ITEMID: 001-105217
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SHIMOVOLOS v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-1;Violation of Art. 8;Remainder inadmissible
JUDGES: Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1969 and lives in Nizhniy Novgorod. He is the head of the Nizhniy Novgorod Human Rights Union.
6. It transpires from a certificate issued by an official of the Volgo-Vyatskiy Interior Department of Transport on 17 April 2008 that on 23 March 2007 the applicant’s name was registered in a so-called “Surveillance Database” (“Сторожевой контроль”). An extract from the list of persons registered in that database shows that the applicant’s name is mentioned in the section entitled “Human Rights Activists”.
7. The Surveillance Database contains information about skinheads, human rights activists and other persons allegedly involved in extremist activities. Whenever a person mentioned in the database purchases a train or aeroplane ticket the Interior Department of Transport receives an automatic notification.
8. An EU-Russia Summit was scheduled for 17 and 18 May 2007 in Samara.
9. On 10 May 2007 the Volgo-Vyatskiy Interior Department of Transport sent a telex to its local branches informing them that protest rallies by several opposition organisations were planned for 18 May 2007. To prevent unlawful and extremist acts it was necessary, in accordance with the Suppression of Extremism Act and Order no. 47, On certain measures intended to strengthen the fight against extremism, issued by the Interior Ministry on 14 April 2005, to detect and stop all members of those organisations travelling to Samara between 8 and 20 May 2007. In particular, it was necessary to separate the travellers and dissuade them from going to Samara.
10. On an unspecified date the applicant bought a train ticket to Samara for 13 May 2007 and a return ticket for 16 May 2007.
11. On 13 May 2007 the Volgo-Vyatskiy Interior Department of Transport sent a telex to its local branches informing them that the applicant intended to travel to Samara in connection with the EU-Russia Summit. It also communicated his train reservation details. Another telex sent on the same day by the Samara Interior Department of Transport indicated that the applicant was travelling to Samara to take part in the opposition rally “March of dissent” and might be carrying extremist literature.
12. On the same day, as soon as the applicant mounted the train at Nizhniy Novgorod station, three policemen entered his compartment, checked his identity documents and asked him questions about the purpose of his trip.
13. At Saransk station (the Mordoviya Republic) another identity check was conducted and the applicant was again questioned about the purpose of his trip. The policemen ordered the applicant to leave the train and follow them to the police station, but the applicant refused to comply. In the early morning of 14 May 2007, immediately after the train entered the Samara region, the applicant’s identity documents were checked for a third time.
14. When the applicant got off the train in Samara he was stopped by the police. The policemen checked his identity documents and took him to the police station, saying that it was necessary to look up his name in the police databases. They threatened to use force if the applicant refused to comply with their order.
15. The police drew up an attendance report, using a standard template entitled “Attendance report in respect of a person who has committed an administrative offence”. The phrase “who has committed an administrative offence” was struck through by the police officer who filled in the template. The report indicated that the applicant was brought to the police station on 14 May 2007 at 12.15 p.m. It was mentioned that he had been stopped on account of information received in telexes nos. TP 1149 and 26/4T2021 of 13 May 2007. He was questioned about the purpose of his trip and his acquaintances in Samara. He was released on the same day at 1 p.m.
16. It follows from the submissions by the police officer who escorted the applicant to the police station that he had received information from his superiors that the applicant intended to participate in an opposition rally and might be carrying extremist literature. He had stopped the applicant and escorted him to the police station in order to prevent him from committing administrative and criminal offences. He had warned the applicant that if he refused to comply, force would be used. He had asked the applicant questions about the purpose of his visit to Samara. The applicant had denied involvement in any extremist activities. He had not been searched because he had no luggage and it was clear that he was not carrying any extremist materials.
17. The applicant lodged complaints with the prosecutor’s offices of Nizhniy Novgorod, Mordoviya Republic and Samara Region.
18. On 15 June 2007 the Nizhniy Novgorod Transport Prosecutor’s Office refused to initiate criminal proceeding against the policemen who had questioned the applicant in Nizhniy Novgorod, finding that the applicant had voluntarily submitted to the identity check and questioning.
19. On 12 July 2007 the Ruzayevka Transport Prosecutor’s Office (the Mordoviya Republic) refused to initiate criminal proceedings against the policemen who had allegedly questioned the applicant at Saransk station. It found that on 13 May 2007 the Ruzaevka police station had received telex no. 26/4-T-2021 from the Volgo-Vyatskiy Interior Department of Transport, containing information that the applicant was going to Samara by train with the intention of taking part in an opposition rally and that he was suspected of carrying extremist literature. The police had searched the train but could not find the applicant.
20. On 23 July 2007 the Kuybyshevskiy Transport Prosecutor’s Office refused to open criminal proceedings against the policemen who had stopped the applicant in Samara. The prosecutor’s office found that the policemen had acted lawfully, in accordance with sections 2 and 10 of the Police Act (see paragraph 33 below). In particular, they had received information (telex no. 26/4-T-2021) about the applicant’s intention to participate in an opposition rally. There had therefore been reasons to believe that he might be involved in the commission of administrative offences, and it had been necessary to stop him and bring him to the police station.
21. On 24 May 2007 the applicant brought an action against the Volgo-Vyatskiy Interior Department of Transport before the Kanavinskiy District Court of Nizhniy Novgorod. He claimed that the telexes sent by the Volgo-Vyatskiy Interior Department of Transport to the local offices, requiring them to stop the applicant, check his identity documents and question him, had been unlawful for the following reasons:
- There had been no reason to check his documents or question him, as the police already had information about his identity, and the date and time of his arrival in and departure from Samara;
- There could be no suspicion of his intention to engage in any unlawful activities as, firstly, the rallies in Samara had been duly authorised by the town council and, secondly, he had planned to leave Samara before the date scheduled for the rallies;
- His name had been entered in the police database unlawfully, without prior judicial authorisation.
22. He further complained about his allegedly unlawful arrest and one-hour detention at the police station in Samara. He claimed that all the above actions had violated his right to respect for private life and his right to liberty and security, and had interfered with his human rights activities.
23. The Kanavinskiy District Court declared the application inadmissible, finding that the applicant had failed to submit supporting documents. This decision was subsequently quashed by the Supreme Court and the case was remitted to the Kanavinskiy District Court.
24. At the hearing the representative of the Volgo-Vyatskiy Interior Department of Transport testified that the applicant’s name had been registered in the Surveillance Database following an order from the Interior Department of the Nizhniy Novgorod Region. The police had therefore been entitled to take measures against him as specified in the Police Act and the Operative-Search Act. As to the identity checks in the Mordovia Republic and Samara Region, the Volgo-Vyatskiy Interior Department of Transport had no territorial jurisdiction over these local police offices.
25. At the applicant’s request the Interior Department of the Nizhniy Novgorod Region was joined as a co-respondent to the proceedings. Its representative informed the court that commission of criminal or administrative offences by a person was not a prerequisite for inclusion of his name in the Surveillance Database. The applicant’s name had been registered in that database on the basis of confidential information.
26. On 29 May 2008 the Kanavinskiy District Court dismissed the application. It found that section 11 § 4 of the Police Act and sections 2, 5, 6 and 7 §§ 2 (b) and 4 of the Operative-Search Act (see paragraphs 34 to 38 below) gave the police powers to check documents and question citizens in certain cases. In the applicant’s case the identity checks and the questioning had been justified by the fact that his name was registered in the Surveillance Database. The applicant had voluntarily replied to the questions asked by the police officers. No force or coercion had been used against him by the police officers in Nizhniy Novgorod. The Volgo-Vyatskiy Interior Department of Transport was not liable for the measures taken against the applicant by the police officers in the Mordoviya Republic and Saransk Region [the domestic court apparently meant Samara region], as it had no territorial jurisdiction over those regions. Finally, the court rejected the applicant’s request for an injunction to the Volgo-Vyatskiy Interior Department of Transport to delete his personal data from the police databases. The court found that the applicant’s personal data had been collected by the Interior Department of the Nizhniy Novgorod Region rather than by the Volgo-Vyatskiy Interior Department of Transport.
27. The applicant appealed, complaining in particular about insufficient reasoning. He submitted that the District Court had failed to give detailed answers to all his arguments.
28. On 7 October 2008 the Nizhniy Novgorod Regional Court upheld the judgment on appeal, endorsing the reasoning of the District Court.
29. On 8 December 2008 the applicant challenged the decision to register his name in the Surveillance Database before the Nizhegorodskiy District Court of Nizhniy Novgorod. He alleged, in particular, that that decision interfered with his right to respect for private life because it permitted the police to collect information about his trips. He was also regularly questioned by the police about the purpose of his trips, his income, his acquaintances and his political opinions. That interference was not necessary in a democratic society. Firstly, the Interior Ministry’s orders governing the creation and functioning of the Surveillance Database had not been published. Society did not know the procedures for its operation. According to the media, the database contained the names of more than 3,800 persons, the majority of whom were members of human rights and opposition groups. Secondly, the decision to register his name in the database had been arbitrary. He had never been suspected of any criminal or administrative offences, had never been involved in extremist activities and had never supported or called for violence. The registration of his name in the database was apparently connected with his human rights activities and his participation in opposition rallies. He also complained of a violation of his right to liberty. He had been unlawfully stopped by the police several times on the sole ground that his name was registered in the Surveillance Database.
30. On 22 April 2009 the Nizhegorodskiy District Court dismissed the applicant’s claims. It noted that the applicant’s name had been deleted from the database in September 2007. It continued as follows:
“The court considers that the Interior Department of the Nizhniy Novgorod Region had grounds for registering [the applicant’s] name in the Surveillance Database. It follows from [the] letter by a deputy head of the Department for Maintaining Order on Transport of the Interior Ministry of Russia that the Surveillance Database pursues the aim of collecting information about the purchase by the persons listed in it of travel tickets to places [where] mass events [are planned]. Thus, the Surveillance Database does not interfere with the private lives of those listed as [the database] contains only data on their trips in connection with their professional or public activities. The registration of a person’s name in the Surveillance Database cannot be considered as breaching his/her rights or freedoms or hindering the exercise of such rights and freedoms or imposing an unlawful obligation or liability.
... [the applicant] is the representative of the Moscow Helsinki Group, a public activist and the head of the Nizhniy Novgorod Human Rights Union. He organises round tables and seminars for human rights activists. In connection with his public activities he travels to many Russian towns. Thus, in May 2007 he travelled to Samara with the aim of investigating the restrictions on public assemblies during the G8 summit in the Samara region. The court considers that, taking into account [the applicant’s] public activities, the Interior Department of the Nizhniy Novgorod Region was entitled to register his name in the Surveillance Database because, in accordance with section 11 § 4 of the Police Act, when discharging their duties the police may require citizens and officials to provide explanations, information or documents...”
31. The Administrative Offences Code provides that a police officer may escort an individual to the police station by force for the purpose of drawing up a report on the administrative offence provided that it is impossible to do it at the place where that offence has been detected. The individual must be released as soon as possible. The police officer must draw up an “attendance report” or refer to the fact of escorting the individual to the station in the report on the administrative offence. The individual concerned must be given a copy of that report (section 27.2 §§ 1 (1), 2 and 3).
32. In exceptional cases a police officer may arrest an individual for a short period if it is necessary to ensure a correct and prompt examination of the administrative case and secure enforcement of the eventual penalty (Article 27.3 § 1 of the Code). The duration of such administrative arrest must not normally exceed three hours (Article 25.5 §§ 1 of the Code). The arresting officer must draw up “an administrative arrest report” (Article 27.4 of the Code).
33. The Police Act of 18 April 1992 (No. 1026-I) provides that the tasks of the police are, inter alia, the prevention and suppression of criminal and administrative offences and protection of public order and public safety (section 2). Their duties include the prevention and suppression of criminal and administrative offences, detection of circumstances conducive to commission of offences and taking measures to obviate such circumstances (section 10 § 1).
34. Section 11 of the Police Act provides that when discharging their duties the police may, in particular:
§ 2. check citizens’ identity documents if there are sufficient grounds to suspect that they have committed a criminal or administrative offence or have fled from justice; and search citizens and their belongings if there are sufficient reasons to believe that they possess weapons, ammunition, explosives or drugs;
§ 4. require citizens and officials to provide explanations, information or documents;
§ 5. arrest persons suspected of administrative offences or persons who have unlawfully entered or attempted to enter a secure area;
§ 7. arrest persons suspected of a criminal offence or persons who have been remanded in custody by a judicial order;
§ 8. arrest persons who have fled from justice;
§ 9. arrest persons who have evaded compulsory medical treatment or educational supervision;
§ 10. arrest minors suspected of criminal or administrative offences;
§ 11. arrest persons in a state of alcoholic intoxication if they have lost their ability to walk unaided or could cause harm to others or to themselves (section 11).
35. The Operational-Search Activities Act of 12 August 1995 (no. 144FZ) provides that the aims of operative search activities are: (1) the detection, prevention, suppression and investigation of criminal offences and identification of persons conspiring to commit, or committing, or having committed a criminal offence; (2) finding fugitives from justice and missing persons; (3) obtaining information about events or activities endangering the State, military, economical or ecological security of the Russian Federation (section 2).
36. State officials and organs performing operational-search activities are to show respect for the private and family life, home and correspondence of citizens. It is prohibited to perform operational-search activities to attain aims or objectives other than those specified in this Act (section 5).
37. Operational-search activities include, inter alia, questioning and identity check (section 6).
38. Section 7 of the Operational-Search Activities Act provides that operational-search activities may be conducted, inter alia, on the following grounds:
(1) pending criminal proceedings;
(2) receipt by the police of information
(a) that a criminal offence has been committed or is ongoing, or is being conspired, and about persons conspiring to commit, or committing, or having committed a criminal offence, if this information is insufficient to open criminal proceedings; (b) about events or activities endangering the State, military, economical or ecological security of the Russian Federation;
(c) about fugitives from justice;
(d) about missing persons or unidentified bodies;
...
(4) receipt of a request from another State agency which is performing operational-search activities on the grounds specified in this section (section 7).
39. The Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002) requires State agencies to take preventive measures against extremism to detect and eliminate causes of, and conditions for, extremist activities, as well as measures to detect, prevent and suppress extremist activities conducted by non-profit and religious organisations and persons (section 3).
40. Order no. 980, On measures for enhancement of the automatic information system used by the interior departments of transport, issued by the Interior Ministry on 1 December 1999 (unpublished, a copy was submitted by the Government), directed that a software database code-named “Search-Highway” (“Розыск-Магистраль”) be created and installed. Its purpose was to facilitate discovery of those suspected of criminal offences whose names were on the wanted persons’ list. It was to be linked to the databases of the railway and airline companies, so that whenever any of the persons listed bought a train or airplane ticket an automatic notification was sent to the police, thereby allowing the police to arrest that person.
41. Order No. 1070, On installing the software database “Search-Highway” in the interior departments of transport, issued by the Interior Ministry on 22 December 1999 (unpublished, a copy was submitted by the Government) provided that the database be installed in the first half of 2000. The appendix to that Order established the procedure for its operation. In particular, it established that the following persons should be included in the database: (1) persons on the Interpol Wanted Fugitives list; (2) foreign nationals or stateless persons whose names were put on the wanted persons’ list in connection with criminal offence committed on the territory of the Russian Federation; (3) foreign nationals whose entry into the Russian Federation was prohibited or restricted; (4) persons suspected of the following serious or especially serious offences: unlawful transportation of arms, ammunition or explosives; criminal explosions; unlawful traffic of antiques or their smuggling out of the Russian Federation; premeditated murders; terrorist acts; drug trafficking; financial crimes; (5) leaders of ethnic communities; leaders and active members of organised criminal groups.
42. Order no. 47, On certain measures intended to strengthen the fight against extremism, issued by the Interior Ministry on 14 April 2005 (unpublished), directed that a database of potential extremists be created as a part of the “Search-Highway” database. It was code-named “Surveillance Database” (“Сторожевой контроль”).
43. According to Mr Sh., an officer from the Volgo-Vyatskiy Interior Department of Transport whose affidavit was submitted by the Government, the decision to register a person’s name in the “Surveillance Database” is taken by the Interior Ministry or its regional departments on the basis of confidential information.
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-23355
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PITKÄNEN v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Pentti Pitkänen, is a Swedish national, who was born in 1934 and lives in Haninge. He is represented before the Court by Mr W. Pietikäinen, who lives in Johanneshov. The respondent Government are represented by their Agent Mrs Inger Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a refrigerator erector for many years. In October 1992 while welding he was exposed to phosgene as a result of a Freon leakage. Two weeks later he caught pneumonia. Having recovered therefrom, as from mid-November 1992 he suffered from headache, dizziness, fatigue and hypersensitivity in his left hand. On 23 June 1993 claiming that he had been exposed to an on-the-job injury the applicant requested that the Social Insurance Office in Stockholm (Försäkringskassan, Stockholms Län) pay him compensation and a life annuity (ersättning och livränta). The applicant’s medical records, a medical opinion of 28 May 1993 by a doctor at a clinic specialising in occupational medicine, and a statement of 16 October 1996 by the doctor attached to the Social Insurance Office in order to assist with medical matters, were submitted. Both doctors stated that a causal connection between the Freon leakage incident and the symptoms that the applicant later experienced was improbable. It appears that the applicant and his counsel attended a consultation with the Social Insurance Office. On 14 January 1997 the Social Insurance Office found against the applicant.
On appeal to the County Administrative Court in Stockholm (Länsrätten i Stockholm), the applicant, represented by counsel, requested that an oral hearing be held and that a witness on his behalf, a former refrigerator erector, be heard. He did not specify which issues he wanted to hear the witness about, except the fact “refrigerator erectors do not live long”. By decision of 31 January 1997 the court refused to hold an oral hearing since on the material before it such was found clearly unnecessary. The court indicated that the invoked witness could not contribute to the elucidation of the question whether there was a causal link between the applicant’s exposure to phosgene and his health problems, and held that the available written evidence was sufficient for a proper assessment of the applicant’s case. The applicant was given an opportunity to submit his final observation in the case no later than 3 March 1997.
On 6 February 1997 the applicant submitted his final observations, which included a fresh request that the witness be heard at an oral hearing in that “the best knowledge of industrial injuries comes from the workplace”. His request was refused on 19 February 1997 by the court, which on the same date delivered its judgment confirming the Social Insurance Office’s decision in the light of the material submitted i.e. the evidence which had also been submitted before the Social Insurance Office. Like the Social Insurance Office, the court did not question that the applicant had been exposed to phosgene, but found that no causal link existed between the exposure and the applicant’s medical problems.
The applicant requested leave to appeal and an oral hearing in the leaveto-appeal proceedings, including an examination of his witness. By decision of 27 May 1998 the Administrative Court of Appeal (Kammarrätten i Stockholm) stated as follows:
”The proceedings before the Administrative Court of Appeal are written. According to Section 9 of the Administrative Court Procedure Act (förvaltningsprocesslagen) the proceedings may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case. An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing.
Having regard to the nature of the case and the evidence submitted, the Administrative Court of Appeal finds that an oral hearing and a hearing of the witness is unnecessary, and thus refuses the [applicant’s] request...”
The applicant was given an opportunity to conclude his claim in writing and by decision of 28 January 1999 the Administrative Court of Appeal refused the applicant’s request for leave to appeal.
On 18 February 1999 the applicant submitted his request for leave to appeal to the Supreme Administrative Court (Regeringsrätten) before which he reiterated his request for an oral hearing and an examination of his witness. On 19 April 1999 the Supreme Administrative Court informed the applicant that oral hearings are not normally hold before it. Furthermore, the court invited the applicant to submit his final observations in the case within three weeks. By decision of 22 July 1999 the Supreme Administrative Court refused the applicant’s request for leave to appeal.
All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the Act on Industrial Injury Insurance (lagen om arbetsskadeförsäkring, 1976:380; hereinafter “the 1976 Act”). The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person’s place of work.
Pursuant to chapter 8, section 1 of the 1976 Act, an industrial injury shall immediately be reported to the employer, who shall report it to the Social Insurance Office. The office shall obtain a medical opinion concerning the injury. A physician shall be attached to the office in order to assist it in medical matters (the insurance doctor). The assessment of whether an injury qualifies as an industrial injury, as well as the degree of reduction of a person’s ability to engage in gainful employment, shall be made on the basis of the available medical opinions, the insurance doctor’s assessment of those opinions and any other information pertaining to the matter.
For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured persons’ health problems. At the relevant time, the question of whether a particular injury or illness incurred by the insured was to be regarded as an industrial injury was subject to a rule of evidence relieving the insured person of the burden of proof. If it was clear that the insured person had suffered an accident or had been subjected to some other harmful effect at work, his or her medical problems were presumed to have been caused by the accident or the harmful effect unless there were much stronger grounds for a conclusion to the contrary (chapter 2, section 2 of the 1976 Act in its wording before 1 January 1993, which applied to injuries having occurred before that date and which had been reported to the Social Insurance Office by 30 June 1993 at the latest).
The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (förvaltningsprocesslagen, lag 1971:291 - hereinafter “the 1971 Act”). Section 9 provides:
“The proceedings are in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.
According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).
It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).


ITEMID: 001-75535
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF WIENSZTAL v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1946 and lives in Radom.
9. The applicant was arrested on 24 August 1994 on suspicion of extorting protection money from an escort agency. By a decision of 26 August 1994 given by the Gdańsk Regional Prosecutor the applicant and other suspects were detained on remand. On 2 September 1994 the applicant’s lawyer appealed against the decision of 26 August 1994. His appeal was dismissed by a court on 8 September 1994.
10. On 24 October 1994 the Gdańsk Regional Prosecutor dismissed the applicant’s lawyer’s appeal of 19 October 1994 against the detention decision, considering that a number of witnesses had given evidence incriminating all the suspects. On 24 October 1994 the Gdańsk Regional Prosecutor ordered the applicant to undergo psychiatric observation.
11. On 10 November 1994 the Gdańsk Regional Court prolonged the applicant’s detention on remand until 21 January 1995, considering that the charges against the applicant were of a serious nature and that they had been supported by the evidence gathered in the proceedings. The court pointed out that the investigation had not yet been completed and that the group the applicant belonged to had brought improper pressure upon the witnesses to change their testimony.
12. On 21 November 1994 an expert opinion on the state of the applicant’s mental health was issued.
13. On 7 December 1994 the Gdańsk Court of Appeal dismissed the applicant’s lawyer’s appeal of 24 November 1994 against the decision of 10 November 1994 prolonging the applicant’s detention on remand. The court emphasised that there was a strong likelihood that the applicant might obstruct the proper course of the proceedings by inciting the witnesses to give false testimony. The court also stated that the applicant’s case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.
14. On 17 January 1995 the Gdańsk Regional Court prolonged the applicant’s detention on remand until 31 March 1995. It found that in view of the seriousness of the offence he was charged with, the strong probability of his guilt and the danger that he (or another member of the group) would exert additional pressure on the witnesses, the applicant’s detention was warranted. The court also pointed to the necessity of taking further evidence.
15. On 10 February 1995 the Gdańsk Regional Prosecutor dismissed the applicant’s lawyer’s request that the preventive measure be replaced by a more lenient one, considering that the grounds on which the detention on remand had been ordered had not ceased to exist. On 9 March 1995 the Gdańsk Appellate Prosecutor dismissed the lawyer’s appeal against this decision, relying on the grounds previously invoked by the courts.
16. By a decision of 21 March 1995 the Gdańsk Regional Court prolonged the applicant’s detention on remand until 30 June 1995. The court was of the opinion that the applicant’s detention was justified by the strong probability of his guilt, the necessity to obtain further evidence and the risk of pressure being brought to bear on the witnesses. On 5 April 1995 the applicant’s lawyer appealed against this decision. On 12 April 1995 the Gdańsk Court of Appeal upheld it, referring to the seriousness of the offence in question and the complexity of the case. The court remarked that the negative effect of the continuing detention upon his family situation was not such as to call for his release.
17. On 27 June 1995 the bill of indictment was lodged with the Gdańsk Regional Court against the applicant and eleven co-accused.
18. The court held hearings on 9, 16 and 23 November 1995. It heard the co-accused and several witnesses.
19. The hearing fixed for 11 January 1996 was adjourned due to the absence of the lawyer representing one of the co-accused. On 17 January 1996 another hearing was held. The court heard four witnesses.
20. At the hearing of 25 January 1996 the applicant lodged an application for release. The court refused, considering that his detention was justified by the existence of strong evidence of his guilt, the nature of the charges against him and a risk of interference with witnesses in order to influence their testimony. Moreover, conditions for release referred to in Article 218 of the Code of Criminal Procedure were not satisfied. The hearing was then adjourned in view of the absence of the applicant’s lawyer.
21. On 5 March 1996 the applicant appointed a new lawyer to represent him.
22. On 6 March 1996 the court held a hearing and heard seven witnesses.
23. On 15 March 1996, in a separate set of criminal proceedings, the applicant was sentenced by the Elbląg Regional Court to two and a half years imprisonment and a fine. He served his sentence between 15 March 1996 and 11 September 1997.
24. The hearing scheduled for 20 March 1996 was adjourned following a request of one of the lawyers. On 22 May and on 3 June 1996 the court held hearings. At the hearing held on 18 June 1996 the court dismissed the applicant’s request for release, referring to the gravity of the charges against him and considering that his case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. The hearing was adjourned due to the absence of one of the co-accused.
25. Hearings fixed for 7 and 21 August and 11 and 18 October 1996 were cancelled for various reasons, mostly because of the absence of defence lawyers. On 15 November 1996 the court held a hearing and heard four witnesses. The hearing scheduled for 22 November 1996 was adjourned because of the illness of one of the lawyers. The court dismissed the applicant’s request for release, considering that his continuing detention was necessary to ensure the proper conduct of the proceedings and that there were no grounds for releasing the applicant under Article 218 of the Code of Criminal Procedure.
26. On 30 December 1996 the Gdańsk Regional Court requested the Supreme Court to prolong the applicant’s detention until 30 June 1997, submitting that from 9 November 1995 until 22 November 1996 nineteen hearings had been fixed but only eight out of them had in fact been held. The adjournments had been ordered mainly due to the absence of defence counsel. The co-accused and 41 witnesses had been heard until then, nevertheless 65 witnesses remained to be examined. On 16 January 1997 the Supreme Court granted the Regional Court’s request, pointing to the complexity of the case and concluding that the delay in the proceedings could not be attributed to the Regional Court.
27. On 5 February 1997 the court held a hearing and heard 8 witnesses.
The hearing scheduled for 5 March and 16 April 1997 were adjourned due to the absence of one of the co-accused and the illness of some lawyers. On 4 June 1997 the court held a hearing and heard seven witnesses. The court did not allow the applicant’s request for release. The hearing scheduled for 11 June 1997 was adjourned due to the absence of some of the lawyers.
28. On 26 June 1997 the Gdańsk Regional Court lodged a request with the Supreme Court to prolong the applicant’s detention until 31 December 1997. The court submitted that hearings had been held on 5 February 1997 and on 4 June 1997. The hearings scheduled on 19 February 1997, 5 March 1997, 16 April 1997 and 11 June 1997 had been adjourned or cancelled because of the illnesses of the accused and the defending counsel. The court had heard 15 witnesses, but 50 other witnesses were still to be examined and the continuing detention was necessary to ensure the proper conduct of the proceedings. On 13 August 1997 the Supreme Court, relying on the grounds given above, prolonged the applicant’s detention. However, the limit of the duration of the detention was set at 1 December 1997 and not at 31 December 1997 as the Regional Court had requested.
29. The hearing held on 11 September 1997 was adjourned due to the absence of one of the co-accused.
30. On 16 September 1997 the Gdańsk Regional Court refused to release the applicant, observing that he had failed to indicate any new relevant circumstances in the case.
31. The hearing scheduled for 25 September 1997 was adjourned as one of the co-accused was ill.
32. The hearing scheduled for 1 October 1997 was adjourned because of the illness of the judge rapporteur.
33. The hearing held on 13 October 1997 was adjourned as two of the co-accused failed to attend.
34. On 25 November 1997 the Gdańsk Regional Court again requested the Supreme Court to prolong the applicant’s detention on remand. On 19 December 1997 the Supreme Court granted this request and prolonged the applicant’s detention on remand until 30 April 1998. The Supreme Court observed that a number of hearings had not been held due to the absence of either the co-accused or their defence counsel. Moreover, the composition of the court had to be changed owing to the illness of the presiding judge. The case was complex and multi-layered and the charges of a serious nature. In addition, some of the accused had contributed to the overall length of the proceedings by lodging motions with the court. In these circumstances, even though the proceedings in the case had been lengthy, the Regional Court could not be held responsible for this delay.
35. On 30 December 1997 the court decided to issue an arrest warrant in respect of the co-accused who had kept failing to attend hearings.
36. The hearings fixed for 7 January and 11 February 1998 were adjourned due to the absence of one of the co-accused.
37. On 25 February 1998, as a result of the change in its composition, the court recommenced the examination of the case. The co-accused did not agree to continue the proceedings with new judges. The court decided to exclude two of the co-accused who would not appear at the hearings. The court adjourned the hearing due to the absence of some of the lawyers.
38. On 12 and 26 March the court held hearings. It heard the co-accused and 13 witnesses. On 8 April 1998 the court adjourned the hearing as the applicant’s lawyer and other co-accused did not appear.
39. On 30 April 1998 the applicant was released under police supervision.
40. On 22 October 2002 the court gave a judgment by which the applicant was convicted as charged and sentenced to three years’ imprisonment.
41. At the material time, the 1969 Code of Criminal Procedure listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows:
“Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
42. Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows:
“A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”
Article 225 of the Code provided:
“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures are considered adequate.”
Article 217 of the Code, before it was amended on 1 January 1996, provided insofar as relevant:
“Detention on remand may be imposed if:
1. there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or
2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or
3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or
4. the accused was charged with the commission of an act which constituted significant danger to society.”
43. Pursuant to Article 218 of the “old” Code, if there were no special considerations to the contrary, detention on remand should not be imposed or should be lifted, if it involved danger to life or limb or entailed particular hardship for a suspect or his family.
44. Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set any statutory time-limits concerning detention on remand in court proceedings, but only in respect of the investigative stage.
45. Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided, insofar as relevant:
“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.
4. In cases where it is particularly justified the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”
Subsequently, point 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-70367
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KRAWCZAK v. POLAND (No. 1)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1950 and lives in Poznań, Poland.
5. On 17 June 1999 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody for a period of three months on suspicion that he had committed three counts of armed robbery. It considered that that measure was indispensable in order to secure the proper conduct of the proceedings, having regard to the serious nature of the offences in question and the severity of the anticipated penalty. Lastly, it considered that, given the way in which the offences in question had been committed, the applicant might attempt to induce witnesses to give false testimony.
6. During the investigation, the applicant's detention was prolonged several times.
7. On 19 August 1999 the Gdańsk Regional Court (Sąd Okręgowy) prolonged his detention until 16 December 1999, relying on the grounds originally given for his detention. It further referred to the need to take various investigative measures and obtain expert evidence. It also considered that the complexity of the case justified the prolongation of the applicant's detention with a view to securing the proper conduct of the investigation. The applicant appealed against that decision, relying on his poor health.
8. On 13 October 1999 the Gdańsk Court of Appeal (Sąd Apelacyjny) dismissed his appeal, having regard to the medical report of 28 September 1999 which concluded that the applicant could remain in detention.
9. On 8 December 1999 the Gdańsk Court of Appeal prolonged his detention until 16 June 2000, finding that it was highly probable that he had committed the offences with which he had been charged. In that respect, it referred to evidence given by a certain A.Ł., a member of the same criminal group, who acted as a witness against the other suspects. The Court of Appeal further relied on the need to obtain and secure evidence, in particular from experts in ballistics, biology and fingerprints. It stressed that it was also necessary to hold a reconstruction of the crime and to confront the suspects with each other. It also considered that the scale and the nature of the offences in question justified the applicant's continued detention. The applicant appealed against that decision.
10. On 8 February 2000 the Supreme Court (Sąd Najwyższy) dismissed his appeal. It had regard to the serious nature of the offences in question and the need to obtain further evidence. It further emphasised the complexity of the case and considered that the applicant's continued detention was the only measure which could secure the proper conduct of the proceedings.
11. On 24 May 2000 the Supreme Court extended the applicant's detention until 15 December 2000, considering that the strong suspicion against him of having committed the serious offences with which he had been charged, the severity of the anticipated sentence and the risk of his tampering with evidence justified holding him in custody. It found that the present case was “particularly complex” within the meaning of Article 263 § 4 of the Code of Criminal Procedure due to, inter alia, the nature of the offences and the number of suspects involved.
12. On 13 December 2000 the Gdańsk Court of Appeal prolonged the detention of the applicant and his 8 co-suspects pending investigation until 31 March 2001. On 7 March 2001 it ordered that the applicant be held in custody until 31 May 2001. It repeated the grounds stated in its previous decisions. It added that the prolongation of the applicant's detention was justified by the need to obtain DNA evidence.
13. On 15 May 2001 the applicant was indicted before the Gdańsk Regional Court on 12 charges, including several counts of armed robbery. The bill of indictment listed 120 charges brought against 19 accused, who were all detained on remand. The case-file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. The principal witness was a certain A.Ł., who was indicted together with all the defendants but gave evidence against them.
14. On 17 May 2001 the Regional Court prolonged the applicant's detention until 16 June 2001, reiterating the grounds that had been stated in the previous decisions. It considered that there was a risk that he might abscond or interfere with witnesses, having regard to the serious nature of the offences in question and the connections between the suspects.
15. Since on 16 June 2001 the applicant's detention reached the statutory time-limit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure, further prolongation of the applicant's detention was ordered by the Gdańsk Court of Appeal. The Court of Appeal relied on the particular complexity of the case as the ground for extending the applicant's detention beyond the statutory time-limit. The relevant decisions were given on 23 May 2001 (extending the applicant's detention until 31 October 2001), on 24 October 2001 (prolonging that period until 31 March 2002), on 13 March 2002 (ordering his continued detention until 30 September 2002), on 11 September 2002 (prolonging the detention until 31 December 2002), on 18 December 2002 (ordering his continued detention until 30 June 2003), on 25 June 2003 (extending the detention until 31 December 2003), on 17 December 2003 (prolonging it until 30 June 2004), on 23 June 2004 (ordering his continued detention until 31 December 2004), on 15 December 2004 (extending that period until 31 March 2005), on 30 March 2005 (ordering his continued detention until 30 June 2005) and on 22 June 2005 (prolonging his detention until 30 September 2005). As at the latter date, 8 of the 19 accused were still detained on remand and the trial court had heard most of the prosecution witnesses.
16. In all those decisions the Court of Appeal stated that the grounds originally given for the applicant's detention were still valid. It especially relied on the need to secure the proper conduct of the proceedings against any attempt by the applicant to obstruct the process of obtaining evidence. It stressed the exceptionally complex nature of the case and the fact that several hundred witnesses were to be heard.
17. In the meantime, the trial began on 28 December 2001. However, as at April 2002 the reading out of the bill of indictment by the prosecution was still continuing.
18. In its decision of 13 March 2002, the Court of Appeal found that holding the applicant and his seven co-defendants in custody was the only measure which would prevent them from obstructing the trial, having regard to the nature of the offences in question, the severity of the anticipated penalty and the fact that such attempts had been made in the course of the investigation. It also instructed the trial court to increase the number of hearings held per month.
19. In its decision of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence.
20. In its decision of 18 January 2005 dismissing the applicant's appeal against the decision of 15 December 2004 prolonging his detention, the Court of Appeal held that Article 258 § 2 of the Code of Criminal Procedure established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. It added that the risk of absconding or tampering with witnesses which existed in the present case did not have to be supported by any concrete facts, but resulted from the above presumption.
21. On 21 March 2005 the trial court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been released from detention, were to be tried separately from other defendants.
22. During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and unreasonable and that the charges against him lacked a sufficiently strong basis since they were founded on unreliable evidence from A.Ł.
23. It appears that the applicant is still in detention pending trial.
24. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).
25. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”
26. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
27. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
28. Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
29. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
30. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
31. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3