Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33885/96

by Eryk KAWKA

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

I. BÉKÉS

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 5 February 1997

by Erik KAWKA against Poland and registered on 18 November 1996 under

file No. 33885/96;

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 1968, is a worker and

resides in Jaworzno, Poland. He is currently detained in Racibórz

prison.

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

summarised as follows:

Particular circumstances of the case

a. Imposition of detention on remand and further appeal proceedings

On 13 January 1996 the applicant was arrested by policemen and

brought before the Gliwice District Prosecutor (Prokurator Rejonowy).

On the same day, the prosecutor charged the applicant with robbery and

detained him on remand in view of the reasonable suspicion that the

applicant had committed the offence in question and the serious nature

of that offence. The applicant appealed against the detention order

to the Gliwice District Court (S*d Rejonowy) which, on an unspecified

date, upheld the contested decision. The applicant did not take part

in the court session concerning the examination of his appeal. The

Gliwice District Prosecutor attended the session.

b. Trial

On an unspecified date the Gliwice District Prosecutor lodged a

bill of indictment with the Gliwice District Court.

On 17 June 1996 the Gliwice District Court convicted the

applicant of robbery and sentenced him to four years and six months'

imprisonment and three years' deprivation of his civic rights. The

court based its findings of fact on the evidence of a victim who had

been intoxicated at the time he was robbed. However, the court found

that his statements were credible in view of the fact that he had

immediately called a police station and described all the relevant

events in detail. In particular, he had reported the name of the

perpetrator as "Kapka" or "Kapko" which, in the court's view, could not

have been a coincidence.

On 17 September 1996 the Katowice Regional Court (S*d

Wojewódzki), upon the applicant's appeal, upheld the judgment of the

court of first instance and the reasons given therefor.

Subsequently, on an unspecified date, the applicant filed a

notice of cassation appeal with the Katowice Regional Court and

requested that court to grant him legal assistance in the cassation

proceedings.

On 15 January 1997 the Katowice Regional Court granted the

applicant's request in view of the fact that throughout the entire

trial he had been represented by an officially-appointed lawyer, due

to his partial deafness.

The cassation proceedings are currently pending before the

Supreme Court (S*d Najwyzszy).

Relevant domestic law and practice

1. Imposition of detention on remand

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."

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 Prosecutor General.

COMPLAINTS

1. The applicant complains under Article 5 para. 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.

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

his appeal against the detention order of 13 January 1996 was examined

by the Gliwice District Court in an unfair and "stereotyped" fashion

as he was not allowed to participate in that court's session.

3. Under Article 6 of the Convention he complains:

a) that the courts dealing with his case lacked impartiality and

incorrectly assessed the evidence presented during his trial, which

resulted in his unjustified conviction;

b) that the authorities failed to appoint a defence lawyer for him

at the initial stage of the proceedings;

c) that he did not have adequate time to defend himself.

THE LAW

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

Convention that the courts dealing with his case lacked impartiality

and incorrectly assessed the evidence presented during his trial, which

resulted in his unjustified conviction. He also submits that the

authorities failed to appoint a defence lawyer for him at the initial

stage of the proceedings and that he did not have adequate time to

defend himself.

However, the Commission notes that the criminal proceedings

against the applicant have not yet been terminated since, following his

cassation appeal, they are pending before the Supreme Court. Thus, the

Commission finds that, at this stage, it cannot speculate as to how the

applicant's trial will continue, in particular whether, and if so to

what extent, his arguments relating to the substance of these

complaints will be considered by the Supreme Court. The complaints

are, therefore, premature.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains under Article 5 paras. 3 and 4

(Art. 5-3, 5-4) 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 he was not allowed to

participate in the Gliwice District Court's session relating to the

lawfulness of his detention on remand.

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 under Article 5 para. 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 under Article 5 para. 4 of the

Convention that he was not allowed to participate in the

Gliwice District Court's session relating to the lawfulness

of his detention on remand;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M. de Salvia S. TRECHSEL

Secretary President

to the Commission of the Commission

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KAWKA v. POLAND

KAWKA v. POLAND

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