Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27714/95

by Boguslaw BERLINSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 June 1995 by

Boguslaw BERLINSKI against Poland and registered on 26 June 1995 under

file No. 27714/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government

on 8 October 1996 and the observations in reply submitted by the

applicant on 28 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1947, is an unemployed

physician residing in Lublin.

The facts of the case, as submitted by the parties, may be

summarised as follows:

Particular circumstances of the case

In 1993 the Lublin District Public Prosecutor instituted criminal

proceedings against the applicant on suspicion of uttering threats. The

psychiatrists from the Institute of Psychiatry and Neurology in

Pruszków fixed the date of the examination on 1 March 1994 and summoned

the applicant for that date. The applicant did not comply with the

summons and stated that he would not cooperate in the future.

Subsequently other dates were proposed to the applicant.

In view of the applicant's lack of cooperation, on 4 October 1994

the Prosecutor ordered that on 13 October 1994 at 10.00 a.m. he should

be taken by the police to be examined in a psychiatric hospital.

The policemen, who had had earlier contacts with the applicant,

anticipated difficulties in making the applicant comply with the order.

Therefore it was decided that they would proceed to the applicant's

arrest earlier than it was determined in the Public Prosecutor's order.

On 12 October 1994 at 6.00 a.m. two policemen from the District

Police Headquarters in Lublin came to the applicant's apartment. They

ordered him to accompany them to the police station N° 4 in Lublin.

They threatened him with use of force if he resisted. Subsequently

they took him to the police station and informed him of the

Prosecutor's decision. He was released at 8.30 a.m. upon signing an

undertaking that he would report at the police station on the next day

in order to be taken to the hospital in Pruszków.

On 13 October 1994 the applicant failed to appear at the police

station. He was apprehended by the police and taken to the Pruszków

Mental Hospital for the examination.

On 14 October 1994 the applicant requested that criminal

proceedings be instituted against the policemen concerned for abuse of

power.

On 30 November 1994 the Lublin District Public Prosecutor

discontinued the criminal proceedings against the policemen who had

arrested the applicant. It was established that on 4 October 1994 the

Prosecutor had ordered that the applicant be taken to be observed in

a mental hospital for the purposes of the criminal proceedings against

him. The observation was to begin on 13 October 1994. In view of the

fact that the applicant had previously on several occasions refused

to participate in the proceedings and had to be brought to the

Prosecutor's office by the police, the police had decided that he would

be arrested one day before, on 12 October 1994. On 12 October 1994 at

6.00 a.m. two policemen had come to the applicant's apartment. They

had ordered him to accompany them to the police station N° 4 in Lublin.

He had been released at 8.30 a.m. The Prosecutor considered that the

decision to arrest the applicant was irregular "from the formal point

of view" ("z formalnego punktu widzenia") as the arrest had not been

carried out on the date indicated in the order of 4 October 1994.

However, this decision had been taken in order to secure the

applicant's attendance at the observations. It could have been

envisaged, given the applicant's hostile attitude in the past, that he

would fail to appear. The Prosecutor further considered that

eventually the applicant had not been detained for 48 hours as it had

initially been envisaged and that he had been released, having agreed

to come to the hospital on the next day. The Prosecutor noted that

eventually the applicant had failed to appear as agreed. The

Prosecutor concluded that the police decision to arrest the applicant

did not breach in any way the applicant's right to personal liberty,

even though the date of the arrest was not the same as the date

indicated in the Prosecutor's order. Therefore there were no grounds

for continuing criminal proceedings against the police as no offence

had been committed.

The applicant appealed against this decision. He complained that

his arrest had been unlawful and unjustified. He submitted that he had

never refused to be served summonses for the purposes of criminal

proceedings against him. He submitted that eventually he had been

taken to the hospital by the police on 13 October 1994, i.e. on the

date indicated in the Prosecutor's order, which, in his view, proved

that his arrest on 12 October 1994 had not served any purpose. He

stated that his arrest constituted a breach of his human rights and was

meant as a harassment.

On 17 February 1995 the Lublin Regional Public Prosecutor

dismissed the applicant's appeal. The Prosecutor considered that when

investigating the applicant's complaint the District Prosecutor had

taken ample evidence and had correctly assessed it. In particular, he

had been right in taking into consideration that the applicant had

failed several times to comply with summonses for psychiatric

examination. This was a crucial fact in the case which indicated that

the applicant's arrest had been justified, regard being had to its aim,

namely the necessity of determining the applicant's mental state for

the purposes of the criminal proceedings against him. No breach of the

applicant's personal liberty or of his human rights in general had been

established.

Relevant domestic law

Under Chapter 23 of the Code of Criminal Procedure, the

lawfulness of the Public Prosecutor's decision to arrest a person can

be challenged before a court. The Supreme Court decided in one of its

decisions that the competent court examines the lawfulness of arrest

even after the person has been released (SN WZP 1/91, OSNKW, pz. 10).

Chapter 50 of the Code of Criminal Procedure provides for

compensation regarding damages arising out of imprisonment resulting

from conviction which has subsequently been quashed and the convicted

person was acquitted, for obviously unjustified detention on remand and

for arrest and detention up to 48 hours. The Regional Court in whose

region the detained person was released is competent to examine whether

the conditions for granting compensation are met. The decision of the

Regional Court can be appealed to the Court of Appeal. The claim for

compensation for obviously unjustified arrest must be filed within

three months from the date of release.

COMPLAINTS

The applicant complains under Article 5 paras. 1, 2 and 5 of the

Convention that his detention was unjustified as he is mentally fit.

He further claims that his arrest was unlawful, in particular in view

of the fact that it was carried out one day before the date for which

it had been ordered by the Public Prosecutor.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 June 1995 and registered on

26 June 1995.

On 27 June 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

8 October 1996. The applicant replied on 28 October 1996.

THE LAW

1. The applicant complains under Article 5 paras. 1, 2 and 5

(Art. 5-1, 5-2, 5-5) of the Convention that his detention was

unjustified as he is mentally fit. He further claims that his arrest

was unlawful, in particular in view of the fact that it was carried out

one day before the date for which it had been ordered by the Public

Prosecutor.

Article 5 (Art. 5) in its relevant parts reads as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law: ...

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;

...

2. Everyone who is arrested shall be informed promptly, in a

language which he understands, of the reasons for his

arrest and of any charge against him. ...

5. Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have

an enforceable right to compensation."

Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with a matter after all domestic remedies have been

exhausted.

The Government submit in this respect that the applicant did not

exhaust all domestic remedies available to him under Polish law in

respect of the complaint under Article 5 para. 1 (Art. 5-1) of the

Convention about the unlawfulness of his arrest. He had at his

disposal a complaint to the court. In such proceedings the court would

examine the lawfulness of his arrest. This remedy should be considered

effective and sufficient, as it clearly transpires from a decision of

the Supreme Court that the competent court examines the lawfulness of

arrest even after the person has been released (SN WZP 1/91, OSNKW,

pz. 10). The applicant could have availed himself of this remedy,

notwithstanding the fact that his detention was very short. Had the

applicant exhausted this particular remedy, it would then have been

open to him to claim compensation for an unlawful arrest before a civil

court if the court found in his favour.

The Government conclude that the applicant did not exhaust any

of the relevant domestic remedies.

The applicant submits that the remedy relied on by the

Government, i.e. the complaint to the court about the unlawful arrest,

would have been bound to fail. The court would limit itself to stating

that the arrest was lawful and did not amount to a deprivation of

liberty. He states that not being a lawyer he was not aware of the

available remedies.

The Commission recalls that the obligation to exhaust domestic

remedies requires the exhaustion of those remedies that relate to the

breaches alleged and that are available, adequate and sufficient

(N° 11681/85, Dec. 11.12.87, D.R. 54, p. 101).

The Commission observes that the applicant had at his disposal

a specific judicial remedy to complain about the alleged unlawfulness

of his arrest, i.e. a complaint to the court under Chapter 23 of the

Code of Criminal Procedure. This remedy aims at obtaining a

determination of whether the arrest was lawful and justified. It

transpires from the case-law of the Supreme Court that it can be filed

after the release of the detained person. The applicant chose not to

pursue this remedy, but requested that criminal proceedings be

instituted. The Commission considers that the procedure referred to

by the Government constitutes an adequate and sufficient remedy to

complain about the alleged unlawfulness of the arrest.

The Commission concludes that the applicant did not exhaust the

domestic remedies available to him under Polish law in respect of his

complaint under Article 5 para. 1 (Art. 5-1) of the Convention. It

follows that this part of the application must be rejected for non-

exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. Insofar as the applicant complains about his arrest under

Article 5 para. 2 (Art. 5-2) of the Convention, the Commission observes

that the applicant has not substantiated his complaint that he was not

informed promptly of the reasons of his arrest.

It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. As regards the applicant's complaint under Article 5 para. 5

(Art. 5-5) of the Convention, the Government submit that pursuant to

Chapter 50 of the Polish Code of Criminal Procedure compensation for

unjustified arrest may be claimed before a court. A relevant claim

must be filed within three months from release. The applicant failed

to file such a claim. It is true that he requested that criminal

proceedings be instituted against the policemen concerned, but this

cannot be regarded as a remedy either in respect of the unlawful

arrest, or aiming at obtaining compensation for unjustified arrest.

The applicant submits that in the light of the Public

Prosecutor's refusal to institute criminal proceedings against the

policemen, his claim for compensation was devoid of any prospects of

success.

The Commission observes that Polish law provides for compensation

regarding damages arising out of unjustified arrest and detention up

to forty-eight hours. The claim for compensation for an obviously

unjustified arrest must be filed with the Regional Court in whose

jurisdiction the detained person was released within three months from

the date of release. Under those provisions the decision of another

authority that the arrest was unlawful is not a necessary prerequisite

to institute the compensation proceedings; it is enough to claim that

the arrest was unjustified. In the present case the Commission

considers that the lack of a decision issued in judicial review

proceedings as to the unlawfulness of the applicant's arrest did not

make it impossible for him to institute such proceedings. Further, in

the light of the acknowledgement in the Public Prosecutor's decision

that the applicant's arrest had been "irregular", this remedy was not

devoid of prospects of success. However, the applicant did not lodge

a compensation claim.

The Commission concludes that the applicant had at his disposal

a remedy satisfying the requirements of Article 5 para. 5 (Art. 5-5)

and that his complaint is in this respect manifestly il-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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BERLINSKI v. POLAND

BERLINSKI v. POLAND

LEXI