(Application no. 28481/03)
15 January 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 Łaszkiewicz v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 11 December 2007,
Delivers the following judgment, which was adopted on that date:
2. The applicant was represented by Ms E. Draga-Buchta and, subsequently, by Mr W. Hermeliński, lawyers practising in Katowice and Warsaw, respectively. Mr W. Hermeliński represented the applicant up until October 2006 and submitted written observations on her behalf. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
I. THE CIRCUMSTANCES OF THE CASE
“The limitation on the lawyer's access to the investigation file results from the binding procedural rules.
The court's hearing on the matter of detention is ancillary to the main proceedings and thus notification of this hearing can be effected shortly before the date for which it has been fixed. The lawyer was notified of the hearing at 1 p.m. on the day preceding the hearing. Thus, it cannot be said that the court was at fault in this respect.”
II. RELEVANT DOMESTIC LAW
A. Detention on remand
B. Access to the investigation file
C. Constitutional complaint
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
Article 190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
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. Period to be taken into consideration
2. The parties' submissions
(a) The applicant
(b) The Government
3. The Court's assessment
(a) General principles
(b) Application of the above principles in the present case
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.”
1. The parties' submissions
(a) The applicant
(b) The Government
2. The Court's assessment
(a) General principles
A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client's detention. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see, among other authorities, Lamy v. Belgium, judgment of 30 March 1989, Series A no. 151, pp. 16-17, § 29; Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II; Lietzow v. Germany, no. 24479/94, § 44, ECHR 2001 I).
(b) Application in the present case
III. 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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 1,150 (one thousand one hundred and fifty 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza