EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 32220/96

Jacek Chojak

against

Poland

REPORT OF THE COMMISSION

(adopted on 29 October 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-41)              4

A. The particular circumstances of the case

(paras. 17-39)              4

B. Relevant domestic law and practice

(paras. 40-41)              6

III. OPINION OF THE COMMISSION

(paras. 42-81)              14

A. Complaints declared admissible

(para. 42) 14

B. Points at issue

(para. 43) 14

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

paras. 44-59) 14

CONCLUSION

(para. 60) 17

D. As regards the second limb of Article 5 para. 3 of the Convention

(paras. 61-78)              17

CONCLUSION

(para. 79) 20

E. Recapitulation

(paras. 80-81)              20

SEPARATE OPINION OF MM S. TRECHSEL AND B. MARXER 21

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              22

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 1971 and resident in Trzebnica , Poland. 

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

4. The case concerns the question of whether the Trzebnica District Prosecutor, who detained the applicant on remand, was an "officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 of the Convention. It also concerns the length of the applicant's detention on remand.  The applicant invokes Article 5 para. 3 of the Convention.

B. The proceedings

5. The application was introduced on 20 December 1995 and registered on 11 July 1996.

6.  On 17 January 1997 the Commission (Second Chamber) 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 18 April 1997, after an extension of the time-limit fixed for this purpose.  The applicant replied on 18 June 1997, stating that he wished to pursue his application only insofar as it concerned the complaints submitted by him under Article 5 para. 3 of the Convention.  He withdrew the remainder of the complaints.

8. On 15 April 1998 the case was transferred from the Second Chamber to the Plenary Commission, by decision of the latter.

9. On 23 April 1998 the Commission declared admissible the applicant's complaints under Article 5 para. 3 of the Convention.  It struck the remainder of the application out of its list of cases.

10. The text of the Commission's decision on admissibility was sent to the parties on 5 May 1998 and they were invited to submit such further information or observations on the merits as they wished.  The parties did not avail themselves of this opportunity.

11. After declaring the case admissible, the Commission, acting in accordance with 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

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

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

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

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 29 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to 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.

15. The Commission's decision on the admissibility of the application is annexed hereto as Appendix I.

16. 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

17. On 1 June 1995 the Trzebnica District Prosecutor ( Prokurator Rejonowy ) issued a warrant to search for the applicant by a wanted notice, on the ground that the latter, who was suspected of committing robbery, had gone into hiding.  On 13 June 1995 the applicant was arrested by the police at his home.

18. On  14 June 1995 the Trzebnica District Prosecutor charged the applicant with robbery, heard evidence from him and detained him on remand for three months in view of the reasonable suspicion that he had committed the offence with which he had been charged.  Later, on an unspecified date, the applicant confessed his guilt.  The investigation was completed by the beginning of September 1995.

19. On 11 September 1995 the Trzebnica District Prosecutor lodged a bill of indictment with the Wrocław Regional Court (Sąd Wojewódzki ).  The applicant was indicted of robbery and common assault committed together with two accomplices.

20. On 5 October 1995 the applicant requested the Wrocław Regional Court to release him.  On 13 October 1995 the court dismissed his request.  He did not appeal against this decision.

21. From 21 November to 1 December 1995 the applicant was serving another sentence since, in the meantime, a fine previously imposed on him had been converted into ten days' imprisonment.

22. On 5 December 1995 the applicant requested the WrocÅ‚aw Regional Court to release him.  He asserted that his prolonged isolation from his family was an argument for releasing him and that as he had confessed his guilt he had clearly shown his willingness to cooperate with the authorities.  On 14 December 1995 his request was dismissed on the grounds that there was a reasonable suspicion that he had committed a serious crime and that the need to ensure the due course of proceedings still existed.

23. On an unspecified date in January 1996 the applicant appealed against the above decision.  He submitted that under recent amendments to the Polish Criminal Code, which had been introduced on 1 January 1996, the offence committed by him was now classified as a mere trivial robbery.  Moreover, a person who committed a trivial robbery had a right to make a plea in mitigation.  Since he intended to do so and had already confessed his guilt, there was no justification for detaining him pending trial.

24. On 8 January 1996, the Wrocław Regional Court, sitting in camera, declared that, due to the amendments to the Criminal Code which had been introduced on 1 January 1996, it no longer had jurisdiction with respect to the subject-matter of the case and ordered the case to be transferred to the Trzebnica District Court (Sąd Rejonowy ).

25. On 9 January 1996, upon the applicant's appeal, the Wrocław Court of Appeal (Sąd Apelacyjny ) upheld the decision of 14 December 1995 and held that, notwithstanding the existence of mitigating circumstances which would be relevant to the final judgment, the detention should be maintained in view of the reasonable suspicion that the applicant had committed the crime in question and the need to ensure the due course of proceedings.

26. On 16 January 1996 the applicant requested the Trzebnica District Court to quash the detention order or to replace it by police supervision.  On 15 February 1996 his request was dismissed.  The court found that the need to maintain the detention still existed and that there were no circumstances militating in favour of the applicant's release.

27.  On 1 March 1996 the applicant appealed against this decision to the Wrocław Regional Court, submitting that his detention should no longer be maintained, on account of the fact that the criminal proceedings instituted against him had been going on for an unreasonably long time.  On 8 March 1996, the Wrocław Regional Court upheld the contested decision on the grounds that there was a reasonable suspicion that the applicant had committed the offence in question and that the need to ensure the due course of the proceedings still existed.  The court held that the length of the proceedings did not militate against continuing the detention.

28. In the meantime, on 4 March 1996, the applicant again requested the Trzebnica District Court to release him under police supervision.  The court dismissed his request on 13 March 1996.  The applicant did not appeal against this decision.

29. On 6 March 1996 the court ordered that evidence be taken from psychiatric experts in order to establish whether tempore criminis the applicant's co-defendant had acted in a state of diminished responsibility.  The experts submitted their report to the court on 14 April 1996.

30. On 16 April 1996 the Trzebnica District Court scheduled a hearing for 17 June 1996 but the hearing was subsequently cancelled and rescheduled for 5 August 1996 since the presiding judge was ill.

31. On 5 August 1996 the trial commenced before the Trzebnica District Court.  The court heard evidence from the defendants.  The hearing was adjourned as one of the co-defendants had failed to appear.  In the course of the hearing the applicant requested the court to quash the order for detention.  This request was dismissed on the same day.

32. On 12 August 1996 the subsequent hearing was adjourned on the ground that one of the co-defendants had failed to appear.  In the course of the hearing the applicant again unsuccessfully requested the court to quash the detention order.

33. On 26 August 1996 the court heard evidence from two witnesses but adjourned the hearing since the injured party had appeared before the court in a state of intoxication.  In the course of the hearing the applicant requested the court to quash the detention order.  On the same day the court released the applicant in view of the fact that the latter had confessed his guilt and had given comprehensive testimony.

34. On 6 September 1996 the Wrocław Regional Court, upon the Trzebnica District Prosecutor's appeal, quashed the decision of the Trzebnica District Court of 26 August 1996.  The court ordered that the applicant should be re-detained in view of the need to ensure the due course of the proceedings and the likelihood of a severe penalty.  The court also held that further detention on remand was justified because the applicant had gone into hiding before he was arrested.

35. A hearing scheduled for 16 September 1996 was cancelled because the presiding judge was ill.

36. On 23 September 1996 the applicant was re-detained.

37. On 7 October 1996 the trial before the Trzebnica District Court came to an end. The court decided to give its judgment on 9 October 1996.

38. In the meantime, on an unspecified date, the defence lawyer of one of the co-defendants requested the court to confront certain witnesses with each other.  On 9 October 1996 the Trzebnica District Court ordered the trial to be reopened and to rehear those witnesses.  On 21 October 1996 the court heard the witnesses and decided to give its judgment on 23 October 1996.

39. On 23 October 1996 the Trzebnica District Court convicted the applicant of trivial robbery and sentenced him to two years and six months' imprisonment.  The applicant's lawyer lodged a notice of appeal with the Trzebnica District Court; however grounds of appeal were never lodged, either by the applicant or by his lawyer.

B. Relevant domestic law and practice

40. Preventive measures, in particular detention on remand.

The Polish Code of Criminal Procedure lists as "preventive measures", inter alia , detention on remand, bail and police supervision.

Until 4 August 1996 (i.e. the date on which the Law on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force) detention on remand was imposed by an investigating prosecutor.  A detainee could appeal against an order for his detention, within a seven-day time-limit, to the court competent to deal with his case; however, he was not entitled to be present when the court examined his appeal, whereas in practice a prosecutor was always allowed to participate in the court's session.

Section 210 paras. 1 and 2 of the Code of Criminal Procedure (in the version applicable at the material time) stated:

"1.  Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.

2.  A prosecutor may impose a preventive measure only with respect to a person who has been interrogated in the case as a suspect.  Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect."

"1. Środki zapobiegawcze stosuje sąd, a przed wniesieniem aktu oskarżenia - prokurator .

2. Prokurator może stosować Å›rodki zapobiegawcze tylko wzglÄ™dem osoby , która zostaÅ‚a przesÅ‚uchana w sprawie w charakterze podejrzanego . Przed zastosowaniem tymczasowego aresztowania lub porÄ™czenia majÄ…tkowego prokurator przesÅ‚uchuje podejrzanego osobiÅ›cie ."

According to Section 222 of the Code of Criminal Procedure (in the version applicable at the material time) the prosecutor could order detention on remand for a period not exceeding three months.  When, in view of the particular circumstances of the case, the investigation could not be terminated within this period, detention on remand could, if necessary, be prolonged by the court competent to deal with the case, upon the investigating prosecutor's request, for a period not exceeding one year.  Subsequently, in exceptional cases, detention on remand could be prolonged by the Supreme Court, upon the request of the Prosecutor General, for such further fixed term as required to terminate an investigation.

Section 209 of the Code of Criminal Procedure states:

"Preventive measures may be imposed in order to secure the due course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence."

" Środki zapobiegawcze można stosować w celu zabezpieczenia prawidłowego toku postępowania , jeżeli dowody zebrane przeciwko oskarżonemu dostatecznie uzasadniają, że popełnił on przestępstwo ."

The Code of Criminal Procedure sets out the margin of discretion as to maintaining the specific preventive measure.  Detention on remand is regarded as the most extreme among the preventive measures and the domestic law lays down that in principle it should not be imposed if more lenient measures are adequate and sufficient.

Section 213 para. 1 of the Code of Criminal Procedure provides:

"1. A preventive measure [including detention on remand] shall immediately be quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing a given measure or replacing it with a more or less severe one."

"1. Środek zapobiegawczy należy niezwłocznie uchylić lub zmienić , jeżeli ustaną przyczyny , wskutek których został on zastosowany , lub powstaną przyczyny uzasadniające jego uchylenie , zmianę na łagodniejszy albo zaostrzenie ."

Section 225 of the Code of Criminal Procedure provides:

"Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both these measures, are considered adequate."

" Poza wypadkiem , gdy tymczasowe aresztowanie jest obowiązkowe, środka tego nie stosuje się , jeżeli wystarczające jest poręczenie lub dozór albo oba te środki zapobiegawcze łącznie."

41. Prosecutor.

a. At the material time the relations between the organs of the Polish State were set out in interim legislation, a so-called "Mini-Constitution" ( Mała Konstytucja ), i.e. the Constitutional Act of 17 October 1992.  The Act affirmed the following separation of powers in its Article 1, which provided:

"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."

" Organami PaÅ„stwa w zakresie wÅ‚adzy ustawodawczej sÄ… Sejm i Senat Rzeczypospolitej Polskiej , w zakresie wÅ‚adzy wykonawczej - Prezydent Rzeczypospolitej Polskiej i Rada Ministrów , w zakresie wÅ‚adzy sÄ…downiczej - niezawisÅ‚e sÄ…dy."             

Under Article 56 of the Act, the Council of Ministers (i.e. the Government) shall be composed of the Prime Minister, Deputy Prime Ministers and Ministers.

b. Polish legislation draws a difference between "judicial" and " prosecutorial " authorities; this is demonstrated, inter alia , by the fact that there are separate laws governing the structure and functioning of the courts on the one hand and the prosecuting authorities on the other.

The Law of 20 June 1985 (as amended) on the Structure of Courts of Law ( Ustawa o ustroju sÄ…dow powszechnych ) provides, in Section 1:

"1. Courts of law shall dispense justice in the Republic of Poland.

2. Courts of law shall be courts of appeal, regional courts and district courts."

"1. Sądy powszechne sprawują wymiar sprawiedliwości w Rzezpospolitej Polskiej .

2. Sądami powszechnymi są sądy apelacyjne , sądy wojewódzkie i sądy rejonowe ."

Section 9 of the Law provides:

"The Supreme Court shall exercise supervisory jurisdiction over [lower] courts of law."

" Nadzór nad działalnością sądów powszechnych w zakresie orzekania sprawuje Sąd Najwyższy , w trybie określonym ustawami ."

The Law of 20 June 1985 (as amended) on Prosecutorial Authorities ( Ustawa o Prokuraturze ) sets out general principles concerning the structure, functions and organisation of prosecutorial authorities.

Section 1 of the Law, in the version applicable at the material time, provided:

"1. The prosecutorial 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 prosecutorial authority; his functions shall be carried out by the Minister of Justice."

"1. ProkuraturÄ™ stanowiÄ…: Prokurator Generalny oraz podlegli mu prokuratorzy powszechnych i wojskowych jednostek organizacyjnych prokuratury .

2. Prokurator Generalny jest naczelnym organem prokuratury . Funkcję Prokuratora Generalnego sprawuje Minister Sprawiedliwości .

Section 2 of the Law, setting out the general duties of prosecutors, provided:

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

" Zadaniem prokuratury jest strzeżenie praworządności oraz czuwanie nad ściganiem przestępstw ."

Section 3 para. 1 of the Law, setting out the detailed duties of prosecutors provided, insofar as relevant:

"1. The Prosecutor General and prosecutors subordinate to him shall carry out the[ ir ] duties set out in Section 2 by [the following means]:

(1) carrying out and supervising the carrying out of criminal investigations and performing prosecutorial functions before the courts;

(2) submitting civil claims in criminal and civil cases and taking part in civil proceedings ... if the public interest [or the need to ensure the observance of] the rule of law or citizens' rights so require;

(3) taking [the appropriate] action provided by law in order to secure the correct and uniform application of the law in judicial, administrative ... or any other proceedings;

(4) supervising the enforcement of judgments given in criminal cases, decisions on detention on remand and other decisions on deprivation of liberty;

(5) carrying out research into crime, the prevention of crime and combating crime;

(6) appealing to a court against any administrative decision taken in breach of the law, and participating in proceedings relating to the lawfulness of such decisions;

(7) coordinating the crime-prevention activities of other State organs;

(8) cooperating with [other State organs] and non-governmental organisations in order to prevent crime and other breaches of the law;

(9) giving advisory opinions on draft legislation;

(10) taking [any other] action provided for by statute."

"1. Zadania określone w art. 2 Prokurator Generalny i podlegli mu prokuratorzy wykonują przez :

1) prowadzenie lub nadzorowanie postępowania przygotowawczego w sprawach karnych oraz sprawowanie funkcji oskarżyciela publicznego przed sądami,

2) wytaczanie powództw w prsawach cywilnych i karnych oraz składanie wniosków i udział w postępowaniu sądowym w sprawach cywilnych ... jeżeli tego wymaga ochrona praworządności, interesu społecznego ... lub praw obywateli ,

3) podejmowanie środków przewidzianych prawem , zmierzających do prawidłowego i jednolitego stosowania prawa w postępowaniu sądowym ... oraz w innych postępowaniach ,

4) sprawowanie nadzoru nad wykonaniem wyroków w sprawach karnych , postanowień o tymczasowym aresztowaniu oraz innych decyzji o pozbawieniu wolności ,

5) prowadzenie badań w zakresie problematyki przestępczości oraz jej zwalczania i zapobiegania ,

6) zaskarżanie do sądu niezgodnych z prawem decyzji administracyjnych oraz udział w postępowaniu sądowym w sprawach zgodności z prawem takich decyzji ,

7) kordynowanie działalności w zakresie ścigania przestępstw , prowadzonej przez inne organy państwowe ,

8) współdziałanie z organami państwowymi , państwowymi jednostkami organizacyjnymi i organizacjami społecznymi w zapobieganiu przestępczości i innym naruszeniom prawa ,

9) opiniowanie projektów aktów normatywnych ,

10) podejmowanie innych czynności określonych w ustawach .

Section 7 of the Law provided:

"In carrying out his statutory duties, a prosecutor shall follow the principles of impartiality and of equal treatment of citizens."

" Prokurator jest obowiązany do podejmowania działań określonych w ustawach , kierując się zasadą bezstronności i równego traktowania wszystkich obywateli ."

Section 8  of the Law, insofar as relevant, provided:

"1. In carrying out his duties, a prosecutor shall be independent; the limits of his independence are set out in para. 2.

2. 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."

"1. Prokurator przy wykonywaniu czynności określonych w ustawach jest niezależny , z uwzględnieniem granic niezależności określonych w ust . 2.

2. Prokurator jest obowiÄ…zany wykonywać zarzÄ…dzenia, wytyczne i polecenia przeÅ‚ożonego prokuratora . Jeżeli jednak polecenie dotyczy treÅ›ci czynnoÅ›ci w postÄ™powaniu , prokurator może żądać dorÄ™czenia mu polecenia na piÅ›mie wraz z uzasadnieniem , zmiany polecenia lub wyÅ‚Ä…czenia go od wykonania tej czynnoÅ›ci lub udziaÅ‚u w sprawie .  O wyÅ‚Ä…czeniu rozstrzyga ostatecznie prokurator bezpoÅ›rednio przeÅ‚ożony nad prokuratorem , który wydaÅ‚ polecenie ."

Section 11 of the Law, insofar as relevant, provided:

"Prosecutors of appeal, regional and district prosecutors shall be appointed by the Prosecutor General ... ."

" Prokuratorów prokuratur apelacyjnych , wojewódzkich i rejonowych powoÅ‚uje Prokurator Generalny ... ."                               

c. Chapter III of the Code of Criminal Procedure, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society" describes a prosecutor as a party to criminal proceedings.

According to all the relevant provisions of the Code read together, a prosecutor performs investigative and prosecuting functions in criminal proceedings.  In particular, after completing the investigation, he draws up a bill of indictment and represents the prosecuting authority before the court competent to deal with the case.

Under Section 3 of the Code of Criminal Procedure "... organs conducting criminal proceedings [including a prosecutor] shall examine and take into account exonerating as well as incriminating evidence."

There was (and still is) no legal obstacle to prosecutors performing investigative and prosecutorial functions concurrently.  According to domestic practice - which, at the material time, was a very frequent one and which reflected the general principle of achieving a maximum of efficiency at the investigative stage - the same prosecutor made the decision as to whether a suspect should be detained, conducted the further investigation, drew up the bill of indictment and represented (or could be called upon to represent at any time) the prosecution before the trial court.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

42. The Commission has declared admissible the applicant's complaints that he was detained on remand by the investigating prosecutor who was neither a judge nor another officer authorised by law to exercise judicial power and that the length of his detention on remand exceeded a "reasonable time".

B. Points at issue

43. The Commission must accordingly examine:

- whether there has been a violation of Article 5 para. 3 in that the applicant was detained on remand by the investigating prosecutor; and

- whether there has been a violation of Article 5 para. 3 of the Convention in that the applicant's detention on remand exceeded a "reasonable time".

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

44. The relevant part of this provision provides:

"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 ..."

45. The applicant submits that the Trzebnica District Prosecutor who detained him on remand was neither a "judge" nor another officer authorised by law to exercise judicial power. Therefore, when ordering the applicant's detention, he did not offer sufficient guarantees of independence for the purposes of Article 5 para. 3 of the Convention.

46. The Government maintain that, under the domestic law, a prosecutor is considered to be a guardian of the public interest.  Under Section 7 of the Act of 20 June 1985 on Prosecutorial Authorities, he must, in carrying out his duties, follow the principle of impartiality.  Under the provisions of the Code of Criminal Procedure, in particular Section 3, he is, at all stages of criminal proceedings, bound by the general principle of objectivity and obliged to take into account exonerating as well as incriminating evidence.

47. They also submit that a prosecutor's function is not limited to a duty to collect evidence in criminal proceedings.  He is obliged to assess evidence and, when he finds that a given offence does not create a danger to society, he may order that the investigation be discontinued either conditionally or unconditionally.  Such a decision should be considered as an act of administration of justice.

48. The Government admit that in criminal proceedings a prosecutor acts as a party, but only in judicial proceedings following the submission of a bill of indictment.  This, however, does not absolve him from his general duty to follow the principles of impartiality and objectivity.  For instance, he may file an appeal on behalf of a defendant on any point if he considers this justified.

49. They further stress that the Trzebnica District Prosecutor was, under Polish law, competent to detain the applicant on remand and that, moreover, he personally heard the applicant before ordering him to be detained.  Thus, the procedural requirements prescribed by Article 5 para. 3 of the Convention were complied with.  They conclude that this fact, taken together with the general position of a prosecutor in criminal proceedings, fully justifies the opinion that the investigating prosecutor, when detaining the applicant, was acting in the capacity of a "judicial officer"  within the meaning of para. 3 of Article 5 of the Convention (see Eur. Court HR, Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, pp. 13-14, para. 31).

50. The Commission notes that, since there is no dispute between the parties as to the fact that the applicant was "promptly" brought before the Trzebnica District Prosecutor, the only issue to be examined is whether that prosecutor was an "officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 of the Convention.

51. In this respect the Commission firstly recalls that the "officer authorised by law to exercise judicial power" must have some attributes of the "judge" and, therefore, he must satisfy certain conditions, each of which constitutes a guarantee for the person detained.  The first of such conditions is independence of the executive and of the parties; however, he may, to some extent, be subordinate to other officers provided that they themselves enjoy similar independence (see Eur. Court HR, Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, pp. 13-14, para. 31).

52. Furthermore, the officer mentioned in this provision, when making a detention order, must fulfil two other obligations: firstly, he must himself hear an individual brought before him and, secondly, review the circumstances militating in favour of or against detention and decide, by reference to legal criteria, whether or not there are reasons to justify detention (see the Schiesser v. Switzerland judgment, loc. cit.).

53. The Commission further recalls that even though the Convention does not rule out the possibility of the judicial officer who orders the detention carrying out other duties, 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.  What is relevant to the assessment of whether or not such doubts are to be held objectively justified is not the fact that the officer concerned, later on, actually conducted the prosecution, but objective appearances at the time the decision on detention was taken (see 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; Comm. Report in Assenov , Ivanova and Ivanov v. Bulgaria, adopted on 10.7.97, paras. 135-142, pending before the Court).

54. The Commission notes at the outset that, from the point of view of the organisation of the State, 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.  Also, the different duties of the judicial and prosecutorial authorities were laid down by separate laws governing their duties and functioning; under those laws, courts were called upon to dispense 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 (see para. 41 a. above).

55. The Commission therefore concludes that the Trzebnica District Prosecutor, who made the decision on the applicant's detention, cannot be considered to be an "officer" who had the attribute of being independent from the executive.  Nor was he, under the general rules of Polish law, authorised to exercise "judicial power" within the meaning of Article 5 para. 3 of the Convention.

56. The Commission observes, moreover, that from the point of view of the role played by prosecutors in criminal proceedings, they perform investigative and prosecuting functions and, as the Government have admitted, they act as a party to criminal proceedings (see paras. 41 b. and 48 above).  Since under Polish law there was (and still is) no legal obstacle to a prosecutor performing investigative and prosecuting functions concurrently, nothing, at the material time, prevented a prosecutor who made a decision on detention from conducting further investigations, drawing up the bill of indictment and representing the prosecution before the trial court.  This was a normal and frequent domestic practice (see para. 41 a. and b. above).

57. The Commission notes that in the present case it does not transpire from the case-file whether or not the same prosecutor from the Trzebnica District Prosecutor's Office who detained the applicant did, later on, represent the prosecution before the trial court.  It also observes that it is true that, as the Government have pointed out, under Section 7 of the Law of 25 June 1985 on Prosecutorial Authorities and the general rules of Polish criminal procedure, all prosecutors should respect the principle of impartiality and objectivity (see, paras. 41 a. and b., and 46 above).

58. However, in the Commission's opinion, the mere existence of these principles could not in itself, at the point when the applicant's detention was ordered by the investigating prosecutor, protect him from the risk that, later at his trial, he would be confronted with the opponent who had already ordered his detention. For this reason, the Trzebnica District Prosecutor did not, when making the detention decision, offer sufficient guarantees of independence of the parties.

59. In sum, the Commission considers that it cannot be said that the applicant, upon his detention, was "brought before a judge or other officer authorised by law to exercise judicial power" as required by Article 5 para. 3 of the Convention.  That being so, the fact that the prosecutor complied with the subsequent, minimal procedural requirement, namely hearing the applicant before ordering detention, which was the ultimate argument relied on by the Government, cannot make up for the absence of objective impartiality on his part.

CONCLUSION

60. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention in that the applicant, upon his detention, was not brought before "a judge or other officer authorised by law to exercise judicial power".

D. As regards the second limb of Article 5 para. 3 of the Convention

61. The relevant part of this provision provides:

"3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial."

62. The applicant submits that his detention clearly exceeded a "reasonable time" within the meaning of the foregoing provision.  Moreover, he claims that it was neither justified nor necessary.  First of all, the issue of the warrant to search for him by a wanted notice was premature.  It would have sufficed to have summoned him to appear before the prosecutor, because at the material time he was at home, and indeed it was there that he was finally arrested by the police.  Furthermore, he confessed his guilt at an early stage of the investigation.  This clearly showed his willingness to cooperate with the authorities.  There was, therefore, no risk that he would obstruct the due course of the proceedings. Finally, as he had decided to make a plea in mitigation, it was not in his interest to evade justice or any sentence which might be imposed.

63. The Government maintain that it cannot be said that the applicant's detention on remand, which lasted approximately one year and three months, was in itself long enough to exceed a "reasonable time" within the meaning of Article 5 para. 3 of the Convention.

64. Furthermore, they point out that the charge laid against the applicant was of a serious nature.  Had the applicant been convicted of robbery, a sentence of up to fifteen years' imprisonment might have been imposed on him.  There was another aggravating factor, namely that the applicant had a previous criminal record, which had to be taken into account by the authorities concerned.  Moreover, at the initial stage of the proceedings, he went into hiding, which prompted the prosecutor to issue a warrant to search for him by a wanted notice.  As a consequence, there was a risk that the applicant might abscond or

obstruct the due course of the proceedings.  Finally, the mere fact that he confessed his guilt cannot be seen as a factor rendering his continuing detention unjustified or lacking a sufficient basis.

65. According to the Government, the authorities pursued the applicant's case with due diligence.  In particular, there were no periods of inactivity on their part.  For instance, the investigation was completed within a short period of three months.  The prolongation of the proceedings resulting from the fact that, due to the amendments to the Code of Criminal Procedure relating to the jurisdiction of criminal courts which took effect on 1 January 1996, the applicant's case was transferred from the Wrocław Regional Court to the Trzebnica District Court, was not attributable to the courts dealing with the applicant's case.

66. The Commission recalls that, in order to assess whether continued detention is justified, it falls in the first place to the national judicial authorities to examine all the circumstances militating in favour of or against the existence of such a requirement and to set them out in their decisions on the applications for release.  It is essentially on the basis of the reasons given in these decisions and of the undisputed facts stated by the applicant in his appeals that the Convention organs are called upon to decide whether or not there has been a violation of Article 5 para. 3 of the Convention (see Eur. Court HR, Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II no. 32, p. 388, para. 35).

67. The Commission further reiterates that the persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices.  It is, therefore, necessary to establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty.  Where such grounds were "relevant" and sufficient", it is also necessary to ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings (see Muller v. France judgment loc. cit.).

68. In the present case the Commission notes that the applicant's detention on remand lasted from 13 June 1995, when he was arrested by the police, to 23 October 1996, the date on which he was convicted by the court of first instance.  This period was, however, interrupted on two occasions: firstly, from 21 November to 1 December 1995, when he was serving another sentence and, secondly, from 26 August to 23 September 1996, during which time he was free.  Accordingly, the period of his detention to be considered under Article 5 para. 3 of the Convention is about one year and three months (see paras. 17, 33-34 and 39 above).

69. As regards the reasons given by the Polish authorities to justify the applicant's detention, the Commission observes that, from the initial stage of the proceedings up to their end before the court of first instance, they consistently relied on two essential reasons: the reasonable suspicion that the applicant had committed the offence with which he had been charged and the need to secure the due course of the proceedings.  They also attached some importance to the fact that there were no special circumstances militating in favour of the applicant's release and that, before having been charged, he had gone into hiding.  Lastly, the applicant was redetained in view of the likelihood that a severe penalty might be imposed on him (see, paras. 18, 22-23, 25-27 and 34 above).

70. In the Commission's view, the reasonable suspicion that the applicant had committed the offence with which he had been charged was sufficient to justify his detention only at an early stage of the proceedings, especially as the applicant had confessed his guilt before the investigation was completed at the beginning of September 1995 (see para. 18 above).  Therefore, when the court proceedings started on 11 September 1995 (see para. 19 above), such suspicion alone could no longer suffice as the basis for his detention.

71. It is true that, in order to justify the applicant's detention pending trial, the courts, in their decisions rendered from 14 December 1995 to 6 September 1996, repeatedly invoked the "need to ensure the due course of the proceedings" (see paras. 22, 25-27 and 34 above).  However, none of these decisions explained why the applicant's detention was necessary to ensure that his trial proceeded without impediment or why and in what way the applicant's release would have obstructed the proper conduct of the criminal proceedings against him.                   

72. Furthermore, the Commission notes that from 16 January 1996 onwards the applicant requested the courts, on numerous occasions, to replace the detention imposed on him by police supervision.  By this time, several months had already elapsed from the date on which he had been indicted; yet no hearing had been scheduled in his case.  This leads the Commission to the opinion that, from at least January 1996, the authorities could legitimately have been expected to reassess the necessity of maintaining the applicant in detention pending trial.

73. In this respect the Commission also observes that, since Polish law lays down, in Sections 213 and 225 of the Code of Criminal Procedure, that, in principle, detention on remand should not be imposed if other more lenient preventive measures, such as bail or police supervision, are adequate (see para. 40 a. above), the courts might well have ensured that the trial followed its proper course by imposing either or both of those two measures on the applicant.  Alternatively, they should at least have explained in their decisions why such measures would not have provided a sufficient guarantee of the applicant's presence at the trial.

74. Finally, as it does not transpire from the courts' decisions that, at any stage of the proceedings following the applicant's confession, there was any indication that he would abscond or otherwise attempt to evade any sentence which might be imposed, the Commission finds that the ultimate reasons given by the Wrocław Regional Court on 6 September 1996 to justify his redetention , in particular the likelihood of a severe penalty, cannot be regarded as sufficient either.  In sum, the Commission considers that, from the beginning of January 1996, the Polish courts failed to give relevant and sufficient reasons to justify the applicant's detention.

75. The Commission must further examine the conduct of the proceedings.  In this respect it notes that a period of approximately eleven months elapsed between 11 September 1995, when the applicant was indicted, and 5 August 1996, when the first hearing on the merits took place before the trial court (see paras. 19-31 above).

76. Assessing the conduct of the proceedings during this time, the Commission does not find that the courts displayed any substantial procedural activity.  It is true that the court of first instance ordered that evidence from psychiatric experts be taken; however, this decision did not slow down the proceedings as the expert report was ready within a very short period of a few days (from 6 to 14 March 1996 (see para. 29 above).  Aside from this, the courts were merely dealing with the applicant's requests for release and appeals against refusals to release him (see paras. 20 to 28 above), which could, by no means, absolve them from their obligation to guarantee the applicant a trial within a reasonable time.   The fact that, on 1 January 1996, amendments to the Polish Code of Criminal Procedure altered the jurisdiction of criminal courts cannot explain such a long period of inactivity on the part of the courts either.  After all, the decision ordering that the case-file be transferred to the Trzebnica District Court was taken as early as 8 January 1996 (see para. 24 above).

77. As a consequence, the Commission considers that it cannot be said that the authorities displayed "special diligence" in dealing with the applicant's case, as required by Article 5 para. 3 of the Convention.  Moreover, in the circumstances of the present case, the period of eleven months of inactivity on the part of the court must be seen as significant when it is compared with the overall length of the applicant's detention, which was fifteen months.

78. Accordingly, the Commission, having regard to such a relatively long delay in the proceedings for which the authorities were responsible, and to its above finding that from the beginning of January 1996 onwards the applicant's detention was no longer justified, considers that the period spent by him in detention pending trial exceeded a "reasonable time" within the meaning of Article 5 para. 3 of the Convention. 

CONCLUSION

79. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention in that the applicant's right to a "trial within a reasonable time or release pending trial" was not respected.

E. Recapitulation

80. The Commission concludes,  unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention in that the applicant, upon his detention, was not brought before "a judge or other officer authorised by law to exercise judicial power" (para. 60 above).

81. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention in that the applicant's right to a "trial within a reasonable time or release pending trial" was not respected (para. 79 above).

        M. de SALVIA                       S. TRECHSEL

         Secretary                      President

      to the Commission                  of the Commission

(Or. English)

SEPARATE OPINION OF MM S. TRECHSEL AND B. MARXER

We have voted with the majority for finding a violation of the first issue under Article 5 para. 3, as the case is now admissible.

However, we do not agree with the decision on admissibility itself, in particular, we do not consider it right to say that there is a continuing situation where the requirements of bringing an arrested person before "a judge or other officer authorised by law to exercise judicial power" has not been complied with.

On the contrary, having in mind the Court's judgment in the case of Brogan and Others v. the United Kingdom of 29 November 1988, Series A no. 145-B, para. 62, the latest point in time when, under exceptional circumstances of suspected terrorists, the arrestee is to be brought before "a judge ..." is four days.  If that period has elapsed, the violation cannot be "healed" any more, the damage is irreversibly done.

In the present case, this occurred on 14 June 1995.  After that moment there was no further prospect of the applicant being brought promptly before "a judge ...".  He has lodged his application on 20 December 1995, that is more than 6 months later.  It therefore ought to have been declared inadmissible.