Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25874/94

by Jacek KAWKA

against Poland

The European Commission of Human Rights sitting in private

on 7 July 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

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

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. H.C. KRÜGER, 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 22 August 1994

by Jacek KAWKA against Poland and registered on 7 December 1994 under

file No. 25874/94;

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

18 December 1995 and the observations in reply submitted by the

applicant on 19 February 1996;

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 1965, is currently

detained on remand in Lódz prison.

Particular circumstances of the case

On 6 January 1994 the Zgierz District Prosecutor issued a warrant

of arrest against the applicant and on the same day the applicant was

remanded in custody on suspicion of attempted manslaughter by

assaulting the victims in their apartment with a knife and axe.

On 25 March 1994 the Lódz Regional Court (S*d Wojewódzki) granted

the Public Prosecutor's request for prolongation of the detention until

4 July 1994 in view of the need to take further expert opinions.

On 5 April 1994 the Lódz Regional Court rejected the applicant's

request for release on the ground that it was the Public Prosecutor who

was competent to deal with it.

On 11 April 1994 the case was transferred to the Zgierz District

Prosecutor.

On 26 April 1994 the Lódz Court of Appeal (S*d Apelacyjny)

complied with the applicant's request to amend the decision of

25 March 1994 and shortened the period for which the applicant's

detention was authorised until 30 June 1994.

On 25 May 1994 the applicant requested his release. The Lódz

Regional Court and, upon appeal, the Court of Appeal, rejected his

request.

On 15 June 1994 the applicant requested his release.

On 17 June 1994 the applicant underwent a psychiatric

examination.

On 28 June 1994 the Lódz Regional Court, acting upon the motion

of the Zgierz District Prosecutor, prolonged the applicant's detention

from 30 June until 30 September 1994. The Court considered that the

reasons for which the detention had been ordered had not ceased to

exist. There was sufficient suspicion that the applicant had committed

the criminal offence at issue, supported by evidence gathered in the

course of the investigations. The applicant had to undergo a further

time-consuming psychiatric examination. Further investigatory measures

and evidence had to be taken.

On 15 July 1994 an additional psychiatric opinion was submitted.

On 19 July 1994 the Lódz Court of Appeal upheld the decision of

28 June 1994. The Court considered that the applicant's psychiatric

examination had not been completed.

On 11 and 28 August 1994 the applicant requested to be released.

His requests were subsequently rejected by the Lódz Regional Court.

On 1 September 1994 the applicant again requested his release.

On 5 September 1994 the applicant was informed that the charges

against him had been in part modified and he was given access to the

case-file.

On 21 September 1994 the applicant was served with a bill of

indictment. On the same day the Public Prosecutor submitted the

indictment to the Lódz Regional Court.

On 4 October 1994 the Lódz Regional Court dismissed the

applicant's request for release of 1 September 1994. The Court

considered that there was a reasonable suspicion that the applicant had

committed a dangerous offence, supported by the evidence given, inter

alia, by the two victims. The reasons for which the detention had been

ordered continued to exist. The applicant had failed to indicate in

his request any new circumstances which could justify his release.

On 6 October 1994 the applicant's father appealed against the

decision. He submitted that the period of detention had expired on

30 September 1990, while the applicant had not received any decision

further prolonging his detention.

On 10 October 1994 the applicant's lawyer appealed against the

same decision. He submitted that the Court's conclusions as to the

reasonableness of the suspicion were based on insufficient evidence as

only the evidence given by the victims supported the applicant's guilt.

The applicant's detention since 30 September 1994 lacked any legal

basis, as the detention period had expired on this date. No further

decision relating to the prolongation of the detention had been issued.

On 25 October 1994 the Lodz Court of Appeal upheld the decision

of 4 October 1994.

The Court fixed the date for the first hearing for

27 January 1995, but it was later adjourned. Subsequently, on

14, 16, 27 and 31 March 1995 and on 6 April 1995 the applicant

requested to be released, to no avail as the Lódz Regional Court

dismissed all his requests.

On 5 June 1995 the Court convicted the applicant of attempted

manslaughter and sentenced him to five years' imprisonment. The case

is pending before the Lódz Court of Appeal.

Relevant domestic law

Articles 210 and 212 of the Code of Criminal Procedure provide

that, before the bill of indictment has been transmitted to the Court,

preventive measures are ordered by the Public Prosecutor. Thereafter,

such orders are made by the Court. A decision concerning preventive

measures may be appealed to the higher Court and, in case the Public

Prosecutor has made the order, to the Court competent to examine the

merits of the case.

Preventive measures (including detention on remand) are examined

by the Courts in proceedings held in camera. Article 88 of the Code

of Criminal Procedure provides that the Public Prosecutor may attend

such proceedings and that other parties may also attend if the law

provides for it. No rule provides for the attendance of the accused

or his lawyer in the proceedings concerning detention on remand.

Under Article 299 para. 1 of the Polish Code of Criminal

Procedure the President of the Court of its own motion or upon a

request of a party may commit the case for an interlocutory decision

to be taken by a court if he finds that the decision to be taken lies

beyond his own authority, and in particular, if an order is to be

issued concerning, inter alia, detention on remand.

Under Article 87 para. 1 of the Polish Constitution, the personal

liberty of the citizens is guaranteed. No one can be deprived of his

or her liberty, except pursuant to laws in force.

COMPLAINTS

The applicant complains that the courts were arbitrary in their

decisions relating to his detention. He complains in particular that

for a certain unspecified period as from 30 September 1994 his

detention on remand lacked a legal basis as there was no decision by

a competent court to prolong it beyond that date.

The applicant complains that he was never brought before a court

competent to review the lawfulness of his detention on remand. He

further complains that neither he nor his lawyer was present before the

Lódz Regional Court deciding on 4 October 1994 on his request for

release, while the Public Prosecutor was present. He further complains

that neither he nor his lawyer was entitled to attend any hearing in

review of the lawfulness of his detention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 August 1994 and registered

on 7 December 1994.

On 17 May 1995 the Commission decided to communicate to the

respondent Government the applicant's complaints under Article 5 of the

Convention concerning the lawfulness of his detention and the procedure

relating thereto, and to declare the remainder of the application

inadmissible.

The Government's written observations were submitted on

18 December 1995, after an extension until 20 October 1995 of the time-

limit fixed for that purpose had been granted. The applicant replied

on 19 February 1996.

THE LAW

1. The applicant complains that the courts were arbitrary in their

decisions relating to his detention. He complains in particular that

for a certain unspecified period as from 30 September 1994 his

detention on remand lacked a legal basis as there was no decision by

a competent court to prolong it beyond that date.

The Commission has considered this complaint under Article 5

para. 1 (c) (Art. 5-1-c) of the Convention which reads as follows:

"1. Everyone has the right to liberty and security

of person. No one shall be deprived of his

liberty save in the following cases and in

accordance with a procedure rescribed 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;"

The Government submit that under Article 299 para. 1 of the

Polish Code of Criminal Procedure the President of the Court of its own

motion or upon a request of a party may commit the case for an

interlocutory decision to be taken by a court if he finds that the

decision to be taken lies beyond his own authority, and in particular,

if an order is to be issued concerning, inter alia, detention on

remand. The applicant's case was committed for a court session in

camera pursuant to this provision, following the applicant's request

for release. The decision of the Lódz Regional Court of

4 October 1994, in which the court dismissed the applicant's request

for release of 1 September 1994, incorporated a decision to prolong the

applicant's detention. This decision, as well as the later decisions

concerning the applicant's detention, taken after the date on which the

indictment was transmitted to the Court, were taken in conformity with

the Polish law, were not arbitrary and were taken within the framework

of correct procedures provided for by the domestic law.

The applicant submits that after the expiry of the decision of

28 June 1994 which had prolonged his detention until 30 September 1994

there was no legal basis for his detention until 4 October 1994. The

Court issued the decision of 4 October 1994 only as a reaction to the

applicant's request, but no decision would have been issued on the

court's own motion, if the applicant had not requested the court to be

released. Thus, his detention from 1 to 4 October 1994 was based only

on an assumption that it should be maintained in view of the indictment

having been transmitted to the court. This assumption was not based

on any legal provision and as such was not in conformity with

Article 87 para. 1 of the Constitution and with the Convention.

The Commission considers that the applicant's above complaint

raises serious issues of fact and law under the Convention the

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

It follows that this part of the application cannot be dismissed as

manifestly ill-founded within the meaning of Article 27 (Art. 27) of

the Convention. No other ground for declaring it inadmissible has been

established.

2. The applicant complains that he was never brought before a court

competent to review the lawfulness of his detention on remand. He

further complains that neither he nor his lawyer was present before the

Lódz Regional Court deciding on 4 October 1994 on his request for

release, while the Public Prosecutor was present. He further complains

that neither he nor his lawyer was entitled to attend any hearing in

review of the lawfulness of his detention.

The Commission has examined this complaint under Article 5

para. 4 (Art. 5-4) of the Convention which reads as follows:

"4. 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 the applicant was arrested on

4 January 1994 and the decision of the Public Prosecutor to remand him

in custody was issued on 6 January 1994. It should be therefore

considered that the applicant was brought promptly before the competent

authority within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention.

The Government further submit that under Polish law the decisions

on detention on remand and on its extension can be appealed against to

a court. These appeals are examined at court sessions in camera. It

is true that not all the guarantees of fair hearing are applicable in

taking these decisions. However, the courts have an opportunity to

examine whether the decisions concerned are lawful and justified.

The Government submit that the law does not provide for mandatory

presence of the accused or his lawyer before the court when it is

taking decisions on extension of the detention on remand or on the

requests for release. However, this does not necessarily entail a

breach of the principle of equality of arms in such proceedings as the

participation of the Public Prosecutor is optional and not obligatory.

Further, the court examines the written submissions of the detained

person and thus has detailed knowledge of his arguments.

As regards the present case the Government submit in particular

that the Public Prosecutor was present at the Regional Court's in

camera sessions at which the applicant's requests for release were

examined. However, the role of the Public Prosecutor at the hearings

concerned should be regarded as that of guardian of public interest.

The Public Prosecutor limited himself to supporting the arguments set

out in the Regional Court's decisions to maintain the applicant in

custody and did not submit any new arguments militating for the

applicant's continued detention. Thus, the proceedings were

contradictory as both parties were free to present their arguments to

the court deciding on the applicant's detention.

The applicant submits that the position of the Public Prosecutor

in the in camera sessions of the court at which the prolongation of

detention or the applicant's requests for release were considered did

not differ in any way from the position of a party to the proceedings.

Thus, the Public Prosecutor defended his position as to the continued

detention. It cannot be reasonably conceived that he would support the

position of the detainee. The written arguments of the detained person

or the lawyer presented to the court cannot be considered as an

equivalent to the personal appearance of the detainee or the lawyer.

Should such position be adopted, it would ultimately result in

acknowledging that the criminal proceedings, instead of being public

and contradictory, should be non-public and written.

The Commission considers that the applicant's complaints with

regard to the subsequent proceedings in review of the lawfulness of his

detention raise serious issues of fact and law under the Convention the

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

It follows that this part of the application cannot be dismissed as

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

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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KAWKA v. POLAND

KAWKA v. POLAND

LEXI