Information Note on the Court’s case-law 23

October 2000

WÅ‚och v. Poland - 27785/95

Judgment 19.10.2000 [Section IV]

Article 5

Article 5-4

Procedural guarantees of review

Hearings concerning detention on remand held in absence of detainee and lawyer: violation

Article 5-1-c

Reasonable suspicion

Detention in respect of acts allegedly not constituting criminal offence: no violation

Article 6

Criminal proceedings

Ar ticle 6-1

Reasonable time

Length of criminal proceedings – delays attributable to foreign authorities: no violation

Facts : In September 1994, the applicant was charged with trading in children and incitement to give false testimony. He was remanded in custody by a prosecutor and written grounds for the charge were subsequently served on him. They referred to numerous case-file s in which the applicant had obtained money from foreigners wishing to adopt children and had allegedly incited the natural parents to give up their children. The applicant appealed against his detention, maintaining that the acts of which he was accused c ould not constitute the offence of trading in children. In October 1994, the Regional Court dismissed his appeal. The applicant was not present;  his lawyers were exceptionally allowed to attend the hearing and make oral interventions but were required to leave before the prosecutor made his final submissions. In December 1994, the prosecutor asked the court to prolong the detention for a further three months, which the court duly did. Neither the applicant nor his lawyer was present at the hearing. However , his appeal against the prolongation was upheld in January 1995 by the Court of Appeal, which held that the acts with which he was charged could not reasonably be qualified as trading in children, since this offence implied actions detrimental to the chil d, whereas adoption may be in the child’s own interest. The applicant was duly released, but the criminal proceedings against him are still pending, largely due to delays in the execution of letters rogatory in the United States.

Law : Government’s prelimin ary objections – An action for damages for unlawful detention is not a remedy to be exhausted, since the right to have the lawfulness of detention examined by a court and the right to compensation for unlawful detention are separate rights. The procedure u nder Article 552 of the Code of Criminal Procedure enables a detainee to apply for compensation for unlawful detention in criminal proceedings which have terminated. The Court held in its admissibility decision that the applicant had availed himself of ava ilable remedies by appealing against the detention order and against the prolongation of his detention and there is no reason to reach a different conclusion. Furthermore, there are no grounds on which to hold that there has been an abuse of the right of p etition. The preliminary objections must therefore be dismissed.

Article 5 § 1 – The provision by virtue of which the applicant was detained had never been applied by the Polish courts and it was therefore a source of serious difficulties of interpretation as regards the constitutive elements of the offence. The decisions referred to by the parties dated from after the applicant’s release and the Court could not speculate whether the most relevant one, from February 2000, was likely to affect the criminal c ase against the applicant. In any event, the Court must have regard to the legal situation at the material time. The Polish courts examined a number of elements which they deemed relevant  in reaching the conclusion that the factual aspects of the suspicio n were reasonably justified; moreover, while the legality of the detention may have been doubtful if based solely on suspicion of involvement in trading in children, the detention was also based on suspicion of having incited persons to give false testimon y. On the whole, there is nothing to show that the interpretation relied on by the domestic courts was arbitrary or unreasonable.

Conclusion : no violation (unanimously).

Article 5 § 4 – The law at the time did not entitle a detainee or his lawyer to attend the hearing concerning an appeal against a detention order issued by a prosecutor. Although the applicant’s lawyers were in fact allowed to attend the Regional Court hearing in Octo ber 1994, the prosecutor had an opportunity to address the court after the lawyers had been ordered to leave. While the applicant was able to advance arguments against his detention on remand, neither he nor his lawyers had access to the file at that stage . In these circumstances, the proceedings were not compatible with Article 5(4). Moreover, with regard to the subsequent proceedings relating to the prosecutor’s request for a prolongation, even assuming they satisfied the procedural requirements of this p rovision, the time which elapsed between the applicant’s initial detention in September 1994 and the Regional Court’s decision in December 1994 meant that the review was not carried out “speedily”.

Conclusion : violation (unanimously).

Article 6 § 1 (length of proceedings) – The case was undoubtedly complex. However, the proceedings were prolonged primarily as a result of evidence being taken abroad, there being significant delays in obtaining evidence from the American authorities. The prosecution took meas ures to expedite matters, but to no avail. Responsibility for the length cannot be attributed to the Polish authorities.

Conclusion : no violation (unanimously).

Article 41 – Since the Court cannot speculate as to whether the applicant would have been detai ned if the procedural guarantees of Article 5 § 4 had been provided, the finding of a violation in itself constitutes sufficient just satisfaction. Moreover, there is no causal link between the violation and the pecuniary damage claimed by the applicant. T he Court made an award in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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