(Application no. 62324/00)
12 December 2006
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 Depa v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 21 November 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“The fact that [the applicant] has been charged with having committed attempted murder is a sufficient ground for imposing the most severe preventive measure, that is detention on remand.”
II. RELEVANT DOMESTIC LAW
Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning the prolongation of detention on remand.
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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.”
1. Principles established under the Court’s case-law
2. Application of the principles to the circumstances of the present case
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 means of guaranteeing his appearance at trial. Nor did they give any consideration to the possibility of ensuring his presence at trial by imposing on him other “preventive measures” expressly foreseen by Polish law to secure the proper conduct of criminal proceedings.
There has therefore been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“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.”
(a) Article 5 § 4 of the Convention entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty (see, among many others, Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 B, pp. 34-35, § 65).
(b) Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see, for instance, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3302, § 162, and Włoch v. Poland, no. 27785/95, § 125, ECHR 2000-XI, both with reference to Megyeri v. Germany, judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22).
(c) The proceedings must be adversarial and must always ensure “equality of arms” between the parties. In the case of a person whose detention falls within the ambit of Article 5 § 1(c) a hearing is required (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999 II; Assenov and Others, cited above, § 162, with references to Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, p. 13, §§ 30 31; Sanchez Reisse v. Switzerland, judgment of 21 October 1986, Series A no. 107, p. 19, § 51; and Kampanis v. Greece, judgment of 13 July 1995, Series A no. 318-B, p. 45, § 47).
(d) Furthermore, Article 5 § 4 requires that a person detained on remand be able to take proceedings at reasonable intervals to challenge the lawfulness of his detention (see Assenov and Others, cited above, p. 3302, § 162, with a reference to Bezicheri v. Italy, judgment of 25 October 1989, Series A no. 164, pp. 10-11, §§ 20-21).
As regards the remaining sessions at which his detention was prolonged, the Court notes that the applicant’s lawyers were properly summoned to and were present at the great majority of those sessions. They were also present at the examination of most of the applicant’s numerous requests for release and appeals against the decisions to prolong the detention. In this connection the Court reiterates that in cases where characteristics pertaining to the applicant’s personality and level of maturity and reliability are of importance in deciding on his dangerousness, Article 5 § 4 requires an oral hearing in the context of an adversarial procedure involving legal representation (see Waite v. the United Kingdom, no. 53236/99, § 59, 10 December 2002). The Court considers, however, that in the present case the questions of assessment of the applicant’s character or mental state did not arise. His personal attendance at all of the sessions at which his detention on remand had been prolonged was therefore not required, and the presence of his lawyers ensured respect for equality of arms in those proceedings.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
IV APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 12 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza