written comments helsinki foundation for human rights

IN THE EUROPEAN COURT OF HUMAN RIGHTS
(Application No. 67175/01)
BETWEEN
KARL REINPRECHT V. AUSTRIA
WRITTEN COMMENTS
BY
HELSINKI FOUNDATION FOR HUMAN RIGHTS
21 February 2005
TABLE OF CONTENTS
1. Introduction ................................................................1
2. Interest of Helsinki Foundation for Human Rights ....2
3. Decisions on prolongation of pre-trial detention in
Poland.........................................................................2
3.1 Legal basis .........................................................2
3.2 Practice ..............................................................3
3.3 Potential effect of the Court's judgment..............4
4. Legal issues under the Convention ............................4
4.1 General overview .................................................4
4.2 Applicability of Article 5 § 4 of the Convention ..4
4.3 Applicability of Article 6 § 1 of the Convention...7
5. Conclusions ..............................................................10
1.
INTRODUCTION
1.
These written comments are submitted by the Helsinki Foundation for Human Rights (the
“HFHR”) with its seat in Warsaw, Poland at ul. Zgoda 11 pursuant to leave granted on 24 January
2005 by Mr. Nicolas Bratza, the President of the Chamber of the European Court of Human Rights (the
“Court”) under Rule 44 § 2 of the Rules of the Court. They address the question whether under the
Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”) there
is a requirement of public hearing when a decision on the prolongation of detention on remand is made.
2.
These comments are limited only to the points of law, in particular the interpretation of the
Convention requirements, as well as to the law and practice regarding the publicity of court sessions at
which decisions on prolongation of pre-trial detention are made. In particular, in the absence of wellrecognised standards in the interpretation of the provisions of the Convention concerning the above
question, the HFHR has made numerous observations about legal environment and existing practice of
the judiciary. These submissions do not include any comments on the facts or merits of the case of
Reinprecht v. Austria, but address only the general principles involved in the solution of the case.
2.
INTEREST OF HELSINKI FOUNDATION FOR HUMAN RIGHTS
3.
HFHR is a non-governmental organization established in 1989 by members of the Helsinki
Committee in Poland, in order to promote human rights and rule of law in Poland as well as to
contribute to the development of an open society in Poland. One of the activities of the HFHR includes
legal actions undertaken in the public interest, including the representation of parties and preparation of
legal submissions to national and international courts and tribunals, particularly within the framework of
the Strategic Litigation Program. The aim of such submissions is to influence the process of changing
laws and practices that we find contrary to human rights.
4.
The HFHR since its establishment has been promoting the standards of the European
Convention on Human Rights among the judiciary and executive administration, including prison
administration. This refers in particular to guarantees of Articles 5 and 6 of the Convention. The
question of public hearing when deciding on prolongation of pre-trial detention is thus of vital
importance for us, taking into account the discussed below practice in Polish courts and lack of clear
and unequivocal standard.
5.
We hope that our written comments may be of some assistance to this Honourable Court in
establishing the standard within the Convention system on the question involved. Such a standard,
although adopted as regards the Austrian case, might have a significant effect on Polish law and
practice. Upon its establishment in more or less compliant fashion with this brief, the HFHR would
undertake actions aiming to convince the Polish Criminal Law Codification Commission to prepare a
draft new law allowing for a speedy change of relevant provisions of the Polish Code of Criminal
Proceedings.
3.
DECISIONS ON PROLONGATION OF PRE-TRIAL DETENTION IN POLAND
3.1
Legal basis
6.
Firstly, it must be observed that the provisions of the Polish Code of Criminal Proceedings (the
“Code”) are not clear as to the requirement of a public hearing when a decision on the prolongation of
pre-trial detention is made. There is no clear indication whether such decisions should be adopted by the
court publicly or sitting in camera. In principle, Article 95 of the Code states that the court pronounces
its decisions at a hearing if the law so provides; and otherwise, at a court session held in camera.
However, Article 249 of the Code which sets procedural rules for the decision on the prolongation of
pre-trial detention does not expressly require a public hearing. Moreover, Article 249 § 5 of the Code
determines that only a prosecutor and an attorney of a detained person can attend court sessions at which
the decision is to be taken concerning prolongation of pre-trial detention (or at the session at which an
appeal against a decision to order or to prolong pre-trial detention is to be considered). Even more, the
absence of the prosecutor or the lawyer at the session does not defer giving a decision by the court.
7.
This may lead to the conclusion that the very character of such court sessions is not public and is
rather designated to involve exclusively the parties to criminal proceedings. This meets the principle of
adversarial mode of criminal proceedings and ensures the equality of arms between the parties which
used to be breached in Poland under the previous regulation (see, inter alia, G.K. v. Poland1, Trzaska v.
Poland2). However, the current regulation, although taking a step forward, still does not guarantee the
possibility of a public monitoring of process in which decisions on prolongation of pre-trial detention
are made.
1
Application No. 38816/97, judgement of 20 January 2004.
2
Application No. 25792/94, judgement of 11 July 2000.
2
8.
It should be furthermore noted that under Article 96 § 1 of the Code “Parties and persons who
are not parties, if it is significant for the protection of their rights or interests, may then participate in
the session, if the Code so provides, unless their participation is obligatory”. But this provision must be
considered with regard to Article 96 § 2 of the Code, which states that “In other cases, they may
participate in the session, if they arrive, unless the Code provides to the contrary”. Under Polish law it
is not clear how to interpret these provisions in combination with Article 249 § 5 of the Code,
guaranteeing only the adversarial mode of proceedings, and not the publicity of the trial. In particular, it
is not clear under Polish law whether NGOs may participate in such hearings, if their presence might
contribute to the protection of the rights and/or interests of parties to the proceedings.
3.2
Practice
9.
Public scrutiny as regards prolongation of pre-trial detention is of vital importance when taking
into consideration numerous complaints raised by detainees about the day-to-day court practice in
Poland. In particular, the grounds given by the courts when taking decisions on the prolongation of pretrial detention are open to serious criticism. They are often perceived as ambiguous, insufficient, or
superficial. It is also being raised that the courts use a ready-made scheme of the grounds for the
prolongation of pre-trial detention without adjusting their wording to the specificity of a given case3.
Frequently, detainees in Poland complain about the excessive length of pre-trial detention amounting
sometimes up to several years. Such cases are often referred for the consideration of the Honourable
Court. Depending on the circumstances of the given case, they have been many times found in breach of
Art. 5 § 3 of the Convention. Furthermore, upon the constitutional complaint, the Polish Constitutional
Tribunal is currently considering the issue of the maximum time-limit on the length of pre-trial
detention, which is not fixed in the Code, leaving the area for the uncertainty as to the scope of
application of this preventing measure.4
10.
The publicity of the court's sessions concerning pre-trial detention is of crucial importance not
only for the general public, but also for the non-governmental organizations that control the use by
courts of pre-trial detention measure, taking into special account the circumstances mentioned earlier. It
flows out of experience of the HFHR that there is no uniform courts’ practice as regards whether courts’
sessions concerning pre-trial detention are public or in camera. In general, there are three possible court
approaches to the possibility of the HFHR's observers participation in the sessions in question:
(i) full publicity of the court's session – while an observer delegated by the HFHR can attend the
whole session, he is also permitted by the presiding judge to make notes out of the session’s
course5;
(ii) full secrecy of the court's session – session is held in camera and the HFHR observers are
refused to participate in it;
(iii) mixed publicity / secrecy of the court's session - while an observer delegated by the HFHR
can attend the whole session, he is not allowed by the presiding judge to make notes out of the
session’s course.
11.
It flows so far from the experience of the HFHR that the first approach is the most commonly
applied one. Nevertheless, it should be mentioned that allowing for the HFHR observer to be present at
the meeting does not necessarily mean that majority of the courts in Poland would allow any member of
the public to be present and to take notes. It is quite possible that some of the courts make simply
3
In the case of Mansur v. Turkey, application No. 16026/90, judgment of 8 June 1995, this was found as a breach of
Art. 5 § 3 of the Convention. The Turkish court repeatedly authorised the continuation of detention using invariably
identical and stereotypical form of words, often without further explanation.
4
In particular, this is a subject of the combined constitutional complaints of Marcin B. and Tomasz W. (No. SK
58/03), claiming that Article 263 § 4 of the Code is contrary to the right to liberty enshrined in the Polish
Constitution, as it does not fix the maximum period of pre-trial detention.
5
An example of the first approach is the case of Stanisław K. (HFHR’s case-file number: AŚ 16926). The presiding
judge of the Regional Court in Warsaw (Sąd Okręgowy w Warszawie) admitted HFHR observer to participate in the
session concerning prolongation of the pre trial detention and to make notes out of the session’s course.
3
exception in favor of HFHR, as the most respected Polish watchdog organisation, but in principle they
do not allow members of the public to be present. It should be also noted that where NGOs and other
members of the public are precluded from attending court hearings(or even to take notes, as in the third
scenario), there is no possibility to challenge such decision.
12.
Lack of clear regulations as regards whether court sessions deciding on pre-trial detention
should be public or in camera, combined with an ambivalent practice, is in the opinion of the HFHR a
serious deficiency in the Polish criminal proceedings. As long as the clear standard in this area is not
established, the current legal regulation allows judges for a free interpretation of the Code and it closes
every legal way to control these decisions.
3.3
Potential effect of the Court's judgment
13.
In the light of the above considerations, the HFHR is of the opinion that there is a strong social
and legal need for the supervision and monitoring of the activities of the Polish courts as regards
decisions on prolongation of pre-trial detention in order to eliminate a possibility of irreparable
infringement of the rights of detainees. Opening to public the hearings at which pre-trial detention is
ordered would enable the HFHR and other human rights organizations to actively participate in the
screening process. This, finally, may have a significant effect on the Polish law and practice as regards
the requirements of due process in cases concerning prolongation of pre-trial detention. It may also lead
to establishing well-recognised standards in the interpretation of the Convention within both domestic
courts and foreign courts, in High Contracting Parties to the Convention.
4.
LEGAL ISSUES UNDER THE CONVENTION
4.1
General overview
14.
When analysing whether it is required under the Convention that court sessions at which pretrial detention is ordered or prolonged be held in public, two issues must be considered – firstly, whether
Article 5 § 4 of the Convention requires that hearings concerning the review of pre-trial detention be
held in public, and secondly, whether Article 6 § 1 of the Convention applies to such proceedings and,
consequently, whether a public hearing in proceedings concerning review of pre-trial detention is
required under that provision.
15.
Before referring to the provisions of the Convention themselves it must be emphasised that their
interpretation should follow the rules set in the Vienna Convention on the Law of Treaties (hereinafter
referred to as the “Vienna Convention”). Not only does the Vienna Convention requires that
international treaties must be interpreted in good faith and in accordance with the ordinary meaning to
be given to their terms, but it is also required that any relevant rules of international law applicable in
the relations between the parties must be taken into account. Furthermore, any supplementary means of
interpretation may be called in aid. This, in the opinion of the HFHR, requires taking into consideration
of social arguments (and not only legal arguments) when interpreting the above mentioned Articles of
the Convention .
4.2
Applicability of Article 5 § 4 of the Convention
16.
Article 5 of the Convention embodies a key standard in the protection of the right to personal
liberty and security. Having in mind a fundamental meaning of the rights concerned, national courts
should always regard pre-trial detention as an extraordinary measure which must be objectively justified
and of duration no longer than necessary. This requires the incorporation of a mechanism of oversight
judicial decision-making process enabling to check whether the merits of the decisions fall within the
limits set in Article 5 of the Convention. This does not necessarily mean that any measure affecting
personal liberty is to be engaged or that additional judiciary instance be involved in the determination of
the case. The HFHR is of the opinion that it can be achieved simply by virtue of enabling the application
of certain guarantees of the Convention, such as public hearings, to pre-trial detention proceedings.
17.
As frequently confirmed in the Court’s case law, the public character of the proceedings before
4
the judicial bodies protects against the administration of justice in secret with no public scrutiny.6 It was
acknowledged that it is also one of the means whereby trust and confidence in the courts and their
decisions can be maintained. By rendering the administration of justice visible, publicity contributes to
the achievement of fairness of the proceedings being one of the fundamental principles of any
democratic society (see Axen v. Germany7).
18.
As elaborated in the following paragraphs, the HFHR believes that the requirement to hold pretrial detention hearings in public can be derived both from the interpretation of the Convention
provisions and the aims they serve, as well as it can be strongly justified in social terms. Furthermore,
the recent developments in the jurisprudence of the Polish Constitutional Tribunal give a supportive
perspective on this problem.
19.
Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the
procedural and substantive conditions which are essential for the “lawfulness”, in the Convention terms,
of their deprivation of liberty. It is true that the procedures falling under that Article are not always
attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or
civil litigation (see Megyeri v. Germany8). However, the proceedings in question are still subject to
certain requirements arising under Article 5 and must meet several conditions in ordered to be deemed
compatible with the Convention. The HFHR is of the opinion that the very character of these conditions
and their extended number is a crucial factor allowing the application to the proceedings in question of
additional guarantees of the Convention, including the right to a public hearing.
20.
Firstly, the proceedings must have a judicial character. The "court" referred to in Article 5 § 4 of
the Convention serves to denote "bodies which exhibit common fundamental features, of which the most
important is independence of the executive and of the parties to the case” (see Benthem v. the
Netherlands)9. This means in practice that it must show some semblance of independence with a special
regard to be given to the manner of appointment of its members and their term of office, and the
existence of guarantees against outside pressures. This may be understood as the presence of safeguards
against external influence and may consist in allowing a public presence as a natural manner of
verification of the independence of the judiciary, as well as enabling active participation of human rights
NGOs as non-party watchdogs.
21.
Secondly, the expression “lawful” in Article 5 § 4 of the Convention essentially refers back to
national law obligation to conform to the substantive and procedural rules thereof. This requires the
competent court to examine compliance with the procedural requirements of domestic law. However, it
is also required that any measure depriving the individual of his or her liberty must be compatible with
the purpose of Article 5 of the Convention and must involve the examination of the reasonableness of
the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the
6
The value of public hearing for the administration of justice was several times underlined with respect to Article 6 §
1 of the Convention. In Diennet v. France, application No. 18160/91, judgement of 10 February 1995, the Court said
that 'the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6.
This public character protects litigants against the administration of justice in secret with no public scrutiny; it is
also one of the means by whereby confidence in the courts can be maintained. (underlining only for emphasis) By
rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6
(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society within
the meaning of the Convention'. Several other cases have followed the above understanding of public hearing (see for
example H v. Belgium, application No. 8950/80, judgement of 30 November 1987; Monnell & Morris v. UK,
application No. 9562/81, 9818/82, judgement of 2 August 1981; Albert & Le Compte v. Belgium, application No
7299/75, 7496/76, judgment of 10 February 1983; Skarby v. Sweden, Application No 12258/86, judgement of 28 June
1990, Hakansson & Sturesson v. Sweden, application No. 11855/85, judgment of 21 February 1990; Darby vs.
Sweden, application No. 11581/85, judgement of 23 October 1990; and Langborger v. Sweden, application No.
111794/84 judgement of 22 June 1989.
7
Application No. 8273/78, judgement of 8 December 1983.
8
Application No. 13770/88, judgement of 12 May 1992.
Application No. 8848/80, judgement of 23 October 1985.
9
5
ensuing detention (see Brogan and Others v. the United Kingdom10).
22.
Therefore, it is crucial to ascertain whether domestic law itself is in conformity with the
Convention, including general principles expressed or implied therein. This means in practice that where
deprivation of liberty is concerned, it is particularly important that the general principle of legal
certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under
domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets
the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently
precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v.
Poland11).12
23.
The term "lawful" in the determination whether pre-trial detention is justified, in any event,
implies also the absence of any arbitrariness (see Ashingdane v. the United Kingdom13). Thus, it is
necessary to create a mechanism which will help to prevent persons from being deprived of their liberty
in an arbitrary fashion without taking into consideration all relevant factors influencing their situation.
As stipulated above, the HFHR considers the publicity of the proceedings to be a key factor in ensuring
absence of arbitrariness.
24.
It is finally necessary under Article 5 § 4 of the Convention that the domestic procedure
regarding pre-trial detention satisfies two additional indispensable conditions – that it is adversarial and
always ensures equality of arms between the parties - the prosecutor and the detained person, and that it
gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question.
25.
Having in mind the complexity of the conditions to be met by national courts when deciding on
pre-trial detention as described above, the HFHR thinks that it is of key importance to establish that the
Convention requires creation of the system of domestic practice in which a full accessibility of the pretrial detention hearings to public is guaranteed. Such public scrutiny, in the opinion of the HFHR,
substantially helps to establish high level standards of human rights protection in the area where it
seems necessary and where a field for misuse of legal frames still exists. Therefore, it is indisputable
that Article 5 § 4 of the Convention must be read as setting an implicit requirement for holding pre-trial
detention hearings in public.
26.
It is interesting to note that in one of the recent cases, the Polish Constitutional Tribunal has
examined the compliance of the Code's provisions concerning the procedure on arrest (and interlocutory
appeals against decisions imposing arrest) with guarantees of inter alia Article 41 Section 214, and
Article 45 Section 115of the Polish Constitution.16 In this case, the Constitutional Tribunal has
underlined the special relationship between guarantees of Article 41 Section 2 and Article 45. It has said
10
11
Application No. 10/1987/133/184-18, judgement of 29 November 1988.
Application No. 28358/95, judgement of 28 March 2000.
12
However, as regards the situation in Poland the HFHR has already mentioned that the Polish Constitutional Court
has recently started considering the constitutionality and compliance with international standards of the provisions of
the Code regarding pre-trial detention. In particular, it is subject to examination whether the Code may leave
unregulated the issue of the statutory time-limits on the length of detention. It might mean that currently Polish courts
use the law which is not sufficiently foreseeable, clear and definite. The HFHR considers this as element depriving
detainees of a certainty as to the scope and length of application of the Polish most severe criminal preventive
measure. In such a situation the public monitoring of the judiciary practice might be of special importance to ensure
proper functioning of the legal system and to establish the presence of international human rights standards in the
day-to-day judiciary practice.
13
Application No. 8225/78, judgement of 28 May 1985.
14
Article 41 Section 2 of the Polish Constitution provides that 'Anyone deprived of liberty, except by sentence of a
court, shall have the right to appeal to a court for immediate decision upon the lawfulness of such deprivation. Any
deprivation of liberty shall be immediately known to the family of, or a person indicated by, the persons deprived of
liberty'.
15
Article 45 Section 1 of the Polish Constitution provides that 'Everyone shall have the right to a fair and public
hearing of his case, without undue delay, before a competent, impartial and independent court.'
16
Judgment of 6 December 2004, SK 29/04.
6
that guarantees of an individual's rights contained in the both provisions are supplementary to each
other. This relationship extends not only in a guarantee of judicial review of an interlocutory appeal on
arrest, but also to the requirements as regards the court procedure initiated by such interlocutory appeal.
According to the Constitutional Tribunal, it means that all the guarantees provided in Article 45 Section
1 of the Constitution (including the fair and public hearing), should be fully applicable to review of the
interlocutory appeal.17
27.
Taking into account the above judgment, we can consequently argue that if procedural
guarantees of the right to court (including fair and public hearing) are applicable to review of
interlocutory appeals, then they should be also applicable to court sessions, where decisions on
application and prolongation of detention on remand are made. We are of the opinion that the above
judgment of the Polish Constitutional Tribunal is a good example how to combine the guarantees of fair
trial with guarantees of detainees's rights. Accordingly, we think the above arguments may be applied to
combine the application of Article 5 § 4 with Article 6 § 1 of the Convention in order to decide
Reinprecht v. Austria case.
4.3
Applicability of Article 6 § 1 of the Convention
28.
Should the Honourable Court not to wish to share our point of view as regards Article 5 § 4 of
the Convention to the case in question, we would like to present our additional comments as regards
applicability of Article 6 § 1 of the Convention. Finding that this provision is applicable to the court's
session on application and prolongation of pre-trial detention, makes obvious the requirement of public
hearing when deciding on these issues.
29.
The attitude of this Court in the consideration of Article 6 § 1 of the Convention has been to
create a distinction between 'civil rights and obligations' on the one hand, and 'criminal charge' on the
other (see for instance Engel and Others v. the Netherlands18, Putz v. Austria19, Schmautzer v. Austria20,
Benham vs. United Kingdom21). We intend to point out that there is a number of arguments supporting
the opinion that judicial review of pre-trial detention may be perceived as both - involving determination
of 'civil rights and obligations' and constituting an integral part of proceedings in which 'criminal
charge is to be determined'. In particular, in the following paragraphs we would like to draw special
attention to the civil character of the right to liberty and to consequences of its deprivation suffered by
detainees in enjoyment of their other civil rights. Moreover, having in mind the tight connection
between the proceedings in which determination of criminal liability is at stake, and proceedings in
which pre-trial detention is ordered or prolonged, we are of the opinion that the same guarantees of
Article 6 § 1 of the Convention should be applicable to both of them.
Whether judicial review of pre-trial detention amounts to a determination of 'civil rights and
obligations'
30.
In arriving at what is 'civil rights and obligations' whenever there is a need to do so, this court
has consistently relied on its previous case law on the subject (see for instance British-American
Tobacco Company Limited v. the Netherlands22, Air Canada v. United Kingdom23, Tolstoy Miloslavsky
v. United Kingdom24). Under the well-developed case law of this Court therefore, a very wide number of
17
Please note, however, that the Constitutional Tribunal is of the opinion that the requirement of public hearing has
two meanings: (i) external – including openness of proceedings to publicity; (ii) internal – parties are allowed to
participate in a hearing. In the Tribunal's opinion the latter is sufficient as regards the interlocutory appeal. The HFHR
is of the opinion that the public hearing should only be regarded as having the external character.
18
Application No. 5100/71, 5101/71, 5102/71, judgement of 8 June 1976
19
Application No. 18892/91, judgement of 22 February 1996
20
Application No. 15523/89, judgement of 23 October 1995.
21
Application No. 19380/92, judgement of 10 June 1996.
22
Application No. 19589/92, judgement of 20 November 1995.
23
Application No. 18465/91, judgement of 5 May 1995.
24
Application No. 18139/91, judgement of 13 July 1995.
7
issues may be considered as 'civil rights and obligations'.25
31.
In particular, the Court in Aerts v. Belgium26 the Court explicitly stated that the right to liberty is
a civil right. It is true that in this case the Court considered whether Article 6 § 1 of the Convention was
applicable to the domestic proceedings involving both the determination of the unlawfulness of
deprivation of liberty and determination of compensation to be granted for unlawful imprisonment.
Determination of the latter had obviously civil character allowing direct application of Article 6 § 1 of
the Convention. However, as aforementioned, the Court did not limit its consideration to the issue of the
civil character of compensation, but it directly referred to the right to liberty as a civil right.
32.
Taking into account the wide-ranging jurisprudence of the Court, in our opinion the following
arguments support the thesis that the decision on application and prolongation of pre-trial detention may
be deemed as a decision on determination of 'civil rights and obligations' within the meaning of Article
6 § 1 of the Convention.
33.
First, it should be borne in mind that the application and prolongation of pre-trial detention has a
serious impact on the life of detainee and its rights and obligations. A person deprived of a right to
personal liberty and security, is likely to feel negative impact on the enjoyment of other rights which
may de deemed civil, such as the right to family and private life, including a strongly adverse effect on
professional life. In Poland, any deprivation of liberty, apart from placing the person affected in a
vulnerable position in general terms, might also substantially influence his or her employment. Under
Article 66 of the Labor Code, the employment contract expires upon the lapse of three months of pretrial detention. The employer has an obligation to re-employ the formerly detained employee in case the
court finds him or her not guilty or redeems the proceedings in a case. However, even if there is such a
right on the part of the employee, after the long period of pre-trial detention, it might be hard to return to
the previous employment. Furthermore, in certain professions (e.g. customs' officers) the Polish law
provides that immediately upon application of pre-trial detention, an employment contract expires. This
issue was subject to examination of the Polish Constitutional Tribunal. However, the Constitutional
Tribunal found the existing regulations allowing obligatory termination of the employment agreements
with customs officers who are detained in full compliance with the Polish Constitution27. Termination of
employment as well as stopping of professional activities has pure consequences for financial condition
of the detainee and his family. Therefore, decision on pre-trial detention or its prolongation surely
affects civil rights and obligations.
33.
When establishing whether ordering of pre-trial detention by the court may be regarded as
determination of the civil right, it should be taken into consideration that there is both a Convention and
a statutory right to compensation for unlawful detention. Article 5 § 5 of the Convention and the
Chapter 58 of the Code is devoted to setting forth legal frames for the persons seeking compensation for
their unlawful detention, i.e. detention which was ordered by the court lacking a proper factual or legal
25
In Allenet de Ribemont v. France, application No. 15175/89, judgment of 10 February 1995, claims for
compensation for injury to reputation was held to be a determination of civil rights and obligations. In Diennet v.
France, application No. 18160/91, judgment of 26 September 1995, the Court held that disciplinary proceedings in
which the right to continue to practice medicine was in issue, amounts to a determination of civil rights and
obligations. And in Acquaviva v. France, application No. 19248/91, judgement of 21 November 1995, the Court laid
down a broad based principle of law that once there is a proceeding in which a dispute over a right, which is firstly,
recognised under domestic law, secondly is genuine and serious, and may relate to the existence, scope and exercise
of a right, and thirdly the outcome of which must be directly decisive for the right in question, then such proceedings
will amount to a determination of civil rights and obligations, and consequently be applicable to Article 6 § 1 of the
Convention (see also Gustafsson v. Sweden, application No. 15573/89, judgement of 25 April 1996; and Kerojarvi v.
Finland, application No. 17506/90, judgement of 19 July 1995). Unsurprisingly, the Court has also held that
proceedings for pension entitlement, rent determination and for the settlement of payments by social security offices
and an insurance company, all amount to a determination of civil rights and obligations (see e.g. Süβmann v.
Germany, application No. 57/1995/563/649, judgement of 16 September 1996; Terra Woningen BV v. the
Netherlands, application No. 20641/92, judgement of 17 December 1996, and Le Calvez v. France, application No.
25554/94, judgement of 29 July 1998).
26
Application No. 61/1997/845/1051, judgement of 30 July 1998.
27
See judgment of the Polish Constitutional Tribunal of 19 October 2004, K 1/04*.
8
basis. This means that the domestic law explicitly provides a mechanism which, in fact, confirms that a
breach of the right to liberty has negative consequences to be cured by pecuniary compensation paid by
the state, the character of which is indisputably civil (see also Moreira de Azevedo v. Portugal28).
34.
Finally, despite even paying damages by the states for unjustified pre-trial detention, the fact of
deprivation of liberty puts more or less permanent stigma on such a person as well as on its reputation,
good name and recognition by other persons. For people exercising certain professions requiring a
public trust (e.g. attorneys, tax advisors, journalists, etc), this might be a difficult hurdle to overcome
and to return to the state of affairs preceding the pre-trial detention.
35.
All the above arguments, in the opinion of the HFHR may support the argument that the nature
of the right to liberty is a civil right, as understood by Article 6 § 1 of the Convention, especially taking
into account the broad interpretation of the concept of 'civil rights and obligations' adopted by the
Court.
36.
Accordingly, finding that determination on application and prolongation of pre-trial detention, is
a determination on 'civil rights and obligations' within the meaning of the Convention, leads us to the
conclusion that any court hearing in this respect should be public.
Whether judicial review of pre-trial detention amounts to a determination of 'criminal charge'?
37.
If, however, the Court finds the preceding arguments on the civil character of rights concerned
insufficient to allow direct application of Article 6 § 1 of the Convention to judicial review of pre-trial
detention, we would like to support our argumentation through pointing out a strong link between the
proceedings in which determination of criminal charges is at stake, and proceedings in which pre-trial
detention is ordered or prolonged.
38.
It is true that determination of the lawfulness of restraint on liberty does not in itself aim at
determination of a criminal charge within the contemplation of Article 6 § 1 of the Convention.
However, this restraint is inextricably connected or tied to the substantive criminal charge, and to that
extent it amounts, by virtue of this connection, to a substantive charge within the contemplation of
Article 6 § 1 of the Convention.
39.
It must be taken into account that in Deweer v. Belgium29 the Court stated that the word 'charge'
should be given a substantive rather than a formal meaning, which allows to broaden the scope of our
consideration. Moreover, according to the Court’s case-law giving a judicial decision on pre-trial
detention is equal in consequences with commencing proceedings in which criminal charges are to be
determined (see Wemhoff v. Germany30). This means that ordering pre-trial detention is a starting point
in the process of determination of criminal charges and as such - it may be regarded as its integral part
to which the same guarantees are applicable.
40.
Finally, the above argument is supported and fortified by a careful consideration of the
provisions of Article 5 § 3 of the Convention, which allows for deprivation of liberty only on grounds or
on the understanding that the victim would either be brought before a legal authority or on suspicion of
committing an offence, or for purposes of preventing the commission of an offence or lastly preventing
such a person from fleeing after the commission of an offence (see Lukanov v. Bulgaria31). When
considered therefore, from the point of view of any of the components of Article 5 § 3 of the
Convention any deprivation of liberty is tied to a substantive criminal charge and in our view allows
direct application of guarantees envisaged by Article 6 § 1 of the Convention to judicial review of pretrial detention.
28
Application No. 11296/84, judgement of 23 October 1990.
29
Application No. 6903/75, judgement of 27 February 1980.
30
Application No. 2122/64, judgement of 27 June 1968.
Application No. 21915/93, judgement of 20 March 1997.
31
9
5.
CONCLUSIONS
41.
Helsinki Foundation for Human Rights is of the opinion that judicial proceedings in cases
concerning a decision on prolongation of pre-trial detention should be held in public. Such a rule offers
watchdog NGOs a legal possibility to monitor the administration of justice. Taking into account the
Polish law and practice as regards pre-trial detention, there is a strong need for standards that would
help to overcome the abuse of pre-trial detention as the most basic security measure in criminal
proceedings. There is no doubt that it is in the interest of justice and Articles 5 § 4 and Article 6 § 1 of
the Convention should be interpreted as including the above procedural guarantee.
The written comments were prepared by
__________________________________________
31
Aleksandra Jeżowska-Minárik, magister iuris (University of Wrocław, Poland), LL.M in International Business
Law (Central European University, Budapest). She worked for several years in Warsaw offices of Baker & McKenzie
and Norton Rose. In 2004 she was a lawyer in the European Court of Human Rights.
32
Adam Bodnar, magister iuris (University of Warsaw, Poland), LL.M. in Comparative Constitutional Law (Central
European University, Budapest). He worked for several years in the Warsaw office of Weil, Gotshal & Manges. Since
2004 he is a coordinator of the strategic litigation program in the HFHR.
33
Michael Tarnongo Utsaha, LL.B. (University of Jos, Nigeria), a solicitor and advocate of the Supreme Court of
Nigeria. He is an Open Society Justice Initiative Human Rights Fellow at Central European University in Budapest.
Currently he is an intern at the HFHR.
34
Krzysztof Wilamowski, magister iuris (University of Warsaw, Poland). He is a coordinator of the HFHR programs
concerning the rights of persons with HIV/AIDS as well as concerning the drugs policy in Poland. He is also a
secretary of the program 'Prevention of Tortures in Closed Institutions of CEE Countries' run by the HFHR.
35
Andrzej Rzepliński, professor of law, member of the Management Board of the HFHR, and head of the legal
programs of the HFHR, dean of the Institute for Social Prevention and Resocialisation, University of Warsaw, Poland.
10