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PANKIEWICZ v. POLAND - 34151/04 [2008] ECHR 148 (12 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/148.html
Cite as:
[2008] ECHR 148
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FOURTH
SECTION
CASE OF PANKIEWICZ v. POLAND
(Application
no. 34151/04)
JUDGMENT
STRASBOURG
12
February 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 Pankiewicz v. Poland,
The European Court
of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Giovanni Bonello,
Kristaq
Traja,
Stanislav Pavlovschi,
Lech
Garlicki,
Ljiljana Mijović, judges,
and Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34151/04) 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 Władysław
Pankiewicz (“the applicant”), on 1 September 2004.
The
applicant, who had been granted legal aid, was represented by Ms B.
Matysek-Szewerniak, a lawyer practising in Legnica. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wolasiewicz of the Ministry for Foreign
Affairs.
The
applicant alleged in particular that he had been unlawfully detained
in a regular detention centre pending his transfer to a psychiatric
hospital. He further complained about the length of his pre-trial
detention.
On
9 November 2006 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and lives in Lubin.
In
February 2003 the police instituted an investigation against the
applicant. He was suspected of poisoning several pheasants which
belonged to his wife’s alleged lover. Subsequently, the
applicant was also suspected of uttering threats towards his wife and
the person with whom she was allegedly in a relationship.
On
4 March 2003 the applicant was arrested on suspicion of uttering
threats. On 6 March 2003 the Nowa Sól District Court (Sąd
Rejonowy) heard the applicant and remanded him in custody until
4 June 2003. The court noted that there was a reasonable
suspicion that the applicant had committed the offence in question.
In addition, the court relied on the risk that he would induce
witnesses to give false testimony.
On
26 March 2003 the Nowa Sól District Prosecutor obtained
information from the psychiatric hospital in Wschowa that the
applicant had undergone treatment there.
On
25 April 2003 two psychiatrists gave an opinion on the applicant’s
mental health. They concluded that the applicant had previously been
successfully treated in the Cibórz psychiatric hospital and
that he was suffering from acute psychotic disorders. He should be
placed in a psychiatric hospital for further observation.
On
9 May 2003 the prosecutor asked the director of the detention centre
where the applicant was detained whether the applicant’s stay
in custody might endanger his health. The director replied that the
applicant was under constant medical care.
On 2 June 2003 the District Court ordered the
applicant to undergo a six week psychiatric examination in
order to determine whether he could be held criminally responsible in
respect of the above mentioned offence. The court also extended
the applicant’s detention for three more months. The court
referred to the reasons given previously. In addition, it relied on
the risk that the applicant might commit yet another offence.
On
3 September 2003 the court again extended the applicant’s
detention until 4 December 2003. The court repeated the grounds
given previously. It further stressed that the applicant was
undergoing medical observation.
The
applicant was admitted to a hospital on 12 August 2003 and
released on 26 September 2003. On 11 November 2003 two
psychiatrists issued a joint medical opinion. They concluded that the
applicant suffered from an organic delusional disorder. In view of
the fact that there was a reasonable suspicion that he might
commit another crime, they recommended his detention in a psychiatric
hospital.
On
27 November 2003 the prosecutor lodged a request for discontinuation
of the investigation because of the applicant’s mental
condition. He further requested that the applicant be placed in a
psychiatric hospital.
On
3 December 2003 the applicant’s detention was again
extended.
On
5 January 2004 the Nowa Sól District Court gave a
decision and discontinued the proceedings against the applicant. The
court found it established that the applicant had committed the
offence in question. However, he should not have been held criminally
responsible as he was suffering from an organic delusional disorder.
It further referred to the expert’s opinion and ordered that
the applicant be placed in a psychiatric hospital in Kościan.
On
2 March 2004 the court extended the applicant’s detention
until 4 May 2004. It stressed that the psychiatric hospital
had not yet finalised a date for the applicant’s
admission. In addition, the court considered that this measure was
necessary to prevent the applicant from committing another offence.
On
26 March 2004 the court ordered that the applicant be placed in
a different hospital – the Cibórz Psychiatric
Hospital, since the one originally designated was full.
The
applicant was admitted to the hospital on 30 March 2004 and
released on 26 September 2004.
On
5 June 2006 the Zielona Góra Regional Court awarded the
applicant 17,093 Polish zlotys (PLN) compensation for pecuniary
damage and PLN 8,516 as compensation for non-pecuniary damage for
unjustified detention. The court relied on the resolution of the
Supreme Court of 15 September 1999, according to which the
State Treasury was responsible for detention of persons in whose
cases proceedings were discontinued due to their mental disorder.
However, the sum awarded did not relate to the applicant’s
detention after 5 January 2004, that is after discontinuation of the
proceedings.
The
applicant appealed, objecting to the amount of compensation granted
and the fact that it did not cover the whole period of detention.
On
7 September 2006 the Poznań Court of Appeal gave
judgment and dismissed the applicant’s appeal. The court noted
that the applicant’s detention had been justified throughout
the whole period. However, since the prosecutor had failed to appeal
against the first-instance judgment, it could not be amended.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Code of Criminal Procedure of 1997, which entered
into force on 1 September 1998, defines pre-trial detention as
one of the so-called “preventive measures” (środki
zapobiegawcze).
A more detailed rendition of the relevant domestic law
and practice concerning the imposition of pre-trial detention
(aresztowanie tymczasowe), the grounds for its prolongation,
release from detention and rules governing other preventive measures
can be found 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).
Article 264
§ 3 of the Code of Criminal Procedure provides:
“If the proceedings are discontinued by reason of
insanity of the accused, preliminary detention may be maintained
pending the application of a preventive measure.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that he had been remanded in custody despite
being mentally ill. The Court considers that this complaint should be
examined under Article 5 § 1 of the Convention, the
relevant part of which reads 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 or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...
(e) the lawful detention of ... persons of
unsound mind ...”
A. Admissibility
The
Government submitted that this complaint should be declared
incompatible ratione personae with the provisions of the
Convention. They stressed that the applicant had already been
provided with redress amounting to PLN 25,609 as compensation for the
pecuniary and non-pecuniary damage resulting from his stay in
custody. The decision of the Regional Court had been subsequently
upheld by the Court of Appeal on 7 September 2006. Consequently,
the applicant had lost his victim status.
The
applicant replied that it was true that he had received compensation
for the unjustified detention. However, the sum awarded had not
related to his detention after 5 January 2004, that is after the
discontinuation of the proceedings. In particular, it had not covered
the period of two months and twenty-five days that he had spent in a
regular detention centre pending his admission to a psychiatric
hospital. The domestic court had considered this detention justified
and therefore the claim for compensation relating to the period after
5 January 2004 manifestly ill-founded.
The
Court notes that the notion of “victim” within the
meaning of Article 34 of the Convention denotes a person directly
affected by the act or omission in issue, the existence of a
violation of the Convention being conceivable even in the absence of
prejudice; prejudice is relevant only in the context of Article 41 of
the Convention. Consequently, a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his
“victim” status, unless the national authorities have
acknowledged, either expressly or in substance and have afforded
redress for, the breach of the Convention (see Amuur v. France,
judgment of 25 June 1996, Reports of Judgments and Decisions
1996-III, p. 846, § 36).
In
the present case the applicant received PLN 25,609 as compensation
for the pecuniary and
non-pecuniary damage resulting from his stay in unjustified custody
between 3 March 2003 and 5 January 2004. The authorities further
acknowledged that this period of the applicant’s detention had
been unlawful. Conversely, they considered that the period of the
applicant’s detention after 5 January 2004 had been justified
and dismissed the applicant’s claim for compensation in this
respect.
The
Court therefore concludes that the
applicant is not
a “victim”
of the alleged violation as regards his detention before 5 January
2004. It follows that the Government’s objection in this
respect is well-founded and this part of the applicant’s
complaint must be rejected as incompatible ratione personae
pursuant to Article 35 §§ 3 and 4 of the
Convention.
However,
as regards his detention after 5 January 2004 the Court notes
that it does not appear that the compensation which has in fact been
paid to the applicant was based on an acknowledgement, either
expressly or in substance, that the applicant’s rights under
the Convention have been disrespected by the authorities. Therefore,
it is of the opinion that the compensation at issue had not been
sufficient to deprive the applicant of his “victim”
status as regards the alleged period of unlawful detention after
5 January 2004.
The
Court accepts that the applicant can still claim to be a “victim”
within the meaning of Article 34 of the Convention with regard to his
detention after 5 January 2004.
The
Court observes that this part of the 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 applicant’s submissions
The
applicant stressed that the period of his detention after the
proceedings had been discontinued had been unlawful. This situation
could not have been justified by the fact that a place in a selected
clinic had not been available immediately.
He
was further of the opinion that his detention after the
discontinuation of the criminal proceedings had not been necessary,
in particular as his guilt had not been proved. He concluded that
there had been a violation of Article 5 § 1 of the Convention.
2. The Government’s submissions
The
Government replied that the applicant’s detention had been
justified and compatible with the provisions of Article 258 of
the Code of Criminal Procedure. They stressed that after the
discontinuation of the criminal proceedings against the applicant the
competent authorities commenced a procedure for selecting the most
appropriate hospital for him. He was finally placed in a hospital on
30 March 2004, which was two months and twenty-five days after the
court’s decision. In the Government’s opinion there was
no delay in the applicant’s admission to a psychiatric
hospital. The period of two months and twenty-five days could not be
considered excessive. This delay should be regarded as fully
acceptable and compatible with the standards worked out by the
Court’s case-law.
3. The Court’s assessment
The
Court reiterates that Article 5 § 1 of the Convention
contains an exhaustive list of permissible grounds for deprivation of
liberty. However, the applicability of one ground does not
necessarily preclude that of another; a detention may, depending on
the circumstances, be justified under more than one sub-paragraph
(see Eriksen v. Norway, judgment of 27 May 1997,
Reports 1997 III, p. 861, § 76).
The
Court firstly observes that in the instant case the applicant’s
deprivation of liberty falls within the scope of Article 5 § 1
(e) (see Aerts v. Belgium, judgment of 30 July
1998, Reports 1998 V, p.1961, § 45, Mocarska
v. Poland, no. 26917/05, § 42, 6 November 2007).
It
must further be established whether the applicant’s detention
in an ordinary detention centre between 5 January 2004 and
30 March 2004 was “in accordance with a procedure
prescribed by law” and “lawful” within the meaning
of Article 5 § 1 of the Convention. The Convention
here refers essentially to national law and states the obligation to
conform to the substantive and procedural rules thereof. Reiterating
that it is in the first place for the national authorities, notably
the courts, to interpret and apply domestic law (see
Bouamar v. Belgium, judgment of 29 February 1988,
Series A no. 129, p. 21, § 49) the Court
accepts the parties’ arguments that the applicant’s
detention during the period under consideration was based on
Article 264 § 3 of the Code of Criminal Procedure and
was therefore lawful under domestic law.
However,
for the purposes of Article 5 of the Convention, the lawfulness
under domestic law of the applicant’s detention is not in
itself decisive. It must also be established that his detention
during the relevant period was in conformity with the purpose of
Article 5 § 1 of the Convention, which is to prevent
persons from being deprived of their liberty in an arbitrary fashion
(see Witold Litwa v. Poland, no. 26629/95, §§ 72 73,
ECHR 2000 III).
The
Court notes that the length of detention pending transfer to a
psychiatric hospital is not specified by any statutory or other
provision. Nevertheless, it must determine whether the continuation
of detention for almost three months after the proceedings had been
discontinued can be regarded as lawful.
The Court observes that in the present case the Nowa Sól
District Court ordered the applicant’s placement in a
psychiatric hospital in Kościan. Until 2 March 2004, when the
applicant’s detention was again extended, the hospital had not
yet indicated a date for the applicant’s admission. On
26 March 2004 the District Court changed its order and
decided that the applicant should be placed in a different hospital -
the hospital in Cibórz. Throughout that time the applicant was
detained in a regular detention centre, and it is not clear whether
he was provided with adequate medical treatment there (see paragraphs
16-19 above).
The
Court accepts the Government’s arguments that it would be
unrealistic and too rigid an approach to expect the authorities to
ensure that a place is immediately available in a selected
psychiatric hospital. However, a reasonable balance must be struck
between the competing interests involved. Having regard to the
balancing of interests the Court attaches weight to the fact that the
applicant was held in a regular detention centre without the adequate
medical facilities. The delay in admission to a psychiatric hospital
and thus the beginning of the treatment was obviously harmful to the
applicant, in view of the expert’s opinions recommending him
for psychiatric treatment (see paragraphs 9, 13 and 16 above). In
addition, the Court notes that the Government failed to advance any
detailed explanation for the delay in the applicant’s admission
to the hospital.
The
Court cannot find that, in the circumstances of the present case, a
reasonable balance was struck. The Court is of the opinion that even
though the delay of two months and twenty five days in the admission
of the applicant to a psychiatric hospital may not at first glance
seem particularly excessive, it cannot be regarded as acceptable (see
Morsink v. the Netherlands, no. 48865/99, §§
61-70, 11 May 2004; Brand v. the Netherlands, no. 49902/99, §§
58-67, 11 May 2004; and Mocarska, cited above, §
48). To hold otherwise would entail a serious weakening of the
fundamental right to liberty to the detriment of the person concerned
and thus impair the very essence of the right protected by Article 5
of the Convention.
There
has accordingly been a violation of Article 5 § 1
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant
complained that the length of his detention had been unreasonable. He
relied on Article 5 § 3 of the Convention, which 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.
The
Government stated that this part of the application should be
declared incompatible ratione personae with the provisions of
the Convention as the applicant had already received compensation in
the amount of PLN 25,609 for the pecuniary and non-pecuniary damage
resulting from his stay in custody.
The
applicant disagreed.
The
Court considers that, to the extent the applicant obtained redress
from the Zielona Góra Regional Court in respect of his
complaint of the excessive length of
his detention, he can no longer claim to be a victim of
a violation of this provision of the Convention. The relevant part of
this complaint must be rejected as incompatible ratione personae
pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant further complained of the unfairness of the proceedings. He
relied on Article 6 § 1 of the Convention,
which reads in its relevant part:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
The
Government contested that argument.
The
Court reiterates that under Article 35 § 1 of the Convention it
may only deal with the matter after all domestic remedies have been
exhausted.
The
Court observes that the applicant failed to lodge an appeal against
the decision of the Nowa Sól District Court of 5 January
2004. It follows that this complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
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 10,000 euros (EUR) in respect of pecuniary and EUR
15,000 in respect of non-pecuniary damage.
The
Government contested the claim.
The
Court does not discern any causal link between the violation 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, who received legal aid from the Council of Europe in
connection with the presentation of his case, sought EUR 2,000
for costs and expenses incurred in the proceedings before the Court.
The
Government considered that the sum was excessive. They asked the
Court to make an award, if any, only in so far as the costs and
expenses concerned were actually and necessarily incurred and were
reasonable as to quantum. They further stressed that the applicant’s
lawyer had not submitted any invoices, receipts or other documents
proving the claimed expenses.
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 are reasonable as to quantum. The Court observes that
the applicant failed to produce any documents in support of the
claim. In those circumstances, the Court rejects the claim for costs
and expenses (see, Adamiak v. Poland,
no. 20758/03, § 49, 19 December 2006).
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 applicant’s complaint
concerning his alleged unlawful detention between 5 January 2004 and
30 March 2004 admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (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 the 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 12 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı, Nicolas
Bratza
Deputy
Registrar President
