Resolution ResDH(2005) 72

concerning the judgments of the European Court of Human Rights of 9 January 2001 and 13 July 2004 (final on 13 October 2004) in the Kawka and Ciszewski cases against P oland concerning unlawful detention on remand and lack of adversarial proceedings concerning the review of the lawfulness of this detention

(Adopted by the Committee of Ministers on 18 July 2005 at the 933rd meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, as amended by P rotocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the Kawka and Ciszewski cases, delivered on 9 January 2001 and 13 July 2004 and transmitted to the Committee of Ministers once they had become final under Articles 44 and 46 of the Convention;

Recalling that the cases originated in two applications (Nos 25874/94 and 38668/97 respectively) against P oland , lodged with the European Commission of Human Rights on 22 August 1994 and 17 February 1997 under former Article 25 of the Co n vention by Mr Jacek Kawka and Mr Leszek Ciszewski, P olish nationals, and that the Commission and the Court declared admissible the complaints concerning the lack, at the material time, of any legal basis for the applicants ' detention on remand and, in the Kawka case, the non-adversarial character of the proceedings concerning the lawfulness of this detention;

Recalling that the Kawka case was brought before the Court by the Commission on 9 December 1998 and by the applicant on 30 November 1998 and that the Court was seised of the Ciszewski case under Article 5, paragraph 2, of protocol No. 11;

Whereas in its judgments of 9 January 2001 and 13 July 2004 the Court unanimously:

- held that there had been violations of Article 5, paragraph 1, of the Convention;

- held that there had been a violation of Article 5, paragraph 4, of the Convention (Kawka case);

- held that, in the Kawka case, the government of the respondent state was to pay the applicant, within three months, 4 000 P olish zlotys for non-pecuniary damage and that simple interest at an annual rate of 30% would be payable on this sum from the expiry of the above-mentioned three months until settlement and dismissed the remainder of the applicant ' s claim for just satisfa c tion;

- held, in the Ciszewski case, that the finding of a violation of the Convention constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgments of 9 January 2001 and 13 July 2004, having regard to P oland ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by them;

Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state recalled that measures had already been taken to avoid new violations of the same kind as the one found in these cases (see Resolution ResDH(2002)124 in the case Niedbała against P oland ) , in particular through the entry into force on 1 September 1998 (subsequent to the facts at issue) of the Code of Criminal P rocedure (see paragraphs 36-38 pages 7 and 8 of the European Court ' s judgment in the Kawka case);

Having satisfied itself that on 9 April 2001, within the time-limit set, the government of the respondent state had paid the a p plicant Kawka the sum provided in the judgment of 9 January 2001,

Declares, after having examined the information supplied by the Government of P oland , that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases.