FOURTH SECTION
CASE OF
DOCHNAL v. POLAND
(Application no.
31622/07)
JUDGMENT
STRASBOURG
18 September 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 caseof Dochnal v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David ThórBjörgvinsson, President,
LechGarlicki,
PäiviHirvelä,
GeorgeNicolaou,
LediBianku,
NebojšaVučinić,
Vincent A.De Gaetano, judges,
andFatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 28 August 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 31622/07)
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 Marek Alojzy Dochnal (“the applicant”),
on 13 July 2007.
The applicant was represented by Ms M. Gąsiorowska,
a lawyer 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 pending investigation was contrary to Article 5 of the
Convention, that he had had no contact with his family, contrary to
Article 8 of the Convention,and that the criminal proceedings against him
were politically motivated, contrary to Article 18 of the
Convention.
On 8 January 2008 the Court decided to give
notice of the applicationto the Government. It 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 1961 and lives in Katowice.
A. The first set of criminal proceedings
The applicant, a businessman and lobbyist, lived
in Warsaw and London and was a resident of Monaco. On 26 September 2004
the applicant was arrested at Krakow airport.
On 28 September 2004 the Łódź
District Court (Sąd Rejonowy) remanded the applicant in custody in
view of a reasonable suspicion that he had offered a bribe to a Member of
Parliament, A.P., in connection with a privatisation process. The court
established that only detention would secure the proper conduct of the
proceedings, given that the applicant did not have a permanent address in Poland. It also referred to the likelihood that a severe sentence would be imposed on the
applicant and to a risk that he would influence witnesses.
The applicant’s appeal against this decision was
dismissed by the ŁódźRegional Court (Sąd Okręgowy)
on 20 October 2004.
On 21 December 2004 and 22 March and
21 June 2005 the District Court extended the applicant’s detention. It
relied on the grounds given previously.
The applicant’s appeals against those decisions
were dismissed.
On 5 March and 23 April 2005 the
applicant testified before the Parliamentary Commission of Inquiry (Komisja
Śledcza) on the “PKN Orlen” case. The Commission subsequently notified
the Prosecutor General that the applicant had cooperated with it.
On 21 September and 21 December 2005
the Łódź Court of Appeal (Sąd Apelacyjny) extended the
applicant’s detention pending the outcome of the investigation. The court
referred to the extraordinary complexity of the case, which concerned charges
of corruption involving the highest public officials, and reiterated that other
preventive measures would not secure the applicant’s attendance at the trial.
The applicant’s detention was then extended by
the Court of Appeal on 8 February, 10 May, 21 June,
20 September and 6 December 2006. The court found that there were
circumstances justifying the fact that the investigation in the applicant’s
case had not yet been terminated by the prosecutor. On the last of these dates
the court also decided that the applicant could be released on bail in the
amount of 1,000,000 Polish zlotys (PLN) (approximately 260,000 euros (EUR)).
On 5 January 2007 the pre‑trial
detention of the former MP A.P., and the applicant’s assistant, K.P., was
lifted. The applicant’s appeals against all the decisions extending his
detention were dismissed. His numerous applications for release were also to no
avail.
On 20 January 2007 the Katowice Appeal
Prosecutor lodged a bill of indictment against the applicant, A.P., and K.P.
The applicant was accused of several offences of corruption. The bill of
indictment was over 200 pages long. The prosecutor requested that eighty‑four
witnesses be heard and statements from a further forty‑two witnesses be
read out. He relied on 458 pieces of evidence.
On 9 February 2007 the applicant’s
detention was further extended. The applicant lodged an appeal against this
decision.
On 11 April 2007 the Warsaw Court of Appeal
allowed the appeal and decided to release the applicant on bail, fixing the
amount at PLN 600,000. The court established that the evidence in the case
had been obtained, the bill of indictment had been lodged with the trial court
and the applicant had a permanent place of residence in Poland.
On 15 June 2007 the Warsaw District Court
changed the order and fixed bail at PLN 500,000. The prosecutor lodged an
appeal.
On 17 July 2007 the Warsaw Regional Court
dismissed the prosecutor’s appeal, finding that there was no evidence that the
applicant would try to influence witnesses or otherwise interfere with the proper
course of the proceedings. The court also observed that the applicant had not
paid the bail set by the District Court, probably because he had remained in
pre‑trial detention in connection with another set of proceedings.
In the meantime, on 30 April 2007, the
Warsaw District Court decided that it did not have jurisdiction to try the
applicant’s case, and transferred it to the Zgierz District Court. On
14 May 2007 the Warsaw District Court corrected an “obvious editorial mistake”
in its decision of 30 April 2007, by indicating that the trial should be
conducted before the Pabianice District Court. The applicant’s lawyer appealed
against that decision, and on 17 July 2007 the Warsaw Regional Court
allowed the appeal, on the ground that the designation of a trial court should
not have been considered a matter of editorial revision. Finally, on
17 July 2007 the Warsaw Regional Court decided that the Pabianice District
Court should hear the applicant’s case.
The trial court scheduled the first hearing for
27 September 2007, but it was cancelled.
On 10 October 2007 the Pabianice District
Court fixed the amount of bail for the applicant’s release at PLN 300,000
(approximately EUR 84,000). The court established that bail in this amount
would secure the applicant’s attendance at the trial. The prosecutor lodged an
appeal, but it was dismissed on 30 October 2007.
It appears that the applicant paid the bail, and
his detention with respect to this set of proceedings ended. Nevertheless, he
was not released (see below).
On 25 June 2012 the Pabianice District
Court convicted the applicant and sentenced him to three years and six months’
imprisonment and a fine (II K 293/07). The judgment is not final and the
applicant applied to receive a reasoned copy of the judgment with a view to
lodging an appeal against it.
B. The second set of criminal proceedings (Ap II Ds
54/05/s)
1. The investigation and pre‑trial detention
On 8 March 2005 the applicant was charged
with abetting an offence of bribery (podżeganie do przekupstwa),
contrary to Article 229 taken together with Article 18 of the
Criminal Code. The content of the charge was classified “top secret” (ściśle
tajne) andthus the details of the charge do not appear on the reasoned
decision to charge the applicant. The applicant alleged that this and
subsequent charges were a reaction to his statements made before the “PKN
Orlen” Parliamentary Commission (see paragraph 11 above).
In January and November 2006 the applicant was
charged in connection with various counts of money laundering and tax evasion
(causing damage to the State Treasury in the amount of EUR 1,900).
Subsequently, his wife and mother‑in‑law were charged in connection
with the latter offence. The applicant’s mother‑in‑law was arrested
but later released on bail.
On 26 November 2006 the Katowice District
Court decided to remand the applicant in custody in connection with this set of
proceedings.
On 8 December 2006 the charges against the
applicant were further supplemented with the addition of other tax‑related
offences.
On 19 February and 22 June 2007 the
Katowice District Court further extended the applicant’s pre‑trial
detention. It considered that there was a risk that the applicant would
influence witnesses or tamper with the proper course of the proceedings. The
court also referred to the likelihood that a heavy sentence would be imposed on
the applicant. The applicant appealed against these decisions.
The appeal against the decision of
19 February 2007 was firstly rejected on 18 April 2007 as lodged out
of time. The applicant’s lawyers further appealed against this decision. On
9 May 2007 the Katowice Regional Court allowed that appeal and quashed the
decision of 18 April 2007. On 6 June 2007 the appeal against the
decision of 19 February 2007 was decided on the merits and dismissed by
the Katowice Regional Court. The court disagreed that the allegations against
the applicant were unfounded,and considered that extensive evidence had been
gathered justifying the reasonable suspicion against the applicant (the
evidence included bank documents, contracts, correspondence, and statements
from witnesses and the applicant).
On 18 October 2007 the State Prosecutor (Prokurator Krajowy) gave
a decision authorising a search of the applicant’s cell and seizure of illegal
items, in particular drugs and other psychotropic substances. On the same day a
search of the applicant’s cell was conducted. No illegal items were found.
However, the authorities seized two books containing Sudokupuzzles, which also
contained notes written by the applicant.
On 23 October 2007 the Katowice District
Court dismissed the prosecutor’s request for a further extension of the
applicant’s detention. The court decided that the applicant could be released
on bail,which it set at PLN 500,000 (approximately EUR 140,000). The
court referred to the lengthy imposition of the most severe preventive measure
on the applicant, who should be presumed innocent, and considered that his pre‑trial
detention had become a criminal sanction in violation of the principles of
domestic criminal law and of international law. It also noted that the
prosecution had collected by that time a huge amount of evidence against the
applicant (the case file amounted to227 volumes) and should be able to
terminate the investigation. The prosecutor appealed against this decision.
On 29 October 2007 the Katowice Regional
Court allowed the prosecutor’s appeal and quashed the decision allowing the
applicant to be released on bail. It also extended the applicant’s detention
until 31 January 2008.
On 28 January 2008 the Warsaw Regional
Court decided to dismiss the prosecutor’s request and not to extend the
applicant’s pre‑trial detention.
The applicant was released on 31 January
2008.
On 19 February 2008 the Warsaw Court of
Appeal dismissed an appeal lodged by the prosecutor and decided to impose a
preventive measure on the applicant, namely police supervision and a ban on
leaving the country. The court considered that the total length of the applicant’s
pre‑trial detention, imposed in two sets of proceedings but taken
cumulatively, amounted to three years and four months, as the applicant had
been arrested on 28 September 2004. The court thus dismissed the
prosecutor’s allegation that only the length of the second set of the
proceedings should be taken into consideration and that therefore the detention
could be extended further.
On 7 August 2008 the applicant was arrested
again. A new charge relating to forgery of a foreign driving licence was added
to the original charges against him.
On 9 August 2008 the Katowice Court of
Appeal decided to extend the applicant’s detention.
The applicant appealed against that decision; on
10 September 2008 the Katowice Court of Appeal shortened the period by
which the applicant’s detention was extended.
On 25 September 2008 the Katowice Court of
Appeal further extended the applicant’s detention. An appeal against this
decision was dismissed on 29 October 2008.
On 5 November 2008 the Katowice Court of
Appeal extended his detention. The applicant appealed.
On 21 January 2009 the Katowice Court of
Appeal decided to release the applicant on bail of PLN 3,000,000
(approximately EUR 690,000). It appears that the applicant paid the bail.
On 20 February 2009 the applicant was
released from detention.
Between September 2009 and March 2010 the
Katowice Appeal Prosecutor discontinued several sets of investigations in
connection with the following charges against the applicant: owning a forged
driving licence issued by British Honduras (whose name has been Belize since
1973), shortcomings in preparation of yearly reports of activity of a limited
liability company, lack of care in storing ammunition for his legally owned gun
so it was accessible to his wife, and passing to another person two joints of
marijuana, as there wasno evidence that the offences had been committed.
On 8 September 2010 the Katowice Appeal
Prosecutor discontinued the investigation in connection with the charge against
the applicant of abetting an offence of bribery contrary to Article 229
taken together with Article 18 of the Criminal Code (the charge of
8 March 2005, see paragraph 24 above). The prosecutor considered that
there was no evidence that the offence had been committed. Since the materials
pertaining to the charge were classified as secret, the writtenreasons for the
decision were also considered secret and were deposited in the secret registry
of the prosecutor’s office.
On 21 January, 4 March and
21 July 2010, and on 21 February 2012 the Katowice Appellate
Prosecutor lodged bills of indictment against the applicant. On 9 December
2011 the prosecutor discontinued the investigation as regards a number of
remaining charges.
The remaining part of the investigation is
pending before the Katowice Appeal Prosecutor (no. Ap V Ds. 6/09/s).
2. Access to the case file
On 29 November 2006 the Katowice Appeal
Prosecutor dismissed the applicant’s requests for leave to consult the case
file against him. The decision was upheld on 12 January 2007. In 2007 the
applicant’s lawyers attempted on at least eight occasions to obtain leave to
consult the case file, without success. All those refusals of permission were upheld
at the appellate stage. The prosecutor considered on each occasion that the
investigation was multi‑layered and complex, and that the case file
included classified documents and information which, if disclosed to the
accused or his lawyers, would damage the proper course of the pending
investigation.
On 25 January 2008 the Katowice Appeal
Prosecutor decided to allow the applicant and his lawyers partial access to the
casefile. The prosecutor scheduled consultation of the file between 5 May
and 14 August 2008.
On 20 November 2008 the Katowice Appeal
Prosecutor granted further partial access to the case file.
In 2009 the applicant and his lawyers made
further unsuccessful applications for access to the casefile. Finally, on
19 November 2009 the prosecutor allowed them partial access to it.
3. Proceedings under the 2004 Act
On 18 October 2009 the applicant lodged a
complaint that his right to a trial within a reasonable time had been breached
in respect of the investigation carried out by the prosecutor (no. Ap V
Ds. 6/09/s), and asked for just satisfaction. He relied on the amended Law of
17 June 2004 on complaints about a breach of the right to an investigation
conducted or supervised by a prosecutor and to a trial within a reasonable
time (Ustawa o skardze na naruszenie prawa strony do rozpoznania
sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez
prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
On 22 December 2009 the Warsaw Court of
Appeal allowed the complaint and awarded the applicant PLN 10,000 (which
amounted to EUR 2,300 at the material time). The court considered that the
investigation in the instant case started on 20 July 2004 and was still
pending. Although it agreed with the prosecutor that the case was complex, it
noted that there had been many delays and that many of the actions could have
been carried out earlier. The court also instructed the prosecutor to intensify
his activity in the case, so that the investigation could be terminated by
30 March 2010.
In March 2011 the applicant lodged a second
complaint under the 2004 Act complaining that the investigation (no. Ap V
Ds. 6/09/s) was still pending before the prosecutor.
On 27 April 2011 the Warsaw Court of Appeal
dismissed the complaint. It examined the course of the investigation since
30 March 2010 and considered that the prosecutor had been very active and
managed to terminate the investigation as regards many of the charges against
the applicant either by lodging bills of indictmentor by dropping the charges.
In spite of all the efforts it had not been possible to terminate the
investigation in respect of the main charge against the applicant. This failure
however did not justify finding a breach of the applicant’s right to have the
proceedings concluded within a reasonable time.
C. Family visits
On 10 December 2004 the applicant’s wife
visited the applicant in the detention centre after being granted leave by the
prosecutor. It appears that up to 5 October 2006 she visited him at least
eighteen times, including twice with their older child.
On 9 January 2007 the Katowice Appeal
Prosecutor informed the applicant’s wife that she had to seek leave to visit
the applicant from two prosecutors conducting two sets of criminal proceedings
against the applicant, and that there was no right of appeal against the
prosecutor’s decisions to refuse visiting rights.
Between October 2006 and the applicant’s release
on 31 January 2008 all requests by the applicant’s wife for visitswere
refused. In particular, the Katowice Appeal Prosecutor dismissed requests made
on 8 January, 28 February, 12 March, 29 May, 25 June
and 17 December 2007. The decisions contained no reasoning and no appeal
lay against them.
On 6 February 2007 the Katowice Appeal
Prosecutor informed the applicant in a letter that since his wife had been
heard as a witness in the second set of proceedings against him it was not
possible to grant her leave to visit the applicant. On 28 May 2007 the
Katowice Appeal Prosecutor informed the applicant’s wife in a letter that since
14 February 2007 she had been a suspect in one of the cases,so her
requests to visit the applicant would not be allowed.
On 20 February and 12 March 2007 the
Katowice Appeal Prosecutor dismissed the applicant’s request for leave to
receive a visit from his mother. The letter of refusal provides no reasons for
that decision.
D. Seizure
On 10 October 2004 the Łódź
Appeal Prosecutor decided to seize the applicant’s assets. That decision was
amended on 10 February 2005 in that the prosecutor decided to seize shares
in the applicant’s company, L., shares in the public company S., and money
deposited on his bank accounts up to the maximum amount of the fine provided by
the criminal law, namely PLN 720,000 (approximately EUR 200,000). It
appears that that decision was upheld by the Łódź District Court on
18 February 2005.
On 1 March 2005 the Appeal Prosecutor
decided to seize further assets of the applicant and considered that the
maximum amount of fines that could be imposed on him for tax offences was
PLN 12,000,000. It appears that this decision was amended by the Łódź
District Court on 15 March 2005 in that the sum to be seized by the
authorities was limited to PLN 8,015,997 (approximately EUR 2,224,000).
On 27 April 2007 the court’s bailiff
informed the applicant that he had seized his bank accounts by way of
enforcement of the prosecutors’ decisions.
In May 2007 the bailiff seized the applicant’s
shares in a company D., and subsequently sold them.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice
concerning the imposition of detention during judicial proceedings (aresztowanie
tymczasowe), the grounds for its extension, release from detention and
rules governing other“preventive measures” (środki zapobiegawcze)
are stated in the Court’s judgments in the cases of Gołek v. Poland,
no. 31330/02, §§ 27‑33, 25 April 2006, and Celejewski
v. Poland, no. 17584/04, §§ 22‑23, 4 August 2006.
Article 156 § 5 of the Code concerns
access to the file during investigation. It provides:
“Unless otherwise provided
by law, during preparatory proceedings parties, defence counsel, and legal
representatives shall be allowed to consult files and make certified copies and
photocopies, but only with the permission of the person conducting the
preparatory proceedings. With the permission of a prosecutor and in exceptional
circumstances access to files in preparatory proceedings may be given to another
person.”
The relevant domestic law and practice
concerning remedies for excessive length of judicial proceedings, in particular
the applicable provisions of the 2004 Act, are stated in the Court’s decisions
in the cases of Charzyński v. Poland no. 15212/03
(dec.), §§ 12‑23, ECHR 2005‑V, and Ratajczyk v. Poland
no. 11215/02 (dec.), ECHR 2005‑VIII, and the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§ 34‑46,
ECHR 2005‑V.
Article 217 § 1 of the Code of
Execution of Criminal Sentences of 1997, as applicable at the material
time, provided as follows:
“A detainee is allowed to receive visitors, provided he obtains
permission from the authority at whose disposal he remains [investigating
prosecutor at the investigative stage or from the trial court once the trial
has begun]. If the detainee remains at the disposal of several authorities, it
is necessary to obtain permission from all of them, unless they decide
otherwise.”
Other relevant domestic law
and practice concerning family visits is outlined in the judgment Gradekv. Poland, no. 39631/06, §§ 20‑24,
8 June 2010.
THE LAW
I. THE GOVERNMENT’S REQUEST FOR THE APPLICATION
TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
On 1 September 2009 the Government
submitted a unilateraldeclaration requesting the Court to strike out the
application in so far as it relates to the applicant’s complaint under
Article 5 § 3 of the Convention.
The applicant objected to the proposal.
Having studied the terms of the Government’s
unilateral declaration, the Court considers, in the particular circumstances of
the applicant’s case, that it does not provide a sufficient basis for
concluding that respect for human rights as defined in the Convention and its
Protocols does not require it to continue its examination of the case (seeChoumakov v Poland (no. 2),
no. 55777/08, § 40, 1 February
2011, and Ruprecht v. Poland, no. 39912/06, § 27, 21 February 2012).
This being so, the Court rejects the
Government’s request to strike this part of the application out of its list of
cases under Article 37 of the Convention and will accordingly pursue its
examination of the admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3
OF THE CONVENTION
The applicant complained that the length of his pre-trial
detention had been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled
to trial within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
The Government failed to submit any
observations.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
The applicant’s detention in the first set of
proceedings started on 26 September 2004, when he was arrested. On
26 November 2006 the court imposed pre‑trial detention in connection
with the second set of proceedings. The applicant’s detention continued without
interruption until his release on 31 January 2008. Therefore, in both sets
of proceedings the applicant remained in continued and uninterrupted detention
for a period of three years and four months (seePiechowicz v. Poland, no. 20071/07, § 188,
17 April 2012).The Court notes that the domestic courts also
considered that the above‑mentioned periods should be considered
cumulatively, although the prosecutor severed some charges into separate
proceedings (see paragraph 35 above).
On 7 August 2008, after six months spent at liberty,the applicant
was arrested again in connection with previous charges. He was detained for
over six months,until 20 February 2009. The Court therefore considers that
the applicant’s pre‑trial detention amounted to three years and ten
months(see Mitev v. Bulgaria, no. 40063/98, § 102,
22 December 2004).
2. The Court’s assessment
(a) General principles
The Court recalls that the general principles regarding
the right “to trial within a reasonable time or to release pending trial, as
guaranteed by Article 5 § 3 of the Convention were stated in a number
of its previous judgments (see, among many other authorities, Kudła cited
above, § 110 et seq, and McKay v. the United Kingdom [GC],
no. 543/03, §§ 41-44, ECHR 2006-..., with further references)
(b) Application of the above principles in the
present case
In their detention decisions, the authorities,
in addition to the reasonable suspicion against the applicant, relied
principally on three grounds, namely (1) the serious
nature of the offences with which he had been charged, (2) the severity of the
penalty to which he was liable, and(3) the
need to secure the proper conduct of the proceedings, given the risk that the
applicant might tamper with evidence or try to influence the witnesses. In
addition, the courts underlined the particular complexity of the case.
The Court accepts that the reasonable suspicion
against the applicant of having committed serious offences could initially
warrant his detention. Also, the need to secure the proper conduct of the
proceedings constituted valid grounds for the applicant’s initial detention.
However, with the passage of time, those grounds
became less and less relevant. The Court must therefore establish whether the
other grounds adduced by the courts – namely, the severity of the anticipated
sentence and the risk that the applicant would disrupt the proceedings – were
“relevant” and “sufficient” (seeKudła cited above, § 111).
According to the judicial authorities, the
likelihood of a severe sentence being imposed on the applicant, created a
presumption that the applicant would obstruct the proceedings. However, the
Court would reiterate that, while the severity of the sentence faced is a
relevant element in the assessment of the risk of absconding or reoffending,
the severity of the charges cannot by itself justify long periods of pre-trial
detention (see Michta v. Poland, no. 13425/02, §§ 49,
4 May 2006).
Furthermore, the Court
notes that in all the decisions extending the applicant’s detention, no
specific substantiation of the risk that the applicant would tamper with
evidence, intimidate witnesses or otherwise disrupt the proceedings emerged. In
the absence of any other factor capable of showing that the risk relied on
actually existed, this argument cannot be accepted in the context of the entire
period of the applicant’s detention.
Having regard to the foregoing, the Court
concludes that the grounds given by the domestic authorities could not justify
the overall period of the applicant’s detention. In these circumstances it is
not necessary to examine whether the proceedings were conducted with special
diligence.
There has accordingly been a violation of
Article 5 § 3 of the Convention.
III. ALLEGED
VIOLATION OF ARTICLE5 §4 OF THE CONVENTION AS REGARDS ACCESS TO THE CASE FILE
The applicant further complained under
Article 5 § 4 of the Convention that in the second set of criminal
proceedings he did not have access to his case file. He submitted that this
limited to a great extent his opportunity to challenge the decisions extending
his pre‑trial detention. The applicant underlined that it placed him
at a significant disadvantage vis‑à‑vis the prosecutor, who
had unlimited access to his case file. The relevant part of Article 5 of
the Convention provides as follows:
“4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful.”
The Government contestedthat argument. They
maintained that the applicant had had unrestricted contact with his lawyers and
they had eventually been allowed access to the case file.
The Court notes that the 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.
The Court observes that the complaint relates to
the second set of criminal proceedings against the applicant in which he was
charged in 2005 and 2006 and which are still pending either at the preparatory
stage or before trial courts. In this set of proceedings the applicant was
remanded in custody on 26 November 2006, and immediately afterwards made a
request to consult his casefile. This and subsequent requests were all
dismissed by the Katowice Appeal Prosecutor (see paragraphs 47‑50
above).
Thus, until the applicant’s release on 31 January 2008,
neither the applicant nor his lawyers had access to the casefile. The first
decision of the prosecutor allowing partial access to the case file had been
given in January 2008. It appears that the applicant’s lawyer subsequently
consulted those volumes of the casefile to which they had been given access.
Afterwards, in November 2008 and in 2009, partial access to the casefile was
again granted.
The Court reiterates that a certain degree of access
to the casefile, if only to such an extent as to afford the detainee an
opportunity of effectively challenging evidence on which his detention was
based, may in certain circumstances be envisaged in proceedings concerning
review of the lawfulness of detention during judicial proceedings (see Lamy v. Belgium, judgment of
30 March 1989, Series A no. 151, pp. 16-‑17,
§ 29, and Chruściński v. Poland, no. 22755/04,
§ 62, 6 November 2007).
The Court also notes that the prosecutor’s refusal to allow the
applicant access to the casefile was justified by the fact
that the case concerned a complex investigation of the criminal activity of
several individuals and that the file included classified documents. However,
it reiterates that the efficient conduct of an investigation, albeit a
legitimate goal, cannot be pursued at the expense of substantial restrictions
of the rights of the defence of the applicant who, along with his lawyers, was
prevented from accessing his casefile for more than two years,for fourteen months
of which he remained in pre‑trial detention.
The Court considers that it was essential for
the applicant and his lawyers to have access to the file and
to inspect the documents in it,subject, if need be, to special arrangements in
respect of the classified documents, in order to challenge the lawfulness of
the applicant’s pre‑trial detention (seeMigoń v. Poland,
no. 24244/94, § 86, 25 June 2002).
In the light of the above, given the extensive period of time
during which neither the applicant nor his lawyer had accessto
any of the documents in the casefile, the Court considers that the applicant
could not effectively exercise his defence rights in the proceedings concerning
the review of the lawfulness of his pre‑trial detention.
Accordingly, there has been a violation of
Article 5 § 4 of the Convention as regards the lack of access to the
case file.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that during his detention he had been deprived of personal contact with his
family for a significant period of time. He complained that the prosecutor’s
decisions had been arbitrary and that no appeal lay against them. The applicant
relied on Article 8 of the Convention, which provides as relevant:
“1. Everyone has the right to respect for his ...
family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well‑being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or
for the protection of the rights and freedoms of others.”
The Government contested this argument, and
maintained that the restriction of contact with the applicant’s wife had been
necessary to secure the proper conduct of the proceedings.
The Court notes that the complaint is not
manifestly ill‑founded within the meaning of Article 35
§ 3 (a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
The Court further notes that it has not been
contested that the applicant was not allowed to receive visits from his wife
from October 2006 until his release in January 2008. The applicant’s mother
visited the applicant on two occasions, in June 2005 and June 2007. From the
documents at the disposal of the Court it also appears that the prosecutor’s
decisions refusing those visits did not include any reasoning (see
paragraphs 54 and 56 above).
In particular, the few information letters sent by the Katowice
Appellate Prosecutor to the applicant or his wife could not be considered as
sufficiently remedying the total lack of reasoning in the authorities’
decisions refusing family visits between October 2006 and January 2008 (see
paragraphs 53 and 55 above and compare and contrast Piechowicz,
cited above, § 21).
The restrictions on the applicant’s personal
contact with his family constituted an “interference” with his right to respect
for his family life.
The Court observes that the contested measure
was applied under Article 217 § 1 of the Code of Execution of
Criminal Sentences. The Court further
notes that this provision, as applicable at the material time, gave the
relevant authority (prosecutor or court) the power to grant permission for
family visits in prison. The law, however, provided no details as regards the
conditions for granting such permission, no guidance as to how the authorities
might decide whether a prohibition of visiting rights was merited in a
particular case, and what factors might be relevant to that decision. Nor did
it provide for the possibility of an appeal against refusal of visits. Those decisions were left to the authorities’
absolute discretion.
. The Court further observes that
it has already held that Article 217 § 1 of the Code of
Execution of Criminal Sentences did not indicate with reasonable clarity
the scope and manner of the exercise of any discretion conferred on the
relevant authorities to restrict visiting rights (see Wegera v. Poland, no. 141/07,
§ 74‑75, 19 January 2010, and Gradekv. Poland, no. 39631/06, § 43, 8 June
2010).
. For these reasons the Court
concludes that the unreasoned refusal of family visits in detention in the
applicant’s case was not in accordance with the law. On that account it
is not necessary to ascertain whether the other conditions imposed by
Article 8 § 2 have been complied with.
There has accordingly
been a violation of Article 8 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained of a violation of Article 3
of the Convention, in that he remained in solitary confinement between
6 January 2006 and 31 January 2008. He submitted that the cell had
been fitted with a narrow bed which was too short for him, that in winter the
temperature in the cell fell below zero, and that he had not been allowed to
use the library, attend mass or participate in other activities. The applicant
also argued that he had been kept in isolation and had been prevented or
restricted from receiving newspapers and books.
The Government contested these arguments. They
submitted that while detained in the Katowice Detention Centre between
6 January 2006 and 30 October 2007 the applicant had been placed in a
single cell measuring 3.5 square metres. They maintained that he had been
allowed daily outdoor walks with other inmates and had had access to the
library, religious services and other activities provided by the detention
centre. He also had his own radio and TV in the cell. In Sieradz Prison, where
the applicant was detained between 30 October 2007 and 31 January
2008, he had been placed in a single cell of 5 square metres.
The Government provided letters from both remand centres, which
attest that the applicant had had daily walks and that he had not been
interested in other activities provided by the prison. They also maintained
that in both detention centres the applicant had been receiving parcels from
his family and had subscribed to several magazines and newspapers.
The Government submitted that the applicant had
never complained to the prison authorities or to the District Inspectorates of
the Prison Service about being placed in a single cell or about the conditions
of his detention; nor had he lodged a civil action against the State Treasury.
The applicant admitted that he had not
complained to the Penitentiary Judge. From the evidence submitted by him it
appears that he made one request in May 2006 to the Director of the Katowice
Detention Centre asking additionally for leave to receive meals from outside on
days when he was not taken to court.
The Court notes that it is not disputed that
for over two years the applicant was detained in a single cell. The parties
disagreed as to the particular conditions of his detention; in particular, it
is not clear what was the degree of isolation to which he had been subjected,
and, in particular, whether he had regular contact with other inmates.
The allegations made by the applicant to the
Court about the conditions of his detention are indeed very serious ones.
Nevertheless, the Court notes that there is no evidence that the applicant at
any time complained about being placed in a single cell, about the arrangements
for outdoor exercise or about access to various activities. Nor did he request
transfer to another cell. The letters from the Katowice Detention Centre and
Sieradz Prison submitted by the Government confirm that the applicant lodged no
complaints with the authorities. The applicant acknowledged this, and submitted
that complaints would have had no effect.
The Court reiterates that the purpose of
Article 35 § 1 is to afford Contracting States the opportunity of
preventing or putting right the violations alleged against them before those
allegations are submitted to the Court. Consequently the Court considers that
the applicant should have raised his complaints first with the prison
authorities, the Prison Service Inspectorate or a prosecutor.
It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion
of domestic remedies.
VI. ALLEGED
VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION AND OF ARTICLE 18 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5
The applicant complained under Article 5
§ 1 of the Convention that his detention had been imposed in the absence
of a reasonable suspicion that he had committed an offence, and under
Article 18 that his detention had had a purpose other than that provided
for in Article 5 § 1(c). The relevant parts of Articles 5 and 18
of the Convention read as follows:
“Article 5 – Right to liberty and security
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 ...;
Article 18 – Limitation on use of restrictions of rights
The restrictions permitted under [the] Convention to the said
rights and freedoms shall not be applied for any purpose other than those for
which they have been prescribed.”
The Government submitted that the applicant’s
allegations were not supported by the materials of the case. The arrest took
place at Krakow airport because the applicant appeared to be about to board a
plane to leave Poland. He was charged with the serious offence of bribing a
public official. The applicant’s pre‑trial detention was imposed and
extended by an independent court on the ground of reasonable suspicion against
him. There was also a risk of the applicant evading justice, given his
financial means and the fact that he did not live permanently in Poland. All the decisions extending his detention were challenged by the applicant and were
upheld by appellate courts. Between 2004 and 2009 Poland was governed by three
different, and opposing, political formations (the Alliance of Democratic Left,
followed by Law and Justice and Civil Platform). During the period of the
applicant’s detention there were four different Ministers of Justice and
Prosecutors General. There was therefore no basis for the belief that the
prosecution of the applicant and keeping him in detention was politically
motivated.
The applicant maintained that the purpose of
his detention was not to secure the investigation but to persecute and abuse
him. He contested that there had not been a reasonable suspicion against him,
pointing to the fact that no judgment had so far been given, and many charges
had been dropped by the prosecutor. The applicant also argued that the
prosecution service used different means to persecute him, such as keeping him
in solitary confinement without visits from his wife and other members of his
family, and not allowing him to receive newspapers and magazines. The applicant
concluded that his detention was carried out in breach of
Article 5 § 1 (c) and for ulterior motives contrary to
Article 18.
The Court reiterates that in order for an
arrest on reasonable suspicion to be justified under
Article 5 § 1 (c) it is not necessary for the police to
have obtained sufficient evidence to bring charges, either at the point of
arrest or while the applicant is in custody (see Brogan
and Others v. the United Kingdom, judgment of 29 November
1988, Series A no. 145‑B, pp. 29‑30, § 53).
Neither is it necessary that the person detained should ultimately be charged
or taken before a court. The object of detention for questioning is to further
a criminal investigation by confirming or eliminating suspicions which provide
the grounds for detention (see Murray
v. the United Kingdom, judgment of 28 October 1994,
Series A no. 300‑A, p. 27, § 55). However, the
requirement that the suspicion must be based on reasonable grounds forms an
essential part of the safeguard against arbitrary arrest and detention. The
fact that a suspicion is held in good faith is insufficient. The words
“reasonable suspicion” mean the existence of facts or information which would
satisfy an objective observer that the person concerned may have committed the
offence (see Fox, Campbell and Hartley
v. the United Kingdom, judgment of 30 August 1990,
Series A no. 182, pp. 16‑17, § 32).
In the first set of proceedings the authorities
suspected the applicant of offering a bribe to a Member of Parliament. The prosecutor
collected a large amount of evidence, which was reflected in the bill of
indictment of 2007; recentlythe trial court convicted the applicant (see
paragraphs 15and 23 above). In the meantime further charges of money
laundering and tax evasionwere made against the applicant; by October 2007 the
case file prepared by the prosecutor in connection with those charges amounted
to 227 volumes (see paragraph 31 above). The domestic courts also noted
that the suspicion against the applicant was justified by extensive evidence
(see paragraph 29 above).
The Court therefore considers that the evidence
gathered by the investigating authorities could “satisfy an objective observer”
that the applicant might have committed the offence.The charges against the
applicant amounted to a “reasonable suspicion” within the meaning of
Article 5 § 1 (c) of the Convention.
When an allegation under Article 18 is
made the Court applies a very exacting standard of proof; as a consequence,
there are only few cases where a breach of that Convention provision has been
found. Thus, in Gusinskiy
v. Russia (no. 70276/01, § 73–78, ECHR 2004-...
(extracts), the Court accepted that the applicant’s liberty had been
restricted, inter
alia, for a purpose other than those mentioned in Article 5.
The Court in that case based its findings on an agreement signed between the
detainee and a federal minister of the press. It was clear from that agreement
that the applicant’s detention was applied in order to make him sell his media
company to the State. In Cebotari
v Moldova (no. 35615/06, §§ 46 et seq.,
13 November 2007) the Court found a violation of Article 18 of the
Convention in a context where the applicant’s arrest was visibly linked to an
application pending before the Court. However, such cases remain rare
(see, as an opposite example,
Sisojeva and Others v. Latvia [GC],no. 60654/00,
§ 129, ECHR 2007-II, and Khodorkovskiy v. Russia, no. 5829/04, § 261, 31 May
2011).
The Court reiterates that “Article 18 of
the Convention does not have an autonomous role. It can only be applied in
conjunction with other Articles of the Convention” (see Gusinski,
cited above, § 75). In the light of the above the
Court will consider the applicant’s allegations under Article 18 of
the Convention in conjunction with his complaints under Article 5 of the
Convention.
The Court has found in paragraph 111 above
that the applicant’s liberty was restricted “for the purpose of bringing him
before the appropriate legal authority on reasonable suspicion that he had
committed an offence”. However, when considering the allegation under Article 18
of the Convention the Court must ascertain whether the detention had also, and
hence contrary to Article 18, been applied for any other purpose than that
provided for in Article 5 § 1 (c).
The Court reiterates that the burden of proof
rests with the applicant to provide evidence in support of an allegation of
breach of Article 18 (see Khodorkovskiy, cited above, § 256).
The applicant’s submissions in this respect are limited to an assertion that he
was kept in detention in order to persecute and abuse him. The Court thus
concludes that the applicant failed to show that the real aim of the
authorities was not the same as that proclaimed, that the State machinery was
misused, and that the authorities were acting in bad faith and in blatant
disregard of the Convention.
The Court admits that the applicant’s case may
raise a certain suspicion as to whether the real intent of the authorities was
to extract further depositions from him regarding various sensitive political
matters. However, a mere suspicion that the authorities used their powers for
some other purpose than those defined in the Convention is not sufficient to
prove that Article 18 was breached (see Khodorkovskiy, cited above,
§ 255). In particular, the Court is unable to conclude that the legal
machinery of the respondent State in the present case was misused. This is a
very serious claim which requires incontrovertible and direct proof. Such proof
is absent in the case under examination.
It follows that this complaint is manifestly
ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Article 5 § 4 of the Convention –
other allegations
The
applicant further complained under Article 5 § 4 of the
Convention that his appeal against the decision of 19 February 2007,
extending his pre‑trial detention, had been examined only on 6 June
2007. Moreover, he complained about the charge brought against him on
8 March 2005, which had been classified as secret.
The Government contested thesearguments. They
submitted that the delay in examining the applicant’s appeal against the
decision of 19 February 2007 on the merits had been caused by his lawyers,
who had lodged the appeals outside the time‑limit, and the court
initially rejected them.
As regards the charge which was classified as secret, the
Government maintained that it had been communicated to the applicant and his
lawyers on 8 March 2005.
The Court notes that following the applicant’s
lawyers’ appeals against the decision of 19 February 2007 the courts had
dealt with the issue of admissibility of those appeals, in particular as
regards whether they had been lodged within the time‑limit. Once the
admissibility of the appeal had been resolved, on 9 May 2007, the court
gave a decision on the merits, on 6 June 2007 (see paragraph 29
above).
The Court thus considers that there was no undue delay which
would be incompatible with the notion of “speediness” laid down in Article 5 § 4 of the Convention (see Baranowski
v. Poland, no. 28358/95, § 68, ECHR 2000‑III).
As regards the complaint that the charge
brought against the applicant on 8 March 2005 was classified as secret,
the Court first notes that the Government submitted that the applicant and his
lawyers had acquainted themselves with this charge. The Court considers that
the applicant’s submissions in this respect are scanty, confused and
unsubstantiated. Nevertheless it appears from them that the applicant had
indeed been informed of the content of the classified charge. Finally, the
Court notes that it appears that the charge was dropped on 8 September
2010 and that the decisions extending his pre‑trial detention did not
refer to this charge in particular (see paragraph 44 above).
Therefore, in the light of all the material in
its possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is
manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
B. Article 6 § 1 ofthe Convention
The applicant complained that the length of both
sets of criminal proceedings against him had been incompatible with the
“reasonable time” requirement laid down in Article 6 § 1 of
the Convention.
The Government contested that argument and
indicated that the applicant had failed to exhaust domestic remedies.
Pursuant to Article 35 § 1 of
the Convention:
“The Court may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised rules of
international law...”
The Court observes that it was open to the
applicant to lodge a complaint of unreasonable length of proceedings with the
relevant domestic court. In respect of the first set of the proceedings the
applicant failed to lodge such a complaint, although the proceedings have been
pending before since 2007 andthe first‑instance court gave a judgment
only recently (see paragraph 23 above).
The Court has already examined that remedy for
the purposes of Article 35 § 1 of the Convention and found
it to be effective in respect of complaints of excessive length of
judicial proceedings in Poland. In particular, it has considered that that
remedy is capable both of preventing violations of the right to a hearing
within a reasonable time or its continuation, and of providing adequate redress
for any violation that has already occurred (see Charzyński, cited
above,§§ 36‑42).
It follows that the complaint of unreasonable
length of the first set of criminal proceedings against the applicant must be
rejected under Article 35 §§ 1 and 4 of the Convention for
non‑exhaustion of domestic remedies.
As regards the second set of proceedings, in
which the investigation started on 20 July 2004 and is still pending, the
Court notes that the applicant lodged a complaint under the 2004 Act (see
paragraph 51 above). On 22 December 2009 the Warsaw Court of Appeal
acknowledged a breach of the
applicants’ right to an investigation within a reasonable time, and awarded the
applicant compensation in the amount of EUR 2,300. The Court thus accepts
that the courts acknowledged the failure of the domestic authorities to comply
with Article 6 of the Convention in these respects. It is regrettable that
in spite of the Court of Appeal’s instruction to expedite the proceedings it
has not been possible to terminate the investigation into the main charge (see
paragraph 54 above). However, it is to be noted that the prosecutor was
not inactive since several bills of indictment were laid against the applicant
and some charges against him had been dropped(see paragraph 45 above).
It thus remains to be determined whether the compensation
awarded to the applicant amounted to sufficient redress.
The just satisfaction award was approximately
70% of what the Court would be likely to have awarded the applicant at that
time in accordance with its practice, taking into account the particular
circumstances of the proceedings. The Court therefore notes that the redress
provided to the applicant at domestic level, considered on the basis of the
matters of which he complains before the Court, was sufficient (compare and
contrast Czajka v. Poland,
no. 15067/02, § 56, 13 February 2007).
Having regard to the criteria for determining
victim status in respect of length‑of‑proceedings complaints as set
out in the judgment of Scordino v. Italy
(no.1) ([GC], no. 36813/97, §§ 193‑215, ECHR‑2006-...),
the Court concludes that the complaint should be rejected as incompatible ratione personae with the Convention within
the meaning of Article 35 § 3 (a) and must be rejected in
accordance with Article 35 § 4.
C. Article 1 of Protocol No. 1 tothe
Convention
The applicant complained that the authorities
seized his assets worth PLN 8,000,000. Later he informed the Court that
some of his assets had been released by the prosecutor.
The Government contested this argument, and
maintained that no seizure of property had been ordered in connection with the
sets of proceedings which were the subject matter of his application to the
Court. The applicant had some of his assets seized in order to secure his
financial liabilities towards the State Treasury stemming from proceedings
which took place prior to his detention. They also submitted that all seized
assets had been placed on an interest‑bearing deposit on‑demand
bank account, and upon request, could be moved on to a fixed‑term
account.
The Court observes that the applicant failed to
substantiate his allegation that Article 1 of Protocol No. 1 had been
breached. Moreover, there is no indication whatsoever that he raised this
complaint before the domestic authorities. Therefore, in the light of all the
material in its possession, and in so far as the matters complained of are
within its competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is
manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
D. Other allegations
The applicant complained under Article 7
of the Convention that, according to legal opinions produced by him, the first
set of proceedings should have been discontinued, as no offence had been
committed. The applicant also complained that he had not been able to initiate
criminal proceedings against a prosecutor for allegedly withholding information
pertaining to his release. He also complained that his private correspondence
had been monitored and that his case had received wide media coverage in Poland.
However, the Court observes that the applicant
failed to substantiate the above complaints. Therefore, in the light of all the
material in its possession, and in so far as the matters complained of are
within its competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is
manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
VIII. 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 10,000,000 Polish zlotys
(PLN) in respect of pecuniary damage and 100,000 euros (EUR) for non‑pecuniary
damage.
The Government did not comment on the
applicant’s claims.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 8,800
in respect of non‑pecuniary damage.
B. Costs and expenses
The applicant also claimed PLN 80,000 for
costs and expenses incurred before the domestic courts and PLN 10,980,
which amounted to EUR 3,300 at the material time, for those incurred
before the Court.
The Government did not comment on the
applicant’s claims.
According to the Court’s case‑law, an
applicant is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings, and considers it reasonable
to award the sum of EUR 3,300 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. Rejects the Government’s request to strike the application out of
the list in so far as it relates to the complaint under
Article 5 § 3 of the Convention;
2. Declares the complaints concerning length
of the applicant’s pre-trial detention under Article 5 § 3, lack
of access to the case file under Article 5 § 4 and refusals of
family visits under Article 8of the Convention admissible and the
remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 5 § 3 of the Convention;
4. Holds that there has been a violation of
Article 5 § 4 of the Convention;
5. Holds that there has been a violation of
Article 8 of the Convention;
6. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 8,800
(eight thousand eight hundred euros), plus any tax that may be chargeable, in
respect ofnon‑pecuniary damage and EUR 3,300 (three thousand three
hundred euros) for costs and expenses, to be converted into the currency of the
respondent Stateat the rate applicable on 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;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 September 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı David
Thór Björgvinsson
Deputy Registrar President
