EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25874/94

Jacek Kawka

against

Poland

REPORT OF THE COMMISSION

(adopted on 8 September 1998)

TABLE OF CONTENTS

...................................................... Page

I. INTRODUCTION

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

A. The application

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

B. The proceedings

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

C. The present Report

                        (paras. 11-15) .................................... 2

II. ESTABLISHMENT OF THE FACTS

            (paras. 16-45) ......................................... 3

A. The particular circumstances of the case

                        (paras. 16-36) .................................... 3

B. Relevant domestic law

                        (paras. 37-45) .................................... 5

III. OPINION OF THE COMMISSION

             (paras. 46-74) ......................................... 7

A. Complaints declared admissible

                        (para. 46) ....................................... 7

B. Points at issue

                        (para. 47) ....................................... 7

C. As regards Article 5 para. 1 (c) of the Convention

                        (paras. 48-69) .................................... 7

CONCLUSION

                         (para. 70) ...................................... 11

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

                         (paras. 71-83) ................................... 12

CONCLUSION

                         (para. 84) ...................................... 14

F. Recapitulation

                        (paras. 85-86) ................................... 14

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

                        ADMISSIBILITY OF THE APPLICATION ................ 15

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE         

                         ADMISSIBILITY OF THE APPLICATION ............... 19

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, a Polish citizen, born in 1965, is currently detained on remand in Łódź prison.

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 complaint that the applicant's detention on remand was maintained from 1 to 4 October 1994 without any legal basis, that he was never brought before a judge in the proceedings concerning his continued detention and that those proceedings were not adversarial.  The applicant invokes Article 5 paras. 1 (c) and 4 of the Convention.

B. The proceedings

5. The application was introduced on 22 August 1994 and registered on 7 December 1994.

6. On 17 May 1995 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 the admissibility and merits of the applicant's complaints under Article 5.  It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 18 December 1995, after an extension until 20 October 1995 of the time-limit fixed for this purpose had been granted.  The applicant replied on 19 February 1996.

8. On 7 July 1997 the Commission declared admissible the applicant's complaints under Article 5 of the Convention.

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 further observations as they wished.  On 16 September 1997 the Government submitted further observations to the effect that the applicant had not complied with the requirements of Article 26 of the Convention.  The Commission now finds no basis for application of Article 29 of the Convention.

10. 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

11. 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

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

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 8 September 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.

13. 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.

14. The Commission's decisions 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 6 January 1994 the Zgierz District Prosecutor issued a warrant of arrest against the applicant and on the same day the applicant was remanded in custody on suspicion of attempted manslaughter by assaulting the victims in their apartment with a knife and axe.

17. On 25 March 1994 the Łódź Regional Court (Sąd Wojewódzki ) granted the Public Prosecutor's request for prolongation of the detention until 4 July 1994 in view of the need to take further expert opinions.

18. On 5 April 1994 the Łódź Regional Court dismissed the applicant's request for release.

19. On 11 April 1994 the case was transferred to the Zgierz District Prosecutor.

20. On 26 April 1994 the Łódź Court of Appeal (Sąd Apelacyjny ) complied with the applicant's request to amend the decision of 25 March 1994 and shortened the period for which the applicant's detention was authorised to 30 June 1994.

21. On 25 May 1994 the applicant requested his release.  The Łódź Regional Court and, upon appeal, the Łódź Court of Appeal, dismissed his request.

22. On 15 June 1994 the applicant requested his release.

23. On 17 June 1994 the applicant underwent a psychiatric examination.

24. On  28 June 1994 the Łódź Regional Court,  acting upon the motion of the Zgierz District Prosecutor, prolonged the applicant's detention from 30 June until 30 September 1994.  The Court considered that the reasons for which the detention had been ordered had not ceased to exist.  There was sufficient suspicion that the applicant had committed the criminal offence at issue, supported by evidence gathered in the course of the investigations.  The applicant had to undergo a further time-consuming psychiatric examination.  Further investigatory measures and evidence had to be taken.

25. On 15 July 1994 an additional psychiatric opinion was submitted.

26. On 19 July 1994 the Łódź Court of Appeal upheld the decision of  28 June 1994.  The Court considered that the applicant's psychiatric examination had not been completed.

27. On 11 and 28 August 1994 the applicant requested to be released. His requests were subsequently dismissed by the Łódź Regional Court.

28. On 1 September 1994 the applicant requested his release.

29. On 5 September 1994 the applicant was informed that the charges against him had been in part modified and he was given access to the case-file.

30. On 21 September 1994 the applicant was served with a bill of indictment.  On the same day the Public Prosecutor submitted the indictment to the Łódź Regional Court.

31. On 4 October 1994 the Łódź Regional Court dismissed the applicant's request for release of 1 September 1994.  The Court considered that there was a reasonable suspicion that the applicant had committed a dangerous offence, supported by the evidence given, inter alia , by the two victims.  The reasons for which the detention had been ordered continued to exist.  The applicant had failed to indicate in his request any new circumstances which could justify his release.

32. On 6 October 1994 the applicant's father appealed against the decision.  He submitted that the period of detention had expired on 30 September 1994, whereas the applicant had not received any decision further prolonging his detention.

33. On 10 October 1994 the applicant's lawyer appealed against the same decision.  He submitted that the Court's conclusions as to the reasonableness of the suspicion were based on insufficient evidence as only the evidence given by the victims supported the suspicion that the applicant was guilty.  The applicant's detention since 30 September 1994 lacked any legal basis, as the detention period had expired on this date.  No further decision relating to the prolongation of the detention had been issued.

34. On 25 October 1994 the Łódź Court of Appeal upheld the decision of 4 October 1994.  The court first considered that the applicant's arguments as to the whether the suspicion against him was reasonable were ill-founded. The court further considered that the applicant's suggestion that his detention since 30 September 1994 lacked any legal basis was entirely erroneous. The court stated that the applicant's lawyer must apparently have overlooked the fact that the bill of indictment had been submitted to the court on 21 September 1994. Therefore the time-limits provided for by Article 222 of the Code of Criminal Procedure had ceased to apply, given that this provision applied only to the pre-trial stage of criminal proceedings. One might have thought, continued the court, that such a manifestly obvious conclusion which required only a cursory perusal of relevant provisions, should not have caused any interpretation difficulties (" Wydawałoby się , że rzeczy tak oczywiste , wynikające wprost ze zwykłej lektury odnośnych przepisów , nie powinny nastręczać ż adnych trudności interpretacyjnych ").

35. The Court fixed the date for the first hearing for 27 January 1995, but it was later adjourned.  Subsequently, on 14, 16, 27 and 31 March 1995 and on 6 April 1995 the applicant requested to be released, but to no avail as the Łódź Regional Court dismissed all his requests.

36. On 5 June 1995 the Court convicted the applicant of attempted manslaughter and sentenced him to five years' imprisonment.

B. Relevant domestic law

37. Articles 210 and 212 of the Code of Criminal Procedure, applicable at the material time, provide that, before the bill of indictment has been transmitted to the Court, preventive measures are ordered by the Public Prosecutor.  Thereafter, such orders are made by the Court.  A decision concerning preventive measures may be appealed to the higher Court and, in case the Public Prosecutor has made the order, to the Court competent to examine the merits of the case.  Pursuant to Article 213, preventive measures should be lifted or changed with no delay if the grounds on which they had been imposed subsequently ceased to exist.  In accordance with Article 214, an accused may, at any time, lodge a request for release with the court competent to deal with his or her case.  Such a request must be decided by the court within a period not exceeding three days.

38. Article 222 of the Code further states that the Public Prosecutor can order a period of detention on remand of up to three months.  If the investigations have not been terminated within three months, detention on remand in the pre-trial stage of proceedings could be prolonged by a court competent to deal with the merits of the case for up to one year.

39. Preventive measures (including detention on remand) are examined by the courts in proceedings held in camera.  Article 88 of the Code of Criminal Procedure provides that the Public Prosecutor may attend such proceedings and that other parties may also attend if the law so provides.  No rule provides for the attendance of the accused or his or her lawyer in the proceedings concerning detention on remand.

40. Under Article 87 para. 1 of the Polish Constitution, the personal liberty of the citizens is guaranteed.  No one can be deprived of her or his liberty, except pursuant to the laws in force.

41. Articles 295 and 296 of the Code of Criminal Procedure, referring to the formal requirements for a bill of indictment, state, inter alia , that it shall contain the first name and surname of the accused and information as to whether a preventive measure has been imposed on him or her, a statement of the offence with which he or she is charged, a detailed description of the facts of the case along with a statement of reasons for the accusation, an indication of the court competent to deal with the case and the evidence upon which the accusation is founded.

42. Once the bill of indictment has been lodged with the court, the president of the court carries out preparations for the main trial.

43. Article 299 para. 1 (6) of the Code of Criminal procedure provides:

:

"1.Prezes sądu wnosi z urzędu lub na wniosek stron sprawę na posiedzenie , jeżeli uzna , że zachodzi potrzeba rozstrzygnięcia przekraczającego uprawnienia prezesa , a zwłaszcza : ...

(6) wydania postanowienia co do środka zapobiegawczego ."

:

"1. The president of the court, ex officio or on the request of a party, shall refer the case to a court session if he finds that its resolution lies beyond his own competence, in particular:

(6) when there is a need to issue an order on a preventive measure."

44. The Minister of Justice's order of 15 April 1992 on admission and release of detained and sentenced persons (Ministry of Justice's Official Journal, No. 3/1992, item 21) authorises the release of a detainee after the time for which the detention was ordered has elapsed, unless the prison authorities receive information that a detainee has been put at the disposal of a competent court.

45. At the material time, according to the relevant domestic practice, in respect of detention continuing after the last detention order had expired and after a bill of indictment had been lodged with a court, the courts did not make use of the procedure prescribed by the above-mentioned provision as it was presumed that the detention continued solely due to the fact that a bill of indictment had been lodged and, therefore, there was no need to issue a separate decision on the prolongation of the detention.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

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

- that his detention on remand was maintained from 1 to 4 October 1994 without any legal basis;

- 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.

B. Points at issue

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

- whether there has been a violation of Article 5 para. 1 of the Convention,

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

C. As regards Article 5 para. 1 (c) of the Convention

48. Article 5 para. 1 (c) of the Convention reads as follows:

"1. Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;"

49. The applicant submits that after the expiry of the period of detention based on the decision of 28 June 1994 which had prolonged his detention until 30 September 1994 there was no legal basis for his detention until 4 October 1994.  The court issued the decision of 4 October 1994 only in response to the applicant's request, but no decision would have been issued of the court's own motion, if the applicant had not requested the court to be released.  Thus, his detention from 1 to 4 October 1994 was based only on the assumption that it should be maintained in view of the indictment having been transmitted to the court.  This assumption was not based on any legal provision and as such was not in conformity with Article 87 para. 1 of the Constitution and with the Convention.

50. The Government submit that, under Article 299 para. 1 of the Polish Code of Criminal Procedure, the President of the Court, of his own motion or upon a request of a party, may refer the case for an interlocutory decision to be taken by a court if he finds that the decision to be taken lies beyond his own authority, and in particular, if an order is to be issued concerning, inter alia , detention on remand.  The applicant's case was referred for a court session in camera pursuant to this provision, following the applicant's request for release.  The decision of the Łódź Regional Court of 4 October 1994, in which the court dismissed the applicant's request for release of 1 September 1994, incorporated a decision to prolong the applicant's detention.  This decision, as well as the later decisions concerning the applicant's detention, taken after the date on which the indictment was transmitted to the Court, were taken in conformity with  Polish law, were not arbitrary and were taken within the framework of correct procedures provided for by domestic law.

51. The Government further submit that, under the domestic law applicable at the material time, once the bill of indictment was submitted to the trial court, the accused was at the court's disposal.  This court, or a superior court, was competent to decide on the continuation of the detention.  Pursuant to Article 213 of the Code of Criminal Procedure, these courts could review, ex officio, the well- foundedness of the detention.

52. The Government state that there is nothing in the Code of Criminal Procedure which could be construed as an obligation for the court to issue a decision on the prolongation of detention after the indictment has been submitted to the court.  Consequently, the Łódź Regional Court was not obliged to take a decision on the applicant's detention after 30 September 1994, i.e. the date on which the validity of the decision on which the applicant's detention was based expired.  It does not mean, however, that after the indictment has been lodged with the court, detention on remand is automatically prolonged until a judgment on the merits is pronounced.  On the contrary, the lawfulness of detention is constantly supervised by the court acting ex officio, pursuant to Article 213 of the Code of Criminal Procedure, referred to above.

53. The Government further contend that Article 222 of the Code of Criminal Procedure provided for permissible periods of extension of detention on remand at the pre-trial stage of proceedings.  However, there was no such provision in respect of detention during the trial stage.  This must lead to the conclusion that, after the bill of indictment was lodged with the court, there was no limitation on the period for which detention on remand can be maintained.

54. The Government finally refer to the Minister of Justice's Order on admission and release of detained and sentenced persons which authorises release of a detainee after the time for which detention was ordered has elapsed, unless the prison authorities receive information that a detainee has been put at the disposal of the court competent to pronounce judgment on the merits of the case.  This, in the Government's view, confirms the conclusion that the prolongation of detention on remand is obligatory only at the pre-trial stage of criminal proceedings.

55. The Commission notes that in the present case it is not in dispute between the parties that on 28 June 1994 the applicant's detention was prolonged until 30 September 1994.  On 1 September 1994 the applicant requested to be released.  The indictment was transmitted to the Court on 20 September 1994.  On 30 September 1994 the decision on the applicant's detention ceased to be valid, but his detention was maintained in view of the indictment having been lodged with the court, and the Regional Court dismissed his request for release on 4 October 1994.  The appeal against this decision was subsequently dismissed by the Court of Appeal on 25 October 1994.

56. The Commission observes that as the last decision on the applicant's continued detention ceased to be valid on 30 September 1994, no decision of any authority existed from 1 to 4 October 1994 which could be considered as relating to his detention.  The Commission further notes that, pursuant to the Polish Code of Criminal Procedure, a bill of indictment does not address the issue of detention on remand, as it is limited to presenting charges against the accused and the relevant evidence to the court.  The Commission must therefore determine whether the applicant's detention in this period was "lawful" within the meaning of Article 5 para. 1 of the Convention.

57. The Commission recalls that under Article 5 para. 1 of the Convention the State is obliged to ensure that any measure depriving a person of his liberty should issue from an appropriate authority. Moreover, this provision of the Convention states the need for compliance with the relevant procedure under domestic law (see Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 19-20, para. 45).  The Commission further recalls that the Convention, although in Article 5 para. 1 it refers essentially to national law and establishes the need to apply its rules, it also requires that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (Eur. Court HR, Bozano v. Italy judgment of 18 December 1986, Series A No. 111, p. 23, para. 54).

58. It is true that it is normally in the first place for the national courts to interpret and apply domestic law.  Nonetheless, it is otherwise in relation to matters where, as under Article 5 para. 1, failure to comply with that law entails a breach of the Convention.  In such cases the Convention organs can and should exercise a certain power to review whether or not the authorities, when ordering detention, observed the rules of national law (see Eur. Court HR, Kemmache v. France judgment of 24 November 1994, Series A no. 296-C, p. 87, para. 37).

59. Moreover, the Commission considers that since the domestic law must itself be in conformity with the Convention, including the general principles expressed or implied therein, the Convention organs' power of review under Article 5 para. 1 inevitably includes the power to assess the quality of the law concerned in the light of those principles, among which the principle of legal certainty plays an important role.             

60. In this respect the Commission recalls that the Court, when interpreting the words "in accordance with the law" contained in Article 8 para. 2 and "prescribed by law" contained in Article 10 para. 2 of the Convention - which cannot be seen as having a different meaning from the expression "lawful" within the meaning of Article 5 para. 1 - has expressly held that this phrase does not merely refer back to domestic law but also relates to the quality of that law, requiring that it should be accessible to the person concerned, formulated with sufficient precision to enable the citizen to foresee its consequences for him, and compatible with the rule of law (see, e.g. Eur. Court HR, Sunday Times No. 1 v. the United Kingdom judgment of 27 October 1978 Series A no. 30, p. 31, para. 49; Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 30, para. 61; Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 27 et seq., para. 27 et seq.).

61. Accordingly, the Commission considers that the expression "lawful" within the meaning of Article 5 para. 1 of the Convention incorporates the requirement that the domestic law on which the detention is based must be accessible and foreseeable in its application.  Moreover, having regard to the importance of the right to liberty in a democratic society, any form of deprivation of liberty permitted under this provision must be based on a "law" which is particularly precise.

62. As regards the domestic law applicable at the material time, the Commission observes that it did not provide for statutory time-limits on detention on remand in proceedings before the courts, although, in Section 222 of the Code of Criminal Procedure, it did set out such time-limits with respect to detention during the investigative stage.  On the other hand, there was no legal provision providing that the lodging of a bill of indictment automatically replaced or prolonged a previous detention order, or that this event itself resulted in the detention, originally prolonged by a court for a fixed period at the investigative stage, being maintained either for an unlimited period or until a judgment at first instance was given.

63. The Commission further notes that the Government make reference in this context to the Minister of Justice's Order on admission and release of detained and sentenced persons.  However, this Order only sets out conditions on which the prison authorities can release a detained person.  The Order provides that a detainee cannot be released if the prison authorities receive information that he or she has been put at the disposal of the court competent to deal with the merits of the case.  However, the Commission considers that such information only refers back to the established practice of assuming that detention should be continued in view of the bill of indictment having been lodged with the court, but that it cannot be regarded as constituting an autonomous and sufficient legal basis for continued detention.  The latter argument applies with all the more force as the "information" concerned is of a purely technical character and does not address the issue whether the continuation of detention remains justified.

64. The Commission thus considers that the Government do not advance any arguments on which to conclude that there exists any provision under Polish law on criminal procedure which would expressly authorise   the automatic continuation of detention after the bill of indictment had been lodged with the court.  It was, therefore, only a matter of domestic practice, arising out of the absence of any such legislative provisions that, once a bill of indictment had been lodged with the court competent to deal with the case, an accused was maintained in detention on remand regardless of whether or not the last detention order made in the course of the investigation had expired (see para. 45).

65. At the same time, as the courts did not make use of the procedure prescribed by Article 299 para. 1 (6) of the Code of Criminal Procedure, they did not issue any decision of their own motion in respect of continuing detention after the expiry of the last detention order.  As a consequence, it was only when a detainee requested a court to release him that it was obliged, pursuant to Section 214 of the Code of Criminal Procedure, to determine the lawfulness of his continuing detention within the time-limit of three days provided by this provision (see para. 37).

66. The Commission finds, firstly, that the accessibility of the Polish law governing detention on remand does not raise any problem in the present case.

67. The " foreseeability " of that law, insofar as detention at the investigative stage is concerned, does not create any problem either.  Section 222 of the Code of Criminal Procedure, as it stood at the time, was sufficiently clear in its terms to give a detainee an adequate indication as to the conditions under which his detention might properly be prolonged and, in particular, for how long.  He was thus able to foresee legal and practical consequences of his detention, because it could be prolonged only "if necessary" and for a precisely fixed period.  As a result, he could legitimately expect that, upon the expiry of each detention order, the courts concerned would either give a decision determining a new, precise term of detention, or release him.  Section 222 constituted, therefore, an important safeguard against arbitrary detention, the more so as it required a judicial decision putting a time-limit on this measure (see para. 38).

68. In the Commission's view, the same does not apply to the situation in which a detainee found himself once court proceedings had commenced.  First of all, once a detainee was indicted, the Polish legislation lacked any provisions clearly determining his position after the expiry of the last detention order made in the investigative phase.  Secondly, even though there was no provision providing that his detention should continue for an unlimited period under the bill of indictment, or stating that the lodging of the bill of indictment had the effect of prolonging his detention, the person concerned was, in practice, maintained in detention under the bill of indictment and any further judicial decision on his liberty could be secured only by lodging a request for release with the court under Section 214 of the Code of Criminal Procedure.

69. However, such a practice, which was entirely unsupported by any legislative provision or case-law, and indeed arose to fill a statutory lacuna, cannot replace and be equal to a "law" within the meaning of Article 5 para. 1 of the Convention.  Nor can it possibly fulfil the requirement of " foreseeability " of a "law" as interpreted by the Convention organs.

CONCLUSION

70. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention.

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

71. 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."

72. The applicant complains that he did not benefit, in review of the lawfulness of his detention, from proceedings which were adversarial, and that neither he nor his lawyer was entitled to attend a court session in the proceedings concerning such review.

73. The applicant submits that the position of the Public Prosecutor during the in camera sessions of the court at which the prolongation of detention, or the applicant's requests for release, were considered did not differ in any way from the position of a party to the proceedings.  Thus, the Public Prosecutor defended his position that the applicant's detention should be maintained.  It cannot be reasonably conceived that he would support the position of the detainee.

74. The applicant further argues that under applicable domestic law he was not entitled to be present in person before the court in any of the proceedings concerning his detention on remand.  Written arguments of the detained person or the lawyer presented to the court cannot be considered as an equivalent to  personal appearance.  Should such a position be adopted, it would ultimately result in acknowledging that criminal proceedings, instead of being public and adversarial, should be non-public and written.

75. The Government submit that the applicant was arrested on 4 January 1994 and the decision of the Public Prosecutor to remand him in custody was issued on 6 January 1994.  It should therefore be considered that the applicant was brought promptly before the competent authority within the meaning of Article 5 para. 3 of the Convention.

76. The Government further submit that under Polish law applicable at the material time the decisions on detention on remand and on its extension could be appealed against to a court.  These appeals were examined at court sessions held in camera.  It is true that not all the guarantees of fair hearing were applicable in such proceedings. However, the courts had an opportunity to examine whether the decisions concerned were lawful and justified.

77. The Government submit that the law did not provide for the mandatory presence of the accused or his lawyer before the court when it was taking decisions on extension of the detention on remand or on the requests for release.  However, this did not necessarily entail a breach of the principle of equality of arms in such proceedings as the participation of the Public Prosecutor was optional.  Further, in such proceedings the court examined the written submissions of the detained person and thus had detailed knowledge of his arguments.

78. As regards the present case, the Government admit that the Public Prosecutor was present at the Regional Court's in camera sessions at which the applicant's requests for release were examined.  However, the role of the Public Prosecutor at the hearings concerned should be regarded as that of a guardian of the public interest.  The Public Prosecutor limited his submissions to supporting the arguments set out in the Regional Court's decisions to maintain the applicant in custody and did not submit any new arguments militating in favour of the applicant's continued detention.  Thus, the proceedings were adversarial, given that both parties were free to present their arguments to the court deciding on the applicant's detention.

79. 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).

80. The Commission also recalls that the purpose of Article 5 para. 4 is to assure 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).

81. 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).

82. 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).

83. The Commission observes that in the present case the proceedings concerning the extension of the applicant's detention were held before the Łódź Regional Court on 25 March and 28 June 1994, and that the applicant's appeal against the latter decision was dismissed by the Łódź Court of Appeal of 19 July 1994.  Further, the applicant's request for release was dismissed by the Regional Court on 4 October 1994, and, upon appeal, by the Łódź Court of Appeal on 25 October 1994.  The Commission notes that on no occasion was the applicant heard in person or through any form of representation in these proceedings, or in any of the preceding proceedings concerning his detention in the criminal case against him.  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.  The Commission's attention has been drawn to the fact that he had no knowledge of the submissions of the Public 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 his detention or to dismiss his requests for release.

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

CONCLUSION

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

F. Recapitulation

86. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention (para. 70).

87. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention (para. 85).

     M. de SALVIA                                                                 S. TRECHSEL

       Secretary                                                                             President

    to the Commission                                                           of the Commission