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AMELKA v. POLAND - 16761/07 [2012] ECHR 696 (17 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/696.html
Cite as:
[2012] ECHR 696
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FOURTH
SECTION
CASE OF MAMEŁKA v. POLAND
(Application
no. 16761/07)
JUDGMENT
STRASBOURG
17
April 2012
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 Mamełka v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 16761/07) 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 Wieńczysław
Mamełka (“the applicant”), on 10 April 2007.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
The
applicant complained about a delay of seven days in his release from
prison following the domestic court’s decision granting him
conditional release.
On
15 June 2009 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1962 and lives in Łódź.
The
applicant was serving a prison sentence in Potulice Prison.
The overall term of his imprisonment was due to come to an end
on 26 May 2007.
Pursuant
to the provisions of the Criminal Code, applicable to persons found
guilty of offences committed while acting as members of an organised
criminal group, the applicant became eligible for early conditional
release (warunkowe przedterminowe zwolnienie) after having
served three quarters of the overall term of his imprisonment,
namely on 12 July 2006. After that date, the applicant
requested a court on several occasions to grant him conditional
release. However, his requests were denied.
On
11 January 2007 the Bydgoszcz Regional Court (Sąd Okręgowy)
gave a decision ordering the applicant’s early conditional
release for a two-year probationary period. It placed the applicant
under the supervision of a court officer and imposed certain other
obligations on him.
On
19 February 2007 the Gdańsk Court of Appeal (Sąd
Apelacyjny) upheld the decision of the Bydgoszcz Regional Court.
On
20 February 2007 the applicant was served with a copy of the Gdańsk
Court of Appeal’s decision.
According
to the official release certificate, the applicant was released on 26
February 2007.
II. RELEVANT DOMESTIC LAW
A. Relevant constitutional provisions
Article
41 § 1 of the Polish Constitution provides as follows:
“Inviolability and liberty of the person shall be
afforded to everyone. Any deprivation or limitation of liberty may be
imposed only in accordance with the principles and procedures laid
down by statute.”
B. Conditional release of a person serving a prison
sentence
Article 77 § 1 of the 1997 Criminal Code reads as
follows:
“The court may conditionally release a person
serving a prison sentence from serving the remainder of that sentence
only when his/her behaviour, characteristics, personal circumstances
and way of life prior to the commission of the offence, the
circumstances in which the offence was committed and his/her
behaviour following the commission of the offence and while serving a
sentence, would justify a conclusion that, following [conditional]
release, the person would abide by the law and, in particular, would
not re-offend.”
Article
78 §§ 1-3 of the Criminal Code prescribes the minimum
prison term, depending on the type of sentence and offender, which
must be served before a convicted person may apply for conditional
release. However, the decision to grant conditional release is left
to the discretion of the court, which must be satisfied that the
conditions laid down in Article 77 § 1 of the
Criminal Code are met.
C. Execution of a decision granting conditional release
When
conditional release is granted, a convicted person should be released
on completion of the necessary administrative formalities as
specified in the Ordinance (Zarządzenie) of the Minister
of Justice of 27 August 1998 on Administrative Acts concerning
Execution of Pre-Trial Detention and Sentences and Coercive Measures
resulting in Deprivation of Liberty.
Paragraph
3 of that Ordinance states, in so far as relevant:
“All administrative formalities shall be carried
out without delay (niezwłocznie) ... This concerns in
particular (...) transmission of information and official
notifications ... and releasing.”
Paragraph
104.2 of the Ordinance provides that the convicted person should be
released upon receipt of a copy of the enforceable decision granting
him or her conditional release. The release should be effected on the
day of the receipt of the relevant documents by the prison (§
104.3 of the Ordinance).
The
Ordinance does not prescribe any specific time-frame for the
execution of the decisions granting conditional release.
In
its decision of 4 October 2011 setting out its observations on the
lacunae in the Regulation of 13 January 2004 on Administrative Acts
concerning Execution of Pre-Trial Detention and Sentences and
Coercive Measures resulting in Deprivation of Liberty, the
Constitutional Court indicated the need to take appropriate
legislative measures to tackle the problem of delay in the release of
detainees from custody.
The
Constitutional Court considered that the existing regulations did not
guarantee the prompt release of a detainee following a court
decision. In particular, it maintained that the obligation to deliver
to the penitentiary facility the original of a court warrant in
respect of a detainee’s release from custody was no longer
justified in the light of the development of information and
communications technologies.
The
Constitutional Court further observed that the current situation was
incompatible both with the provisions of the Constitution and the
European Convention on Human Rights. In particular, the
Constitutional Court made reference to the Court’s judgments in
the cases of Gębura v. Poland, no. 63131/00, 6 March
2007 and Ladent v. Poland, no. 11036/03, 18 March 2008, where
the Court underlined that the right to liberty imposes on the
authorities a duty to eliminate organisational shortcomings
attributable to the State which may give rise to unjustified
deprivation of liberty.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained about a delay of seven days in his release from
prison following the Gdańsk Court of Appeal decision of 19
February 2007 granting him conditional release. The applicant relied
on Article 5 § 1 of the Convention, which reads, in
its relevant part, as follows:
“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:
(a) the lawful detention of a person after
conviction by a competent court;
...”
The
Government contested that argument.
A. Admissibility
The
Government raised a preliminary objection that the applicant had not
exhausted domestic remedies available to him under Polish law.
In
this respect, the Government argued that the applicant could have
claimed compensation from the State Treasury for damage caused by the
unlawful action of a State official carried out in the course of
performing his duties. They relied on Article 417 taken in
conjunction with Articles 445 § 2 and 444 of the Civil
Code (see paragraph 23 below). The Government further submitted that
it had also been possible for the applicant to lodge an action under
Article 24 taken in conjunction with Article 448 of the Civil
Code seeking compensation for the infringement of his personal
rights.
The
applicant disagreed.
The
Court reiterates that, according to its established case-law, the
purpose of the domestic remedies rule in Article 35 § 1
of the Convention is to afford the Contracting States the opportunity
of preventing or putting right the violations alleged against them
before those allegations are submitted to the Court (see Dankevich
v. Ukraine, no. 40679/98, § 107, 29 April 2003).
Where the respondent State claims non-exhaustion of domestic
remedies, it bears the burden of proving that the applicant has not
used a remedy that was both effective and available (McFarlane
v. Ireland [GC], no. 31333/06, § 107), ECHR 2012....
The
Court notes that the Government submitted several examples of
successful actions in tort against the State Treasury from the
practice of the domestic courts. However, none of those examples
concern specifically belated release from detention. They refer in
particular to the execution of a wrongly calculated cumulative prison
sentence (cases no. III Ca 1646/06, Gdańsk Regional Court, of 31
January 2007; brought by J.Z and no. II Ca 1355/2008,
Poznań Regional Court, of 7 October 2008, brought by T.C.), the
unlawful execution of a disciplinary custodial penalty (kara
porządkowa aresztu)(case no. IC 127/08, Wrocław-Śródmieście
District Court, of 20 October 2008; brought by T.A.) and the
execution of an unlawfully revoked suspended prison sentence (case
no. III Ca 39/05, Nowy Sącz Regional Court, of 15 February
2005; brought by W.O.). The Court observes that the domestic case-law
relied on by the Government does not constitute evidence of a
sufficiently well-established judicial practice to show that a claim
for compensation based on Article 417 taken in conjunction with
Articles 445 § 2 and 444 of the Civil Code was at the
material time an effective remedy in the particular circumstances of
the present case.
The
Court also observes that the Government did not provide any relevant
examples from the domestic case-law to substantiate the effectiveness
at the relevant time of an action under Article 24 taken
in conjunction with Article 448 of the Civil Code.
Accordingly,
the Court concludes that in the particular circumstances of the case
the Government’s plea of inadmissibility on the ground of
non-exhaustion of domestic remedies must be dismissed.
The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention. It
also notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The arguments of the parties
The
applicant submitted that he was unlawfully detained in prison between
19 and 26 February 2007.
The
Court notes that the Government refrained from taking a position on
the merits of this complaint.
2. The Court’s assessment
The
Court reiterates that any detention must be lawful. The words “in
accordance with a procedure prescribed by law” essentially
refer to domestic law and lay down an obligation to comply with its
substantive and procedural provisions, but also require that any
measure depriving the individual of his liberty must be compatible
with the purpose of Article 5, namely to protect the individual from
arbitrariness (see Winterwerp v. the Netherlands, 24 October
1979, § 39, Series A no. 33; and Lukanov v. Bulgaria,
20 March 1997, § 41, Reports of Judgments and Decisions
1997 II).
The
Court further reiterates that the list of exceptions to the right to
liberty secured in Article 5 § 1 of the Convention is an
exhaustive one and only a narrow interpretation of those exceptions
is consistent with the aim and purpose of that provision. The Court
must, therefore, scrutinise complaints of delays in release of
detainees with particular vigilance (see Quinn v. France, 22
March 1995, § 42, Series A no. 311; Giulia Manzoni v. Italy,
1 July 1997, § 25, Reports of Judgments and Decisions
1997 IV; K.-F. v. Germany, 27 November 1997, §§
70, Reports of Judgments and Decisions 1997 VII; Labita
v. Italy [GC], no. 26772/95, § 170, ECHR 2000 IV;
and Nikolov v. Bulgaria, no. 38884/97, § 80,
30 January 2003).
As
regards the characteristics of conditional release under Polish law
as it stood at the material time, the Court notes that the applicant
had had a right to apply for conditional release after having served
the statutory minimum term of his prison sentence. Once conditional
release had been granted, the applicant had the right to be released
without delay, as provided for in the Ordinance of the Minister of
Justice of 27 August 1998 and on completion of the necessary
formalities.
Turning
to the circumstances of the present case, the Court notes that the
applicant was serving a prison sentence and became eligible for
conditional release on 12 July 2006. On 11 January 2007 the Bydgoszcz
Regional Court granted the applicant conditional release for a
two-year probationary period. That decision was upheld by the Gdańsk
Court of Appeal on 19 February 2007. The applicant was served with
the Court of Appeal’s decision on 20 February 2007. He was
released from prison on 26 February 2007.
The
Court observes that although the applicant’s continued
detention, following the final decision of the Court of Appeal on his
conditional release, ceased to be justified, he could not have
expected to be released instantly. The Court has previously accepted
that, in certain circumstances, there may be some limited delay
before a detained person is released. Practical considerations
relating to the running of the courts and the completion of
administrative formalities mean that the execution of such a court
order may take time which, nevertheless, should be kept to a minimum
and, in any event, not exceed several hours (see Quinn, cited
above, § 42; Giulia Manzoni, cited above, § 25;
Labita, cited above, § 171; Nikolov, cited
above, § 82; and Gębura v. Poland, cited above,
§ 34).
The
Court notes that the Ordinance of the Minister of Justice of
27 August 1998 sets out in paragraph 3 a general principle that
all administrative formalities have to be carried out without delay,
in particular those concerning transmission of information and
official notifications and related to the release of a detainee (see
relevant domestic law). The Court also reiterates that it is
incumbent on the respondent Government to provide a detailed account
of the relevant events (see, Labita, cited above, § 170).
In this connection the Court notes that the Government did not
present a timeline of the administrative formalities completed for
the applicant’s release. The Court further observes that there
was a delay of seven days between the delivery of the Court of
Appeal’s decision and the applicant’s release.
Consequently, in the Court’s view, the relevant administrative
formalities should in the present case have been carried out more
swiftly. In this regard, the Court observes that the paramount
importance of the right to liberty imposes on the authorities a duty
to do away with organisational shortcomings attributable to the State
which may occasion unjustified deprivation of liberty (see Gębura,
cited above, § 35).
In
conclusion, the Court considers that it cannot be said that the
relevant authorities attempted to keep to a minimum the delay
in implementing the decision to release the applicant as required by
the relevant case-law. There has accordingly been a
violation of Article 5 § 1 of the Convention.
II. 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 10,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contested this claim as exorbitant.
Considering
the circumstances of the case and making its assessment on an
equitable basis, the Court awards the applicant EUR 2,000 under
this head.
B. Costs and expenses
The
applicant submitted no claim for costs and expenses.
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
Declares the application admissible;
Holds that there has been a violation of Article
5 § 1 of the Convention;
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 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, 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
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór Björgvinsson
Registrar President
