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FOURTH
SECTION
CASE OF PIOTR NOWAK v. POLAND
(Application
no. 7337/05)
JUDGMENT
STRASBOURG
7 December
2010
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 Piotr Nowak v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Mihai Poalelungi,
Nebojša
Vučinić,
Vincent Anthony de Gaetano,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7337/05) against the Republic
of Poland and the Ukraine 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
Piotr Nowak (“the applicant”), on 27 January 2005.
- The
applicant was represented by Mr M. Bogucki, a lawyer practising
in Przemysl. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wolasiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that he had been unlawfully
detained.
- On
25 March 2009 the President of the Fourth Section decided to give
notice of the application to the Polish and Ukrainian Governments.
- On
11 October 2010 the President of the Fourth Section decided to sever
the applicant's complaints against Ukraine from the rest of the
application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Przemyśl.
- In
1998 the applicant was charged with assaulting a certain A.B. On 15
April 1999 criminal proceedings against him and a co-accused were
instituted. On 9 May 2000 the bill of indictment was filed
with the Szczecin District Court. On 27 June 2000 both accused were
present. However the hearing was adjourned since the applicant had
not been served with the bill of indictment. The trial eventually
began on 13 January 2004. The applicant was present at the hearing.
- The
applicant subsequently left Poland. He submitted that before leaving,
he informed the court that he could be contacted at a correspondence
address in Przemysl. He also called the court a few times, asking
about progress on his case. The Government disagreed and maintained
that the case filed contained no proof that the applicant had
attempted to contact the court. They stated that the applicant had
not informed the court about his new correspondence address.
- On
12 February 2004 the applicant failed to appear at the hearing. The
Szczecin District Court ordered that the applicant be remanded in
custody for a period of three months. The decision reads as follows:
“the court orders that Piotr Nowak be remanded in
custody for a period of three months, since he failed to comply with
a summons”.
- In
March 2004 the applicant started working in L'viv, Ukraine.
- On
20 January 2005, at around 11 a.m., the applicant went to a police
station in L'viv to report that his friend's car had been stolen. The
police checked his passport, verified his personal details and locked
him up in a cell. When he asked for the reasons for his arrest he was
told that he was an “international thief”. He was
subsequently questioned by the officers. He submits that during the
questioning the officers severely beat him and extinguished
cigarettes and matches on his wrist and forearm.
- On
24 January 2005 a decision of the police concerning his voluntary
expulsion was served on him.
- The
applicant was kept at the police station until the afternoon of
24 January 2005, when he was transported to the Polish
border control post in Medyka, where he arrived at around 7 p.m. At
around 8 p.m. he was examined by a doctor who noted that the
applicant had cigarette burns on his left forearm and provided him
with medical aid.
- The
applicant was arrested on the basis of the detention order of
12 February 2004 and a wanted notice issued by the Szczecin
police station on 2 August 2004. He was then transferred to the
Przemysl Detention Centre.
- On
25 January 2005 the applicant asked the court to release him from
detention. He submitted that he would stay in Poland until the end of
the trial. The letter reached the trial court on 1 February 2005.
- On
31 January 2005 the applicant was examined by a prison doctor. The
doctor stated that the applicant had two 0.5 cm cigarette burns on
his left hand, plus two similar marks on his left wrist and one on
his forearm. He also had abrasions on his lower and upper lip and a
broken front tooth.
- According
to the applicant, he was served with the detention order of
12 February 2004 on 2 February 2005. The Government
disagreed maintaining that the applicant received the letter from the
court on 1 February 2005.
- On
4 February 2005 the Szczecin District Court dismissed the applicant's
motion of 25 January 2005. The court held that the applicant had left
the country and failed to appear at hearings. For these reasons he
had obstructed the proceedings.
- On
8 February 2005 the applicant filed another application for release.
- On
11 February 2005 the Szczecin District Court ordered the applicant's
release on bail, which it set at 2,000 Polish zlotys (PLN)
(approximately EUR 500). It also prohibited him
from leaving the country. The decision was served on a later, unknown
date.
- On
14 February 2005 the Szczecin District Court received the applicant's
appeal against his arrest on 20 January 2005 by the Ukrainian Police.
On 23 February 2005 the District Court dismissed the appeal against
the applicant's arrest by the Polish police on 24 January 2005. The
court considered that the arrest was justified, prompt and legal.
- On
28 February 2005 the applicant paid the bail and on the same day he
was released from detention.
- On
12 December 2005 the Szczecin District Court convicted the applicant
as charged and fined him PLN 2,000.
- Both
the applicant and the prosecutor appealed. On 28 April 2006 the
Szczecin Regional Court quashed the first-instance judgment and
remitted the case.
- On
11 March 2008 the Sczczecin District Court gave judgment and
acquitted the applicant. The judgment is final.
- On
29 May 2008, on the applicant's complaint, the Szczecin Regional
Court acknowledged the excessive length of criminal proceedings
before the Szczecin District Court and granted the applicant 3,000
PLN by way of just satisfaction.
- On
29 October 2008 the Szczecin Regional Court dismissed the applicant's
request for compensation for unjustified pre-trial detention under
Article 552 § 4 of the Code of Criminal Procedure. The court
noted that the applicant was present at the hearing held on 13
January 2004 during which he was informed about the date of the
subsequent hearing i.e. 12 February 2004. Since he
failed to appear at that hearing, the trial court ordered his
detention on remand. Subsequently, the trial court also issued a
wanted notice for him. He was detained on 24 January 2005 and
released on 28 February 2005. The court held that while indeed the
applicant had been detained for 36 days and finally acquitted, the
detention could not be considered “obviously unjustified”.
It referred to the fact that the applicant was hiding from justice
and a wanted notice had been issued. The court considered that the
applicant's detention was justified in the circumstances of the case
and therefore his request should be dismissed.
- The
applicant failed to appeal against this judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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 challenging the lawfulness of the arrest and
the manner of its execution. Such an appeal must be promptly
transmitted to the competent District Court which is required to
examine it speedily. In cases where the District Court has
established that the arrest was unlawful or unwarranted, it must
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),
a guarantee by a responsible person (poręczenie osoby godnej
zaufania), a guarantee by a social entity (poręczenie
społeczne), a temporary ban on engaging in a given activity
(zawieszenie oskarżonego w określonej działalności)
and a ban on leaving the country (zakaz opuszczania kraju).
Article
249 § 1 sets out the general grounds for the imposition of
preventive measures:
“1. Preventive measures may be imposed
in order to ensure the proper conduct of proceedings and,
exceptionally, to prevent an accused's committing another serious
offence; they may be imposed only if the evidence shows a significant
probability that the accused has committed an offence.”
(...)
3. Before deciding on the application of the
preventive measures, the court or the prosecutor shall hear the
person charged with offence, unless it is impossible due to the
accused being in hiding or residing abroad...”
Article 258 lists the 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 established by the
likelihood that a severe penalty will be imposed.”
The
Code sets out the extent of the courts' discretion to continue 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 attempts to evade justice or
persistently fails to comply with a summons or when his identity
cannot be established.
C. Obligations of the accused
- Under
Article 75 of the CCP an accused who is not deprived of his liberty
is required to appear whenever he receives a summons in the course of
criminal proceedings. He is also required to inform the authority
conducting the proceedings of any change of his abode or of any
absence lasting longer than 7 days. The accused must to be informed
of these obligations when first questioned.
D. Compensation for wrongful detention
- Chapter
58 of the Code of Criminal Procedure, entitled “Compensation
for wrongful 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 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 he has
suffered in consequence of having served all or part of the sentence
initially imposed on him.
...
4. Entitlement to compensation for pecuniary and
non-pecuniary damage shall also arise in the event of manifestly
wrongful arrest or detention on remand.”
- Pursuant
to Article 555, an application for compensation for manifestly
wrongful detention on remand has to be lodged within one year from
the date on which the decision terminating the criminal proceedings
in question became final.
- Proceedings
relating to an application under Article 552 are subsequent to and
independent of the original criminal proceedings in which the
detention was ordered. The claimant may retrospectively seek a ruling
as to whether his detention was justified. He cannot, however, test
the lawfulness of his continuing detention on remand and obtain
release.
E. Civil remedies
- Article 23 of the Civil Code contains a non-exhaustive
list of so called “personal rights” (prawa
osobiste). This provision states:
“The personal rights of an individual, such as, in
particular, health, liberty, honour, freedom of conscience, name or
pseudonym, image, secrecy of correspondence, inviolability of the
home, scientific or artistic work, [as well as] inventions and
improvements, shall be protected by the civil law regardless of the
protection laid down in other legal provisions.”
Article
24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of
infringement] by a third party may seek an injunction, unless the
activity [complained of] is not unlawful. In the event of
infringement [the person concerned] may also require the party who
caused the infringement to take the necessary steps to remove the
consequences of the infringement ... In compliance with the
principles of this Code [the person concerned] may also seek
pecuniary compensation or may ask the court to award an adequate sum
for the benefit of a specific public interest.”
Article
445 § 1 of the Civil Code, applicable in the event a person
suffers a bodily injury or a health disorder as a result of an
unlawful act or omission of a State agent, reads as follows:
“...[T]he court may
award to the injured person an adequate sum in pecuniary compensation
for the damage suffered.”
Under
Article 448 of the Civil Code, a person whose personal rights have
been infringed may seek compensation. That provision, in its
relevant part, reads:
“The court may grant an adequate sum as pecuniary
compensation for non-material damage (krzywda) suffered to
anyone whose personal rights have been infringed. Alternatively, the
person concerned, regardless of seeking any other relief that may be
necessary for removing the consequences of the infringement
sustained, may ask the court to award an adequate sum for the benefit
of a specific public interest ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 of the Convention that he was
unlawfully detained. Article 5 § 1 provides in so far as
relevant:
“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 when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
- The
Government submitted that the applicant failed to exhaust the
available domestic remedies. In particular he had failed to appeal
against the Szczecin District Court's decision of 12 February 2004
(served on 1 February 2005). In addition the applicant failed to
appeal against the Szczecin Regional Court's judgment of 29 October
2008 dismissing his request for compensation for unjustified
pre-trial detention under Article 552 of the Code of Criminal
Procedure. Lastly, they were of the opinion, that the applicant could
have lodged a claim for compensation under Articles 23 and 24 of the
Civil Code (protection of personal goods).
- The
applicant argued that an appeal against the judgment of 29 October
2008 would have lacked any prospects of success.
- The
Court reiterates that it is well established in its case-law that an
applicant must make normal use of those domestic remedies which are
likely to be effective and sufficient. When a remedy has been
attempted, use of another remedy which has essentially the same
objective is not required (see Yaşa v. Turkey judgment
of 2 September 1998, Reports of Judgments and Decisions
1998-VI, § 71).
- In
so far as the Government alleged that the applicant failed to appeal
against the decision of 12 February 2004, the Court notes that the
applicant lodged a motion on 25 January 2005 asking for his detention
to be lifted (see paragraph 15 above). The applicant's aim in using
this remedy was to obtain a review of his detention and to obtain his
release. In the circumstances of the case this remedy was adequate
and effective within the meaning of Article 35 of the
Convention.
- As
regards the Government's objection that the applicant failed to
appeal against the decision dismissing his request for compensation
and also failed to lodge a claim for compensation under Articles 23
and 24 of the Civil Code the Court observes that the right to have
the lawfulness of detention examined by a court and the right to
obtain compensation for any deprivation of liberty incompatible with
Article 5 are two separate rights (see Feliński v. Poland,
no. 31116/03, § 41,42, 7 July 2009).
- In
this respect the Court observes that the applicant does not complain
that he had not obtained compensation for his detention in
contravention of Article 5 § 5 of the Convention.
- Consequently,
the Government's preliminary objection should be dismissed.
- As to the substance of the case the Government
maintained that the applicant's detention had been in accordance with
Article 5 § 1 of the Convention. In their opinion there had been
a strong probability that the applicant had committed the offences
with which he had been charged. In addition his detention had been
based on a court order and was therefore “lawful”. There
was, further, no arbitrariness on the part of the domestic
authorities, since the applicant had intentionally evaded justice and
moved abroad.
- The
applicant replied that after leaving Poland he had contacted the
domestic court on several occasions but he had been informed that the
proceedings against him were stayed. He further generally objected to
the Government's submissions.
- 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 by
Article 5 § 1 of the Convention. The Court notes that in
May 2000 a bill of indictment against the applicant on charges
of assault was filed with the Szczecin District Court. The applicant
was present at the hearing held on 13 January 2004 during which he
was informed about the date of the next hearing. He failed to appear
at that hearing as he had meanwhile left Poland (see paragraphs 7 - 9
above). On 12 February 2004 the District Court ordered that the
applicant be remanded in custody on the ground that he had failed to
comply with the summons.
- The
applicant argued that he had contacted the trial court on several
occasions informing it of his new address. However, the Court notes
that it was established by the Szczecin Regional Court in the
compensation proceedings that the trial court had not been aware of
the applicant's whereabouts. In addition the Regional Court confirmed
that the applicant had been evading justice and that his failure to
appear in response to the summonses had been intentional (see
paragraph 27 above).
- Against
this background, the Court considers that the applicant's detention
was ordered and confirmed in accordance with domestic law and fell
within the ambit of Article 5 § 1(c) of the Convention, as
having been effected for the purpose of bringing him before the
competent legal authority on suspicion of having committed an
offence.
- In
the light of all the material in its possession the Court does not
find any indication that the applicant's detention was unlawful or
ordered otherwise than “in accordance with a procedure
prescribed by law”, within the meaning of Article 5 § 1.
- It
follows that the complaint under Article 5 § 1 is inadmissible
as being manifestly ill-founded within the meaning of Article 35 §§
3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that he was not brought promptly before a judge.
He relied on Article 5 § 3 of the Convention which provides in
so far as relevant:
“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
- The
Government submitted that the applicant had failed to exhaust the
required domestic remedies. They stressed that the applicant could
have lodged a constitutional complaint challenging Article 249 §
3 of the Code of Criminal Procedure on the basis of which his
detention decision and the arrest warrant were issued. The Government
stressed that the Code's provisions did not establish a mechanism for
the prompt judicial verification of a detention decision after the
capture of an accused who had been evading justice. In their opinion,
the applicant could have also lodged a civil action under Articles 23
and 24 of the Civil Code (protection of personal goods) claiming that
the court's verification of his detention was not automatic.
- The
applicant objected to the Government's submissions.
- The Court notes that in their objection the Government
failed to specify the provision of the Constitution to which the Code
of Criminal Procedure was contrary. Nor have the Government provided
any further details as to the content of such a (hypothetical)
constitutional complaint. Thus, the Court considers that in the
present case the effectiveness of the constitutional remedy has not
been substantiated.
- In so far as the Government alleged that the applicant
should have lodged a civil action, the Court observes that under
Article 448 of the Civil Code no claim for damages may arise unless
the alleged infringement resulted from an unlawful act or omission.
It would appear that the lack of automatic judicial control of the
applicant's detention was at all times lawful (see Ladent v.
Poland, no. 11036/03, § 75, ECHR 2008 ... (extracts)).
Consequently, in the circumstances of the present case, an action
under Article 23 or Article 24 of the Civil Code could not have
offered the applicant reasonable prospects of success. It follows
that the Government's objection must be rejected.
- Consequently,
the Court considers 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 parties' submissions.
- The
applicant submitted that following his arrest on 24 January 2005 he
was not brought before a judge as required under Article 5 § 3
of the Convention.
- The
Government refrained from submitting observations on the merits of
the complaint.
2. The Court's assessment.
- The
Court reiterates that under Article 5 § 3 there must be
protection of an individual arrested or detained on suspicion of
having committed a criminal offence through judicial control. The
judicial control must satisfy the requirements of promptness and be
automatic (see Ladent, cited above, § 72).
- In
the instant case, the Court observes that the Szczecin District Court
issued an order for the applicant's detention on 12 February 2004.
The detention order specified that the applicant be remanded in
custody for a period of three months for failing to comply with
summons (see paragraph 9 above). The applicant was arrested on 24
January 2005 by the Polish border police 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 that obtained 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 it dependent on an
application by 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 be brought promptly before a judge or
other judicial officer after his or her arrest or detention. To
conclude otherwise would run counter to the plain meaning of this
provision (see Ladent cited above § 75).
- Therefore,
there has been a violation of Article 5 § 3 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention, alleging
unfairness of the criminal proceedings against him. He also
complained under Article 14 of the Convention that he was
discriminated against on ethnic grounds.
- The
Court finds that the facts of the case do not disclose any appearance
of a violation of the above-mentioned provisions. 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
IV. 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 100,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court awards the applicant EUR 2,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant did not make any claims 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 UNANIMOUSLY
- Declares the complaint under Article 5 § 3
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 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 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, 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 the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
