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MIROSLAW GARLICKI v. POLAND - 36921/07 [2011] ECHR 930 (14 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/930.html
Cite as:
[2011] ECHR 930,
(2014) 58 EHRR 34,
58 EHRR 34
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FOURTH
SECTION
CASE OF MIROSŁAW GARLICKI v. POLAND
(Application
no. 36921/07)
JUDGMENT
STRASBOURG
14 June
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
Mirosław Garlicki v. Poland,
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 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 36921/07) 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 Mirosław Garlicki
(“the applicant”), on 11 August 2007.
The
applicant was represented by Ms M. Bentkowska-Kiczor and,
subsequently, by Ms M. Gąsiorowska, lawyers practising in
Warsaw. 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 his detention on remand had
not been imposed by an independent judicial officer and that his
right to be presumed innocent had been violated.
On
2 October 2007 the Court decided to give notice of the application to
the Government. It also decided to rule on the admissibility and
merits of the application at the same time.
The
Court took note of Judge Lech Garlicki's declaration that the fact of
his surname being the same as the applicant's was purely coincidental
and that there was no relationship of any kind.
Written
submissions were received from the Helsinki Foundation for Human
Rights in Warsaw, which had been granted leave by the President to
intervene as a third party (Article 36 § 2 of the
Convention and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1960 and lives in Kraków.
A. The applicant's arrest and detention on remand
The
applicant is a doctor, specialising in cardiac surgery. He is one of
the few specialists in Poland qualified to perform heart transplants.
At the relevant time he was the Director of the Cardiac Surgery
Clinic in the Ministry of Internal Affairs and Administration
Hospital in Warsaw and an assistant professor at the Jagiellonian
University Medical College in Kraków.
Following
information submitted by doctors employed in the Ministry of Internal
Affairs and Administration Hospital, on 12 December 2006 the Warsaw
Regional Prosecution Office instituted an investigation into cases of
alleged medical negligence and several counts of harassment of
hospital staff by the applicant. It appears that the applicant was
also suspected of receiving bribes from his patients.
On
12 February 2007 the applicant arrived at work at about 7 a.m. and
started preparing for an operation which was planned for that
morning.
At
7.40 a.m. a dozen masked and armed officers of the Central
Anti corruption Bureau (CAB) stormed the Cardiac Surgery Clinic.
Some of the officers burst into the applicant's office pointing their
firearms and shouting. The officers threw the applicant to the floor,
pinned his head to the floor and then handcuffed his hands behind his
back. They searched the applicant's office. Subsequently, they
allowed him to change his clothes and handcuffed him again, this time
with his hands in front.
The
applicant was taken, in handcuffs, out of his office to the
hospital's outdoor car park. There were a large number of masked and
armed officers in the car park and some were in plain clothes. The
applicant's car was searched over a period of about one hour. A
sniffer dog was also used. During this time the applicant stood
nearby with his hands visibly handcuffed. The events were viewed by
hundreds of hospital staff, patients and visitors. The applicant's
arrest was filmed continuously by one of the officers.
Subsequently
the applicant was taken to his flat in Warsaw. Several dozen officers
searched the flat over a period of nine hours. They seized several
hundred objects, including bottles of alcohol, watches, fountain
pens, cutlery, porcelain, and so on which were to be used as evidence
of the applicant's bribe-taking. The search of his flat was also
filmed.
The applicant was then taken to a hospital for a
medical check. At about midnight on 12 February 2007 the
officers took the applicant to see Mr Mariusz Kamiński, the Head
of the CAB, who shouted at him using offensive language. He said,
among other things, that the applicant would not leave prison before
turning seventy. The Government submitted that there was no
information in the case file concerning the meeting between the Head
of the CAB and the applicant.
The
applicant was detained at Warsaw Police Headquarters.
According
to the Government, the applicant did not appeal against his arrest
(zażalenie na zatrzymanie) or object to the way in which
the CAB's officers executed the search of his flat.
On
13 February 2007 at about 3 p.m. the Warsaw Regional Prosecutor
charged the applicant with twenty offences, including exposing
a patient to a direct danger to his life or health (Article 160
§ 1 of the Criminal Code (“CC”)), homicide of a
patient (Article 148 § 1 of the CC), harassing a member of
staff, forgery of medical documentation, and sixteen counts of taking
bribes from patients. The prosecutor based his decision on the
evidence gathered in the case, including statements of victims and
secret video-recordings of some cases of receiving bribes.
According
to the applicant, on 12 and 13 February 2007 he was not given any
food.
On
14 February 2007 A.M., an assessor (junior judge) at the
Warsaw-Mokotów District Court, remanded the applicant in
custody until 11 May 2007. The order read as follows:
“The evidence
gathered in the case, in particular witnesses' depositions and the
suspects' statements (...), expert reports (...) and documentation
from the secret files (...) points to a strong likelihood that the
suspect [applicant] committed the offences with which he is charged,
and that is a basic evidentiary condition for the imposition of a
preventive measure pursuant to Article 249 § 1 of the Code of
Criminal Procedure.
The investigation is
in its early stage and it is necessary to undertake many further
investigative measures to clarify fully the circumstances under
investigation. Having regard to the nature of the charges and the
surrounding circumstances, there is a reasonable risk that the
suspect, if left at liberty, could engage in acts aimed at
obstruction of the proceedings. Many persons who must necessarily be
questioned in the course of the present proceedings are
hierarchically subordinate to the suspect [applicant], and that
necessitates preventing the suspect [applicant] from contacting them
in any manner. Moreover, as Director of the Cardiac Surgery Clinic
the suspect [applicant] has access to information which must be kept
secure and is required by the authorities conducting the
investigation to allow the circumstances which gave rise to the
charges to be clarified in full.
Furthermore, in
respect of one of the offences with which the suspect is charged
[homicide] he is liable to a sentence of 25 years' imprisonment or
life imprisonment, while in respect of many other offences he is
liable to a maximum sentence of 8 years' imprisonment. The real risk
that a severe penalty might be imposed on him may thus induce the
suspect to undertake illegal actions to obstruct the proceedings.
...”
On
the same day, following the pronouncement of the Warsaw Mokotów
District Court's decision, the Minister of Justice Prosecutor
General and the Head of the CAB held a press conference concerning
the applicant's case.
The
applicant appealed against the detention order. He submitted that the
evidence in the case was insufficient to charge him with homicide and
that the prosecution had intentionally formulated the charge with a
view to compelling the court to remand him in detention. Furthermore,
the applicant contested the finding that he would obstruct the
proceedings. He argued that the District Court should have considered
the imposition of other, more lenient, preventive measures having
regard to the applicant's unblemished reputation and in view of the
Court's case-law. In addition, he submitted that remanding him in
detention could expose his patients to death by preventing them from
undergoing their planned cardiac operations. Lastly, referring to the
Convention, the applicant raised the issue of the status of the
assessor and averred that she did not enjoy the necessary guarantees
of independence from the executive.
On
15 March 2007 the Warsaw Regional Court dismissed the applicant's
appeal. It found that the applicant was suspected of having committed
a series of offences. The court noted:
“even
leaving aside the charge of homicide, other charges (bribery)
attracted a statutory maximum sentence of at least eight years'
imprisonment”.
Thus,
the applicant's detention on remand was justified by the severity of
the anticipated penalty, in view of the significant number of bribery
charges.
As
to the applicant's argument that the evidence in the case had been
insufficient to charge him with homicide, the Regional Court noted
that that was not the only charge against the applicant. In
connection with other charges (including bribery) there was enough
evidence to substantiate a reasonable suspicion that the
applicant had committed the offences. The Regional Court further
concurred with the District Court's view that there was a risk that
the applicant would attempt to influence witnesses, and that only
custodial measures would ensure the proper conduct of the
proceedings. The court did not respond to the argument concerning the
status of the assessor.
On
7 May 2007 the Warsaw Regional Court, on an application from the
prosecution, extended the applicant's detention until 11 August 2007
but at the same time held that he would be released if he put up bail
in the amount of PLN 350,000 (approximately EUR 90,000) by 31
May 2007. It reasoned as follows:
“The
prosecutor justifies his application for the extension of detention
on remand by the severity of the likely penalty and the risk of
obstruction [of the proceedings] by the suspect.
The Code of Criminal
Procedure requires the authorities conducting the proceedings to
analyse, at every stage, whether the evidence gathered in the case
sufficiently justifies the imposition of preventive measures. Thus,
the court could not leave unaddressed the legal classification of the
act allegedly committed by the suspect to the detriment of the victim
J.G. under Article 148 § 1 of the Criminal Code, particularly as
it appears from the grounds for the prosecutor's application that the
likelihood of a severe sentence of imprisonment (even life
imprisonment) for that act is one of the grounds for extending
Mirosław Garlicki's detention. In the court's view, the
prosecution's assessment cannot be sustained in any way. It has to be
noted that the [prosecutor's] application does not contain any
reasons for giving such a legal classification to the suspect's act.
It cannot be maintained that the reports presented by experts Z.R.
and A.B. point to a possibility of charging Mirosław Garlicki
with homicide committed with conditional intent (“zamiar
ewentualny”). Moreover, the prosecutor assumes such legal
classification of the charge in isolation from the established
case-law (...) Taking into account, as stated above that the charge
[of homicide] is groundless, it evidently could not serve as a
ground to grant the [prosecutor's] application.
However, the
evidence gathered so far in the investigation, which, apart from
witness statements, also includes evidence obtained by technical
means as a result of covert measures (czynności operacyjne),
points to a strong likelihood that the suspect committed the
corruption-related offences with which he has been charged. Those
offences attract a severe sentence of imprisonment, and having regard
to their significant number it is likely that the suspect will be
sentenced to a lengthy term of imprisonment. The last issue to
determine is whether remand in custody is the only preventive measure
which could secure the proper conduct of the proceedings.
In the court's view,
contrary to the prosecutor's position, there is no substantiated risk
that the suspect would unlawfully obstruct the criminal proceedings,
e.g. by inducing witnesses to give false testimonies. Such a risk is
not in any way apparent from the statements or testimonies of persons
indicated in the grounds for the [prosecutor's] application. While it
can be accepted that the need to remand the suspect in custody
existed at the beginning of the proceedings, where there was a risk
that he would influence the testimonies of his subordinates, there is
clearly no such risk at the present moment. The investigation has
been conducted with particular intensity and all the persons employed
in the Cardiac Surgery Clinic of the hospital have already been heard
and that evidence is secured. The suspect Mirosław Garlicki is
also no longer the superior of those persons and it cannot be said
that there is any hierarchical relationship between them. It is
further difficult to assume in the circumstances of the case that the
suspect will return to the post he held before. Similarly, it cannot
be said that the suspect may influence the actions of the authority
conducting the proceedings aimed at securing medical documentation
and the preparation of a cardiac surgery expert report. Clearly, the
suspect has no influence whatsoever in respect of the evidence
obtained so far with the use of technical devices. (...) The suspect
does not have a criminal record, and as it can be seen from the
declarations produced by the defence, many public persons are willing
to provide a guarantee that Mirosław Garlicki will not obstruct
the pending proceedings. ...
In those
circumstances, in the court's view, if bail in the amount of PLN
350,000 were paid within the fixed time-limit, that would be a
sufficient preventive measure ensuring the proper conduct of the
proceedings and the suspect's appearance in response to every summons
of the authorities conducting the proceedings.”
The
prosecution appealed against the Regional Court's decision. On 18 May
2007 the Warsaw Court of Appeal partly amended the impugned decision
by imposing further preventive measures in the event of the
applicant's release. It ruled that guarantees given by A.W., deputy
president of the Supreme Medical Chamber, and L.A., a member of the
board of the Polish Transplantation Society, be produced. It also
imposed a ban on the applicant's leaving the country and ordered the
seizure of his passport. For the rest, the Court of Appeal upheld the
Regional Court's decision.
On
18 May 2007 all the conditions specified by the Court of Appeal were
met and the applicant was released.
It
appears, as revealed by the Gazeta Wyborcza daily, that the
investigation in the applicant's case was code-named “Mengele”
by the CAB. The Court of Appeal considered the code name to be
inappropriate and informed the Prosecutor General accordingly.
On
12 May 2007 the applicant's employment contract with the Ministry of
Internal Affairs and Administration Hospital came to an end.
On
24 September 2007 the public prosecutor additionally charged the
applicant with nine counts of violation of employees' rights,
harassment of his wife, subjecting a person to sexual intercourse
several times while abusing a relationship of dependence, attempt to
subject a person to sexual intercourse, and several counts of
bribery. In total, the applicant was charged with forty-nine counts
of bribery.
On
7 May 2008 the Warsaw Regional Prosecutor discontinued the
investigation against the applicant in respect of the charges of
exposing a patient to a direct danger to his life or health
(Article 160 § 2 of the CC), homicide of a patient (Article 148
§ 1 of the CC) and forgery of medical documentation on the
grounds that there was no evidence that the applicant had committed
those offences. In respect of the first two offences, the prosecutor
based his decision on the expert evidence, in particular the report
prepared by a German cardiology expert.
The
bill of indictment against the applicant was filed with the
Warsaw-Mokotów District Court on an unspecified date.
It
appears that the applicant's trial is pending.
B. The press conference concerning the applicant
On
13 February 2007 the Minister of Justice – Prosecutor General
and the Head of the CAB convened a press conference on the
applicant's case for the following day. The press conference took
place on 14 February 2007 at 2 p.m. shortly after the
Warsaw-Mokotów District Court had pronounced its decision
ordering the applicant's detention on remand.
During the press conference the Minister of Justice –
Prosecutor General and the Head of the CAB referred to the applicant
as “Doctor G.”. However, at the outset they specified
that the applicant was the Director of the Cardiac Surgery Clinic in
the Ministry of Internal Affairs and Administration Hospital at
Wołoska Street in Warsaw, which enabled the media to quickly
establish the applicant's identity.
According
to the transcript of the press conference, the Head of the CAB stated
in respect of the charges concerning bribe-taking:
“The
information gathered and the evidence obtained mean that today we can
tell you clearly: Doctor G., acting the part of a virtuoso of Polish
cardiac surgery, is a ruthless and cynical bribe-taker. We have
knowledge of several dozen bribes accepted by this doctor.”
The
Minister of Justice – Prosecutor General, Mr Z. Ziobro, stated
in respect of the charge of homicide:
“Life often
writes the most brutal scenarios. The facts which the service headed
by Minister Kamiński [the CAB] succeeded in unveiling are truly
shocking. What we are seeing here was not limited to cynical abuse of
human feelings, emotions and the affection of close relatives for
their loved ones who were ill, and the exploitation of those
feelings. Extorting money, robbing people not only of money but also
of hope often, even when the hope was not really there, the
money was still extorted. And not only that, the evidence shows that
what could happen here is more than just massive corruption and gross
negligence and medical malpractice. One of the charges made by the
prosecution is that of homicide in one of the cases which the
Minister Kamiński referred to me. ...
Initially (...) I
did not believe it. I could not get it into my mind that in the
health service, in a very well known clinic, a very well known and,
at least until recently, universally respected cardiac surgeon and
professor could perpetrate shameful acts of this sort. But when I
began to find out what evidence had been gathered by the CAB, and
later also by the prosecutors, I changed my mind. I have changed my
mind and, unfortunately, I am more and more overcome with sadness,
but we can see this unfortunately sad discovery of the truth as an
important event in the true sense of that expression, in that no-one
else will ever again be deprived of life by this man (już nikt nigdy
przez tego pana życia pozbawiony nie będzie). Ladies
and Gentlemen, at the present moment I have one substantiated case
indicating with high probability a possible homicide, and in
this connection a charge based on Article 148 [intentional homicide]
of the Criminal Code was made. Other cases where the circumstances of
patients' deaths are unclear are obviously also being examined. We
don't prejudge the character of those events. Ultimately, the court
will decide the case; nonetheless, what we have already established
and gathered as evidence at the present moment is truly shocking ...
I would like to
emphasise once again, that as the Prosecutor General, the person who
directly supervised this case from a certain moment, I regard very
highly the professionalism of the CAB's officers, the professionalism
of the prosecutors, thanks to which we succeeded in gathering strong
evidence, which is rare and which definitely shows that we were
dealing with a long-lasting criminal activity. ...
If you will permit
me, in respect of the charge of homicide, the [applicant's] cynicism
is demonstrated by the fact that where we can see from the evidence
in our possession that a man [patient] was de facto sentenced
to death, that did not prevent this gentleman [the applicant] from
demanding a bribe from his close family, and as the family were poor,
they had no possessions, they were farmers, he suggested that they
sell their cow so as to have money purportedly to save their dear
father. And how he went about saving [that patient] finds its
expression in Article 148 of the Criminal Code, so I think that this
example very [well] illustrates the attitude, the lofty morals of
this virtuoso, as some media have called him. ...
I wanted to stress
that the Director of the Clinic [the applicant] in the Ministry of
Internal Affairs and Administration Hospital has been charged with
homicide; according to the prosecutors, acting with the conditional
intent (“zamiar ewentualny”) of depriving a
patient of life, and anticipating and accepting the result of his
death, he undertook a series of acts which, in short, led to that
[death]. That is what is meant by depriving of life with conditional
intent, conduct which emerges from well documented evidence, hence
the charge. It is a very striking and cynical desire for profit and
arrogance, incredible and striking arrogance in the conduct of the
person charged with committing those offences, those crimes ....”
During
the press conference the CAB's recording of the applicant's arrest
and the search of his apartment was shown. The recording emphasised
the significant number of objects and money seized from the
applicant's flat which were to be used as evidence of his corruption.
The
main news programme broadcast on the public television station on 14
February 2007 at 7.30 p.m. started with a news story about the
applicant which was entitled “Doctor Death”. The news
reader stated that “He [the applicant] had murdered a patient
because he did not get a bribe from him” and informed viewers
that the applicant had committed homicide and accepted bribes. News
of the applicant's arrest and the press conference was widely
reported in all the media.
The
Minister of Justice – Prosecutor General's comments about the
applicant prompted strong criticism from the former Ombudsman, the
National Bar Council, the Polish Helsinki Committee and others.
On 23 February 2007 the President of the Constitutional
Court stated that the Minister of Justice – Prosecutor General
had breached the Constitution by making statements about doctor G.'s
[the applicant's] guilt and that he should be held to account before
the State Tribunal (Trybunał Stanu).
In
response to that suggestion the Minister stated, as reported in the
Rzeczpospolita daily of 24-25 February 2007:
“A person who
has just begun holding such office [as President of the
Constitutional Court] sometimes says a few words too many. I don't
take back anything and I am ready to repeat it all. The judge [the
President of the Constitutional Court] should go further and demand
that I be charged before the Rwanda Crimes Tribunal [International
Criminal Tribunal for Rwanda].”
C. Civil proceedings brought by the applicant against
Mr Z. Ziobro
On
12 September 2007 the applicant brought a civil action against Mr Z.
Ziobro for infringement of his personal rights under Articles 24 and
448 of the Civil Code. He sought an order requiring the defendant to
personally express the following apology on the main national radio
and television stations and in four major newspapers:
“I, Zbigniew
Ziobro, apologise to Dr Mirosław Garlicki for what I said about
him, namely that 'no-one else will be deprived of life by this man',
which tarnished the good name and reputation of Dr Mirosław
Garlicki. I express my regret and admit that these words were
deceitful and insulting and should have never been spoken by me.”
The
plaintiff further sought an award of PLN 70,000 in compensation for
non-pecuniary damage and an order enjoining the defendant to refrain
from making any future statements which would suggest that the
applicant had committed homicide.
On
25 August 2008 the Kraków Regional Court gave judgment. It
ordered the defendant to publish an apology directly after the main
evening news programmes on the three national television stations
(TVP, Polsat and TVN). The apology read:
“I, Zbigniew
Ziobro apologise to Dr Mirosław Garlicki for having said about
him that 'no-one else will ever again be deprived of life by this
man', which tarnished the reputation of Dr Mirosław Garlicki.”
„(Ja Zbigniew
Ziobro przepraszam Pana dr Mirosława Garlickiego za
wypowiedzenie pod jego adresem słów – już nikt
nigdy przez tego Pana życia pozbawiony nie będzie –
które naruszyły cześć Pana dr Mirosława
Garlickiego).”
The
court awarded the applicant compensation in the amount of PLN 7,000.
It dismissed the remainder of the applicant's action.
When
establishing the facts, the court based its findings on the
transcript of the press conference held by the Head of the CAB and
the Minister of Justice – Prosecutor General on 14 February
2007, various official and private documents, press releases and
rectifications issued by the Ministry of Justice and press articles.
As
regards the question whether there was an infringement of the
applicant's personal rights, the Regional Court held that the
defendant had damaged the applicant's reputation (cześć).
In this respect it found, inter alia:
“... the
statements included in the defendant's impugned announcement,
including ... just the information about the prosecution's charges
brought against the claimant (whose identification was a simple
matter since his first name, the first letter of his surname, his
place of employment and the function held were given), without any
need to refer to more categorical terms employed by the defendant
such as 'no-one else will ever again be deprived of life by this
man', or describing the claimant as a ruthless
and cynical bribe-taker who de
facto
sentenced his patient to death and so on, objectively infringed the
personal rights of the claimant...”
Once
it was demonstrated that there was an infringement of the applicant's
personal rights, Article 24 of the Civil Code established
a presumption that such infringement was unlawful. Accordingly,
the Regional Court examined next whether there had been any grounds
to exclude the defendant's liability for unlawfully damaging the
applicant's reputation. The court held that the defendant's actions
had been unlawful, having regard to the nature of the allegations
made against the claimant and the limitations stemming from the
principle of the presumption of innocence. In this respect, the
Regional Court found inter alia:
“...it was or
could have been within the powers of the Prosecutor General –
the office held by the defendant at the material time – to
inform the public about particular investigations and their progress,
and also to disclose – within the boundaries set by the law –
information regarding the suspect or the accused. ...
However, those
persons so authorised do not enjoy 'complete freedom of expression'
as asserted by the defendant if their actions are undertaken in the
public interest. That principle, despite the defendant's assertion to
the contrary, has not been accepted in the jurisprudence of the
Polish courts; in particular it is not reflected in the position set
out ... in the Supreme Court's judgment of 23 July 2007
(case no. II CKN 285/97). It was clearly
indicated [in this judgment] that a negative assessment of a person's
behaviour expressed by a State authority (or official) is not an
unlawful assessment where, although it was not sufficiently verified
or justified in the specific circumstances (because, for example, of
the erroneous assessment of certain facts or the lack of complete
factual material), it was nonetheless made within the scope of
statutory competences and within the boundaries of matter-of-fact
necessity (w ramach rzeczowej potrzeby).
Worth noting here is
the judgment of the European Court of Human Rights of 10 February
1995, ... which states that freedom of expression, guaranteed by
Article 10 of the Convention, includes the freedom to receive and
impart information. Article 6 § 2 cannot therefore prevent the
authorities from informing the public about criminal investigations
in progress, but it requires that they do so with all the discretion
and circumspection necessary if the presumption of innocence is to be
respected (application no. 15175/89 [Allenet de Ribemont v. France];
see also the judgment of the ECHR of 26 March 2002, application no.
48297/99 [Butkevičius v. Lithuania]).
In the court's
assessment, the critical statement of the defendant fell short of
this obligation. Indeed, the defendant did not only state the charge
of having committed an offence specified in Article 148 of the
Criminal Code as brought against the claimant on the basis of the
prosecution's decision and the circumstances justifying it, but in
his emotional, exaggerated, unbalanced and judgmental statement
emphasised this charge in a manner which excluded any doubts as to
its correctness (lecz swoją emocjonalną,
egzaltowaną, niewyważoną i ocenną wypowiedzią
wyeksponował ów zarzut w sposób wykluczający
jakiekolwiek wątpliwości co do jego słuszności).
This effect was exacerbated by the statement that 'no-one else will
ever again be deprived of life by this man' ... For in situations
where there is unintentional deprivation of life it is rather
accepted to use such terms as an accident, error, coincidence,
misfortune or incident. ...
It should be stated
once more that at the press conference no accurate information was
given about the results of the investigation, [and] almost no
concrete information about the investigation at all.
It should be
underlined that the defendant undoubtedly had the right to disclose
information related to the charge brought against the claimant;
however due to the risk of misinterpretation of this information by
the recipients he should have refrained from statements giving rise
to belief in the claimant's guilt. The more so since as the
Prosecutor General, responsible for safeguarding the rule of law
(section 2 of the Prosecution Authorities Act of 20 June 1985), [he]
had the duty to comply with the important principle of the legal
order imposing respect for the defendant's presumption of innocence
as a legally protected interest. In this connection, the defendant
should have presented the information concerning the investigation,
in particular in respect of the charge of homicide, in a moderate
form, without passing his own judgment, which would go significantly
beyond reporting on the proceedings. It should thus be considered
that the behaviour of the defendant was not factual and cautious,
[and] that the opinions expressed exceeded what was strictly
necessary, and the terms employed were exaggerated in form and
content.”
With
regard to the redress for the damage to the applicant's reputation,
the Regional Court partly modified the text of the apology by having
its second sentence deleted. In so doing it took into account the
type of right infringed and the scope of the infringement. Concerning
the enforcement of its judgment, it obliged the defendant to publish
the apology at his expense rather than requiring him to express it
personally. The court further considered that it would be appropriate
to limit the number of places where the apology should be published
to three major television stations (one public and two private). This
decision was motivated by the need to achieve the compensatory and
preventive rather than the repressive goal of the publication of an
apology.
As
regards compensation for non-pecuniary damage suffered on account of
the infringement, the Regional Court held that the defendant's fault,
at least in the form of negligence, had been established. The use of
words which clearly suggested that the claimant had undoubtedly
committed homicide had breached the principle of the presumption of
innocence, thereby infringing the claimant's personal rights. At the
relevant time the defendant had held the office of Minister of
Justice – Prosecutor General, so he had been under a particular
duty to formulate his statements carefully. The Regional Court
awarded the applicant PLN 7,000 which it considered adequate in the
circumstances, having regard to a number of relevant factors,
including the gravity of the infringement and the extent of the
damage suffered. It took into account that the applicant had failed
to demonstrate what precise impact the impugned statement had had on
his private life and that, in respect of his professional life, the
applicant had been employed in a private hospital since the summer of
2008.
Both parties appealed. The applicant contested, inter
alia, the manner of publication of the apology and the
modification of its text. He took issue with the deletion of the
second sentence from the apology, which he considered important for
the restoration of his reputation. He further objected to the low
amount of compensation for non-pecuniary damage.
The
defendant challenged the Regional Court's judgment in its entirety.
He argued that he had not infringed the applicant's personal rights
and, alternatively, that any such infringement had been in accordance
with the law. The defendant alleged that the court had erroneously
applied substantive and procedural law. He also submitted that the
order to publish the apology had taken the appearance of a financial
sanction.
On 9 December 2008 the Cracow Court of Appeal held a hearing and gave
judgment. It amended the first-instance judgment only in respect of
the compensation awarded to the applicant which it increased to
PLN 30,000. The Court of Appeal dismissed the remainder of the
applicant's appeal and dismissed the defendant's appeal in its
entirety.
The
Court of Appeal noted that the claimant had established, in
accordance with the burden of proof lying on him, that his personal
right to respect for his reputation had been infringed by the
defendant's statement “no-one else will ever again be deprived
of life by this man”. In that connection, it fully accepted the
factual findings and legal assessment of the Regional Court. The
infringement of the claimant's personal right had been evident as the
defendant had indicated that the charge of homicide had been made
against the head of a specific department of a particular hospital.
As regards the damage to the applicant's reputation, the Court of
Appeal found:
“... the
first-instance court did not violate the provisions of substantive
and procedural law referred to by the defendant in his appeal.
Similarly the allegation of errors in respect of factual findings
which were relevant for the determination of the issue could not
stand. The facts weighing in favour of the infringement of the
claimant's personal right to respect for his reputation on account of
the defendant's impugned statement were so obvious (contra factum
nullum argumentum) that no argument by the defendant can entail
the intended legal consequences. It is not open to doubt that since
the impugned statement was made by the Minister of Justice
Prosecutor General the public reaction of persons who had no
professional dealings with the law in respect of the claimant ... had
to be negative, i.e. they would be convinced of his guilt.”
With
regard to the presumption of unlawfulness of the infringement, the
Court of Appeal held that the defendant had failed to rebut the
presumption. It found inter alia:
“The
constitutional and criminal-law principle of the presumption of
innocence implies that an accused person (and even more so a suspect)
must be presumed innocent until his guilt is proved and confirmed by
a final court decision. ...
The impugned
statement [of the defendant] was inadmissible at that stage of the
ongoing proceedings, and in particular because of the principle of
the presumption of innocence. The defendant, even though he was the
Minister of Justice - Prosecutor General, was not authorised to make
such a statement in respect of the claimant since at that stage [of
the proceedings] no final judgment convicting him of the alleged
offence had been given. He [the defendant] had the unquestionable
right to inform the public about the charges brought against the
claimant ... but the manner in which he did it ... was not
appropriate for the office which he held ...
Moreover, the degree
of unlawfulness of the defendant's actions results from the fact that
the prosecutor charged the claimant with homicide of a patient, and
the court remanded the claimant in custody and his appeal was not
allowed by the second-instance court. However, as it turned out later
... the evidence subsequently gathered in the investigation did not
at all substantiate such accusations ...
The defendant's
impugned statement in the light of the final result of the criminal
proceedings against the applicant in respect of the offence specified
in Article 148 § 1 of the CC clearly underlines the essence and
the purpose of the principle of the presumption of innocence.
In the circumstances
of the present case the defendant cannot exactly claim that he acted
in accordance with the law or in defence of a justifiable public
interest. It cannot be accepted either that the impugned statement
was made on the basis of information which was collected with due
diligence. The principle of the presumption of innocence required
that the defendant display exceptional care and diligence in
formulating publicly any statements to the effect that the claimant,
as a doctor, committed homicide on a patient, irrespective of the
information and opinions given by the persons he requested to be
heard as witnesses in the case. The defendant, being a lawyer holding
a high public office, should in particular have consulted expert
opinions. ...”
The
Court of Appeal concurred with the Regional Court's judgment in
respect of the text of the apology and the form in which it was to be
made. With regard to compensation for non-pecuniary damage, the Court
of Appeal agreed that the defendant had been at fault through
negligence, but held that it had been gross negligence. It found in
this respect:
“... the
defendant is a lawyer, and at the time of the infringement of the
claimant's personal right he held the office of Minister of Justice –
Prosecutor General, and as such he should have known what information
from the investigation ... he could make public, as well as what he
could say about a person who was charged and remanded in custody. On
the other hand, as a politician he should have been aware of the
media effect of such a categorical statement as 'no-one else will
ever again be deprived of life by this man' in the claimant's case
and where the defendant divulged the necessary information to enable
the claimant's identification. ... The impugned statement, having
regard to the stage of the ongoing criminal proceedings against the
claimant, violated the basic written rules of legal knowledge (the
presumption of innocence and in dubio pro reo). Moreover, in a
case where a doctor – whose mission, vocation and task is to
save human life and health – was charged with homicide of
a patient in connection with a surgical operation (it is
difficult to imagine a more serious allegation against a doctor in
relation to his profession) he should have realised that to make
publicly so categorical and definite a statement was highly
unprofessional and irresponsible ...”
The
Court of Appeal, having regard to all the factual circumstances of
the case, including the significant publicity which the defendant's
statement attracted in the media and the moral suffering of the
applicant, found that it would be appropriate to award PLN 30,000 for
non-pecuniary damage.
Mr
Z. Ziobro lodged a cassation appeal against the Court of Appeal's
judgment. On 29 October 2009 the Supreme Court refused to entertain
his cassation appeal. It found that there had been no significant
legal issue in the case which would justify the examination of the
cassation appeal on the merits.
On
an unspecified date the defendant paid the applicant the compensation
awarded by the court.
On
9 January 2010 Mr Z. Ziobro's apology was broadcast.
D. The seizure of the applicant's property
On
16 February 2007 the Regional Prosecutor made a seizure order in
respect of the applicant's property with a view to securing the
payment of an anticipated fine in the amount of PLN 720,000 (EUR
180,000). The order extended to the applicant's movable property,
including money found in his flat, his salary and his bank accounts.
The applicant was also prohibited from selling his car.
On
the same day the prosecutor made a second seizure order in respect of
the money found during the search of the house of the applicant's
parents. The prosecutor seized a total of approximately PLN 90,000.
The
applicant appealed against the seizure orders, arguing that they were
ultra vires at that stage of the investigation and clearly
excessive in view of the charges against the applicant.
On
26 April 2007 the Warsaw-Mokotów District Court dismissed the
applicant's appeal. It found that the seizure orders had complied
with the requirements specified in Article 291 §§ 1-2 of
the Code of Criminal Procedure, namely that he had been charged with
offences in respect of which a fine or obligation to compensate
damage might be imposed. The court noted that at this stage of the
proceedings the prosecutor's decision could not be considered
arbitrary, having regard to the evidence gathered in the case.
Furthermore, the measure had been intended to effectively secure the
payment of a significant fine which might be imposed on the
applicant.
On
11 September 2007 the Warsaw Regional Prosecutor issued a press
release announcing that some of the objects found in the applicant's
flat had been returned to him as they were his personal property and
were irrelevant to the ongoing proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention on remand
The
relevant domestic law and practice concerning detention on remand
(tymczasowe aresztowanie), the grounds for its prolongation,
release from detention and rules governing other, so-called
“preventive measures” (środki zapobiegawcze)
are stated in the Court's judgment in the case of Kauczor v.
Poland, no. 45219/06, §§ 25-27, 3 February 2009.
B. Presumption of innocence
Article
42 § 3 of the Constitution provides:
“Everyone
shall be presumed innocent until proved guilty in a final decision of
a court of law.”
A
similar principle is laid down in Article 5 § 1 of the Code of
Criminal Procedure.
C. The Prosecution Authorities and the Prosecutor
General
The
Law of 20 June 1985 (as amended) on Prosecution Authorities (the
Prosecution Authorities Act) (ustawa o prokuraturze) sets
out general principles concerning the structure, functions and
organisation of prosecution authorities.
Section
1 of the Act, in the version applicable at the material time,
stipulated, in so far as relevant:
“1.
The prosecuting authorities shall be the Prosecutor General and,
subordinate to him, prosecutors, military prosecutors and prosecutors
of the Institute of National Remembrance (...).
2.
The Prosecutor General shall be the highest prosecution authority;
his functions shall be carried out by the Minister of Justice.”
Under
section 7 of the Act, in carrying out his or her statutory duties,
a prosecutor must abide by the principles of impartiality and
equality of citizens before the law.
Pursuant
to section 8 of the Act, a prosecutor is independent in carrying out
his or her duties, within the limits set out in this section.
A prosecutor is required to abide by the instructions,
guidelines and orders of his superiors. However, if an order relates
to the substance of any action to be taken in proceedings, a
prosecutor may request [his superior] to issue the order concerned
with reasons in writing, to alter the order, to relieve him from
performing an act prescribed by that order, or to remove him from
conducting the case in question. Requests to be removed from a case
must be decided by a hierarchical superior of the prosecutor who
issued the order.
On
31 March 2010 the amendments to the Prosecution Authorities Act
entered into force. The amended Act provides for the separation of
functions between the Minister of Justice and the Prosecutor General.
D. Assessors (junior judges)
The relevant domestic law and practice regarding the
status of assessors, including the landmark judgment of the
Constitutional Court of 24 October 2007 (case no. SK 7/06), are set
out in the Court's judgment in the case of Henryk Urban and
Ryszard Urban v. Poland, no. 23614/08, §§ 16-25,
30 November 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Article 3 of the Convention that during
his arrest he had been subjected to degrading treatment, in
particular that the manner of his handcuffing had been entirely
unnecessary in the circumstances. The applicant underlined that his
exposure in handcuffs to the hospital staff, patients and third
persons during his arrest and the search of his car had been totally
unjustified. Similarly, the applicant's arrest had been filmed with
the aim of degrading him. In this connection, he also complained that
the pictures of him handcuffed taken by the CAB during his arrest had
been made available to the press and had been published on 13
February 2007 in all newspapers. Article 3 of the Convention reads as
follows:
“No one shall
be subjected to torture or to inhuman or degrading treatment or
punishment.”
A. The Government's submissions
The
Government claimed that the applicant had not exhausted the remedies
provided for by Polish law in respect of his complaint under Article
3. The applicant had been arrested on a prosecutor's order given on
the basis of Article 247 of the Code of Criminal Procedure.
Consequently, he should have availed himself of an appeal against his
arrest (zażalenie na zatrzymanie) as provided
for in Article 246 of the CCP, which would have subjected his arrest
to a comprehensive judicial review. A review under Article 246
would have enabled the applicant to contest the justification for
(zasadność) and the lawfulness and expediency
(prawidłowość) of his arrest. It transpired
from the record of the applicant's arrest that he had been informed
of the right to bring such an appeal. The Government argued that this
remedy was effective and should have been exhausted, referring to the
Convention case-law (Berliński v. Poland, no. 27714/95,
Commission decision of 2 July 1997, unreported, and D.D. v. Poland
(dec.), no. 29461/95, 5 October 2000).
Furthermore,
the applicant could have given notice to the public prosecutor
(zawiadomienie o popełnieniu przestępstwa) that the
CAB's officers had abused their authority in the course of his arrest
(Article 231 of the CC) or ill-treated him physically
or mentally at the time when he had been taken into custody (Article
247 of the CC). Had he done so, the public prosecutor would have been
obliged to examine the applicant's allegations and issue a formal
decision. Were the prosecutor to refuse to initiate criminal
proceedings upon receiving such notice, the applicant would have had
the right to seek a judicial review of that decision. The Government
emphasised that in several cases examined by the Court the applicants
who had brought Article 3 complaints had first made use of that
remedy and the Court had not contested its effectiveness
(Dzwonkowski v. Poland, no. 46702/99, 12 April 2007;
Lewak v. Poland, no. 21890/03, 6 September 2007). The
applicant had failed to exhaust that remedy and had not provided the
domestic authorities with an opportunity to examine his grievances.
The
applicant had also had a compensatory remedy at his disposal. He
could have lodged a civil action under Articles 23 and 24 of the
Civil Code seeking compensation for a breach of his personal rights
under the Civil Code from the State Treasury represented by the head
of the agency concerned. Those provisions would have allowed the
applicant to assert that, by exposing him to degrading treatment
during his arrest, the authorities had infringed his personal rights
entitling him to claim damages from the State Treasury.
The
Government concluded that the applicant had not availed himself of
any of the above remedies.
B. The applicant's submissions
The
applicant admitted that he had not lodged an appeal against his
arrest on 12 February 2007. The reason for not having done so was
that he could not predict that his case would be thrown into the
media spotlight, that it would be used by the Law and Justice Party
for its political campaign, and that the Minister of Justice Mr Z.
Ziobro would be personally involved in his case. The applicant
submitted that the manner of executing his arrest, and in particular
the fact that he had been frogmarched down two floors, in full view
of the medical personnel and many patients and their families, had
been an intentional exhibition, as he could have been escorted out of
the hospital more discreetly.
The
applicant acknowledged that he had not raised any objections
regarding the execution of his arrest as he had been deeply shocked
by the events. He argued that CAB's officers had proceeded in
accordance with their internal regulations, which allowed them to
resort to excessive force in the course of an arrest. He had no
influence on the internal regulations of a State agency which
permitted this humiliating and degrading treatment. The applicant's
degrading treatment had also continued on account of the media frenzy
triggered by the authorities then in power and the repeated broadcast
of the video recording his arrest.
C. The Court's assessment
The
Court observes that the applicant did not complain of physical
violence but of degrading treatment in the course of his arrest which
had consisted in the manner of his handcuffing and his exposure in
handcuffs to the hospital staff, patients and third persons during
his arrest and the search of his car at the hospital car park. The
alleged degrading treatment further consisted in the filming of the
applicant's arrest by the CAB officer and making available to the
media the recording of his arrest.
The Court recalls that handcuffing does not normally
give rise to an issue under Article 3 of the Convention
(“degrading treatment”) where the measure has been
imposed in connection with lawful arrest or detention and does not
entail use of force, or public exposure, exceeding what is reasonably
considered necessary in the circumstances. In this regard, it is of
importance for instance whether there is reason to believe that the
person concerned would resist arrest or abscond, cause injury or
damage or suppress evidence (see Raninen v. Finland, 16
December 1997, § 56, Reports 1997 VIII; Erdoğan
Yağız v. Turkey, no. 27473/02, § 42, ECHR 2007 III
(extracts); Kazakova v. Bulgaria, no. 55061/00, § 53,
22 June 2006; and Wieser v. Austria, no. 2293/03, §
37, 22 February 2007).
The
Court observes that in the present case the applicant did not simply
object to his handcuffing. He also complained about the whole range
of measures applied by the authorities in the course of his arrest,
such as prolonged public exposure, the filming of his arrest and the
use of the recordings to trigger the media frenzy in his case.
Furthermore, the authorities used a dozen masked and armed officers
to arrest the applicant although it appears that he did not present a
particular security risk. The Court considers that the cumulative
application of all those measures may exceed the usual degree of
humiliation that is inherent in every arrest and detention and bring
such situation within the ambit of degrading treatment prohibited by
Article 3 of the Convention. When the circumstances of a case,
such as the manner of a person's arrest and the authorities' actions
aimed at publicising the case extensively, give rise to legitimate
grounds for assuming that the authorities' actions were motivated by
political reasons the Court will subject such situations to special
scrutiny.
However,
the Court cannot examine the complaint under Article 3 since the
applicant did not make use of any domestic remedies. The Court refers
to its classic and comprehensive statement set out in the Akdivar
judgment (see Akdivar and Others v. Turkey, 16 September
1996, § 66-69, Reports 1996 IV) concerning the
application of the rule of exhaustion of domestic remedies as
required by Article 35 § 1 of the Convention.
The
Court reiterates that the applicant did not complain about the use of
physical violence, but took issue with the series of measures applied
by the authorities in the course of his arrest which, according to
the applicant, were aimed at humiliating him. Those measures could
have affected his mental state. Having regard to the specific nature
of the complaint under Article 3, the Court considers that the most
appropriate remedy to be exhausted in the circumstances of the
present case was a civil action for compensation for the infringement
of the applicant's personal rights under Articles 23 and 24 taken in
conjunction with Article 448 of the Civil Code. Article 23 of
the Civil Code contains a non-exhaustive list of personal rights
which include, inter alia, health, liberty and honour, and
which are further developed in the domestic jurisprudence so as to
include other rights such as dignity of the person (see Norbert
Sikorski v. Poland, no. 17599/05, § 68, 22 October 2009).
The Court agrees with the Government that the applicant should have
availed himself of the civil action to assert that he had been
exposed to degrading treatment in breach of his personal rights and
to claim compensation from the State.
Although
the civil remedy was the most appropriate one in the circumstances of
the present case, the Court also notes that it was open to the
applicant to request the prosecution of the CAB's officers, alleging
that they had abused their authority in the course of his arrest
(Article 231 of the CC) or had inflicted psychological suffering on
him (Article 247 of the CC). Furthermore, the applicant could have
separately lodged an appeal against his arrest under Article 246 of
the CCP, which could have shed light on the exact circumstances in
which his arrest had been effected. The use of this auxiliary remedy
would have enabled the domestic court to assess not only the
lawfulness of the arrest but also its expediency.
In
conclusion, the Court finds that by failing to use any of the above
domestic remedies, in particular a civil action for infringement of
his personal rights, the applicant failed to exhaust the remedies
provided for by Polish law and thus the Government's objection is
well-founded.
It
follows that the complaint under Article 3 must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained of a violation of Article 5 § 1 of the
Convention. He alleged that the Warsaw-Mokotów District
Court's decision of 14 February 2007 to place him in pre-trial
detention had been arbitrary and in breach of this provision. The
court had not considered the imposition of other, less severe,
preventive measures and had not taken into account his personal
circumstances, his professional achievements and his unblemished
reputation. In respect of the charge of homicide relied on by the
court to justify his detention, the applicant submitted that that
charge could not possibly be read into the report of expert Z.R., as
subsequently confirmed by the Regional Court and the Court of Appeal.
Furthermore, there had been no circumstances to justify the court's
finding that the applicant might unlawfully obstruct the proceedings.
Article 5 § 1 provides, in so far as relevant:
“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;”
A. The parties' submissions
The
Government maintained that the applicant's detention had been in
compliance with the standards of Article 5 § 1 and free from
arbitrariness. They averred that the applicant had been detained “in
accordance with the law”. Both the formal and the substantive
requirements of the law had been fulfilled. The lawfulness of the
detention on remand had been reviewed by the Warsaw-Mokotów
District Court in its decision of 14 February 2007 and confirmed on
appeal by the Regional Court. Both courts had relied on the existence
of a strong suspicion that the applicant had committed the offences
with which he had been charged. They had also invoked the severity of
the anticipated penalty and the risk that the applicant would attempt
to influence witnesses. The Warsaw Regional Court had underlined in
its decision of 15 March 2007 that “even leaving aside the
charge of homicide, other charges (bribery) attracted a statutory
maximum sentence of at least eight years' imprisonment” (see
paragraph 22 above).
The Government submitted that the court decisions in
the present case, in particular the Regional Court's decision of 7
May 2007 on the conditions of the applicant's bail, had proved that
his detention had not been arbitrary. The domestic courts had
thoroughly examined whether the reasons for the applicant's
detention, as put forward in the prosecutor's application, had been
convincing and well-established. They had also considered whether
other preventive measures would have been sufficient in the
circumstances of the case, and on this basis the present case should
be distinguished from the case of Ambruszkiewicz v. Poland
(no. 38797/03, § 32, 4 May 2006).
The
applicant's detention had been applied only at the initial stage of
the preparatory proceedings, in order to ensure the undisturbed
gathering of witness evidence. His detention had been under the
permanent supervision of the courts and had been terminated as soon
as the Warsaw Regional Court had established that the risk of
obstruction of the proceedings had ceased to exist. In those
circumstances, the applicant's complaint under Article 5 § 1 was
manifestly ill-founded.
The
applicant did not comment.
B. The Court's assessment
The
Court recalls that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and enshrine the obligation
to conform to the substantive and procedural rules thereof. Although
it is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, under Article 5 § 1
failure to comply with domestic law entails a breach of the
Convention and the Court can and should review whether this law has
been complied with (see,
among many other authorities, Benham v. the United Kingdom,
10 June 1996, § 41, Reports 1996 III, and
Assanidze v. Georgia [GC], no. 71503/01, §
171, ECHR 2004 II). A period of detention is, in principle,
“lawful” if it is based on a court order. Even flaws in
the detention order do not necessarily render the underlying period
of detention unlawful within the meaning of Article 5 § 1
(see Benham, cited above, §§ 42-47, and
Ječius v. Lithuania, no. 34578/97, § 68,
ECHR 2000 IX).
Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be in
keeping with the purpose of protecting the individual from
arbitrariness (see, among many other authorities, Winterwerp v.
the Netherlands, 24 October 1979, § 37, Series A
no. 33, and Witold Litwa v. Poland, no. 26629/95, § 78,
ECHR 2000 III). It is a fundamental principle that no detention
which is arbitrary can be compatible with Article 5 § 1 and the
notion of “arbitrariness” in Article 5 § 1
extends beyond lack of conformity with national law, so that a
deprivation of liberty may be lawful in terms of domestic law but
still arbitrary and thus contrary to the Convention (see, Saadi
v. the United Kingdom [GC], no. 13229/03, § 67,
ECHR 2008 ... ).
The
Court notes that in the instant case the applicant was detained on
the basis of the Warsaw-Mokotów District Court's decision of
14 February 2007. That court found that the evidence
presented by the prosecution substantiated the reasonable suspicion
that he had committed the offences with which he had been charged. It
also had regard to the risk that the applicant would obstruct the
investigation, which was in its early stages and it was necessary to
hear a number of witnesses of whom some were subordinate to the
applicant. Those circumstances necessitated, in the District Court's
view, the keeping of the applicant in custody. The Regional Court,
ruling on the applicant's appeal, concurred with the District Court's
findings.
The
applicant emphasised that the prosecution had deliberately inflated
the charge of homicide in order to compel the court to remand him in
custody. However, even assuming that the applicant's misgivings in
this regard might be warranted, the Court cannot but note that the
Regional Court in its decision of 15 March 2007 reviewing the
original detention order responded precisely to this argument and
stated that even without the charge of homicide, the applicant's
detention was still justified on account of the charges of bribery,
which attracted a statutory maximum sentence of at least eight years
and were sufficiently substantiated by the evidence. In those
circumstances, the Court finds that the applicant's detention was
effected in conformity with the Polish law.
The
Court does not find established either that the applicant's detention
on remand was arbitrary. The applicant's allegation of arbitrariness
appears to have been fuelled by the prosecution's reliance on the
charge of homicide. However, the Court notes that the domestic courts
kept that issue under close scrutiny. The Regional Court in its
decision of 7 May 2007 found the charge of homicide entirely
unsustainable. In the same decision the Regional Court established
that there was no longer a risk that the applicant would interfere
with the proper conduct of the proceedings in respect of the bribery
charges since a significant volume of evidence related to those
charges had already been gathered. Having regard to the change in the
circumstances of the investigation against the applicant, the
Regional Court held that the applicant would be released if he put up
bail. On 18 May 2007 the Warsaw Court of Appeal amended the decision
to release the applicant on bail by imposing certain other preventive
measures (see paragraph 25 above). The applicant complied with all
those conditions and was released on the same day. Having regard to
the above, the Court is satisfied that the domestic courts applied a
proportionality test to the applicant's detention falling under
Article 5 § 1 (c) and did consider, having regard to the
progress of the investigation, whether his detention on remand was
strictly necessary to ensure his presence at the trial and whether
other, less stringent, measures could have been sufficient for that
purpose (see Ambruszkiewicz v. Poland, no. 38797/03, §§
29-32, 4 May 2006, and Ladent v. Poland, no. 11036/03, §
55, ECHR 2008 ... (extracts)). Accordingly, the Court cannot
discern any element of arbitrariness in respect of the applicant's
detention on remand.
In
conclusion, the Court finds that the applicant's detention on remand
was in compliance with Article 5 § 1 of the Convention. It
follows that the complaint under this provision is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
Invoking
Article 6 § 1 of the Convention, the applicant complained that
following his arrest he had not been brought before a judge or other
officer authorised by law to exercise judicial power. His detention
on remand had been ordered by an assessor, who did not enjoy the same
guarantees of independence as a judge, in particular vis-à-vis
the Minister of Justice – Prosecutor General. The Court
considers that this complaint falls to be examined under Article 5 §
3 of the Convention, the relevant part of which reads as follows:
“3. Everyone
arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article shall be brought promptly
before a judge or other officer authorised by law to exercise
judicial power ...”
A. Admissibility
1. The parties' submissions
The
Government submitted that the applicant had lost his “victim”
status with regard to the complaint under Article 5 § 3 of the
Convention. He had been aware of the proceedings pending before the
Constitutional Court in which the status of assessors had been
challenged. The Constitutional Court in its judgment of 24 October
2007 (case no. SK 7/06) had expressly acknowledged that assessors
were not competent to exercise judicial duties. It had held that the
contested provisions of the Law on the Organisation of Courts (the
2001 Act) would remain in force for a period of eighteen months
following the promulgation of the judgment. The Constitutional Court
had also stressed that its ruling could not be understood as
providing a legal basis for the re-examination of cases which had
been adjudicated by assessors. In this way the Constitutional Court
had demonstrated its respect for the principle of legal certainty,
which was a well-established constitutional principle of
democratic states. The applicant, like other persons whose cases had
been decided by assessors, had obtained moral satisfaction from the
Constitutional Court's judgment. The Government were of the view that
the said judgment repealing the provisions concerning assessors could
constitute an appropriate relief for the applicant.
The
applicant did not express an opinion on the issue.
2. The Court's assessment
The
Court recalls that a decision or measure favourable to the applicant
is not in principle sufficient to deprive him of his status as
a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, inter alia,
Dalban v. Romania [GC], no. 28114/95, § 44, ECHR
1999 VI).
The
Court notes that the Constitutional Court's judgment of 24 October
2007 declared the provisions regulating the status of assessors
incompatible with the Constitution. The finding of
unconstitutionality was mostly based on the institutional argument
(organisation of the judicial branch) and was not focused on
protection of individual rights. The Constitutional Court's judgment
did not contain any acknowledgment as regards the alleged breach of
the Convention in the applicant's case. In addition, it is
questionable whether a general finding of unconstitutionality in
respect of a law which affected the applicant's rights, without any
individual measures addressed to him, may at all be considered as a
measure favourable to the applicant. In any event, the applicant was
not afforded redress for the alleged breach of the Convention as the
Constitutional Court excluded the possibility of reopening of cases
in which assessors had adjudicated. In the Court's view, the
Constitutional Court's judgment and the applicant's moral
satisfaction stemming from it were not sufficient to provide adequate
redress to the applicant.
Having
regard to the above, the Court finds that the applicant can still
claim to be a “victim” of a breach of Article 5 § 3
of the Convention as regards his right to be brought before a judge
or other officer authorised by law to exercise judicial power.
Accordingly, the Government's objection concerning the lack of
“victim” status is dismissed.
The
Court notes that this 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 submitted that an assessor's professional status depended
to a considerable degree on the Minister of Justice. The Minister of
Justice appointed assessors and vested judicial powers in them.
Although the 2001 Act granted independence to assessors in respect of
the exercise of their judicial functions, the Minister could remove
them.
The
applicant argued that in his case, which had been publicised from the
moment of his arrest and in which the Minister of Justice had become
personally involved, it could not be excluded that the assessor A.M.
who had remanded him in custody had acted under enormous pressure and
eventually yielded to it. The Regional Court which reviewed the
original detention order on 15 March 2007 had been equally under
considerable pressure. It had sat as a bench of three professional
judges, but had decided in the period of intensive and unprecedented
political and media frenzy following the public announcement of the
applicant's guilt by the Minister of Justice.
The
applicant pointed out that the Court of Appeal in its decision of 18
May 2007 had stated that “until now the findings and
conclusions of experts do not constitute evidence indicating a strong
probability that the suspect committed intentional homicide”.
This meant that from the very beginning the prosecution had not
presented any reliable evidence of the charge of homicide brought
against the applicant, which had been decisive for the imposition of
the detention on remand. For the applicant this confirmed that the
Warsaw-Mokotów District Court and the Warsaw Regional Court,
when deciding on the application of detention on remand, had yielded
to the political and media pressure concerning the applicant's guilt
rather than basing their decisions on actual analysis of the case
file.
2. The Government's submissions
The
Government, having regard to the Constitutional Court's judgment of
24 October 2007, maintained that an assessor should have been
considered as an “other officer authorised by law to exercise
judicial power” within the meaning of Article 5 § 3 of the
Convention. Such officer had to satisfy certain conditions in order
to exclude arbitrary or unjustified deprivation of liberty; in
particular the “officer” had to be independent of the
executive and the parties.
Applying
the criteria set out in the Court's case-law (H.B. v. Switzerland,
no. 26899/95, § 55, 5 April 2001) to the circumstances of the
case, the Government emphasised that the assessor had had the power
to make a binding order for the applicant's release, had heard the
applicant before issuing the detention order and had not exercised
prosecutorial functions in the subsequent stages of the proceedings.
Thus, the assessor had been fully independent of the parties.
Furthermore,
the detention order issued by the assessor had been reviewed and
upheld by the Warsaw Regional Court sitting as a panel of three
professional judges. Therefore, even assuming that the decision
issued by the assessor had not complied with all the requirements of
Article 5 § 3, any disadvantage thereby caused to the applicant
had nonetheless been alleviated by the subsequent review of the
impugned decision by a panel of three professional judges (mutatis
mutandis, Laukkanen and Manninen v. Finland, no.
50230/99, § 36, 3 February 2004). In addition, the Regional
Court had confirmed the detention order and had stated that the
assessment of the need to apply that preventive measure as made by
the assessor had been correct.
The
Government acknowledged the Constitutional Court's finding that the
status of assessors had differed from the status of a professional
judge in so far as the former presented no guarantees of complete
independence from the executive. However, the 2001 Act had provided
assessors with a degree of independence. In particular, pursuant to
Article 135 § 2 of the 2001 Act, “while adjudicating,
assessors shall be independent and subject only to the Constitution
and statutes”. Furthermore, judicial bodies (the board of
judges of a regional court) played an important role in the procedure
of vesting judicial powers in assessors. For those reasons, the
Government were of the view that the assessor who had ordered the
applicant's detention on remand should be recognised as an “officer
authorised by law to exercise judicial power” under Article 5 §
3.
3. The third-party intervener's comments
The
Helsinki Foundation for Human Rights presented the main points of the
Constitutional Court's judgment of 24 October 2007. It submitted that
there was little doubt that Mr Z. Ziobro had been personally involved
in the applicant's case and that he had been interested in obtaining
a particular decision as confirmed by his comments made at the press
conference. In the third-party's opinion, this state of affairs had
seriously undermined the independence of the assessor as her
professional future depended on the Minister's decisions.
4. The Court's assessment
The
Court recalls that it has already dealt with the institution of
Polish assessors from the standpoint of Article 6 of the Convention.
In the judgment
Henryk Urban and Ryszard Urban v. Poland (no. 23614/08,
30 November 2010) the Court examined the question of the
independence of a “tribunal” composed of an assessor in
terms of conformity with the requirements of Article 6 § 1 and
found as follows:
“48. The
Constitutional Court considered the status of assessors in its
leading judgment of 24 October 2007. It held that section 135 §
1 of the 2001 Act, providing that the Minister of Justice could
confer the exercise of judicial powers on assessors, fell short of
constitutional requirements because assessors did not enjoy the
necessary guarantees of independence, notably vis-à-vis the
Minister. The Court notes that in its analysis of the question of the
independence of assessors the Constitutional Court referred to the
Strasbourg case-law and observed that Article 45 of the Constitution
was modelled on Article 6 § 1 of the Convention (...).
51. (...) The Court
notes that the Constitutional Court's findings were made in the
context of an abstract review of the constitutionality of statutory
provisions but, mindful of the principle of subsidiarity, considers
that they may be applied to the facts of the present case, having
regard to the similarity between the constitutional and the
Convention requirements in so far as judicial independence is
concerned and the reliance of the Constitutional Court on the
relevant jurisprudence of the Court. (...) The important
consideration for this Court is that the Constitutional Court found
that the manner in which Poland had legislated for the status of
assessors was deficient since it lacked the guarantees of
independence required under Article 45 § 1 of the Constitution,
guarantees which are substantively identical to those under Article 6
§ 1 of the Convention.
52. The Court
underlines that the Constitutional Court set aside the regulatory
framework governing the institution of assessors as laid down in the
2001 Act. It further stresses that the Constitutional Court did not
exclude the possibility that assessors or similar officers could
exercise judicial powers provided they had the requisite guarantees
of independence (...). The Constitutional Court, referring to
international standards, pointed to the variety of possible solutions
for allowing adjudication by persons other than judges. In this
connection, the Court notes that its task in the present case is not
to rule in abstracto on the compatibility with the
Convention of the institution of assessors or other similar officers
which exist in certain Member States of the Council of Europe, but to
examine the manner in which Poland regulated the status of
assessors.”
Thus,
the first element of the Court's test in the Henryk Urban and Ryszard
Urban judgment concentrated on the institutional deficiency as
regards the position of assessors vis-à-vis the
Minister of Justice. However, in its analysis the Court also had
regard to the second element of the test, namely whether the
circumstances of a particular case could give rise to legitimate
grounds for believing that the Minister of Justice took an interest
in the proceedings (see Henryk Urban and Ryszard Urban, cited
above, § 56).
In
the present case the Court has to consider to what extent the Henryk
Urban and Ryszard Urban v. Poland holding may be relevant for the
determination of the complaint under Article 5 § 3 of the
Convention.
The
Court recalls that Article 5 § 3 of the Convention is
structurally concerned with two separate matters: the early stages
following an arrest when an individual is taken into the power of the
authorities, and the period pending eventual trial before a criminal
court during which the suspect may be detained or released with or
without conditions. These two limbs confer distinct rights and are
not on their face logically or temporally linked (see T.W. v.
Malta [GC], no. 25644/94, § 49, 29 April 1999, and
McKay v. the United Kingdom [GC], no. 543/03, §
31, ECHR 2006 X). In the present case the Court is concerned
solely with the initial stage under the first limb (the arrest
period). With regard to this initial stage the Court's case-law
establishes that there must be protection of an individual arrested
or detained on suspicion of having committed a criminal offence
through judicial control. The judicial control must satisfy the
requirements of promptness, the automatic nature of the review and
the characteristics and powers of the judicial officer. The judicial
officer must offer the requisite guarantees of independence from the
executive and the parties and he or she must have the power to order
release, after hearing the individual and reviewing the lawfulness
of, and justification for, the arrest and detention (see Assenov
and Others, cited above, § 146, and McKay, cited
above, § 35).
The
Court's case-law has already determined that the “officer
authorised by law to exercise judicial power” is not identical
with the “judge” but must nevertheless have some of the
latter's attributes, that is to say he must satisfy certain
conditions each of which constitutes a guarantee for the person
arrested. The first such condition is independence from the executive
and the parties (see Schiesser v. Switzerland, 4 December
1979, § 31, Series A no. 34). Accordingly, the requirement
of independence vis à vis the executive
applies in the same manner to both the “judge” and the
“officer” mentioned in Article 5 § 3. This
interpretation corresponds to the rationale of the judicial
protection of an individual arrested on suspicion of having committed
a criminal offence which serves to provide effective safeguards
against the risk of ill-treatment and against the abuse of powers
bestowed on law enforcement officers or other authorities (see McKay,
cited above, § 32).
The
Court has to determine whether the assessor A.M. possessed the
attributes of the judicial officer required under Article 5 § 3,
and, in particular, whether she offered the guarantees of
independence vis-à-vis the executive.
The
Constitutional Court in its leading judgment of 24 October 2007
examined two constitutional complaints, the first of which had
challenged the imposition of detention on remand by an assessor. The
Constitutional Court emphasised that its finding of
unconstitutionality in respect of the regulatory framework governing
the institution of assessors was not determinative of
unconstitutionality in respect of the content of a ruling given
by an assessor or the procedure employed to reach it (see Henryk
Urban and Ryszard Urban, cited above, § 64). The Court
observed in this connection that it had followed from the
Constitutional Court's judgment that there had been no automatic
correlation between the deficiency identified by that court and the
validity of each and every ruling given by assessors in individual
cases (see Henryk Urban and Ryszard Urban, cited above, §
67). Having regard to the above, the Court considers that the finding
of a breach of Article 5 § 3 of the Convention does not
compromise its earlier finding in respect of the applicant's
complaint under Article 5 § 1 (see paragraph 90 above).
The
Court considers that the
requisite guarantees of independence apply
not only to a “tribunal” within the meaning of Article 6
§ 1 of the Convention, but also extend to “the
judge
or other officer authorised by law to exercise
judicial power” referred
to in Article 5 § 3 of the Convention (see McKay,
cited above, § 35, and Henryk Urban and Ryszard
Urban v. Poland, no. 23614/08, § 45, 30 November 2010).
Having regard to the above, the Court considers that
the assessor A.M. who detained the applicant on remand did not offer
the guarantees of independence required of an “officer”
by Article 5 § 3 of the Convention, the reason being that she
could have been removed by the Minister of Justice at any time during
her term of office and that there were no adequate guarantees
protecting her against the arbitrary exercise of that power by the
Minister (see Henryk Urban and Ryszard Urban, cited above, §
53). Having regard to the above, the Court's conclusion is
indistinguishable from that reached in the Henryk Urban and
Ryszard Urban judgment in so far as the first element of the
twofold test is concerned.
Independently
of the above institutional deficiency, the Court considers that the
second element of its test is also met in the present case. In other
words, there were specific circumstances in the instant case which
gave rise to an assumption that the Minister of Justice –
Prosecutor General's may have been taking an interest in the
proceedings against the applicant. The Court notes from the
transcript of the press conference held on 14 February 2007 that the
Minister of Justice – Prosecutor General personally supervised
the investigation against the applicant (see paragraph 36 above). The
Court cannot lose sight of the broader context of the applicant's
case, which appears to have been deliberately orchestrated as a sign
of the authorities' resolve to root out corruption at that time.
Furthermore, the Court also notes the spectacular manner of the
applicant's arrest and the authorities' actions aimed at attracting
as much media attention as possible to his case. All the above
circumstances, and in particular the Minister of Justice –
Prosecutor General's personal involvement in the case, could be seen
as capable of undermining further the independence of the assessor
A.M.. Having regard to the overall context of the case, the Court
considers that there were grounds for believing that the assessor
A.M. could have been influenced in her decisions by the possibility
of her removal from office by the Minister of Justice Prosecutor
General.
The Government argued that any failing in respect of
the decision given by the assessor of the Warsaw-Mokotów
District Court was rectified on appeal as her decision was reviewed
and upheld by the Warsaw Regional Court sitting as a bench of three
professional judges. The Court does not accept this argument. It is
true that in the context of a breach of Article 6 § 1 of the
Convention the possibility exists that a higher or the highest court
might, in some circumstances, make reparation for defects that took
place in the first-instance proceedings (see De Cubber v.
Belgium, 26 October 1984, § 33, Series A no. 86, and
Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR
2005 XIII). However, the Court finds that the doctrine of
rectification of defects which occurred at the first-instance level
does not apply to the judicial control of a person's arrest or
detention on suspicion of having committed a criminal offence under
Article 5 § 3 of the Convention. The logic and the rationale of
the Article 5 § 3 review requires that it is the judicial
officer who has to satisfy the various conditions as defined in the
Court's case-law under Article 5 § 3 of the Convention, in
particular he must offer the requisite guarantees of independence
from the executive and the parties (see Schiesser v. Switzerland,
cited above, §§ 31-32, and McKay,
cited above, § 35). This is supported by
the fact that decisions on detention made by the “judge or
other officer” under Article 5 § 3 are
normally enforced instantly, for which reason deficiencies
cannot be effectively rectified on appeal. In addition, the Court
notes that the applicant raised the issue of the status of the
assessor in his appeal against the detention order of 14 February
2007; however the Regional Court did not address it.
In
the light of the foregoing, the Court finds that the assessor A.M. of
the Warsaw-Mokotów District Court was not independent of the
executive as required under Article 5 § 3 of the Convention.
There has accordingly been a violation of this provision.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicant alleged a violation of Article 6 § 2 on account of the
categorical statements made by the Minister of Justice –
Prosecutor General and the Head of the CAB during the press
conference on 14 February 2007. He referred in particular to the
statement that “no-one else will ever again be deprived of life
by this man”. In this connection the applicant invoked the
findings of the Regional Court, which in its decision of 7 May 2007
had held that there had been no grounds to support the charge of
homicide.
The
Court raised the possibility, of its own motion, of examining the
complaint under Article 6 § 1 of the Convention, namely whether
the Minister of Justice – Prosecutor General's statement
adversely affected the fairness of the applicant's trial. It
considers, however, that the thrust of the applicant's grievances
concerns the breach of the principle of the presumption of innocence.
The Court therefore finds that it is appropriate to examine the
applicant's complaint under Article 6 § 2 of the Convention.
This provision reads:
“2. Everyone
charged with a criminal offence shall be presumed innocent until
proved guilty according to law.”
Victim status
1. The Government's submissions
The
Government initially maintained that the applicant had not exhausted
domestic remedies in respect of his complaint under Article 6 §
2. On 12 September 2007 – that is, after he had lodged
his application with the Court – the applicant had instituted
civil proceedings against Mr Z. Ziobro seeking protection of his
personal rights in connection with the Minister's statement “no-one
else will ever again be deprived of life by this man”. In so
doing he had sought redress for the infringement of his personal
rights. The Government stressed that in those proceedings the
applicant had raised exactly the same issue as he had already brought
before the Court under Article 6 § 2 of the Convention. Thus,
they argued that the complaint under this provision was inadmissible
for failure to exhaust domestic remedies.
Following
the conclusion of the civil proceedings, the Government submitted
that the applicant had lost his victim status in respect of the
alleged violation of Article 6 § 2. They argued that in his
civil action the applicant had clearly invoked the violation by Mr Z.
Ziobro of his right to be presumed innocent until proved guilty and
that the domestic courts had allowed his action almost entirely. It
was true that the amount of compensation for non-pecuniary damage had
been lower than that sought by the applicant. However, compared with
the domestic practice in similar cases, the award in the applicant's
case had clearly been comparable to the average sums awarded.
The
Government contended that in the domestic proceedings the applicant
had obtained both recognition of the violation and adequate redress.
Consequently, having regard to the Court's jurisprudence on the issue
(Eckle v. Germany, 15 July 1982, Series A no. 51), the
Government averred that the applicant could no longer claim to be the
victim of the alleged violation of his right under Article 6 § 2
since the said violation had already been acknowledged and remedied
at the national level.
As
regards the applicant's argument about the inadequacy of the redress
obtained at the domestic level, the Government submitted that the
applicant had not lodged a cassation appeal against the
second-instance judgment and thus it could be assumed that he had
been satisfied with the result of the domestic proceedings. As to the
form of the apology, it had been up to the applicant or his lawyer to
demand a particular content or form of the apology and the Government
had borne no responsibility in that regard. Nor was the Government
responsible for the fact that the defendant had no longer been a
Minister when he had published the apology.
2. The applicant's submissions
The
applicant argued that the civil proceedings could not be regarded as
an effective remedy in respect of the violation of Article 6 §
2. The principle of the presumption of innocence was not limited and
was not equal to the right to one's reputation. It prohibited the
authorities from declaring or doing anything which would indicate
that they believed a person was guilty of an offence until their
guilt had been proved. In the applicant's case the breach of the
presumption had taken place at a very early stage in the proceedings
and it must have had an impact on his situation.
In
the civil proceedings the applicant had demanded an appropriate
apology and compensation from Mr Z. Ziobro for having publicly called
him a murderer. However, in bringing his case to the Court the
applicant had sought appropriate redress from the Government for the
fact that a high ranking State official, by expressing his
belief in the applicant's guilt, had deprived him of, or seriously
impaired his chances of, impartial prosecution and court proceedings.
The prosecutors involved in the applicant's case had been fully
subordinate to the Prosecutor General and, according to the
applicant, the latter had exerted pressure on them as to the conduct
of the investigation. The applicant submitted that breach of the
presumption of innocence had not been included in the catalogue of
offences specified in the Criminal Code. A minister who breached the
constitutional principle of the presumption of innocence was
accountable only before the Tribunal of State. However, the applicant
had no right to bring Mr Z. Ziobro before that tribunal.
The
applicant claimed that despite the outcome of the civil proceedings,
he had not lost his status as a victim as the redress afforded had
been insufficient. He argued that the form of the apology had been
inadequate in view of the gravity of the infringement. The apology
had not been published directly after the news programme but in
between advertisements. The text of the apology had been in very
small brown or red letters on a green background and it had been
shown for ten seconds. There had been no advance notification that
the apology would be published on this particular day. Furthermore,
following the publication of the apology, the defendant had given
several statements in which he had sustained his allegations. On the
day following the publication, Mr Z. Ziobro had declared that the
judgment of the civil court had not changed his opinion about one
important aspect of the case, namely that the applicant had left
a swab in a patient's body during surgery, which had resulted in
the patient's death.
Likewise,
the applicant claimed that the amount of PLN 30,000 awarded in
compensation had been inadequate. Such amounts had been awarded in
cases of less severe infringements of privacy, while the infringement
in the applicant's case had had a huge impact on his professional and
private life. The defendant's critical statement had been made at a
press conference widely attended by the media and had subsequently
been repeated many times in the newspapers and the audiovisual media.
The
applicant further submitted that the statement at issue had been made
by the defendant at the time when he had held the office of Minister
of Justice – Prosecutor General. However, he had suffered no
consequences for his actions as the Minister – Prosecutor
General. The State, represented by his Ministry of Justice, had never
expressed any regrets as regards the breach of the presumption of
innocence in the applicant's case. In addition, the impugned
statement had been made shortly after the applicant's detention and,
importantly, before the examination of his appeal against the
detention decision. It could not be excluded that the statement had
had an impact on the judges who were to consider the applicant's
appeal. According to the applicant, the domestic courts had said very
little about the principle of the presumption of innocence and had
not relied on the Convention.
The
applicant stated that he sought redress before the Court as the
negative consequences of the breach of his right to be presumed
innocent had not been repaired. He was still regarded as a guilty
person and the apology had not had the same impact as the
infringement. Furthermore, the recording of the applicant's arrest
and the search of his house was still available on the Internet. The
civil law remedies had been solely of a compensatory nature and
could not make up for the irreparable damage suffered by the
applicant. The applicant had lost his reputation and his work in a
public hospital and had suffered depression.
3. The Court's assessment
The
Court will focus in its analysis on the statement made by the
Minister of Justice – Prosecutor General that “no-one
else will ever again be deprived of life by this man”. It notes
that at the same press conference the Minister of Justice –
Prosecutor General and the Head of the CAB also made some statements
related to the corruption charges against the applicant. However, the
Court observes that the applicant did not use the civil law remedy in
respect of those statements (see paragraphs 135-136 below) and
accordingly this part of his complaint under Article 6 § 2 must
be rejected under Article 35 §§ 1 and 4 of
the Convention for non exhaustion of domestic remedies.
The
Court considers that in the light of the domestic courts' decisions
given in the civil case brought by the applicant against
Mr Z. Ziobro, the question arises whether the applicant can
still claim to be a victim of the alleged violation within the
meaning of Article 34 of the Convention.
The
Court reiterates that it falls firstly to the national authorities to
redress any violation of the Convention. In this regard, the question
whether an applicant can claim to be the victim of the violation
alleged is relevant at all stages of the proceedings under the
Convention (see, inter alia, Gäfgen v.
Germany [GC], no. 22978/05, § 115, ECHR 2010 ...). A
decision or measure favourable to the applicant is not, in principle,
sufficient to deprive him of his status as a “victim” for
the purposes of Article 34 of the Convention unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for the breach of the Convention (see, inter
alia, Eckle, cited above, § 66; Dalban
[GC], cited above, § 44; Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 180, ECHR 2006 V; and Ladent,
cited above, § 36).
In the present case the applicant alleged a violation
of Article 6 § 2 on account of a statement made by a public
official. The Court finds it opportune to recall that the presumption
of innocence will be violated if a judicial decision or a
statement by a public official concerning a person charged with a
criminal offence reflects an opinion that he is guilty before he has
been proved guilty according to law. It suffices, even in the absence
of any formal finding, that there is some reasoning suggesting that
the official regards the accused as guilty (see,
among other authorities, Allenet de
Ribemont v. France, judgment of
10 February 1995, Series A no. 308, p. 16, §§ 35-36;
Daktaras v. Lithuania, no. 42095/98, §§
41-44, ECHR 2000 X; and Garycki v. Poland, no. 14348/02,
§ 66, 6 February 2007). Furthermore, a distinction
should be made between statements which reflect the opinion that the
person concerned is guilty and statements which merely describe “a
state of suspicion”. The former infringe the presumption of
innocence, whereas the latter have been regarded as unobjectionable
in various situations examined by the Court (see, inter alia,
Lutz v. Germany, judgment of 25 August 1987, Series A no. 123,
p. 25, § 62, and Leutscher v. the Netherlands, judgment
of 26 March 1996, Reports 1996 II, p. 436, § 31).
The
freedom of expression guaranteed by Article 10 of the Convention
includes freedom to receive and impart information. Article 6 § 2
cannot therefore prevent the authorities from informing the public
about criminal investigations in progress, but it requires that they
do so with all the discretion and circumspection necessary if the
presumption of innocence is to be respected (see Allenet de
Ribemont, cited above, § 38; and Peša v.
Croatia, no. 40523/08, § 139, 8 April 2010). The Court has
considered that in a democratic society it is inevitable that
information is imparted when a serious charge of misconduct in office
is brought (see Arrigo and Vella v. Malta (dec.), no.
6569/04, 10 May 2005, which concerned serious charges against
high-ranking judges). It has acknowledged that in cases where an
applicant was an important political figure at the time of the
alleged offence the highest State officials, including the Prosecutor
General, were required to keep the public informed of the alleged
offence and the ensuing criminal proceedings. The Court has however
emphasised the importance of the choice of words by public officials
in their statements before a person has been tried and found guilty
of a particular criminal offence. It has also asserted the importance
of respect for the presumption of innocence during press conferences
by state officials or in their interviews with the press (see
Butkevičius v. Lithuania, no. 48297/99, §§
50-52, ECHR 2002 II (extracts), which concerned statements to
the press by the Prosecutor General and the Speaker of Parliament on
criminal proceedings against a minister; Lavents v. Latvia,
no. 58442/00, § 127, 28 November 2002; and Y.B. and
Others v. Turkey, nos. 48173/99 and 48319/99, §§ 45,
28 October 2004). In any event, the opinions expressed must not
amount to declarations by a public official of the applicant's guilt
which would encourage the public to believe him or her guilty and
prejudge the assessment of the facts by the competent judicial
authority (see Butkevičius, cited above, § 53). In
the present case the alleged violation resulted from the statement of
Mr Z. Ziobro, the then Minister of Justice – Prosecutor
General, that “no-one else will ever again be deprived of life
by this man”, which was delivered at the widely broadcast press
conference held directly after the applicant's detention on remand.
The
Court has to examine firstly whether the national authorities have
acknowledged the breach of Article 6 § 2 in the present case. It
notes in this connection that in the civil proceedings brought by the
applicant the domestic courts expressly stated that Mr Z. Ziobro's
statement “no-one else will ever again be deprived of life by
this man” had harmed the applicant's reputation. In arriving at
that conclusion both the Kraków Regional Court and the Kraków
Court of Appeal emphasised that the impugned statement was in breach
of the constitutional and statutory principle of the presumption of
innocence (see paragraphs 45 and 52 above). Furthermore, the Regional
Court made explicit reference to the Court's case-law under Article 6
§ 2 and observed that in order to respect the presumption of
innocence the authorities were required to act with all due
discretion and circumspection when informing the public about
criminal investigations in progress. Having analysed the impugned
statement of the Minister of Justice – Prosecutor General, the
Regional Court found that it clearly fell foul of the obligation
incumbent on the public officials in the light of the above-mentioned
jurisprudence. It observed that the Minister of Justice Prosecutor
General did not confine himself to reporting on the proceedings but
made an “emotional, exaggerated, unbalanced and judgmental
statement” (see paragraph 45 above). The Court of Appeal fully
confirmed the findings of the first-instance court. It further
emphasised that the principle of the presumption of innocence imposed
on the Minister the duty of “exceptional care and diligence in
formulating publicly any statements” as regards the charges
brought against the applicant. The Court fully agrees with the
position adopted by the domestic courts. It wishes to emphasise that
it is the duty of the highest-ranking State officials, in particular
those with responsibility for the prosecution authorities and
administration of justice, to respect the presumption of innocence,
one of the fundamental principles of the legal order, and to exercise
particular caution when formulating any statements in relation to
ongoing criminal proceedings. The Court considers that any statement
of a high-ranking State official disregarding the principle of
presumption of innocence is even more objectionable as it may be seen
as a direction addressed to subordinate officials (see, mutatis
mutandis, Bączkowski and Others v. Poland,
no. 1543/06, § 100, ECHR 2007 VI). In view of the
above considerations, the Court is fully satisfied that the domestic
courts, having due regard to its relevant jurisprudence, acknowledged
expressly and in an unequivocal manner that the statement of the
Minister of Justice – Prosecutor General had damaged the
applicant's reputation and entailed a breach of the principle of the
presumption of innocence.
As
to the redress which is appropriate and sufficient to remedy a breach
of a Convention right at the national level, the Court has generally
considered this to be dependent on all the circumstances of the case,
having regard, in particular, to the nature of the Convention
violation at issue (see, amongst other authorities, Scordino
(no. 1), cited above, § 186; Niedźwiedź v.
Poland (dec.), 1345/06, 11 March 2008; and Gäfgen
[GC], cited above, § 116). Furthermore, an applicant may lose
his victim status even when the authorities provide no pecuniary
award for a breach of his Convention rights (see Arrigo and Vella
(dec.), cited above, in the context of an alleged breach of the
principle of the presumption of innocence on account of a statement
made by the Prime Minister of Malta).
In
the instant case the domestic courts ordered the former Minister of
Justice – Prosecutor General to publish an apology to the
applicant for the damage to his reputation and awarded him PLN 30,000
(EUR 7,500) in compensation for non-pecuniary damage. The applicant
argued that the apology and compensation did not provide him with
adequate redress. As regards the text of the apology, the Court notes
that this issue was thoroughly examined by the domestic courts, which
found it to constitute sufficient non-pecuniary redress to remove the
consequences of the infringement at issue. The Court does not discern
any reason to contest the domestic courts' decision in this respect.
The applicant further took issue with the form in which the apology
had been published by the defendant (the size and colour of the
letters and the background, the length of the broadcast, the lack of
prior notification). However, the Court observes that the applicant
had ample opportunities to plead before the domestic courts for the
particular form of apology and related modalities he deemed
appropriate.
The
Court notes that Mr Z. Ziobro was ordered by the domestic courts to
publish his apology on the three national television stations at his
expense. The apology was broadcast at prime time and hence the
approximate aggregate cost was in the region of PLN 200,000
(EUR 50,000). Taking into account the overall context, the Court
does not share the applicant's argument that the compensation for
non-pecuniary damage was inadequate. The applicant sought PLN 70,000
(EUR 17,500) and the Regional Court awarded him PLN 7,000 (EUR
1,750), having found that the applicant had not demonstrated the
particular impact of the statement on his private life. On the
applicant's appeal, the Court of Appeal, having regard to the adverse
publicity which the statement had attracted and the degree of the
applicant's moral suffering, increased the award to PLN 30,000
(EUR 7,500). Thus, when assessing the amount to be awarded the courts
carefully considered all the pertinent circumstances, such as the
degree of intensity of the harm, the nature of the infringement and
its consequences for the applicant. The Court further notes that the
courts justified their decisions by sufficient reasons. In those
circumstances, the Court does not see any grounds to challenge the
domestic courts' findings with regard to the amount of compensation
awarded.
Lastly,
the applicant contested the fact that he had not received any apology
from the State, represented by the Minister of Justice or otherwise,
for the breach of his right to the presumption of innocence. However,
the Court notes that the applicant did not establish that it was
impossible for him to sue the State Treasury in order to secure the
relevant apology.
The
Court further observes that the charge of homicide against the
applicant (Article 148 § 1 of the Criminal Code) in respect of
which the Minister of Justice – Prosecutor General made the
impugned statement, was subsequently dropped by the prosecution for
lack of substantiation (see paragraph 30 above). In those
circumstances it appears that the critical statement cannot have any
adverse impact on the fairness of the ongoing criminal proceedings
against the applicant.
Having
regard to the foregoing, the Court concludes that the applicant can
no longer claim to be a victim of the alleged violation of Article 6
§ 2 within the meaning of Article 34 of the Convention. This
finding makes it unnecessary for the Court to examine the
Government's objection on the grounds of non-exhaustion. It follows
that the complaint under Article 6 § 2 is incompatible ratione
personae with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
The
applicant complained that the seizure orders had prevented him from
using his property and had violated Article 1 of Protocol No. 1 to
the Convention. The measures had been unlawful in that the seizure of
all his existing and future assets could make it impossible for him
to pay the mortgage on his flat in Warsaw, with the consequence that
it would be repossessed. Moreover, the prosecution had not proved
that the assets at issue were the proceeds of crime. Article 1 of
Protocol No. 1 reads:
“Every natural
or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in
the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding
provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
A. The Government's submissions
The
Government maintained that the seizure of the applicant's property
had been a temporary measure. The applicant had not been deprived of
his rights as the owner of the seized property but only provisionally
deprived of the possibility to make use of it. The Government
admitted that the seizure constituted interference with the
applicant's right to the peaceful enjoyment of his possessions and
should be classified as “control of the use”.
In
the Government's view, the interference at issue had been justified
under Article 1 of Protocol No. 1. The measure had been in accordance
with the domestic law. The Code of Criminal Procedure regulated the
seizure of property as an interim measure aimed at securing execution
of a future judgment. It emerged from Articles 291-294 of the Code of
Criminal Procedure that seizure could be ordered with regard to every
item of property belonging to a suspect. There was no need to prove
that the property constituted “proceeds of crime”.
Furthermore, the applicant had been deprived of his possessions “in
the public interest”. It was clear from the seizure order of 16
February 2007 that the aim of the measure had been to secure payment
of the anticipated fines. Pursuant to Article 291 § 2 of the CCP
a seizure could also be made to secure future claims for damages.
The Government submitted that the measures applied in
the applicant's case had been proportionate. The Warsaw-Mokotów
District Court underlined in its decision of 26 April 2007 that there
had been a risk of the applicant being ordered to pay a considerable
fine. Additionally, the Constitutional Court examined the
constitutionality of Article 291 § 1 of the CCP on 6 September
2004 and ruled that this provision was compatible with the
constitutional provisions on the protection of property rights and
the presumption of innocence (case no. SK 10/04). In conclusion, the
Government argued that the complaint under Article 1 of Protocol No.
1 was manifestly ill-founded.
B. The applicant's submissions
The
applicant contested the seizure orders of 16 February 2007 as
unwarranted and excessive. The consequence of those orders was that
he had run the risk of defaulting on his mortgage. In respect of the
order for seizure of the money found in his parents' house, he
claimed that it had been unlawful and submitted that his father had
lodged an application with the Court related to that decision.
The
applicant argued that for greater media effect the prosecution had
seized all his financial means, having assumed that the future fine
would reach PLN 720,000. This amount was the maximum fine provided in
the Criminal Code, but such a large fine could not be imposed on the
applicant, who had been charged with accepting gifts and cash
amounting to a total of PLN 50,000. Furthermore, any compensation for
professional errors would have been covered by the applicant's
insurance.
C. The Court's assessment
There
is no dispute that the seizure of the applicant's property amounted
to an interference with the peaceful enjoyment of his possessions.
The Court considers that the impugned interference falls to be
considered from the standpoint of the State's right “to enforce
such laws as it deems necessary to control the use of property in
accordance with the general interest”, the so-called “third
rule” (see AGOSI v. the United Kingdom, 24 October
1986, § 51, Series A no. 108, and Riela and Others v. Italy
(dec.), no.52439/99, 4 September 2001).
The
Court notes that the seizure order at issue was effected pursuant to
and in compliance with the provisions of the Code of Criminal
Procedure. The interference was thus in accordance with the domestic
law, and the applicant's arguments to the contrary were rejected by
the Warsaw-Mokotów District Court which reviewed and upheld
the legality of the seizure order. The Court accepts the Government's
submission that the seizure of the applicant's property conformed to
the general interest, which submission was not contested by the
applicant.
With
regard to the proportionality of the measure, the Court observes that
in assessing whether a fair balance was struck between the means
employed by the authorities in the instant case and the protection of
the applicant's fundamental right to the peaceful enjoyment of his
possessions, due weight must be given to the wide margin of
appreciation which the respondent State enjoys in the area of
crime-prevention policy (see, mutatis mutandis, Butler v.
United Kingdom (dec.), no. 41661/98, 27 June 2002). The
Court notes that the seizure of the applicant's property was intended
to be temporary and the issue of penalties to be imposed on the
applicant will be determined in the criminal proceedings against him
which are still pending before the trial court. The prosecutor's
seizure order was subject to judicial supervision. In those
proceedings the applicant, assisted by counsel, did not succeed in
challenging the legality or proportionality of the seizure order. The
domestic court noted in particular that at that particular stage in
the proceedings there were no grounds to consider the prosecutor's
order arbitrary, having regard to the evidence gathered in the case.
It also found that the seizure order was made to effectively secure
the payment of a significant fine which might be imposed on the
applicant. In the circumstances there is no indication that the
domestic procedure failed to afford the applicant an adequate
opportunity to put his case to the responsible authorities, pleading,
as the case might be, illegality or arbitrary and unreasonable
conduct (see, Riela and Others, cited above and Yildirim
v. Italy (dec.), no. 38602/02, 10 April
2003).
Furthermore,
the Court observes that the Constitutional Court in its judgment of 6
September 2004 (case no. SK 10/04) validated the institution of
seizure of a person's property with a view to securing execution of
a future judgment as regulated in Article 291 § 1 of the
CCP. The Constitutional Court found it to be constitutionally
permissible as it was a temporary and limited restriction on a
person's property rights.
Having
regard to the above, the Court considers that the manner in which the
applicant's property was seized did not amount to a failure to strike
a fair balance between respect for his rights under Article 1 of
Protocol No. 1 and the general interest of the community. It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
VI. 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 70,000 (PLN 240,000) in respect of pecuniary
damage for lost remuneration. The amount included his annual salary
in the Ministry of Internal Affairs and Administration Hospital as
well as his income from counselling, private practice and teaching.
He submitted that his employment contract with the hospital had been
terminated as a result of his detention. As regards non-pecuniary
damage, the applicant claimed EUR 120,000 (PLN 427,200) on account of
the violation of his Convention rights. He argued that he had
suffered damage to his dignity and reputation resulting from the
breach of the presumption of innocence and the degrading treatment
suffered. He also suffered from mild depression and shunned public
places, being afraid of malicious comments. Furthermore, in the
course of the campaign prior to the parliamentary elections in
October 2007 Mr Z. Ziobro had made public the secret recordings made
in the applicant's office to prove that the applicant was corrupt.
In
respect of the claims for pecuniary damage, the Government argued
that they should be rejected as a whole. The applicant based his
claims on the assumption that his detention had been unlawful, while
the criminal proceedings against him were pending and it was
premature at that stage to assess whether his detention had been
justified. In addition, those claims were highly speculative and no
direct link had been established between the applicant's detention
and the impossibility to find a new job. They were also excessive and
premature. As regards the claims for non pecuniary damage, the
Government considered them exorbitant and, in respect of the alleged
breach of the presumption of innocence, they submitted that that
issue had been examined by the domestic courts. Should the Court
establish that there had been a violation of the Convention, the
Government respectfully requested the Court to rule that the finding
of a violation constituted in itself sufficient just
satisfaction for any non pecuniary damage.
The
Court does not discern any causal link between the violation of
Article 5 § 3 found in the present case and the pecuniary damage
alleged; it therefore rejects this claim. In respect of non-pecuniary
damage, the Court notes that it has declared four complaints
submitted by the applicant inadmissible and found a breach only in
respect of the complaint under Article 5 § 3 as regards the lack
of independence of the assessor who had remanded him in custody.
Ruling in equity, the Court awards the applicant EUR 6,000 in respect
of non-pecuniary damage, having also regard to the fact that the
circumstances of the case gave rise to legitimate grounds for
believing that the Minister of Justice – Prosecutor General had
taken a special interest in the proceedings against the
applicant (see, Henryk Urban and Ryszard Urban,
cited above, §§ 56 and 62).
B. Costs and expenses
The
applicant claimed in total EUR 24,744.68 (PLN 89,291.34) for costs
and expenses, which breaks down as follows:
a)
EUR 1,685 (PLN 6,000) for the lost interest on his bank deposits
which resulted from the seizure order;
b)
EUR 843 (PLN 3,000) for the damage to his car, which had been seized
by the CAB between February and November 2007;
c)
EUR 6,699.81 (PLN 23,851.34) for maintenance costs on his flat;
d)
EUR 2,342.70 (PLN 8,340) for travel and other costs related to the
applicant's detention which had been incurred by his brother;
e)
EUR 702.25 (PLN 2,500) for the applicant's travel costs related to
the summonses from the prosecution office, the CAB and the court
bailiff;
f)
EUR 449.44 (PLN 1,600) for the purchase of a laptop to store the
content of the case files;
g)
EUR 337.08 (PLN 1,200) for translation costs;
h)
EUR 561.80 (PLN 2,000) for the applicant's medical treatment;
i)
EUR 842.70 (PLN 3,000) for mobile phone cards;
j)
EUR 337.08 (PLN 1,200) for the cost of letting a flat;
k)
EUR 10,280.90 (PLN 36,000) for the cost of legal assistance provided
by the applicant's first lawyer.
The
applicant subsequently claimed PLN 2,440 (EUR 600) for reimbursement
of legal costs incurred for the preparation of his subsequent
submissions, principally on issues related to Article 6 § 2, by
his second lawyer.
The
Government submitted that most of the costs claimed by the applicant
had been incurred in the framework of the criminal proceedings
against the applicant and that the domestic court would be competent
to decide on those costs.
The
Court reiterates that only legal costs and expenses found to have
been actually and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention (see,
among other authorities, Roche v. the United Kingdom [GC],
no. 32555/96, § 182, ECHR 2005 X). It notes that
the applicant made a number of claims under the heading of costs and
expenses which were incurred in the context of the domestic
proceedings but not at all in order to prevent or redress the breach
of the Convention. Accordingly, they are not recoverable under
Article 41 of the Convention.
In
respect of legal costs, the applicant claimed the total amount of PLN
36,000 (EUR 9,000) for costs of legal assistance provided by his
first lawyer. He substantiated this claim by three invoices, each for
PLN 12,200, dated 15 February, 2 May and 5 September 2007. The Court
notes that the invoices were not signed and did not specify what
legal assistance was provided. Moreover, only the last of the
invoices was issued following the lodging of the application with the
Court. It appears that the two earlier invoices relate to the costs
of legal assistance provided to the applicant in the context of the
domestic proceedings against him. In respect of the legal costs
incurred in connection with the submissions made by the applicant's
second lawyer, the Court observes that they mainly concerned the
complaint under Article 6 § 2 which was eventually declared
inadmissible by the Court. Having regard to the above considerations
and the criteria established in its case-law, the Court rejects the
claim for costs and expenses in the domestic proceedings and
considers it reasonable to award the sum of EUR 2,000 for the
proceedings before the Court.
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
1. Declares
the complaint under Article 5 § 3 of the Convention concerning
the lack of independence of the assessor admissible and the remainder
of the application inadmissible;
2. Holds
that there has been a violation of Article 5 § 3 of the
Convention;
3. 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 6,000 (six
thousand euros) in respect of non-pecuniary damage and EUR 2,000 (two
thousand euros) in respect of costs and expenses, plus any tax that
may be chargeable, to be converted into Polish zlotys at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
4. Dismisses
the remainder of the applicant's claim for just satisfaction.
Done in English, and
notified in writing on 14 June 2011, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
