CASE OF IWÁNCZUK v. POLAND
Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Georg Ress
8. The applicant, Krzysztof Iwańczuk, is a Polish national, who was born in 1962. He lives in Brzeg, Poland. 9. On 12 September 1991 the Wrocław-Krzyki District Prosecutor charged the applicant with forgery of various documents and use of counterfeit documents. On 14 May 1992 the Wrocław-Krzyki District Prosecutor issued a warrant of arrest against the applicant on suspicion of theft. On 22 May 1992 the Wrocław Regional Court dismissed the applicant’s appeal against the warrant of arrest. 10. On 24 July 1992 the Wrocław Regional Court decided to prolong the applicant’s detention until 15 November 1992. On 21 August 1992 the Wrocław Court of Appeal dismissed the applicant’s appeal against this decision. 11. On 12 September 1992 the Prosecutor charged the applicant with fraud. On 6 November 1992 the Wrocław Regional Court prolonged the applicant’s detention until 31 December 1992. On 18 December 1992 the Wrocław Regional Prosecutor changed the charges laid against the applicant into misappropriation. On 23 December 1992 the Wrocław Regional Court prolonged the applicant’s detention until 28 February 1993. 12. On 23 February 1993 the Wrocław Regional Court prolonged the applicant’s detention until 15 April 1993. On 18 March 1993 the Wrocław Court of Appeal dismissed the applicant’s appeal against this decision. 13. On 8 April 1993 the bill of indictment against the applicant was submitted to the Wrocław Regional Court. On 30 April 1993 that court prolonged the applicant’s detention for another three months. On 12 May 1993 the applicant appealed against that decision, and on 25 May 1993 completed his appeal by a request to be present at the court’s hearing concerning a further prolongation of his detention. 14. On 1 July 1993 the applicant requested the court to fix the date for a first hearing. On the same day the Wrocław Court of Appeal dismissed the applicant’s appeal against the prolongation of detention of 30 April 1993. 15. On 19 September 1993 at 9.30 p.m the applicant requested the prison authorities to allow him to vote in the parliamentary elections, as there were voting facilities for detainees in the Wrocław prison. The prison guard took him to the guards’ room. The applicant was then told by a group of four guards that in order to be allowed to vote he must get undressed and undergo a body search. The applicant took off his clothes except his underwear, whereupon the prison guards allegedly ridiculed him, exchanged humiliating remarks about his body and abused him verbally. The applicant was ordered to strip naked. He refused to do so and repeatedly requested permission to vote without a body search. As this was refused, the applicant was taken back to his cell without being allowed to vote. 16. A group of other prisoners who requested permission to go to the voting room at approximately 9 p.m. on that day, were also ordered to undergo the body search. 17. On 20 and 22 September 1993 the first hearing on the merits was held before the Wrocław Regional Court. 18. On 23 September 1993 the applicant brought an action before the Supreme Court, complaining that his right to vote had been breached in that he had been prevented from voting. He submitted that the requirement to undergo a body search was unjustified as there had not been any indications in his behaviour during the entire period of his detention that he might threaten the safety of other voting prisoners or guards. He complained of humiliation by the prison guards by vulgar comments and verbal abuse in the course of the events complained of. He submitted that there were about ten further guards present in the voting room. It was untenable to claim that he could present any danger to anyone when taken thereto, in particular as it had been ascertained that he could not have had any arms on him. 19. On 27 October 1993 the Supreme Court dismissed the applicant’s action. The court referred to a note concerning a conversation between the principal prison guard on duty on the material date and the president of the election committee in the prison, relating to the events. This note had been prepared upon a request of the Wrocław Regional Court, following the relevant enquiry of the Supreme Court for assistance in establishing the facts of the case. The Supreme Court noted that, according to the note, the prison guards had stated that the applicant could have a razor hidden on him and threaten the members of the election committee therewith. The court considered that the prison guards had been acting in conformity with the Rules of Detention on Remand of 1989, which provided that "if such a need arose, a detainee should undergo a search" and with the 1974 unpublished Ordinance on Prison Security, concerning, inter alia, body search of detainees. It was not certain, noted the court, whether at the material time this regulation had still remained in force, but it could not be held against the guards that they had acted according thereto. Thus it could not be established that on the part of the guards there had been intent to commit an offence, or to abuse their position. The Supreme Court concluded that the events complained of did not violate the applicant’s voting rights. 20. On 21 December 1993 the Wrocław Regional Court decided to release the applicant on bail of 2,000,000,000 (old) zlotys. Upon the applicant’s appeal, the Wrocław Court of Appeal upheld that decision on 5 January 1994, considering that there was no impediment to the bail being deposited in bonds or as a mortgage. 21. On 18 January 1994 the Wrocław Regional Court reduced the bail to 1,500,000,000 (old) zlotys. On 28 January 1994 the applicant requested that bail be accepted in the form of a mortgage on his property, and enclosed an estimate of his property made by an expert and an extract from the land register to the effect that he was the owner of the property concerned. 22. On 17 February 1994 the applicant complained that the Regional Court had failed to take any steps toward implementing its decision of 18 January 1994. He submitted that his detention after this date was unlawful, given that it should have been replaced by bail. He pointed out that he had submitted relevant documents relating to his property. 23. On 23 February 1994 the Wrocław Regional Court ordered that the bail must be deposited in cash or in State obligations. On 7 March 1994 the Wrocław Regional Court upheld this decision. On 31 April 1994 the Wrocław Court of Appeal quashed the decision relating to the sum of bail. On 19 April 1994 the Wrocław Regional Court lowered the sum of bail to 100,000,000 (old) zlotys in cash and mortgage of 750,000,000 (old) zlotys. On 5 May 1994 the applicant was released. 24. Hearings fixed for 30 May 1994, 28 July, 15 September, 1 December 1994 and 22 February 1995 were adjourned for unknown reasons. On 15 and 16 March 1995 the accused were heard by the court. 25. Subsequently, hearings fixed for 6 April, 16 May, 29 June, 7 September and 25 October 1995 were adjourned, also for unknown reasons. Next hearing was held on 14 November 1995 when the court completed the questioning of the accused. Next hearing, fixed for 5 December 1995, was also adjourned. On 16 and 17 January 1996 a hearing was held and certain witnesses were questioned. Hearing fixed for 2 February 1995 was adjourned. At the hearings on 22 February and 13 March 1996 the court questioned further witnesses. Subsequently, further hearings scheduled for 26 March, 11 and 25 April 1996 were adjourned. At the hearing on 20 May 1996 further witnesses were heard. The hearing fixed for 16 July 1996 was adjourned. 26. At the hearings held on 20 September, 24 October and 7 November 1996 further witnesses gave evidence. Hearings scheduled for 28 November, 19 December 1996, 30 January and 20 February 1997 were adjourned. On 13 March 1997 the court took evidence from further witnesses. Hearing fixed for 3 April 1997 was adjourned. 27. In 1997 hearings were held on the following dates: 24 April, 15 May, 4 and 19 June, 15 July, 2 September. 28. In 1998 hearings were held on 17 March, 7 April, 6 May, 10 June, 3 September, 27 October, 24 November and 22 December. 29. The next hearing was held on 12 January 1999. 30. During the hearings held in 1997 and 1998 the court heard eleven witnesses. 31. On 17 November 1999, at the 71st hearing held during the proceedings, the composition of the court changed, and, consequently, hearings in the case had to be recommenced. On 22 December 1999 and 16 February 2000 the court read out the bill of indictment. The date of the next hearing was fixed for 20 March 2000. The proceedings are still pending. 32. Pursuant to Section 11 of Rules of Detention on Remand of 1989, in force at the material time, body search of detained persons could be ordered at any time if such a need arose. Their clothes, underwear and shoes, as well as their cells, could be searched. This provision allowed for body search in particular when detainees left their cell and upon their return thereto, in particular during the night. 33. This issue was further governed by provisions of the unpublished Ordinance of the Minister of Justice of 6 March 1974 on Prison Security which provided in its Section 59 that detainees were subject to body search when they left their ward and upon their return. The body search was to be carried out in a separate room. A detainee undergoing the search should undress, their clothes, underwear and shoes should be carefully checked. 34. At the relevant time, the authorities competent to decide on detention on remand were set by Articles 210 and 212 of the Code of Criminal Procedure of 1969, which read as follows: Article 210: "1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)." 35. Article 212: "1. A decision concerning preventive measures may be appealed [to a higher court] ... 2. A prosecutor’s order on detention on remand may be appealed to the court competent to deal with the merits of the case...." 36. Article 225 of the Code of Criminal Procedure provided that detention on remand should be imposed only when it was mandatory; this measure should not be imposed if bail or police supervision, or both of these measures, were considered adequate. 37. Pursuant to Article 226 of the Code, bail, in form of cash, securities or mortgage, could be deposited by the accused, or by another person. Determination of the sum, form and all relevant modalities of the bail should be made, regard being had to the financial situation of the accused and, as the case may be, another person depositing bail, as well as to the assessed damage which could have been caused by the offence concerned and to the character of the offence.