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FOURTH SECTION

Application no. 32420/07
Maria Ewa SKOWRONSKA-DZIEDZIC and Izabela DZIEDZIC
against Poland
lodged on 26 July 2007

STATEMENT OF FACTS

1.  The applicants, Ms Maria Ewa Skowronska-Dziedzic and Izabela Dziedzic, are Polish nationals who were born in 1973 and 2006 respectively and live in Krakow.

A.  The circumstances of the case

2.  The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  The background of the case

3.  From August 2000 until February 2005 the applicant worked as an accountant at a company belonging to certain M.D. In September 2004 M.D. was arrested on suspicion of corruption.

4.  On 3 February 2005 the applicant was arrested on charges of tax fraud, issuing forged invoices and doctoring financial documents. Her apartment was searched; the items found there were returned to her as they did not constitute any evidence. The next day she was released on bail of 30,000 PLN.

5.  Subsequently the applicant was summoned for interrogation at the prosecutor’s office in July 2005 and at the Fiscal Control Office twice in August 2005 and once in November 2006. She showed up every time.

On 13 June 2006 the applicant’s mother’s apartment was searched, as was her husband’s apartment the next day. The same documents which had been previously returned were seized.

2.  The first applicant’s detention and the conditions of detention

6.  On 24 November 2006, at six o’clock in the morning, the officers of the Central Investigation Bureau (Centralne Biuro Sledcze) arrested the applicant at her husband’s apartment in Krakow.

The applicant was at that time nine months pregnant. She told the officers that several weeks before she had had some complications and had been hospitalised. Nevertheless she was transferred to the prosecutor’s office in Katowice where she was examined by a doctor. The doctor issued an opinion that the applicant was fit for interrogation and detention. Apparently the doctor authorised her detention until the expected date of delivery.

7.  The applicant submits that before the interrogation the prosecutor had told her that in the worst case scenario she would be transported to a detention centre 550 km away. She understood this as a threat in case she did not confess or incriminate her boss. The applicant was then interrogated and presented with some additional charges. She faced eleven charges altogether: one count of forging financial documents, false attestations and forging signatures, two counts of issuing forged invoices and six counts of producing a forged invoice at a fiscal office.

8.  Around 8 p.m., the applicant was transported from the prosecutor’s office to the court where she was presented with the decision ordering detention on remand for three months.

The decision stated that there was a possibility that the applicant might obstruct the conduct of the investigation and that investigative measures had to be carried out with the participation of the applicant. It was also noted that the applicant risked a severe punishment which might encourage her to obstruct the investigation. It was established that none of the prerequisites listed in Article 259 of the Code of Criminal Procedure existed. (Article 259 stipulates that detention should not be ordered where it would be dangerous for the life or health of the individual or where it would cause extreme hardship for the suspected individual or their family.) The court also noted that according to the doctor’s opinion the applicant was fit for detention.

9.  Subsequently the applicant was transported to the prison in Grudziadz, 550 kilometres away, in a vehicle with a bed inside. However she found it impossible to take a rest and fall asleep. Early in the morning she was admitted to the prison in Grudziadz. She submits that she was allowed to rest until 10 p.m.. Hence she did not sleep for 40 hours.

10.  The applicant stayed in the prison wing adapted for pregnant women. She was provided with a gown and a robe but not with slippers, so she had to wear her winter boots which she had on when she was arrested.

11.  On 4 December 2006 the applicant had some complications - the baby’s pulse was unstable - and on 5 December 2006 the applicant was transported to a local hospital where she went into labour. The prosecutor was informed about the events.

12.  At 9.30 a.m. on 6 December 2006 two male officers of the Central Bureau of Investigation entered her room in order to conduct some investigative measures (apparently to obtain a sample of the applicant’s handwriting). The officers conducted the activities in between the contractions. During the contractions they paused and started again when the contraction was over. The applicant submits that the officers were present in her room for about one hour and the activities were conducted in the presence of a lawyer hired by the applicant’s husband. The same day at 8.25 p.m. the applicant’s daughter (the second applicant) was born.

13.  On 21 December 2006 the first applicant’s husband requested the prosecutor’s approval for delivery of the following items: a kettle, legal books, an emery board, toilet paper, slippers, underwear, tights, a storage bag, outerwear for the baby and a watch.

On 29 December 2006 the prosecutor agreed to the delivery of an emery board and toilet paper and stated that he had no competence to permit the other objects. On 5 January 2007 the prosecutor agreed to the delivery of sanitary articles, clothing and underwear for the first applicant. The prosecutor informed the first applicant’s husband that the delivery of clothing, sanitary articles and food for the baby was outside of his competence.

14.  During the detention, the first applicant was not allowed to see her husband (Mr Dziedzic, who also lodged an application with this Court, no. 62637/11) or other family members, although they asked for permission. On 27 November 2006 the prosecutor in Katowice refused the applicant’s husband permission to visit her. On 12 January 2007 the prosecutor refused a visit from other family members. The prosecutor relied on Article 217 § 1 of the Code of Execution of Criminal Sentences as in force at the material time.

15.  Apparently the second applicant was allowed to spend time with her father only twice – each time for 30 minutes. It appears that the prosecutor did not prevent the father from visiting the second applicant. However it was considered that this was difficult to arrange. It is not clear who was in charge of making decisions regarding the possibilities for the second applicant to be visited by her father.

16.  On 29 January 2007 the prosecutor from the Katowice office decided to release the first applicant. He stated that the investigation was pending and that ongoing detention would cause extreme hardship for the applicant and her new-born baby. On 30 January 2007 the applicant was released on bail of 60,000 PLN. On 19 February 2007 the bail of 30,000 PLN imposed on 4 February 2005 was rescinded.

3.  Judicial review of the legality of detention

17.  The applicant and her attorney appealed separately against the 24 November 2006 decision of the Katowice District Court.

The applicant’s lawyer lodged his appeal on 27 November 2006. The lawyer pointed out that there was no danger of obstructing the investigation, as the proceedings were pending for some time before the actual arrest, the applicant had already been heard several times and she was aware of the nature of the charges. He argued that had the applicant wanted to manipulate witnesses she would have already done so. The lawyer also referred to the first applicant’s pregnancy and argued that having to deliver her first baby in the prison would cause extreme hardship to the applicant, her husband and the baby. He requested the court to consider the case from a purely humanitarian point of view.

18.  On 15 December 2006 the applicant was informed that the hearing was scheduled for 20 December 2006. On 3 January 2007 she was informed that a hearing was scheduled for 5 January 2007. Later the applicant had learnt that there were some problems with transporting the file from one court to another and therefore there had been no hearing on 20 December 2006.

19.  On 16 January 2007 the applicant was informed that the second instance court had upheld the order for detention. The Katowice Regional Court reasoned that the detention was justified as there existed a possibility of interfering with the conduct of the investigation, the possibility of a severe punishment being imposed and that the detention on remand would not cause extreme hardship for the suspected person or her family.

20.  The applicant’s appeal was left unexamined by virtue of the 17 January 2007 decision of the Katowice Regional Court. The court reasoned that the applicant’s lawyer’s appeal had already been dismissed; hence the decision about the remand was already final.

21.  On 6 July 2009 the prosecutor’s office in Tarnow instituted proceedings regarding the abuse of power by the officers inter alia in the course of the proceedings against the first applicant in that she was arrested at the very end of her pregnancy and that she was interrogated while being in labour.

22.  On 15 April 2010 the investigation was discontinued. The prosecutor reasoned that, prior to the arrest, the applicant was examined by a doctor who found her fit for detention. As to the interrogation, the prosecutor reasoned that the applicant had agreed to participate in the investigation.

23.  On 5 May 2010 the applicant lodged an appeal against that decision. The first applicant pointed out that she did not object to the interrogation in the hospital because on that day she was in a very bad physical and psychological condition; she was in pain and feeling helpeless and vulnerable.

24.  On 23 February 2011 the Katowice District Court upheld the prosecutor’s decision as to the detention but quashed and remitted the part regarding the interrogation while the applicant was in labour. The court held that no medical opinion had permitted the interrogating of the applicant. Referring to the issue of consent, the court pointed out that the very special circumstances and the applicant’s very vulnerable position should have been taken into account. It elaborated on the notion of degrading and inhuman treatment and concluded that subjecting a woman in labour to interrogation inevitably caused her feelings of humiliation. The court pointed out that the labour had commenced on 5 December 2006 in the evening and the CBI officers had interrogated her on 6 December 2006 in the morning. The timing itself required an assessment of whether the applicant was treated in a human way. The court included a number of recommendations for the investigation. Apparently the investigation is underway.

4.  Opinions of the Ombudsman and the State Prosecutor

25.  The first applicant’s husband informed the Ombudsman’s office and the State Prosecutor Office at the Ministry of Justice about his wife’s and his daughter’s ordeal.

26.  On 11 January 2007 the representative of the Ombudsman visited the prison in Grudziadz; however he was not allowed to talk to the first applicant. The prison authorities informed him that only the prosecutor could make that decision. Apparently, following the phone conversation, the prosecutor did not agree that the Ombudsman’s representative could talk to the applicant.

27.  On 15 January 2007 the Ombudsman wrote a letter to the Minster of Justice in which he expressed his astonishment that his representative was not allowed to talk to the applicant. The Ombudsman argued that this constituted a violation of Article 13 of the Act of 15 July 1987 (on the Ombudsman).

28.  In a letter dated 23 January 2007 the Ombudsman informed the applicant’s husband that in his opinion the detention was not necessary and that the danger of obstructing the investigation was minimal as the main suspect (Mr M.D.) had already been arrested and detained. The Ombudsman considered that it was entirely groundless to refuse the applicant permission to see her husband, especially after the baby had been born. According to the Ombudsman, the Deputy State Prosecutor shared the same view.

29.  In a letter dated 2 February 2007 the prosecutor at the Ministry of Justice State Prosecutor Office informed the first applicant’s husband that the applicant had been arrested in accordance with the law. He also stated that the issue of subjecting the applicant to investigative measures while in labour might have been questionable; however, it was conducted after having obtained the doctor’s permission and in the presence of a lawyer. The prosecutor was of the opinion that the refusal to let the first applicant see her husband was unreasonable; however, the matter of visiting the new-born child – the second applicant - was outside the prosecutor’s competence because the baby had not been detained on remand.

30.  In a letter dated 25 February 2007 the Ombudsman addressed the issues raised by the first applicant’s husband. The Ombudsman considered that the applicants’ ordeal was an example of irrational and cruel treatment; in particular, the detention applied at the very late stage of pregnancy, lengthy interrogation on the day of apprehension, long distance transport, and subsequent interrogation while the first applicant was in labour. The case led the Ombudsman to ask the Ministry of Justice whether Poland was fulfilling its obligation stemming from Article 16 in conjunction with Articles 10 to 13 of the United Nations Convention against Torture and Article 3 of the European Convention on Human Rights.

31.  The Ombudsman also requested the Constitutional Court to examine whether the failure of section 259 of the Code of Criminal Procedure to provide for the possibility of waiving detention on remand in respect of pregnant women was in accordance with the Polish Constitution.

On 22 July 2008 the Constitutional Court found that the provision in question was in accordance with the Constitution.

5. Criminal proceedings against the first applicant

32.  Criminal proceedings against the applicant were instituted on 3 February 2005.

On 7 October 2009 the Katowice Court of Appeal admitted that there had been a delay in the investigation against the applicant and awarded her 3,000 PLN.

On 20 November 2009 the case against the applicant was divided into two separate cases.

On 21 January 2010 the first bill of indictment against the applicant was forwarded to a court.

On 21 July 2010 the second bill of indictment against the applicant was forwarded to a court. The applicant was accused of 21 counts of creative accounting.

The proceedings are now pending.

B.  Relevant domestic law

Code of Criminal Procedure

Article 259

“1. If there are no special reasons to the contrary, preliminary detention should be waived, particularly if depriving the accused of his liberty:

1) might seriously jeopardise the life or health of the accused, or

2) would entail an excessive burden on the accused or his next of kin.”

33.  The relevant domestic law and practice concerning visits by detainees’ families to detention centres are described in the Court’s judgment in Mazgaj v. Poland, no. 41656/02, §§ 33-36, 21 September 2010.

COMPLAINTS

1.  The first applicant complains under Article 3 of the Convention that she was arrested at a very late stage of pregnancy, interrogated for the whole day and subsequently transported overnight to the detention centre. Further, she refers to the conditions of detention, specifically that she was not provided with all necessary sanitary articles and slippers. She also complains that she was interrogated by officers while in labour. Additionally, she complains that she was not permitted to see her husband during the whole period of detention, even after their first baby was born. The applicant states that the above-mentioned circumstances demonstrate that she was subjected to inhuman and degrading treatment.

2.  The first applicant complains under Article 5 § 1 (c) of the Convention that her detention was unlawful and ordered in bad faith. She refers to the fact that she had always complied with summonses and claimed that there had been no actual risk of absconding or interfering with the conduct of the investigation. The applicant also argues that her detention was disproportionate.

3.  The second applicant complains that she was deprived of her liberty contrary to Article 5 § 1.

4.  The first applicant complains also under Article 5 § 4 that the proceedings for judicial review of the legality of her detention were not speedy.

5.  Both applicants complain under Article 8 that their right to respect for family life was violated as they were separated from their husband and father respectively.

QUESTIONS TO THE PARTIES

1.  Did the first applicant’s manner of arrest and detention amount to inhuman or degrading treatment in breach of Article 3 of the Convention, taking into account in particular the following elements:

- the applicant was arrested while nine months pregnant, interrogated and transported to the detention facility 550 km away where she was only able to rest 40 hours after the arrest;

-  the applicant was subjected to investigative measures while in labour;

-  the applicant had to give birth to her baby in detention;

-  the applicant was deprived of contacts with her husband and other family members after her baby was born?

The Government are requested to submit the minutes of the investigative activities conducted with the applicant on 6 December 2006.

2.  What precipitated the decision to arrest and detain a pregnant applicant at this advanced stage of proceedings?

Was the applicant’s arrest on 24 November 2006 based on a “reasonable suspicion”, within the meaning of Article 5 § 1(c) of the Convention, that she had committed a crime?

Was the applicant’s detention applied for a purpose other than those envisaged by Article 5, contrary to Article 18 of the Convention (see, for example, Gusinskiy v. Russia, no. 70276/01, ECHR 2004-IV and Cebotari v. Moldova, no. 35615/06, § 53, 13 November 2007)?

Was the applicant’s detention related to the proper conduct of the investigation and the Government are invited to indicate which of the investigation measures required the applicant’s detention in particular?

The Government are requested to provide the Court with minutes of the applicant’s interrogations effected on the day of apprehension and on 6 December 2006. The Government are also requested to provide the Court with the doctor’s opinion as to the first applicant’s condition produced on 24 November 2006.

3.  Was the procedure by which the first applicant sought to challenge the lawfulness of her pre-trial detention in conformity with Article 5 § 4 of the Convention?

In particular, was the lawfulness of the applicant’s detention examined “speedily” given the fact that his appeal against the decision of 24 November 2006 was dismissed on 5 January 2007?

4.  Has there been a violation of the first applicant’s right to respect for family life in that when detained she was not allowed to see her husband or other family members?

5.  Has there been a violation of the second applicant’s right respect for family life in that visits from her father were restricted?

6.  Did the applicant obtain independent medical expert opinion in regard of her ability to sustain detention and transportation and to be subjected to interrogation and other investigative steps at this stage of her pregnancy?

In particular, was the applicant’s health subjected to assessment by an independent medical expert and was she entitled to contest this opinion by contesting it, or requesting the opinion of an medical expert on her own choice?

7.  What is the legal framework governing access of visitors and in particular investigation authorities to hospitals wards and was it respected at the time of the applicant’s interrogation while in labour?