ITEMID: 001-105203
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GIRIYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicants are:
Ms Zara Giriyeva, who was born in 1957,
Mr Musost Aygumov, who was born in 1982, and
Ms Zarema Aygumova, who was born in 1991.
The first applicant lives in Grozny, the second and third applicants live in Avtury, Chechnya. The first applicant is the mother of Isa Aygumov, who was born in 1977; the second applicant is his brother and the third applicant is his sister.
6. At the material time Avtury village was under the full control of Russian federal forces. Military checkpoints manned by Russian servicemen were situated on the roads leading to and from the settlement. The military commander’s office was located in the village. The applicants, Isa Aygumov and other relatives lived at 13 Naberezhnaya Street (in the submitted documents the address was also stated as 11 Naberezhnaya Street) in Avtury, in the Shali district of Chechnya. The household consisted of two dwellings in one yard.
7. In the afternoon of 9 January 2002 Isa Aygumov, the second applicant and a number of their neighbours, including Mr S.Sh., Mr A.S., Mr Kh.D., Mr A.Kh., Mr M.S., Mr S.Kh., Mr I.Kh. and Mr S.-M.M., were helping the applicants’ family to saw up firewood in the area next to the courtyard. The first applicant was not at home that day.
8. At about 4 p.m. Isa Aygumov went to the courtyard to fetch a shovel. At that moment two UAZ vehicles arrived at the applicants’ gate. One of them had the registration number 635 with the regional number 95. Another two UAZ cars stopped about 100 metres away down the street. A large number of armed military servicemen in camouflage uniforms got out of the vehicles. Some of them were wearing masks; those not masked were of Slavic appearance.
9. The servicemen split into several groups. One of them ran into the courtyard. Isa Aygumov saw the servicemen and ran to the house of his neighbours, the M. family. He told Mr S.-M. M. and his wife Ms Z.M. that a group of military servicemen had broken into his household, that he was scared and wanted to hide in their house. Four servicemen ran after Isa Aygumov. They climbed over the neighbours’ fence and asked the neighbours in unaccented Russian where Isa was. Then the servicemen found him in one of the rooms, tied his hands behind his back and took him outside.
10. Meanwhile other servicemen quickly searched the applicants’ house. They did not explain their actions; they neither identified themselves nor produced any documents. They ordered the family members to stay quiet. As a result of the search they took Isa Aygumov’s passport. The officers also searched the dwelling of the applicants’ relative Mr A.A. Immediately after the search the servicemen shut the third applicant and her relatives in the house and propped a metal pipe against the door outside to keep it closed.
11. In the meantime another group of servicemen made all the men who had been sawing up firewood lie face down in the snow; a soldier stood over each of them. Mr I.Kh. asked the officers why they were there. In response, one of the officers pointed his gun at him and said that if he kept asking questions they would take him away. The officers did not ask the men for identity documents. One of the soldiers pulled the second applicant’s head up from the ground and asked his colleague whether they were supposed to take this man away. The other responded in the negative.
12. While they were shut in the house the applicants’ relatives saw from the window the four servicemen taking Isa Aygumov away from the neighbours’ yard and putting him into one of the UAZ vehicles. After that the cars drove away in the direction of Shali.
13. The abduction of Isa Aygumov was witnessed by the second and third applicants, their relatives and neighbours.
14. In support of their statements, the applicants submitted the following documents: a statement by Ms Zh.G. dated 20 February 2008; a statement by Mr S.Sh., undated; a statement by Mr Kh.D., undated; a statement by Mr I.Kh., dated 29 February 2008; and a statement by Mr S.-M.M., dated 29 February 2008.
15. The Government did not challenge the facts as presented by the applicants. They stated that the abduction had been perpetrated by unidentified armed men and that no special operations had been conducted in Avtury on 9 January 2002.
16. Immediately after the abduction, the applicants and their relatives complained about it to the head of the Avtury village administration. On the following day, 10 January 2002, the applicants complained about the abduction to the Shali district department of the interior (“the ROVD”) and the Shali district prosecutor’s office (“the district prosecutor’s office”).
17. On 31 January 2002 the district prosecutor’s office instituted an investigation into the abduction of Isa Aygumov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 59046.
18. Around 9 February 2002 a group of investigators from the district prosecutor’s office visited the applicants’ house and questioned some of the family members about the events of 9 January 2002.
19. On 19 February 2002 the first applicant wrote to the head of the ROVD and complained that her son Isa Aygumov had been abducted by Russian federal servicemen in four UAZ vehicles, one of which had had the registration number 635 95/RUS.
20. On 12 March 2002 the head of the ROVD replied to the applicant, stating that as of 9 January 2002 Isa Aygumov had not been detained in local detention facilities. The letter also included the following:
“... based on the description of the car [provided by you to the authorities] the investigation identified one vehicle, which is currently being examined in connection with its possible involvement in your son’s abduction ...”
21. On 18 March 2002 the military prosecutor’s office of military unit no. 20116 informed the first applicant that their inquiry had not established whether federal servicemen were involved in her son’s abduction.
22. On 6 April 2002 the district prosecutor’s office informed the first applicant that the investigation in criminal case no. 53046 had been resumed because the ROVD had not carried out the necessary operational-search measures.
23. On 31 July 2002 the investigators informed the applicants that they had opened a criminal case in connection with the abduction of Isa Aygumov.
24. On 19 August 2002 the Chechnya Ministry of the Interior (“the Chechnya MVD”) forwarded the first applicant’s complaint about her son’s abduction to the Shali ROVD.
25. On 2 October 2002 the military prosecutor’s office of the North Caucasus Military Circuit forwarded the first applicant’s complaint about the abduction to the military prosecutor’s office of military unit no. 20116 for examination.
26. On 22 November 2002 the military prosecutor’s office of military unit no. 20116 informed the first applicant that they had forwarded information requests concerning detention of Isa Aygumov to the Chechnya Federal Security Service (“the FSB”), the Headquarters of the United Group Alignment (“the UGA”) and the Regional Headquarters of Counterterrorist Operations in the Northern Caucasus.
27. On 16 December 2002 the district prosecutor’s office informed the first applicant that they had resumed the investigation of the criminal case.
28. On four occasions between December 2002 and August 2005 the Chechnya prosecutor’s office forwarded the first applicant’s complaints to the district prosecutor’s office for examination.
29. On 16 January 2003 the district prosecutor’s office informed the first applicant that they had suspended the criminal investigation for failure to identify the perpetrators.
30. On 25 February 2003 the district prosecutor’s office informed the first applicant that they were verifying the information which she had provided in her complaint concerning the abduction.
31. On 4 March 2003 the Department of the Prosecutor General’s office in the Southern Federal Circuit forwarded the first applicant’s complaint about the abduction to the Chechnya prosecutor’s office.
32. On 7 July 2003 the military prosecutor’s office of the UGA forwarded the first applicant’s complaint about the abduction to the military prosecutor’s office of military unit no. 20116 for examination.
33. On 23 July 2003 the district prosecutor’s office informed the first applicant that they had resumed the investigation of the criminal case.
34. On 2 November 2006 the applicants’ representatives wrote to the district prosecutor’s office and requested to be provided with an update on the criminal investigation. In particular, they asked to be informed about the following: whether the owner of the UAZ car with the registration number 635 had been identified; whether the first applicant had been granted victim status in the criminal case; and whether she could be provided with access to the investigation file.
35. On 20 February 2008 the first applicant complained to the district prosecutor’s office that she had no information concerning the investigation of the criminal case.
36. On 20 February 2008 the district prosecutor’s office informed the first applicant that on 4 September 2003 they had suspended the investigation of the criminal case for failure to identify the perpetrators.
37. According to the applicants, none of the applicants’ neighbours who had witnessed the abduction were questioned by the investigators until November 2009.
38. According to the applicants, the investigation was suspended prematurely on numerous occasions. For instance, no proceedings were pending between 25 February 2003 and 13 November 2006, between 13 November 2006 and 20 February 2008, and between 14 March 2008 and 6 November 2009.
39. On 10 January and again on 23 January 2002 the first applicant complained to the district prosecutor about her son’s “arrest” at his house at about 3.35 p.m. on 9 January 2002. She stated that Isa Aygumov had not participated in the activities of illegal armed groups and requested the prosecutor to take measures to release him from detention.
40. On an unspecified date in January 2002 the applicants’ relative Mr A.A. (Isa Aygumov’s uncle) complained to the Shali district military commander and the Shali district military prosecutor about Isa Aygumov’s abduction by officers from the Shali ROVD. He stated that Isa had been abducted from his house and that the officers had arrived in two UAZ minivans (”Таблетка”).
41. On 31 January 2002 the district prosecutor’s office instituted an investigation into the abduction of Isa Aygumov. The text of the document was not clear, as it stated that the applicants’ relative had been abducted either from the local hospital or from his house:
“... at about 8 p.m. on 9 January 2002 unidentified armed men in camouflage uniforms, armed with automatic weapons, took Isa Aygumov away from the Shali central district hospital, where he had applied [for medical assistance] in connection with a gunshot wound to his face; [the abductors ] took Isa Aygumov away from his house at no.11 in Naberezhnaya Street, Avtury ...”
42. On 31 January 2002 the investigators questioned the applicants’ relative Mr A.A., who stated that at about 3.30 p.m. on 9 January 2002 a group of masked men in camouflage and the grey uniforms usually worn by the police had arrived at Isa Aygumov’s house. The witness and a number of other relatives of the applicants as well as their neighbours had been present during the abduction. The abductors had put the witness and the other men face down in the snow and demanded their identity information. The abductors, who had arrived in several vehicles, including two UAZ minivans, had taken Isa Aygumov to the Shali ROVD.
43. On the same date, 31 January 2002, the investigators granted Isa Aygumov’s wife Ms Z.B. victim status in the criminal case and questioned her. She stated that at about 3.30 p.m. on 9 January 2002 her husband had been abducted from his house by a group of masked armed men in camouflage uniforms, who had behaved aggressively and searched the house. The abduction had taken place in the presence of the second and third applicants, their relatives and neighbours. The abductors had arrived in four vehicles, including two grey UAZ minivans.
44. On 31 January 2002 the investigators questioned the applicants’ relative Ms B.A., whose statement about the circumstances of the abduction was similar to the one given by Ms Z.B. In addition, the witness stated that the abductors had taken Isa Aygumov to the Shali ROVD.
45. On 10 February 2002 the investigators requested that the Shali FSB informed them whether they had detained the applicants’ relative. The text of the document included the following:
“... the investigation established that at about 3.35 p.m. on 9 January 2002 four vehicles, including two UAZ minivans, one of them with the registration number 635, had arrived at [the applicants’] address. Men of Slavic appearance in camouflage uniforms had put Isa Aygumov in one of these vehicles and taken him to the Shali ROVD. His whereabouts have been unknown since.
You are asked to inform us of the following: did any of your employees participate in the arrest of Isa Aygumov? Does your agency have a UAZ minivan with the registration number 635 and if not, do you know to which agency this vehicle might belong? Is Isa Aygumov registered by your agency as a member of illegal armed groups? ...”
46. On 19 February 2002 the first applicant complained to the Chechnya prosecutor about her son’s abduction. She stated that Isa Aygumov had been abducted by representatives of Russian federal forces who had arrived at her house in four UAZ vehicles, two of which were minivans, one of which had the registration number 635 95 RUS.
47. On 2 March 2002 the investigators granted the first applicant victim status in the criminal case.
48. On 13 March 2002 the first applicant again complained to the Chechnya prosecutor about her son’s abduction by representatives of Russian federal forces. On the same date she also lodged a similar complaint about the abduction with the district military commander’s office.
49. On 31 March 2002 the investigation in the criminal case was suspended for failure to identify the perpetrators.
50. On an unspecified date in April 2002 the supervising prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature. The text of the document included the following:
“... the examination of the investigation file demonstrated that the preliminary investigation has been conducted passively, and the circumstances of events established by the investigators had not been fully and objectively assessed by them. For instance, the investigators had not looked into the fact that Isa Aygumov had been abducted by men in camouflage uniforms who had driven around in UAZ vehicles. The investigators had failed to identify the neighbours and local residents who had witnessed the crime; they had not examined the crime scene and had not obtained replies to their information requests from the ROVD ... and the FSB ...”
51. On 4 May 2002, upon the supervising prosecutor’s instructions, the investigation in the criminal case was resumed.
52. On 6 May 2002 the supervising prosecutor instructed the Shali ROVD to comply with the investigators’ request for assistance in the search for Isa Aygumov of 1 February 2002.
53. On 25 May 2002 the Shali FSB informed the investigators that their employees had not been involved in Isa Aygumov’s arrest, that their agency did not have a UAZ minivan with the registration number 635, and that they did not have any compromising information concerning Isa Aygumov.
54. On various dates in the spring of 2002 the investigators asked a number of the district departments of the interior and the district prosecutors’ offices in Chechnya whether they had arrested or detained Isa Aygumov. Negative responses were received from all the agencies.
55. On an unspecified date in June 2002 the investigation in the criminal case was suspended for failure to identify the perpetrators.
56. On 12 July 2002 the investigators requested the Traffic Police Department of the Chechnya MVD to inform them of the identity of the owner of a grey UAZ minivan with the registration number 635 95 RUS.
57. On 1 December 2002 the supervising prosecutor overruled the decision to suspend the criminal investigation as unsubstantiated and premature. The prosecutor criticised the investigators and pointed out that they had failed to take a number of basic steps:
“... the investigators failed to take all the necessary measures ...
For instance, no plan of investigative action has been drawn up so far ...;
Not all the theories concerning the identities of the perpetrators have been examined ...
The investigator Mr G.A. had not taken a single investigative step [while in charge of the investigation] ...
... the crime scene has not been examined;
The owners of the UAZ vehicle with the registration number 635 95 RUS, which was used by the abductors to take Isa Aygumov away, have not been identified;
... to remedy the above shortcomings of the investigation, it is necessary:
To obtain responses to the information requests forwarded [to a number of law-enforcement agencies];
To request information from the MVD and the FSB concerning special operations on 9 January 2002, the units involved and the results of these operations;
To identify and question additional witnesses;
To find out whether the drivers of the vehicles with the registration numbers 635 95 RUS had been involved in the abduction ...”
58. On 16 December 2002, following orders from the supervising prosecutor, the investigation of the criminal case was resumed.
59. On 30 January 2003 the Chechnya MVD informed the investigators that they had not conducted any special operations in Avtury on 9 January 2002, that they had not detained Isa Aygumov and that they did not have a UAZ vehicle with the registration number 635 95 RUS.
60. On an unspecified date in January 2003 the FSB informed the investigators that they had not conducted any special operations in Avtury on 9 January 2002 and that they had not detained Isa Aygumov.
61. On 16 January 2003 the investigation of the criminal case was again suspended for failure to identify the perpetrators.
62. On 4 August 2003 the supervising prosecutor overruled the decision to suspend the investigation as unlawful and ordered that the proceedings be resumed. The text of the decision included the following:
“... the investigator Mr A.B. had suspended the investigation of the criminal case without having taken a single one of the steps ordered by the supervising prosecutor ...”
63. On 12 August 2003 the investigators examined the crime scene at the applicants’ household. Nothing was collected from the scene.
64. On 1 September 2003 the investigators questioned the applicants’ neighbour Mr S.-M.M., who stated that in January 2002 he had been at home when a group of masked armed men in camouflage uniforms ran into his yard looking for Isa Aygumov. They had entered the witness’s house, found Isa there and taken him away.
65. On 4 September 2003 the investigation in the criminal case was suspended again for failure to identify the perpetrators. The applicants were informed about it.
66. On 2 November 2006 the first applicant again complained to the district prosecutor about her son’s abduction by federal servicemen. She provided a description of the circumstances surrounding the events and requested assistance in the search.
67. On 13 November 2006 the investigators informed the applicants that they had suspended the investigation in the criminal case.
68. On 13 November 2006 the ROVD informed the first applicant that they were taking operational-search steps to establish the whereabouts of Isa Aygumov.
69. On 20 February 2008 the first applicant requested the investigators to inform her about the progress in the investigation and resume the proceedings.
70. On the same date, 20 February 2008, the investigators informed the applicants that the investigation in the criminal case had been suspended on 4 September 2003.
71. On 5 March 2008 the first applicant complained to the district prosecutor’s office, stating that her complaint had been fully allowed by the district court (see paragraph 89 below), but that the investigators had failed to comply with the court’s decision and carry out an effective investigation of the criminal case. She requested the investigators to comply with the court orders and resumed the investigation.
72. On 14 March 2008 the district prosecutor’s office rejected the first applicant’s complaint as unsubstantiated, stating that all the necessary investigative measures had been taken by the investigators. The applicant was informed about this decision.
73. On 6 November 2009 the supervising prosecutor overruled the decision to suspend the investigation as unlawful and premature. The prosecutor criticised the investigation and ordered that the investigators took a number of basic steps which they had failed to take before.
74. On 11 November 2009 the investigators questioned the first applicant, who stated that on 9 January 2002 she had been visiting her parents when the second applicant had arrived at their house and informed her that Isa Aygumov had been abducted by a group of about fifteen armed military servicemen in camouflage uniforms, who had arrived at the applicants’ house in two UAZ vehicles. On that date Isa Aygumov and his seven male neighbours and relatives had been sawing up logs next to the applicants’ yard. When Isa saw the armed men he ran to the neighbours, while the seven other men were pushed face down in the snow by the intruders. The servicemen had searched the house, turning everything upside down, found Isa’s passport and taken it away with them. After the search the servicemen, who had spoken unaccented Russian, had blocked the entrance door, shutting the residents inside the house, and left, propping the door closed from outside with a metal pipe. The applicant’s relatives Ms Zh.G. and Ms Z.A. had seen from the window a group of servicemen taking Isa from the house of their neighbours, the M. family. Isa’s hands were behind his back. The servicemen had put Isa in the grey UAZ vehicle with a registration number containing the digits 635 and regional indication 95. Shortly after the abduction the first applicant and her relatives had complained to the head of the Avtury village administration, Mr I.U., who had promised to assist them in the search for their relative. On the next day the applicants had complained about the abduction to the district prosecutor’s office and the ROVD.
75. On 12 November 2009 the investigators questioned the first applicant’s sister, Ms Zh.G., and the second applicant, both of whom had witnessed the abduction of Isa Aygumov. Their statements were similar to the one given by the first applicant.
76. On 18 November 2009 the Chechnya FSB informed the investigators that they had not conducted any special operations on 9 January 2002 in Avtury and did not have any information as to whether Isa Aygumov was involved in illegal armed groups.
77. On 20 November 2009 the investigators questioned the applicants’ relatives Mr O.A., Ms Z.A. and Ms B.A., all of whom had witnessed the abduction of Isa Aygumov. Their statements were similar to the one given by the first applicant.
78. On 25 November 2009 the investigators questioned Mr I.M., who stated that he had had a 1973 UAZ vehicle with the registration number A635 BE95 RUS. The car was very old, required constant repair and therefore had hardly been used. In 2005 the witness had sold the car to a man in Zaki-Yurt, Chechnya.
79. On 25 November 2009 the Chechnya MVD informed the investigators that they had not conducted any special operations on 9 January 2002 in Avtury and that they did not have any information as to whether Isa Aygumov had been involved in illegal armed groups.
80. On various dates in November 2009 the investigators received replies to their information requests from various detention centres and regional departments of the interior in the Northern Caucasus. All of the agencies stated that Isa Aygumov had not been detained by their officers, that he was not listed as a detainee and that no corpse with features similar to those of Isa Aygumov had been found in their areas.
81. On 3 December 2009 the investigators questioned the applicants’ neighbour, Mr M.S., whose statement concerning the abduction was similar to the one given by the first applicant.
82. On 4 December (in the submitted documents the date was mistakenly stated as 4 November 2009), 5 and 7 December 2009 the investigators questioned the applicants’ neighbours Mr Ya.Sh., Mr Kh.D., Mr A.Kh. and Mr S.Kh., all of whom had witnessed the abduction of Isa Aygumov. Their statements were similar to the one given by the first applicant and the other witnesses.
83. On 7 December 2009 the investigators questioned the applicants’ neighbour Mr S.-M.M., whose statement about the circumstances surrounding Isa Aygumov’s abduction was similar to the one given by the first applicant. In addition, he stated that Isa had run into his house to hide from the abductors, but three or four of them, who were in camouflage uniforms and black masks, broke in, searched the premises, dragged Isa outside and took him away.
84. On 7 December 2009 the investigators again questioned Isa Aygumov’s wife Ms Z.B., whose statement about the circumstances of the abduction was similar to the one given by the first applicant.
85. The investigation failed to establish the whereabouts of Isa Aygumov. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of federal servicemen in the abduction. The law-enforcement authorities of Chechnya had never arrested or detained Isa Aygumov on criminal or administrative charges and had not carried out a criminal investigation in his respect. No special operations had been carried out in respect of the applicants’ relative.
86. According to the documents submitted by the Government, the investigation was suspended and resumed on several occasions, and has so far failed to identify the perpetrators. In a number of decisions to resume the investigation the supervising prosecutor criticised the progress of the proceedings, and ordered that a number of important investigative steps be taken without delay.
87. Despite a specific request by the Court the Government did not disclose the full contents of criminal case no. 59046, providing only part of the documents running up to 158 pages. The Government did not specify the reasons for their failure to provide the remaining documents.
88. On 4 May 2007 the first applicant complained to the Shali Town Court (“the Town Court”) that the investigation of the criminal case was ineffective. She stated that the investigation had been suspended and resumed on a number of occasions, that she had not been provided with information about its progress, and that in spite of the fact that it had gone on for a long time it had failed to identify the perpetrators of Isa Aygumov’s abduction. The applicant requested the court to order the district prosecutor’s office to conduct a thorough and effective investigation into her son’s disappearance and to provide her with access to the investigation file.
89. On 29 June 2007 the Town Court allowed the applicant’s complaint and ordered the district prosecutor’s office to conduct a thorough and effective investigation of the criminal case and provide the applicant with access to the case file.
90. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-108431
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF CRISTESCU v. ROMANIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 6. The applicant was born on 30 January 1959 and lives in Bucharest, Romania.
7. The applicant was married to I.R. and the couple had two children, C.I., born on 19 December 1992, and Th.N., born on 12 August 1996.
8. Following divorce and child custody proceedings initiated by I.R. on 21 March 2001, the Bucharest First District Court of First Instance held on 9 October 2001 that the children should live with their mother. The applicant was entitled to visit his children according to the following schedule: every first and third weekend of the month, from 6 p.m. on Friday to 6 p.m. on Sunday; two weeks during the summer holidays; and one week during the winter holidays.
During the proceedings, two environment studies were conducted at the applicant’s home and at I.R.’s home respectively. The studies concluded that the children were well taken care of and that their development was in accordance with their age. It was noted that the elder child, C.I., had started living with the applicant on 24 September 2001, and that their relationship was based on good communication. The applicant expressed his wish that C.I. be placed with him, in the light of their close relationship.
The court did not interview the two children, given their young age.
In delivering its judgment, the court took into consideration the evidence adduced, including the two studies; it held that the mother had proved to have spent more time with the two children, but it also underlined that it was in the two children’s best interests to be placed with their mother, particularly in view of their age.
9. The applicant appealed against the judgment, reiterating his wish that he be awarded custody of his elder son, C.I., with whom he had a very close relationship.
On 21 May 2002 the Bucharest County Court modified the first-instance court’s judgment concerning the custody of C.I., which was awarded to the applicant, in view also of the child’s own choice in the matter. The first-instance court’s reasoning concerning Th.N. was upheld without being reassessed, seeing that none of the parties contested that part of the judgment. The court’s reasoning observed that:
“In the present case, it is beyond any doubt that both parents provide for their children a very good environment for their development, both financially, and also morally.
The fact that during the marriage it was the mother who dedicated more time to the children was because she had more free time available, and also because traditionally, in any family, it is the mother who predominantly takes care of the children, especially during the first years of their lives.
It follows that the father cannot be regarded as not having shown interest in the upbringing and education of the children.”
10. I.R. appealed against the judgment, arguing mainly that it was not in the best interests of the children that they be separated. In support of her request, she submitted several statements given by the children’s teachers, but also by the psychologist E.I.V., who had examined both children; the reports mainly noted that the two children were extremely happy to see each other, as it was obvious that they had a very affectionate relationship and that their separation had affected them both:
“The behaviour of the two brothers reveals a strongly affectionate relationship, and their break-up was followed by the psychological breakdown of C.I. (...); their separation has been very traumatising for both children”.
In another report written by E.I.V, it was noted that Th.N. had suffered as a result of the conflict-ridden relationship of his parents, and that:
“The state of conflict that marked the parents’ divorce evidently affected the child. The younger child is stable at present, even though he intensely resents the absence of his older brother.
The rare contact he had with his father following the latter’s separation from his mother evidently perturbed the psychological state of the younger child, owing to the father’s attempts to inculcate in him a hostile attitude towards the mother and to undermine his trust and his affection for her”.
The applicant for his part submitted a copy of a psychological report of 11 September 2002, as well as a medical certificate issued on 16 September 2002 concerning C.I., stating that: the boy was normally developed, presented a level of maturity appropriate for his age and did not have adjustment difficulties as a result of his parents’ separation; the sadness he had shown a few minutes after seeing his little brother proved only that he had reactions which were normal in the case of two separated brothers; and that C.I. had expressed his wish to stay with his father, even though he loved his brother and his mother.
11. The Bucharest Court of Appeal gave its final judgment on 25 October 2002, upholding the County Court’s determination. The court held that considering C.I.’s age, his choice to live with his father was relevant and could not be ignored. The court also held that it was in the children’s best interests that their parents made it possible for them to see each other and to spend time together, whether at the mother’s house or at the applicant’s house.
12. Following I.R.’s refusal to let the applicant take Th.N. from her home, allegedly because he did not want to “leave his mum’s house”, the applicant asked the courts to specify the exact manner in which his rights of contact were to be implemented.
In its final judgment of 21 April 2003 the Bucharest County Court held that the applicant was entitled to take Th.N. from I.R.’s home according to the visiting schedule which had been previously accepted by the courts.
13. On 24 May 2002 the applicant initiated enforcement proceedings against I.R.; on 31 May 2002 his request was granted in court.
14. The first summons was therefore issued by the bailiff for 28 June 2002; on that occasion, the official record drawn up noted I.R.’s absence from her residence.
On 9 July 2002, the bailiff requested information from the competent authorities regarding I.R.’s current residence.
A further summons was issued on 23 August 2002; the record drawn up on 4 October 2002 in the presence of the bailiff, the applicant and a policeman stated that no one had allowed them to enter the premises, even though noises and a human voice could be heard inside the house.
15. In a further report issued on 16 May 2003 the bailiff noted that I.R. and Th.N. had not been at home.
The official report drawn up on 30 May 2003 noted I.R.’s assertions, according to which it was not she who had opposed the applicant seeing Th.N., but, rather, it was the child who had refused any contact with his father. In order for the father-child relationship to reach a normal level, I.R. further asserted that she would make efforts to encourage the child to grow closer to his father. The parties agreed to allow the two children to meet in a public place, firstly on 1 June 2003, between 6 p.m. and 9 p.m., and then also on the following weekends, Saturday and Sunday, between 5 p.m. and 7 p.m., after which the parents would agree upon the new schedule for mutual visits, so that the children would spend the weekends together, with each parent alternately.
16. On 17 June 2003 I.R. lodged an objection to the report of 30 May 2003, essentially asking for a suspension of its enforcement, on account on the child’s alleged refusal to leave with his father. In support of her claims, she adduced two reports drawn up by the psychologist E.I.V. on 2 April and 16 June 2003 (see also paragraph 33 below).
On 14 July 2003 the Bucharest County Court dismissed I.R.’s objection, holding that the annulment of the report drawn up by the bailiff was not justified, in so far as the reasons relied on concerned the merits of the dispute over contact rights.
The judgment became final, as it was not appealed against by any of the parties.
17. On 4 July 2003 the parents met at the bailiff’s office and agreed that during the summer vacation the children should stay alternately, for two weeks at a time, with each parent. I.R., however, could not agree on the period of time at issue, and thus opposed the applicant’s request that Th.N. should stay with him starting on 15 August 2003 at the latest.
18. On 19 December 2003, in the presence of the bailiff, the applicant went to I.R.’s known residence, where he talked with I.R.’s mother, who informed him that I.R. and Th.N. had left on vacation the previous day.
19. On 19 March 2004 the applicant and the bailiff went to I.R.’s known residence, where they found I.R.’s father. He told them that I.R. and Th.N. were not at home and asked them to leave.
On 30 April 2004 another report was drawn up by the bailiff, noting Th.N.’s refusal to join his father and go to his home.
20. On 6 July 2004 I.R. again contested the enforcement of the impugned judgment of 2002, seeking to prove that its enforcement had become impossible, having regard to the precarious state of health of Th.N., following his two visits to his father’s house on the weekends of 6 and 20 June 2004. On those occasions, the child allegedly came back to I.R.’s home sick and confused. Following some urine tests, Th.N. was found to have been intoxicated with benzodiazepine (the first time) and with nicotine (the second time).
With respect to the alleged incidents, I.R. also lodged a criminal complaint against the applicant, accusing him of having endangered Th.N. s physical integrity (see also paragraph 30 below).
On 20 September 2005 the Bucharest (First District) Court of First Instance dismissed I.R.’s complaint, holding that in an objection to enforcement proceedings, the parties were not allowed to submit arguments concerning the merits of the enforceable judgment. Moreover, the court held that I.R. had not proven in any way her accusations against the applicant.
21. I.R. appealed against that judgment, reiterating her allegations that the applicant had endangered Th.N.’s state of health, thereby rendering it objectively impossible to continue with the enforcement of the disputed judgment allowing him contact.
On 12 April 2006 the Bucharest County Court dismissed the appeal. In its final judgment, the court held that:
“Indeed, medical documents were contained in the file, proving that during a specific period of time, the minor did have in his body certain toxic substances; however, no fault or negligence can be imputed to the father in this regard; therefore, no impediment exists to the enforcement of his contact rights.”
22. In the meantime, on 30 November 2005 the applicant, in the presence of the bailiff, went to I.R.’s known residence, where they found that I.R. had moved to an unknown place. Consequently, on 6 December 2005 the bailiff requested the competent authorities to inform him of I.R.’s new residence. The authorities’ reply of 22 December 2005 indicated I.R.’s residence, as noted in the official records.
On 20 January 2006 the applicant and the bailiff went to that address, where they learnt that the house had been sold to third parties in June 2005.
On 23 January 2006 the bailiff requested updated information from the competent authorities regarding the current residence of I.R.; however, in the meantime, on 19 January 2006 I.R. had sent a letter to the bailiff, notifying him and the applicant of her new residence. She had also informed the bailiff that the proceedings seeking to suspend the enforcement of the judgment of 2002 granting the applicant contact rights were still pending (see paragraphs 31-38 below), and thus asked the bailiff to avoid any type of harassment of Th.N. until those proceedings had come to a conclusion.
30. On an unspecified date in June 2004 I.R. lodged a criminal complaint against the applicant. She submitted that after Th.N. had spent the weekend of 4 to 6 June 2004 with his father, he had come back home in a general state of confusion and tiredness. The medical examination performed the next day had revealed that Th.N. had been intoxicated with benzodiazepine.
On 20 June 2004, when she had picked up the child from his father, with whom Th.N. had spent the weekend, the child was again in a state of tiredness. The medical examination conducted that evening had shown no signs of benzodiazepine; however, an examination carried out the following morning had found nicotine in the child’s blood.
The investigating authorities required an expert report to be prepared by the Institute of Forensic Medicine. On 24 August 2004 I.R. went to the Institute and declared that she refused to allow Th.N. to be examined. The report was drawn up based on the existing medical documents, noting that the source and the context of both intoxications could not be established. As the minor had not been examined, no conclusion on any potential violent acts against him or on potential traces of medical treatment could be formulated.
The decision not to indict the applicant delivered by the prosecutor on 15 February 2006 was based on the fact that the adduced evidence had not revealed beyond doubt signs of serious negligence or omission imputable to the applicant in the exercise of his parental rights with respect to the incidents of June 2004.
I.R. contested that decision before the courts. Her request was dismissed as out of time on 8 February 2007 by the Bucharest (Second District) Court of First Instance.
31. On 7 November 2002 I.R. applied to the courts, requesting that she be granted contact rights with respect to C.I.; she also requested that the contact arrangements of the applicant concerning Th.N. be altered, so as to take place on one Saturday monthly, between 2 p.m. and 6 p.m. She submitted that this change was necessary in view of the “negative influence” that the applicant exerted on the child, who was afraid that he would be taken away from his mother and who, each time when he was required to leave with his father, had nightmares, states of anxiety and crying fits.
32. On 3 March 2003, following a social worker’s visit to both of the parents’ homes, a report was drawn up, stating that:
“The mother is preoccupied with raising and educating Th.N.; the two have a good relationship, based on affection and communication. In the mother’s opinion, the father should be allowed to visit Th.N. at her home and in her presence, for fear that by leaving the child at the father’s house, he might have a bad influence on the child.
The mother declared that she had attempted to have personal contact with the minor C.I., but had been obstructed by the father, who had not allowed her to enter his home and who had created a bad image of her in the child’s mind.”
While acknowledging that C.I. enjoyed “optimal living conditions” at his father’s house, the social worker also noted that the two had a harmonious relationship, based on affection and mutual understanding. The applicant had declared that he wished that he could have a closer relationship with his other child, Th.N., but on account of the mother’s attitude, such a goal had become unattainable. C.I. had expressed his wish to spend more time with his brother, whom he truly loved.
The social worker also noted that the headmaster of the kindergarten attended by Th.N. had informed him that the applicant was interested in his son’s activities and that “he was sometimes allowed to talk to the child, but only in the presence of another person”.
The report’s conclusion pointed to the fact that the two brothers had a very warm relationship, and also that both parents showed an affectionate and caring attitude towards the two children, both expressing their full receptiveness to developing a closer relationship with the child who lived with the other parent.
I.R.’s request for a psychological report assessing Th.N. was dismissed by the court on 6 March 2003 as unnecessary.
33. I.R. subsequently submitted to the file two psychological opinions (aviz psihologic) issued by the psychologist E.I.V., who had seen and examined Th.N. starting in November 2001, immediately after had been separated from his brother. In his report of 2 April 2003, the psychologist stated:
“The minor (Th.N.) is an intelligent child, who tries to understand the situation, but the fear of being separated from his mother, as happened with his brother, causes new states of anxiety, crying fits, nightmares and nocturnal enuresis [bed-wetting].
His current state is also provoked by his father’s unscheduled visits, the child feeling threatened by a possible kidnapping, bearing in mind his brother’s experience. His relationship with his father has deteriorated also on account of the latter’s using insulting words in relation to I.R. and his aggressive behaviour towards the mother in the presence of the child.
The minor does not wish to be visited by his father, not even if his brother is also present, owing to the fact that his brother (C.I.) has attempted several times to persuade him that it is very nice to live with their father, because ‘at dad’s you don’t need to respect mummy’s rules: you don’t need to brush your teeth, you don’t need to learn, you don’t need to take piano lessons’; his brother also made him swear that when he reached the age of ten, he would move in with them.”
In a further report issued on 16 June 2003 the same psychologist noted the following:
“I have re-examined Th.N., seeing that new anxiety attacks, episodes of nocturnal enuresis and bruxism [teeth-gnashing] have appeared.
I have noted that these symptoms appeared following the child’s being visited by his father, who was accompanied by the brother (C.I.), and also by the bailiff and the father’s lawyer. The child has difficulties in relating the incident, as he fears ‘the gentleman who forces him to go to his dad’s’.
The symptoms presented are caused, on the one hand, by the fact that his relationship with his father has deteriorated and, on the other hand, by the brutality used in enforcing the [father’s] contact arrangements.
A pronounced state of anxiety on the child’s part when in the presence of his father, and an increasing change in their relationship are noted.”
34. The applicant contested I.R.’s arguments, mainly stating that it was impossible for him to have exerted a bad influence on the child Th.N., since he was never really around him because he was not allowed to see him. Moreover, the few times when they had actually met had been in the presence of the bailiff or of the staff at the child’s school. His constant attempts to see Th.N. had been undermined by I.R.’s repeated changes of address and of the child’s kindergartens, and subsequently his schools, changes which had never been brought to his attention.
35. On 22 May 2003 C.I. was heard by the court in camera, where he declared that he would like to be visited at his home only by his brother Th.N., and not by his mother.
36. On 9 October 2003 the Bucharest (Second District) Court of First Instance partly allowed I.R.’s request to be allowed to visit C.I. every other weekend, from Friday at 6 p.m. until Sunday at 6 p.m., two weeks during the summer vacation and one week during the winter vacation. The court dismissed I.R.’s request for an alteration of the applicant’s contact arrangements with respect to Th.N. as ill-founded, holding that the circumstances which had been taken into account by the courts in the previous proceedings concerning contact had not changed.
37. The judgment was appealed against by I.R., who reiterated her request that the applicant should be allowed to visit Th.N. one day per month only, on Saturdays, from 2 p.m. to 6 p.m.
On 25 March 2004 the Bucharest Court of Appeal dismissed I.R.’s appeal, holding that the visiting schedule she proposed would be unfair, considering that she herself was allowed to see the other child, C.I., for more than just a few hours per month. Besides, I.R. had not proven that the circumstances assessed by the courts in 2002, when the applicant’s contact rights had been established, had changed in any substantial way so as to warrant an alteration of those rights.
In a dissenting opinion, Judge M.R. stated that the contact arrangements vis-à-vis Th.N. needed to be changed, namely reduced. I.R. had produced sufficient evidence proving that Th.N. had been psychologically traumatised by the separation from his brother, and that he was convinced that this separation had been caused by his father, who also wanted to separate him from his mother; at the same time, in the process of enforcing his rights of contact with the bailiff’s aid, the father had threatened the child that he would take him with the help of the police if he did not voluntarily come with him; there was evidence in the file (testimonial and expert psychologist opinions) stating that Th.N. suffered from anxiety attacks, nightmares and nocturnal enuresis, on account of his fear of being separated from his mother, and owing to the perceived threat that he would be kidnapped. From that perspective, the judge considered that the child needed a more stable environment, and that he was developing well in the ambience created by his mother and his maternal grandparents.
38. I.R. lodged an appeal on points of law. On 9 March 2009 it was struck out by the Bucharest Court of Appeal for failure to pursue the proceedings.
39. On 22 December 2006 I.R. lodged a request seeking to be granted resident parent status with respect to her son C.I.
She submitted that on 20 December 2006 C.I. had left his father’s house and moved in with her, and implicitly with his brother Th.N. and with her new family (husband and their few months’ old twins).
I.R. alleged that as a consequence of her tense relationship with the applicant, as evidenced by the several criminal complaints he had lodged against her, it had become very difficult for her to maintain contact with C.I., which also impeded the two children’s possibility of spending time together. In the autumn of 2006 her elder son had told her that he wanted to move in with her, to live with her and with his younger brother. His wish was allegedly motivated by his strong and affectionate relationship with his brother, but also by the fact that he felt neglected and badly treated at home, following his father’s moving in with his new girlfriend and her own eleven- year-old son.
40. The applicant denied these assertions. He reiterated that it was I.R. who had obstructed the development of a normal relationship between the brothers by not allowing him to take Th.N. according to the schedule approved in 2002 by the courts.
The applicant also filed counterclaims, asking to be granted custody of Th.N., mainly contending that I.R. would not be able to take care of all the four children she had, in view of the fact that she had many other responsibilities (I.R. being a doctor and a professor as well as a mother and a wife). Moreover, it was important for the children to be raised by their real father, and not a “surrogate father”, namely I.R.’s new husband.
41. On 5 February 2007 a report was drawn up by a social worker who had visited both parents’ homes and had interviewed the parties.
The report reiterated the fact that the intense, litigious past of the parties had decisively aggravated and strained the relationship between the parents, on the one hand, and between them and the children, on the other hand. Such incidents had also contributed to the fact that the two brothers had not been able to see each other as often as they wanted.
The social worker also interviewed C.I., who had stated that:
“he decided in desperation to escape from his father’s home by taxi, as he felt neglected, isolated, offended; he was not allowed to speak to his mother and to his brother Th.N., he was not allowed to have friends over, he did not have a good relationship with his father’s girlfriend or with her son, who had been living with them for the past three years; moreover, he (C.I.) was eager to meet his twin brothers and to spend more time with his maternal grandparents, whom he had not seen for the past five years.”
The report noted that at the time of the social worker’s visit, C.I. seemed very happy to stay at his mother’s house, together with all of his brothers, whom he loved, and with his mother’s husband, who was very open and fond of children. He expressed in categorical terms his intention to stay with his mother. He declared that his father had come three times to see him at school and made him believe that he would not oppose his wish to stay with his mother.
In conclusion, the report recommended that I.R. should be granted resident parent status with respect to C.I., as not only was this the child’s firm wish, but also, in the new family, the child had been greeted with much love, making him feel included and protected.
42. On 8 March 2007 the two children, aged ten and fourteen at the time, were heard by the court, separately and in camera. The judge noted Th.N.’s statements, according to which:
“he lived with his mother and with her husband, whom he loved more than he loved his dad; his father came several times to take him;
- two or three years ago, he spent the weekend with his dad, and was not allowed to sleep with his brother C.I, but instead he slept with his dad; on the second day he was sick, and when he was taken to hospital by his mother, it became apparent that he had been intoxicated with nicotine; before that weekend, he had spent two other weekends with his dad, but nothing bad had happened to him;
- last year, on 6 December, he went to the police with his mum, to meet his dad; he said that he did not want to leave with his dad, even though the policeman insisted that he do so;
- many times, his father had talked badly about his mum, telling him to stop living with her;
- prior to his parents’ separation, he had witnessed his father strangling his mother.”
C.I., for his part, declared that:
“- when his parents separated, he had decided to leave with his dad, as he had told him that mum had stolen money, and that mum did not care for him and would mistreat him; he witnessed some violent scenes when his father had forced mum to tell him where the money was;
- his brother had felt sick following a visit to their dad’s, and then his father had shown him a printed paper, telling him that it was proof that mum had given drugs to his brother;
- at his dad’s, he had felt that he was a burden; his father was not interested in him, did not help him with his homework, never asked anything about how he was getting along at school nobody hugged him while he lived with his dad;
- mum took care of him, helped him with his homework, bought him clothes, hugged and kissed him;
-he felt that he could not complain about all these things to anybody; he only saw his mum at school, and his dad was telling him bad things about her; he was afraid to complain to anybody for fear that his father would hear about it and beat him;
- his father had beaten him when he took some of his [father’s] own food; from that moment on, he had followed all the rules, for fear that he would otherwise be beaten;
- before he had left for his mother’s house, he had warned his dad that he would leave if he continued to behave in such a way, and his dad had told him that if he left, he should never come back;
- following his moving in with his mum, his dad had visited him at school every week, promising that he would change, blaming stress at work for his behaviour;
- if possible, he would like to stop seeing his dad.”
Several witnesses were also heard, mainly stating that the two brothers were well taken care of by their mother and that they were both happy together.
43. On 5 April 2007 the Bucharest (Second District) Court of First Instance allowed I.R.’s request to be granted resident parent status with respect to C.I.; at the same time, the court allowed the applicant contact, to be exercised during every first and third weekend of the month, from 6 p.m. on Friday to 6 p.m. on Sunday, but also for two weeks during the summer holidays and one week during the winter holidays.
In so doing, the court held that it was in the best interests of the minor to stay with the parent he felt closer to:
“Even assuming that the minor C.I. had only imagined a complete scenario of abuse and neglect from his father, the fact that he reproduced the same scenario to several people, as transpired from the evidence, proved the existence of a serious breakdown in communication between him and his father.”
Taking into account the child’s own choice, but also his best interests, on the basis of the file, the court held that C.I. should stay with his mother, while also allowing the applicant contact on an identical schedule to that set out with respect to Th.N. The court further held that concurrent efforts on the part of both parents were essential for the improvement of the father’s relationship with his two children.
In dismissing the applicant’s request to be granted custody of Th.N., the court held:
“The disputes between the parties regarding the enforcement of the judgment allowing the father contact are not a good enough reason to justify a change with respect to the custody of Th.N.; the father has at his disposal several procedural means aimed at addressing the non-enforcement of a judgment, but he must also find the appropriate means to allow him to grow closer to the child, while the mother’s duty is to explain to the child the importance of staying in touch with his father.”
44. The judgment was not appealed against and thus became final.
48. The relevant domestic legal provisions are set out in the Court’s judgments in the cases of Lafargue v. Romania (no. 37284/02, §§ 64-69, 13 July 2006), and Costreie v. Romania (no. 31703/05, §§ 55-58, 13 October 2009). The role and responsibilities of the local public authorities in respect of social assistance and child protection, as well as the relevant provisions of the Child Protection Act (no. 272/2004), are described in the judgment in the case of Amanalachioai v. Romania, (no. 4023/04, §§ 56 and 59, 26 May 2009).
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-114941
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LEW v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1954 and lives in Rzeszów.
6. The applicant is married and has children. Prior to her application for pension she was unemployed.
7. On 28 September 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called EWK pension.
8. Along with her application for a pension, the applicant submitted, among other documents concerning her son’s health condition, a medical certificate issued by a specialist medical centre on 28 September 2001 The certificate stated that the child (born in 1989) had suffered from bronchial asthma and allergy and that he was in need of the parent’s constant care.
9. On 16 October 2001the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 September 2001 in the net amount of 470 Polish zlotys (PLN).
10. On 3 June 2002 the Rzeszów Social Security Board requested the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On an unknown date the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
11. On 28 June 2002 the Rzeszów Social Security Board issued simultaneously two decisions for the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”).
12. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.
13. On 27 November 2002 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence, including expert medical evidence, that while indeed the applicant’s child suffered from bronchial asthma and allergy he did not require his mother’s permanent care since his health condition did not significantly impair his body functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care.
14. The applicant further appealed against the first-instance judgment.
15. On 21 May 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
16. On 19 February 2004 the Supreme Court (Sąd Najwyższy) dismissed the cassation appeal lodged by the applicant.
17. Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to the early-retirement pension.
18. The applicant submitted that after the revocation of the pension she had not received any benefits or allowances.
19. The Government submitted that prior to her EWK pension the applicant was unemployed except for two months in 2001 when she had worked. After revocation of the pension she worked for two months in 2004. The Government submitted that from 2004 until 2006 the applicant collected sickness allowance and rehabilitation benefit without specifying the amount. Moreover, the applicant’s husband had been employed since 1999 without interruption.
20. In addition, the Government submitted information as regards various types of social benefits available in Poland. However, they failed to specify which of those benefits, if any, were available in the applicant’s situation.
21. Under the relevant laws applicable at present, it appears that the applicant will qualify for a regular retirement pension in 2014.
22. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.
23. Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.
24. One hundred-and-four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eighty-one applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issue or make it necessary for the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or caused ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.
25. The legal provisions applicable at the material time and questions of practice are set out in the judgment of the case of Moskal v. Poland, no. 10373/05, § 31-34, 15 September 2009.
26. The re-opening of the proceedings concerning the early retirement pension is regulated in section 114 (1) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”), which at the relevant time read as follows:
“The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1) (a) was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
27. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court. A party had to be represented by an advocate or a legal adviser.
28. Article 3931 of the Code of Civil Procedure as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
29. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was well-founded the Supreme Court could also amend the impugned judgment and adjudicate on merits.
30. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 (3) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an age-limit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.
31. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 (3) of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.
32. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.
33. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-57450
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF BROGAN AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-5;No violation of Art. 5-1;No violation of Art. 5-4;Not necessary to examine Art. 13;Just satisfaction reserved
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos
TEXT: 11. The first applicant, Mr Terence Patrick Brogan, was born in 1961. He is a farmer and lives in County Tyrone, Northern Ireland.
12. He was arrested at his home at 6.15 a.m. on 17 September 1984 by police officers under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 ("the 1984 Act"). He was then taken to Gough Barracks, Armagh, where he was detained until his release at 5.20 p.m. on 22 September 1984, that is a period of detention of five days and eleven hours.
13. Within a few hours of his arrest, he was questioned about his suspected involvement in an attack on a police mobile patrol which occurred on 11 August 1984 in County Tyrone and resulted in the death of a police sergeant and serious injuries to another police officer. He was also interrogated concerning his suspected membership of the Provisional Irish Republican Army ("IRA"), a proscribed organisation for the purposes of the 1984 Act. He maintained total silence and refused to answer any questions put to him. In addition, he turned away from his questioners and stared at the floor, ceiling or wall and periodically stood to attention. He was visited by his solicitor on 19 and 21 September 1984.
14. The second applicant, Mr Dermot Coyle, was born in 1953. He is at present unemployed and lives in County Tyrone, Northern Ireland.
15. He was arrested at his home by police officers at 6.35 a.m. on 1 October 1984 under section 12 of the 1984 Act. He was then taken to Gough Barracks, Armagh, where he was detained until his release at 11.05 p.m. on 7 October 1984, that is a period of detention of six days and sixteen and a half hours.
16. Within a few hours of his arrest, he was questioned about the planting of a land-mine intended to kill members of the security forces on 23 February 1984 and a blast incendiary bomb attack on 13 July 1984, both of which occurred in County Tyrone. He was also interrogated about his suspected provision of firearms and about his suspected membership of the Provisional IRA. He maintained complete silence apart from one occasion when he asked for his cigarettes. In one interview, he spat several times on the floor and across the table in the interview room. He was visited by his solicitor on 3 and 4 October 1984.
17. The third applicant, Mr William McFadden, was born in 1959. He is at present unemployed and lives in Londonderry, Northern Ireland.
18. He was arrested at his home at 7.00 a.m. on 1 October 1984 by a police officer under section 12 of the 1984 Act. He was then taken to Castlereagh Police Holding Centre, Belfast, where he was detained until his release at 1.00 p.m. on 5 October 1984, that is a period of four days and six hours.
19. Within a few hours of his arrest, he was questioned about the murder of a soldier in a bomb attack in Londonderry on 15 October 1983 and the murder of another soldier during a petrol bomb and gunfire attack in Londonderry on 23 April 1984. He was also interrogated about his suspected membership of the Provisional IRA. Apart from one interview when he answered questions of a general nature, he refused to answer any questions put to him. In addition, he periodically stood up or sat on the floor of the interview room. He was visited by his solicitor on 3 October 1984.
20. The fourth applicant, Mr Michael Tracey, was born in 1962. He is an apprentice joiner and lives in Londonderry, Northern Ireland.
21. He was arrested at his home at 7.04 a.m. on 1 October 1984 by police officers under section 12 of the 1984 Act. He was then taken to Castlereagh Royal Ulster Constabulary ("RUC") Station, Belfast, where he was detained until his release at 6.00 p.m. on 5 October 1984, that is a detention period of four days and eleven hours.
22. Within a few hours of his arrest, he was questioned about the armed robbery of post offices in Londonderry on 3 March 1984 and 29 May 1984 and a conspiracy to murder members of the security forces. He was also interrogated concerning his suspected membership of the Irish National Liberation Army ("INLA"), a proscribed terrorist organisation. He remained silent in response to all questions except certain questions of a general nature and sought to disrupt the interviews by rapping on heating pipes in the interview room, singing, whistling and banging his chair against the walls and on the floor. He was visited by his solicitor on 3 October 1984.
23. All of the applicants were informed by the arresting officer that they were being arrested under section 12 of the 1984 Act and that there were reasonable grounds for suspecting them to have been involved in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. They were cautioned that they need not say anything, but that anything they did say might be used in evidence.
24. On the day following his arrest, each applicant was informed by police officers that the Secretary of State for Northern Ireland had agreed to extend his detention by a further five days under section 12(4) of the 1984 Act. None of the applicants was brought before a judge or other officer authorised by law to exercise judicial power, nor were any of them charged after their release.
25. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 ("the 1974 Act"). Between 1972 and 1983, over two thousand deaths were attributable to terrorism in Northern Ireland as compared with about one hundred in Great Britain. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism continued to thrive.
26. The 1974 Act came into force on 29 November 1974. The Act proscribed the IRA and made it an offence to display support in public for that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 30-33 below).
27. The 1974 Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976 when it was re-enacted with certain amendments.
Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the INLA as well as the IRA. It has been renewed every year but will expire in March 1989, when the Government intend to introduce permanent legislation.
28. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (for 1986 and 1987), who also completed in 1987 a wider-scale review of the operation of the 1984 Act.
29. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reviews concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions fell properly within the sphere of the executive.
30. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows:
"12 (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be
...
(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;
...
(3) The acts of terrorism to which this Part of this Act applies are
(a) acts of terrorism connected with the affairs of Northern Ireland;
...
(4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.
(5) Any such further period or periods shall not exceed five days in all.
(6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest
...
(d) Article 131 of the Magistrates’ Courts (Northern Ireland) Order 1981;
...
(8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section."
31. According to the definition given in section 14 (1) of the 1984 Act, terrorism "means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be "in wide terms" by the House of Lords, which rejected an interpretation of the word "terrorist" that would have been "in narrower terms than popular usage of the word ‘terrorist’ might connote to a police officer or a layman" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill).
32. Article 131 of the Magistrates’ Courts (Northern Ireland) Order 1981, declared inapplicable by section 12(6)(d) of the 1984 Act (see paragraph 30 above), provides that where a person arrested without warrant is not within twenty-four hours released from custody, he must be brought before a Magistrates’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest.
33. The Northern Ireland (Emergency Provisions) Act 1978 also conferred special powers of arrest without warrant. Section 11 provided that a constable could arrest without warrant any person whom he suspected of being a terrorist. Such a person could be detained for up to seventy-two hours without being brought before a court.
The 1978 Act has been amended by the Northern Ireland (Emergency Provisions) Act 1987, which came into force on 15 June 1987. The powers of arrest under the 1978 Act have been replaced by a power to enter and search premises for the purpose of arresting a suspected terrorist under section 12 of the 1984 Act.
34. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why.
In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. The High Court held that the officer had communicated the true ground of arrest and had done what was reasonable in the circumstances to convey to the applicant the nature of his suspicion, namely that the applicant was involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect.
35. The arresting officer’s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984).
36. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205 and Holgate-Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059).
On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12 (1)(b). He added (ibid.):
"... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated."
37. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister.
There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews appended to the Government’s memorial.
According to statistics quoted by the Standing Advisory Commission on Human Rights in its written submissions (see paragraph 6 above), just over 2% of police requests for extended detention in Northern Ireland between the entry into force of the 1984 Act in March 1984 and June 1987 were refused by the Secretary of State.
38. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment.
39. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12 (4) and (5) - see paragraph 30 above). Paragraph 5 (2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act "shall be deemed to be in legal custody when he is so detained". However, the remedy of habeas corpus is not precluded by paragraph 5 (2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit., at 18).
40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.
The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King’s Bench Reports 742 and R v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641).
The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has firstly established a prima facie case (Khawaja v. Secretary of State [1983] 1 All England Law Reports 765).
41. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause (Dallison v. Caffrey [1965] 1 Queen’s Bench Reports 348 and Van Hout, loc. cit., at 15).
In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate-Mohammed v. Duke, loc. cit.).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-5
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-80577
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KASZCZYNIEC v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1951 and lives in Szczecin.
5. On 7 March 1996 the Szczecin Regional Prosecutor laid charges of large-scale fraud against the applicant. On 17 April 1996 the prosecutor ordered his detention on remand in connection with those charges. He also issued a search and arrest warrant in respect of the applicant. Subsequently, on an unspecified date the prosecution received information that the applicant had left Poland.
6. On 7 October 1996 the prosecutor stayed the investigation due to the fact that the applicant was abroad. On the same day he issued an international search and arrest warrant for the applicant.
7. On 29 November 1996 the applicant was arrested in Germany.
8. On 19 March 1997 the German authorities extradited the applicant to Poland where he was placed in police custody. On 21 March 1997 the Szczecin District Court ordered his detention on remand on suspicion of large-scale fraud. His detention was subsequently prolonged on 16 September and 30 November 1997.
9. On 15 November 1997 the prosecution filed a bill of indictment with the Szczecin Regional Court. The applicant was charged with large-scale fraud to the detriment of the State Treasury. There were two other defendants in the case.
10. The Regional Court held hearings on the following dates: 22 January, 26 and 27 February, 2, 24 and 25 March, 20, 21 and 22 April, 16 June, 14 and 20 July 1998.
11. In the course of his original trial, the applicant lodged numerous unsuccessful applications for release and appealed – likewise unsuccessfully – against refusals to lift the detention. In his applications, he argued that his detention was excessive and had, for all practical purposes, amounted to serving a prison sentence. He asked the courts to release him either on bail or under police supervision, or to accept a guarantee from a responsible person or persons who would undertake to ensure his presence at trial, or to order him to surrender his passport, or to subject his release to all those conditions.
12. On 20 July 1998 the trial court gave judgment. It convicted the applicant as charged and sentenced him to 9 years' imprisonment and a fine. The court further ordered that the period spent by him in pre-trial detention from 29 November 1996 up to the date of his conviction be set off against the sentence imposed.
13. On 15 April 1999, on an appeal lodged by the applicant, the Poznań Court of Appeal quashed the first-instance judgment and remitted the case. The subsequent proceedings were conducted only against two defendants, including the applicant, as the third defendant had not appealed against the first-instance judgment.
14. On 28 December 1999 the Regional Court joined the proceedings in question to the other set of proceedings. The number of defendants increased to three.
15. The retrial was to begin on 28 March 2000 but was adjourned since one of the defendants had to undergo a psychiatric examination. The next hearing scheduled for 9 May 2000 had to be adjourned due to the illness of a lay judge. The Regional Court held the first retrial hearing on 20 June 2000. Subsequent hearings were held on 12, 18 and 19 July, 22 August, 20, 21 and 28 September, 17 and 18 October, 28 and 29 November and 20 December 2000.
16. In the meantime, on 20 May 1999 the Poznań Court of Appeal dismissed the applicant's application for release on bail or under police supervision, or under guarantee by a responsible person or under the condition that he surrender his passport. The court found that there was a considerable likelihood that he had committed the offence with which he had been charged. The court further noted that the applicant had already been detained on remand for some 30 months but it considered that, given that he had previously been sought under an international arrest warrant and that he was liable to a severe penalty, there was a real risk that he might obstruct the proper conduct of the trial. In the court's view, that risk justified his being kept in custody. That decision was upheld on appeal.
17. On 27 May 1999 the Court of Appeal prolonged the applicant's detention pending trial until 30 November 1999. The applicant appealed, invoking, inter alia, Article 5 § 3 of the Convention. He submitted that his right to trial within a reasonable time or to release pending trial was not respected. He also maintained that his detention was so excessive that it amounted in reality to serving a prison sentence.
18. On 4 August 1999 the Court of Appeal upheld the contested order. Repeating the grounds previously given for the applicant's detention, the court stressed that he had already evaded justice and an international arrest warrant had had to be issued. It considered that the trial had not progressed because of his conduct. In the court's opinion, those circumstances clearly indicated that there was a considerable risk that the applicant, if released, might again upset the proper conduct of the proceedings. Lastly, the court noted that he faced an exceptionally heavy sentence, which had already been shown by the severity of the penalty originally imposed at first instance.
19. On 27 August 1999 the Szczecin Regional Court dismissed an application for release on bail or subject to other guarantees or conditions. The court repeated the grounds previously invoked, attaching particular importance to the fact that he had earlier absconded and had already been sentenced to 9 years' imprisonment. In view of the severity of the sentence to which he was liable, the court considered that neither bail, nor police supervision nor any other guarantee would secure the proper course of the trial.
20. On 16 November 1999 the Regional Court extended the applicant's detention until 30 April 2000, repeating the grounds mentioned in the previous decisions.
21. The applicant appealed, maintaining, among other things, that there was no legal basis for keeping him in custody and that, pursuant to Article 263 §§ 3 and 4 of the 1997 Code, his detention could have been prolonged only by the Supreme Court because it had exceeded the maximum statutory period of 2 years laid down in paragraph 3 of that provision.
22. On 11 January 2000 the Court of Appeal rejected the appeal. It stressed that both the fact that the applicant had earlier evaded justice and the nature of his, in the court's words, “criminal relations” with certain witnesses involved in the case, indicated that detention was the only preventive measure which would effectively secure the proper course of the trial. As regards the legal basis for his detention, the court pointed out that – as had already been mentioned in the previous detention decisions – his detention continued on the grounds listed in Article 258 §§ 1 (2) and 2 of the 1997 Code as there was a risk that he might obstruct the proper course of the trial and a heavy penalty was likely to be imposed on him. Lastly, as to the question of which court was competent to prolong his detention, the Court of Appeal stated that the applicant had misconstrued Article 263 §§ 3 and 4 of the 1997 Code. That provision, the court added, indeed imposed a statutory time-limit of 2 years on pre-trial detention and laid down that only the Supreme Court could prolong it beyond that term. However, that rule applied only as long as there had been no conviction at first instance. Since the applicant had already been convicted at first instance, no time-limit for detention applied to his case, even though his original conviction had subsequently been quashed on appeal.
23. On 4 February 2000 the Regional Court dismissed a further application for release filed by the applicant in January 2000. It reiterated the grounds invoked in the previous detention decisions and added that, in the light of the material before it, there was a considerable likelihood that the applicant had committed the offence with which he had been charged.
24. On 25 February 2000 the Regional Court dismissed the applicant's subsequent application for release. It recalled that it had already ruled on numerous occasions on his detention. Noting that the applicant had not adduced any new relevant circumstances, the court found it unnecessary to address his arguments.
25. On 26 April 2000 the Regional Court prolonged the applicant's detention until 30 October 2000. It considered that the material gathered in the case justified the opinion that the applicant had committed the offence in question. It observed that a severe penalty (up to 9 years' imprisonment) might be imposed on him. Stressing that the applicant had evaded justice at the initial stage of the proceedings, the court also pointed out that his detention served the purpose of securing the proper conduct of the trial. Furthermore, the court found it necessary to extend his detention until 30 October 2000 because the summer holidays were approaching, which, for all practical purposes, meant that the examination of the case would be postponed.
26. On 15 September 2000 the Regional Court dismissed the applicant's further application for release.
27. On 21 September 2000 the applicant requested that the three sets of criminal proceedings conducted against him before the courts in Szczecin, including the proceedings at issue, be transferred to other courts. On 13 October 2000 his request was refused.
28. On 18 October 2000 the Szczecin Regional Court prolonged the applicant's detention until 30 January 2001. It reiterated all the grounds previously given for his detention. The applicant's appeal, based on Article 5 § 3 of the Convention, was rejected by the Court of Appeal on 31 October 2000.
29. On 12 January 2001 the Regional Court extended the applicant's detention until 30 July 2001. Upon the applicant's appeal, the Court of Appeal reduced the prolongation to 23 February 2001.
30. On 22 February 2001 the Regional Court ordered that the applicant be kept in custody until 24 April 2001. It further held that he could be released if he put up bail of PLN 40,000. The applicant appealed.
31. On 15 March 2001 the Court of Appeal quashed the Regional Court's decision. It ordered that the applicant should be released on condition that he put up bail of PLN 30,000 by 30 March 2001. The Court of Appeal further placed the applicant under police supervision and imposed on him a prohibition on leaving the country.
32. On 27 March 2001 the Regional Court ordered the applicant's release as he had paid the bail. He was released on the same day.
33. On 28 March 2002 the Szczecin Regional Court convicted the applicant of large-scale fraud and breach of official secrecy. It sentenced him to a cumulative sentence of 8 years' imprisonment and a fine. The applicant appealed.
34. On 12 February 2003 the Poznań Court of Appeal amended the Regional Court's judgment by reducing the applicant's cumulative sentence to 6 years' imprisonment. The applicant appealed.
35. On 1 March 2004 the Supreme Court dismissed the applicant's cassation appeal.
36. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated in the Court's judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-45, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
37. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3