Resolution CM/ResDH(2011)240

Execution of the judgment of the European Court of Human Rights
Rybacki against Poland

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the judgment transmitted by the Court to the Committee once it became final;

Case name (App. No.)	Judgment of	Final on	
Rybacki (52479/99)	13/01/2009	13/04/2009	

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;

DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ResDH(2011)240

Information about the measures to comply with the judgment in the case of
Rybacki against Poland

Action Report

Case description

This case concerns the excessive length of detention on remand of the applicant between 1996 and 1999, as the grounds for prolonging detention were neither “relevant” nor “sufficient” (violation of Article 5§3 of the Convention).

The case also concerns the violation of the applicant’s right to defend himself through legal assistance of his own choosing, since for over six months of his detention on remand, between May 1996 and November 1996, on the basis of the prosecutor’s decisions he could not communicate with his lawyer out of the earshot of the prosecutor or a person appointed by him (violation of Article 6§3 (c) in conjunction with Article 6§1).

The European Court of Human Rights noted that there were no sufficient grounds for imposing this restriction, there being no indication of a risk of collusion arising out of the lawyer’s contacts with the applicant. Neither the professional ethics of the lawyer nor the lawfulness of his conduct were called into question. The fact that throughout the period of the restrictions the prosecution authorities gathered very voluminous evidence and were actively preparing the bill of indictment taken together with the considerable length of that period can only strengthen the conclusion that the absence of unhindered contacts with the lawyer negatively affected the effective exercise of the applicant’s defence rights.

I. 	Individual measures

With respect to the violation of Article 5§3 of the Convention it should be noted that the impugned detention on remand is over. With respect to the violation of Article 6§3 (c) in conjunction with Article 6§1 of the Convention the applicant had an opportunity to seek reopening of the criminal proceedings pursuant to Article 540§3 of the Code of Criminal Procedure. The applicant did not submit any claims for just satisfaction. In these circumstances, no further measure appears necessary.

	II.	General measures

1. Violation of Article 5§3 of the Convention: General measures are examined in the context of the Trzaska group of cases (application no 25792/94).

2. Violation of Article 6§3(c) in conjunction with Article 6 § 1 of the Convention:

	a. Legislative changes: The Court has observed that the right of the defendant to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6§3(c) of the Convention. This right, which is not explicitly set out in the Convention, may be however subject to certain restrictions (§ 56 of the Court’s judgment).

Under Article 64 of the 1969 Code of Criminal Procedure, applicable at the relevant time, a defendant remanded in custody was entitled to communicate with his or her counsel in the absence of any other persons unless the prosecutor reserved the right to be present whenever the applicant saw his defence counsel (§ 30 of the Court’s judgment). This provision is no longer in force.

According to Article 73§4 of the new Code of Criminal Procedure of 1997 the request of the prosecutor to be present in person or to be represented by a person authorised by him when a detained person communicates with his counsel, cannot be maintained or made after the expiry of 14 days from the date of the detention of the suspect. This can be considered as a restriction allowed under the Convention.

Taking into consideration the legislative changes of 1997, no further measure appears necessary.

b. Publication and dissemination: The Court’s judgment was translated into Polish and published on the Internet site of the Ministry of Justice (www.ms.gov.pl). The judgment has been sent to all courts of appeal and the General Prosecutor’s Office with request to disseminate it among judges and prosecutors. It has been also sent to the National School of Judiciary and Public Prosecution with request to include it in the training program addressed to judges and prosecutors. The Ministry of Justice also requested the Central Board of Prison Service to disseminate the judgment among subordinate organizational units.

III.	Conclusions of the respondent state

The government considers that no individual measures are necessary in the present case and that the general measures adopted, in particular legislative changes, publication and dissemination of the judgment of the European Court of Human Rights, will prevent similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Convention with respect to the breach of Article 6§3(c) in conjunction with Article 6§1 of the Convention. Further, it notes that the general measures concerning the violation of Article 5§3 of the Convention are examined in the context of the Trzaska group of cases (Application No. 25792/94).