Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28358/95

by Janusz BARANOWSKI

against Poland

The European Commission of Human Rights sitting in private on

8 December 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

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 24 May 1994 by

Janusz BARANOWSKI against Poland and registered on 29 August 1995 under

file No. 28358/95;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

6 January and 26 August 1997 and the observations in reply

submitted by the applicant on 20 February and 21 October 1997;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, a Polish citizen born in 1943, is an engineer

residing in Lódz, Poland.

A. Particular circumstances of the case

On 2 June 1993 the Lódz Regional Prosecutor (Prokurator

Wojewódzki) charged the applicant with fraud and detained him on

remand.

On 25 June 1993 the Lódz Regional Court (S*d Wojewódzki), upon

the applicant's appeal, upheld the detention order.

On 10 August 1993 the Lódz Regional Court, upon the prosecutor's

request, prolonged the applicant's detention until 31 December 1993.

On 30 December 1993 the Lódz Regional Court, upon the request of

the Lódz Regional Prosecutor, prolonged the applicant's detention on

remand until 31 January 1994. On 7 January 1994 the applicant filed

an appeal against the decision prolonging his detention.

On 11 January 1994 the Lódz Regional Prosecutor lodged a bill of

indictment with the Lódz Regional Court.

On 21 January 1994 the Lódz Regional Court referred the

applicant's appeal of 7 January 1994 to the Lódz Court of Appeal (S*d

Apelacyjny).

On 1 February 1994 the Lódz Court of Appeal held that the

examination of the applicant's appeal of 7 January 1994 "was

purposeless" and decided that the appeal should be deemed to be a

request for release. The court observed that the issue of decisions

on the prolongation of detention on remand was necessary only at the

investigative stage. Therefore, after the bill of indictment was

lodged, the applicant could only at any time lodge a request for

release with the court competent to deal with his case. As a result,

the appeal was referred back to the Lódz Regional Court. The applicant

was informed about this decision on 18 February 1994. However, the

Lódz Regional Court examined the appeal in question neither as a

request for release, nor in any other proceedings.

On 1 February 1994 the applicant filed a formal notification to

the Lódz District Prosecutor (Prokurator Rejonowy). He informed the

Prosecutor that the order for his detention had expired on 31 January

1994. He had appealed against this order but the court had failed to

rule on his appeal.

On 7 February and 28 March 1994 the applicant lodged requests for

release with the Lódz Regional Court.

On 16 and 25 February, 4 March, 8 and 18 April, 20 and 30 May,

and 25 October 1994 the applicant requested the Lódz Regional Court to

give an interpretation of the detention order of 30 December 1993, in

particular whether the order in question had remained executory after

its expiry. He submitted these requests under Section 14 of the Code

of Execution of Criminal Sentences, arguing that the fact that the

indictment had been lodged with the court did not automatically mean

that his detention was to be maintained after 31 January 1994. He

further submitted that no provision of the Code of Criminal Procedure

provided that detention was prolonged as a result of the transfer of

the case to the court. He asserted that the order of 30 December 1993

was not executory as he had filed an appeal against it. Therefore, he

should have been released immediately after 31 January 1994 as his

detention as from this date lacked any legal basis.

On 16 February 1994, J.L., the Chief Judge of the Criminal

Division of the Lódz Regional Court, sent the following letter to the

applicant:

"You are informed that since the bill of indictment had been

submitted to the Lódz Regional Court, that court was competent

to deal with any matters related to your case, including

decisions on your detention. It is open to you to submit a

request for release at any time and the court will then examine

whether your detention should be continued. You will be released

if the court grants such request. If the court refuses to do so,

your detention will be continued until the judgment at first

instance is pronounced. Therefore, your statement that your

detention was unlawful since the order for your detention had

expired on 31 January 1994 was erroneous."

On 24 May 1994 the Lódz Regional Court ruled on the applicant's

requests for release dated 7 February and 28 March 1994 and held that

no circumstances justified quashing or altering the preventive measure

imposed. The decision was based on Sections 209 and 217 para. 1 (2)

and (4) of the Code of Criminal Procedure. Apparently, before making

this decision, the court had called the evidence from three medical

experts to assess whether the applicant could be detained in view of

his state of health. On 5 July 1994 the Lódz Court of Appeal, on the

applicant's appeal, upheld the decision of the court of first instance.

On 9 August 1994 the applicant again requested the Lódz Regional

Court to release him. The request was dismissed on 30 August 1994.

Subsequently, on 9 September and 2 December 1994, and 4 April 1995 the

Lódz Regional Court dismissed the further requests for release lodged

by the applicant on unspecified dates.

On 21 December 1994 a single judge, sitting as the Lódz Regional

Court, pronounced a decision on the applicant's requests submitted

under Section 14 of the Code on Execution of Criminal Sentences, which

had been filed by him between 16 February and 25 October 1994. The

court declared that the decision of 30 December 1993 on the

prolongation of the applicant's detention until 31 January 1994 was

enforceable, even though the applicant had filed an appeal against it.

The judge further reiterated the arguments contained in the letter to

the applicant of 16 February 1994.

On 29 December 1994 the applicant appealed against this decision.

He submitted that the court should have been composed of three judges

in conformity with the relevant provisions of the Code of Criminal

Procedure. He again submitted that there was no legal basis for

maintaining his detention after 31 January 1994.

On 3 January 1995 a panel of three judges sitting as the Lódz

Regional Court quashed the decision of 21 December 1994, finding that

the Court should have been composed of three judges, as submitted by

the applicant. However, it also held that Section 14 of the Code of

Execution of Criminal Sentences was not applicable in the applicant's

case since this provision applied to cases involving doubts concerning

the execution of the sentence or the calculation of the penalty

imposed.

On 10 January 1995 the applicant filed an appeal against this

decision.

On 16 January 1995 the Chief Judge of the Criminal Division of

the Lódz Regional Court gave an order refusing to allow the applicant's

appeal on the basis that it was inadmissible in law. The applicant

filed an appeal against this decision.

On 17 February 1995 the Lódz Regional Court confirmed the

decision of 16 January 1995, considering that it had been open to the

applicant to file an appeal against the decision of 21 December 1994,

but a further appeal was inadmissible in law since Section 14 of the

Code of Execution of Criminal Sentences did not apply to a detainee.

In a letter of 23 May 1995 the judge J.L., replying to the

applicant's letter of 15 May 1995, stated as follows:

"You are informed that the issue of the lawfulness of the penalty

of detention on remand was already explained to you in detail in

the letter of 16 February 1994 and the decision of 21 December

1994. As regards the above-mentioned issue, the circumstances

of your case and the relevant law remain unchanged. Thus, the

explanation previously given is still valid."

On 22 October 1996 the Lódz Regional Court quashed the order for

detention and ordered the applicant to be released under police

supervision.

The criminal proceedings against the applicant are pending before

the court of first instance.

B. Relevant domestic law and practice

1. 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 a new Law of

29 June 1995 on Amendments to the Code of Criminal Procedure and Other

Criminal Statutes entered into force) a prosecutor was empowered to

impose all preventive measures as long as the investigations lasted,

whereas at present only a court may detain a suspect on remand. Also,

the national law did not set out any statutory time-limits concerning

the length of detention on remand as regards the proceedings before

courts, but a prosecutor was obliged to determine in his decision the

period for which detention was imposed.

Section 210 para. 1 of the Code of Criminal Procedure stated (in

the version applicable at the material time):

"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."

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

"1. A preventive measure (including detention on remand) shall

be immediately quashed or altered, if the basis therefor has

ceased to exist or new circumstances have arisen which justify

quashing or replacing a given measure with a more or less severe

one."

Section 217 subparas. 1 (2) and (4) (in the version applicable

at the material time) provided:

"1. Detention on remand may be imposed if:

...

(2) there is a reasonable risk that an accused will attempt to

induce witnesses to give false testimony or to obstruct the due

course of proceedings by any other unlawful means;

...

(4) an accused has been charged with an offence which creates

a serious danger to society."

There was (and still is) no specific provision governing

detention on remand after the bill of indictment had been lodged with

the competent court; however, at present, the courts are bound by the

maximum statutory time-limits for which detention on remand can be

imposed during the entire course of the proceedings. At the material

time, 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.

2. Bill of indictment.

Sections 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,

a statement of the offence with which he 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.

Once the bill of indictment has been lodged with the court, the

president of the court carries out preparations for the main trial.

Section 299 para. 1 (6) of the Code of Criminal Procedure

provides:

"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."

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.

3. Proceedings relating to the lawfulness of detention on remand.

At the material time there were three different proceedings

enabling a detainee to challenge the lawfulness of his detention:

appeal to a court against a detention order made by a prosecutor,

proceedings in which courts examined requests for prolongation of

detention submitted by a prosecutor and proceedings relating to a

detainee's request for release.

As regards the last of these, Section 214 of the Code of Criminal

Procedure (in the version applicable at the material time) stated that

an accused could at any time apply 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. Interpretation of enforceable decisions in criminal proceedings.

Section 14 of the Code of Execution of Criminal Sentences

provides:

"1. The authority executing a decision, as well as everyone

whom such a decision concerns, may request the court which has

dealt with the case to rule on any doubts concerning the

execution of that decision or the calculation of the penalty

imposed.

2. Everyone whom the decision on interpretation referred to in

para. 1 concerns may appeal against such a decision."

According to Section 205 of the Code of Execution of Criminal

Sentences, provisions of the Code referring to a "convict" are by

analogy applicable to a "detainee". However, in the light of the

domestic practice and legal theory it is doubtful whether Section 14

of the Code applies to cases in which a person detained on remand

challenges the lawfulness of his detention since such a challenge is

normally examined in the proceedings prescribed by the Code of Criminal

Procedure (see above: 3. Proceedings relating to the lawfulness of

detention on remand).

The proceedings relating to a request under Section 14 of the

Code of Execution of Criminal Sentences are designed to secure a

further interpretation of an enforceable decision which was not

formulated in a precise manner. The court which is called upon to

interpret the decision in question is not competent to amend or

supplement its operative part (see the decision of the Supreme Court

No. VI KRN 14/76, 2.3.76, published in OSNPG 1976/6/59). Accordingly,

the person concerned cannot, by lodging a request under Section 14 of

the Code, obtain his release.

5. Request for compensation for unjustified detention.

Chapter 50 of the Polish Code of Criminal Procedure, entitled

"Compensation for unjustified conviction, detention on remand or

arrest", provides that the State is liable for wrongful convictions or

for unjustifiedly depriving an individual of his liberty in the course

of criminal proceedings against him.

Section 487 of the Code of Criminal Procedure (as amended)

provides, insofar as relevant:

"1. An accused who, as a result of the reopening of the

criminal proceedings against him or of lodging a cassation

appeal, has been acquitted or resentenced under a more lenient

substantive provision, shall be entitled to compensation from the

State Treasury for the damage which he has suffered in

consequence of having served the whole or a part of the sentence

imposed on him.

...

4. The provisions of the present chapter shall be applied by

analogy to manifestly unjustified arrest or detention on remand."

According to Section 489 of the Code, a request for compensation

for manifestly unjustified detention on remand must be lodged within

one year from the date on which the final decision terminating the

criminal proceedings in question has become final and valid in law.

Therefore, in practice, a request under Section 487 of the Code

of Criminal Procedure cannot be lodged until the criminal proceedings

against the person concerned have been terminated (see also the

decision of the Supreme Court No. WRN 106/96, 9.1.96, published in

Prok. i Pr. 1996/6/13). The court competent to deal with such a

request is obliged to establish whether the detention at issue was

justified in the light of all the circumstances of the case, in

particular whether the authorities considered all the factors

militating in favour of or against the detention (see, inter alia, the

decision of the Supreme Court No. II KRN 124/95, 13.10.95, published

in OSNKW 1996/1-2/7) as a finding that the detention in question was

"manifestly unjustified" is a pre-condition for awarding compensation.

As a consequence, the proceedings relating to a request under

Section 487 of the Code of Criminal Procedure are subsequent to and

independent of these original criminal proceedings in which the

detention was imposed. They are not designed to secure release from

detention but financial reparation for damage arising from the

execution of unjustified detention on remand. The person concerned,

by instituting such proceedings, can retrospectively seek a ruling as

to whether his detention was justified. He cannot, however, test the

lawfulness of his continuing detention on remand and obtain his

release.

COMPLAINTS

1. The applicant complains under Article 5 para. 1 (c) of the

Convention that his detention after 31 January 1994 lacked any legal

basis. He submits that the authorities assumed that his detention was

to be automatically maintained after the bill of indictment was

submitted to the Lódz Regional Court, even though the law did not

provide for this.

2. He further complains under Article 5 para. 4 of the Convention

that he was unable to take proceedings by which the lawfulness of his

continuing detention under the bill of indictment would be decided

speedily by the courts.

3. Finally, the applicant submits that J.L. a judge of the Lódz

Regional Court, in a letter of 23 May 1995, stated that a "penalty" of

detention on remand had been imposed on the applicant. He complains

that he had thereby been declared guilty before he had been tried or

convicted.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 May 1994 and registered on

29 August 1995.

On 4 September 1996 the Commission decided to communicate the

applicant's complaints submitted under Article 5 paras. 1 (c) and 4 of

the Convention to the respondent Government and invite them to submit

observations on these complaints.

The Government's written observations were submitted on 6 January

1997, after an extension of the time-limit fixed for that purpose. The

applicant replied on 20 February 1997.

The translation of the Government's observations was submitted

on 26 August 1997.

On 26 August 1997 the Government also submitted their additional

observations. The applicant replied thereto on 21 October 1997. On

20 November 1997 the Govermnet responded to the applicant's reply.

THE LAW

1. The applicant complains under Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention that his detention on remand after

31 January 1994 lacked any legal basis. He submits that the

authorities assumed that his detention was to be automatically

maintained after the bill of indictment was submitted to the Lódz

Regional Court, even though the law did not provide for this.

Article 5 para. 1 (Art. 5-1), insofar as relevant, provides:

"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;"

a) Under Article 26 (Art. 26) of the Convention, "the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law".

The Government submit that the applicant has not complied with

the requirements of Article 26 (Art. 26) of the Convention since he has

not submitted, to a competent court, a request under Section 487 of the

Polish Code of Criminal Procedure for compensation for manifestly

unjustified detention on remand. They maintain that, in the light of

the jurisprudence of the Polish Supreme Court, this is an effective

domestic remedy enabling the person concerned to obtain a review of the

lawfulness of his detention on remand and, finally, financial

reparation where his detention has been proved unjustified.

The applicant replies that lodging a request under Section 487

of the Code of Criminal Procedure would not result in remedying his

situation. First of all, such a request may be submitted on the

condition that a final decision giving rise to compensation has already

been given, whereas in his case the authorities failed to issue any

decision as to the prolongation of his detention after 31 January 1994.

Secondly, on 7 February 1994, he requested the Lódz Regional Court to

release him and, on 16 February 1994, requested that court to give an

interpretation of the detention order of 30 December 1993. These were

the only domestic channels through which he could test the lawfulness

of his detention.

The Commission recalls that, as it has repeatedly stated, under

Article 26 (Art. 26) of the Convention an applicant must make normal

use of remedies likely to be effective and adequate. It further

reiterates that where lawfulness of detention is concerned, an action

for damages against the State is not a remedy which has to be exhausted

because the right to obtain release from detention and the right to

obtain compensation for any deprivation of liberty incompatible with

Article 5 (Art. 5) are two separate rights (see No. 12747/87, Dec.

12.12.89, D.R. 64, pp. 97, 124).

According to Polish law and practice, a request for compensation

for manifestly unjustified detention on remand under Section 487 of the

Code of Criminal Procedure enables a detainee to seek, retrospectively,

a ruling as to whether his detention in already-terminated criminal

proceedings was justified, and to obtain compensation when it was not.

The proceedings relating to such a request are designed to secure

financial reparation for damage arising from the execution of

unjustified detention on remand. As a consequence, this is not a

remedy by which a detainee may challenge the lawfulness of his

continuing detention on remand and obtain his release.

In the present case the Government have not provided the

Commission with any clear example from domestic practice capable of

justifying a different conclusion. Accordingly, the Commission

considers that this complaint cannot be rejected for non-exhaustion of

domestic remedies.

b) The Government submit that in any event the complaint is

manifestly ill-founded. Thus, the Polish Code of Criminal Procedure

(in the version applicable at the material time) did not oblige the

court competent to deal with the case to give any further decision as

to maintaining detention after a bill of indictment has been lodged

with that court. Nor did the Code lay down any specific provision

according to which the court was obliged to prolong the period of the

applicant's detention after the previous detention order had expired.

The applicant replies that, according to Section 299 para. 1 (6)

of the Polish Code of Criminal Procedure, the president of the court,

who carries out the preparations for the main trial after a bill of

indictment has been lodged, shall - ex officio or on the parties'

request - refer the case to a court session if there is a need to issue

an order on a preventive measure such as detention on remand. It

follows that in the present case the court competent to deal with his

case was obliged to give a decision determining whether his detention

should be maintained after 31 January 1994, i.e. the date on which the

last detention order expired.

In this respect the Government submit that the Lódz Regional

Court was not obliged to hold a session under Section 299 para. 1 of

the Code of Criminal Procedure, since it was, in general, not obliged

to prolong detention ordered in the course of the investigations.

Nevertheless, the court was obliged under Section 213 of the Code of

Criminal Procedure, constantly to review the lawfulness of the

applicant's detention on remand. In the present case, as from 11

January 1994, i.e. the date on which the bill of indictment was lodged,

the Lódz Provincial Court constantly examined the legal basis for the

applicant's detention. In particular, the applicant himself lodged on

7 February and 28 March 1994 requests for release, which were dismissed

on 24 May 1994 at first instance and on 5 July 1994 on appeal. On

these occasions the courts reviewed the reasons militating in favour

and against the applicant's detention. As a result, the authorities

carried a consequent and fair review of the lawfulness of his

detention.

The applicant contends that the notions of "reasonableness" and

"lawfulness" of his detention should be separated. He admits that he

did not complain about the fact that his requests for release had been

consistently dismissed but about the fact that his detention had been

maintained after 31 January 1994 without an adequate judicial decision

being given. When he requested the courts to release him after this

date, they reviewed only the reasonableness of his detention, because

they presumed that the lodging of the bill of indictment with the court

had "automatically" resulted in providing a sufficient legal basis for

further detention.

The Government conclude that the applicant's detention after

31 January 1994 was "lawful" within the meaning of Article 5 para. 1

(Art. 5-1) of the Convention. It was maintained in accordance with

domestic law, in particular Sections 209, 217 subparas. 1 (2) and (4)

of the Code of Criminal Procedure and was not arbitrary. In addition,

the relevant provisions of Polish law, in particular the Code of

Criminal Procedure, governing detention on remand after a bill of

indictment is lodged with the competent court, comply with the

requirements set out for national law in the Convention organs' case-

law as regards their accessibility and predictability. The applicant's

detention was ordered for justified reasons. Finally, it cannot be

said that the relevant domestic law fails to protect an individual from

arbitrariness on the part of the public authorities.

The applicant contests these submissions, asserting that the

Polish authorities clearly violated provisions of domestic law (inter

alia, Section 214 of the Code of Criminal Procedure and Sections 14 and

205 of the Code of Execution of Criminal Sentences), in view of the

fact that they neither gave a prompt decision on the prolongation of

his detention after 31 January 1994, nor examined his requests to

interpret the detention order of 30 December 1993. Therefore, the

authorities abused their powers by refusing to release him after 31

January 1994.

After a preliminary examination of the present complaint in the

light of the parties' submissions, the Commission considers that it

raises serious issues of fact and law under the Convention, the

determination of which should depend on an examination of the merits.

This complaint cannot, therefore, be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

2. The applicant also complains under Article 5 para. 4 (Art. 5-4)

of the Convention that he was unable to take proceedings by which the

lawfulness of his continuing detention under the bill of indictment

would be decided speedily by the courts.

Article 5 para. 4 (Art. 5-4) 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."

The Government submit that after 31 January 1994, i.e. when the

detention order expired, the applicant could, according to Section 214

of the Code of Criminal Procedure, lodge at any time a request for

release, which he did. It is true that his requests for release lodged

on 7 February 1994 and 28 March 1994 were dismissed on 24 May 1994 at

first instance and on 5 July 1994 on appeal. However, in the meantime

the courts had called medical experts to assess whether the applicant

could be detained in view of his state of health. Therefore, even if

the applicant's requests submitted under Section 14 of the Code of

Execution of Criminal Sentences between 16 February and 25 October 1994

were not examined by the Lódz Regional Court until 21 December 1994,

it cannot be said that this was the first examination of the lawfulness

of the applicant's detention. On the contrary, as early as on 1

February 1994 the Lódz Court of Appeal ruled that the applicant's

appeal of 7 January 1994 should be deemed to be a request for release.

This was a simple consequence of the fact that decisions on

prolongation of detention on remand were made by courts only during the

investigative stage. The appeal in question could be examined only at

the pre-trial stage of the proceedings. Thus, the proceedings relating

to the lawfulness of the applicant's detention were conducted without

unnecessary delay. Accordingly, in this respect no issue arises under

Article 5 para. 4 (Art. 5-4) of the Convention.

The applicant maintains, first, that the examination of his

requests for release could not be substituted for the examination of

his appeal of 7 January 1994 and his requests to interpret the

detention order of 30 December 1993 submitted under Section 14 of the

Code of Execution of Criminal Sentences. Secondly, he asserts that on

1 February 1994 the Lódz Court of Appeal went beyond its discretion and

in fact refused to examine his appeal, referring it back to the Lódz

Regional Court as a request for release. It cannot, therefore, be said

that the Lódz Court of Appeal examined the lawfulness of his detention.

Thirdly, this decision was given on the date on which the detention

order had already expired and was, therefore, late. Fourthly, the

decisions on his requests for release of 7 February and 28 March 1994

were not given within the statutory time-limit of three days set out

in Section 214 of the Code of Criminal Procedure but only after a lapse

of several months. Therefore, the authorities did not comply with the

requirements of Article 5 para. 4 (Art. 5-4) of the Convention.

In respect of the applicant's requests submitted under Section

14 of the Code of Execution of Criminal Sentences, the Government

contend that the courts, even if they refused to allow the applicant's

appeal, displayed necessary diligence in the examination thereof.

However, in the light of domestic law, legal theory and practice it

is doubtful whether the applicant was entitled to have recourse to such

proceedings. Thus, no issue arises under Article 5 para. 4 (Art. 5-4)

of the Convention in this respect either.

The applicant replies that his requests under Section 14 of the

Code of Execution of Criminal Sentences could constitute a remedy

enabling him to challenge the lawfulness of his detention after the

order for his detention had expired, provided the courts examined them

speedily. However, they failed to do so: the first request was

submitted on 16 February 1994 and examined only on 21 December 1994,

i.e. after a lapse of more than ten months. In addition, he was not

allowed to appeal against the decision of the Lódz Regional Court of

3 January 1995. Therefore, in this respect he was deprived of his

right to take proceedings by which the lawfulness of his detention

would be speedily decided after the bill of indictment had been lodged

with the court.

Having examined this complaint the Commission finds that it

raises serious questions of fact and law which are of such complexity

that their determination should depend on an examination of the merits.

This part of the application cannot, therefore, be regarded as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established.

3. The applicant also complains that J.L., a judge of the Lódz

Regional Court, in his letter of 23 May 1995, stated that a "penalty

of detention on remand had been imposed on the applicant". He

complains that he had thereby been declared guilty before he had been

tried or convicted.

This complaint, which also concerns the alleged lack of

impartiality of a judge, falls within the scope of both paras. 1 and

2 of Article 6 (Art. 6-1, 6-2) of the Convention, which, insofar as

relevant, read as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an ...

impartial tribunal established by law. ...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission notes that, on the one hand, the contested letter

related to the imposition of a preventive measure (i.e. detention on

remand) on the applicant. In it, judge J.L. also referred to a

previous letter of 16 February 1994 which had explained certain

procedures relating to the applicant's detention on remand.

In the Commission's view, it does not transpire from these

letters that the judge was in any way biased in that he had a

preconceived opinion on the applicant or his case. Nor does it appear

that the views expressed in the letter breached the presumption of

innocence guaranteed under para. 2 of Article 6 (Art. 6-2).

Furthermore, the criminal proceedings against the applicant are still

pending. The Commission cannot, therefore, speculate as to how his

trial will continue, in particular whether the applicant will be

acquitted or convicted and on what basis the courts concerned will

reach their final decision in his case.

It follows that the remainder of the application is inadmissible

as being manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that his detention on remand was unlawful

and the complaint about the conduct of the proceedings relating

to the lawfulness of his continuing detention under the bill of

indictment after the detention order of 30 December 1993 expired;

DECLARES INADMISSIBLE the remainder of the application.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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BARANOWSKI v. POLAND

BARANOWSKI v. POLAND

LEXI