European Court of Human Rights

Resolution CM/ResDH(2011)142¹

Execution of the judgments of the European Court of Human Rights

Chruściński against Poland

(Application No. 22755/04, judgment of 6 November 2007, final on 06 February 2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the lack of equality of arms and of the adversarial principle in proceedings concerning the review of the lawfulness of the applicant’s detention on remand (violations of Article 5, paragraph 4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- general measures preventing, similar violations;

DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)142

Information on the measures taken to comply with the judgment in the case of

Chruściński against Poland

Introductory case summary

The case concerns a violation of the principle of equality of arms and of the adversarial principle in proceedings concerning the lawfulness of the applicant’s detention on remand (violations of Article 5§4). Between April 2003 and December 2004, for over 20 months during which the applicant was detained on remand, neither he nor his lawyer was allowed by the prosecutor to consult the case-file.

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I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

In December 2004 the applicant and his lawyer were able to acquaint themselves with the case-file. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

On 3 June 2008, after the present judgment, the Constitutional Court delivered a judgment (case No. 42/07), in which it declared Section 156§5 of the Code of Criminal Procedure contrary to the Constitution insofar as it authorised denial of access to material which forms the basis of a prosecutor’s motion to impose or prolong detention on remand. The Constitutional Court invited Parliament to amend the existing law to avoid any arbitrariness in applying it and, as interim measure, directed that it should be interpreted in such a way that accused persons concerned by a prosecutor’s motion to impose or prolong detention on remand should be allowed to consult material constituting grounds for such motion.

Following the judgment of the Constitutional Court, the Code of Criminal Procedure was amended. A new Article 156§5a now governs the right to access case-files in proceedings concerning detention on remand. According to this article, in the course of preparatory proceedings, the accused and his defence have access to the evidence referred to in a motion to apply or prolong detention on remand; the prosecutor can only refuse this access in certain limited circumstances, for example in order to protect the victim’s life. The amendment came into force on 28/08/2009.

The judgment of the European Court has been published on the website of the Ministry of Justice. The Ministry of Justice referred the judgment to the State Public Prosecutor Office with request to disseminate it among public prosecutors.

III. Conclusions of the respondent state

The government considers that the consequences of the violation for the applicant have been erased, that the measures adopted will prevent similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.