CASE OF GĘBURA v. POLAND
Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - financial award
Nicolas Bratza
5. The applicant was born in 1954 and lives in Starachowice. 6. The applicant was serving a prison sentence in Tarnów Mościce Prison following three separate convictions. The overall term of his imprisonment was due to come to an end on 6 January 2002. 7. Pursuant to the provisions of the Criminal Code applicable to re-offenders, the applicant became eligible for conditional release after having served three-quarters of the overall term of his imprisonment, namely on 6 January 1999. After that date, the applicant requested a court on several occasions to grant him conditional release. However, his requests were denied on grounds of insufficient progress in his rehabilitation. On 20 March 2000 the prison governor requested the Tarnów Regional Court (Sąd Okręgowy) to order the applicant's release (warunkowe przedterminowe zwolnienie) in view of his satisfactory rehabilitation. The Tarnów Regional Prosecutor objected to that request. 8. On 22 March 2000 the Tarnów Regional Court gave a decision ordering the applicant's conditional release for a three-year probationary period. It placed the applicant under the court officer's supervision and imposed certain other obligations on him. 9. The Tarnów Regional Prosecutor appealed against that decision. The Regional Court did not amend its decision and transmitted the prosecutor's appeal to the Cracow Court of Appeal (Sąd Apelacyjny). 10. The hearing before the Court of Appeal was scheduled for 12 April 2000 at 8.45 a.m. On that day the Cracow Court of Appeal upheld the decision of the Regional Court. No further appeal lay against the decision of the Court of Appeal. In the applicant's submission, the Court of Appeal's decision was delivered at 9 a.m. 11. Later on 12 April 2000, a certified copy of the Court of Appeal's decision was sent to the Tarnów Regional Court, which received it on 13 April 2000. On the same day the Tarnów Regional Court ordered the governor of the Tarnów Mościce Prison to release the applicant and served him with a copy of the Court of Appeal's decision. The governor received these documents on 14 April 2000. 12. According to the official release certificate, the applicant was released on 14 April 2000. The applicant submitted that he had been released on that date at 4 p.m. 13. Article 41 § 1 of the Polish Constitution provides as follows: “Inviolability and liberty of the person shall be afforded to everyone. Any deprivation or limitation of liberty may be imposed only in accordance with the principles and procedures laid down by statute.” 14. Article 77 § 1 of the 1997 Criminal Code reads as follows: “The court may conditionally release a person serving a prison sentence from serving the remainder of that sentence only when his/her behaviour, characteristics, personal circumstances and way of life prior to the commission of the offence, the circumstances in which the offence was committed and his/her behaviour following the commission of the offence and while serving a sentence, would justify a conclusion that, following [conditional] release, the person would abide by the law and, in particular, would not re-offend.” Article 78 §§ 1-3 of the Criminal Code prescribes the minimum prison term, depending on the type of sentence and offender, which must be served before a convicted person may apply for conditional release. However, the decision to grant conditional release is left to the discretion of the court, which must be satisfied that the conditions laid down in Article 77 § 1 of the Criminal Code are met. 15. When conditional release is granted, a convicted person should be released on completion of the necessary administrative formalities as specified in the Ordinance (Zarządzenie) of the Minister of Justice of 27 August 1998 on Administrative Acts concerning Execution of Pre-Trial Detention and Sentences and Coercive Measures resulting in Deprivation of Liberty. Paragraph 3 of that Ordinance states, in so far as relevant: “All administrative formalities shall be carried out without delay (niezwłocznie) ... This concern in particular (...) transmission of information and official notifications ... and releasing.” Paragraph 104.2 of the Ordinance provides that the convicted person should be released upon receipt of a copy of the enforceable decision granting him or her the conditional release. The release should be effected on the day of the receipt of the relevant documents by the prison (§ 104.3 of the Ordinance). The Ordinance does not prescribe any specific time-frame for the execution of the decisions granting conditional release. 16. The relevant domestic law and practice concerning the State's liability for torts committed by its officials are set out in paragraphs 34-37 of the Court's judgment in the case of Krasuski v. Poland, no. 61444/00, ECHR 2005–V (extracts).