EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 27915/95

Maciej Niedbała

against

Poland

REPORT OF THE COMMISSION

(adopted on 1 March 1999)

I. INTRODUCTION

(paras. 1 - 15) ........................................................ 1

A. The application

(paras. 2 - 4) .................................................... 1

B. The proceedings

(paras. 5 - 10) ................................................... 1

C. The present Report

(paras. 11 - 15) .................................................. 3

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 44) ...................................................... 5

A. The particular circumstances of the case

(paras. 16 - 27) .................................................. 5

B. Relevant domestic law

(paras. 28 - 44) .................................................. 6

III. OPINION OF THE COMMISSION

(paras. 45 - 91) ..................................................... 11

A. Complaints declared admissible

(para. 45) ...................................................... 11

B. Points at issue

(para. 46) ...................................................... 11

C. As regards Article 5 para. 3 of the Convention

(paras. 47 - 58) ................................................. 11

CONCLUSION

(para. 59) ...................................................... 14

D. As regards Article 5 para. 4 of the Convention

(paras. 60 - 74) ................................................. 14

CONCLUSION

(para. 75) ...................................................... 17

E. As regards Article 8 of the Convention

(paras. 76 - 86) ................................................. 17

CONCLUSION

(para. 88) ...................................................... 20

F. Recapitulation

(para. 89 - 91) .................................................. 20

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION .................... 21

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Polish citizen, born in 1969, resident at Jastrzębie Zdrój .  He was represented before the Commission by Mr Wojciech Hermeliński , a lawyer practising in Warsaw.

3 . The application is directed against Poland.  The respondent Government were represented by Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.

4 . The case concerns the applicant's complaint that he was deprived of his liberty by decision of a prosecutor who is not a judge or other officer authorised by law to exercise judicial power; that he was never brought before a court in the proceedings concerning his detention nor  was his lawyer entitled to be present at the court sessions concerning the review of his detention; and that his correspondence with the Ombudsman was intercepted and delayed.  The applicant invokes Article 5 paras. (3) and (4) and Article 8 of the Convention.

B. The proceedings

5 . The application was introduced on 5 February 1995 and registered on 20 July 1995.

6 . On 29 February 1996 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government's observations were submitted on 3 June 1996, after an extension of the time-limit fixed for that purpose.  The applicant replied on 28 June 1996. On 3 December 1996 the Commission granted the applicant legal aid for the representation of his case.

8 . On 7 July 1997 the Commission declared the application admissible.

9 . The text of the Commission's decision on admissibility was sent to the parties on 15 July 1997 and they were invited to submit such further information or observations on the merits as they wished. On 13 November 1997 the applicant submitted additional observations.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

Sir Nicolas BRATZA

MM I. BÉKÉS

G. RESS

A. PERENIĆ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12 . The text of this Report was adopted on 1 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14 . The Commission's decision on the admissibility of the application is annexed hereto.

15 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16 . On 31 August 1994 the applicant was arrested.  On 2 September 1994 the Rybnik District Prosecutor, W., remanded him in custody on suspicion of theft of a car.

17 . The applicant appealed to the Katowice Regional Court.  On 12 September 1994 the court dismissed the appeal, finding that there was sufficient evidence to establish that the applicant might have committed the offence concerned and the reasons for which the applicant had been remanded in custody had not ceased to exist.

18 . On 21 September 1994 the Rybnik District Public Prosecutor prolonged the applicant's detention until 30 November 1994, considering that the evidence gathered in the investigations strongly indicated that the applicant had committed the offence in question. An expert opinion had still to be taken.

19 . On 10 October 1994 the Katowice Regional Court dismissed the applicant's appeal against this decision, considering that the evidence strongly indicated that the applicant had committed the offence in question.  Further time-consuming evidence still had to be taken, which justified the prolongation of the detention.

20 . On 24 October 1994 the Rybnik District Public Prosecutor refused to release the applicant, considering that the investigations had not been completed, further forensic evidence had to be taken and the reasons for which the detention had originally been decided had not ceased to exist.

21 . On 2 November 1994 the applicant wrote a letter to the Ombudsman, complaining about alleged irregularities in the criminal proceedings against him and about having allegedly been assaulted by the police on his arrest.  The prison authorities forwarded this letter to the Rybnik District Prosecutor. On 23 November 1994 the Rybnik District Prosecutor informed the applicant that the letter to the Ombudsman had been forwarded to the Tychy District Public Prosecutor, for the purpose of investigating the alleged assault.  It was later forwarded to the Ombudsman. The letter reached the Ombudsman's office on 27 December 1994 and was registered there under file number RPO 174886/94/II. On 28 November 1994 the applicant sent a further letter to the Ombudsman.

22 . On 15 November 1994 the Katowice Regional Prosecutor dismissed the applicant's appeal against the decision of 24 October 1994.  The Prosecutor considered that the evidence strongly indicated that the applicant had committed the offence in question. The reasons for which the detention had been ordered had not ceased to exist. The investigations should be continued and this required that the applicant should remain in detention.

23 . On 9 March 1995 the applicant filed a request with the Katowice Regional Court to have the lawfulness of his detention reviewed as provided for by Article 5 para. 4 of the European Convention of Human Rights.  This request remained unanswered.

24 . On 20 March 1995 the Katowice Regional Court convicted the applicant of possessing stolen goods and ordered that he be released from detention on remand. The applicant and the Public Prosecutor filed appeals against this judgment.

25 . On 21 April 1995 the applicant was rearrested and the Racibórz District Public Prosecutor decided to put the applicant in detention on remand on suspicion of attempted theft of a car on 20 April 1995. The applicant appealed to the Racibórz District Court, invoking, inter alia , Article 5 para. 3 of the Convention. On 27 April 1995 the court dismissed the appeal, considering that the detention on remand had been ordered in accordance with the law. Article 210 para. 1 of the Code of Criminal Procedure provides that it is the Public Prosecutor who is competent to decide on detention on remand.

26 . On 12 June 1995, in reply to the applicant's letter of 2 November 1994, the Ombudsman informed the applicant that the ratification of the Convention did not automatically entail the derogation of the provisions of Polish law relating to the authorities competent to decide on deprivation of liberty. Thus the courts and prosecutors were still obliged to apply domestic law currently in force in this respect.  The relevant amendments to the Code of Criminal Procedure had already been adopted by Parliament, but they had not yet entered into force. The current public debate about the possible direct applicability of the Convention in the domestic legal order was of a purely theoretical nature. The decisions concerning the applicant's detention were therefore in accordance with the law.

27 . On 5 September 1995 the Katowice Court of Appeal amended the impugned judgment of 20 March 1995 in that it found the applicant  guilty of aiding and abetting the sale of stolen goods and sentenced him to two years and six months' imprisonment and a fine.

B. Relevant domestic law

a) Preventive measures in criminal proceedings

28 . At the relevant time, the authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Polish Code of Criminal Procedure, which read as follows:

:

Article 210:

"1. Preventive measures [including detention on remand] are imposed by the court; before a bill of indictment is lodged with the court, they are imposed by the prosecutor (...)."

Article 212:

"1. A decision concerning preventive measures may be appealed [to a higher court] ....

2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...."

29 . These provisions were amended on 29 June 1995. Pursuant to this amendment, detention on remand could be imposed only by a court order.

30 . A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads:

:

"1. Detention on remand shall be imposed by a court order.

2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor's request, by a district court in the jurisdiction of which investigations are being conducted.  After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case.

3. The prosecutor, when submitting to a court a request referred to in para. 2, shall at the same time order that the suspect be brought before a court."

31 . At the relevant time the presence of the parties at court sessions other than hearings were regulated in Articles 87 and 88 of the Polish Code of Criminal Procedure which, insofar as relevant, provided:

Article 87:

"The Court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session in camera . ..."

Article 88:

"A court session in camera may be attended by a public prosecutor (...); other parties may attend if the law provides for it."

32. Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and it will not hinder the proceedings.

33. The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered..

b) Position of prosecutors under Polish law

34. At the material time the relations between the organs of the Polish State were set out in interim legislation, i.e. the Constitutional Act of 17 October 1992 ( Mała Konstytucja ). Article 1 of the Act laid down the principle of the separation of powers in the following terms:

"The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts."

35. Under Article 56 of the Act, the Council of Ministers ( Rada Ministrów ) shall be composed of the Prime Minister, Deputy Prime Ministers and Ministers.

36. In pursuance of Article 1 of the Act of 20 June 1985 ( Ustawa o sądach powszechnych ), the courts are entrusted with administration of justice in the Republic of Poland.  The courts are courts of appeal, regional courts and district courts. Under Article 9 of the Law, the Supreme Court exercises supervisory jurisdiction over lower courts.

37. Article 1 of the Act of 20 June 1985 on Prosecuting Authorities ( Ustawa o Prokuraturze ) which determines general principles concerning the structure, functions and organisation of prosecuting authorities, at the material time read as follows:

"1. The prosecuting authorities shall be the Prosecutor General, prosecutors and military prosecutors.  Prosecutors and military prosecutors shall be subordinate to the Prosecutor General.

2. The Prosecutor General shall be the highest prosecuting authority; his functions shall be carried out by the Minister of Justice."

Article 2 of the Act reads:

"The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences."

38. Under Article 7 of the Act, in carrying out his statutory duties, a prosecutor shall abide by the principles of impartiality and equality of citizens before the law.

39. Pursuant to Article 8 of the Act,  a prosecutor is independent in carrying out his or her duties, within the limits set out in this Article. A prosecutor shall abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. Requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order."

40. Chapter III of the Code of Criminal Procedure, applicable at the material time, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society", described a prosecutor as a party to criminal proceedings. According to all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings.  In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case.

41. Under Article 3 of the Code of Criminal Procedure "... organs conducting criminal proceedings [including a prosecutor] shall examine and take into account evidence in favour of as well as against the accused."

c) Ombudsman

42. Under Article 1 of the Ombudsman Act of 15 July 1987, it is the Ombudsman's task to examine, in his capacity as the guardian of human rights, whether the acts or failure to act on the part of the authorities, organisations and institutions whose functions necessarily impinge on these rights, breached the law or the principles of equity. The Ombudsman may undertake measures provided for by law if he receives information from which it transpires that human rights have been breached.  Pursuant to Article 13 of the Act, he is competent to investigate individual complaints. When investigating such complaints he may, inter alia , demand that the judicial, prosecuting and administrative authorities submit to him information about a concrete individual case. Under Article 14, once the investigation is completed, the Ombudsman may, if a breach of human rights and liberties has been found, present his opinion to the authority conducting the proceedings. The Ombudsman's actions must be compatible with the principle of the independence of the judiciary. He may also inform a superior authority of his findings and request that appropriate measures provided for by law be taken in respect of the person whose actions amounted to a violation of human rights.

d) Correspondence of persons detained on remand

43 The situation of persons detained on remand is governed by the Code of Execution of Criminal Sentences. Under Article 89, all correspondence of a detainee is censored, unless a prosecutor and a court decide otherwise. No provision of the Code provides for any remedy to contest the manner or scope of the censorship of a detainee’s correspondence.

44. The rights of persons detained on remand as regards their correspondence are further set out in Rule 33 of the Rules on Detention on Remand. They provide that the correspondence of persons detained on remand is subject to censorship by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

45. The Commission has declared admissible the applicant's complaints:

- that his detention on remand was imposed by a public prosecutor who is not a judge or other “officer authorised by law to exercise judicial power";

- that he was never brought before a court in the proceedings concerning his detention nor was his lawyer entitled to be present at the court sessions concerning the review of his detention;

- that his correspondence with the Ombudsman was intercepted and delayed.

B. Points at issue

46. Accordingly, the issues to be determined by the Commission are:

- whether there has been a violation of Article 5 para. 3 of the Convention;

- whether there has been a violation of Article 5 para. 4 of the Convention;

- whether there has been a violation of Article 8 of the Convention.

C. As regards Article 5 para. 3 of the Convention

47. Article 5 para. 3 of the Convention reads:

"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial..."

48. The Government submit that under Polish law the function of the  public prosecutor is to safeguard the rule of law and to prosecute offenders. Prosecutors fulfil this task principally through conducting or supervising investigations in criminal cases, bringing actions before the courts in criminal and civil cases and by performing the functions of prosecution before criminal courts. These functions are entrusted to the Prosecutor General and to the prosecutors in the prosecutors' offices. The Prosecutor General, who is also the Minister of Justice, is the superior of all prosecutors, competent to take all decisions within the scope of their tasks as defined by law and to issue instructions to them. He or she is competent to request the Constitutional Court to pronounce decisions on the compatibility of laws with the Constitution. The actions of public prosecutors should be governed by the principles of impartiality and of the equality of citizens before the law. Public prosecutors are independent in carrying out their functions. However, they are bound by the instructions and orders of their hierarchical superiors. A prosecutor may demand that an order of a hierarchically senior prosecutor be issued in writing and, in case he or she estimates that it is not lawful, may request an exemption from the obligation to carry it out. The decision as to whether the exemption should be granted is rendered by a prosecutor directly superior to the prosecutor who issued the order.

49. The Government conclude that the fact that the applicant's detention was imposed by a prosecutor does not amount to a violation of Article 5 para. 3 of the Convention.

50. The applicant observes that the Government's submissions are limited to information about the public prosecutor’s position under domestic law. He maintains that the Government have failed to address the crucial issue of the compliance of his arrest with the requirements of Article 5 para. 3 of the Convention.  In the applicant's opinion, the prosecutor is neither a judge nor an officer authorised to exercise judicial power, and the Government have not advanced any arguments to the contrary. The applicant submits that on both occasions he was arrested by the public prosecutor. On 9 March 1995, the applicant requested the Katowice Regional Court to establish whether the order to detain him of 2 September 1994 was compatible with the Convention. This request remained unanswered. On 27 April 1995 the Racibórz District Court declared that the decision to remand him in custody of 21 April 1995 was in accordance with the Polish Code of Criminal Procedure. The applicant stresses that the court failed to rule on its compatibility with the Convention.

51. The applicant further argues that the Government must be aware of the fact that the imposition of detention on remand by a public prosecutor does not satisfy the requirements of Article 5 para. 3 of the Convention, as, in June 1995, the Code of Criminal Procedure was amended so that detention on remand can now be imposed only by a court. A similar provision has been included in the new Code of Criminal Procedure, enacted by Parliament on 6 June 1997. The applicant draws the Commission's attention in particular to an explanation appended to the parliamentary bill which states expressly that "it is the purpose of this provision that the deprivation of liberty in criminal proceedings be decided exclusively by an independent and impartial authority, i.e. a judicial authority. A prosecutor does not satisfy these requirements as he or she is hierarchically dependent on his or her superiors, and, as an authority who, in the context of criminal proceedings, carries out the prosecuting function, he or she is not able to such an extent as a court would be, to maintain a fully objective approach, necessary when taking decisions concerning the deprivation of liberty of a person charged with a criminal offence". This, in the applicant's view, must be necessarily taken into consideration at the examination of the compatibility with the Convention of the provisions of the Polish Code of Criminal Procedure applicable at the time of the applicant's arrest.

52. The applicant concludes that his arrest by the public prosecutor amounts to a breach of Article 5 para. 3 of the Convention.

53. The Commission recalls that the role of the officer referred to in Article 5 para. 3 of the Convention is to review the circumstances militating for and against detention and to decide, by reference to the applicable legal criteria, whether there are reasons to justify detention and to order release if there are no such reasons.  The officer must be able to take a legally binding decision (Eur. Court HR, Schiesser v. Switzerland judgment of 1979, Series A no. 34, p. 13, para. 31; Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 75, para. 199).

54. The Commission further recalls that a judicial officer who orders the detention may carry out other duties, but that his impartiality is capable of appearing open to doubt if he is entitled to intervene in the subsequent criminal proceedings as a representative of the prosecuting authority.  Where under the domestic law detention on remand is confirmed by a prosecutor and it is possible in law that he be entrusted with the task of conducting the prosecution, the prosecutor cannot be considered an "officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 of the Convention. What is material in this respect is the objective appearance, and not the question whether the prosecutor who confirmed the detention in the particular case actually conducted the prosecution later (Eur. Court HR, Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, para. 43; Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A, p. 12, paras. 20, 21).

55. The Commission notes that there is no dispute between the parties that the applicant was brought "promptly" before a prosecutor. However, the crucial aspect of the case is whether under the provisions of Polish law the prosecutor could be regarded as an "officer authorised by law to exercise judicial power".

56. The Commission first notes that Polish constitutional law, as applicable at the material time, clearly provided for the separation of powers between three independent branches: legislative, executive and judicial.  Only courts were entitled to exercise judicial power, whereas prosecutors, being subordinate to the Prosecutor General, whose function was carried out by the Minister of Justice, belonged to the executive branch of government. Also, the different duties of the judicial and prosecuting authorities were laid down by separate laws governing their functions; under those laws, courts were entrusted with administration of justice whereas the prosecutors' role was to ensure the observance of the rule of law and the prosecution of criminal offences. None of the numerous detailed provisions setting out the means whereby prosecutors were to carry out their duties authorised them to perform an act which under the Convention must be deemed to be an act of a judicial character.

57. The Commission further notes that the Government have submitted a detailed review of the position of the prosecutor under Polish law. The Commission takes note in particular of the Government's argument that the actions of the prosecutors should be governed by the principles of impartiality and of the equality of citizens before the law. However, in the Commission's view, this argument does not suffice in itself to accept that the prosecutors' functions are of a judicial character. The Commission further observes that the Government do not present any further submission that would be capable of demonstrating that the prosecutors exercise judicial power. The Commission observes that, in the light of the provisions of Polish law referred to above, the function of the prosecutor cannot be considered as being independent of the executive branch of government since it is the Minister of Justice who carries out the function of Prosecutor General, and as the prosecutors are all subordinates of the Minister of Justice. Therefore the Commission recognises the validity of the applicant's submission that the Government have not advanced a convincing reasoning to prove that under Polish law the position of the prosecutor is such as to justify a conclusion that he is entrusted with carrying out  judicial functions.

58. The Commission therefore concludes that the prosecutors who decided to remand the applicant in custody, cannot be considered to be  "officers" independent from the executive.  Nor were they, under the general rules of Polish law, authorised to exercise "judicial power" within the meaning of Article 5 para. 3 of the Convention.

CONCLUSION

59. The Commission concludes, unanimously, that there has been a violation of Article 5 para. 3 of the Convention.

D. As regards Article 5 para. 4 of the Convention

60. Article 5 para. 4 of the Convention provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

61. The applicant submits that the Government's arguments that the proceedings concerning his detention respected the principle of equality of arms are ill-founded.  The applicant first draws the Commission's attention to the fact that under the new Code of Criminal Procedure, referred to above (para. 32), a lawyer of a detainee must be informed of the date and time of the court session at which a decision on detention on remand is to be considered, and can participate in it.

62. The applicant further states that the Government's submission that the prosecutor acts, in the relevant proceedings, as the guardian of the public interests, is unconvincing. The fact that the applicant could present his arguments to the appellate court in writing is, likewise, of no importance.  It cannot be reasonably argued, the applicant continues, that the proceedings were adversarial, given that the prosecutor represented the interests of the prosecution, the person charged with the offence never had an opportunity to present his arguments directly to the judge, and the authorities deciding on the applicant's detention repeatedly stated in their decisions that further evidence should be gathered and that the reasons for which the detention had been ordered had not ceased to exist.

63. The applicant finally relies on the judgment of the European Court of Human Rights in the case of Schiesser v. Switzerland (judgment of 4 December 1979, Series A no. 34). He emphasises that in this case the Court considered that proceedings concerning detention on remand should be adversarial, and that the detained person should be brought before a court.  The applicant further refers to the Toth judgment (Eur. Court HR, Toth v. Austria judgment of 12 December 1991, Series A no. 224).  He stresses that it is not in dispute in the present case that he was never brought before a court in any of the proceedings concerning his detention. His arguments in favour of his release were answered by the courts with the meaningless formula that "the grounds on which the detention on remand had been ordered had not ceased to exist".

64. The Government first submit that under Polish law, as applicable at the material time, decisions on detention on remand and on its extension could be appealed against to a court.  The courts thereby exercised control over matters unrelated to the criminal judicial proceedings in the proper sense.  These appeals were examined at court sessions held in camera .  The purpose of such sessions was to examine the lawfulness of decisions concerning detention on remand.  Therefore not all the guarantees of a fair hearing were applicable in such proceedings.  However, the scope of jurisdiction of the courts in those proceedings was not limited to an examination of the lawfulness of detention.  On the contrary, the courts were competent to assess the reasonableness of the imposition or continuation of detention against the factual background of each individual case. The Government further stress that this examination of detention on remand was carried out on a regular basis.  The Government conclude that even in the absence of  the accused or their representatives, the courts had an opportunity of making a thorough appraisal of whether the decisions concerned were lawful and justified in the light of the circumstances of the case.

65. The Government further submit that the applicable law did not make it mandatory for the accused or his lawyer to be present before the court when it was taking decisions concerning the detention on remand.  However, in the Government's opinion, this did not necessarily entail a breach of the principle of equality of arms in such proceedings, as also the participation of the prosecutor was merely optional.  Further, the court examined a written appeal of the accused and thus had detailed knowledge of his arguments. Moreover, in such proceedings the prosecutor played a double role, not only supporting the prosecution, but also representing the public interest.

66. As regards the present case, the Government submit in particular that the applicant appealed to the Katowice Regional Court against the Rybnik Public Prosecutor's decisions to prolong his detention.  The court was therefore aware of the applicant's arguments as they were presented in writing in his appeals. Moreover, the Katowice Regional Prosecutor, who participated in the sessions held before the Regional Court, supervised the investigations conducted by the Rybnik District Prosecutor. Therefore his role in these proceedings cannot be regarded as that of an authority conducting the investigations. Consequently, the position of the prosecutor was not identical with that of a party to the proceedings.

67. As regards the court session held in camera on 27 April 1995, at which the Racibórz District Court examined the applicant's appeal against the decision of the Racibórz District Prosecutor of 21 April 1995 to remand him in custody, the Government state that the prosecutor was not present before the court.  Therefore, they maintain, the principle of equality of arms was complied with.

68. The Government conclude that in the proceedings concerning the applicant's detention on remand the requirements of Article 5 para. 4 of the Convention were satisfied.

69. The Commission recalls that by virtue of Article 5 para. 4 of the Convention, arrested or detained persons are entitled to a judicial review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements set out in domestic law, but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (Eur. Court HR, Brogan v. the United Kingdom judgment of 29 November 1988, Series A no. 145 ‑ B).

70. The Commission also recalls that the purpose of Article 5 para. 4 is to ensure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected (cf. Eur. Court HR, De Wilde , Ooms and Versyp v. Belgium judgment of 18 July 1971, Series A no. 12, p. 41, para. 76).

71. The procedure followed must have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question.  The judicial proceedings referred to in Article 5 para. 4 need not always be attended by the same guarantees as those required under Article 6 para. 1 for civil or criminal litigation.  In order to determine whether proceedings provide the "fundamental guarantees of procedure applied in matters of deprivation of liberty", regard must be had to the particular nature of the circumstances in which such proceedings take place (cf. Eur. Court HR, De Wilde , Ooms and Versyp judgment, op. cit., pp. 41 and 42, paras. 76 in fine and 78; Winterwerp v. the Netherlands judgment of 24 October 1979, pp. 23 and 24, paras. 57 and 60; Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-B, pp. 11-12, para. 22; Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, no. 258-B, p. 54, para. 58).

72. One of the main safeguards inherent in judicial proceedings conducted in conformity with the Convention is the respect for "equality of arms", an indispensable feature of a truly adversarial procedure (cf. Eur. Court HR, Sanchez- Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, para. 51; Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, para. 29; Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 23, para. 84; Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-A, p. 45, para. 47).

73. The Commission observes that, in the present case, the applicant twice appealed against the decisions to remand him in custody. His appeals were examined by the Katowice Regional Court on 12 September 1994 and by the Racibórz District Court on 27 April 1995. Proceedings concerning the extension of his detention upon the request of the Prosecutor were also held before the Katowice Regional Court on 10 October 1994. The Commission notes that on no occasion was the applicant heard in person or through any form of representation in these proceedings. It should be emphasised that not only was the applicant not present before the court, but the law clearly did not entitle him or his lawyer to attend the court session.  On the other hand, the law entitled the prosecutor to be present at those sessions and at least on one occasion in the present case he was in fact present. The Commission's attention has further been drawn to the fact that the applicant had no knowledge of the submissions of the prosecutor as these submissions were never communicated to him.  Consequently, he did not have any opportunity to contest properly the reasons invoked to justify the decision to continue or to prolong his detention.

74. The Commission concludes that the applicant did not benefit from  proceedings which were truly adversarial.

CONCLUSION

75. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

E. As regards Article 8 of the Convention

76. Article 8 of the Convention, insofar as relevant, reads:

"1. Everyone has the right to respect for his ... correspondence.

77. The applicant submits that on 2 November 1994 he gave three letters to the Zabrze prison authorities, two addressed to the Katowice Regional Prosecutor and one to the Ombudsman.  It is true that his correspondence with the Ombudsman was registered with the latter on 27 December 1994 under the file number referred to by the Government. However, there is no proof that it was the letter of 2 November 1994 as on 28 November 1994 he sent a further letter to the Ombudsman and all his subsequent correspondence with him was registered under the same number.  He concludes that the Government's submissions as to the facts are incorrect.

78. The applicant further stresses that the letter was intercepted, opened by the prosecutor and served on the addressee with a delay of two months.  He argues that this interference was unjustified, in particular in the light of the statutory role of the Ombudsman as a guardian of respect for human rights.  He further stresses the importance and the character of the complaints contained in his  letter. He concludes that the Government have not advanced any arguments which would demonstrate that this interference, in the circumstances of the case, was in compliance with the requirements of Article 8 para. 2 of the Convention.

79. The Government submit that, under Polish law, the rights of persons detained on remand as regards their correspondence are set out in the relevant sections of the Code of Execution of Sentences and Section 33 of the Rules on Detention on Remand. They provide that the correspondence of persons detained on remand is subject to censorship by the authority conducting the criminal proceedings, i.e. either the public prosecutor or the court, depending on the stage of the proceedings.

80. They further submit that, in the present case, the applicant wrote a letter to the Ombudsman on 2 November 1994, complaining about  alleged irregularities in the criminal proceedings against him and about having allegedly been assaulted by the police on his arrest.  The prison authorities forwarded this letter to the Rybnik District Prosecutor.  On 23 November 1994, the Rybnik District Prosecutor informed the applicant that the letter to the Ombudsman had been forwarded to the Tychy District Public Prosecutor, for the purpose of investigating the alleged assault.  After being read, it was forwarded to the Ombudsman.  The letter reached the Ombudsman's office on 27 December 1994 and was registered there under file number RPO 174886/94/II.  The Government rely in this respect on the results of an internal inquiry by the Katowice Regional Prosecutor, summarised in his letter of 23 March 1996 to the Government.  They conclude that there was no violation of Article 8 of the Convention.

81. The Commission first recalls that the Convention organs have recognised that certain measure of control over correspondence of detained persons is called for and is not in itself incompatible with the Convention (Eur. Court HR, Silver and Others v. the United Kingdom judgment of 25 March 1983, no. 61, p. 38, para. 98; Pfeiffer and Plankl v. Austria judgment of 25  February 1992, Series A no. 227, p. 18, para. 46).

82. The Commission observes in this respect that the applicant's letter to the Ombudsman was intercepted by the prison authorities and transferred to the Rybnik District Prosecutor under Rule 33 of the Rules on Detention on Remand, within the framework of routine censorship of the correspondence of persons detained on remand, and, later, forwarded to the Tychy District Prosecutor for the purposes of investigating the applicant's allegations against the police. As a result, the letter was delayed. The Commission finds that this constituted an interference with his right to respect for his correspondence.  The Commission further recalls that such interference amounts to a violation of Article 8 of the Convention unless it was "in accordance with the law", had an aim or aims that is or are legitimate under Article 8 para. 2 and was "necessary in a democratic society" for the aforesaid aim or aims (Eur. Court HR, Campbell v. United Kingdom judgment of 25 March 1992, Series A no. 233, p. 16, para. 34).

83. The Commission reiterates that while a law which confers a discretion must indicate the scope of that discretion, it is impossible to attain absolute certainty in the framing of the law, and the likely outcome of any search for certainty would be excessive rigidity (Eur. Court HR, Calogero Diana v. Italy judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1775, para. 28;  Petra v. Romania judgment of 23 September 1998, para. 37).

84. The Commission notes that the provisions of Polish law governing the correspondence of persons detained on remand, allow for its automatic censorship by the authorities conducting criminal proceedings.  The Commission observes that these provisions go no further than identifying the category of persons whose correspondence is subject to censorship and the competent authorities. However, the law does not specify the manner in which censorship can be effected.  In particular, the law is silent as regards the scope of censorship and time-limits within which it is to be carried out.  The authorities are not obliged to render any decision giving reasons and specifying the form in which a certain letter is to be censored.  The Commission further stresses that the applicable regulations do not provide for any remedy to contest  the scope and manner of censorship of a letter.

85. The Commission concludes that Polish law does not indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities as regards censorship of correspondence of persons detained on remand, so as to ensure that the persons concerned enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (Eur. Court HR, Domenichini v. Italy judgment of 15 November 1996, Reports 1996-V, p. 1800, para. 33).

86. The Commission further notes that the letter concerned was not only intercepted for censorship purposes, but that it was later forwarded to the Tychy District Prosecutor.  The Commission observes that the Government have not advanced any argument which could justify the conclusion that this delay had any legal basis under Polish law.  Consequently, the Commission is of the opinion that the interference at issue lacked legal basis as required by para. 2 of Article 8 of the Convention.

87. Having regard to the foregoing conclusion, the Commission does not find it necessary to examine whether the interference in question pursued a “legitimate aim” and was “necessary in a democratic society” within the meaning of para. 2 of Article 10 of the Convention.

CONCLUSION

88. The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention.

F. Recapitulation

89. The Commission concludes, unanimously, that there has been a violation of the applicant's right under Article 5 para. 3 of the Covention (para. 59).

90. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention (para. 75).

91. The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention (para. 88).

             M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1] The term “ former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.