ITEMID: 001-105026
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: HEIDEMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: The applicant, Mr Jürgen Heidemann, is a German national who was born in 1958 and lives in Bedburg. He was represented before the Court by Ms S. Beyer, a lawyer practising in Cologne.
The applicant is the father of a son born on 31 August 1997. Following the parents’ separation in 2004, the child lived with his mother. The parents divorced in 2006, both parents jointly exercised parental authority. On 9 May 2005 the Kerpen District Court (Amtsgericht) appointed the Kerpen Youth Office as curator (Ergänzungspfleger) with the task to organise contacts between the applicant and the child.
On an unspecified date the applicant, represented by counsel, instituted contact proceedings with the Kerpen District Court.
On 25 May 2007 the District Court commissioned a psychological expert to examine whether contacts between father and son were contrary to the child’s best interests and in which way contacts could be prepared and established.
On 28 May 2008 the expert, having examined both parents and the child, submitted his expert opinion. He considered that the child had been traumatised by the “pathogenic, tense and hostile (lebensfeindliche)” atmosphere which prevailed within the family prior to his parents’ separation. As a consequence of this, he was deeply disturbed on an emotional level and with regard to his ability to bond. Even before his parents’ separation, he had not been able to build an enduring relationship with his father. Following the parents’ separation, and supported by psychotherapeutic measures, he was able to emotionally stabilise. He felt safe with his mother. It was subjectively impossible for him to entertain contacts with his father, as he unconsciously made a connection between his father and the extremely unfavourable circumstances of his early childhood. As a result, he felt massively threatened by his father and refused any contact with him. The expert further noted that the child’s personality development remained endangered. He considered that any contacts and any form of preparation of contacts between the child and his father would jeopardise his positive development because of the imminent danger of re-traumatisation. It was necessary to grant the child a period of respite of at least three years in order to allow him to further stabilise and to pursue his positive development.
On 16 and 25 July 2008 the applicant submitted his comments. He alleged, in particular, that the child’s mother systematically prevented contacts between father and child. He further submitted that the expert had based his recommendation on false and incomplete facts.
During a hearing which took place on 2 September 2008 the child’s curator ad litem stated that the child’s rejection of his father was so extreme that he did not know how to mitigate it. He considered that forced contacts between father and son could jeopardise the child’s well-being. The applicant’s counsel requested the District Court to hear further expert opinion.
On 18 November 2008 the expert stated that the tape recordings he had made of his examination interview were not comprehensible enough to allow for a transcript. However, the applicant’s factual objections, even assuming they were correct, were irrelevant for the outcome of the expert examination. Furthermore, there was no indication that the child had been influenced by his mother or that he was suffering from the so-called “parental alienation syndrome”.
The expert considered that it was presently impossible to establish contacts between father and son. It was essential to grant the child a time of respite in order to allow him to continue his positive development; this included his protection from further expert examination.
On 2 December 2008 the District Court rejected the applicant’s request for personal contact and merely allowed the applicant to contact his son in written form and by telephone on specific holidays; it further obliged the mother to inform the applicant on his son’s development and to encourage him to get in touch with his father.
The District Court noted that contacts between father and son had been increasingly problematic and no immediate contacts had taken place for a longer period of time. While section 1684 of the Civil Code (see relevant domestic law, below) granted the parent a right of contact to his child, such contacts primarily had to serve the child’s best interests and well-being. In this respect, the court noted that the expert had insistently and convincingly advised against forced personal contacts between father and son. This assessment was in line with an expert opinion submitted by another psychological expert in the preliminary proceedings. The expert’s recommendation was further supported by the child’s curator ad litem and the Youth Office and was in line with the impression the court had gained through hearing the child in person. According to all these sources, the child vehemently refused any contact to his father, felt massively threatened by such contacts and reacted to the mere mentioning of such contacts by showing clear signs of psychological disturbance. It followed that any personal contacts between father and son would be seriously opposed to the child’s best interests.
The District Court further considered that the applicant’s objections against the expert opinion were irrelevant with respect to the question at issue. It was not the court’s task to examine the deeper reasons for the child’s refusal of contact unless those were based on the other parent’s conduct. In his expert opinion, the expert had examined the reasons for the child’s refusal and had stated that the mother was not responsible for the child’s attitude. A further examination would be out of proportion as it was not necessary to decide the legal questions raised by the case.
On 25 March 2009 the Cologne Court of Appeal (Oberlandesgericht) rejected the applicant’s appeal and suspended the applicant’s right to personal contacts to his son until the end of the year 2011. Applying Section 1684 § 4 (1) of the Civil Code and relying on the expert opinion, which was corroborated by the statements made by the curator ad litem and by the Youth Office, the Court of Appeal considered that a suspension of personal contacts for a period of three years was indicated in order to allow the applicant to examine the impact of his contacts on his son and in order to reduce the risks for the child’s development.
On 22 September 2009 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint.
According to Article 1684 subsection 1 of the Civil Code, a child is entitled to have contact with his or her parents; each parent is obliged to have contact with, and is entitled to such contact with, the child.
Pursuant to subsection 2, each parent is obliged to refrain from any actions which could disturb the relationship of the other parent with the child.
The family courts can restrict or suspend a parent’s rights of contact if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s welfare would be jeopardised (Article 1684 § 4).


ITEMID: 001-70855
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GORSHKOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Not necessary to examine under Art. 13
JUDGES: Zoryana Bortnovska
TEXT: 8. The applicant was born in Orenburg, Russia, in 1954. He currently resides in Simferopol, the Crimea.
9. In 1984 the applicant was convicted of attempted rape. However, he was exempted from serving his sentence on the grounds of diminished responsibility and underwent compulsory medical treatment in a psychiatric hospital from 1984 to 1986.
10. On 9 September 1990 the applicant again attempted to commit rape.
11. On 9 April 1991 the Zheleznodorozhny District Court of Simferopol (the “Zheleznodorozhny Court”) ordered the applicant to undergo compulsory medical treatment in a psychiatric hospital under close supervision. This decision was not appealed and became final. He was detained in the Dnepropetrovsk Specialised Psychiatric Hospital.
12. On 24 November 1997 the psychiatric commission recommended that the applicant be transferred to a hospital with strict supervision (a higher level than the previous one).
13. On 2 December 1997 the Krasnogvardejsky District Court of Dnepropetrovsk allowed the petition lodged by the chief psychiatrist of the Dnepropetrovsk Regional Health Department. It quashed the decision of 9 April 1991, but decided that the applicant should continue to undergo compulsory medical treatment under close supervision. This resolution was not appealed and became final.
14. From 11 September to 14 December 1997 the applicant remained in detention in the Dnepropetrovsk Specialised Psychiatric Hospital under close supervision.
15. From 15 December 1997 until 20 January 1999 the applicant was under compulsory medical treatment with close supervision in the Crimean Republican Psychiatric Hospital (the “CRPH”).
16. On 17 December 1998 the CRPH lodged a request with the Zheleznodorozhny Court that the applicant’s regime be reduced to ordinary supervision.
17. On 6 January 1999 the Zheleznodorozhny Court decided that the applicant should be placed under ordinary supervision in the psychiatric hospital since his behaviour had improved.
18. On 12 July 1999 the Zheleznodorozhny Court refused an application by the Chief Psychiatrist of the Ministry of Health of the Crimea (the “Chief Psychiatrist”), based on a medical report dated 3 June 1999, to terminate the applicant’s compulsory medical treatment since his state of health had improved. In particular, it referred to the gravity of the offence committed by the applicant.
19. On 19 August 1999 the applicant’s lawyer lodged a cassation appeal with the Supreme Court of the Crimea. On 30 August 1999 this court upheld the decision of 12 July 1999. In particular, it ruled that the requests for release were unsubstantiated as the applicant had not fully recovered from his mental illness.
20. On 14 March 2000 the Zheleznodorozhny Court rejected a further application by the Chief Psychiatrist lodged on the basis of the conclusions of the applicant’s medical examination on 13 January 2000, as being unsubstantiated.
21. On 20 March 2000, the applicant’s lawyer lodged an appeal in cassation with the Supreme Court of the Crimea. On 4 April 2000 the court upheld the decision.
22. On 10 July 2000 the Chief Psychiatrist lodged another application with the Central District Court of Simferopol (the “Central Court”) seeking to quash the compulsory medical treatment of the applicant and to transfer him to a regime of ordinary supervision. On 1 September 2000 the Central Court rejected this application for lack of substantiation and, on 31 October 2000, the Supreme Court of the Crimea upheld that decision.
23. On 15 March 2001 the psychiatrist of the CRPH lodged an application with the Zheleznodorozhny Court seeking to quash the compulsory medical treatment imposed on the applicant. He also requested that the court order the applicant’s transfer to an ordinary supervisory regime. On 7 May 2001 the Central Court rejected this application as unsubstantiated. In particular, it noted the gravity of the crime committed by the applicant and the fact that he was a repetitive offender. The court further held that the conclusions of the medical commission were insufficient to quash the compulsory treatment measure.
24. On 21 September 2001 the Head of the Medical Department of the CRPH lodged an application with the Zheleznodorozhny Court, seeking to end the compulsory medical treatment of the applicant and to transfer him to a regime of ordinary supervision.
25. On 23 October 2001 the Zheleznodorozhny Court allowed the application and decided that treatment could be given to the applicant under ordinary supervision, since his state of health had improved. The resolution of 23 October 2001 was not appealed and became final.
26. The applicant was released from the psychiatric hospital on 8 November 2001.
27. The relevant provisions of the Constitution of Ukraine read as follows:
“Human and citizens’ rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
28. The relevant provisions of the Criminal Code read as follows:
“... 2. A person, who, during the commission of an act generally deemed to be dangerous by the present Code, was not criminally responsible, that is, not able to account for himself or his own actions (omissions) as a consequence of chronic mental illness, temporary disturbance of mental activity, feeble-mindedness, or other mental disorder, shall not be liable to criminal sanctions. ...”
“1. A person deemed by a court to be of diminished responsibility, so that, at the time of committing an offence, he was not fully capable of accounting for and controlling his own actions (or omissions) as a consequence of a mental disorder ..., shall be subject to criminal sanctions.
2. The fact that a person has been held to be of diminished responsibility shall be taken into account by a court when deciding on the imposition of a penalty and may be a ground for the application of compulsory measures of a medical character.”
“1. A person who has committed a crime shall be exempted from criminal responsibility in the instances provided for by the present Code, and also on the basis of an amnesty law ... or a pardon.
2. Exemption from criminal responsibility in the instances provided for by the present Code shall be ordered exclusively by a court. The procedure for exemption from criminal responsibility shall be established by law.”
“Compulsory measures of a medical character shall be: the provision of outpatient psychiatric assistance; the placement of a person who has committed a socially dangerous act, falling within the scope of the Special Part of the present Code, in a specialised institution for the purpose of compulsory treatment, and the prevention of the commission of socially dangerous acts by a person.”
“Compulsory measures of a medical character may be applied by a court to persons who have
... (2) committed offences in a state of diminished responsibility; ...”
“1. Depending on the character and gravity of the illness, the gravity of the act committed, and taking into account the degree of danger a mentally ill person presents to himself or to other persons, a court may apply the following measures of a medical character:
(1) compulsory provision of outpatient psychiatric assistance;
(2) hospitalisation in a psychiatric institution under ordinary observation;
(3) hospitalisation in a psychiatric institution under close observation;
(4) hospitalisation in a psychiatric institution under strict observation.
2. Compulsory provision of outpatient psychiatric assistance may be ordered by a court with respect to a person suffering from a mental disorder who has committed a socially dangerous act if the person, by reason of his mental state, does not require confinement in a psychiatric institution.
3. Hospitalisation in a psychiatric institution under ordinary observation may be ordered by a court with respect to a mentally ill person who, on account of his mental state and the nature of the socially dangerous act committed, requires confinement and compulsory treatment.
4. Hospitalisation in a psychiatric institution under close observation may be ordered by a court with respect to a mentally ill person who committed a socially dangerous act not connected with an attempt on the life of other persons and who, on account of his mental state, does not represent a threat to society but requires confinement in a psychiatric institution and treatment under conditions of close observation.
5. Hospitalisation in a psychiatric institution under strict observation may be ordered by a court with respect to a mentally ill person who has committed a socially dangerous act connected with an attempt on the life of other persons, and also with respect to a mentally ill person who, on account of his mental state and the nature of the socially dangerous acts committed, represents a special danger to society and requires confinement in a psychiatric institution and treatment under conditions of strict observation.
6. If the application of compulsory measures of a medical character to a mentally ill person is not deemed to be necessary, and, likewise, in the event of the termination of the application of such measures, a court may place him in the care of relatives or guardians under compulsory medical observation.”
“1. The extension, modification or termination of the application of compulsory measures of a medical character shall be ordered by a court upon an application by a representative of the institution (or a psychiatrist) providing the treatment, to which application shall be appended the opinion of a commission of psychiatrists substantiating the need to extend, modify or terminate the application of such compulsory measures.
2. Persons subject to compulsory measures of a medical character shall be examined by a commission of psychiatrists not less than once every 6 months in order to decide whether there are grounds for applying to a court to terminate or modify the application of such measures. If there are no grounds for terminating or modifying the application of a compulsory measure of a medical character, the representative of the institution (or the psychiatrist) rendering psychiatric assistance to the person shall send to the court an application, to which shall be appended the opinion of the commission of psychiatrists substantiating the need to extend the compulsory measures. If it is necessary to extend the application of a compulsory measure of a medical character for more than 6 months, the representative of the [competent] institution (or the psychiatrist) ... must apply to the court in the place where the institution is located for that extension. To the application shall be appended the opinion of the commission of psychiatrists substantiating the need to continue the provision of psychiatric assistance to the person. Thereafter, the application of a compulsory measure of a medical character shall be extended each time for a term which may not exceed 6 months.
3. If the application of compulsory measures of a medical character is terminated because of an improvement in the person’s mental state, a court may transfer him to the care of relatives or guardians under compulsory medical observation.”
“1. Compulsory treatment may be ordered by a court irrespective of the sentence given to persons who have committed crimes and suffer from an illness representing a danger to the health of other persons.
2. If the sentence takes the form of a deprivation or limitation of liberty, compulsory medical treatment shall be provided at the place where the sentence is being served. If other types of penalties are imposed, compulsory treatment shall be provided in specialised institutions.”
29. The prolongation or termination of the compulsory medical treatment of internees in mental hospitals, in the period from 11 September 1997 to 4 April 2000, were regulated by the Soviet legislation in force at the material time (the Decree of the Verkhovna Rada of Ukraine of 12 September 1991 “on the temporary operation of certain legislative acts of the USSR in the territory of Ukraine”).
Under the Decree of 5 January 1988 of the Presidium of the Supreme Council of the USSR that approved the Regulation “on the conditions and procedure for providing psychiatric medical assistance”, and the Order of 25 March 1988 No. 225 of the Ministry of Health of the USSR which approved a Temporary Instruction “on the procedure for applying compulsory medical treatment to mentally ill persons who have committed socially dangerous acts”, such compulsory patients were, in practice, unable to have any judicial review of the lawfulness of their detention instituted on their own initiative. However, the head of the competent psychiatric hospital was obliged to lodge a request for the prolongation or termination of the compulsory psychiatric treatment within ten days from the date of the examination of the internee by a medical commission recommending that approach (paragraph 31 of the Temporary Instruction). The commission had to review the state of health of the internees every six months (paragraph 33 of the Temporary Instruction).
Since the Psychiatric Medical Assistance Act 2000 (paragraph 30 below), the Ukrainian domestic law provides for frequent judicial review of the internees’ continued detention, at least every six months, on the initiative of the responsible medical officers. Extracts of the relevant legislation are reproduced below.
30. The relevant extracts from the provisions of the Psychiatric Medical Assistance Act read as follows:
“Measures of compulsory medical treatment shall be applied by a court decision in accordance with the procedure laid down in the Criminal Code, the Code of Criminal Procedure, this law and other laws.
In accordance with the decision of the court, the following measures of compulsory medical treatment may be applied:
(1) compulsory provision of outpatient psychiatric assistance;
(2) hospitalisation in a psychiatric institution under ordinary supervision;
(3) hospitalisation in a psychiatric institution under close supervision;
(4) hospitalisation in a psychiatric hospital under strict supervision.
Continuation, modification or termination of the compulsory medical treatment shall be ordered by the court on the basis of an application by a representative (psychiatrist) of the psychiatric hospital that provides medical treatment to the person.
Persons subject to measures of compulsory medical treatment shall be examined by a commission of psychiatrists not less than once every 6 months to determine whether there are grounds for applying to the court to terminate or modify the application of such measures. If there are no grounds for [such] termination or modification ..., the representative of the psychiatric institution ... shall send the court an application, to which shall be appended an opinion of the commission of psychiatrists substantiating the need to continue the application of the compulsory measures... If it is necessary to continue the application of the measures of compulsory medical treatment for more than six months, the representative of the psychiatric institution ... shall apply to the court in the place where the psychiatric institution is located to continue the compulsory measures. The application shall be supplemented with the conclusions on the patient’s examination by the psychiatrists who consider it necessary to continue the application of such measures. Thereafter, the application of such measures may be extended for a term that may not exceed six months.
A decision whether to modify or terminate the application of compulsory measures of medical treatment shall be given by the court if there is a change in the state of health of the person which necessitates a change in the applicable measures.”
“An assessment of the person’s mental state (including medico-social assessments of any loss of the ability to work, military medical examination, etc.) shall be conducted on the basis of, and in accordance with, the procedure established by legislation and other legal instruments adopted in accordance with legislation.”
“Psychiatric examinations in administrative, criminal and civil cases shall be ordered and conducted on the basis and in the manner prescribed by law.”
31. The relevant extracts from the provisions of the Code of Criminal Procedure read as follows:
“The compulsory measures of medical treatment, laid down in Article 94 of the Criminal Code, shall be applied to those persons specified in Article 93 of that Code.
The compulsory measures of medical treatment shall be applicable only to persons who are socially dangerous.”
“Termination or modification of compulsory measures of medical treatment may take place only on the basis of a ruling by the court or a resolution of the judge who applied these measures, or by the court at the place where treatment is provided.
Termination or modification of the applicable compulsory measures of medical treatment may take place [regarding] a person who committed a socially dangerous act ... if, as a result of changes in his state of health, the need to apply the ... measures ... has disappeared.
Consideration of whether to apply the compulsory measures of medical treatment shall be conducted in accordance with Article 419 of this Code on an application by the chief psychiatrist of the health-protection body that is supervising the relevant medical institution where the person concerned is held. The conclusion of the commission of psychiatrists shall be attached to the application.”
“An appeal or cassation appeal or an appellate or cassation petition by the prosecutor (апеляційне чи касаційне подання прокурора) against the ruling or resolution adopted by a judge or a court in the manner laid down by this Chapter, shall be introduced in the ordinary manner.”
32. The relevant extracts from the provisions of Decree no. 397 of the Ministry of Health read as follows:
“... 14. If there is a substantial improvement in the state of a person’s mental health, or if he recovers, or if the results of a psychiatric examination reveal doubts as to the existence of the mental illness, the commission of psychiatrists of the relevant institution shall issue conclusions to that effect, that shall be sent by the director of the psychiatric hospital, before the end of the six-month term, to the court that delivered a decision in the case, for consideration in its review in accordance with the applicable legislation.
15. The continuation, modification or termination of the applicable compulsory measures of medical treatment shall be ordered by the court on an application by the representative of the psychiatric hospital ... that provides medical treatment to the person. ...
16. ... the application of the psychiatrist shall be sent to the court, together with the record of psychiatric examinations, not later than ten days from the adoption of the relevant court decision....”
33. The relevant extracts from the instruction of the Ministry of Health Protection provide as follows:
“1. The compulsory measures of medical treatment, provided for by legislation shall be applied on the basis of a ruling by a court or a resolution of a judge to persons with mental illnesses who have committed socially dangerous acts (hereinafter – persons), and shall be implemented by the health protection institutions. ...
8. Compulsory measures of medical treatment shall be applied where it is established that a mentally ill person constitutes a danger to society, on the basis of:
(1) legal criteria - the fact of committing a socially dangerous act, specified by the criminal legislation; and
(2) medical criteria - the presence in a person of a mental illness that precludes the person’s ability to understand his actions and to control them at the time at which the case is considered on its merits.
In the absence of one of the above criteria, the imposition of compulsory measures of medical treatment shall not be possible. ...
43. Issues pertaining to the continuation, modification or termination of the application of compulsory measures of medical treatment shall be decided by a court on an application by a representative of the relevant psychiatric institution, to which the substantiated conclusions of the commission of doctors shall be attached. ...
48. The termination or modification of compulsory measures of medical treatment may be ordered on the basis of information as to positive changes in a person’s mental state or the person’s recovery, as reflected in the “Record of Psychiatric Examination”, as a result of which the danger of the person to society has decreased or disappeared, and there is no longer any need to keep and treat him in a psychiatric institution. The final decision shall be taken by the court.
The gradual annulment of a compulsory measure by way of a change from a stricter measure to a lighter one shall not be necessary. ...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-71747
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF JASIŃSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;No violation of Art. 6-1;Pecuniary and non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1958 and lives in Zabrze, Poland.
9. On 8 January 1994 the applicant was arrested by the police on suspicion of having committed burglary. On 10 January 1994 he was brought before J.K., a district prosecutor from the Pszczyna District Prosecutor’s Office (Prokuratora Rejonowa), charged with six counts of burglary and detained on remand. The prosecutor considered that there was a reasonable suspicion that the applicant had committed the offences in question because he had been arrested in flagrante delicto. He also relied on the serious nature of the offences in question.
10. On 12 February 1994 the Pszczyna District Prosecutor prolonged the applicant’s detention until 8 March 1994 on the ground that it was necessary to secure the proper conduct of the proceedings. The prosecutor stressed that in the light of evidence gathered during the investigation it was likely that the applicant had also committed other, similar offences and that, in turn, justified a risk that he might obstruct the process of obtaining evidence from witnesses.
11. On 25 February 1994 the District Prosecutor prolonged the applicant’s detention until 8 April 1994, considering that it was necessary to secure the conduct of the investigation, especially as fresh evidence needed to be obtained.
12. On 30 March 1994, on an application made by the Pszczyna District Prosecutor, the Pszczyna District Court (Sąd Rejonowy) prolonged the applicant’s detention until 8 June 1994 in view of the reasonable suspicion that he had committed the offences with which he had been charged and the fact that the investigation could not be completed because evidence from a fingerprint expert and yet another forensic expert needed to be obtained.
13. On 30 May 1994, on the subsequent application by the District Prosecutor, the Pszczyna District Court prolonged the applicant’s detention until 8 August 1994. It found that such further prolongation was necessary to secure the process of obtaining fresh evidence, especially as several new charges of burglary had in the meantime been laid against the applicant. Moreover, evidence from an expert-valuer needed to be obtained to determine the damage caused by the offences.
14. On 4 August 1994, on a further, similar application by the District Prosecutor, Z.R., a single judge sitting as the Pszczyna District Court, prolonged the applicant’s detention until 8 September 1994. The reasons for that decision read, in so far as relevant:
“[The applicant] was charged with the offence defined in Article 208 read in conjunction with Article 60 § 1 of the Criminal Code. In the light of the material gathered in the case, that charge has a sufficient degree of verisimilitude (zarzut ten został w wystarczającym stopniu uprawdopodobniony). As it emerges from the case-file, new circumstances have arisen which might indicate that it would be necessary to obtain evidence from psychiatrists in order to establish the suspect’s criminal responsibility. That being so and since in this court’s opinion the grounds given for [the applicant’s] detention have not ceased to exist but new circumstances have appeared that make it impossible [for the prosecution] to terminate the investigation, it has been held as in the operative part of the decision.”
15. On 29 August 1994 the Pszczyna District Prosecutor lodged a bill of indictment with the Pszczyna District Court. The applicant was indicted on 22 charges of burglary.
16. On 19 September 1994 the applicant made an application for release to the Pszczyna District Court. On 20 September 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed the application. The reasons for this decision read, in so far as relevant:
“The accused, asking [the court] for the preventive measure [imposed on him] to be varied, submitted that the mother of his minor son was not providing the child with the proper care. This court dismisses his application since the actus reus of the accused is characterised by a high degree of danger to society (“zarzucany czyn oskarżonego charakteryzuje się wysokim stopniem społecznego niebezpieczeńtwa”) – the accused is amenable to the law under the rules governing relapse into crime defined in Article 60 § 1 of the Criminal Code. The likelihood of the facts adduced by the accused [in his application] has by no means been shown by him. The court could not, therefore, verify those facts. ...”
17. The applicant appealed. He maintained that he should be released in view of the difficult situation of his family. On 21 October 1994 the Katowice Regional Court (Sąd Wojewódzki) dismissed his appeal. It found that there were no valid reasons to release the applicant because his child had already been placed under the care of the grandparents.
18. The applicant’s trial was to begin on 7 December 1994 but it was postponed because the applicant, having found out that Z.R. had been appointed to sit as the presiding judge, challenged his impartiality. In the applicant’s submission, the judge – who had dealt with his applications for release at the investigation stage – had actively participated in the investigation, and had consequently become a party to the proceedings. In particular, the applicant stressed that Z.R. had made the decision of 4 August 1994 prolonging his detention. On 20 September 1994 he had also dealt with, and dismissed, his application for release. On these occasions the judge had evaluated the charges against him and concluded that they had been justified. He had also referred to such aggravating circumstances as the serious nature of the offences in question and the applicant’s criminal record. All those findings were closely related to the assessment of his guilt, criminal liability and to the anticipated sentence. In view of that, the applicant considered that it was clear that the judge had already formed a preconceived opinion on his guilt.
19. On 9 December 1994 a panel of three judges, sitting as the Pszczyna District Court, dismissed the applicant’s challenge as being groundless. The court stressed that the taking decisions on prolongation of detention made at a prosecutor’s application was not tantamount to the taking part in an investigation.
20. Subsequently, the applicant again asked the Pszczyna District Court to release him under police supervision in view of the difficult situation of his family. He also complained that Z.R. lacked impartiality.
On 12 December 1994 Z.R., sitting as the Pszczyna District Court, dismissed the application. The reason for that decision read, in so far as relevant:
“The arguments presented by the accused in relation to his family situation are identical to those adduced in his application of 19 September 1994. They were already examined by the courts at first and second instance. The Regional Court, in its decision of 21 October 1994, indicated to the applicant the way in which care over his child could be secured. Since in this court’s opinion there are no circumstances listed in Article 218 of the Code of Criminal Procedure and the arguments relating to the disqualification of the presiding judge were already dealt with in the [District] Court’s decision of 9 December 1994 - it should be held as in the operative part of the decision.”
21. On 21 December 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed the applicant’s fresh application for release on bail. The reasons for the decision read, in so far as relevant:
“The accused has been charged with numerous counts of burglary committed in the circumstances of relapse into crime specified in Article 60 § 1 of the Criminal Code. The offence with which he was charged is characterised by a high degree of danger to society. Bail proposed by the accused cannot, in this court’s opinion, secure the proper conduct of the trial.
It should be pointed out that both the fact that an offence has been committed in the circumstances of relapse into crime and the serious danger to society [represented by the offence] are autonomous prerequisites for imposing detention on remand (cf. Article 217 § 1 (3) and (4) of the Code of Criminal Procedure) - in respect of the accused those prerequisites exist cumulatively. ...”
22. On 13 January 1995, on the applicant’s appeal, the Katowice Regional Court upheld the above decision, finding that his detention was justified under Article 217 § 1 (3) and (4) of the Code of Criminal Procedure and that no special circumstances militated in favour of his release.
23. On 25 January 1995 the applicant asked the Pszczyna District Court to quash the detention order. In his view, his detention had become unlawful as the statutory-time limit of one year for detention on remand laid down in the Code of Criminal Procedure had expired.
24. On 31 January 1995 judge Z.R. dismissed the application as groundless and informed the applicant that the time-limits for detention on remand applied only to the investigative stage of criminal proceedings but there were no such statutory terms for detention pending trial. That decision was upheld on appeal on 1 March 1995.
25. On an unspecified date, the applicant again challenged the presiding judge. He repeated his previous arguments. The challenge was dismissed by the Pszczyna District Court on 13 February 1995. In the court’s opinion, the arguments adduced by the applicant did not justify disqualifying the presiding judge from dealing with the case.
26. Later, the applicant asked the District Court to quash the detention order made by the Pszczyna District Prosecutor on 10 January 1994. He argued that that decision was valid only for a period of one year. He also submitted that he should be released on account of the difficult situation of his family.
27. On 6 March 1995 judge Z.R. dismissed the application and upheld the impugned detention order. Referring to the applicant’s family situation, the judge observed that such arguments as the fact that the applicant’s son was not – allegedly – being provided with the proper care had to be rejected because the child was under the care of his grandmother. Finally, Z.R. stressed that the reasons previously given to justify the applicant’s detention were still valid.
28. On 15 March 1995 a panel consisting of Z.R., the presiding judge, and two lay judges, sitting as the Pszczyna District Court, opened a trial in the applicant’s case
29. On 14 April 1995 the final hearing was held. The prosecution was represented by J.K., who had detained the applicant on remand on 10 January 1994. After hearing the parties’ final submissions, the court gave judgment. It convicted the applicant of 23 counts of burglary and sentenced him to 4 years’ imprisonment and a fine of 2,000 Polish zlotys, convertible into 20 days’ imprisonment.
30. On 13 July 1995 the applicant’s lawyer appealed against that judgment. The appeal was directed against the sentence imposed and the conviction was not as such contested.
31. On 18 July 1995 the applicant appealed. In his appeal, he alleged, among other things, that the trial court had violated the principles of the presumption of innocence and in dubio pro reo because the presiding judge Z.R. had considered him guilty and had had a preconceived view on his criminal liability long before the end of the trial, i.e. already on 4 August 1994, when he had prolonged his detention at the District Prosecutor’s request.
32. The appeals were heard on 3 October 1995 before the Katowice Regional Court. On the same day the Regional Court upheld the firstinstance judgment.
33. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 Code of Criminal Procedure (“the Code”) (Kodeks postępowania karnego) entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.
34. Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes (“the 29 June 1995 Law”) entered into force) at the investigation stage of criminal proceedings detention on remand was imposed by a prosecutor.
35. Article 210 §§ 1 and 2 of the Code (in the version applicable at the material time) stated:
“1. Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.
2. A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect. Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect.”
36. Under Article 212 § 2 of the Code a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal.
37. Chapter III of the Code entitled: “Parties to proceedings, defence counsel, representatives of the victims and representatives of society” described a prosecutor as a party to criminal proceedings. Under all the relevant provisions of the Code taken together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. As regards the general position of the prosecution, at the material time they were not independent from the executive since the Minister of Justice carried out the duties of the Prosecutor General.
38. Article 217 § 1 defined grounds for detention on remand. The relevant part of that provision, in the version applicable at the material time, provided:
“1. Detention on remand may be imposed if:
...
(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or
(4) an accused has been charged with an offence which creates a serious danger to society.
...”
39. Article 218 stated:
“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:
(1) it may seriously jeopardise the life or health of the accused; or
(2) it would have serious repercussions for the accused or his family.”
40. At the material time Chapter VIII of the Criminal Code of 1969 (which was repealed on the same date as the 1969 Code of Criminal Procedure referred to above), entitled “Relapse into crime” (Powrót do przestępstwa), contained special rules relating to sentencing repeat offenders (in Poland, they are more commonly referred to as “recidivists”, i.e. “recydywiści”).
The finding that a person “relapsed into crime” within the meaning of Articles 60 and 61 of the Criminal Code (provisions which constituted, for all practical purposes, sentencing guidelines in respect of recidivists), inevitably resulted in the sentence of imprisonment to which the accused was liable being increased.
41. Article 60 § 1 of the Criminal Code, in the version applicable at the material time, provided:
“1. If an offender, who has already been convicted of an intentional offence and, as a result, has served a sentence of at least six months’ imprisonment, commits another similar offence within five years following [the date on which] he has ended the service of the whole or part of his previous sentence of imprisonment, the court shall impose on him a sentence of imprisonment of between twice the minimum and oneand-a-half times the maximum sentence applicable.”
42. The term was (and still is) related to the assessment of the gravity of criminal offences. If the “danger to society” represented by a given offence was considered by the court to have been “serious” or “of a high degree”, the court had to take that factor into account as an aggravating circumstance when imposing a sentence under the general rules of sentencing set out in Article 50 of the Criminal Code. That provision, in its relevant part, read:
“1. The court shall impose the punishment at its discretion, within the limits set out by the law, assessing the degree of danger to society [represented by] an offence and taking into account the purposes of the punishment in the sphere of retribution as well as the preventive and reformative purposes it is to achieve in respect to the convicted person.
2. Following the guidelines mentioned in paragraph 1, the court shall particularly take into account the kind and amount of damage caused by an offence, the intentions and the manner of acting of an offender, his personal qualifications and situation, as well as the way he lived before, and the behaviour after, the commission of an offence and [as the case may be], complicity with a minor person in the commission of an offence.
...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1