the relevant
decision and whether the dispatch was effected without delay.
Moreover, the Government did not present a detailed account of the
relevant events, from the time of the delivery of the decision by the
Court of Appeal until the precise moment of the applicant's release.
In this connection, the Court reiterates that it must scrutinise
complaints of delays in the release of detainees with particular
vigilance (Nikolov, cited above, § 80). According to the
applicant, the Court of Appeal's decision was given on 12 April 2000
at 9 a.m. and he was released only on 14 April 2000 at 4 p.m.
Consequently, the delay between the delivery of the Court of Appeal's
decision and the applicant's release exceeded 48 hours. In the
Court's view the administrative formalities related to the
applicant's release could and should have been carried out more
swiftly. In this regard, the Court observes that the paramount
importance of the right to liberty imposes on the authorities a duty
to do away with organisational shortcomings attributable to the State
which may occasion unjustified deprivation of liberty.
- As
regards the Government's submission related to the possibility of
bringing an action in tort against the State Treasury, the Court
first observes that the Government did not raise that argument in
their preliminary objections. Neither did they provide any relevant
examples from the practice of the domestic courts. In any event, the
Court observes that the relevant provisions of the Civil Code
(Articles 417 et seq.), as applicable before 1 September 2004,
provided for a restrictive regime as regards the State's tortious
liability. That regime was significantly altered only from
1 September 2004, following the entry into force of the Law of
17 June 2004 on amendments to the Civil Code and other statutes.
The relevant amendments were aimed in essence at enlarging the scope
of the State's liability in tort. Having regard to the foregoing, the
Court does not accept the Government's assertion.
- In
conclusion, the Court considers that it cannot be said that the
relevant authorities attempted to keep to a minimum the delay
in implementing the decision to release the applicant as required by
the relevant case-law. There has accordingly been a
violation of Article 5 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further complained that the delay in his release from
prison had given rise to a violation of his right to respect for his
private and family life in breach of Article 8 of the Convention.
- However,
the Court notes that the principal issue in the present case concerns
the complaint under Article 5 § 1 of the Convention and that no
substantiated separate issue arises in respect of Article 8.
It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 Polish zlotys in respect of non-pecuniary
damage caused by the delay in releasing him from prison.
- The
Government contested the amount claimed as exorbitant. They proposed
that if the Court were to find a violation of Article 5 § 1, it
should award the applicant EUR 1,000.
- The
Court notes that it has found a violation of Article 5 § 1 on
account of the delay in the applicant's release following the final
decision on his conditional release. It considers that this delay
must have caused the applicant frustration and anxiety. Having regard
to the foregoing and deciding on an equitable basis, the Court awards
the applicant EUR 1,500 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant submitted no claim in respect of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the delay in
releasing the applicant admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 March 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
