EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26629/95

Witold Litwa

against

Poland

(adopted on 4 December 1998)

Page

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

(paras. 17-47) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The particular circumstances of the case

(paras. 17-30) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Relevant domestic law

(paras. 31-40) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . .7

C. Preparatory work on Article 5 para. 1 of the Convention

(paras. 41-47) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

(paras. 48-83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Complaint declared admissible

(para. 48) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

B. Point at issue

(para. 49) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Page

C. As regards Article 5 para. 1 of the Convention

(paras. 50-83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION

(para. 83) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

DISSENTING OPINION OF MR M.A. NOWICKI . . . . . . . . . . . . . . . . . . . . . . . . . .22

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . . 23

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Polish citizen, born in 1946 and resident in Kraków in Poland.  He was represented before the Commission by Mr Piotr Sołhaj , barrister, and Dr Krzysztof Tor , solicitor.

3. The application is directed against Poland.  The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.

4. The case concerns the lawfulness of the applicant's detention in the Kraków Sobering Up Centre .  The applicant invokes Article 5 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 6 August 1994 and registered on 3 March 1995.

6. On 29 February 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 20 May 1996 after an extension of the time-limit fixed for this purpose.  The applicant replied on 10 July 1996 and 6 January 1997. On 2 July 1996 the Commission granted the applicant legal aid for the representation of his case.

8. On 9 September 1997 the case was transferred from the Second Chamber to the Plenary Commission, by decision of the latter.

9. On 15 September 1997 the Commission declared admissible the applicant's complaint under Article 5 para. 1 of the Convention.  It declared inadmissible the remainder of the application.

10. The text of the Commission's decision on admissibility was sent to the parties on 25 September 1997 and they were invited to submit such further information or observations on the merits as they wished.  The parties did not avail themselves of this possibility.

11. After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 4 December 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant is disabled.  He is blind in one eye and his sight in the other is severely impaired.

18. On 5 May 1994 at noon the applicant, with his guide-dog, went to the Kraków Post Office No. 30 to check his post-office boxes.  He was accompanied by W.K.  The applicant's post-office boxes had been opened and were empty.  The applicant, apparently raising his voice, complained to the postal clerks that his post-office boxes were unlocked.  The clerks called the police, alleging that the applicant was drunk and behaving offensively.

19. On the same day, at 12.20 p.m., the applicant was taken by police officers to the Kraków Sobering Up Centre ( Izba Wytrzeźwień ) and detained there for six hours and thirty minutes.  The staff of the centre filled out the applicant's detention card.  This document reads, insofar as relevant (verbatim):

"... [the applicant] was arrested for making a row at the post office while in a state of intoxication.  He was examined at 12.45 p.m. by doctor XY [name and signature illegible].  ... Circumstances concerning intoxication: smell of alcohol  - [the applicant] refused to take a breath  test. Behaviour : lucid and talkative.  Mood: normal.  Walk: unsteady.  Speech: blurred.  Vomiting: none.  Pulse: steady, regular. Heart: steady, clear beat;.  Pupils: normal.  ...  Injuries: none.  Other ailments: sight considerably impaired.  Description of intoxication: moderate.  Decision: intoxication justifying the detention in the sobering up centre for six hours. Behaviour , mental and physical state during detention: good.  Objects to be kept in the centre's custody: identity cards, PLZ 654,700, watch, keys (eighteen items), tear-gas gun, [illegible description of other items], purse.  Release from the sobering up centre : after six hours and thirty minutes [the applicant] was sober and could be released. Objects to be returned to the detainee from the centre's custody: PLZ 4,700 remaining after the deduction of PLZ 650,000 for the costs of staying in and transportation to the sobering up centre .  [The applicant] refused to sign the document."

20. On 10 May 1994 the applicant requested the Kraków District Prosecutor ( Prokurator Rejonowy ) to institute criminal proceedings against the police officers who had arrested him on 5 May 1994 and against the staff of the Kraków Sobering Up Centre .  He alleged that the policemen had beaten him up and complained about the behaviour of the staff of the centre .

21. On 29 May 1994 the applicant sued the State Treasury before the Kraków Regional Court ( SÄ…d Wojewódzki ) seeking compensation "for unlawful attacks by agents of the State on 5 May 1994 and theft of his personal possessions."  He did not rely on any specific substantive provision of domestic civil or criminal law.  Apparently, the court presumed  that the applicant's claim should be examined as a claim for compensation for manifestly unjustified arrest, based on Section 487 of the Code of Criminal Procedure.

22. On 28 November 1994 the Kraków Regional Court dismissed the applicant's claim, finding that the applicant's arrest on 5 May 1994 had been justified in view of the fact that:

"He had caused a disturbance of public order ( zakłócił porządek publiczny ) in the Kraków Post Office No. 30 while in a state of intoxication.  The police intervened at the request of the postal clerks.  Since the applicant smelt of alcohol, he was brought to the Kraków Sobering Up Centre , where it was established that he was moderately intoxicated.  In the light of these findings, his detention was justified."

The court did not refer to any legal basis for the applicant's arrest and subsequent detention.

23. On 1 December 1994 the Kraków-Śródmieście District Prosecutor, on suspicion that offences of assault, theft and infringement of the applicant's personal rights had been committed, instituted investigations relating to the applicant's complaint of 10 May 1994.

24. On 5 December 1994 the applicant filed an appeal against the decision of the Kraków Regional Court of 28 November 1994, submitting that this decision was not based on any sound evidence, but only on the statements of the policemen.  He further stated that he had been assaulted by the policemen and that his personal belongings had been stolen.  The applicant relied on Articles 3, 6 para. 1 and 8 of the Convention and asserted that "he had filed proceedings against [this] audacious robbery by civil servants".

25. On 25 January 1995 the Kraków Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant's appeal, holding that on 5 May 1994 the applicant had come to the post office and "caused a disturbance of public order" ( zakłócił porządek publiczny ).  Since, according to the police officers and the results of a subsequent examination by a doctor, he had been moderately intoxicated, his detention had been justified.

26. On 28 February 1995 the Kraków-Śródmieście District Prosecutor discontinued the investigations instituted on the applicant's request.  However, on 1 December 1995 the Kraków Regional Prosecutor ( Prokurator Wojewódzki ), upon the applicant's appeal, quashed this decision and ordered supplementary investigations.

27. On 19 February 1996 J.K, a policeman from the Kraków-Grzegórzki Police, heard evidence from W.K., an eye-witness of the events of 5 May 1994 at the post office.  The record of the latter's testimony read, insofar as relevant (verbatim):

"I have known [the applicant] since 1969 but we do not have regular contact and do not meet frequently.  About one year ago, on a date which I cannot [now] specify, I met [the applicant] in Nowa Huta [a district of Kraków ].  We went together to an optician and, then, to the Post Office.  He did not tell me why he was going to the Post Office.  He had his dog with him and, since no dogs were permitted to enter the office, I remained outside the building, [at the applicant's request] holding the dog on the leash.  [The applicant] went into the building.  After some time he came back, in a state of agitation, and said that either his post-office boxes had not been locked [by the postal clerks] or someone had broken into them.  He immediately went back into the office. Out of curiosity, I followed him with the dog.  Immediately afterwards, two policemen entered the building and approached [the applicant].  He told me to get the dog out of the building.  At the same time, one of the policemen approached me and checked my identity card.  I then left the building.  When I was standing outside, I saw the policemen taking [the applicant] out of the building, escorting him to a patrol car and leaving.  In my view, [the applicant] remained calm throughout this incident; therefore, I do not know why he was taken away by the policemen.  I did not see the policemen hitting him while escorting him; they were holding him with their hands.  I cannot recall whether or not [the applicant] told the policemen that the dog I was holding on the leash was his.  ..."

28. On 26 February 1996 the Kraków-Grzegórzki Police discontinued the investigations, finding that no offence had been committed.  This decision was confirmed by the Kraków-Śródmieście District Prosecutor on 27 February 1996.  The reasons for the decision of 26 February 1996 read, insofar as relevant (verbatim):

"Accordingly, evidence was heard from the policemen [involved in the incident of 5 May 1994].  They stated that [the applicant] had been brought to the [ Kraków ] Sobering Up Centre in connection with a row made by him and his state of intoxication.  They did not hit him; they merely kept hold of him while taking him to and putting him into a patrol car.  They stated that [the applicant] had not had a dog with him and that, inside the post office, there was a man holding a dog [on a leash], i.e. W.K.  However, nobody knew that this dog belonged to [the applicant]. ... A doctor from the [ Kraków ] Sobering Up Centre confirmed that [the applicant] had been intoxicated. ... ."

29. On 5 March 1996 W.K., after having been acquainted with the reasons for the above-cited decision, made a statement before a notary.  This statement reads, insofar as relevant (verbatim):

"I, W.K., hereby declare before a notary that, after being acquainted with [the decision to discontinue the investigation], I disagree with the description of events which I witnessed [given therein].

When evidence was taken from me, I entirely denied the insinuation that [the applicant] had been drunk; ... I spent one hour with him prior to the incident and I [still] totally exclude such a possibility.

[The applicant] did not make a row at the post office; he raised his voice merely in order to be heard above the clamour being made by a large number of clients ... about two hundred persons queuing at the post office counters at the same time. ... He loudly demanded to speak to the postmaster in order to obtain an explanation of why his post-office boxes had been unlocked ... and [why] one of these boxes had been broken. ... His dog remained outside because the building was overcrowded so the dog could not have been inside ... as the policemen claimed; they [simply] lied.  The postmaster did not come to see [the applicant]; instead, the policemen appeared and demanded that we show them our identity cards.  I gave them my card and [the applicant], calmly, gave his.  They checked the cards thoroughly and made notes in their notebooks. By checking [the applicant's] documents they must have learnt that he was an invalid [i.e. that his sight was severely impaired] ... .  They gave me back my identity card but [the applicant] was taken to a patrol car and taken away.  During his arrest [the applicant] behaved in a calm manner; he only requested the policemen either to let him take his dog with him or to ensure [that it would be taken by someone else].  I witnessed this.  They did not respond to his request and left. ..."

30. On 5 April 1996 the Kraków-ÅšródmieÅ›cie District Prosecutor re-opened, ex officio, the investigations concerning the events of 5 May 1994 but discontinued them on 23 May 1996, finding that no offence had been committed.

B. Relevant domestic law

31. Arrest of intoxicated persons under the Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism ( Ustawa o wychowaniu w trzeźwości i przeciwdziałaniu alkoholizmowi )(as amended).

32. Chapter 2 of the Law, entitled "Measures concerning persons abusing alcohol" refers to two categories of persons: those "addicted to alcohol" and those "intoxicated".  Sections 21-38 deal with voluntary or compulsory treatment of "persons addicted to alcohol", whereas Sections 39-40 set out measures which may be imposed on "intoxicated persons".

33. According to Section 39 of the Law (in the version applicable at the material time), sobering up centres shall be organised and managed by municipalities with more than 50,000 inhabitants.

34. Section 40 of the Law (in the version applicable at the material time) provided, insofar as relevant:

"1. Intoxicated persons who behave offensively in a public place or a place of employment, or are in a condition endangering their life or health, or are themselves endangering other persons' life or health, may be brought to a sobering up centre or a public health-care establishment, or to their place of residence.

2. In the absence of a sobering up centre , such persons may be brought to a [police station].

3. [Intoxicated] persons who have been brought to a sobering up centre or a [police station] shall remain there until they become sober but for no longer than twenty-four hours. ...

5. When it is justified to institute proceedings [in respect of an intoxicated person] with a view to [his undergoing] compulsory treatment [for addiction to alcohol], [the authorities concerned] shall immediately report [this fact] to the competent committee for counteracting alcoholism.  ..."

"1. Osoby w stanie nietrzeźwości , które zachowaniem swoim dają powód do zgorszenia w miejscu publicznym lub w zakładzie pracy , znajdują się w okolicznościach zagrażających ich ż yciu lub zdrowiu albo zagrażają ż yciu lub zdrowiu innych osób , mogą zostać doprowadzone do izby wytrzeźwień lub zakładu społecznego służby zdrowia albo do miejsca zamieszkania lub pobytu .

2. W razie braku izby wytrzeźwień osoby takie mogą być doprowadzone do jednostki Milicji Obywatelskiej .

3. Osoby doprowadzone do izby wytrzeźwień lub jednostki Milicji Obywatelskiej pozostają tam aż do wytrzeźwienia , nie dłużej ni ż 24 godziny .

4. ...

5. W wypadkach uzasadniających wszczęcie postępowania o zastosowaniu obowiązku poddania się leczeniu odwykowemu zawiadamia się niezwłocznie właściwą komisję do spraw przeciwdziałania alkoholizmowi ."

35. A person arrested and, subsequently, detained in a sobering up centre under Section 40 of the Law is not entitled to take proceedings relating to the lawfulness of deprivation of his liberty since, according to Section 206 of the Code of Criminal Procedure, only a person arrested on suspicion of having committed an offence may appeal against a decision to arrest him (see the Supreme Court judgment No. I KZP 43/91 of 12 February 1992 reached by a bench of seven judges, published in OSNKW 1992 No. 5-6/32).

36. The Ordinance of the Minister of Administration, Local Economy and Environmental Protection of 7 May 1983 on bringing intoxicated persons to sobering up centres , the organisation of those centres , the medical care provided by them and the fees for transportation to and staying in sobering up centres or police stations (repealed by an Ordinance of the Minister of Health and Social Care of 23 October 1996) set out detailed rules relating to detention in a sobering up centre .

37. Paragraph 9 of the Ordinance (in the version applicable at the material time) provided, insofar as relevant:

"1. A person brought to a sobering up centre shall promptly be given a medical examination.

2. Following the medical examination, a physician shall ascertain whether such person should be placed in a sobering up centre ..., or should be placed in a hospital or other medical establishment ..., or whether there are no signs of intoxication justifying a placement in a sobering up centre ."

"1. Osobę doprowadzoną do izby poddaje się niezwłocznie badaniom lekarskim .

2. Lekarz po przeprowadzeniu badania osoby doprowadzonej do izby stwierdza :

(1) potrzebÄ™ umieszczenia w izbie ...

(2) potrzebę skierowania do szpitala lub innego zakładu opieki zdrowotnej ...

(3) brak objawów stanu nietrzeźwości uzasadniających umieszczenie w izbie ."

38. Paragraph 16  of the Ordinance provided, insofar as relevant:

"An alcohol test shall be carried out upon the request of the intoxicated person ... ."

" Na żądanie osoby doprowadzonej do izby przeprowadza się badanie na zawartość alkoholu w organizmie . ..."

39. According to paragraph 21 of the Ordinance, a person placed in a sobering up centre is to be charged for both lodging and transportation there, at rates estimated to amount to 20% and 4 % respectively of an average monthly salary in the public sector.  If the person concerned does not have sufficient money, a sobering up centre is entitled, under paragraph 22, to take a lien over his possessions.

40. Disturbance of public order ( zakłócenie porządku publicznego ) is a minor offence punishable under Section 51 of the Code of Administrative Offences, which, in the version applicable at the material time, provided insofar as relevant:

"1. Anyone who, by shouting or by noisy, alarming or other unruly behaviour disturbs the public peace or the public order, or a [citizens'] night rest or who behaves offensively in a public place, shall be liable to a maximum of two months' imprisonment or a fine of [between PLZ 100,000 and] 1,500,000 ...

2. If the behaviour in question is of the hooligan character or the person concerned was intoxicated, he shall be liable to [a maximum of three months'] imprisonment ... or a fine [of between PLZ 100,000 and 5,000,000]."

"1. Kto krzykiem , hałasem , alarmem lub innym wybrykiem zakłóca spokój , porządek publiczny , spoczynek nocny albo wywołuje zgorszenie w miejcu publicznym , podlega karze aresztu do 2 miesięcy , grzywny do 1,500 złotych ... .

2. Jeżeli czyn określony w para. 1 ma charakter chuligański lub sprawca dopuszcza się go, będąc pod wpływem alkoholu , podlega karze aresztu , ... albo grzywny ."

C. Preparatory work on Article 5 para. 1 of the Convention .

41. When working on the text of the present Article 5 of the Convention, the Consultative Assembly of the Council of Europe was considerably influenced by the provisions of Articles 3 and 9 of the Universal Declaration of Human Rights, in particular when drafting its Recommendation 38 of 8 September 1949.

42. The draft of Recommendation 38 was presented on 5 September 1949 and adopted at a Plenary Sitting of the Consultative Assembly of 8 September 1949.  At this point, the text of the draft provision of the future Article 5 was contained in Article 2, the draft text of which reads as follows:

"In this Convention, the Member States shall undertake to ensure to all persons residing within their territories:

(1) Security of person, in accordance with Articles 3, 5 and 8 of the United Nations Declaration;

(2) ...

(3) Freedom from arbitrary arrest, detention, exile and other measures, in accordance with Articles 9, 10 and 11 of the United Nations Declaration;".

43. On 4 February 1950 the following amendment to Article 2 para. 3 as contained in Recommendation 38 was presented by Mr Salén (Sweden):

"Article 2, para. 3: add at the end:

"This provision should not exclude the right to take necessary measures to fight vagrancy and alcoholism or to ensure respect of obligations to pay a family upkeep allowance."

44. On 6 February 1950, Mr Salén withdrew his amendment of 4 February 1950:

"provided that the statement of reasons, incorporated in the Report of the Committee of Experts, stated clearly:

"... that the text of Article 6 [at this point, a general clause authorising the limitation of guaranteed rights and freedoms in order to ensure the recognition and respect of rights and liberties of others and to satisfy the requirements of morality, public order and security in a democratic society] covers also the right of Member States to take the necessary measures to fight vagrancy and alcoholism and to ensure respect for the obligation to pay family upkeep allowance."

The following commentary on Article 6 of the preliminary draft Convention was then recorded:

"The Swedish representative further requested that it be put on record that the text of Article 6 covered, in particular, the right of signatory States to take the necessary measures for combatting vagrancy and drunkenness [ l'alcoolisme in the French text] or to ensure respect of obligations to pay alimony costs; the Committee [of Experts] had no doubt that this could be agreed to since such restrictions were justified by the requirements of public morality and order."

45. From 6 to 10 March 1950, at the Second Session of the Committee of Experts, the counterpart of the present Article 5 para. 1 of the Convention was being discussed and redrafted as, originally draft Article 7 and, eventually, draft Article 6.  The following draft Article 6 was presented:

"1. 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;

(b) the lawful arrest and detention of a person for non-compliance with the lawful order of a court, or in order to secure the fulfilment of any obligation 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 which is reasonably considered to be necessary to prevent his committing a crime, or fleeing after having done so;

(d) the lawful detention of minors by lawful order for the purpose of educational supervision;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholic or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or a person against whom deportation or extradition proceedings are pending."

46. At this point, the French version of subpara . (e) read as follows:

" e) s'il s'agit de la détention régulière d'une personne susceptible de propager une maladie contagieuse , d'un aliéné , d'un alcoolique , d'un toxicomane ou d'un vagabond."

47. Finally, on 3 November 1950, following the last examination of the text of the Convention by the Committee of Experts, the above text was replaced by the provision of the present Article 5 para. 1 of the Convention; the changes made by the Committee of Experts being described as "formal corrections and corrections of translation".  It was on this occasion that in the English text the word "alcoholic" in subpara . (e) was replaced by "alcoholics".

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

48. The Commission has declared admissible the applicant's complaint  that his detention on 5 May 1994 was unlawful and unjustified.

B. Point at issue

49. The Commission must accordingly examine whether there has been a violation of Article 5 para. 1 of the Convention.

C. As regards Article 5 para. 1 of the Convention

50. The applicant complains under Article 5 para. 1 of the Convention that his detention in the Kraków Sobering Up Centre on 5 May 1994 was unjustified as he was not drunk and his behaviour did not amount to disturbing public order.  He also submits that his detention was unlawful and arbitrary.

51 . Article 5 para. 1 of the Convention provides:

"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;

b. the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

52. The applicant firstly contests the Government's version of the events preceding his confinement in the Kraków Sobering Up Centre on 5 May 1994.  In this respect he asserts that he was not drunk, nor did he make any row at the post office.  He only asked the postal clerks why his post-office box had been opened.  They refused to listen to his complaints and immediately called the police alleging that he had behaved offensively, which was not true.  When the policemen arrived, he calmly showed them his identity card.  Subsequently, the policemen took him away in a police car.  They refused to take his guide-dog in the car and left it on the street. In doing so, they showed profound insensitivity towards the applicant's obvious blindness.  In this respect the applicant refers to the notarised statement of 5 March 1996 given by W.K., the eye-witness to the incident (see para. 29).

53. As to the circumstances surrounding his stay in the sobering up centre , the applicant submits that, upon his arrival, a physician from the centre made only a superficial examination of his condition and did not carry out any appropriate tests to confirm that he was intoxicated.

54. The applicant submits further that his detention was arbitrary and unlawful since any deprivation of liberty must have an adequate basis, whereas in his case such a basis did not exist.  In particular, he was not detained on suspicion of having committed an offence, nor did he cause a disturbance in a public place, nor did he endanger his own or other persons' life or health within the meaning of Section 40 of the Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism.  In this respect the applicant again refers to the notarised statement given by W.K. on 5 March 1996, pointing out that according to the eye-witness, he had been sober and calm both before and during his arrest.

55. Furthermore, the applicant points out that even according to the report made by the doctor who examined him upon his confinement in the Kraków Sobering Up Centre , it is clear that he was lucid.  Finally, he repeats that the medical examination concerning his alleged intoxication was superficial since it was based only on certain physical appearances which did not meet the requirements of reliable medical proof.

56. The Government, commenting on the facts of the case, submit that the applicant started to make a row at the Post Office No. 30 in Kraków when he found that his post-office box had been opened, in particular by shouting and twisting the post-office box door.  He did not react to the explanation given by the post office manager and went on being aggressive.  The manager therefore called the police.  Upon the policemen's arrival, the applicant was still making a row and refused to show them his identity card and to leave the post office.  Since the applicant's behaviour clearly indicated that he was intoxicated, they took him to the Kraków Sobering Up Centre .  In this respect, the Government refer to the record of W.K.'s oral testimony given on 19 February 1996 before J.K., a constable of the Kraków-Grzegórzki Police Station (see para. 27).

57. The Government further maintain that the applicant's detention was fully justified and that no arbitrary decisions were made.  In this respect the Government essentially refer to the outcome of the proceedings relating to the applicant's claim for compensation for manifestly unjustified arrest which were terminated by the decision of the Kraków Court of Appeal of 25 January 1995, finally dismissing the claim.

58. In this respect the Government emphasise that the courts dealing with the applicant's claim clearly established that his detention was justified in the light of the finding that the applicant, while intoxicated, caused a disturbance in a public place and that this, in itself, justified his detention.

59. The Government conclude that the applicant's conduct and condition provided sufficient grounds for his detention, pointing out that the applicant refused to take a breath test which could have determined the exact concentration of alcohol in his blood.

60. The Commission notes at the outset that the parties clearly disagree on two points of fact.  Firstly, they are in dispute as to whether or not the applicant was "intoxicated" before being brought to the Kraków Sobering Up Centre .  Secondly, the Government assert that the applicant "made a row" at the post office, whereas the applicant claims that he was calm and only asked the postal clerks why his post-office boxes had been opened.  Both parties rely on two statements of W.K., the eye witness to the incident at the post office (see paras. 53-59).

61. As regards the first point, the Commission observes that, even though both W.K. and the applicant himself consistently maintained that the latter was not "drunk" before and during the incident at the post office, it is undisputed that the applicant was examined by a doctor shortly after this incident and assessed as being "moderately intoxicated" on the basis of several physical appearances of intoxication detected by the doctor (see para. 19).

62. As regards the question of how the applicant was behaving during the incident, the Commission observes that the circumstances preceding the taking into detention of the applicant on 5 May 1994 were described in the decision of the Kraków Regional Court of 28 November 1994.  The court found on the evidence before them that the applicant “had caused a disturbance of public order in the Kraków Post Office No. 30 while in a state of intoxication”.  These findings were fully upheld by the Kraków Court of Appeal which, on 25 January 1995, dismissed the applicant’s appeal and finally rejected the applicant's claim for compensation for unjustified detention (see paras. 22 and 25).

63. The Commission finds it therefore established that at the time of his arrest by the police the applicant not only was intoxicated but, as the domestic courts found, was in a public place and was causing a disturbance.

64. It also notes that the applicant, after being arrested by the police, was placed in the Kraków Sobering Up Centre for six hours and thirty minutes under Section  40 para. 1 of the Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism (hereinafter referred to as “the 1982 Law”).  His stay in the centre , depending on the circumstances, could have lasted for twenty-four hours.  Under para. 3 of this section, placing him in the centre served the purpose of sobering him up and he was not allowed to leave the centre until he had become sober (see paras. 19 and 34).

65. In the light of these facts, the Commission finds that confining the applicant in the Kraków Sobering Up Centre , even though this confinement lasted for a relatively short time, amounted to a "deprivation of liberty" within the meaning of Article 5 para. 1 of the Convention.

66. The Commission must next examine whether the deprivation of liberty in the present case fell within the scope of Article 5 para. 1 (a) - (f) of the Convention, and if so, within which of those subparagraphs.

67. In this respect the Commission recalls that Article 5 para. 1 (a) - (f) contains a list of the cases in which it is permissible under the Convention to deprive someone of his liberty.  That list is exhaustive, as transpires from the words "save in the following cases" and is confirmed by Article 17 of the Convention (see Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 74, para. 194).  Consequently, for a deprivation of liberty to be lawful it must at any given time fall within one of the categories set out in paras. (a) to (f) of Article 5 (see McVeigh , O'Neill and Evans v. the United Kingdom, Comm. Report 18.3.81, D.R. 25, p. 15).

68. The Commission has already found that the applicant's arrest and detention were effected under Section 40 of the 1982 Law and that their purpose was to sober the applicant up (see para. 65).  His detention did not, therefore, fall under paras. (a), (d) or (f) of Article 5.  Neither was it covered by para. (b) since it had no connection with "an order of a court" and was not designed to "secure the fulfilment of any obligation prescribed by law", especially as this last phrase concerns only those cases where the law permits the detention of a person to compel him to fulfil a "specific and concrete" legal obligation which he has failed to satisfy (see Eur. Court HR, Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 37 et seq., para. 101).

69. As to paragraph 1 (c) of Article 5 of the Convention, the Commission notes that the domestic courts found it established that at the time of his arrest and detention the applicant was intoxicated and was causing a public disturbance, conduct which would appear to have constituted an offence under Section 51 of the Code of Administrative Offences (see para. 40).  On the other hand, the Commission notes that the applicant was never charged with an offence under that section and that he was never brought before a competent legal authority on reasonable suspicion of having committed such an offence.  The Commission, however, does not find it necessary to decide whether the detention of the applicant can in these circumstances be justified under paragraph 1 (c) of Article 5, since for the reasons given below the Commission finds that the applicant’s detention was in any event justified under paragraph 1 (e) of that Article.

70. The Commission observes that paragraph 1(e) of Article 5 of the Convention does not contain a definition of "alcoholics".  Nevertheless, under the Convention organs' case-law, this term, like the other terms referred to in this provision, must be interpreted in accordance with its usual meaning (see Eur. Court HR, De Wilde , Ooms and Versyp v. Belgium judgment of 28 May 1970, Series A no. 12, p. 37, para. 68) and, as it relates to an exception to the rule of personal liberty, it must be interpreted narrowly (see Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 16, para. 37 and Guzzardi v. Italy judgment, loc. cit.).

71. Since the Convention is a "living instrument", as both the Commission and the Court have repeatedly held, the Commission, when determining the autonomous, Convention meaning of terms included in this treaty must interpret them in the light of present-day conditions (see, e.g. Eur. Court HR, Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, p. 15, para. 31).                          

72. Furthermore, when seeking to ascertain the "usual" or "ordinary" meaning which is to be given to the term "alcoholics" in the context of Article 5 para. 1 (e) of the Convention, the Commission must also have regard to the object and purpose of this provision and, if necessary, have recourse to the preparatory work of the Convention, in order to confirm the meaning of the word "alcoholics" in accordance with Articles 31 para. 1 and 32 of the Vienna Convention of 23 May 1969 on the Law of Treaties (see, e.g., Eur. Court HR, Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 24, paras. 51-52; Lithgow v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 49, para. 117).

73. The Commission notes that, in the strict meaning of the term, an “alcoholic” denotes a person who is addicted to alcohol rather than someone who on a particular occasion or frequently drinks alcohol to excess and becomes intoxicated.  What is, however, less clear is whether at the time of the drafting of the Convention the expression “alcoholics” (“ d’un alcoolique ” in the French version) in paragraph 1 (e) was intended to be confined to those with a defined psychiatric condition of alcohol dependency.

74. On this question, the Commission finds no substantial help in the preparatory work, in particular in the commentary on Article 6 of the preliminary draft Convention (see paras. 43-44).  It is recorded that the text of the Article covered the right of the signatory States to take necessary measures for combatting vagrancy and “drunkenness” (this word being rendered in the French text as “ l’alcoolisme ” ).  It is further recorded that the Committee of Experts had no doubt that this could be agreed “since such restrictions were justified by the requirements of public morality and order”.  In the view of the Commission this does not suggest that any clear distinction was intended to be drawn between drunkenness and alcoholism in its strict sense, both of which would seem to pose the same threat to public morality and order.

75. The Commission further finds nothing in the previous jurisprudence of the Court to indicate that a strict meaning should be given to the phrase “ alcoholics”.  It is true, that in the Guzzardi judgment the Court found that the predominant reason for which the Convention permitted the detention of persons in the categories specified in paragraph 1 (e) is not only that they have to be considered as occasionally dangerous for public safety, but also that their own interests may necessitate their detention (see, the Guzzardi judgment loc. cit.).  However, the Commission considers that a person who is under the influence of drink may pose a danger to himself and to others, even if he is not a person who is addicted to drink.

76. The Commission accepts that paragraph 1 (e) of Article 5 would not authorise the detention of an individual for a significant period of time and, in particular, would not authorise his detention at a time when he was sober, except in a case when he had been diagnosed as addicted to drink and except for the purpose of treatment for this addiction.  However, the Commission is unable to accept that a person who is intoxicated could never lawfully be taken into custody for the purpose of Article 5 unless he had been previously diagnosed as an alcoholic, in the strict sense of a person addicted to alcohol.  To adopt this interpretation would, in the Commission’s view, deprive the relevant paragraph of any real content except in the very limited number of cases where evidence was available to the authorities at the time when a person was taken into custody that the person was addicted to alcohol.

77. In this respect, the Commission considers that some assistance may be obtained from the principles developed by the Court and the Commission in the context of persons detained as being of “unsound mind”.  In its Winterwerp judgment (see, the Winterwerp judgment loc. cit.), the Court held, inter alia , that before an individual could legitimately be detained for the purposes of paragraph 1 (e) as a person of “unsound mind”, he must reliably be shown by objective medical expertise to be suffering from a mental disorder of a kind or degree warranting compulsory confinement and this disorder must persist throughout the period of detention.  Nevertheless, the Court accepted that an initial decision to detain an individual on this ground may be justified under this paragraph even where such decision was not founded on psychiatric evidence provided it was both lawful as a matter of domestic law and not otherwise arbitrary.

78. The Commission considers that, similarly, an initial decision to take into custody a person who shows signs of intoxication may be justified under paragraph 1 (e) of Article 5, even where there is no medical evidence to establish that the person is intoxicated, still less that he is addicted to drink.

79. The question remains whether, in the present case, the action of the authorities in taking the applicant into custody for some six hours and thirty minutes was both lawful under domestic law and free from any element of arbitrariness.

80. There can in the Commission’s view be no dispute as to the lawfulness of the applicant’s detention under Polish law: his detention was found to be justified by both the Kraków Regional Court and the Kraków Court of Appeal.  While it appears that neither court referred to any legal basis for the applicant’s arrest and subsequent detention, both courts found that the applicant had caused a disturbance while in a state of intoxication - a situation which in the Commission’s view is adequately covered by the provisions of Section 40 para. 1 of the 1982 Law.

81. The Commission similarly finds no element of arbitrariness in the actions of the authorities.  At the time of his initial detention, the applicant not only appeared to be intoxicated but, as the domestic courts found, was in a public place and was causing a disturbance.  Because of his apparent condition, rather than being taken to a police station, he was brought at once to the Kraków Sobering Up Centre , where he was examined by a doctor, who confirmed that he was moderately intoxicated and that his state of intoxication was such as to justify his detention in the centre for six hours.  After six hours and thirty minutes the applicant was found to be sober and he was immediately released.  There is in the Commission’s opinion nothing to suggest that the authorities acted arbitrarily in taking the applicant to a Sobering Up Centre , rather than to a public health-care establishment or to his place of residence, all of which are expressly provided for by Section 40 para. 1 of the 1982 Law.  Nor does the Commission consider that the period of detention exceeded what was justified having regard to the applicant’s condition and to the circumstances in which he had been detained.

82. The Commission therefore considers that the applicant's detention in the Kraków Sobering Up Centre was effected in compliance with the rules laid down by Polish law and was otherwise in conformity with the requirements of Article 5 para. 1 (e) of the Convention.

CONCLUSION

83. The Commission concludes, by 21 votes to 5, that in the present case there has been no violation of Article 5 para. 1 of the Convention.

M.-T. SCHOEPFER S. TRECHSEL

       Secretary             President

to the Commission of the Commission

(Or. French)

DISSENTING OPINION OF

MR J.-C. GEUS  JOINED BY MR I. CABRAL BARRETO

Il n’est pas contesté qu’une personne se trouvant, même occasionnellement, en état d’ébriété peut être dangereuse pour elle-même ou pour autrui. Une privation de liberté peut, en pareille circonstance, être justifiée en regard de l’article 5 par. 1 (e) de la Convention (voir Cour. eur . D.H., arrêt Guzzardi , série A n° 39, par. 98). Encore faut-il qu’elle soit conforme au but poursuivi et étroitement proportionnée à celui-ci.

Ainsi une intoxication alcoolique, même très légère, peut-elle justifier une mesure contraignante, comme une interdiction temporaire de conduire un véhicule automobile, mais non une privation de liberté.

Les circonstance de fait de la présente affaire me conduisent à la conclusion que les conditions précitées n’étaient pas remplies.

Le requérant, légitimement mécontent de ce que sa boîte postale était ouverte et vide, s’en est  plaint auprès d’un employé du bureau de poste. Ce comportement a été qualifié de trouble à l’ordre public par le tribunal, ce qui me paraît traduire une conception à tout le moins autoritaire des rapports entre un service public et ses usagers.

En tout état de cause, rien n’établit que le requérant - notamment eu égard à sa vue particulièrement déficiente - aurait pu présenter un quelconque danger pour autrui. Le médecin du centre de dégrisement a d’ailleurs observé que le requérant était lucide et d’humeur normale. En outre, pendant son séjour au centre, son comportement a été jugé bon.

Par ailleurs, une intoxication alcoolique qualifiée par ce médecin de « modérée » n’autorise pas la crainte que le requérant aurait pu accomplir un acte mettant sa vie ou sa santé en danger.

Dans ces conditions, une privation de liberté de six heures trente était excessive, d’autant que l’article 40 par. 1 de la loi du 26 octobre 1982 envisage des mesures moins contraignantes. Enfin, rien n’établit que le requérant aurait eu un comportement agressif  au terme de cette disposition, en sorte que sa privation de liberté n’était pas non plus conforme au droit national.

Telles sont les raisons pour lesquelles il me n’a pas été possible de voter en faveur de l’absence de violation de l’article 5.

(Or. English)

DISSENTING OPINION OF

I am unable to share the view of the majority of the Commission that there has been no violation of Article 5 para. 1 of the Convention in the present case.

I have serious doubts as to whether para. 1 (e) of Article 5, which speaks about the lawful detention of “alcoholics”, covers cases of persons who are occasionally under the influence of alcohol but are not falling within the category of persons addicted to alcohol.  However I don’t find it necessary to come to a final conclusion with regard to this issue because I find that there is, in any event, a violation of the aforesaid provisions of the Convention for the following reasons.

Assuming that the applicant could be considered, for the purposes of the provisions of Article 5 para. 1 (e), as an “alcoholic” it is still necessary to examine whether his detention was not an arbitrary act in the circumstances of the present case.  The mere fact that a person falls within the category of those persons in respect of which deprivation of liberty is allowed by Article 5 does not automatically make his detention lawful under any circumstances.  Article 5 aims at preventing arbitrary deprivation of liberty.  As the Court pointed out the Convention “requires in addition (to compliance with the domestic law) that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness” (see Tsirlis and Kouloumpas Judgment of 29/5/97 Reports of Judgments and Decisions 1997 - II, Vol. 38 page 910 at page 923).  In order that the detention of any person be lawful under the above provision it is essential that such detention is reasonably necessary.  As in the case of persons of unsound mind the detention of persons under the influence of alcohol, can only be lawful if it becomes really necessary for their protection  or the protection of others; in other words if their behaviour presents a real danger to themselves or to others.

In this particular case the applicant was arrested and detained for six hours and thirty minutes simply because he complained loudly to the postal clerks that his post office boxes were unlocked.   It should be stressed here that the applicant is a disabled person.  He is blind in one eye and his sight in the other is severely impaired.  He was walking with the assistance of a guide-dog.  In these circumstances he could not reasonably be considered as a real danger to anybody.  What is more his complaint was a legitimate and understandable expression of protest to persons in power.  The mere fact that he was to some extent intoxicated (the degree of such intoxication, being described by the authorities as merely “moderate”) could not in the light of all relevant facts of this case justify his detention.

For the above reasons I find that such detention was arbitrary and consequently in breach of Article 5 para. 1 (e) of the Convention.

(Or. English)

MR M.A. NOWICKI

With regret I am unable to agree with the Commission’s conclusion that there has been no violation of Article 5 para. 1 of the Convention in this case.

The case concerns the question of whether the applicant's detention in a so - called "sobering up centre " was "lawful" within the meaning of Article 5 para.1 of the Convention.

A reply to the above question requires, first of all, the resolution of the issue of whether or not such a form of detention does indeed fall within the scope of "lawful detention of alcoholics" within the meaning of Article 5 para. 1 (e) of the Convention. This leads to the unavoidable need to interpret the term "alcoholics" as used in this provision. Up to now there have been no reported cases in which this term has been interpreted.

In my view the term "alcoholics" is reasonably capable of only one meaning and that, therefore, it covers only persons who are medically classified as dependent on alcohol. This opinion is supported by the meaning of  "alcoholics" in medical science and essentially reflects the golden rule - constantly affirmed by the Commission and the Court - that ordinary words must be given their ordinary meaning. In the light of developments in medical science, the notion of "alcoholism" has been continually evolving since the time at which the Convention was drafted to the present day. As research in psychiatric science has developed, the medical diagnostic criteria for "alcoholism" have been constantly revised and reformulated. At least until the end of the 1960s alcoholism was categorised as a personality disorder or neurosis or classified under these headings. Between the end of the 1970s and the beginning of the 1980s the term "alcoholism" was dropped in favour of two distinct categories called "alcohol abuse" and "alcohol dependence". At present, both of these categories have been classified as the clinical states of the so - called "substance use disorder" relating to alcohol, at whatever stage of progress in psychiatric research, from medical point of view has never been possible to say that either a state of intoxication (in particular one which lasted for a short time) or a single instance of intoxication, is equivalent to or comparable with "alcoholism" or (in modern medical language) "alcohol dependence" or - in a larger sense - "alcohol use disorder". On the contrary, "intoxication" appears to be associated with occasional drinking rather than recurrent and continued use of alcohol. Therefore the category of "intoxicated persons" cannot be interpreted as equivalent to "alcoholics" within the meaning of Article 5 para. 1 (e) of the Convention.

The applicant's detention fell outside the list of categories in which deprivation of liberty is permitted. For these reasons I have voted in favour of a violation of Article 5 para. 1 of the Convention.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11

on 1 November 1998.