AS TO THE AD MISSIBILITY OF

Application No. 30865/96

by Marek JASIŃSKI

against Poland

The European Commission of Human Rights sitting in private on 19 October 1998, 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

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission;

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 March 1995 by Marek JASIŃSKI against Poland and registered on 27 March 1996 under file No. 30865/96;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1958, is a locksmith by trade.  He resides in Brzeszcze , Poland.

The facts of the case, as submitted by the applicant, may be summarised as follows.

Particular circumstances of the case:

a) Criminal proceedings against the applicant.

On 8 January 1994 the applicant was arrested by the police on suspicion of having committed burglary.  On 10 January 1994 he was brought before J.K., a district prosecutor from the Pszczyna District Prosecutor's Office ( Prokurator Rejonowy ), charged with six counts of burglary and detained on remand for one month since, in the light of the fact that the applicant had been arrested flagrante delicto , there was a reasonable suspicion that he had committed the offences with which he had been charged.  The prosecutor also relied on the serious nature of the offences in question.

Some time after this date, the Pszczyna District Prosecutor made a decision ordering that the applicant's car and goods found in his shop be seized in order to secure the payment of the fine to which he was potentially liable.

On 2 February 1994 the Pszczyna District Prosecutor prolonged the applicant's detention until 8 March 1994, stating that, in the light of findings made in the investigation, it was likely that the applicant had committed other, similar, offences and that, as there was a risk that he might obstruct the process of obtaining evidence from witnesses, there was a need to secure the due course of the proceedings against him.

On 25 February 1994 the Pszczyna District Prosecutor prolonged the applicant's detention until 8 April 1994 on the ground that such further prolongation was necessary in order to secure the due course of the investigation, which had not come to an end as further evidence needed to be gathered.

On 30 March 1994, upon the request of the Pszczyna District Prosecutor, the Pszczyna District Court (Sąd Rejonowy ) prolonged the applicant's detention until 8 June 1994 in view of the reasonable suspicion that the applicant had committed the offences with which he had been charged and the fact that the investigation was not terminated as evidence from a fingerprint expert and another forensic expert needed to be obtained.  Therefore, the need to secure the due course of the investigation militated in favour of the prolongation of the applicant's detention.

On 30 May 1994, upon a further request from the Pszczyna District Prosecutor, the Pszczyna District Court prolonged the applicant's detention until 8 August 1994, finding that such further prolongation was necessary for the purposes of securing the due course of the proceedings, in particular as, in the meantime, several new charges of burglary had been laid against the applicant and, moreover, evidence from an expert valuer needed to be obtained in order to assess the damage resulting from the burglaries in question.

On 4 August 1994, upon a request by the Pszczyna District Prosecutor, Z.R., a single judge sitting as the Pszczyna District Court, prolonged the applicant's detention until 8 September 1994.  The reasons for this decision read, insofar as relevant:

"[the applicant] was charged with the offence outlawed by Section 208 read in conjunction with Section 60 para. 1 of the Criminal Code.  In the light of the material gathered in [the present] case this charge has a sufficient appearance of likelihood.  It transpires from [the material contained in] the case-file that new circumstances have arisen which might indicate that it would be necessary to obtain evidence from psychiatrists in order to establish the criminal responsibility of the suspect.  That being so and since new circumstances have appeared but, in the court's opinion, the grounds given for [the applicant's] detention have not ceased to exist [the detention should be prolonged until 8 September 1994]."

On 29 August 1994 the Pszczyna District Prosecutor lodged a bill of indictment with the Pszczyna District Court.  The applicant was indicted of twenty-three counts of burglary.

On 19 September 1994 the applicant lodged a request for release with the Pszczyna District Court.  On 20 September 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed the request.  The reasons for this decision, insofar as relevant, read:

"The accused, requesting [the court] to alter the preventive measure [imposed on him] , submitted that the mother of his minor son was not providing the child with the proper care.  The court dismisses his request since the accused's deed constitutes a serious danger to society - [thus] he is [criminally] liable under the rules governing relapse into crime set out in Section 60 para. 1 of the Criminal Code.  The likelihood of the facts relied on by the accused [in his request] was, by no means, demonstrated by him.  The court could not, therefore, verify those facts. ..."

On an unspecified date the applicant appealed against this decision, submitting that the difficult situation of his family, in particular the fact that his son was still being deprived of proper care, was an argument for releasing him. On 21 October 1994 the Katowice Regional Court (Sąd Wojewódzki ) dismissed his appeal finding that there were no valid reasons to release the applicant as his child had been placed under the care of its grandparents.

On 7 December 1994 a hearing was to be held in the applicant's case but was adjourned since the applicant, finding that Z.R. had been appointed to sit as the presiding judge, submitted a motion challenging his impartiality.  In the applicant's opinion, the judge had actively participated in the investigation, and so become a party to the proceedings. In particular, he had made the decision of 4 August 1994 prolonging the applicant's detention pending further investigation and, later on, had dealt with his request for release, dismissing it on 20 September 1994.  In both of these decisions the judge had assessed the charges laid against the applicant and found that they had been confirmed.  He had also referred to aggravating circumstances such as the gravity of the offences in question and the applicant's criminal record.  All these factors were closely related to the assessment of the applicant's guilt, his criminal liability and the sentence which might be imposed.  For these reasons, it was clear that the judge had already formed a preconceived opinion on the question of the extent of the applicant's criminal liability.

On 9 December 1994 a panel of three judges, sitting as the Pszczyna District Court, dismissed the applicant's challenge, finding that it was unjustified.  The court stressed that court decisions on prolongation of detention made at a prosector's request based on Section 222 para. 2 (1) of the Code of Criminal Procedure were not equivalent to participation in an investigation.

On an unspecified date the applicant again requested the Pszczyna District Court to alter the preventive measure imposed on him on the ground of the difficult situation of his family.  Apparently, he also complained that the presiding judge was not impartial.  On 12 December 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed the applicant's request, finding that the circumstances concerning the applicant's family situation had already been examined by the courts in their decisions concerning his request for release of 19 September 1994.  Moreover, there were no circumstances which, within the meaning of Section 218 of the Code of Criminal Procedure, might militate in favour of the applicant's release.  Referring to the arguments concerning the alleged lack of impartiality on his part, the judge stated that the applicant's challenge had already been examined and dismissed on 9 December 1994.

On 21 December 1994 judge Z.R., sitting as the Pszczyna District Court, dismissed a request for a preventive measure to be quashed or altered which had been filed by the applicant on an unspecified date.  The reasons for the decision read, insofar as relevant:

"The accused has been charged with numerous counts of burglary committed in the conditions set out in Section 60 para. 1 of the Criminal Code relating to relapse into crime.  The offence in question constitutes a serious danger to society.  The bail proposed by the applicant cannot, in the court's opinion, secure the due course of the proceedings against him.

Moreover, both the fact of the commission of an offence constituting a relapse into crime and the serious danger to society [represented by the offence] are autonomous prerequisites for maintaining detention on remand (see Section 217 para. 1 (3) and (4) of the Code of Criminal Procedure).  In respect of the accused those prerequisites exist cumulatively.  ..."

On 13 January 1995, upon the applicant's appeal filed on an unspecified date, the Katowice Regional Court upheld the above decision, finding that his detention was still justified under Section 217 para. 1 (3) and (4) of the Code of Criminal Procedure and that no special circumstances militated in favour of his release.

On 25 January 1995 the applicant requested the Pszczyna District Court to quash the detention order.  In his view, his detention had become unlawful as the statutory-time limit of one year for detention on remand (as laid down in Section 222 para. 2 (1) of the Code of Criminal Procedure) had expired.  On 31 January 1995 judge Z.R. dismissed his request as unjustified, informing the applicant that the time-limits for detention on remand concerned only the investigative stage of criminal proceedings and that the courts were not bound to observe any such time-limits when a given case was pending before them after the lodging of a bill of indictment.  In such a situation, an accused could only lodge a request for release under Section 214 of the Code - at any time - and appeal to a higher court against the refusal to release him.

On an unspecified date the applicant appealed against this decision to the Katowice Regional Court.  He submitted that the period of his detention had expired and thus had become unlawful under Section 222 of the Code of Criminal Procedure and Article 5 of the Convention.  In his view, the period of his detention could not exceed one year.

In the meantime, on an unspecified date, the applicant again challenged the presiding judge.  The challenge was dismissed by the Pszczyna District Court on 13 February 1995 since, in the court's opinion, the arguments submitted by the applicant did not justify disqualifying the presiding judge from dealing with the applicant's case.

On 1 March 1995 the Katowice Regional Court dismissed the applicant's appeal against the decision of 31 January 1995, holding that the applicant had relied on an entirely incorrect interpretation of Section 222 of the Code of Criminal Procedure because Polish law did not set any time-limits for detention on remand pending trial.  Moreover, there was no violation of Article 5 of the Convention either as this provision concerned the situation where a detainee was deprived of his right to have his case tried and his right to have the lawfulness of his detention tested by the courts.  Therefore, the court found that there was no basis for altering the contested decision and held that the applicant's detention should continue on the basis laid down in Section 217 para. 1 (3) and (4) of the Code of Criminal Procedure.

On an unspecified date the applicant requested the Pszczyna District Court to quash the detention order made by the Pszczyna District Prosecutor on 10 January 1994, arguing that this decision was valid only for a period of one year.  He also submitted that the difficult situation of his family militated in favour of his release.

On 6 March 1995 judge Z.R., sitting as the Pszczyna District Court, dismissed the applicant's request and upheld the detention order made by the Pszczyna District Prosecutor on 10 January 1994, finding that the applicant's detention could continue until the court proceedings terminated and for an unspecified period of time as the time-limits referred to in Section 222 applied only to the investigative stage.  Furthermore, referring to the situation of the applicant's family, the judge found that such arguments as the fact that the applicant's son was not, allegedly, being provided with the proper care had to be rejected because the child was under the adequate care of his grandparents.  Finally, the judge stated that the reasons previously given to justify the applicant's detention had not ceased to exist.

In the meantime, on two unspecified dates in February and at the beginning of March 1995, the applicant applied to the Pszczyna District Court, requesting that access to the case-file be granted to him before the main hearing.  There was no response to either of his applications.

On 15 March 1995 a panel consisting of Z.R., the presiding judge, and two lay judges, sitting as the Pszczyna District Court, held a hearing in the applicant's case.  Before the hearing, the applicant requested Z.R. to permit him to read the documents contained in the case-file (which comprised four volumes and thousand pages in all) in order to prepare his defence .  The applicant submitted that several months had already elapsed since the end of August 1994, when he had read the case-file upon the termination of the investigation. The judge granted the applicant's request, permitting him to read the case-file for ten minutes preceding the main hearing.

On 14 April 1995 the same panel sitting as the Pszczyna District Court held the final hearing in the applicant's case.  The prosecutor representing the prosecution was J.K., who had detained the applicant on remand on 10 January 1994.  After hearing the parties' final submissions, the court gave judgment.  It convicted the applicant of twenty-three counts of burglary and sentenced him to four years' imprisonment and a fine of PLN 2,000, convertible into twenty days' imprisonment.

On 3 October 1995, upon the applicant's appeal, the Katowice Regional Court upheld the judgment of the court of first instance.

b) The applicant's correspondence with the Commission.

On 19 March 1995 the applicant submitted a letter addressed to the Commission to the prison authorities.   This letter contained his complaints under Articles 5 and 6 of the Convention.  It was delivered to the Commission on 12 April 1995.  Neither the letter itself, nor the envelope in which it had been mailed, bore any traces indicating that it had previously been opened or censored or that there had been any other interference with its content.

On 6 August 1995 the applicant again wrote to the Commission, submitting that he was afraid that the Polish authorities had interfered with his correspondence with the Commission.  He attached a copy of the letter of 19 March 1995, the content of which was identical to the original letter. 

Relevant domestic law and practice:

1. 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.

Section 209 of the Code of Criminal Procedure provides:

"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."

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."

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."

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 of these measures, are considered adequate."

Within the above margin of discretion the Code of Criminal Procedure sets out a list of particular instances in which detention on remand may be imposed.

Section 217 para. 1 of the Code of Criminal Procedure, in the version applicable at the material time, provided:

"Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile (in Poland); or:

(2) there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means; or:

(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or:

(4) an accused has been charged with an offence which constitutes a serious danger to society."

Finally, the Code of Criminal Procedure refers to particular situations in which detention on remand shall not, in principle, be maintained.

Section 218 of the Code of Criminal Procedure provides:

"If there are no special reasons to the contrary, detention on remand should be quashed, in particular when:

(1) it may seriously jeopardise the life or health of the accused, or

(2) it would entail excessively burdensome effects for the accused or his family."

2. Statutory time-limits for detention on remand

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.

At the material time there was no specific provision governing detention on remand after the bill of indictment had been lodged with the competent court.

Therefore, according to domestic practice, once a bill of indictment had been lodged with the court competent to deal with the case, detention was assumed to be prolonged pending trial without any further judicial decision being given.

At this stage of criminal proceedings a detainee could only, at any time, lodge a request for release under Section 214 of the Code of Criminal Procedure.

3. Domestic remedies against the length of detention

At the material time there were three different legal avenues whereby a detainee could challenge the lawfulness of his detention and thus possibly obtain release.  Under Section 212 para. 2 of the Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor.  Under Section 222 paras. 2(1) and 3 he could appeal against a further decision by that court prolonging his detention on a prosecutor's request.  Finally, Section 214 of the Code stated that an accused could at any time apply to the competent authority to have a preventive measure quashed or altered.  Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged, by the court competent to deal with the case, within a period not exceeding three days.

4. Prosecutor

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.  Article 1 of the Act affirmed 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."

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.

Polish legislation draws a distinction 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 sądów 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."

Section 9 of the Law provides:

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

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."

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."

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."

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."

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 subsection 2 hereof.

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."

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

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

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 (if not a matter of notoriety) 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.

5. Concept of "relapse into crime"

At the material time Chapter VIII of the Polish Criminal Code, entitled "Relapse into crime" ( Powrót do przestÄ™pstwa ), contained special rules relating to the imposition of penalties on persons who had a previous criminal record for similar offences and who were, therefore, regarded as "recidivists" ( recydywiÅ›ci ).

"Relapse into crime" as defined in this chapter was an aggravating factor which the courts were obliged to take into account in evaluating the gravity of the offence concerned and which necessarily resulted in the sentence of imprisonment to which the offender was liable being increased.

Section 60 para. 1 of the Criminal Code, in the version applicable at the material time, provided:

"1. If an offender, who has already been convicted of an intentional offence and, as a result, has served a sentence of at least six months' imprisonment, commits another similar offence within a period of five years following [the date on which the service of his previous sentence of imprisonment comes to an end], the court shall impose on him a sentence of imprisonment of between twice the minimum and one-and-a-half times the maximum sentence applicable."

6. Concept of "danger to society"

This term relates to the assessment of the gravity of criminal offences and, if the "danger to society" represented by a given offence is "serious" or "of a particularly high level", this is (and, at the material time, was) also an aggravating factor which must be  taken into account by a court when imposing a sentence under the general principles of sentencing set out in Section 50 para. 1 of the Criminal Code.

COMPLAINTS

1. The applicant submits the following complaints under Article 5 of the Convention:

a) that, upon being detained on remand, he was not brought promptly before a judge or other officer authorised by law to exercise judicial power but before J.K., a prosecutor, who did not have the attributes of independence and impartiality required under this provision;

b) that his detention on remand exceeded a "reasonable time" and that the authorities arbitrarily refused to release him on bail pending trial.             

2. He also complains under Article 6 para. 1 of the Convention that Z.R., the judge presiding over his trial, was not impartial because at the investigative stage of the proceedings he had prolonged his detention and, subsequently, in the court proceedings, he had dealt with the applicant's numerous requests for release and, dismissing them, had expressed a preconceived opinion on circumstances related to the assessment of the applicant's guilt and criminal liability.

3. Under Article 6 para. 3 (b) of the Convention the applicant complains  that the criminal proceedings against him were unfair, in particular that he was unable to prepare his defence effectively and properly since, on 15 March 1995, before the first main hearing on the merits in his case, Z.R., the judge presiding at the trial, allowed him to read the case-file for a mere ten minutes.

4. The applicant also invokes Article 8 of the Convention submitting that his letter of 19 March 1995, in which he had introduced his complaints to the Commission, was intercepted by the Polish authorities.

5. Lastly, the applicant complains under Article 1 of Protocol No. 1 to the Convention that, on account of the fact that his car and goods were seized by the Polish authorities in order to secure the payment of the fine to which he might be sentenced, he sustained a serious financial loss.             

THE LAW

1. The applicant invokes Article 8 of the Convention submitting that his letter of 19 March 1995, in which he had introduced his complaints to the Commission, was intercepted by the Polish authorities.

However, the Commission finds that the letter in question was delivered to the Commission on 12 April 1995 and that, moreover, neither the letter itself, nor the envelope in which it was mailed, bore any traces indicating that the Polish authorities had interfered, in any way, with the applicant's correspondence with the Commission.

It follows that this part of the application is inadmissible as being manifestly ill-founded.

2. The applicant further complains under Article 1 of Protocol No. 1 to the Convention, that, on account of the fact that his car and goods were seized by the Polish authorities in order to secure the payment of the fine to which he might be sentenced, he sustained a serious financial loss.

Article 1 of Protocol No. 1 to the Convention provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."             

The Commission firstly observes that the applicant has failed to submit information showing whether he contested the measure complained of before the Polish authorities or otherwise put the substance of the present complaint before them, so as to exhaust, under Article 26 of the Convention, the remedies available under domestic law.

However, the Commission finds that it is not necessary to decide whether or not the applicant has in all respects complied with Article 26 of the Convention since this complaint is, in any event, inadmissible for the following reasons.

In this context the Commission recalls that, in the framework of criminal proceedings, such interferences with the property rights of persons against whom those proceedings are directed as, for instance, decisions ordering that their property be seized and, moreover, decisions freezing or otherwise temporarily restricting the use of their property, are justified under Article 1 para. 2 of Protocol No. 1 to the Convention. Those decisions must be seen as being the enforcement of such laws as the State deems necessary both "to control

the use of property in the general interest" (which is to secure the proper conduct of the criminal proceedings concerned) and in order "to secure the payment of penalties" (see, mutatis mutandis , No. 9614/81, Dec. 12.10.83, D.R. 34, p. 119 et seq.; No. 10653/83, Dec. 6.5.85, D.R. 42, p. 224 et seq.).

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.   

3. The applicant also complains under Article 5 of the Convention that when detained, he was not brought before a judge or other officer authorised by law to exercise judicial power, that his detention on remand exceeded a reasonable time and the authorities arbitrarily refused to release him on bail.  He further complains under Article 6 para. 1 of the Convention that the judge presiding over his trial was not impartial and under Article 6 para. 3 (b) of the Convention that the proceedings concerned were unfair since he did not have adequate time to prepare his defence .

The Commission considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of these complaints to the respondent Government.             

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaints that, when detained, he was not brought promptly before a judge or other officer authorised by law to exercise judicial power, that his detention exceeded a "reasonable time" and that he was arbitrarily refused release on bail; that the judge presiding over his trial was not impartial and that the criminal proceedings against the applicant were unfair since he did not have adequate time to prepare his defence ;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

        M. de SALVIA                                       S. TRECHSEL

         Secretary                                                     President

      to the Commission                               of the Commission