CASE OF WITOLD LITWA v. POLAND
Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Marc Fischbach
6. The applicant, born in 1946, is disabled in that he is blind in one eye and his sight in the other is severely impaired. 7. On 5 May 1994 at noon the applicant, with the dog he uses as a guide dog, went to Kraków Post Office no. 30 to check his post-office boxes. He was accompanied by W.K. The applicant's post-office boxes had been opened and were empty. The applicant complained to the post-office clerks who subsequently called the police, alleging that the applicant was drunk and behaving offensively. 8. On the same day, at 12.20 p.m., the applicant was taken by police officers to the Kraków sobering-up centre (Izba Wytrzeźwień) and detained there for six hours and thirty minutes. The staff of the centre filled out a form recording the applicant's stay. 9. The form was pre-printed. It bore the number 006107/94 and was entitled “Card recording a stay in a sobering-up centre”. It had been filled out by hand. After details of the applicant's identity, the form was divided into seven sections. The first section, entitled “Request for admission”, indicated that the applicant had arrived at the centre at 12.45 p.m. The reason for the arrest was partly typed and partly handwritten. The operative part of section 40(1) of the Law of 26 October 1982 (cited below in paragraph 26) was typed in. The handwritten note read: “[The applicant] made a row at the post office in Urocza Osiedle.” 10. The second section, entitled “Doctor's assessment” and signed by a doctor, read: “1. Anamnesis: (1) Circumstances, kind and quantity of alcohol drunk, facts surrounding intoxication: [handwriting] evident smell of alcohol – refused to take a breath test ... 2. Examination of the person brought in: (1) Behaviour: lucid; unconscious; somnolent; talkative; calm; rowdy; reticent; composed [the words “lucid” and “talkative” were underlined by hand] (2) Mood: cheerful; depressed, average; excited [the word “average” was underlined by hand] (3) Walk: steady; unsteady; lack of balance [the word “unsteady” was underlined by hand] (4) Speech: clear; blurred; mumbling [the word “blurred” was underlined by hand] (5) Traces of vomit: visible; invisible [the word “invisible” was underlined by hand] (6) Pulse: regular; irregular; strong; weak [the words “regular” and “strong” were underlined by hand] (7) Heart: regular beat; irregular beat; clear tones; unclear [the words “regular beat” and “clear tones” were underlined by hand] (8) Pupils: wide; normal; abnormal; narrow; slow to react; no reaction [the word “normal” was underlined by hand] (9) Skin: pale; red; normal supply of blood; blue [the words “normal supply of blood” were underlined by hand] (10) Lungs: [illegible handwriting] (11) State of abdominal cavity: [handwriting] abdomen [illegible adjective] (12) Injuries: [handwriting] none (13) Other ailments: [handwriting] sight seriously impaired (14) Description of the state of the person examined: [handwriting] state of moderate intoxication [Print] As a result of the examination I find that the person brought in: (1) is in a state of intoxication justifying keeping him in a sobering-up centre for [handwriting] 6 [print] hours [that entry was underlined by hand] (2) should be taken to a public health-care establishment [not selected] (3) should not be placed in a sobering-up centre [not selected]” 11. The subsequent sections were entitled “III. Decision of the head of the centre/shift” and “IV. Objects to be kept in the centre's custody”. This section listed the objects taken from the applicant as follows: “... identity card [no.] DB 3429943; [illegible description of other documents]; 654,700 [old] zlotys (PLZ); Polyot watch [made of] golden metal; tear-gas gun; [illegible description of other items]; keys (eighteen); purse; jacket; shirt; trousers; belt; shoes.” 12. Section V, entitled “Alcohol taken from [the person concerned]”, contained no entry. Section VI, entitled “Stay in the sobering-up centre”, contained a list of the measures which could be applied to an intoxicated person (they included administering medicines, a warm or cold bath, solitary confinement, physical restraint by means of belts or a strait-jacket) and a description of his behaviour. The applicant's behaviour, mental and physical state were assessed as “good”. The last section, “VII. Release from the sobering-up centre”, recorded that after six and a half hours the applicant had been assessed by the doctor as “sober” and released at 7.15 p.m. A handwritten note indicated that the applicant had refused to sign the card. 13. On 10 May 1994 the applicant requested the Kraków District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against the police officers who had arrested him on 5 May 1994 and against the staff of the Kraków sobering-up centre. He alleged that the policemen had beaten him and complained about the behaviour of the staff of the centre. 14. On 29 May 1994 the applicant sued the Treasury in the Kraków Regional Court (Sąd Wojewódzki), seeking compensation “for unlawful attacks by agents of the State on 5 May 1994 and theft of personal possessions”. The court considered that the applicant's claim should be examined as a claim for compensation for manifestly unjustified arrest, under Article 487 of the Code of Criminal Procedure. 15. On 28 November 1994 the Kraków Regional Court dismissed the claim, finding that the applicant's arrest had been justified. That decision reads as follows: “On the basis of [the applicant's] testimony, written information from the XIIth Police Station and the [materials] contained in file no. 2 DS 1842/94 of the Kraków District Prosecutor, that is, the detention form ... no. 006107 containing the request for admission, we find that on 5 May 1994 [the applicant], being under the influence of alcohol, caused a disturbance of public order [zakłócił porządek publiczny] in Post Office no. 30 ... in Kraków. The police intervened at the request of the postal clerks. Since the arrestee smelt of alcohol, he was taken to the sobering-up centre, where, following a medical examination, he was assessed as being 'moderately intoxicated' and admitted. The above facts indicate that [the applicant's] arrest was justified. There is therefore no basis for awarding him compensation under the provisions of Chapter 50 of the Code of Criminal Procedure.” 16. On 1 December 1994 the Kraków-Śródmieście District Prosecutor, on suspicion that offences of assault, theft and infringement of the applicant's personal rights had been committed, opened an investigation relating to the applicant's complaint of 10 May 1994. 17. On 5 December 1994 the applicant appealed against the decision of the Kraków Regional Court of 28 November 1994. He argued that this decision was not based on any sound evidence, but only on the statements of the policemen. He further stated that he had been assaulted by the policemen and that his personal belongings had been stolen. The applicant relied on Articles 3, 6 § 1 and 8 of the Convention. 18. On 25 January 1995 the Kraków Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The reasons for its decision read: “The [applicant's] appeal is not justified. Contrary to his submissions, on the material date, that is, on 5 May 1994 [the applicant] was under the influence of alcohol; his state was described as 'moderate intoxication'. While in that state, he went to Post Office no. 30, where he disturbed public order. Employees at that office called the police ... [T]he policemen, finding that the applicant smelt of alcohol, took him to the sobering-up centre. As a result of the [medical] examination it was found that he was in a state of 'moderate intoxication' and detained until he sobered up. The applicant refused to take a breath test. The [applicant's belongings] were taken from him in the presence of the policemen and placed in the centre's custody. ... In that connection it must be said that the policemen did not rob the applicant. The policemen's intervention and the placing of the applicant in the sobering-up centre were justified. [We] cannot therefore share [the applicant's] view that the policemen committed robbery and that the applicant was arrested and placed in the sobering-up centre groundlessly.” 19. On 28 February 1995 the Kraków-Śródmieście District Prosecutor discontinued the investigation opened at the applicant's request. However, on 1 December 1995 the Kraków Regional Prosecutor (Prokurator Wojewódzki), upon the applicant's appeal, quashed this decision and ordered a supplementary investigation. 20. On 19 February 1996 a policeman from the Kraków-Grzegórzki police heard evidence from W.K., who had witnessed the events of 5 May 1994 at the post office. The relevant part of the latter's testimony read: “I have known [the applicant] since 1969 but we do not have regular contact and do not meet frequently. About one year ago, on a date which I cannot [now] specify, I met [the applicant] in Nowa Huta [a district of Kraków]. We went together to an optician and, then, to the post office. He did not tell me why he was going to the post office. He had his dog with him and, since no dogs were permitted to enter the office, I remained outside the building, holding the dog on the leash [at the applicant's request]. [The applicant] went into the building. After some time he came back, in a state of agitation, and said that either his post-office boxes had not been locked [by the postal clerks] or someone had broken into them. He immediately went back into the office. Out of curiosity, I followed him with the dog. Immediately afterwards, two policemen entered the building and approached [the applicant]. He told me to get the dog out of the building. At the same time, one of the policemen approached me and checked my identity card. I then left the building. When I was standing outside, I saw the policemen taking [the applicant] out of the building, escorting him to a patrol car and leaving. In my view, [the applicant] remained calm throughout this incident; therefore, I do not know why he was taken away by the policemen. I did not see the policemen hitting him while escorting him; they were holding him with their hands. I cannot recall whether or not [the applicant] told the policemen that the dog I was holding on the leash was his ...” 21. On 26 February 1996 the Kraków-Grzegórzki police discontinued the investigation, finding that no offence had been committed. The relevant parts of the reasons for the decision read: “Accordingly, evidence was heard from the policemen [involved in the incident of 5 May 1994]. They stated that [the applicant] had been brought to the [Kraków] sobering-up centre in connection with a row made by him and his state of intoxication. They did not hit him; they merely kept hold of him while taking him to a patrol car and putting him inside. They stated that [the applicant] had not had a dog with him and that, inside the post office, there was a man holding a dog [on a leash], namely W.K. However, nobody knew that this dog belonged to [the applicant]. ... A doctor from the [Kraków] sobering-up centre confirmed that [the applicant] had been intoxicated ...” This decision was confirmed by the Kraków-Śródmieście District Prosecutor on 27 February 1996. 22. On 5 March 1996 W.K., having been acquainted with the reasons for the above decision, made a statement before a notary. The relevant part of this statement read: “I, W.K., hereby declare before a notary that, after being acquainted with [the decision to discontinue the investigation], I disagree with the description [given therein] of events which I witnessed. When evidence was taken from me, I entirely denied the insinuation that [the applicant] had been drunk; ... I spent one hour with him prior to the incident and I [still] totally exclude such a possibility. [The applicant] did not make a row at the post office; he raised his voice merely in order to be heard above the clamour being made by a large number of clients ... about two hundred persons queuing at the post office counters at the same time. ... He loudly demanded to speak to the postmaster in order to obtain an explanation of why his post-office boxes had been unlocked ... and [why] one of these boxes had been broken. ... His dog remained outside because the building was overcrowded so the dog could not have been inside ... as the policemen claimed; they [simply] lied. The postmaster did not come to see [the applicant]; instead, the policemen appeared and demanded that we show them our identity cards. I gave them my card and [the applicant], calmly, gave his. They checked the cards thoroughly and made notes in their notebooks. By checking [the applicant's] documents they must have learnt that he was an invalid [i.e. that his sight was severely impaired] ... They gave me back my identity card but [the applicant] was taken to a patrol car and taken away. During his arrest [the applicant] behaved in a calm manner; he only requested the policemen either to let him take his dog with him or to ensure [that it would be taken by someone else]. I witnessed this. They did not respond to his request and left ...” 23. On 5 April 1996 the Kraków-Śródmieście District Prosecutor reopened, ex officio, the investigation into the events of 5 May 1994 but discontinued it on 23 May 1996, finding that no offence had been committed. 24. The Law of 26 October 1982 on Education in Sobriety and the Fight against Alcoholism (Ustawa o wychowaniu w trzeźwości i przeciwdziałaniu alkoholizmowi – “the Law of 26 October 1982”) lays down measures which may be applied in respect of two categories of persons: those “addicted to alcohol” and those who are “intoxicated”. Sections 21 to 38 deal with voluntary or compulsory treatment of “persons addicted to alcohol”, whereas sections 39 and 40 set out measures which may be applied to “intoxicated persons”. 25. Pursuant to section 39 of the Law, sobering-up centres shall be set up and managed by the authorities of municipalities with more than 50,000 inhabitants. 26. Section 40 of the Law (in the version applicable at the material time) provided, in its relevant part: “1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons' life or health, may be taken to a sobering-up centre or a public health-care establishment, or to their place of residence. 2. In the absence of a sobering-up centre, such persons may be taken to a [police station]. 3. [Intoxicated] persons who have been taken to a sobering-up centre or a [police station] shall remain there until they are sober but for no longer than twenty-four hours ... 4. Where it is justified to institute proceedings [in respect of an intoxicated person] with a view to [his undergoing] compulsory treatment [for addiction to alcohol], [the authorities concerned] shall immediately report [this fact] to the relevant committee for fighting alcoholism ...” 27. A person arrested and subsequently confined in a sobering-up centre under section 40 of the Law is not entitled to bring proceedings challenging the lawfulness of the deprivation of his liberty since, according to Article 206 of the Code of Criminal Procedure, only a person arrested on suspicion of having committed an offence may appeal against a decision to arrest him (see the Supreme Court judgment (no. I KZP 43/91) of 12 February 1992 reached by a bench of seven judges, OSNKW 1992/5-6/32). 28. The Ordinance of the Minister of Administration, Local Economy and Environmental Protection of 7 May 1983 on taking intoxicated persons to sobering-up centres, the organisation of those centres, the medical care provided by them and the fees for transportation to and staying in soberingup centres or police stations (repealed by an Ordinance of the Minister of Health and Social Care of 23 October 1996) set out detailed rules relating to detention in a sobering-up centre. 29. Article 9 of the Ordinance (in the version applicable at the material time) provided: “1. A person taken to a sobering-up centre shall promptly be given a medical examination. 2. Following the medical examination, a doctor shall ascertain whether such person should be placed in a sobering-up centre ..., or should be placed in a hospital or other medical establishment ..., or whether there are no signs of intoxication justifying a placement in a sobering-up centre.” 30. No provision obliged the authorities to carry out in addition any tests (such as blood or breath tests) to establish whether or not a given person was intoxicated. The relevant part of Article 16 of the Ordinance provided: “An alcohol-level test shall be carried out at the request of the intoxicated person ...” 31. According to Article 21 of the Ordinance, a person placed in a sobering-up centre was to be charged for both lodging and transportation there, at rates estimated to amount to, respectively, 20% and 4% of an average monthly salary in the public sector. If the person concerned did not have sufficient money, a sobering-up centre was entitled, under Article 22, to take a lien over his possessions. 32. Disturbance of public order (zakłócenie porządku publicznego) was at the material time a minor offence punishable under Article 51 of the Code of Administrative Offences. That Article, in the version applicable at the material time, provided: “1. Anyone who, by shouting or by noisy, alarming or other unruly behaviour disturbs the public peace or the public order, or a [citizen's] night rest or who behaves offensively in a public place, shall be liable to a maximum of two months' imprisonment or a fine of [between PLZ 100,000 and] 1,500,000 ... 2. If the behaviour in question is of a hooligan nature or the person concerned was intoxicated, he shall be liable to [a maximum of three months'] imprisonment ... or a fine [of between PLZ 100,000 and 5,000,000].” 33. On 8 September 1949 the Consultative Assembly of the Council of Europe adopted Recommendation 38. The text of the draft provision of the future Article 5 was contained in Article 2 and read as follows: “In this Convention, the Member States shall undertake to ensure to all persons residing within their territories: (1) Security of person, in accordance with Articles 3, 5 and 8 of the United Nations Declaration; ... (3) Freedom from arbitrary arrest, detention, exile and other measures, in accordance with Articles 9, 10 and 11 of the United Nations Declaration ...” 34. On 4 February 1950 the following amendment to Article 2 § 3 as drafted in Recommendation 38 was presented by Mr Salén (Sweden): “Article 2 § 3: add at the end: 'This provision should not exclude the right to take necessary measures to fight vagrancy and alcoholism or to ensure respect of obligations to pay a family upkeep allowance.' ” 35. On 6 February 1950, Mr Salén withdrew his amendment, “provided that the statement of reasons, incorporated in the Report of the Committee of Experts, stated clearly: '... that the text of Article 6 [at this point, a general clause authorising the limitation of guaranteed rights and freedoms in order to ensure the recognition and respect of rights and liberties of others and to satisfy the requirements of morality, public order and security in a democratic society] covers also the right of Member States to take the necessary measures to fight vagrancy and alcoholism and to ensure respect for the obligation to pay family upkeep allowance.' ” 36. The following commentary on Article 6 of the preliminary draft Convention was then recorded: “The Swedish representative further requested that it be put on record that the text of Article 6 covered, in particular, the right of signatory States to take the necessary measures for combating vagrancy and drunkenness [l'alcoolisme in the French text] or to ensure respect of obligations to pay alimony costs; the Committee [of Experts] had no doubt that this could be agreed to since such restrictions were justified by the requirements of public morality and order.” 37. From 6 to 10 March 1950, at the Second Session of the Committee of Experts, the counterpart of the present Article 5 § 1 of the Convention was discussed and redrafted eventually as draft Article 6. The following draft Article 6 was presented: “1. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest and detention of a person for non-compliance with the lawful order of a court, or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or which is reasonably considered to be necessary to prevent his committing a crime, or fleeing after having done so; (d) the lawful detention of minors by lawful order for the purpose of educational supervision; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholic or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or a person against whom deportation or extradition proceedings are pending.” 38. At this point, the French version of sub-paragraph (e) read as follows: “e) s'il s'agit de la détention régulière d'une personne susceptible de propager une maladie contagieuse, d'un aliéné, d'un alcoolique, d'un toxicomane ou d'un vagabond;” 39. Finally, on 3 November 1950, following the last examination of the text of the Convention by the Committee of Experts, the above text was replaced by the provision of the present Article 5 § 1 of the Convention; the changes made by the Committee of Experts were described as “formal corrections and corrections of translation”. It was on this occasion that in the English text the word “alcoholic” in sub-paragraph (e) was replaced by “alcoholics”.