LADENT v. POLAND - 11036/03 [2008] ECHR 211 (18 March 2008)

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    Cite as: [2008] ECHR 211

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    FOURTH SECTION







    CASE OF LADENT v. POLAND


    (Application no. 11036/03)













    JUDGMENT



    STRASBOURG


    18 March 2008



    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 Ladent v. Poland,

    The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

    Nicolas Bratza, President,
     Lech Garlicki,
     Stanislav Pavlovschi,
     Ljiljana Mijović,
     David Thór Björgvinsson,
     Ján Šikuta,
     Päivi Hirvelä, judges,
    and Lawrence Early, Section Registrar,

    Having deliberated in private on 26 February 2008,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

  1. The case originated in an application (no. 11036/03) 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 French national, Mr Franck Ladent (“the applicant”), on 24 February 2003.

  2. The applicant, who had been granted legal aid, was represented by Mr L. Hincker, a lawyer practising in Strasbourg. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

  3. The applicant alleged, in particular, that he had been deprived of his liberty in breach of Article 5 § 1 of the Convention.

  4. On 4 July 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

  5. The French Government were invited to intervene in the proceedings (Article 36 § 1 of the Convention). However, by a letter of 10 October 2006, they informed the Registry that they did not wish to exercise their right to intervene.

    6. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  6. The applicant was born in 1972 and lives in Ferney-Voltaire, France.

  7. On an unspecified date the applicant arrived in Poland. He married K.P., a Polish national, on 15 March 2001. They initially lived in Kraków, but on 3 July 2001 they moved to France. Their two children were born in September 2001 and October 2002 respectively. The applicant is an artist and runs a small business in France which provides the only support for the family.

  8. On 21 March 2001 a certain B.M., an administrator of the building in which the applicant’s wife had a flat, brought a private prosecution against the applicant for slander (zniewaga) under Article 216 § 1 of the Criminal Code. He alleged that the applicant had addressed him using some obscene words in Polish. Subsequently, the private prosecution proceedings were commenced in the Kraków–Śródmieście District Court.

  9. It appears that following the applicant’s departure for France the court sent him summonses in connection with the private prosecution proceedings against him, which remained unanswered.

  10. On 15 July 2002 the Kraków–Śródmieście District Court ordered that the applicant be remanded in custody for a period of three months. It further ordered that a wanted notice (list gończy) be issued with a view to locating and detaining him. It invoked, inter alia, Articles 258 § 1(1) and 259 § 4 of the Code of Criminal Procedure (hereinafter: “the CCP”).

    11. The District Court held as follows:

    “The accused Franck Ladent has no permanent abode in Poland, [and] does not reside in any place known to the court, and is thus obstructing the proper conduct of the proceedings in the present case and the delivery of a proper judgment within a reasonable time. The need to issue a detention order in respect of the accused is required to secure the proper conduct of the proceedings.

    Given the fact that the accused Franck Ladent is evading justice he should be sought by means of a wanted notice.”

    The court ordered the police to execute that decision and to serve on the applicant a copy of it immediately after his arrest, informing him that he could appeal against it. The information that the applicant was being sought by a wanted notice was subsequently entered in a central criminal register.

  11. On 8 October 2002 the District Court stayed the proceedings against the applicant on the ground that his abode was unknown.

  12. At the end of 2002 the applicant and his family spent a holiday in Kraków. On 3 January 2003 they were travelling by car back to France. They arrived at the Słubice border check-point at some unspecified time in the evening of 3 January 2003. During a routine passport check the applicant was asked to leave his car by the border guard officers.

  13. The applicant was arrested at 8.15 p.m. on the basis of the detention order and the wanted notice issued on 15 July 2002. He was questioned by the officers but he could not understand anything they said and refused to sign any documents. The applicant submitted that his various requests made through his wife, such as to enable him to contact the French Embassy or his family and to provide him with an interpreter or a lawyer, were in vain. After about 2 hours the applicant was informed that he was being arrested but was not told the reasons therefor. The applicant was detained at the Słubice Border Guard detention centre.

  14. While the applicant was being questioned his wife and their two children aged 3 and 16 months at the time had to stay in the car with the engine on given that the temperature was minus 10 degrees Celsius.

  15. On 6 January 2003 the applicant’s wife appointed a counsel for the applicant.

  16. On 7 January 2003 the Director of the Międzyrzecz Detention Centre notified the Kraków–Śródmieście District Court that the applicant had been transferred there and had been detained on the basis of the detention order of 15 July 2002.

  17. On 9 January 2003 the applicant’s counsel filed with the Kraków–Śródmieście District Court an application for release and requested that the applicant’s detention be replaced by other, more lenient, preventive measures. She also appealed against the detention order issued on 15 July 2002.

  18. She submitted that the applicant was a French national who permanently resided in France, and that he and his wife had left Poland on 3 July 2001. Further, she submitted that following the applicant’s departure the District Court had sent summonses for the applicant to his wife’s address and to another address where the applicant had never lived. Thus, the counsel argued that the applicant had not known about the criminal proceedings against him and had not been served with the private bill of indictment. Nor was he informed of his rights and obligations as an accused.

  19. The counsel further submitted that the District Court had erroneously considered that there had been a reasonable suspicion that the applicant had slandered B.M. The counsel also submitted that in respect of the offence allegedly committed by the applicant, he was only liable to a fine or a penalty of restriction of liberty (e.g. a community service order). Lastly, the counsel referred to the very difficult situation of the applicant’s family, which was entirely dependent on the applicant.

  20. On 10 January 2003 the Kraków–Śródmieście District Court resumed the private prosecution proceedings against the applicant, noting that his abode had been established. On the same date the District Court quashed the detention order of 15 July 2002 and replaced it with a ban on leaving the country and ordered the applicant to surrender his passport.

    21. The District Court held as follows:

    “The accused Franck Ladent was detained on remand on the basis of a detention order issued by this court. Counsel for the accused requested the court to replace the preventive measure imposed on him with a non-custodial one. Counsel in her application argued that the evidence obtained in the case had not sufficiently justified the reasonable suspicion that the applicant had committed slander; in addition, counsel submitted that the applicant had not been evading justice and that his failure to appear before the court had not been intentional.

    The court has considered the arguments raised by counsel compelling.

    In these circumstances, in the court’s view the detention on remand should be replaced with other measures, namely a ban on leaving the country together with seizure of his passport. That measure will adequately secure the proper conduct of the proceedings (...)”.

  21. The court further ordered that the private bill of indictment, the decision to release the applicant and the summons to appear before the court be translated into French and served on the applicant. It also ordered that a copy of its decision be served on the Międzyrzecz Detention Centre’s director together with an order to release the applicant.

  22. On 10 January 2003 (Friday) the District Court’s clerk sent by facsimile the court order to release the applicant to the Międzyrzecz Detention Centre. However, the Detention Centre refused to accept the facsimile and informed the court’s registry that it required original documents before releasing the applicant. Consequently, on the same day the District Court ordered the dispatch of the relevant documents by courier post.

  23. The applicant was released from detention in the morning of 13 January 2003 (Monday). On release he received copies of the three documents translated into French. The applicant submitted that he had only learnt then for the first time that he had been accused by B.M. of having slandered him.

  24. On an unspecified date the applicant’s counsel requested the District Court to lift the preventive measures imposed on the applicant pursuant to the decision of 10 January 2003 and to replace them with a guarantee of the applicant’s appearance given by the President of the Franco-Polish Friendship Society.

  25. On 17 January 2003 the Kraków–Śródmieście District Court granted that application. It considered that it was justified to quash the preventive measures given that the applicant ran his own business in France and supported his family exclusively from the proceeds of that business. It further considered that the guarantee offered would secure the applicant’s appearance and the proper conduct of the proceedings.

  26. It appears that the applicant and his family returned to France on 27 January 2003.

  27. On 7 February 2003 a local MP from Kraków, Mr Z. Wassermann wrote a letter to the President of the Kraków Court of Appeal requesting explanations for the applicant’s arrest and detention.

  28. In a letter dated 28 February 2003, the President of the Court of Appeal informed the MP that the applicant’s case had been thoroughly considered and had been placed under the Vice-President of the Kraków Regional Court’s administrative supervision. The President stated that the principal error committed by the District Court in respect of the applicant’s detention order was the unfounded assumption that the applicant had been evading justice and maliciously failing to comply with the court summons in a case in which he had not been previously heard and in which he had not been notified of his obligations as an accused pursuant to Article 75 of the CCP, nor served with a private bill of indictment (Article 139 § 2 of the CCP). The President further noted that the court’s order to remand the applicant in custody and to issue a wanted notice was based on that erroneous premise. Lastly, he stated that the lessons to be drawn from the applicant’s case would be used for training purposes.

  29. On 21 March 2003 the MP transmitted a copy of the President of the Court of Appeal’s reply to the applicant’s wife. He advised the applicant and his wife that they could seek to institute disciplinary proceedings against the judge who had issued the detention order and to institute criminal proceedings for abuse of power. Furthermore, he advised them that they could seek compensation in a civil court.

  30. On 5 October 2004 the Kraków–Śródmieście District Court delivered judgment and acquitted the applicant. On 10 January 2005 the Kraków Regional Court upheld the first-instance judgment.

    31. II.  RELEVANT DOMESTIC LAW

    A.  Provisions concerning arrest

    Article 244 of the Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, stipulates that everyone who is arrested shall be immediately informed of the reasons for his arrest and of his rights.

    Article 246 provides that everyone who is arrested shall be entitled to lodge an appeal with a court against the lawfulness of the arrest and the manner of its execution. Such an appeal shall be promptly transmitted to the competent District Court which shall speedily examine it. In cases where the District Court has established that the arrest was unlawful or unwarranted, it shall order the immediate release of the person concerned.

    B.  Provisions concerning detention on remand

    The Code of Criminal Procedure defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór

    policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).

    Article 249 § 1 sets out the general grounds for imposition of preventive measures. That provision reads:

    “1.  Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”

    Article 258 lists grounds for detention on remand. It provides, in so far as relevant:

    “1.  Detention on remand may be imposed if:

    (1)  there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];

    (2)  there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;

    2.  If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”

    The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:

    “1.  Detention on remand shall not be imposed if another preventive measure is sufficient.”

    Article 259 § 1 reads:

    “1.  If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:

    (1)  seriously jeopardise his life or health; or

    (2)  entail excessively harsh consequences for the accused or his family.”

    Article 259 § 3 provides:

    “Detention on remand shall not be imposed if an offence attracts a penalty of imprisonment not exceeding one year.”

    Article 259 § 4 specifies that the rule provided for in Article 259 § 3 is not applicable when the accused is attempting to evade justice, when he persistently fails to comply with summonses or when his identity cannot be established.

    C.  Obligations of the accused

    Article 75 of the CCP provides, in the version applicable at the relevant time, that an accused who is not deprived of his liberty shall appear each time he receives a summons in the course of criminal proceedings. He shall also inform the relevant authority conducting the proceedings of any change of his abode or stay lasting longer than 7 days. The accused shall be informed of those obligations during his first questioning.

    D.  Compensation for unjustified detention

    Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him.

    Article 552 provides, in so far as relevant:

    “1.  An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.

    ...

    4. Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly unjustified arrest or detention on remand.”

    Pursuant to Article 555, an application for compensation for manifestly unjustified detention on remand has to be lodged within one year from the date on which the decision terminating the criminal proceedings in question becomes final.

    Proceedings relating to an application under Article 552 are subsequent to and independent of the original criminal proceedings in which the detention has been ordered. The claimant can retrospectively seek a ruling as to whether his detention has been justified. He cannot, however, test the lawfulness of his continuing detention on remand and obtain release.

    THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION AS REGARDS THE APPLICANT’S DEPRIVATION OF LIBERTY BETWEEN 3 JANUARY 2003 AND 10 JANUARY 2003

  31. The applicant complained, invoking Articles 5 § 3 and 7 of the Convention, that he had been deprived of his liberty on the basis of the invalid detention order issued in the course of private prosecution proceedings against him. He averred that he had never received any summonses or other notification of those proceedings, either while living in Poland or later.

    32. The Court considers that this complaint falls to be examined under Article 5 § 1 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:

    (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 ...”

    A.  Admissibility

    1. Exhaustion of domestic remedies

  32. The Government acknowledged that the applicant had exhausted all the remedies available under Polish law.

    33. 2. Objection concerning the lack of “victim status”

  33. The Government argued that the applicant could no longer claim to be a victim of the alleged violation of Article 5 § 1 of the Convention. They relied on the President of the Kraków Court of Appeal’s letter of 28 February 2003 sent in response to a query by a local MP in which the President had admitted that the applicant’s detention had been unjustified and based on erroneous procedural assumptions. Subsequently, the local MP sent a letter to the applicant’s wife and informed her that the applicant could file a claim for damages in respect of his unjustified detention.

  34. Having regard to the above, the Government submitted that the domestic authorities had acknowledged a violation of Article 5 § 1 of the Convention in the case and had been ready to afford redress for that breach (Amuur v. France, judgment of 25 June 1996, Reports 1996 III, p. 846, § 36; and Zarb v. Malta, no. 16631/04, § 24, 4 July 2006). They underlined that the applicant had had a real opportunity to obtain redress at the domestic level by claiming damages in respect of his unjustified detention under Article 552 of the CCP.

  35. The applicant disagreed. He submitted that the President of the Kraków Court of Appeal had recognised that errors had been committed by the judge who had issued the detention order. However, that statement was made informally in a letter addressed to a local MP. The applicant argued that the implicit admission of a violation of Article 5 of the Convention by the President of the Kraków Court of Appeal and the fact that he could seek damages on account of his unjustified detention had not deprived him of “victim status”.

  36. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, Amuur v. France, cited above and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 VI).

  37. In the present case the Court notes that in his letter addressed to a local MP who had requested explanations about the applicant’s case, the President of the Court of Appeal informed him about a number of procedural errors committed by the court which led it to issue the detention order and the wanted notice. However, the President’s opinion was not addressed to the applicant and had no practical consequences for him. The Court therefore finds that the letter at issue cannot be considered as a decision or measure favourable to the applicant.

  38. Even assuming that the letter amounted to an acknowledgment of the unlawfulness of the applicant’s deprivation of liberty between 3 January 2003 and 10 January 2003, the Court considers that the second condition – provision of adequate redress – has not been fulfilled. The President of the Court of Appeal’s letter was silent on the question of redress to be afforded to the applicant.

  39. The Government, nevertheless, argued that the applicant could obtain redress by filing a claim for damages in respect of his unjustified detention under Article 552 of the CCP. However, in the earlier part of their observations they admitted that the applicant had exhausted all remedies available under Polish law. The Court cannot but note the contradictory character of the Government’s pleadings in this respect. Moreover, their observations are very brief and provide no examples from national case-law on the effectiveness of the Article 552 remedy in circumstances such as those in the instant case. Consequently, the Court does not consider that the Government have discharged the burden upon them of proving the effectiveness and availability to the applicant of the remedy invoked (see, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999 V).

  40. Having regard to the foregoing, the Court finds that the applicant can still claim to be “victim” of a breach of Article 5 § 1 of the Convention as regards deprivation of his liberty between 3 January 2003 and 10 January 2003.

  41. Accordingly, the Government’s objection concerning the lack of “victim status” should be dismissed.

    42. 2.  Other grounds for declaring this complaint inadmissible

  42. 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.

    43. B.  Merits

    1.  The parties’ submissions

  43. The applicant argued that he had never received any official notification of the private prosecution proceedings brought against him. Accordingly, he could not be blamed for allegedly attempting to obstruct those proceedings as he had not been aware of them.

  44. The Government restated that the judicial authorities had already admitted that the applicant’s detention had been based on unfounded assumptions. Having regard to the above, the Government refrained from expressing their position on the alleged violation of Article 5 § 1 of the Convention.

    45. 2.  The Court’s assessment

  45. 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 ...).

    46. 46.  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 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).

  46. 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). A period of detention is, in principle, “lawful” if it is based on a court order. Even flaws in the detention order do not necessarily render the underlying period of detention unlawful within the meaning of Article 5 § 1 (see, Benham, cited above, pp. 753-54, §§ 42-47; and Ječius v. Lithuania, no. 34578/97, § 68, ECHR 2000 IX).

  47. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above § 37; Amuur, cited above, § 50; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000 III). It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see, Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008 ... ).

  48. In the instant case, the Court will first consider whether the applicant’s detention was “lawful” and effected “in accordance with a procedure prescribed by law” as required under Article 5 § 1 of the Convention. It notes that on 21 March 2001 a private prosecution was brought against the applicant for slander. That offence was punishable by a fine or a penalty of restriction of liberty (e.g. a community service order). The applicant left Poland on 3 July 2001 and had no knowledge of the private prosecution proceedings which had in the meantime been instituted against him before the Kraków–Śródmieście District Court. Subsequently, the District Court attempted to serve summonses on him in connection with the proceedings, but to no avail. On 15 July 2002 the District Court ordered that the applicant be remanded in custody on the ground that he had no permanent abode in Poland and that he had obstructed the proceedings by maliciously failing to act upon the court summonses. It further issued a wanted notice for the applicant. On 3 January 2003, while crossing the Polish border, the applicant was arrested and detained on the basis of the order issued on 15 July 2002.

  49. The Court further observes that on 10 January 2003 the Kraków–Śródmieście District Court quashed the detention order of 15 July 2002 and replaced it with non-custodial preventive measures. In the reasons for its decision, the court agreed with the submissions of the applicant’s counsel that the applicant had not been evading justice and that his failure to appear in response to the summonses had not been intentional. Thus, it would appear that the District Court implied that its detention order of 15 July 2002 had been flawed on that account.

  50. Furthermore, the Court attaches considerable importance to the findings of the President of the Kraków Court of Appeal in his letter of 28 February 2003. The President of the Court of Appeal expressly stated that the District Court which had issued the detention order and wanted notice in question had committed an error by having assumed that the applicant had been evading justice and had persistently failed to comply with summonses. The President of the Court of Appeal noted that the District Court had breached provisions of the Code of Criminal Procedure. In particular, the District Court had found that the applicant had been evading justice even though he had not been served with a private bill of indictment as required by Article 139 § 2 of the CCP in its version applicable at the material time. Furthermore, the applicant had not been heard and had not been instructed about his obligations as an accused pursuant to Article 75 of the CCP.

  51. The Court also notes that the Government conceded that the Kraków–Śródmieście District Court had erred in finding that the applicant had been evading justice.

  52. Against the above background, the Court considers that the Kraków–Śródmieście District Court when issuing the order for the applicant’s detention failed to apply the relevant domestic legislation correctly (Articles 258 § 1(1) and 259 § 4 of the CCP) by having erroneously found that the applicant had been obstructing the proceedings and evading justice when he had not been duly notified of the proceedings against him. Having regard to the nature of the flaws in the detention order, the Court finds that the applicant’s detention failed to comply with “a procedure prescribed by law”.

  53. While the above finding is sufficient to conclude that there has been a breach of Article 5 § 1 of the Convention in this case, the Court nevertheless considers it useful to examine whether the applicant’s detention was also free from arbitrariness. As regards the issue of arbitrariness, the Court recalls that the relevant principles were recently restated in the case of Saadi v. the United Kingdom (cited above, §§ 67-72). In that case the Grand Chamber held that the notion of arbitrariness in the context of Article 5 varied to a certain extent depending on the type of detention involved. In the context of sub-paragraphs (b), (d) and (e) the notion of arbitrariness also includes an assessment of whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (see Witold Litwa, cited above, § 78; Hilda Hafsteinsdóttir v. Iceland, no. 40905/98, § 51, 8 June 2004 and Enhorn v. Sweden, no. 56529/00, § 44, ECHR 2005 I).

  54. For the Court, detention pursuant to Article 5 § 1 (c) must equally embody a proportionality requirement. It will be recalled that in the case of Ambruszkiewicz v. Poland (no. 38797/03, §§ 29-32, 4 May 2006) the Court applied a proportionality test to detention falling under Article 5 § 1 (c) of the Convention when considering whether the applicant’s detention on remand was strictly necessary to ensure his presence at the trial and whether other, less stringent, measures could have been sufficient for that purpose. A similar test is applied by the Court in the related Article 5 § 3 context of pre-trial detention when examining the relevance and sufficiency of the reasons given by the domestic authorities for maintaining pre-trial detention (see, Kudła v. Poland [GC], no. 30210/96, §§ 110-111, ECHR 2000 XI and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-45, ECHR 2006 ...).

  55. In the present case the Court observes that the applicant was not duly notified of the private prosecution proceedings against him; yet the Kraków–Śródmieście District Court decided to penalise him for allegedly evading justice in circumstances where the applicant was unaware of the proceedings against him. The Court is also troubled by the District Court’s conclusion that since the applicant did not have a permanent abode in Poland he was considered to be evading justice. Furthermore, the court ordered the applicant’s detention in a trivial private prosecution case concerning the alleged slander of a building administrator, which offence carried a penalty of a fine or restriction of liberty (i.e. a community service order). It is true that the court was empowered under Article 259 § 4 of the CCP to impose such a measure in respect of offences which carried a penalty of less than one year’s imprisonment, but under the proviso that the court established the existence of other circumstances, for example that the accused was evading justice. However, in the present case the District Court’s finding in the latter respect was manifestly without foundation. Furthermore, as stated above, the domestic authorities should always consider the application of other, less stringent, measures than detention. In the instant case the Kraków–Śródmieście District Court did not appear to give consideration to any preventive measures other than detention. Thus, the Court finds that the detention order imposed on the applicant in these circumstances could not be considered a proportionate measure to achieve the stated aim of securing the proper conduct of criminal proceedings, having regard in particular to the petty nature of the offence which he had been alleged to commit (see, mutatis mutandis, Ambruszkiewicz, cited above, § 32).

  56. In conclusion, the Court finds that the applicant’s detention was not free from arbitrariness.

  57. Having regard to the foregoing, the Court finds that the applicant’s detention ensuing from the detention order of 15 July 2002 cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. There has accordingly been a violation of this provision in respect of the applicant’s deprivation of liberty between 3 January 2003 and 10 January 2003.

    58. II.  ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION

  58. The applicant complained, relying on Articles 5 § 2 and 6 § 3 (a) of the Convention, that until his release on 13 January 2003 he had not been informed in a language which he understood of the reasons for his arrest. The Court considers that this complaint falls to be examined under Article 5 § 2 of the Convention. This provision reads as follows:

    59. “2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

    A.  Admissibility

  59. 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.

    60. B.  Merits

    1.  The parties’ submissions

  60. The applicant argued that during his detention he had not been informed of the reasons for it in a language which he understood and had not been provided with an interpreter. He maintained that he did not understand Polish.

  61. The Government submitted that the applicant had been served with the French translation of the bill of indictment against him and other relevant documents only upon his release on 13 January 2003. They maintained that upon his arrest he had been informed about the detention order and wanted notice issued against him and the fact that there had been criminal proceedings pending against him before the Kraków–Śródmieście District Court. That information had most probably been given to the applicant in Polish. They could provide no further details concerning the applicant’s arrest in the absence of documents in the file. Having regard to the above, the Government refrained from stating their position on the alleged violation of Article 5 § 2 of the Convention in the instant case.

    62. 2.  The Court’s assessment

  62. The Court recalls that paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly” (in French: “dans le plus court délai”), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, mutatis mutandis, Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 31, § 72; and Čonka v. Belgium, no. 51564/99, § 50, ECHR 2002 I).

  63. In the present case, it appears that the applicant, a French national, upon his arrest was informed about the reasons for it and the charges against him in Polish. The Court observes that the applicant claimed that during his arrest and 10-day detention he was not informed in a language which he understood why he was deprived of his liberty. The Government did not contest those arguments. Nor did they claim that the relevant information was provided to the applicant promptly. Furthermore, the Kraków–Śródmieście District Court which decided to release the applicant on 10 January 2003 ordered that the private bill of indictment and other documents be translated into French and served on the applicant upon his release from detention. That circumstance indicates that the authorities were aware that the applicant did not understand Polish.

  64. Having regard to the foregoing the Court finds it established that the applicant was not informed promptly and in a language which he understood of the reasons for his arrest and the charges against him until his release on 13 January 2003.

  65. There has been accordingly a violation of Article 5 § 2 of the Convention on that account.

    66. III.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

  66. The applicant challenged the validity of the detention order of 15 July 2002 under Article 5 § 3 of the Convention. He further alleged that his requests to be put in contact with an interpreter, a lawyer or the French Embassy had been refused. He also complained, invoking Article 5 § 4 of the Convention, that during his 10-day detention he had not been allowed to meet the detention centre’s director or to contact his wife with a view to arranging his defence.

    67. The Court considers that the essence of the applicant’s complaint concerns the lack of automatic judicial review of his detention and therefore should be examined under Article 5 § 3 of the Convention. This provision provides, in so far as relevant:

    “3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...”

    A.  Admissibility

  67. 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.

    68. B.  Merits

    1.  The parties’ submissions

  68. The applicant submitted that following his arrest on 3 January 2003 he had not been brought before a judge as required under Article 5 § 3 of the Convention.

  69. The Government admitted that the applicant had been released on 13 January 2003 without having been personally heard by the court. However, the applicant’s interests in the proceedings regarding his detention had been duly represented by his counsel appointed by his wife. Counsel had been present at the hearing before the Kraków-Śródmieście District Court which had ordered the applicant’s release on 10 January 2003. Having regard to the above, the Government refrained from stating their position on the alleged breach of Article 5 § 3 in the present case.

    70. 2.  The Court’s assessment

  70. The Court reiterates that Article 5 § 3 is structurally concerned with two separate matters: the early stages following an arrest when an individual is taken into the power of the authorities and the period pending eventual trial before a criminal court during which the suspect may be detained or released with or without conditions. These two limbs confer distinct rights and are not on their face logically or temporally linked (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999 and McKay, cited above, § 31).

  71. Turning to the initial stage under the first limb, the Court’s case-law establishes that there must be protection of an individual arrested or detained on suspicion of having committed a criminal offence through judicial control. Such control serves to provide effective safeguards against the risk of ill-treatment, which is at its greatest in this early stage of detention, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures. The judicial control must satisfy the requirements of promptness and be automatic (see, McKay, cited above, § 32).

  72. The judicial control on the first appearance of an arrested individual must above all be prompt, to allow detection of any ill-treatment and to keep to a minimum any unjustified interference with individual liberty. The strict time constraint imposed by this requirement leaves little flexibility in interpretation, otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and the risk of impairing the very essence of the right protected by this provision (see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 B, § 62, where periods of more than four days in detention without appearance before a judge were in violation of Article 5 § 3, even in the special context of terrorist investigations).

  73. The Court underlines that the review must be automatic and cannot depend on the application of the detained person; in this respect it must be distinguished from Article 5 § 4 which gives a detained person the right to apply for release. The automatic nature of the review is necessary to fulfil the purpose of the paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention; the same might also be true of other vulnerable categories of arrested person, such as the mentally frail or those ignorant of the language of the judicial officer (see, among others, Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 III; Niedbała v. Poland, no. 27915/95, § 50, 4 July 2000, and McKay, cited above, § 34).

  74. In the instant case, the Court observes that the Kraków–Śródmieście District Court issued an order for the applicant’s detention on 15 July 2002 without having heard him. The detention order specified that the applicant should be informed upon his arrest about his right to appeal it. The applicant was arrested on 3 January 2003 and was subsequently detained on the basis of that order. The Court notes that following the applicant’s arrest on reasonable suspicion that he had committed an offence there was no automatic judicial control of his detention. In circumstances such as those obtaining in the present case, where the applicant was arrested on the basis of a detention order issued in his absence, the domestic law does not appear to provide for such an initial automatic review and makes is dependent on the application of the detained person. The Court notes that Article 5 § 3 of the Convention does not provide for any possible exceptions from the requirement that a person shall be brought promptly before a judge or other judicial officer after having been arrested or detained. To conclude otherwise would run counter to the plain meaning of this provision (see Harkmann v. Estonia, no. 2192/03, § 38, 11 July 2006). The Court further observes that the review of the lawfulness of the applicant’s detention was initiated by the application made by his counsel on 9 January 2003. The Government’s argument that the applicant’s interests were duly represented in those judicial proceedings by his counsel is clearly deficient in the light of the explicit wording of Article 5 § 3 (“shall be brought promptly before a judge”).

  75. Therefore, there has been a violation of Article 5 § 3 of the Convention.

    76. IV.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION AS REGARDS DELAY IN THE APPLICANT’S RELEASE FROM DETENTION

  76. The Court raised of its own motion a complaint under Article 5 § 1 of the Convention as regards delay in carrying out the decision of 10 January 2003 to release the applicant. This provision reads in its relevant part:

    77. “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 ...”

    A.  Admissibility

  77. 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.

    78. B.  Merits

    1.  The parties’ submissions

  78. The applicant submitted that the decision to release him of 10 January 2003 was sent by facsimile on the same day to the Międzyrzecz Detention Centre. The detention centre’s authorities refused to release him on that basis and required original documents to be sent. The applicant argued that during the following three days he had been unlawfully deprived of his liberty since there had been no other decision to justify his detention. Thus, there was a breach of Article 5 § 1 of the Convention.

  79. The Government admitted that the applicant had spent three more days in detention. He had been released on 13 January 2003 since the detention centre had refused to release him on the basis of a facsimile copy of the order sent on 10 January 2003. In view of the above, the Government refrained from expressing their position on the alleged violation of Article 5 § 1.

    80. 2.  The Court’s assessment

  80. 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 (see 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 (see Labita, cited above; Nikolov v. Bulgaria, no. 38884/97, § 82, 30 January 2003 and Gębura v. Poland, no. 63131/00, § 34, 6 March 2007).

  81. In the present case, the Kraków–Śródmieście District Court ordered the applicant’s release on 10 January 2003. However, the Międzyrzecz Detention Centre refused to execute that order on the basis of a facsimile copy of the order sent by the court and requested to be served with original documents. On 10 January 2003 the court ordered the dispatch of the relevant documents by courier post. The Government have not specified when the documents were received by the detention centre. The applicant was released on 13 January 2003, which is three days after the District Court had ordered his release.

  82. The Court recalls that it must scrutinise complaints of delays in the release of detainees with particular vigilance (see Nikolov, cited above, § 80). In its 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 remove organisational shortcomings attributable to the State which may occasion unjustified deprivation of liberty (see Gębura, cited above, § 35). In the present case, the Court considers that the administrative formalities related to the applicant’s release were not kept to a minimum as required by the relevant case-law.

    83. 84.  There has accordingly been a violation of Article 5 § 1 of the Convention on that account.

    V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

  83. The applicant also alleged a breach of Article 6 § 2 of the Convention since the criminal proceedings against him had not established his guilt. He lastly raised a complaint under Article 8 of the Convention on account of his separation from the family which had resulted from his detention and the adverse consequences thereof for his family. He submitted that during the period of his detention he had received no news about his family.

  84. The Court notes that the applicant was acquitted of the charge against him. Furthermore, he did not allege that in the course of the proceedings against him there had been any judicial decision or a statement by a public official which could infringe the presumption of innocence (see, Garycki v. Poland, no. 14348/02, § 66, 6 February 2007). Thus, the Court finds that no issue arises in respect of his complaint under Article 6 § 2 of the Convention.

  85. As regards the complaint under Article 8, the Court considers that this complaint is ancillary to and resultant from the main issues arising in the case under Article 5 of the Convention. Having regard to its findings in respect of Article 5, the Court finds, regardless of other possible grounds of inadmissibility, that the applicant has failed to substantiate his Article 8 complaint beyond what has already been dealt with under Article 5. 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.

    86. VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  86. Article 41 of the Convention provides:

    87. “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

  87. The applicant claimed 500 euros (EUR) in respect of pecuniary damage on the ground that following his unlawful detention he could not pursue his professional activities in France. He further claimed EUR 10,000 in respect of non-pecuniary damage. In this respect, he argued that he had been unlawfully detained for 10 days without having been told the reasons for his detention and without having been heard by a judge. Additionally, he had not known about his family’s circumstances. The applicant’s wife claimed EUR 5,000 in respect of non-pecuniary damage.

  88. The Government observed that they were not able to comment on the applicant’s claims for pecuniary damage since the applicant had failed to produce any documents in respect of his average monthly income in France. They considered the applicant’s claims for non-pecuniary damage to be exorbitant. The Government invited the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction for any non pecuniary damage sustained by the applicant. Alternatively, they asked the Court to assess the amount of just satisfaction on the basis of its case-law in similar cases and having regard to national economic circumstances. As regards the claim made by the applicant’s wife, the Government observed that she had not been an applicant in the present case.

  89. The Court rejects the applicant’s claim for pecuniary damage as unsubstantiated since the applicant had failed to produce any relevant information about his income in France. On the other hand, the Court considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Having regard to the number and character of the violations found in the present case, in particular the finding that the applicant’s deprivation of liberty was unlawful under Article 5 § 1 of the Convention, and making its assessment on an equitable basis, the Court awards the applicant’s claim in full. The Court rejects the claim for non-pecuniary damage submitted by the applicant’s wife since she was not an applicant in the present case.

    90. B.  Costs and expenses

  90. The applicant also claimed EUR 1,196, including VAT, for the costs and expenses incurred before the Court.

  91. The Government submitted that any award should be limited to those costs and expenses which were actually and necessarily incurred and were reasonable.

  92. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court notes the applicant was paid EUR 850 in legal aid by the Council of Europe. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the whole sum sought by the applicant (EUR 1,196) for the proceedings before it, less the amount received by way of legal aid from the Council of Europe. The Court thus awards EUR 346 for costs and expenses.

    93. C.  Default interest

  93. 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.

    94. FOR THESE REASONS, THE COURT UNANIMOUSLY

  94. Declares admissible the complaint under Article 5 § 1 of the Convention concerning unlawfulness of the applicant’s deprivation of liberty between 3 January 2003 and 10 January 2003, the complaint under Article 5 § 2 regarding the failure to inform the applicant of the reasons for his arrest, the complaint under Article 5 § 3 concerning the lack of automatic review of the applicant’s detention and the complaint under Article 5 § 1 regarding the delay in releasing the applicant between 10 January 2003 and 13 January 2003, and the remainder of the application inadmissible;


  95. Holds that there has been a violation of Article 5 § 1 of the Convention as regards the applicant’s deprivation of liberty between 3 January 2003 and 10 January 2003;


  96. Holds that there has been a violation of Article 5 § 2 of the Convention;


  97. Holds that there has been a violation of Article 5 § 3 of the Convention;


  98. Holds that there has been a violation of Article 5 § 1 of the Convention as regards the delay in releasing the applicant between 10 January 2003 and 13 January 2003;


  99. Holds

    100. (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 10,000 (ten thousand euros) in respect of non-pecuniary damage and EUR 346 (three hundred and forty six euros) in respect of costs and expenses, 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;


  100. Dismisses the remainder of the applicant’s claim for just satisfaction.

    101. Done in English, and notified in writing on 18 March 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Lawrence Early Nicolas Bratza
    Registrar President




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