(Application no. 52479/99)
13 January 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 Rybacki v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 9 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Detention on remand
“The evidence collected against the accused - in particular the testimony of anonymous witnesses - substantiated the suspicion that the applicant had committed the crime of aggravated robbery which as such [the crime] represented an extremely high danger to society. The proceedings before the first-instance court were at their final stage and - unless any unpredictable circumstances arose - would soon be completed. The Regional Court had already heard all witnesses for the prosecution and most of the defence witnesses (...). The Regional Court was still waiting for additional expert reports and data from the mobile telephone operator, requested by the defence (...). It should also be underlined that one of the accused persons deliberately contributed to the prolonging of the proceedings by consuming a poisonous substance.”
Nevertheless, the Supreme Court also recommended that the trial court should “schedule the hearings in a more rational way so as to avoid further intervals of several months in the instant case”.
B. The applicant's contacts with his defence counsel
II. RELEVANT LAW AND PRACTICE
A. Domestic law
B. Relevant international materials
23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.
23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.
23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”
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
3. The Court's assessment
(a) General principles
(b) Application of the above principles in the present case
Otherwise, the courts relied heavily and repeatedly on the likelihood of a severe sentence being imposed on the applicant. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot by itself justify long periods of detention on remand (see Michta v. Poland, no. 13425/02, § 49, 4 May 2006 ).
II. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
A. The parties' submissions
The Government did not contest the fact that the restrictions imposed by the prosecution, by the decision of 17 May 1996, on contacts between the applicant and his lawyers had limited the exercise of his defence rights. However, they were of the view that this shortcoming had been fully counterbalanced by the subsequent course of the judicial proceedings, given that at that stage the applicant was able to communicate freely with his lawyers. Moreover, the restriction did not take the form of a blanket order that all contacts between the applicant and his counsel should be supervised. Instead, before 7 November 1996 when the lawyer had requested authorisation to meet the applicant, the prosecutor had taken a new decision to the effect that his contact with the lawyer should be supervised.
Lastly, the Government argued that in order to determine whether the aim of Article 6 – a fair trial – had been achieved, regard had to be had to the entirety of the domestic proceedings conducted in the case (Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, § 38).
B. The Court's assessment
56. The right of the defendant to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c). This right, which is not explicitly set out in the Convention, may be subject to certain restrictions (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, pp. 54-55, § 63). However, if a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its effectiveness whereas the Convention is intended to guarantee rights that are practical and effective (see S. v. Switzerland, 28 November 1991, § 48, Series A no. 220; Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 33).). The importance to the rights of the defence of ensuring confidentiality in meetings between the accused and his lawyers has been affirmed in various international instruments, including European instruments (see Brennan v. the United Kingdom, cited above, o. 39846/98, §§ 38-40, ECHR 2001-X; Öcalan v. Turkey ([GC], no. 46221/99, ECHR 2005-IV, § 132-133). This privilege encourages open and honest communication between clients and lawyers as an important safeguard of one's right to defence (see, Oferta Plus SRL v. Moldova, no. 14385/04, § 145, 19 December 2006).
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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Early Nicolas Bratza