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FOURTH
SECTION
CASE OF LEWICKI v. POLAND
(Application
no. 28993/05)
JUDGMENT
STRASBOURG
6 October
2009
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 Lewicki v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28993/05) 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 Włodzimierz
Lewicki (“the applicant”), on 27 July 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that his detention during judicial
proceedings had exceeded a “reasonable time” within the
meaning of Article 5 § 3 of the Convention. He further claimed
that his appeals against the extension of his pre-trial detention had
not been examined “speedily”.
- On
20 November 2007 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Warsaw.
- The
applicant was arrested on 3 September 2004 during a police
intervention following complaints of domestic violence made by his
wife. On 4 September 2004 the Warsaw District Court remanded him in
custody on suspicion of acts of domestic violence committed between
May and September 2004. It relied on evidence given by the
applicant's wife and his son. It found that there was a risk that the
applicant might influence witnesses, in particular his twelve-year
old son. The court noted that according to witnesses' statements the
applicant had been violent and had not respected the living
arrangements in the family flat. Furthermore, the preventive measure
(police supervision) which had been imposed so far had proved
ineffective. Having regard to the above, the District Court held that
only detention during judicial proceedings could secure the proper
conduct of the investigation. However, it noted that the
investigation should last no longer than two months.
- The applicant appealed. However his appeal was
dismissed on 5 October 2004. His requests for release were
likewise dismissed, on 1 October 2004.
- On
26 October 2004 the Warsaw District Court extended the applicant's
pre-trial detention until 2 February 2005. It found that his
continued detention was necessary in order to prevent the applicant
from influencing the victims.
- On
9 November 2004 the applicant appealed against the extension of his
detention. He argued that the background to the family conflict was
related to his older son's alleged addiction to drugs and theft of
his money. He also submitted that he had no criminal record and had
been declared “second-degree disabled”.
- On
5 January 2005 the Warsaw Regional Court dismissed the applicant's
appeal. It relied on the severity of the anticipated penalty and the
fact that the applicant had just begun psychiatric observation.
- On
25 January 2005 the Warsaw District Court extended the applicant's
detention until 2 May 2005. It invoked the risk that the applicant,
if released, would attempt to influence the victims. It also found
that continued detention was justified in order for a psychiatric
report to be prepared.
- The
applicant's lawyer lodged an appeal against this decision on
8 February 2005.
- The
Government submitted that the applicant obtained a copy of the
decision of 25 January 2005 only on 24 February 2005. His appeal,
dated 25 February 2005, was submitted to the Warsaw
District Court on 21 March 2005.
- On
6 April 2005 the Warsaw Regional Court dismissed the applicant's and
his lawyer's appeal. It relied, in particular, on the need to obtain
a psychiatric report.
- On
11 March 2005 the Warsaw Żoliborz District Prosecutor refused
the applicant's request to be released on bail.
- Meanwhile,
on 1 April 2005 the psychiatric experts submitted their report to the
District Prosecutor.
- On
29 April 2005 the Warsaw District Court ordered that the applicant be
held in detention until 2 June 2005. In addition to the risk of
obstruction of the proceedings, it held that the extension of
detention was justified by the need to assess certain documentary
evidence and to enable the applicant to consult the file, as the
investigation was nearing its end (scheduled for 9 May 2005). On an
unspecified later date the applicant appealed against that extension
of his detention.
- On
19 May 2005 the Warsaw Żoliborz District Prosecutor filed a bill
of indictment with the Warsaw District Court. The applicant was
charged with domestic violence in respect of his wife and older son.
- On
25 May 2005 the Warsaw District Court extended the applicant's
detention until 2 October 2005. On 30 May 2005 the applicant appealed
against that decision. On 31 August 2005 the Regional Court dismissed
his appeal. On 10 June and 3 August 2005 the District Court refused
his applications for release.
- On
26 September 2005 the District Court ordered the further extension of
the applicant's detention until 2 December 2005. The court referred
to the risk of influencing victims' testimonies. On 3 October 2005
the applicant appealed.
- On
29 September 2005 the Warsaw Regional Court decided not to take
cognisance of the applicant's appeal against the District Court's
decision of 29 April 2005 extending his detention, since the period
of detention authorised by that decision had expired on 2 June 2005.
The applicant lodged a further appeal against that decision. On
3 November 2005 a different panel of the Warsaw Regional
Court dismissed his appeal. It observed, however, that the five-month
delay of the Warsaw District Court in transmitting the applicant's
appeal to the Regional Court, contrary to Article 463 § 2 of the
Code of Criminal Procedure, had rendered the review of the decision
under appeal nugatory.
- On
25 November 2005 the Warsaw District Court held a hearing and
extended the applicant's detention until 2 January 2006. On the same
day it ordered the joinder of the case with two other cases against
the applicant. In those two cases he was charged with domestic
violence (acts committed between December 2002 and April 2004),
insulting police officers and unlawful possession of a stun gun.
- Six
days after the last detention order, on 1 December 2005, the Warsaw
District Court extended the applicant's detention until 2 April 2006.
- On
6 December 2005 the applicant's lawyer appealed against the latter
extension. On 16 December 2005 the Warsaw Regional Court upheld the
contested decision. On 15 December 2005 the applicant himself
appealed against the decision of 1 December 2005. This appeal was
transmitted to the Warsaw Regional Court in October 2006. During
a session held on 21 December 2006 the applicant
withdrew his appeal.
- The
trial began on 21 December 2005. It appears that during the hearing
the trial court suggested that the applicant accept a sentence of
eighteen months' imprisonment; he refused, claiming his innocence.
- On
27 March 2006 the applicant was released from detention. On
a prosecutor's appeal, the Warsaw District Court quashed its
decision. The court stressed that if released the applicant could
commit further acts of domestic violence. On 31 March 2006 the
applicant was again arrested and placed in the detention centre. On
the same date the Warsaw District Court extended the applicant's
detention until 2 July 2006. The court referred to the risk of
influencing the victims' and witnesses' testimonies and the severity
of the anticipated penalty.
- On
15 May 2006 the applicant complained to the Minister of Justice about
delays in the trial. On 21 June 2006 the Deputy President of the
Warsaw Regional Court, to whom the applicant's letter had been
transmitted, acknowledged that there had been delays in the
proceedings against the applicant.
- On
7 August 2006 the Warsaw Żoliborz District Court convicted the
applicant of domestic violence and insulting police officers. It
sentenced him to four years' imprisonment. The applicant was released
on the same day.
- On
30 October 2007 the Warsaw Regional Court partly upheld and partly
modified the first-instance judgment. The applicant was sentenced to
two years' imprisonment.
- Meanwhile, on 24 September 2007 the applicant lodged,
under the Law of 17 June 2004 (Ustawa o skardze
na naruszenie prawa strony do rozpoznania sprawy w postępowaniu
sądowym bez nieuzasadnionej zwłoki) (“the
2004 Act”), a complaint that his right to a fair trial within a
reasonable time had been breached. On 16 November 2007 the Warsaw
Regional Court decided not to examine the merits of the complaints.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive
measures, including pre-trial detention
- The
relevant domestic law and practice concerning the imposition of
detention during judicial proceedings (aresztowanie tymczasowe),
the grounds for its extension, release from detention and rules
governing other “preventive measures” (środki
zapobiegawcze) are stated in the Court's judgments in the cases
of Gołek v. Poland, no. 31330/02, §§ 27-33,
25 April 2006, and Celejewski v. Poland, no.
17584/04, §§ 22-23, 4 August 2006.
B. Relevant
statistical data
- The
relevant statistical data, recent amendments to the Code of Criminal
procedure designed to streamline criminal proceedings and references
to the relevant Council of Europe materials can be found in the
Court's judgment in the case of Kauczor including the 2007
Resolution of the Committee of Ministers (see Kauczor v.
Poland, no. 45219/06, §§ 27-28 and §§
30-35, 3 February 2009).
C. The length of proceedings
- The relevant domestic law and practice concerning
remedies for excessive length of judicial and enforcement
proceedings, in particular the applicable provisions of the 2004 Act,
are set out in the Court's decisions in the cases of Charzyński
v. Poland (no. 15212/03 (dec.), §§ 12-23,
ECHR 2005-V), and Ratajczyk v. Poland (no.
11215/02 (dec.), ECHR 2005 VIII), and in its judgment in
the case of Krasuski v. Poland, (no. 61444/00,
§§ 34-46, ECHR 2005-V).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention during judicial
proceedings had been excessive. He relied on Article 5 § 3
of the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- 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. Period to be taken into consideration
- The
applicant's detention started on 3 September 2004, when he was
arrested on suspicion of domestic violence, and ended when he was
convicted by the first-instance court on 7 August 2006. However, he
was released between 27 March 2006 and 31 March 2006. Accordingly,
the period to be taken into consideration amounts to one year and
eleven months.
2. The parties' submissions
(a) The applicant
- The
applicant argued that the length of his detention had been
unreasonable. He submitted that there had been a violation of Article
5 § 3 of the Convention.
(b) The Government
- The Government submitted that
the applicant's pre-trial detention had been justified by the
existence of substantial evidence of his guilt, the serious nature of
the offences with which he had been charged, the severity of the
anticipated penalty and the risk that he might influence the
witnesses.
- They emphasised that once the applicant was released
he immediately contacted one of the victims, the risk of which was
the direct ground for quashing the decision to release him. The
necessity of the applicant's continued detention had been regularly
supervised by the courts, which on each occasion had given sufficient
reasons for their decisions.
- Furthermore, the Government maintained that the
applicant had significantly contributed to the length of the
proceedings. In the course of the trial he submitted altogether
twelve obviously unjustified requests seeking the withdrawal of the
presiding judge.
- Lastly, they submitted that the applicant's detention
had not been unreasonably lengthy.
3. The Court's assessment
(a) General principles
- The
Court reiterates that the general principles regarding the right “to
trial within a reasonable time or to release pending trial, as
guaranteed by Article 5 § 3 of the Convention” have been
stated in a number of its previous judgments (see, among many other
authorities, Kudła v. Poland [GC], no. 30210/96,
§ 110 et seq, ECHR 2000 XI, and McKay v. the United
Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with
further references).
(b) Application of the above principles in
the present case
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on two
grounds, namely (1) the serious nature of the offences with which he
had been charged, (2) the need to secure the proper conduct of the
proceedings.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed a serious offence could initially warrant his
detention. Also, the need to secure the proper conduct of the
proceedings, in particular the process of obtaining evidence from
witnesses, constituted valid grounds for the applicant's initial
detention.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts were relevant and sufficient (see Kudła,
cited above, § 111).
- The Court further emphasises that, when deciding
whether a person is to be released or detained, the authorities are
obliged under Article 5 § 3 to consider alternative
means of guaranteeing his appearance at the trial. Indeed, that
Article lays down not only the right to “trial within a
reasonable time or release pending trial” but also provides
that “release may be conditioned by guarantees to appear for
trial” (see Jabłoński v. Poland,
no. 33492/96, § 83, 21 December 2000). In the
present case, the Court notes that there is no express indication
that during the entire period of the applicant's pre-trial detention
the authorities envisaged any other guarantees designed to secure his
appearance at the trial. Nor did they give any consideration to the
possibility of ensuring his presence at trial by imposing on him
other “preventive measures” expressly intended to secure
the proper conduct of criminal proceedings.
- The
Court further notes that the applicant was detained on charges of
domestic violence. It does not appear therefore that his case
presented particular difficulties for the investigation authorities,
especially since it had been committed in a family setting, and for
the courts to determine the facts and mount a case against the
perpetrator, as would undoubtedly have been the case had the
proceedings concerned organised crime (see Celejewski, cited
above, § 37).
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities could not justify the overall period of
the applicant's detention. In these circumstances it is not necessary
to examine whether the proceedings were conducted with special
diligence.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that his appeals against the decisions of
26 October 2004, 25 January, 29 April, 1 December 2005 extending
his detention and his application for release of 3 December 2004 were
not examined speedily. He relied on Article 5 § 4 of the
Convention, which in its relevant part provides as follows:
“.Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
- The
Government contested that argument.
A. Admissibility
- In so far as the applicant referred to the decision of
26 October 2004 and the application for release of 3 December 2004,
the Court observes that under Article 35 § 1 of the
Convention it may only deal with the matters arising within a period
of six months of the date on which the final decision was taken. It
follows that this part of the application has been introduced out of
time and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
- As
regards the remaining decisions, the Court notes that this part of
the application 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. Period to be taken into consideration
- The
Court notes at the outset that the applicant's lawyer's appeal
against the decision to extend the applicant's detention of 25
January 2005 was examined by the Regional Court only on 6 April 2005
(see paragraphs 12-14 above). The applicant's appeal against the
decision of 29 April 2005 was examined as late as 29 September 2005.
Lastly, the appeal against the decision of 1 December 2005 was
examined on 16 December 2005. The periods under consideration
accordingly lasted fifty-six days, 120 days and sixteen days
respectively.
2. The parties' submissions
- The
applicant objected to the Government's submissions.
- The
Government submitted that the applicant's appeal against the decision
of 25 January 2005 dated 25 February 2005 had been submitted to the
court as late as 21 March 2005. In their opinion it was subsequently
examined promptly, as required under Article 5 § 4.
- They
further maintained that while the applicant's own appeal against the
decision of 1 December 2005 had indeed been examined only on
21 December 2006 it did not mean that the applicant was
deprived of the right to have it reviewed promptly. In this respect,
they pointed out that the applicant's lawyer had also appealed
against the decision of 1 December 2005 and that his appeal had been
examined on 16 December 2005. They stressed that the procedural
activities of the applicant's defence lawyer should be treated as the
effective execution of the applicant's own procedural rights.
- With
reference to the applicant's appeal brought against the decision of
29 April 2005, the Government refrained from taking a position on the
merits of the complaint. Nevertheless, they stressed that during that
period the applicant's detention had been extended on two occasions
and on one occasion the District Court had examined the applicant's
application for release.
3. The Court's assessment
- The Court reiterates that Article 5 § 4, in
guaranteeing to persons arrested or detained a right to have the
lawfulness of their detention reviewed, also proclaims their right,
following the institution of such proceedings, to a speedy judicial
decision concerning the lawfulness of detention and to an order
terminating it if proved unlawful (see, for instance, Baranowski
v. Poland no. 28358/95, § 68, ECHR 2000-III).
- The finding whether or not the relevant decisions were
taken “speedily” within the meaning of that provision
depends on the particular features of the case. In certain instances
the complexity of medical, or other, issues involved in a
determination of whether a person should be detained or released can
be a factor which may be taken into account when assessing compliance
with the Article 5 § 4 requirements. That does not mean,
however, that the complexity of a given dossier, even if it is
exceptional, absolves the national authorities from their essential
obligation under this provision (see, mutatis mutandis, Baranowski
v. Poland, cited above, and Musiał v. Poland [GC],
no. 24557/94, § 43, ECHR 1999-II).
- In
that context, the Court also reiterates that there is a special need
for a swift decision determining the lawfulness of detention in cases
where a trial is pending, because the defendant should benefit fully
from the principle of the presumption of innocence (see, for
instance, Jabłoński, cited above, § 93).
- In
the present case the Court firstly observes that both the applicant's
lawyer's appeal against the decision of 25 January 2005 lodged on
8 February 2005 and the applicant's own appeal of 25 February
2005 were examined together on 6 April 2005. It further considers
that the fact that the applicant's appeal was submitted to the court
only two months after the decision had been delivered should not be
considered a reason for the failure to examine the first application
within a reasonable time. In addition, the Court notes that it would
appear that it took the applicant's appeal nearly one month (from 25
February to 21 March) to arrive at the court from the detention
centre. The Government did not offer any explanation for such a
lengthy duration of conveyance of the document.
- As
regards the applicant's appeal against the decision of 29 April 2005,
the Court observes that the Government did not seek to justify the
delay of 120 days and did not cite any circumstances which could have
absolved the judicial authorities from conducting the habeas corpus
proceedings speedily.
- In
respect of the appeal against the decision of 1 December 2005, the
Government pointed that the applicant's lawyer's appeal was examined
only sixteen days after it had been lodged. While the Government did
not plead that complex issues had been involved in the determination
of the lawfulness of the applicant's detention, nevertheless the
Court still considers that the delay of sixteen days could be
considered justified in the circumstances of the case.
- Having
regard to all the circumstances, the Court considers that the time
taken to examine the applicant's appeals against the detention orders
of 25 January 2005 and 29 April 2005, did not satisfy the speediness
requirement of Article 5 § 4.
- The
Court consequently holds that there has been a violation of Article
5 § 4 of the Convention in respect of detention orders of
25 January 2005 and 29 April 2005.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
period to be taken into consideration began on 4 September 2004
and ended on 30 October 2007. It thus lasted three years and nearly
two months at two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- In this respect the Court observes that during three
years and two months the applicant's case was examined by courts at
two instances. It further observes that there were no significant
periods of inactivity. Having regard to the overall duration of the
proceedings, the Court finds that the proceedings were not conducted
in an unreasonably lengthy fashion.
- It
follows that the applicant's complaint is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and must
be rejected in accordance with Article 35 § 4.
IV. REMAINING
COMPLAINTS
- The
applicant complained of a violation of Article 13 of the Convention
in respect of certain decisions given by the Warsaw District Court.
He further alleged, without invoking any provisions of the
Convention, that the Warsaw District Prosecutor had not decided a
criminal complaint against his wife.
- The
Court finds that the facts of the case do not disclose any appearance
of a violation of the above-mentioned provision. It follows that
these complaints are manifestly ill-founded within the meaning of
Article 35 § 3 and must be rejected pursuant to
Article 35 § 4.
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Article
46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties' submissions
1. The applicant
- The
applicant did not submit any observations concerning this provision.
2. The Government
- The Government referred to the
arguments submitted previously in the case of Figas
v. Poland (no. 7883/07,
§§ 41-44, 23 June 2009).
- The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which were and had been
undertaken by them to solve the problem of the length of detention
during judicial proceedings, Poland could not be said to have failed
to comply with its obligations under Article 46 of the Convention to
obey the Court's judgments.
B. The Court's assessment
- Recently,
in the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq., with further references) the Court held
that the 2007 Resolution of the Committee of Ministers taken together
with the number of judgments already delivered and of the pending
cases raising an issue of excessive detention incompatible with
Article 5 § 3 demonstrated that the violation of the applicant's
right under Article 5 § 3 of the Convention had originated in a
widespread problem arising out of the malfunctioning of the Polish
criminal justice system which had affected, and may still affect in
the future, an as yet unidentified but potentially considerable
number of persons charged in criminal proceedings.
- In
the present case, as in other numerous similar detention cases, the
authorities did not justify the applicant's
continued detention with relevant and sufficient reasons (see
paragraphs 43-49 above). Consequently, the Court sees no reason to
diverge from its findings made in Kauczor
as to the existence of a structural problem and the need for the
Polish State to adopt measures to remedy the situation (see Kauczor,
cited above, §§ 60-62).
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested this claim.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 1,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant did not claim any amount for 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
- Declares unanimously the complaints under
Article 5 § 3 and 5 § 4 admissible and the remainder of the
application inadmissible;
- Holds by five votes to two that there has been a
violation of Article 5 § 3 of the Convention;
- Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention in respect of
detention orders of 25 January 2005 and 29 April 2005;
- Holds by five votes to two
(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 1,000 (one
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into Polish zlotys at the rate
applicable at the date of settlement;
(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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint partly dissenting opinion
of Judges Mijović and Hirvelä is annexed to this judgment.
N.B.
F.A.
JOINT PARTLY DISSENTING OPINION OF JUDGES MIJOVIĆ
AND HIRVELÄ
While
we have no difficulties in joining the Chamber's finding that
Article 5 § 4 of the Convention has been violated, we
are of the opinion that there has been no violation of Article 5
§ 3.
The
applicant was arrested on 3 September 2004 and remanded in custody on
suspicion of having committed acts of domestic violence between
May and September 2004. From the facts of the
case it is clear that he was a recidivist offender. The preventive
measure of police supervision had been previously imposed and it
proved ineffective. As a consequence, the Warsaw District Court held
that only detention could secure the proper conduct of the
investigation and judicial proceedings. The applicant's detention was
extended on several occasions up to 25 November 2005, when the
Warsaw District Court ordered the joinder of this case with two other
cases against the applicant in which he was charged not only with
domestic violence, but with insulting police officers and unlawful
possession of a stun gun (acts
committed between December 2002 and April 2004).
On
7 August 2006, the applicant was convicted, sentenced and
released. Accordingly, the period to be taken into consideration for
the purposes of Article 5 § 3 amounts to one year and
eleven months.
The
majority of the Chamber was of the opinion that the grounds given by
the domestic authorities could not justify the overall period of the
applicant's detention. The majority pointed out that the domestic
authorities did not give any consideration to the possibility of
imposing on the applicant any other “preventive measure”
than detention. We find this argument very weak since, as mentioned
earlier, at the time when the applicant was arrested he was already
subject to one of these “preventive measures” (police
supervision) and it proved to be ineffective.
In
accordance with the relevant domestic law,
apart from detention on remand the other so-called “preventive
measures” are bail, police supervision, guarantee by a
responsible person, guarantee by a social entity, temporary ban on
engaging in a given activity and prohibition on leaving the country.
With regret, we cannot accept that any of these measures would be
more appropriate in the circumstances of this case since, as
emphasised earlier, the applicant had the profile of a serial
offender involved in acts of domestic violence.
In contrast to this judgment, the problem of domestic violence in the
case-law of the European Court of Human Rights has up to now been, in
our opinion, treated differently in other cases. There have been
domestic violence cases where the European Court of Human Rights has
found a violation of Article 2 on account of the failure of the
relevant domestic authorities to take all necessary and reasonable
steps to afford protection to the lives of family members (domestic
violence victims).
In this case, we consider that the domestic authorities did what they
were supposed to do in accordance with the case-law of the European
Court of Human Rights: they protected the lives of family members by
applying the only one meaningful measure (detention). That is an
additional reason for us to dissent.
Finally,
the whole period of the applicant's detention did not exceed the
limit set by the domestic legislation
and accepted by the case-law of the European Court of Human Rights.
In
these circumstances, regrettably, we are unable to join the majority
in finding that the applicant's rights under Article 5 § 3 were
violated.
