European Court of Human Rights
30 June 2015
Article 37: Torture and deprivation of liberty
Other international provisions: European Convention on Human Rights, Article 5: right to liberty and security
Act on the Procedure in Juvenile Cases of 26 October 1982 (the “Juveniles Act”), Section 27
The applicant is a juvenile who was detained in a juvenile shelter while robbery charges against him were being investigated. Section 27 of Poland’s Juveniles Act allows juvenile offenders to be detained for three months, subject to a possible extension by another three months, if deemed necessary. After three months, the applicant requested to be released on numerous occasions, but he remained in the shelter for a total of five months. The common court practice in Poland, when applying the Juveniles Act, is not to issue a separate decision extending the placement in a shelter for juveniles. The applicant complained to the Court that the lack of judicial review of the duration of his detention once the initial three month period is over constitutes a violation of his right to liberty under Article 5 of the European Convention on Human Rights (ECHR).
Issue and resolution:
Detention of juvenile offenders. Whether the practice of detaining juveniles for longer than three months without a judicial determination of whether such extended detention is necessary is a violation of the ECHR. The Court ruled that it violates Article 5(1) as well as Article 5(4) and awarded compensation to the applicant.
Article 5(1) of the ECHR requires that any deprivation of liberty should be in accordance with the law. This means that a procedure prescribed by law has been followed and that any deprivation of liberty is in keeping with the purposes of protecting the individual from arbitrariness. IN determining this issue, the courts will assess the “quality of the law” which provides for the deprivation of liberty. “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness. In the present case, the Court concluded that the provisions of the Juveniles Act were not sufficiently precise and clear and since it did not create legal certainty, the detention of the applicant could not be considered ‘lawful’ as required by Article 5(1).
In accordance with Article 5(4) everyone is end to bring proceedings by which the lawfulness of the detention is decided speedily by a court and his release ordered if the detention is determined not to be lawful. Since the language of the legislation was not sufficiently clear, a court practice emerged, according to which detention was automatically extended without a separate review after the initial three months. The Court concluded that the opportunity for judicial review required by the Convention was not existent and therefore Article 5(4) was also violated.
Excerpt citing CRC and other relevant human rights
32. Article 37 of the Convention on the Rights of the Child, in so far as relevant, reads as follows:
“States Parties shall ensure that:
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
37. The Helsinki Foundation for Human Rights first referred to the international standards. It noted that under Article 37 of the Convention on the Rights of the Child no child shall be deprived of his liberty unlawfully or arbitrarily. Furthermore, every child deprived of liberty shall have the right to challenge the legality of such measure before a court or other authority. According to the concluding observations in respect of Poland adopted by the Committee on the Rights of the Child in 2002, the Committee recommended, inter alia, that Poland ensure the full implementation of juvenile justice standards, in particular Articles 37, 40 and 39 of the Convention, as well as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).
This decision will affect approximately 340 juveniles who are placed in shelters under the same legislation, according to statistics from 2012.
CRIN believes this decision is consistent with the CRC. Article 37 prohibits unlawful or arbitrary deprivation of liberty and required that every child has the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. General Comment No. 10 of the Committee on the Rights of the Child further elaborates that this opportunity must be guaranteed to all children concerned and not limited to, for example, cases concerning serious offences.
Grabowski v. Poland – 57722/12, Judgment 30.6.2015 [Section IV]
Link to full judgement: