CASE OF FRASIK v. POLAND
Remainder inadmissible;Violation of Art. 5-4;Violation of Art. 12;Violation of Art. 13;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
7. The applicant was born in 1975 and lives in Kraków. 8. On 5 September 2000 the applicant was arrested by the police on suspicion of having committed rape and uttered threats against a certain I.K. On 7 September 2000 he was brought before the Kraków-Śródmieście District Court (Sąd Rejonowy) and, upon the application of the Kraków-Śródmieście District Prosecutor (Prokurator Rejonowy), detained on remand for 3 months starting from the date of his arrest, that is, until 5 December 2000. 9. The court held that the evidence against the applicant, in particular his partial confession, justified a reasonable suspicion that he had committed the offences with which he had been charged. It also considered that there was a considerable risk that the applicant, if released, would obstruct the proceedings against him or induce witnesses to give false testimony. Moreover, one of the offences in question (rape) carried a maximum sentence of 10 years’ imprisonment, which made it likely that a severe penalty would be imposed on him. In sum, in the court’s opinion, keeping the applicant in custody was necessary to secure the proper conduct of the proceedings. Earlier, the applicant and I.K. had been in a relationship that had lasted some 4 years, but they had terminated it several months before the above events. 10. As regards the circumstances surrounding I.K.’s decision to ask the prosecution to institute criminal proceedings against the applicant, the Government submitted that, when testifying during the initial stage of the proceedings, she had stated that she had been afraid to terminate their relationship because she had been threatened by the applicant, and that on several occasions he had beaten her. On 21 December 2000, when the District Prosecutor again heard evidence from her, she confirmed her decision. 11. In the meantime, on 27 November 2000, the Kraków-Śródmieście District Court had extended the applicant’s detention until 5 January 2001, holding that the grounds stated in the initial decision remained valid. It added that his detention was necessary to secure the process of obtaining evidence from experts in sexology, forensic psychiatry and psychology. 12. The applicant appealed on 1 December 2000. He contested the factual basis for the rape charge, arguing that it was doubtful whether his acts could be qualified as rape, in particular as they had been directed against his co-habitee, I.K., whom he had beaten during intercourse because she had told him that she had had a relationship with another man. He had already confessed to battery. Moreover, since in his view it was the victim’s evidence, not his, that was the most relevant for the outcome of the proceedings, there was no risk of his exerting pressure on her. He also relied on Article 5 § 3 of the Convention, maintaining that, in these particular circumstances, his detention amounted to serving a prison sentence. 13. The appeal was examined and rejected by the Kraków Regional Court (Sąd Okręgowy) on 16 January 2001. The court held that the charges against the applicant were supported by the existing evidence and that keeping him in detention was justified by a serious risk of collusion and of his interfering with the collection of evidence. These conclusions were based on the fact that the applicant had threatened the victim and used physical violence against her, and that one of the offences carried a severe penalty. 14. Meanwhile, on 3 January 2001, the Kraków-Śródmieście District Court had prolonged the applicant’s pre-trial detention until 5 February 2001, relying on the grounds given in the previous decisions. The applicant appealed on 15 January 2001, again contesting the basis for the rape charge and submitting that there were serious doubts as to whether he had committed the offence since I.K. wished to marry him. 15. Earlier, on 11 December 2000, the applicant had asked the Kraków-Śródmieście District Prosecutor to release him under police supervision, stating that on 30 November 2000 he had received a visit from I.K. He had apologised to her and she had forgiven him for everything he had done. They wanted to get married and live a normal family life together. In consequence, she wished to withdraw all her accusations. As Christmas was approaching, he wanted to spend it with I.K. and her daughter to strengthen their relationship and make amends for all the harm he had done to her. He feared that his continued detention would be detrimental to their relationship and to I.K.’s young daughter, who treated him as her father and whom he treated as his own daughter. The District Prosecutor rejected the application on 15 December 2000. 16. On 2 January 2001 I.K. asked the District Prosecutor to release the applicant, unconditionally or under police supervision. She said that he had apologised and she had forgiven him. She thought he should be released because the time he had already spent in detention had changed him for the better and made him realise that what he had done was wrong. She believed that he would mend his ways as he was aware that if he did not he would be severely punished. She admitted that she had made her accusations against the applicant under the influence of the anger and pain he had caused her, adding that, for those reasons, she would like to be absolved from testifying against him. 17. On 3 January 2001 the applicant asked the District Prosecutor to release him under police supervision. He stated that he loved I.K. and had apologised to her and been forgiven. What had happened would never happen again. They wanted to get married and live together. They could move into a flat that he had meanwhile inherited from his grandfather. I.K. needed his financial support and help taking care of her daughter, whom he used regularly to fetch from school. He added that, having been in detention since 5 September 2000, he had understood that what he had done had been wrong. He knew that he would never do it again. He wanted very much to be with I.K. and make amends to her for what he had done. The application was rejected on 8 January 2001. 18. On 15 January 2001 the applicant also filed a complaint that his appeal of 1 December 2000 had been examined as late as 16 January 2001, that is to say six weeks later. This was incompatible with Article 5 § 4 of the Convention, which required the court to examine the lawfulness of his detention “speedily”. 19. On 24 January 2001 the applicant was indicted before the KrakówŚródmieście District Court on charges of rape and uttering threats. 20. On 7 February 2001 the Kraków Regional Court heard the applicant’s appeal of 15 January 2001 against the decision extending his detention until 5 February 2001. It dismissed the appeal, finding that the decision had been fully justified by the need to secure the proper conduct of the proceedings. In particular, the court stressed the risk of the applicant’s exerting pressure on I.K., especially in view of the fact that she had stated during the investigation that even when in detention he had sent her a letter hinting that after his release he might seek revenge on her. Moreover, the offence of rape carried a maximum sentence of 10 years which, together with the serious circumstances of the incident as related by I.K., gave sufficient grounds to believe that the applicant, given the severity of the penalty, might be prompted to bring pressure to bear on her in order to make her refuse to testify, or change her testimony. 21. The trial started on 1 March 2001. I.K. stated before the court that she “was a family with the applicant” and wished to exercise her right not to testify. 22. On 26 March 2001 the District Court ordered that the applicant be held in detention pending trial until 5 June 2001. In particular, it relied on the risk of his bringing pressure to bear on I.K. It further reiterated all the previous grounds for his continued detention. 23. The applicant appealed and again contested the factual basis for the rape charge and stressed that his detention had exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention. 24. In the meantime, presumably on 2 April 2001, I.K. had made a written declaration to the court, submitting that she wished to exercise her right not to testify because she was, as defined in Article 185 of the Code of Criminal Procedure (Kodeks postępowania karnego), “in a particularly close personal relationship” (w szczególnie bliskim stosunku osobistym) with the applicant. She also asked the court to release the applicant and stated that she wished to marry him. 25. On 23 April 2001 I.K. repeated that statement at a hearing and asked the court to absolve her from her duty to testify. However, the court rejected her request. It held, first, that her refusal was dictated by her fear of the applicant rather than by her affection for him and, secondly, that their relationship – both past and present – lacked the necessary psychological, physical and financial bonds to be regarded as a de facto marriage and, consequently, a “particularly close personal relationship” within the meaning of the Code of Criminal Procedure that would override her duty to testify against the applicant at the trial. Since I.K. persisted in refusing to testify, the presiding judge imposed a fine on her for obstructing the trial. On 30 April 2001 I.K. unsuccessfully appealed against the court’s decision to fine her for refusing to testify. She again stated that she did not want to testify against the applicant. 26. On 24 April 2001 the Regional Court dismissed the applicant’s appeal against the decision of 26 March 2001, holding that the District Court had correctly assessed the evidence before it and had rightly concluded that it fully indicated the probability that the applicant had committed the offences with which he had been charged. It also analysed the circumstances surrounding I.K.’s refusal to testify, explaining that, even though she had again informed the trial court that she would like to exercise her right not to testify because she regarded herself as a “person in a particularly close relationship” with the applicant, that question had to be decided finally by the trial court. In the Regional Court’s opinion, regardless of how the trial court eventually qualified their relationship there was still the risk that the applicant would attempt to influence the witness, especially in view of his previous aggressive behaviour towards her. Lastly, referring to the complaint of a breach of Article 5 § 3, the court rejected the applicant’s arguments as to the allegedly excessive length of his detention. It observed that the District Court had proceeded swiftly with the trial. Since 24 January 2001, the date on which the bill of indictment had been lodged, it had already held 2 hearings and, as it had heard most of the evidence, the first-instance proceedings were soon to be concluded. 27. During the proceedings the applicant sent numerous letters to I.K. In May 2001 their number reached 140. 28. Subsequently, the District Court gave two further decisions prolonging the applicant’s detention. On 21 June 2001 it extended his detention until 5 October 2001 and on 3 October 2001 until 5 December 2001. The court relied on the grounds given in the previous decisions, attaching special importance to the risk of the applicant’s tampering with the witness I.K. At that time the witness still maintained her decision to marry the applicant and her refusal to testify. 29. The applicant unsuccessfully appealed against those decisions, submitting that the trial court, by holding him in custody, repeatedly imposing fines on I.K. and refusing to grant them leave to marry in prison, had not only penalised him without him having been convicted but also showed no respect for their private life. In his view, this amounted to a “misunderstanding” and unjustified interference with their right to private life. He also relied on the fact that I.K. had stated before the court that she “no longer felt that she had been raped”, maintaining that the change of both parties’ attitude to each other and to the applicant’s deed was an important circumstance militating in favour of his release. In his appeals, he invoked Article 5 § 3 and Article 12 of the Convention. 30. Before the end of the trial I.K. eventually testified, stating, among other things, that she no longer considered that the applicant had raped her and that she had forgiven him. 31. On 19 November 2001 the Kraków-Śródmieście District Court convicted the applicant as charged and sentenced him to 5 years’ imprisonment. It ordered that the applicant be held in custody pending the outcome of his appeal. 32. On 7 May 2002 the Kraków Regional Court heard the applicant’s appeal. It upheld the conviction but reduced the sentence to 3 years’ imprisonment, finding that the complete change of the victim’s attitude to the applicant over the course of the proceedings fully justified the reduction. It also observed that that change could not have been dictated simply by her fear of the applicant because, had it been so, she would have preferred to have him locked up for the longest period possible. 33. The applicant filed a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). The Supreme Court heard and dismissed the appeal on 27 May 2003. 34. On 24 April 2001 the applicant asked the trial court to grant him leave to marry I.K. in the Kraków Remand Centre. He maintained, among other things, that they both wished to solemnise their relationship and that they had already planned to get married in the past. In April 1999 their plans were delayed because I.K., who had been pregnant with their child, had had a miscarriage. The next date was to be fixed for December 2000 but that fell through because he was arrested and detained on remand in September 2000. 35. On 15 May 2001 I.K. requested the Kraków-Śródmieście District Court to grant them leave to marry in prison. She stated that they had been together for 4 years and remained in a close relationship for 3 years. She also referred to their past decisions to get married – which had not been realised because of her miscarriage in 1999 and, as regards the plans to fix a marriage date in December 2000, because the applicant had been arrested. Furthermore, she submitted that their marriage would also be important for her daughter, who had developed a close emotional bond with the applicant, treated him as her father and missed him badly. Finally, she said that she loved the applicant very much and asked for her request to be granted. 36. At the hearing held on 21 May 2001 the applicant again asked the court to grant him leave to marry I.K. in prison. He said that he loved her very much and would like to marry her as soon as possible. I.K., summoned by the presiding judge to the hearing room, confirmed that she had already applied to the court for leave to marry the applicant in the Kraków Remand Centre. She asked the court to enable her to contact him in order to discuss arrangements for the marriage. She continued to refuse to testify against him, saying that she loved him very much and deeply regretted what she had said at the police interview. She asked the court to regard her as his common-law wife. 37. On 2 July 2001 the applicant again asked the District Court for leave to marry in the Kraków Remand Centre, maintaining that the judge had informed him at the hearing of 21 May 2001 that leave had been granted and that he would receive it in writing. He further asked the court to grant him permission to have photographs taken of the ceremony and to serve light refreshments, such permission being required by the Governor of the Kraków Remand Centre in order to organise the event. 38. By a letter of 11 July 2001 the presiding judge informed the applicant, his lawyer and I.K. that their requests for leave to marry in the remand centre had been refused. The letter read, in so far as relevant, as follows: “The Kraków-Śródmieście District Court Second Criminal Division hereby informs you that the application for leave to contract a marriage in prison made by the accused Rafał Frasik and the injured party (pokrzywdzona) [I.K.] has not been granted in view of the interests of the proceedings. A prison or remand centre is no place to hold ... ceremonies so important in a person’s life as a wedding. In this court’s opinion no circumstances justify contracting a marriage in the remand centre. If indeed – which in the court’s view is doubtful – the accused and the injured party are sure of their decision that is so important for them and for their families and want to hold a ceremony, they may plan it for another time and in another place than a remand centre. It should be noted that marriage is always connected with a ceremony and the participation of other persons whose presence is obligatory; certainly, the conditions in a remand centre or prison are not suitable for it. If the accused and the injured party have known each other for 4 years and they have not yet managed to officialise their life, in the circumstances of the present case their sudden decision to enter into a marital union sheds doubt on their intentions, to say the least. The accused and [I.K.]’s decision to marry has emerged at a particular moment in the course of the proceedings, namely when the court refused to consider [I.K.] as a ‘close person’ (osoba najbliższa) – [a status] which would have given her the right to refuse to testify – and when it imposed a fine on her for unjustified refusal to testify. Thus, the court cannot but find that a request for leave to contract a marriage [made] at this particular time is a further attempt to persuade the court that the relations between the accused and the injured party are of a close nature – which, in reality, in the court’s opinion, is not the case and was invented only for the sake of the proceedings.” 39. The applicant’s lawyer replied to the letter on 6 August 2001. He stated that the court’s arguments could not erase the applicant’s and I.K.’s right to marry guaranteed by Article 12 of the Convention. He added that the mere fact that he was in detention did not deprive him of that right. 40. It appears that later the applicant and I.K. made further requests for leave to contract their marriage in the remand centre, but to no avail. 41. In his cassation appeal against the Regional Court’s judgment of 7 May 2002 the applicant invoked Article 12 of the Convention as one of the legal grounds for the appeal. The Supreme Court, in its above-mentioned judgment of 27 May 2003 (see paragraph 33 above), held that the refusal to grant the applicant leave to contract a marriage in prison constituted a violation of Article 12 of the Convention. Nevertheless, in the Supreme Court’s view, this kind of – admittedly serious – breach of the law on the part of the trial court did not have any real bearing on the applicant’s conviction and could not result in it being quashed. 42. The relevant part of the reasoning of the Supreme Court’s judgment reads as follows: “However, one must agree with the appellant that there has been a violation of Article 12 of [the Convention] in the present case. This provision concerns the right to marry and in this context the European Court of Human Right’s case-law states that a detainee cannot be prohibited from marrying, except in order to prevent fictitious unions .... However, in the court’s decision refusing the request made by the injured party and the accused for leave to marry, it was observed that if they had known each other for 4 years and had not managed to officialise their life “their sudden decision to enter into a marital union shed doubt on their intentions”, especially as the request “emerged at a particular moment ... when the court refused to consider [I.K.] as a ‘close person’”; this, in the [court]’s view, was accordingly merely “a further attempt to persuade the court that the relations between the accused and the injured party [were] of a close nature, which, in reality ... [was] not the case”. These arguments are not convincing. It is in a way natural that the request for leave to contract a marriage emerged after the court’s refusal to recognise the injured party’s status at the trial because the injured party and the accused had previously regarded themselves as close persons. It is also evident that if the accused had not been kept in detention but had been released, there would have been no obstacles to his contracting a marriage. Only his incarceration made it impossible for him and the injured party to decide autonomously to get married. A prospective nuptial couple (nupturienci) do not have to prove and demonstrate to the relevant authority the depth of their feelings justifying their marriage. The court’s decision, especially in view of the reasons given for it, was consequently wrong and amounted to a flagrant breach [of the law] since it infringed the standards laid down in the European Convention on Human Rights, which is binding on Poland.” 43. The relevant domestic law and practice concerning the detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 44. As regards the general situation of a detainee, during criminal proceedings against him he is considered to be “at the disposal” (w dyspozycji) of the authority – be it a prosecutor or a court – currently dealing with the case. One of the consequences of this is that a detainee wishing to have visits from relatives in prison, or a visit from any third person or, as in the present case, to contract a marriage during his detention, must first obtain leave from the relevant authority. While the number and nature of visits in prison are regulated by the provisions of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) and the Rules for Execution of Detention on Remand (Regulamin wykonywania tymczasowego aresztowania), such matters as leave to contract a marriage in prison are entirely at the competent authority’s discretion. 45. The Code of Criminal Procedure grants an unqualified right not to testify only to the accused’s closest relatives and an accomplice witness who has been charged with the same offence in another case (Article 182). Except for national security, in all other situations, even such as client-lawyer privilege, doctor-patient privilege and journalist privilege, the prosecutor or the court can either absolve witnesses from their duty not to disclose confidential information or order them to testify (Article 180). 46. According to Article 185, a similar rule applies to persons who are in a “particularly close personal relationship” with the accused. This provision reads as follows: “A person who remains in a particularly close personal relationship with the accused may, if he or she has so requested, be absolved from testifying or from replying to a question.” 47. In the light of the Supreme Court’s case-law and legal writing, a “particularly close personal relationship” is generally defined as a strong and long-lasting emotional bond between the accused and the witness, resulting, for instance, from friendship, colleagueship, engagement, cohabitation or tutorship such that the act of testifying causes the witness internal conflict. 48. Under the provisions of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) the registrar of the relevant Registry Office (Kierownik Urzędu Stanu Cywilnego) may refuse to solemnise a marriage only if there exists a statutory obstacle rendering the marriage null and void, such as age, legal incapacity, mental disorder, bigamy, close affinity of the parties or adoptive relationship (Articles 5, 10 11, 12, 13, 14 and 15). In case of doubt, the registrar must ask the competent court to rule on whether the marriage can be contracted (Article 5). Pursuant to Article 4, a marriage before the registrar may not be concluded until 1 month after the persons concerned have made a written declaration that they have no knowledge of any statutory obstacle to the solemnisation of their marriage. At their request and for important reasons, the registrar may solemnise the marriage before the expiry of that term. 49. Article 6 of the Family and Custody Code lays down the rules for a proxy marriage. Contracting a marriage through a representative is subject to leave that can be granted by a family court in a non-contentious procedure. It depends on two principal conditions. First, the court must be satisfied that there exist “important reasons” justifying the departure from the normal procedure. Secondly, the applicant’s signature on a proxy must, on pain of being null and void, be made in the presence of a notary, who confirms its authenticity by a special declaration. The Supreme Court’s case-law and the practice of the domestic courts in respect of proxy marriage is very scant. A few existing rulings of the Supreme Court relate to applications by foreigners for leave to contract proxy marriages with Polish women and date back to the 1970s. 50. The Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of the enforcement of custodial sentences and detention on remand that may be relevant to the present case. Rule 3 reads: “Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.” Rule 70 reads, in so far as relevant: “1. Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or any other competent authority. ... If the request is denied or a complaint rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.”