Resolution CM/ ResDH (2011)139 [1]

Execution of the judgments of the European Court of Human Rights

Baranowski against Poland

Hulewicz against Poland

(Applications No. 28358/95 and 39598/98, judgments of 28 March 2000

and 23 February 2006,

final on 28 March 2000 and 23 May 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the right to liberty and security in that the applicants were kept in detention on remand solely on the basis of the indictment bill against them (violations of Article 5§1), as well as, in the case of Baranowski, courts failure to examine the applicant ’ s requests for release promptly (violation of Article 5§4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)139

Information about the measures to comply with the judgment in the cases of

Baranowski and Hulewicz against Poland

Introductory case summary

These cases concern the unlawfulness of keeping the applicants in detention on remand on the sole basis of a bill of indictment beyond the period set in the detention order, in 1994 and 1997 (violations of Article 5§1). T he European Court found that the domestic practice of keeping people in detention on the sole basis of a bill of indictment was the result of the lack, at the material time, of a precise rule in national law governing the situation of detainees during judicial proceedings, after the expiry of the period of detention set by the detention order issued at the investigatory stage.

Moreover, in the case of Baranowski the European Court found that the applicant ’ s three requests for release lodged between January and March 1994 had not been examined “promptly” by the courts, which took approximately three, five and six months to give their decision (violation of Article 5§4). The question of excessive length of detention, which is being examined within the Trzaska group (No. 25792/94), does not arise in these cases.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Baranowski (28358/95)

-

10,000 zlotys

40,000 zlotys

Paid on 30/05/2000

Hulewicz

(39598/98)

-

-

1,500 zlotys

Paid on 20/07/2006

b) Individual measures

In the case of Baranowski the unlawful detention ended on 24/05/1994.

In the case of Hulewicz, in which the European Court found two violations of Article 5§1 with regard to two sets of criminal proceedings, the unlawful detention on remand ended respectively on 13/02/1997 and 6/11/1997.

Accordingly, no individual measure was considered necessary by the Committee of Ministers.

II. General measures

1) Violations of Article 5§1

The practice consisting in keeping people in detention on remand on the basis of a bill of indictment is no longer possible in the light of the provisions of the new Code of Criminal Procedure, which entered into force on 01/09/1998. According to Section 280§1, detention on remand and its extension are based on a court decision.

2) Violation of Article 5§4 in the case of Baranowski

a) Legislative changes:

Under the terms of Section 252§3 of the new Code of Criminal Procedure, any appeal against a preventive measure (including detention on remand) must be examined promptly. Section 254§1 provides that requests for the lifting or modification of a preventive measure must be dealt with by a prosecutor at the preliminary investigation stage, or by a judge when the criminal proceedings are at the trial stage before court, within three days.

b) Dissemination and publication

The judgment Baranowski has been sent out to criminal courts and published on the website of the Council of Europe ’ s Information Office in Warsaw : www. c oe.org.pl .

III. Conclusions of the respondent state

The government considers that the measures will prevent new, similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Conventio n.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies