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WLOCH v. POLAND (No. 2) - 33475/08 [2011] ECHR 770 (10 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/770.html
Cite as:
[2011] ECHR 770
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FOURTH
SECTION
CASE OF WŁOCH v. POLAND (No. 2)
(Application
no. 33475/08)
JUDGMENT
STRASBOURG
10 May
2011
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 Włoch v.
Poland (no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 33475/08) 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 Adam Włoch (“the applicant”),
on 26 June 2008.
The
Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz of
the Ministry of Foreign Affairs.
The
applicant alleged, in particular, that he had not had an enforceable
right to compensation for his pre trial detention in breach of
Article 5 § 5 of the Convention.
On
19 January 2009 the President of the Fourth Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1941 and lives in Kraków.
Between
20 September 1994 and 11 January 1995 the applicant was
detained on charges of trafficking in children on account of his
suspected involvement in illicit adoptions, and incitement to false
testimony. The proceedings as regards the charge of trafficking
in children were discontinued on 24 November 2000 by the Tarnobrzeg
Regional Court. The court found that the applicant’s
actions did not fulfil the description of such an offence. The
decision was upheld on 30 January 2001 by the Rzeszów
Court of Appeal. The remainder of the charges against the applicant
were discontinued on 26 August 2003.
On
16 May 2000 the applicant was charged with using a forged power
of attorney authorising him to represent Mr and Mrs C.
On 16 June 2005 the Tarnobrzeg District Court found
him guilty on this charge and sentenced him to a fine of 2,280 Polish
zlotys (PLN), calculated as 228 daily rates, each equivalent to
PLN 10. At the same time the court decided, under Article 63
§ 1 of the Criminal Code, to credit the period of the
applicant’s pre trial detention from 20 September
1994 to 11 January 1995 towards the fine. Since, according to
the Criminal Code, one day of deprivation of liberty equalled two
daily rates of a fine, the period of the applicant’s detention
of 114 days was credited in its entirety towards the fine. An appeal
by the applicant against that judgment was dismissed on 10 October
2005 by the Tarnobrzeg Regional Court.
On
21 January 2002 the applicant lodged an application for
compensation for unjustified detention. He sought PLN 500,000 in
respect of non pecuniary damage and PLN 150,000 for
pecuniary damage (at the material time these sums amounted to
160,000 euros (EUR) in total).
On
15 December 2005 the Tarnobrzeg Regional Court dismissed the
application. On 18 April 2006 the Rzeszow Court of Appeal
quashed the judgment and remitted the case.
On
30 June 2006 the Tarnobrzeg Regional Court dismissed the
application. The court established that the applicant’s
detention between 20 September 1994 and 11 January 1995 had
undoubtedly been unjustified within the meaning of Article 552
§ 4 of the Code of Criminal Procedure. It relied on
the Supreme Court’s interpretation to the effect that pre trial
detention was undoubtedly unjustified if it had been imposed in
violation of the Code of Criminal Procedure as well as if it had
caused the applicant suffering to which, taking into account all the
circumstances and particularly the outcome of the case, he should not
have been subjected. Accordingly, the final outcome of the case was
to be considered decisive for finding that the pre trial
detention in a case had been “undoubtedly unjustified”.
In this connection the court established that the applicant had not
been convicted of any of the offences which had been the basis of his
pre trial detention. Moreover, it pointed to the findings of the
courts, which had discontinued the proceedings against him on the
ground that the applicant’s actions did not fulfil the
description of the offences he had been charged with. Taking into
account all these arguments, the court concluded that the applicant’s
pre trial detention had undoubtedly been unjustified.
However,
the Regional Court dismissed the applicant’s application for
compensation, reiterating that on 16 June 2005 he had been
convicted of forgery, for which he had been fined PLN 2,280
(approximately EUR 550). In accordance with Article 63 § 1
of the Criminal Code, the total period of the applicant’s
pre trial detention had been credited towards the fine in such a
way that one day of pre trial detention had equalled two
daily rates of PLN 10. The court thus considered that the State
Treasury had no longer been liable for undoubtedly unjustified
detention, because the damage that had been sustained by the
applicant had been correctly compensated for by crediting the period
of his deprivation of liberty towards the fine ordered against him.
The
applicant appealed against the judgment, relying, inter alia,
on Article 5 § 5 of the Convention. He argued
that the crediting of a period of deprivation of liberty towards a
fine should not be automatic and that the courts should assess the
actual damage sustained by a detainee.
On
5 October 2006 the Rzeszów Court of Appeal (Sąd
Apelacyjny) dismissed the appeal. The court agreed with the lower
court’s findings, and those expressed in the Supreme Court’s
Resolution of 15 September 1999, which had stated that if the
pre trial detention had been compensated for by being
credited towards a fine, even one ordered in another set
of proceedings, no compensation would be granted.
The
applicant lodged an appeal on points of law against that judgment.
The
Supreme Court applied to an extended bench of the Supreme Court for a
resolution which would answer the following question:
“In the event that a period of pre trial
detention ordered in another set of proceedings is credited
towards a fine – under Article 417 of the Code of Criminal
Procedure and Article 63 of the Criminal Code – should the
claim for compensation for undoubtedly unjustified detention be
considered to have already been satisfied; or, in application of
Article 553 of the Code of Criminal Procedure (a contrario)
and the principles on calculating compensation as encompassing both
[pecuniary and non pecuniary] damage, would there still be a
claim in so far as the just amount of compensation would exceed
the amount of the fine that had been ordered?”
On
20 September 2007 the Supreme Court, sitting as a bench of seven
judges, dismissed the application for a resolution in the applicant’s
case. The court considered that the law and practice were clear and
that further interpretation of them in a resolution was not required.
It considered that there existed two ways of compensating for damage
caused by unjustified pre trial detention. The first was of
non pecuniary nature, and applied when there was a possibility
to credit a period of detention towards another penalty ordered
against the same person in the same or another set of proceedings.
The second was of a pecuniary nature, under Article 552 of the
Code of Criminal Procedure, and was applicable only if the first way
was not practicable. These two methods were mutually exclusive in
that making use of one excluded the possibility of using the other.
The Supreme Court concluded:
“... crediting of a period of pre trial
detention towards a penalty ordered in the same or in another set of
proceedings precludes the possibility of subsequently bringing
an effective claim for compensation [under the relevant
provisions of the Code of Criminal Procedure] for the same
period [of pre trial detention] ...”
On
15 November 2007 the Supreme Court, sitting as a panel of three
judges, dismissed the applicant’s appeal on points of law
following the interpretation provided by the Supreme Court in the
above mentioned decision. The court considered that there were
no provisions of Polish law that would allow for supplementary
compensation in cases where the period of detention had been credited
towards another penalty.
The
applicant was notified of the Supreme Court decision on 2 January
2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 552
of the Code of Criminal Procedure provides:
“1. An accused who, as a result of the reopening
of proceedings or an appeal on points of law, has been acquitted or
re sentenced under a more lenient provision, shall be entitled
to receive from the State Treasury compensation for the pecuniary and
non pecuniary damage which he has suffered as a result of having
served all or part of the sentence unjustifiably imposed on him.
2. The provisions of paragraph 1 shall also be
applicable if, after the sentencing judgment has been reversed or
declared null and void, the proceedings have been discontinued by
reason of material circumstances not duly considered in prior
proceedings.
3. A right to compensation for pecuniary and
non pecuniary damage shall also arise if a preventive measure
has been applied under the conditions specified in paragraphs 1
and 2.
4. A right to compensation for pecuniary and
non pecuniary damage shall also arise in the event of
undoubtedly unjustified (niewątpliwie niesłuszne)
pre trial detention or arrest.”
Article 63
(1) of the Criminal Code deals with the crediting of a period
of actual deprivation of liberty towards other penalties ordered
in the same set of proceedings. It provides:
“The period of actual deprivation of liberty in a
given case, rounded to a full number of days, shall be credited
towards the penalty ordered, with one day of actual deprivation
of liberty equalling one day of the penalty of deprivation of
liberty, or two days of the penalty of restriction of liberty, or two
daily rates of a fine.”
On
8 February 2007 the Kraków Court of Appeal partly upheld
the first instance court judgment and awarded compensation for
unjustified detention to Mr U.M.K. in the amount of PLN 35,000
as regards non pecuniary damage and PLN 23,500 for
pecuniary damage (in total approximately EUR 15,000). The
claimant was detained for a total period of twenty four days in
October 1995. The criminal proceedings against him, linked to the
applicant’s case and also concerning trafficking in children,
were finally discontinued in 2002.
On
5 October 2005 the Włocławek Regional Court gave a
judgment in which it granted compensation for unjustified
detention to Mr B.R. in the amount of PLN 50,000 as regards
pecuniary damage and PLN 25,000 in respect of non pecuniary
damage (in total approximately EUR 20,000). It appears that
Mr B.R. was also detained in connection with the same
investigation as the applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF
THE CONVENTION
The
applicant complained under Article 5 § 5 of the
Convention that he had not had an effective and enforceable right to
compensation for unlawful detention. Article 5 § 5
reads as follows:
“Everyone who has been the victim of arrest or
detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
The
Government failed to submit any comments regarding the admissibility
or merits of the case.
The
applicant complained that he had been deprived of the right to
obtain compensation for his pre trial detention between
20 September 1994 and 11 January 1995. He submitted that he
had used the only available domestic remedy; however, his claim for
compensation failed. The applicant argued that the domestic
courts’ practice of crediting a period of deprivation of
liberty towards a fine was unfair and had not compensated for the
damage sustained by him.
The
Court reiterates that Article 5 § 5 is complied with
where it is possible to apply for compensation in respect of
deprivation of liberty effected in conditions contrary to
paragraphs 1, 2, 3 or 4. The right to
compensation set forth in paragraph 5 therefore presupposes that
a violation of one of the preceding paragraphs of Article 5 has
been established, either by a domestic authority or by the Court (see
N.C. v. Italy [GC], no. 24952/94, § 49, ECHR
2002 X; Pantea v. Romania, no. 33343/96,
judgment of 3 June 2003, § 262; and Fedotov v.
Russia, no. 5140/02, § 83, 25 October 2005).
The
facts of the instant case had been examined by the Court in the first
application brought by the applicant against Poland. In its judgment
of 19 October 2000 the Court found that the applicant’s
detention between 20 September 1994 and 11 January 1995 had
not been unlawful, and thus there had been no violation of Article 5
§ 1 of the Convention. However, the Court found a breach of
Article 5 § 4 of the Convention in respect of lack of
procedural guarantees in examining the applicant’s appeal
against the detention order and speediness of review of the
lawfulness of his continued detention (see Włoch v. Poland,
no. 27785/95, §§ 130 136, ECHR 2000 XI).
Article 5 § 5 is therefore applicable
and the Court must establish whether or not the applicant had an
enforceable right to compensation for the breach of Article 5
§ 4.
The Court has found that there were two possibilities
available under Polish law of claiming compensation in relation to
pre trial detention (see Ryckie v. Poland,
no. 19583/07, 30 January 2007, § 54; and
Bruczyński v. Poland, no. 19206/03, § 67,
4 November 2008). The applicant could have instituted
proceedings for compensation for unjustified detention (Article 552
§ 4 of the Code of Criminal Procedure) or he could have
claimed compensation from the State Treasury for damage caused by the
unlawful action of a State official carried out in the course of
performing his duties (Article 417 of the Civil Code).
The
applicant brought the claim for compensation under Article 552
§ 4 of the Code of Criminal Procedure. However, his claim
was finally dismissed by the Supreme Court on 15 November 2007.
The domestic courts found that the proceedings against the applicant
had ultimately been discontinued, a circumstance which, under Polish
law, rendered his pre trial detention “undoubtedly
unjustified” within the meaning of Article 552 of the
Code - a prerequisite for obtaining compensation under this
provision. The Court has held in similar circumstances that the
compensation due to an applicant as a result of his acquittal was
indissociable from any compensation he might have been entitled to
under Article 5 § 5 of the Convention as a consequence
of his deprivation of liberty being contrary to paragraphs 1
to 4 (see N.C. v. Italy [GC], cited above, § 57;
and Staykov v. Bulgaria, no. 49438/99, § 108,
12 October 2006).
However,
no compensation was awarded to the applicant in the instant case, as
the period of his pre trial detention had been credited towards
a fine imposed on him for a different offence. Indeed, from the
Supreme Court’s decision of 20 September 2007 it is clear
that crediting a period of pre trial detention towards
another penalty is considered a non pecuniary manner of
compensating for damage sustained by an applicant. Since in the
instant case the totality of the applicant’s pre trial
detention was calculated towards a fine, it precluded the possibility
of subsequently bringing an effective claim for compensation for the
same period of pre trial detention (see paragraph 16 above) and,
it follows, for the breach of Article 5 § 4.
Thus,
the applicant’s compensation claim under Article 552 of
the Code was doomed to failure.
The
claim for compensation under Article 417 of the Civil Code was
not an effective remedy either, as it could not be used in respect of
unlawful actions which occurred before 1 September 2004, whereas
the events giving rise to this complaint took place in 1995 (see
Bruczyński, cited above, § 68).
The
Government failed to advance any argument indicating the existence of
any other compensatory remedy.
Finally, the Court reiterates that paragraph 5 of
Article 5 does not prohibit the Contracting States from making
an award of compensation dependent upon the ability of the person
concerned to show damage resulting from the breach (see Wassink
v. the Netherlands, judgment of 27 September 1990,
Series A no. 185 A, p. 14, § 38).
However, the domestic courts in the applicant’s case never
examined whether the applicant had actually sustained any pecuniary
or non pecuniary damage. No consideration was given to the issue
of whether crediting his pre trial detention towards the EUR 580
fine compensated fairly for any pecuniary and non pecuniary
damage actually sustained by the applicant.
In
the absence of the Government’s submissions the Court is unable
to establish whether, when a court credits a period of pre trial
detention towards a fine or other penalty, it gives any consideration
to the issue of damage sustained by the applicant as a result of
pre trial detention and its proportionality to the penalty to
which it is credited. However, it notes that according to domestic
practice such crediting is clearly meant to be of a non financial
character, the more so if the period of pre trial detention is
calculated towards a penalty of deprivation or limitation of liberty.
Moreover, a court credits a period of deprivation of liberty without
making any assessment of the legality of the pre trial
detention. Accordingly, the Court considers that the fact that the
total period of the applicant’s pre trial detention was
automatically credited towards another penalty imposed in respect of
an unrelated offence cannot be considered compliant with the
enforceable right to compensation contained in Article 5 § 5
of the Convention.
Regard being had to the above considerations, the
Court finds that the applicant had no enforceable right to
compensation for his detention, which has been found to be in
violation of Article 5 § 4 of the Convention. There
has therefore been a breach of Article 5 § 5 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
The
applicant also complained under Article 6 § 1 of the
Convention that the length of the proceedings was unreasonable.
The
Court observes that after the entry into force, on 17 September
2004, of the Law of 17 June 2004 on complaints about a breach of
the right to a trial within a reasonable time (Ustawa o skardze na
naruszenie prawa strony do rozpoznania sprawy w postępowaniu
sądowym bez nieuzasadnionej zwłoki –
“the 2004 Act”) it was open to anyone involved
in judicial proceedings to lodge a complaint of unreasonable length
with the relevant domestic court.
The Court has already examined that remedy for the
purposes of Article 35 § 1 of the Convention and
found it to be effective in respect of complaints of excessive
length of judicial proceedings in Poland. In particular, it has
considered that that remedy is capable both of preventing a
violation of the right to a hearing within a reasonable time or
its continuation, and of providing adequate redress for any violation
that has already occurred (see Charzyński v. Poland
(dec.), no. 15212/03, §§ 36 42, ECHR
2005 V).
However,
the applicant has chosen not to avail himself of that remedy. It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non exhaustion of domestic remedies.
III. 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 EUR 46,000 in respect of pecuniary damage. He
also requested the Court to award him compensation for non pecuniary
damage, without specifying any amount, for his distress and suffering
caused by violation of the Convention.
The
Government did not comment on the applicant’s claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
It further considers that in the particular circumstances of the
case the finding of a violation constitutes in itself sufficient just
satisfaction for any non pecuniary damage which may have been
sustained by the applicant.
B. Costs and expenses
The
applicant did not claim reimbursement of any costs and expenses
incurred before domestic courts or the Court.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning Article 5 § 5
of the Convention admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of
Article 5 § 5 of the Convention;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non pecuniary damage sustained;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
