Orzeczenie: Rachwalski Ferenc przeciwko Polsce
Komentarz (w j. angielskim) autorstwa K. Siemaszko do wyroku Rachwalski i Ferenc przeciwko Polsce. Trybunał stwierdził swoim wyroku, że doszło do naruszenia art. 3 i 8 Europejskiej Konwencji Praw Człowieka.Skarga dotyczyła nieproporcjonalności środków użytych przez Policję wobec osób zamieszkujących skłot.
Execution of the judgement in the case Rachwalski and Ferenc v. Poland
The case from 2009 concerned the events that happened in Wrocław in 1997. At 3 a.m. the police entered the premises occupied by the applicants, commonly known as the “Area 69” squat. The police wanted to determine the owner of an unlocked car that they had noticed in front of the building. The ECHR ruled that the police intervention was disproportionate, as they i.a. ordered the residents to leave the house in the middle of the night, beat them with truncheons and entered inside with guard dogs. The Court held that for these reasons there was a violation of art. 3 and art. 8 of the Convention.
The case was generally noticed in Poland, but it appears that it did not stir up a particularly vibrant public debate. The Helsinki Foundation for Human Rights organised a press conference dedicated to the judgement and a couple of newspapers reported about the ruling (i.a. “Rzeczpospolita” 1) and Gazeta Wyborcza”2) ). The case was also noticed in some more alternative media due to its relevance for the squatting culture (e.g. “Anarchist Black Cross”3) ). In fact the media coverage strongly underlined the “squatting” aspect of the case, pointing out that the ruling shows that a squat also enjoys legal protection as a home (“Squat is also a home”, says the headline in the mentioned “Rzeczpospolita” article).
The judgement was practically not commented in scholarly publications. It was described in the Strategic Litigation Programme bulletin 4) and very briefly mentioned in some general overviews of the 2009 ECHR rulings5) . These publications pointed out that the Court referred to the necessity of procedural safeguards that would guarantee a proper conduct of a police search. They also presented the case in a broader context of other wrongdoings of the Polish police.
In the aftermath of the judgement, the HFHR sent an open letter to the Minister of Justice, stressing the need for an amendment of the Code of Criminal Procedure. The authors argued that although there are already relevant provisions regulating the search of inhabited premises (art. 221 and art. 225 of the Code, which were not followed by the police in this case), they do not provide a sufficient safeguard against similar violations because the authorities are not obliged to inform about these rights before the search 6). In his answer, the Minister of Justice claimed that there is no need for an amendment, as the authorities are already obliged to inform about the rights and duties of the parties when there is such a need (“where necessary”), according to art. 16 para. 2 of the Code.
The action report submitted by the Polish authorities on 12 June 2014 remains so far the only document exchanged and published in the process of reporting the execution of the judgment to the Committee of Ministers of CoE. The report involves both individual and general matters. The first one consists of a provision of just satisfaction (paid with some delay). Neither the possibility of re-opening domestic criminal preparatory proceedings nor that of claiming just satisfaction under the Civil Code were used by the applicants.
When it comes to general measures, Poland identified 3 main types of actions it had undertaken: legislative measures, trainings and dissemination of the judgement. Polish authorities indicated that article 6 para. 1 of the Act of 24 May 2013 on coercive measures and firearms provides for the principle of proportionality in terms of the type of the means of coercion and the intensity of its use (Coercive measures shall be used in a manner necessary to achieve the purposes of the use, in proportion to the degree of danger, selecting the measure of the smallest possible ailment.). Moreover, the authorities provided a list of ordinances that regulate the treatment of persons deprived of their liberty in places of detention within the police, such as Ordinance of the Minister of Interior of 13 September 2012 on medical examinations of persons detained by Police or Ordinance No. 125 of the Chief Police of 12 June 2012 on the methods and forms of performing tasks linked to stay of detainees or persons brought to the transitory room. None of these ordinances, however, concern situations similar to that in the Rachwalski and Ferenc case, thus this point appears prima facie irrelevant.
The action report also referred to certain educational methods. In 2004 the Plenipotentiary of the Chief Police, Plenipotentiaries of Regional Police Commanders and Plenipotentiaries of Police Schools Commanders for Protection of Human Rights were established, whose tasks include carrying out trainings for police officers in the field of human rights. According to the report, the case in question is now part of the training curriculum. Furthermore, since 2011 the police has also been carrying out local trainings on coercive measures.
Thirdly, the judgement was translated into Polish and put on the police website, together with its summary, as well as disseminated among police officers. According to the report, police officers were also ordered to read the above-mentioned Act on coercive measures and firearms together with a vademecum based on it.
Finally, the government elaborated an information system operative since 1 January 2010 aimed at submitting information on complaints and events – with the participation of the police or border guard officers – regarding potential violations of the Convention.
The Rachwalski and Ferenc case is not the only Polish judgement concerning the excessive use of force by the police and an inefficient criminal investigation relating to it. In fact, the number of similar cases was so high that the problem was declared structural and the supervision procedure status of these cases has been changed from ‘standard’ to ‘enhanced’ . Despite the similarities of the Rachwalski and Ferenc case to others in the so called “Dzwonkowski group”, the discussed case was not officially added to the group. The case though is sometimes listed together with the others in some domestic documents 8).
Due to their special status, the “Dzwonkowski group” cases enjoyed some greater attention in terms of execution, but in general the measures undertaken are either the same as those discussed above or answer the same problems. However, I believe that the Rachwalski and Ferenc case is connected also with some specific issues which are not fully covered by the measures employed – neither in the execution of the discussed ruling, nor in the “Dzwonkowski group” cases– which is also why I have chosen to discuss this relatively old case from 2009.
In their action report (as well as in the actual actions), Polish authorities focused almost entirely on the violation of art. 3 – in fact in the part of the action report devoted to the general measures connected to the violation of art. 8, the government restrained itself to one sentence, in which it is claimed that the above-mentioned dissemination and publication of the judgement should be sufficient.
This does not only contrast sharply with the media coverage of the topic that focused on what can be called the “art. 8 aspect”, but – what is far more important – it contrasts also with the (alleged) wrongdoings conducted by the police in later similar cases. Every now and then the media report on cases of brutal “evictions” of squats in Poland. The circumstances are similar in a number of Polish cities, but for the sake of this paper I will use only two relatively recent examples from Warsaw to clarify my point.
In march 2012 a private security company acting on behalf of the owner of the terrain entered an old factory that was inhabited for 10 years (widely known as the “Elba” squat) and started brutally throwing out the inhabitants and destroying their personal belongings – even though there was no eviction order. The police assisted the security company. Soon later, the news about the events spread and protesters gathered outside the squat. The police used very strong coercive methods against them including beating with truncheons and firing tear gas 9). Similar events occurred in December 2013: at 5 a.m. a private security company hired by the owner of the building and assisted by the police entered an old house on Nowogrodzka street and brutally threw out the inhabitants that renovated the place and had been living there for the last couple of months (the place was known as the “Od:nowa” squat).10)
The cases share some basic similarities. First of all, the police used force very extensively – in a manner that seems far disproportionate. But what I would like to emphasize is that all these cases involved a very radical interference with the right of respect for one’s home. Not only the validity of the interferences is doubtful – because of its disproportionality in Wrocław and its alleged illegality in Warsaw . What is more, it seems that the police ignored the fact of interference – they acted as if the homes described above did not enjoy any legal protection. I believe that this attitude of the police was caused mostly by the irregular legal status of these homes, i.e. a factor which is of no importance when it comes to safeguards required by art. 8 of the Convention.
The execution of the judgement in the case Rachwalski and Ferenc v. Poland is not finished – the action report submitted in 2014 is still under assessment. It would be a great shame if the CoM accepted it in its present form or demanded only some amendments in the field concerning the excessive use of force by the police, as it is very doubtful that it would prevent further violations. As long as the practice of the police in relation to the respect of one’s home – home as understood under the Convention – will not change, Poland will not fully execute the Rachwalski and Ferenc judgement. What is quite surprising is the lack of NGOs’ submissions in the pending case, especially considering the HFHR comments on the case stressing its art. 8 aspect and its concerns with Elba events. The discussed case seems very useful in litigating a change in the police attitude towards respects for one’s home – it would be a pity if it had been wasted.
Konrad Siemaszko
1) Adam Bodnar, Barbara Grabowska, Squat to też dom, „Rzeczpospolita” 31.07.2009, [available on:] http://prawo.rp.pl/artykul/342391.html?p=2 .
2) Ewa Siedlecka, Wyrok Strasbourgu za najście Policji na squat, „Gazeta Wyborcza”, [available on:] http://wyborcza.pl/1,76842,6869661,Wyrok_w_Strasburgu_za_najscie_policji_na_squat.html .
3) Skłotersi przeciwko Polsce – echa wyroku w Strasburgu, „Anarchistyczny Czarny Krzyż”,7.08.2009, [available on:] http://www.ack.most.org.pl/index.php?option=com_content&view=article&id=29:skotersi-przeciwko-polsce-echa-wyroku-w-strasburgu&catid=1:krajowe&Itemid=3 .
4) Maciej Bernatt, Barbara Grabowska, Przeszukanie niezgodne z Konwencją – Rachwalski i Ferenc przeciwko Polsce, „Program spraw precedensowych. Biuletyn informacyjny”, nr 8 (27), sierpień 2009.
5) Ireneusz C. Kamiński, Działalność ETPCz w 2009 r., „Europejski Przegląd Sądowy”, kwiecień 2010, str. 32-37; ibidem, Prawo do życia i zakaz tortur oraz poniżającego i nieludzkiego traktowania w orzecznictwie ETPCz w 2009 r., „Europejski Przegląd Sądowy”, październik 2010, str. 27-37; Karolina Wierczyńka, Przegląd orzecznictwa Europejskiego Trybunału Praw Człowieka w sprawach polskich w 2009 r., „Gdańskie Studia Prawnicze – przegląd orzecznictwa”, 2011 nr 4.
6) The letter is available on http://www.hfhr.pl/wp-content/uploads/2012/03/HFPC_wystapienie_KSP_27_marca_2012.pdf and the answer on: http://www.hfhrpol.waw.pl/precedens/images/stories/file/przeszukanie_odp_MS.pdf .
7) Supervision of the Execution of Judgements and Decision of the ECHR. 8th annual report of the Committee of Ministers, [available on:] http://www.statewatch.org/news/2015/mar/coe-supervising-execution-echr-judgments.pdf, p. 100
8) See for example Sprawozdanie z posiedzenia zespołu ds. ETPCZ, które odbyło się w dniu 26 marca 2013r , [available on:] https://www.msz.gov.pl/resource/664ea06d-56c2-4cd9-8561-57daf546251d:JCR .
9) Michał Chylak, Bitwa o Elbę, czyli pojedynek z właścicielem i policją, Rzeczposplita 21.03.2012, [available on:] http://www.rp.pl/artykul/757643,842002-Wlasnosc-nieruchomosci--Bitwa-o-Elbe--czyli-pojedynek-z-wlascicielem-i-policja.html?p=2
10) Wojciech Karpieszczuk, Interwencja przed squatem. Właściciel nie miał prawa?, „Gazeta Stołeczna”, 11.12.2013, [avaible on:] http://warszawa.gazeta.pl/warszawa/1,34889,15119925,6_osob_zatrzymanych_w_squacie__Wlasciciel_nie_mial.html?t=1386800041458&v=1&obxx=15119925&offset=19
11) Michał Chylak, op. Cit.
