FOURTH SECTION

Application no. 57722/12 Maksymilian GRABOWSKI against Poland lodged on 31 August 2012

STATEMENT OF FACTS

The applicant, Mr Maksymilian Grabowski, is a Polish national, who was born on 29 September 1995. He is curently detained in the detention centre for juveniles in Pszczyna . He is represented before the Court by Mr M. Burda , a lawyer practising in Krakow .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 7 May 2012 the applicant was arrested on suspicion of having committed three armed robberies and one attempted armed robbery with the use of machete on 4 May 2012. He was initially detained in the Krakow Police Children Unit ( policyjna izba dziecka ).

On 7 May 2012 the Krakow- Krowodrze District Court (Family and Juvenile Section) instituted preparatory proceedings ( postępowanie wyjaśniające ) with a view to determining whether the juvenile applicant had committed the offences at issue.

On the same day the Krakow- Krowodrze District Court decided to place the applicant in a detention centre for juveniles ( schronisko dla nieletnich ) for a period of three months. It found that, in view of the available evidence, there existed a reasonable suspicion that the applicant had committed three armed robberies and one attempted armed robbery and some other offences. The court also noted that the applicant was lacking in moral character and that the nature of the offences with which he had been charged militated in favour of placing him in a correctional institution for juveniles ( zakład poprawczy ). It also noted that there was a risk that he might go into hiding or put pressure on witnesses.

The applicant appealed. He argued, inter alia , that there had been no risk of fleeing or interfering with witnesses. He also objected to his placement in the detention centre for juveniles on the ground that he had a history of mental difficulties and had been schooled in a specialised institution.

On 10 July 2012 the Krakow Regional Court upheld the decision of the lower court. It had regard to the gravity of the offences which the applicant had allegedly committed and the fact that they could not be treated as an isolated incident. The court also noted that in the past a family court had handed down a warning and that on 29 May 2012 he had been put under the supervision of a probation officer. In view of those circumstances, it was considered likely that the applicant would be placed in a correctional institution for juveniles. His placement in the detention centre for juveniles was further justified by the fact that he had threatened one of the victims of the robbery. Responding to the arguments related to the applicant ’ s mental health, the court noted that the placement in the detention centre for juveniles, in addition to the applicant ’ s isolation, placed him under educational supervision which could not be seen as incompatible with his well-being.

On 9 August 2012 the applicant ’ s counsel requested the Krakow ‑ Krowodrze District Court to order the applicant ’ s immediate release. He submitted that the three-month period for which the measure was applied had expired on 7 August 2012 and that no decision on prolongation of the measure was given. He argued that in accordance with section 27 §§ 4 and 5 of the Juvenile Act the decision on prolongation of the placement in a detention centre for juveniles could be taken only by a court after summonses had been sent to the parties and counsel. The applicant ’ s counsel was informed by the court ’ s registry that in practice such decisions were not given, and that it sufficed for the court to issue an order for the case to be examined in correctional proceedings ( postÄ™powanie poprawcze ). He objected to such practice and considered it to be illegal.

On 9 August 2012 the Krakow- Krowodrze District Court dismissed the applicant ’ s counsel ’ s request to lift the placement of the applicant in detention centre for juveniles. It noted that the variation of the preventive measures was excluded in view of the charges against the applicant.

On 9 August 2012 the applicant ’ s counsel wrote to the director of the Gacki Detention Centre for Juveniles urging him to release the applicant.

By a letter of 16 August 2012 the Krakow- Krowodrze District Court informed the applicant ’ s counsel that after the court had ordered the examination of the case in the correctional proceedings on 27 July 2012, it did not prolong the applicant ’ s placement in the detention centre for juveniles pursuant to section 27 § 3 of the Juvenile Act.

B. Relevant domestic law

The Juvenile Act of 26 October 1982 ( ustawa o postępowaniu w sprawach nieletnich ) regulates, inter alia , the procedure applicable to juveniles who committed criminal offences aged between thirteen and seventeen. The proceedings are normally conducted by a family court.

The principal features of the Juvenile Act were set out in the Court ’ s judgment in the case of Adamkiewicz v. Poland (no. 54729/00 , §§ 51-62, 2 March 2010).

Section 27 of the Juvenile Act regulates t he placement of a juvenile in a detention centre for juveniles. It provides, in so far as relevant:

“§ 1. A juvenile may be placed in a detention centre for juveniles ( schronisko dla nieletnich ) when the circumstances militating in favour of his placement in a correctional centre for juveniles ( zakład poprawczy ) are shown, and if there is a reasonable risk that a juvenile will go into hiding or that he will destroy evidence of an offence, or if his identity cannot be established.

...

§ 3. The period of the stay of a juvenile in a detention centre for juveniles prior to the case being referred for a hearing may not exceed three months; the length of the stay shall be specified in a decision on the placement of a juvenile in a detention centre for juveniles.

§ 4. If due to the particular circumstances of the case it is necessary to prolong the stay of a juvenile in a detention centre for juveniles his stay may be prolonged for a period not exceeding a further three months.

§ 5. A family court shall rule on prolongation of the stay of a juvenile in a detention centre for juveniles at a hearing. The parties and the counsel of a juvenile shall be notified about the date of the hearing.

§ 6. Until the delivery of a judgment by the first-instance court the total length of the stay of a juvenile in a detention centre for juveniles may not exceed one year. The period of an unauthorised absence of a juvenile in a detention centre for juveniles exceeding three days and the period of psychiatric observation do not count towards the above period.

§ 7. In particularly justified cases, o n an application from the court before which the case is pending, a regional court, in whose jurisdiction the proceedings are conducted, may prolong the period of the stay of a juvenile in a detention centre for juveniles, referred to in § 6, for a further specified period.”

COMPLAINTS

1. The applicant complains under Article 5 § 1 (d) of the Convention that he was deprived of his liberty without a court order prolonging his detention.

2. In his letter of 26 September 2012 the applicant complains that he did not have access to any procedure whereby he could contest the lawfulness of his detention after 7 August 2012.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention in the period after 7 August 2012?

2. Was his detention in this period a “lawful detention” within the meaning of Article 5 § 1 (d) of the Convention (cf. Baranowski v. Poland, no. 28358/95, §§ 50-58, ECHR 2000 ‑ III)?

3. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as require d by Article 5 § 4 of the Convention, in the period after 7 August 2012?