Information Note on the Court’s case-law 16

March 2000

WÅ‚och v. Poland (dec.) - 27785/95

Decision 30.3.2000 [Section IV]

Article 5

Article 5-1

Lawful arrest or detention

Detention on remand on the basis of acts wrongly qualified as an offence: admissible

Article 6

Article 6-2

Presumption of innocence

Impact of adverse press campaign against the accused: inadmissible

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Effective remedy in respect of unlawful detention

In September 1994, the applicant, a lawyer by profession, was charged with trading in children and incitement to give false testimony. He was remanded in custody. Later th e same month, the written grounds for the charge were served on him. They referred to numerous case-files in which the applicant acted as representative of foreigners wishing to adopt children. The applicant appealed, maintaining that the acts which he was accused of committing could not constitute the offence of trading in children. In October 1994, the Court of Appeal dismissed his appeal. In December 1994, the prosecutor asked the court to prolong the detention for a further three months, which the court duly did. The applicant complained that these proceedings had not been adversarial, he and his lawyer having been denied access to the case-file. Subsequently, however, his appeal against the prolongation was upheld, the Court of Appeal stating that the a cts with which he was charged could not reasonably be qualified as trading in children, since this offence implied actions detrimental to the child, whereas adoption may be in the child’s own interest. In January 1995, the applicant was released, but the c riminal proceedings against him are still pending. At the initial stage of the proceedings, after the applicant’s arrest in particular, numerous articles were published in the newspapers, informing the public about his arrest and about the charges proffere d against him. In this regard, the applicant submitted that the criminal proceedings against him were part of wider scale political campaign against adoptions by foreigners; he referred in particular to the fact that spokespersons of the prosecuting author ities had told the press that he was guilty of trading in children, that he had been buying and selling children and the alleged prices had been quoted. He alleged that information about him had been given in a way that clearly disclosed his identity.

Admi ssible under Articles 5(1): The Government contended that the applicant should have instituted compensation proceedings and claimed damages for unjustified detention. However, where lawfulness of detention is concerned, an action for damages against the St ate is not a remedy which has to be exhausted, the right to obtain release from detention and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 being two separate rights. According to the Code of Criminal Procedure , a request to obtain compensation for manifestly unjustified detention on remand enabled a detainee to seek retrospectively, once the proceedings against him were over, a ruling as to whether his detention was justified and obtain compensation if it was n ot. The proceedings relating to such a request were designed merely to secure financial reparation for unjustified detention. Therefore, it could not be considered as a remedy by which the lawfulness of a continuing detention could be challenged and releas e obtained, and thus this remedy was not a relevant one in this context. The applicant had a specific judicial remedy at his disposal to complain about the alleged unlawfulness of his arrest. However, the applicant did avail himself of this remedy by lodgi ng an appeal against his detention order, and then lodging an appeal against the decision prolonging his detention.

Admissible under Article 5 § 4 and 6 § 1 (length of proceedings).

Inadmissible under Article 6 § 2: The applicant’s case was commented upon extensively by the press. Most of the impugned articles were published right after his arrest in September 1994 and during his detention. The applicant having been released in January 1995, a considerable period h ad already elapsed since the incriminated articles had been published. Moreover, the proceedings are still at the investigative stage and evidence is still being gathered;  the prosecuting authorities have not yet lodged the bill of indictment with the cou rt. Therefore, the composition of the panel of judges who will examine the merits of the applicant’s case has not been determined yet. In these circumstances, and leaving open the question of whether the press coverage of the applicant’s case was inspired by the authorities, there were no grounds on which to find that the impartiality of the court dealing with the applicant’s case was adversely affected by the press campaign to a degree amounting to a breach of the presumption of innocence: manifestly ill-f ounded.

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

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