FIRST SECTION
DECISION
Application no. 54127/16
Marcin PLICHTA
against Poland
The European Court of Human Rights (First Section), sitting on 22 October 2019 as a Committee composed of:
Tim Eicke, President,
Jovan Ilievski,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 6 September 2016,
Having regard to the observations and comments submitted by the respondent Government and the comments in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Marcin Plichta, is a Polish national who was born in 1984 and is detained in the Gdańsk Detention Centre. He was represented before the Court by Mr M. Komorowski, a lawyer practising in Gdańsk.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.Detention on remand
4. In May 2012 the prosecution service began an investigation into allegations of fraud and money laundering by the Amber Gold company. The company was founded by the applicant in 2009 and offered high-interest-rate deposit accounts to its clients. In 2012 it was declared bankrupt and liquidated.
5. On an unspecified date, but not later than on 17 August 2012, the applicant was charged with, inter alia, large-scale fraud.
6. On 29 August 2012 the applicant was arrested by the police.
7. On 30 August 2012 the Gdańsk-Południe District Court (Sąd Rejonowy) ordered that the applicant be detained on remand for three months in view of the reasonable suspicion that he had committed the offences with which he had been charged (case nos. II Kp 1289/12, VI Ds 40/12). The court cited the likelihood that the applicant might try to interfere with the proper course of the proceedings because of the likelihood of a severe sentence being imposed on him and pointed out that he had been convicted before for an offence against property.
8. The applicant’s detention was extended every three months. Appeals and requests for release lodged by him have been unsuccessful.
9. On 25 June 2015 the Łódź Regional Prosecutor (Prokurator Okręgowy) filed a bill of indictment against the applicant. The charges included, in particular, large-scale fraud and money laundering.
10. The first hearing in the applicant’s case took place on 21 March 2016. In the period ending 4 October 2018 the trial court held over two hundred hearings.Friendly-settlement proceedings before the Court and the relevant newspaper articles
11. By a letter of 19 June 2018 the applicant was informed of the Court’s decision to give notice of the application to the Government (in respect of the applicant’s complaint about excessive length of his detention on remand, see paragraph 16 below). The Court also provided the parties with a proposal aimed at securing a friendly settlement of the case. Together with that proposal, the applicant also received an information note indicating that, under Rule 62 § 2 of the Rules of Court, friendly-settlement negotiations were strictly confidential and that written or oral communications and offers made within a friendly-settlement framework should not be referred to or relied on in contentious proceedings.
12. By a letter of 7 November 2018 the Government submitted that the applicant had not respected the confidentiality of the friendly-settlement negotiations because on 2 November 2018 his representative had disclosed to the media the contents of the Court’s friendly-settlement proposal. In support of their allegations, the Government enclosed copies of articles published on 2 November 2018 on the websites of several daily newspapers such as Dziennik Bałtycki and Nasz Dziennik, an article published on the website www.bankier.pl and a copy of a clipping from the 5 November 2018 edition of the daily newspaper Gazeta Wyborcza.
13. In particular, the relevant part of the article published on 2 November 2018 in Dziennik Bałtycki read:
“The [applicant’s] lawyer confirms that in connection with the detention, which has lasted for over six years, the initial proposal of compensation made by the European Court of Human Rights amounts to almost 8,000 euros. ‘It is an initial proposal to which we have agreed and to which the Polish Government should now reply,’ emphasised the attorney, Komorowski.”
14. The relevant part of the article published on 2 November 2018 on the webpage www.bankier.pl read:
“We have received from the European Court of Human Rights a proposal to settle the case amicably with the Polish Government. We have agreed, because for us it is vital to confirm the excessive length of [the applicant’s] detention on remand, ... Komorowski told PAP [the Polish Press Agency] on Friday. ...
The lawyer added that the amount of compensation proposed by the European Court of Human Rights ... amounts to almost 8,000 euros.”
15. The applicant’s representative in a letter of 11 December 2018 rejected the Government’s allegations (see paragraph 19 below).
COMPLAINT
16. The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand.
THE LAW
17. The Government argued that, by disclosing the terms of the friendly-settlement proposal to the media, the applicant had breached the confidentiality of the friendly-settlement negotiations, in contravention of Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, which reads:
Article 39 of the Convention
“1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.
2. Proceedings conducted under paragraph 1 shall be confidential.”
Rule 62 § 2 of the Rules of Court
(Friendly settlement)
“In accordance with Article 39 § 2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties’ arguments in the contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings.”The parties’ submissions
18. The Government emphasised that the press articles in question had quoted the applicant’s lawyer revealing detailed information regarding the friendly-settlement negotiations. They concluded that the applicant’s lawyer had intentionally made this information public. The Government therefore invited the Court to declare the application inadmissible as constituting an abuse of the right of application under Article 35 of the Convention.
19. The applicant’s representative argued that the statements he had made to the press had been “limited to the confirmation of information”. He had replied to the journalists’ questions and he had been unable to keep track of all the articles that had been published and to correct any “irregularities in unauthorised quotes of my statements”. He considered that the issue of the excessive length of pre-trial detention of his client should remain central in the examination of the case and that the Government’s objection was unmeritorious.The Court’s assessment
20. The Court reiterates that under Article 39 § 2 of the Convention and Rule 62 § 2 of the Rules of Court friendly-settlement negotiations are confidential. That rule is absolute and does not allow for an individual assessment of how much detail was disclosed (see Lesnina Veletrgovina d.o.o. v. the former Yugoslav Republic of Macedonia (dec.), no. 37619/04, 2 March 2010).
21. The Court recalls that the rule of confidentiality serves to protect both the parties and the Court from any attempt to exert political or any other kind of pressure. Thus, it aims to facilitate a friendly-settlement, by safeguarding that the information provided in the course of negotiations are not revealed and made public. At the same time, Rule 62 § 2 in fine also protects the Court and its own impartiality, by ensuring that should the friendly-settlement negotiations fail, their content will not prejudice the outcome of the contentious proceedings (see Heldenburg v. the Czech Republic (just satisfaction), no. 65546/09, § 25, 9 February 2017, and Ramkovski v. the former Yugoslav Republic of Macedonia, no. 33566/11, § 42, 8 February 2018).
22. In view of the importance of this principle, the Court further reiterates that a breach of the rule of confidentiality might justify the conclusion that an application is inadmissible on the grounds of an abuse of the right of application. In order to be regarded as an abuse of application, the disclosure of confidential information must be intentional. Also, the direct responsibility of the applicant or his legal representative in the disclosure must be established with sufficient certainty (see, for example, Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Miroļubovs and Others v. Latvia, no. 798/05, § 68, 15 September 2009; Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009; and Lesnina Veletrgovina d.o.o., cited above, Arsovski v. the former Yugoslav Republic of Macedonia, no. 30206/06, § 41, 15 January 2013; and Barreau and Others v. France (dec.), no. 24697/09, 13 December 2011).
23. Turning to the present case the Court observes that several newspapers reported on the interview with the applicant’s representative, directly quoting his statements. All those articles contained information pertaining to the application brought by the applicant against Poland and details of friendly-settlement negotiations with the Government that included, expressly, the amount of the friendly-settlement proposal made by the Court (see paragraphs 12-14 above). The applicant’s representative acknowledged having responded to journalists’ questions and did not expressly deny his responsibility for the disclosure of the confidential information. In view of the above, the Court considers that the disclosure was clearly attributable to the applicant’s representative and not to any other party (see Gorgadze v. Georgia (dec.), no. 57990/10, § 21, 2 September 2014).
24. The Court furthermore notes that the instructions enclosed with the Court’s letter of 19 June 2018 made it clear that the nature of all friendly‑settlement negotiations was strictly confidential (see paragraph 11 above). The applicant’s representative was therefore aware of that requirement and should have complied with it at all stages of the proceedings (see Benjocki and Others, cited above).
25. In conclusion, given that the applicant’s representative intentionally made public the terms of the friendly-settlement proposal, the Court considers that his conduct amounts to a breach of the rule of confidentiality, which must also be considered to constitute an abuse of the right of individual application.
26. It follows that the application is inadmissible under Article 35 § 3 (a) of the Convention as constituting an abuse of the right of application and must be rejected, pursuant to Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 November 2019.
Renata DegenerTim Eicke
Deputy RegistrarPresident
Full & Egal Universal Law Academy