AS TO THE ADMISSIBILITY OF

                      Application No. 31583/96

                      by Ryszard KLAMECKI

                      against Poland

     The European Commission of Human Rights sitting in private on

20 October 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

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 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 6 December 1995

by Ryszard KLAMECKI against Poland and registered on 24 May 1996 under

file No. 31583/96;

     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 1948, is a businessman

residing in Wroclaw, Poland.  He is currently detained in Wroclaw

prison.

     The facts of the case as submitted by the applicant may be

summarised as follows:

Particular circumstances of the case

a.   Criminal proceedings instituted against the applicant

     On 22 November 1995 the Wroclaw-Stare Miasto District Prosecutor

(Prokurator Rejonowy) charged the applicant with fraud committed

together with several accomplices and detained him on remand for three

months in view of the reasonable suspicion that he had committed the

offence in question and the fear that he might obstruct the due course

of the proceedings.  On an unspecified date the applicant appealed to

the Wroclaw-Sródmiescie District Court (S*d Rejonowy) against the order

for his detention and, subsequently, on 27 November 1995, lodged a

pleading supplementing his appeal.  In his pleading he submitted that

his detention was imposed by a prosecutor, a party to the proceedings,

whereas under the European Convention detention must be imposed either

by a judge or by another officer exercising judicial power.  On

5 December 1995 a judge sitting as the Wroclaw-Sródmiescie District

Court dismissed the appeal, finding that the detention in question had

an adequate basis.  The applicant did not participate in the court

session whereas the Wroclaw-Stare Miasto District Prosecutor did.

     On 28 November and 14 December 1995 the applicant requested the

Wroclaw-Sródmiescie District Court to appoint a defence lawyer for him.

The request was granted on 19 January 1996.  Shortly afterwards, the

applicant informed the investigating prosecutor that an officially

appointed lawyer would represent him in the criminal proceedings in

question.

     On 11 December 1995 the applicant requested the Wroclaw-Stare

Miasto District Prosecutor to release him.  The request was dismissed

on 12 December 1995 by the prosecutor at first instance and on

30 December 1995 on appeal, in view of the reasonable suspicion that

the applicant had committed the offence charged and the need to ensure

the due course of the proceedings.

     On 21 December 1995 the applicant again requested the prosecutor

to release him.  He submitted that his health was severely affected by

the prison conditions.  The request was dismissed on 2 January 1996 by

the prosecutor at first instance and on 24 January 1996 on appeal on

the grounds that according to a medical report of 22 December 1995 the

applicant's state of health did not militate against his detention.

     In the meantime, on an unspecified date, the Wroclaw Regional

Prosecutor (Prokurator Wojewódzki) took over the investigations from

the Wroclaw-Stare Miasto District Prosecutor.

     On 5 February 1996 the applicant requested the Wroclaw Regional

Prosecutor to release him in view of his state of health, submitting

that he had been suffering from diabetes, high blood pressure and

arteriosclerosis and that he did not receive the appropriate medical

treatment and diet in prison.  The request was dismissed on 7 February

1996 by the prosecutor at first instance and on 21 February 1997 on

appeal on the grounds that according to a medical report of 6 February

1996, the applicant's state of health did not militate against his

detention.

     On 15 February 1996, upon the request of the Wroclaw Regional

Prosecutor, the Wroclaw-Sródmiescie District Court prolonged the

applicant's detention until 30 June 1996.  The applicant appealed on

26 February 1996, arguing that he had never been brought before a judge

at any stage of the proceedings relating to the lawfulness of his

detention.  On 1 March 1996 the Wroclaw Regional Court (S*d Wojewódzki)

upheld the decision of the court of first instance.  The Wroclaw

Regional Prosecutor participated in the court session, whereas neither

the applicant nor his lawyer did.

     On 18 March 1996 the applicant requested the Wroclaw-Sródmiescie

District Court to release him under police supervision.  The request

was transferred to the Wroclaw Regional Prosecutor since at the

investigative stage only a prosecutor was competent to deal with such

a request.  On 3 June 1996 the request was dismissed by the prosecutor

at first instance and on 28 June 1996 on appeal, since there existed

a reasonable suspicion that the applicant had committed the offence

charged and there were no particular reasons militating in favour of

his release.

     On 6 May and 3 June 1996 the applicant again requested the

Wroclaw-Sródmiescie District Court to release him under police

supervision.  The requests, after having been transferred to the

prosecutor at first instance, i.e. the Wroclaw Regional Prosecutor,

were dismissed by that prosecutor on 28 June 1996 and, on appeal, on

14 July 1996 since the original reasons for the applicant's detention

had not ceased to exist.

     On 25 June 1996, upon the Wroclaw Regional Prosecutor's request,

the Wroclaw-Sródmiescie District Court prolonged the applicant's

detention until 30 September 1996.

     On 25 July and 5 August 1996 the applicant requested the Wroclaw

Regional Court to release him under police supervision, claiming a

breach of Article 5 para. 3 of the Convention in that he had neither

been tried within a reasonable time, nor released pending trial.  On

30 August 1996 the court held a session and, after having heard the

submissions of the Wroclaw Regional Prosecutor, dismissed the requests

in view of the reasonable suspicion that the applicant had committed

the offence charged and the need to ensure the due course of the

proceedings.  In his appeal of 6 September 1996 the applicant submitted

that he was not entitled to participate in the court session relating

to his request for release, whereas the prosecutor could put forward

his submissions in the applicant's absence.  On 16 September 1996 the

Wroclaw Court of Appeal (S*d Apelacyjny), after having heard the

prosecutor's submissions, upheld the decision of the court of first

instance and the reasons given therefor.

     On 9 August 1996 the Wroclaw-Sródmiescie District Court dismissed

a subsequent request for release by the applicant, finding, inter alia,

that the fact that the detention had been imposed by the prosecutor,

i.e. a party to the proceedings, was not relevant as a factor

militating against his continuing detention.  On 31 October 1996, upon

the applicant's appeal, the Wroclaw Regional Court quashed the decision

of 9 August 1996 and held that, in accordance with the Law of 4 August

1996 on Amendments to the Code of Criminal Procedure, only a regional

court was competent to deal with the applicant's request.  The court

examined the applicant's request and dismissed it in view of the

reasonable suspicion that the applicant had committed the offence

charged, the need to ensure the due course of proceedings  and the

severity of the potential penalty.  The Wroclaw Regional Prosecutor

participated in the court session, whereas the applicant and his lawyer

did not.  On 22 November 1996, upon the applicant's appeal, the Wroclaw

Court of Appeal held a court session and, after having heard the

prosecutor's opinion, upheld the decision of the court of first

instance and the reasons given therefor.

     On 4 September 1996 the Wroclaw Regional Prosecutor ordered that

evidence be taken from a graphology expert.  On 5 September the

prosecutor ordered that evidence be taken from two psychiatric experts

in order to assess the applicant's mental health.

     On 30 September 1996 the Wroclaw Regional Prosecutor lodged a

bill of indictment with the Wroclaw-Sródmiescie District Court.  On

6 November 1996 the court appointed a new defence counsel for the

applicant.  The court scheduled hearings for 18 and 19 December 1996.

     On 21 November 1996 the court appointed a new lawyer for the

applicant since the counsel appointed for him by that court on

6 November 1996 had represented a plaintiff  in the civil proceedings

instituted against the applicant.  On 26 November 1996 the court served

a copy of the bill of indictment on the new lawyer.

     On 1 December 1996 the applicant requested the Wroclaw-

Sródmiescie District Court to release him.  He submitted that his

detention had lasted an excessively long time and that, in addition,

he had previously been detained in the other criminal proceedings for

a period of two years and five days.  His detention had in all lasted

more than three years and had, therefore, amounted to serving a prison

sentence.  He invoked Article 5 para. 3 of the Convention in support

of his submissions.  On 4 December 1996 his request was dismissed at

first instance and on appeal on 31 December 1996 in view of the

severity of the sentence which might be imposed and the need to ensure

the due course of proceedings.

     On 10 December 1996 the applicant requested the court to replace

his second officially-appointed lawyer.  The request was dismissed on

9 January 1997.

     On 18 and 18 December 1996 the court adjourned the hearings since

one of the co-defendants had failed to appear.

     On 31 December 1996 the applicant again requested the court to

release him under police supervision.  The request was dismissed on

7 January 1997 on the grounds of the need to ensure the due course of

the proceedings and the severity of the penalty which might be imposed.

On 15 January 1997 the applicant filed an appeal, submitting that

neither he nor his lawyer had been informed of or summoned to the

court's session concerning the examination of his request for release,

contrary to Article 5 para. 4 of the Convention.  On the same day he

requested the Wroclaw Regional Court to be allowed to attend that

court's session concerning the examination of his appeal in order to

put forward his submissions.  On 17 January 1997 the Wroclaw-

Sródmiescie District Court refused to allow his appeal since a further

appeal against the court's decision on a request for release was

inadmissible under the Law of 6 December 1996 on Amendments to the Code

of Criminal Procedure.

     On 10 January 1997, upon the applicant's request, the court

granted him access to the case-file for three days.  On 15 January the

applicant complained to the court that the access granted was

insufficient and that he was not able to prepare his defence.  Between

21 and 28 January 1997 he again had access to the case-file for two

hours per day.

     On 29 January 1997 the court adjourned a hearing since another

co-defendant failed to appear.  The applicant again requested the court

to allow him access to the entire case-file.  On 13, 14, 17 and

20 February the applicant read the case-file for two hours per day.

     On 10 February and 3, 10, 17 and 25 March, and 1, 8 and 17 April

1997 the applicant requested the Wroclaw-Sródmiescie District Court to

release him under police supervision.  The requests were dismissed on

12 February and 10, 12, 20 and 28 March, and 4, 11 and 22 April 1997,

respectively, in view of the need to ensure the due course of the

proceedings and the severity of the sentence which might be imposed,

i.e. from one to ten years' imprisonment.

     On 20 February 1997 the court adjourned a hearing since it found

it necessary to replace the defence lawyer appointed for the applicant.

On 5 March 1997 the court adjourned a hearing since another co-

defendant failed to appear.  The hearing scheduled for 19 March 1997

was cancelled as the presiding judge was ill.  On 3 April 1997 the

court, on the applicant's request of 20 March 1997, sent the case-file

to the prison.  The prison authorities left the case-file at the

applicant's disposal on 7, 8 and 9 April 1997 for approximately two

hours per day.

     During the hearings of 10 and 21 April 1997 the court heard

evidence from the applicant.  During the hearing of 10 April 1997 the

applicant again requested the court to release him under police

supervision. The request was dismissed in view of the need to ensure

the due course of the proceedings and the severity of the sentence

which might be imposed.

     On 11 April 1997 the applicant requested the court to grant him

access to the case-file in prison.  He received the case-file on

18 April 1997 for approximately two hours.  Before the hearing of

21 April 1997 the court granted the applicant an access to the case-

file for one hour.

     On 22, 24, 28, 29 and 30 April 1997 the applicant requested the

court to have an access to the entire case-file in prison.

     On 30 May 1997 the applicant read the materials on the case-file

which in all should have comprised twenty-four volumes.  On 2 June 1997

he complained to the court that he had not been provided with the

nineteenth volume and that he had never seen materials contained in

that volume.  Also, no records of the hearings of 10 and 21 April 1997

had been enclosed therewith.

     On 14 July 1997 the applicant requested the Wroclaw-Sródmiescie

District Court to release him in view of the state of his health which

had been seriously affected by the harsh prison conditions resulting

from the flood in Wroclaw.

b.   Conditions of the applicant's detention

     Between 4 December 1995 and the end of 1996 the applicant filed

numerous complaints, petitions and applications addressed to various

public organs (in particular to: the Minister of Justice, the

Ombudsman, the prosecutors and courts competent to deal with his case,

the Governor of Wroclaw Prison and the Chief Governor of Prisons).  He

submitted that even though he had been suffering from diabetes,

arteriosclerosis and high blood pressure, the prison authorities had

not provided him with adequate medical care.  Nor did they provide him

with appropriate food, ignoring the fact that he had requested a

special diet on all possible occasions.  Further, he complained about

the unhygienic conditions of his detention and the lack of proper light

in his cell as well as the impossibility of his obtaining books and

journals from his family.

     On 22 December 1995 medical experts submitted their report to the

Wroclaw-Stare Miasto District Prosecutor.  After having examined the

applicant they found that he could be treated in prison.

     On 25 January 1996 the Wroclaw-Stare Miasto District Prosecutor

ordered a fresh medical expert's report in order to assess the

applicant's state of health.  According to the expert's report, which

was submitted on 6 February 1996, the state of the applicant's health

did not militate against his detention and the medical treatment

received by him in prison was sufficient.

     On 29 January 1996 the Deputy Governor of Wroclaw Prison replied

to the applicant's complaints lodged in December 1995 and January 1996

and admitted that, after having examined the prison records, he had

found that the complaints about inappropriate food had been justified.

Therefore, he ordered that blood be taken from the applicant and

analysed and that he would receive the food requested.  He noted that

the applicant had received the books and journals requested.

     On 12 February and 21 March 1996 the Ombudsman replied to the

petitions from the applicant, informing him that after verifying the

relevant facts, his complaints could not be deemed well-founded.  The

prison conditions were not in fact entirely satisfactory, however this

was not the fault of the Wroclaw Prison authorities.  Moreover, prison

conditions were difficult throughout Poland.

     On 29 February 1996 the Governor of Wroclaw Prison replied to a

further eleven complaints by the applicant, finding them ill-founded.

He admitted that the sanitary conditions were in fact unsatisfactory

and explained to the applicant that the necessary works would be done

in order to improve the situation.

     On 30 April 1996 the Wroclaw Regional Prosecutor replied to the

applicant's complaints lodged in February, March and April 1996,

informing the applicant that he had been and still was receiving the

food recommended by doctors in their reports relating to the

applicant's health.  Thus, his subsequent complaints about the food in

prison were ill-founded.

     On 23 July, 9 September and 11 October 1996 the Minister of

Justice replied to petitions filed by the applicant in May, July and

September 1996, finding that most of the complaints about the prison

conditions had been unjustified.  In particular, as from the date of

his confinement (i.e. 22 November 1995) the applicant had been examined

by prison doctors and various other medical experts on forty occasions.

As a result, the state of his health was consistently supervised and

he had received the treatment and food recommended by doctors.

Therefore his complaints about the insufficient medical care and the

inappropriate food in prison lacked any basis.  As regards general

conditions in Wroclaw Prison, they did not essentially differ from

those in other Polish prisons.  Also, the applicant had access to the

prison library and newspapers delivered to his cell.  However, the

light in his cell seemed to be insufficient and this complaint alone

would be further examined.

     On 15 October 1996 the Wroclaw Regional Superintendent of Prisons

informed the applicant that an inspection of his cell had confirmed

that his complaints about water dripping from the walls of his cell

were unsubstantiated.  On 28 October 1996 he replied to a further

thirteen complaints by the applicant, finding that they had repeated

the same facts which had already been verified in February and April

1996.  On 27 November 1996 the Superintendent informed the applicant

that, after having ordered an inspection of the applicant's cell, he

had found his allegations about the insufficient light ill-founded.

     On 12 and 13 July 1997 a massive flood-wave inundated the South-

West part of Poland, severely affecting Wroclaw.  A considerable part

of the city was washed away or destroyed.  At the same time, the

authorities commenced an action aimed at evacuating inhabitants of the

most affected districts of Wroclaw and ameliorating the situation of

persons who were not exposed to an immediate danger.  The action is

still continuing.

     On 14 July 1997 the applicant filed a petition addressed to the

Chief Justice of the Wroclaw Regional Court, the Wroclaw-Sródmiescie

District Court and the Chief Justice of the Wroclaw-Sródmiescie

District Court.  He complained that on 12 and 13 July 1997 a flood-wave

had inundated the prison building up to the third floor.  The light,

electricity and sewage systems had been destroyed.  There had been no

drinking water, food or washing facilities.  He and his fellow inmates

were kept like animals in unventilated, overcrowded and stinking cells.

He asserted that an official tolerance for such a situation amounts to

inhuman and degrading treatment.

c.   Censorship of correspondence and limitations on contact with his

wife

     Between 6 December 1995 and 21 July 1997 the applicant sent

sixty-one letters to the Commission, out of which forty-six were opened

and censored by the Polish authorities before being sent on.

     On 9 February 1996 the Secretariat of the Commission sent the

applicant a letter containing the application form along with the

relevant enclosures.  It transpires from the official stamps on the

envelope that the letter was delivered to Wroclaw Prison on 4 March

1996, transferred to the Wroclaw Regional Prosecutor on 5 March 1996

and opened and censored by that prosecutor on 6 March 1996.  In his

letter of 15 April 1996 the applicant expressed to the Commission the

fear that he would be unable to submit the application form within the

term of six weeks referred to in the letter of 9 February 1996 since

the authorities had opened and censored that letter and its delivery

was delayed.  He also explained that the authorities of Wroclaw prison

had refused him their assistance in preparing copies of the relevant

documents and that, therefore, he was not able to submit the

application within the prescribed time-limit.  Finally, he filed the

application on 15 March 1996 and sent it, with enclosures, on 15 May

1996.  It was delivered to the Commission on 24 May 1996.

     On 18 March 1996 the applicant sent a letter to the Wroclaw

Regional Bar Council (Okr*gowa Rada Adwokacka).  On 20 March 1996 the

authorities opened and censored the letter.

     On 10 August 1996 the Wroclaw-Sródmiescie District Court ordered

that the applicant be deprived of any personal contact with his wife

(including by phone), apparently in view of the fact that in the

meantime she had been charged in connection with the fraud in which the

applicant had also been involved.  Before this date no limits had been

imposed on the applicant's personal contact with his wife.

     On 14 August 1996 the European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment or Punishment sent a letter

to the applicant.  On 28 August 1996 the authorities opened and

censored the letter.

     On 29 November and 2 December 1996 the applicant sent two letters

to the Wroclaw Court of Appeal.  On an unspecified date the authorities

opened and censored the letters.  On 16 January 1997 the applicant sent

a letter to his wife.  On an unspecified date the authorities opened

and censored the letter.

     On 30 January 1997 the applicant requested the Wroclaw District

Court to grant his wife a permit to visit him in prison as they had had

no personal contact since 10 August 1996.  The request was dismissed

on 7 February 1997 without any reasons being given therefor.

     On 7 February 1997 the applicant complained to the Chief Justice

of the Wroclaw Regional Court that all his letters to his wife had been

not only censored but also intercepted or delayed and that he had not

even been permitted to make phone calls to his wife.  He submitted that

these facts taken together with the absolute prohibition on any

personal contact with his wife had amounted to inhuman treatment.

     On 10 February 1997 the applicant unsuccessfully requested the

Wroclaw-Sródmiescie District Court to stop the censorship of his mail

to his wife.

     On 24 March 1997 the applicant unsuccessfully requested the court

to grant permission for his wife to visit him in prison.  On 11 April

1997 he again requested the court to grant such permission, submitting

that during the hearing of 10 April 1997 the court had heard evidence

from him and he had explained all the circumstances relating to his

wife's charges.  The court dismissed the request on 18 April 1997.  No

reasons for the decision were given.

     Subsequently, on 22 and 28 April and 8, 20 and 28 May 1997 the

Wroclaw-Sródmiescie District Court, without any indication as to the

reasons for its decisions, dismissed five further requests from the

applicant to see his wife.  The applicant had argued that the prolonged

and harsh limits on his contact with his wife were cruel and inhuman

and had severely affected his family life.  As regards his last

request, dated 22 May 1997, he submitted that since the court had heard

evidence from his wife on 21 May 1997, there was no further

justification for continuing the limitations imposed on their personal

contact.  He invoked Article 3 and 8 of the Convention in support of

his requests.

     On 16 June 1997 the Wroclaw-Sródmiescie District Court dismissed

further requests by the applicant lodged on 5 and 12 June 1997, holding

that the prohibition on any personal contact between him and his wife

was justified by the fear that they might induce one another to give

false statements before the court or obstruct the due course of the

proceedings in any other way.

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.

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 to the court competent to deal with his case

against an order for his detention; however, he was not entitled to be

brought before a judge, whereas the court examined his appeal in the

presence of a prosecutor.

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

the version applicable at the material time):

     "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."

     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 investigations

could not be terminated within this period, the detention on remand

could, if necessary, be prolonged by the court competent to deal with

the case, upon the prosecutor's request, for a period not exceeding one

year.

     Under Section 209 of the Code of Criminal Procedure preventive

measures may be imposed in order to secure the due course of

proceedings.

     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 or sufficient.

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

     "1.   A preventive measure  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."

2.   Prosecutor

     Chapter III of the Code of Criminal Procedure entitled: "Parties

to proceedings, defence counsel, representatives of the 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 the course of criminal proceedings.  As regards the

general position of the prosecuting authorities, at the material time

they were not independent from the executive since the Minister of

Justice carried out the duties of the Prosecutor General.

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.

     Under Section 88 of the Code of Criminal Procedure the presence

of the parties at court sessions other than hearings scheduled in the

course of the trial itself was (and still is) a matter for discretion

of the court.  Court sessions concerning a request for release, a

prosecutor's request for prolongation of detention or an appeal against

a decision on detention on remand are held in camera.  If the defendant

requests release in the course of a hearing, the decision on his

request may be given either during the hearing or at a subsequent court

session.  The prosecutor may attend a court session, while the

defendant or his counsel may attend such a session only if the law so

provides.

     At the material time the law did not give the detainee the right

to participate in any court session concerning his detention on remand.

In practice, the prosecutor was informed of and participated in

sessions in camera concerning decisions on detention on remand and

submitted arguments before the court.  The prosecutor's submissions

were included in the record of the session.  At present, under the

amended provisions of Article 222 para. 4 of the Code, the court

imposing detention on remand must hear a suspect and may allow a

defence counsel to participate in the court's session concerning the

imposition of detention on remand.  As regards the other proceedings

relating to lawfulness of detention, they are still conducted in the

absence of a detainee and his counsel.

4.   Legal means of ensuring an accused's presence before a trial

court

     Under Section 328 of the Code of Criminal Procedure, in the case

of an unjustified absence of an accused before a trial court, if his

presence is mandatory, the presiding judge shall order him to be

brought before the court immediately or adjourn or cancel the hearing.

If an accused's presence is not mandatory, the trial court shall hold

the hearing in his absence.

5.   Censorship of correspondence and contact with the outside world

in the course of detention on remand

     Sections 82-90 of the Code on the Execution of Criminal Sentences

relate to the execution of detention on remand.  According to Section

89 para. 2 of the Code a detainee may receive visitors in prison

provided that he has obtained permission from an investigating

prosecutor (at the investigative stage) or a court competent to deal

with his case (once court proceedings have commenced).  Further, all

correspondence of a detainee is, as a rule, censored, unless a

prosecutor or a court has decided otherwise.  There is no legal means

under the Code for a detainee to contest the censorship of his

correspondence.

COMPLAINTS

1.   The applicant complains under Article 3 of the Convention that

the conditions of his detention in Wroclaw Prison taken together with

the inappropriate diet, the insufficient medical treatment and severe

limitations on his contact with his wife amounted to inhuman treatment

contrary to this provision.  He also submits that as from 13 July 1997,

i.e. when the massive flood inundated the prison, he has been kept in

a flooded cell, without sufficient food, drink, medicines, electricity,

water or sewerage.

2.   Under Article 5 para. 3 of the Convention he complains that:

a)    on 22 November 1995 he was detained on remand by a prosecutor

who was neither a judge nor an officer authorised by law to exercise

judicial power; and

b)   his detention on remand from 22 November 1995 until the present

day exceeded a "reasonable time" within the meaning of this provision.

3.   Further, he submits under Article 5 para. 4 of the Convention

that he was not entitled to participate in the proceedings relating to

the lawfulness of his detention on remand.

4.   The applicant also complains under Article 6 para. 1 of the

Convention that the length of the criminal proceedings against him

exceeded a "reasonable time" within the meaning of this provision.

5.   The applicant complains under Article 6 para. 3 (b) of the

Convention that in the course of the criminal proceedings against him

he was deprived of his defence rights, in particular in view of the

insufficient access to the case-file.

6.   He complains under Article 7 para. 1 of the Convention that he

was charged with the offence of fraud, which he had allegedly committed

in 1994, whereas the substantive legal basis for the charge was

provided for by Section 205(1) para. 2 of the Criminal Code which

entered into force on 1 January 1995.

7.   Under Article 8 para. 1 of the Convention the applicant complains

about the censorship of letters to him, in particular those from public

authorities, the European Commission of Human Rights and his wife.  He

also submits that as from August 1996 until the present day he has been

deprived of any possible personal contact with his wife.

THE LAW

1.   The applicant complains under Article 3 (Art. 3) of the

Convention that the conditions of his detention in Wroclaw Prison taken

together with the inappropriate diet, the insufficient medical

treatment and severe limitations on his contact with wife amounted to

inhuman treatment contrary to this provision.  He also submits that as

from 13 July 1997, i.e. when the massive flood inundated the prison

building, he has been kept in a flooded cell, without sufficient food,

drink, medicines, electricity, water or sewerage.

     The Commission recalls that, according to the Convention organs'

case-law, ill-treatment must attain a minimum level of severity if it

is to fall within the scope of Article 3 (Art. 3) of the Convention

(Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January

1979, Series A no. 25, p. 65, para. 162).  It also recalls that lack

of medical treatment may raise an issue under Article 3 (Art. 3) of the

Convention.  In such cases, the factors to be considered are the

seriousness of the applicant's condition, the quality of medical care

he receives and whether his state of health is compatible with

detention.  Also, there remains the State's obligation to maintain a

continuous review of the detention arrangements employed with a view

to ensuring the health and well-being of all prisoners, having due

regard to the ordinary and reasonable requirements of imprisonment (see

Bonnechaux v. Switzerland, Comm. Report 5.12.79, D.R. 18, pp. 100,

148).

     As regards the present case, the Commission notes that between

4 December 1995 and the end of 1996 the applicant filed numerous

complaints to various national public authorities, alleging that he was

not provided with adequate medical care or an appropriate diet in

Wroclaw Prison, and that the conditions of his detention were severe

and unhygienic.  The authorities had ordered inspections of his cell

which confirmed that his complaints were, for the most part,

unsubstantiated and that, in general, the conditions of his detention

did not essentially differ from those in other Polish prisons.

Moreover, it cannot be said that the authorities failed carefully to

monitor the state of the applicant's health and its compatibility with

detention.  Thus, in the course of his detention he was examined by

medical experts and prison doctors on forty occasions and,

subsequently, he received the medical care and food recommended by

them.

     Insofar as the applicant complains about the conditions of his

detention after 13 July 1997, resulting from the massive flood in

South-West Poland, the Commission observes that the conditions

complained of arose from an unforeseen event, i.e. a natural

catastrophe which severely affected the population of Wroclaw as a

whole.  The Commission also notes that at the same time the Polish

authorities commenced an action ameliorating the situation and that the

action is still continuing.

     Finally, the Commission considers that the limitations on the

applicant's personal contacts with his wife, albeit imposed for a

considerable time and deepening his isolation from the outside world,

did not amount to treatment contrary to Article 3 (Art. 3) of the

Convention.

     As a consequence, the Commission finds that the treatment

complained of did not reach the threshold of severity required to bring

it within the scope of Article 3 (Art. 3) of the Convention.

     It follows that this part of the application is inadmissible as

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

(Art. 27-2) of the Convention.

2.   The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the length of the criminal proceedings against him

exceeded a "reasonable time" within the meaning of this provision.

     The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the circumstances of

the case and having regard to the following criteria: the complexity

of the case, the conduct of the parties and of the relevant authorities

(see, inter alia, Eur. Court HR, Monnet v. France judgment of

27 October 1993, Series A no. 273-A, p. 11 et seq. para. 27).

     The proceedings in question commenced on 22 November 1995 when

the applicant was charged with fraud and are still continuing before

the court of first instance, i.e. the Wroclaw-Sródmiescie District

Court.  They have therefore been pending during one year and eleven

months.

     The case was, undoubtedly, a complex one. The material contained

in the case-file comprised twenty-four volumes, several accomplices

were charged together with the applicant and two experts' reports were

considered by the court.  The investigations lasted approximately ten

months, i.e. from 22 November 1995 to 30 September 1996, when the

Wroclaw Regional Prosecutor submitted the bill of indictment to the

court.  This period, in view of the complexity of the case, does not

appear excessively long.  Furthermore, the Commission does not consider

that any substantial delay in the proceedings resulted from the

applicant's conduct.

     It is true that between 18 December 1996 and 10 April 1997 the

court was not able to hold any hearings.  However, it was essentially

due to the fact that the co-defendants repeatedly failed to appear.

On the whole, the Commission considers that the length of the

proceedings complained of has not exceeded to date a "reasonable time"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

     It follows that this part of the application is inadmissible as

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

(Art. 27-2) of the Convention.

3.   The applicant also complains under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention that in the course of the criminal

proceedings against him he was deprived of his defence rights, in

particular in view of the insufficient access to the case-file.

     Since the requirements of para. 3 of Article 6 (Art. 6-3) are to

be seen as particular aspects of the right to a fair trial guaranteed

by Article 6 para. 1 (Art. 6-1), the Commission will examine the

complaints under both paragraphs taken together (see Eur. Court HR,

F.C.B. v. Italy judgment of 28 August 1991, Series A no. 208-B, p. 20,

para. 29).

     However, the Commission has already found that the criminal

proceedings against the applicant are still pending.  Thus, it observes

that, at the present stage of the case, the Commission cannot speculate

as to how the applicant's trial will continue, in particular whether,

and if so to what extent the access to the case-file granted to him by

the court might influence the preparation of his defence.  As a

consequence, the  Commission considers that these complaints are

premature.

     It follows that this part of the application is inadmissible as

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

(Art. 27-2) of the Convention.

4.   The applicant also complains under Article 7 para. 1 (Art. 7-1)

of the Convention that he was charged with the offence of fraud, which

he had allegedly committed in 1994, whereas the substantive legal basis

for the charge was provided for by Section 205(1) para. 2 of the

Criminal Code, which entered into force on 1 January 1995.

     The Commission recalls that Article 7 para. 1 (Art. 7-1) of the

Convention embodies generally the principle that only the law can

define a crime and prescribe a penalty and prohibits in particular the

retrospective application of criminal law where it is to an accused's

disadvantage (see, Eur. Court HR, G. v. France judgment of 27 September

1995, Series A no. 325-B, p. 38, para. 24).

     However, the Commission notes that the applicant's complaint is

limited to the charge laid against him and since the criminal

proceedings against him are pending and no final judgment has yet been

given by the domestic court, it cannot be said that the applicant has

been "held guilty of a criminal offence" within the meaning of Article

7 para. 1 (Art. 7-1) of the Convention.  The complaint is therefore

premature.

     It follows that this part of the application is inadmissible as

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

(Art. 27-2) of the Convention.

5.   The applicant also complains under Article 5 para. 3 (Art. 5-3)

of the Convention that he was detained on remand by a prosecutor who

was neither a judge nor another officer authorised by law to exercise

judicial power and that the length of his continuing detention exceeded

a "reasonable time" within the meaning of this provision; under Article

5 para. 4 (Art. 5-4) of the Convention that he was not entitled to take

part in the proceedings concerning the lawfulness of his detention; and

under Article 8 (Art. 8) of the Convention about the censorship of his

correspondence and the continuing deprivation of any personal contact

with his wife;

     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 submitted under Article 5 para. 3 of the

     Convention that he was detained on remand by a prosecutor

     who was neither a judge nor an other officer authorised by

     law to exercise judicial power and that the length of his

     detention exceeded a "reasonable time" within the meaning

     of this provision; under Article 5 para. 4 of the

     Convention that he was not entitled to take part in the

     proceedings relating to the lawfulness of his detention;

     and under Article 8 of the Convention about the censorship

     of his correspondence and the continuing deprivation of any

     personal contact with his wife;

     unanimously,

     DECLARES INADMISSIBLE the remainder of the application.

        M. de SALVIA                        S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission