Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27915/95

by Maciej NIEDBALA

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 5 February 1995

by Maciej NIEDBALA against Poland and registered on 20 July 1995 under

file No. 27915/95;

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

of Procedure of the Commission;

Having regard to:

- the observations submitted by the respondent Government

on 3 June 1996 and the observations in reply submitted by the

applicant on 28 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1969, is serving a prison

sentence in Jastrz*bie Zdrój prison.

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

summarised as follows:

a) On 31 August 1994 the applicant was arrested. On

2 September 1994 the Rybnik District Prosecutor remanded him in custody

on suspicion of theft of a car.

The applicant appealed to the Katowice Regional Court. On

12 September 1994 the Court dismissed the appeal, finding that there

was sufficient evidence to establish that the applicant might have

committed the offence concerned and the reasons for which the applicant

had been remanded in custody had not ceased to exist.

On 21 September 1994 the Rybnik District Public Prosecutor

prolonged the applicant's detention until 30 November 1994, considering

that the evidence gathered in the investigations strongly indicated

that the applicant had committed the offence in question. An expert

opinion had still to be taken.

On 10 October 1994 the Katowice Regional Court dismissed the

applicant's appeal against this decision, considering that the evidence

strongly indicated that the applicant had committed the offence in

question. Further time-consuming evidence still had to be taken, which

justified prolongation of the detention.

On 24 October 1994 the Rybnik District Public Prosecutor refused

to release the applicant, considering that the investigations had not

been completed, further forensic evidence had to be taken and the

reasons for which the detention had originally been decided had not

ceased to exist.

On 15 November 1994 the Katowice Regional Prosecutor dismissed

the applicant's appeal against this decision. The Prosecutor

considered that the evidence strongly indicated that the applicant had

committed the offence in question. The reasons for which the detention

had been decided had not ceased to exist. The investigations should

be continued and this required that the applicant remained in

detention.

On 9 March 1995 the applicant filed a request with the Katowice

Regional Court to have the lawfulness of his detention reviewed as

provided for by Article 5 para. 4 of the European Convention of Human

Rights. This request remained unanswered.

On 20 March 1995 the Katowice Regional Court convicted the

applicant of possessing stolen goods and ordered that he be released

from detention on remand. The applicant and the Public Prosecutor

filed appeals against this judgment.

On 21 April 1995 the applicant was rearrested and the Racibórz

District Public Prosecutor decided to put the applicant in detention

on remand on suspicion of attempted theft of a car on 20 April 1995.

The applicant appealed to the Racibórz District Court, invoking, inter

alia, Article 5 para. 3 of the Convention. On 27 April 1995 the Court

dismissed the appeal, considering that the detention on remand had been

ordered in accordance with the law. Article 210 para. 1 of the Code

of Criminal Procedure provides that it is the Public Prosecutor who is

competent to decide on detention on remand.

On 5 September 1995 the Katowice Court of Appeal amended the

impugned judgment in that it found that the applicant was guilty of

aiding in selling stolen goods and sentenced him to two years and six

months' imprisonment and a fine.

b) On 2 November 1994 the applicant wrote a letter to the Ombudsman,

complaining about the alleged irregularities in the criminal

proceedings against him and about having allegedly been assaulted by

the police on his arrest. The prison authorities transferred this

letter to the Rybnik District Prosecutor. On 23 November 1994 the

Rybnik District Prosecutor informed the applicant that the letter to

the Ombudsman had been transferred to the Tychy District Public

Prosecutor, for the purpose of investigating the alleged assault. It

was later forwarded to the Ombudsman. The letter reached the

Ombudsman's office on 27 December 1994 and was registered there under

file number RPO 174886/94/II.

In a reply to the applicant's letter, on 12 June 1995 the

Ombudsman informed the applicant that the ratification of the

Convention did not automatically entail derogation of the provisions

of the Polish law relating to the authorities competent to decide on

deprivation of liberty. Thus the courts and prosecutors were still

obliged to apply domestic law currently in force in this respect. The

relevant amendments to the Code of Criminal Procedure had already been

adopted by the parliament, but they had not yet entered into force.

The current public debate about the possible direct applicability of

the Convention in the domestic legal order was of a purely theoretical

nature. The decisions concerning the applicant's detention were

therefore in accordance with the law.

Relevant domestic law

The authorities competent to decide on detention of remand are

provided for in Articles 210 and 212 of the Polish Code of Criminal

Procedure, which read as follows:

:

Article 210:

"1. Preventive measures [including detention on remand] are

imposed by the Court; before a bill of indictment is sent to the

Court, they are imposed by the prosecutor (...)."

Article 212:

"1. The decision concerning the preventive measures may be

appealed [to the higher court] (...).

2. The prosecutor's order on detention on remand may be appealed

to the Court competent to consider the criminal proceedings at

issue. (...)"

Artykul 210:

"1. Srodki zapobiegawcze stosuje s*d, a przed wniesieniem aktu

oskarzenia - prokurator. (...)"

Artykul 212:

"1. Na postanowienie w przedmiocie srodka zapobiegawczego

przysluguje zazalenie [do s*du wyzszej instancji] (...).

2. Na postanowienie prokuratora o zastosowaniu tymczasowego

aresztowania przysluguje zazalenie do s*du wlasciwego do

rozpoznania sprawy. (...)"

The presence of the parties at the court sessions other than

hearings is regulated in Articles 87 and 88 of the Polish Code of

Criminal Procedure which, insofar as relevant, provide:

:

Article 87:

"The Court pronounces its decisions at a hearing if the law

provides for it; if this is not the case, at a court session in

camera. (...)"

Article 88:

"A court session in camera may be attended by a public prosecutor

(...); other parties may attend if the law provides for it."

Artykul 87:

"S*d orzeka na rozprawie w wypadkach przewidzianych przez ustaw*,

a w innych - na posiedzeniu. (...)"

Artykul 88:

"W posiedzeniu moze wzi*c udzial prokurator (...); inne strony

mog* wzi*c udzial w posiedzeniu, jezeli ustawa to przewiduje."

COMPLAINTS

The applicant complains under Article 5 para. 3 of the Convention

that he was deprived of his liberty by a decision of the Public

Prosecutor and not of a judge or other officer authorised by law to

exercise judicial power as required by this provision.

The applicant further complains that he was never brought before

a judge competent to review the lawfulness of his detention.

He further complains under Article 8 of the Convention that his

letter to the Ombudsman was intercepted by the Rybnik Public Prosecutor

and never sent to the addressee.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 February 1995 and registered

on 20 July 1995.

On 29 February 1996 the Commission decided to communicate the

applicant's complaint that the decision to remand him in custody was

issued by the Public Prosecutor and that he was never brought before

the court in the proceedings concerning determination of the lawfulness

of his detention, and about the alleged interference with his

correspondence.

The Government's written observations were submitted on

3 June 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 28 June 1996.

On 3 December 1996 the Commission granted the applicant legal

aid.

THE LAW

1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention that he was deprived of his liberty by a decision of the

Public Prosecutor and not of a judge or other officer authorised by law

to exercise judicial power.

Article 5 (Art. 5) of the Convention, 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 (...);

3. Everyone arrested or detained in accordance with

the provisions of paragraph 1 (c) of this

Article shall be brought promptly before a judge

or other officer authorised by law to exercise

judicial power and shall be entitled to trial

within a reasonable time or to release pending

trial. Release may be conditioned by guarantees

to appear for trial."

The Government submit that under Polish law the function of the

Public Prosecutor is to safeguard the rule of law and to prosecute the

offenders. The General Prosecutor, who is also the Minister of

Justice, is a superior of all Prosecutors, competent to take all

decisions within the scope of their tasks as defined by law and to

issue instructions to them. He or she is competent to request the

Constitutional Court to pronounce decisions on compatibility of laws

with the Constitution. The actions of the Public Prosecutors should

be governed by the principle of impartiality and equality of citizens

before the law. The Public Prosecutors are independent in carrying

out their functions, but are bound by instructions and orders of their

hierarchical superiors.

The applicant submits that the Government's submissions are

limited to information about the position of the Public Prosecutor

under domestic law. He maintains that the Government failed to address

the crucial issue as regards the compliance of his arrest with the

requirements of Article 5 para. 3 (Art. 5-3) of the Convention. The

Prosecutor is neither a judge nor an officer authorised to exercise

judicial power. On both occasions the applicant was arrested by the

Public Prosecutor. On 9 March 1995 he requested the Katowice Regional

Court to establish whether his arrest of 2 September 1994 was

compatible with the Convention. This request remained unanswered. On

27 April 1995 the Racibórz District Court declared that the decision

to remand him in custody of 20 April 1995 was in accordance with the

Polish Code of Criminal Procedure. It failed to rule on its

compatibility with the Convention. The applicant concludes that the

arrest by the Public Prosecutor amounted to a breach of Article 5 para.

3 (Art. 5-3) of 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

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.

2. The applicant further complains that he was never brought before

a judge competent to review the lawfulness of his detention.

The Commission has examined this complaint under Article 5

para. 4 (Art. 5-4) of the Convention, which states:

"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 decisions on detention on remand

and on its prolongation 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 those proceedings.

However, the courts have an opportunity to examine whether the

decisions concerned are lawful and justified.

The Government further 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 prolongation of detention on remand.

However, this does not necessarily entail a breach of the principle of

equality of arms in such proceedings as the participation of the

Prosecutor is only optional. Further, the court examines the written

appeal of the accused and thus has detailed knowledge of his arguments.

Moreover, the Prosecutor plays a double role in such proceedings, not

only supporting the prosecution, but also representing the public

interest.

As regards the present case the Government submit in particular

that the applicant appealed against the Rybnik Public Prosecutor's

decisions to prolong his detention to the Katowice Regional Court. The

Court therefore knew the applicant's arguments as they were presented

in his appeals. The role of the Public Prosecutor at the hearings

should be regarded as that of guardian of public interest. Moreover,

the Katowice Regional Prosecutor who participated in these hearings

supervised the investigations run by the Rybnik District Prosecutor.

As regards the court session in camera held on 27 April 1995, at

which the Racibórz District Court examined the applicant's appeal

against the decision of 20 April 1995 to remand him in custody, the

Public Prosecutor was not present. Therefore the principle of equality

of arms was complied with.

The Government conclude that in the proceedings concerning the

applicant's detention on remand the guarantees of Article 5 para. 4

(Art. 5-4) were complied with.

The applicant submits that the fact that he was never brought

before the court in any of the proceedings concerning the determination

of the lawfulness of his detention amounted to a breach of Article 5

para. 4 (Art. 5-4) of the Convention and that the principle of equality

of arms was not complied with in the proceedings concerning his

detention.

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

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.

3. The applicant complains under Article 8 (Art. 8) of the

Convention that his letter to the Ombudsman was intercepted by the

Rybnik Public Prosecutor and never sent to the addressee.

Article 8 (Art. 8) of the Convention, insofar as relevant, reads:

"1. Everyone has the right to respect for his (...)

correspondence.

2. There shall be no interference by a public

authority with the exercise of this right except

such as is in accordance with the law and is

necessary in a democratic society in the

interests of national security, public safety or

the economic well-being of the country, for the

prevention of disorder or crime, for the

protection of health or morals, or for the

protection of the rights and freedoms of

others."

The Government submit that under Polish law the rights of persons

detained on remand as regards their correspondence are set out in the

relevant sections of the Code of Execution of Sentences and Section 33

of the Rules on Detention on Remand. They provide that the

correspondence of persons detained on remand is subject to censorship

by the authority conducting the criminal proceedings, i.e. either the

Public Prosecutor or the Court, depending on the stage of the

proceedings.

They further submit that in the present case, the applicant wrote

a letter to the Ombudsman on 2 November 1994, complaining about the

alleged irregularities in the criminal proceedings against him and

about having allegedly been assaulted by the police at his arrest. The

prison authorities transferred this letter to the Rybnik District

Prosecutor. On 23 November 1994 the Rybnik District Prosecutor

informed the applicant that the letter to the Ombudsman had been

transferred to the Tychy District Public Prosecutor, for the purpose

of investigating the alleged assault. After being read, it was

forwarded to the Ombudsman. The letter reached the Ombudsman's office

on 27 December 1994 and was registered there under file number RPO

174886/94/II. They rely in this respect on results of an internal

inquiry of the Katowice Regional Prosecutor, summarised in his letter

of 23 March 1996 to the Government. They conclude that there was no

violation of Article 8 (Art. 8) of the Convention.

The applicant submits that on 2 November 1994 he gave three

letters to the Zabrze prison administration, two addressed to the

Katowice Regional Prosecutor and one to the Ombudsman. It is true that

his correspondence to the Ombudsman was registered with the latter on

27 December 1994 under the file number referred to by the Government.

However, there is no proof that it was the letter of 2 November 1994

as on 28 November 1994 he sent a next letter to the Ombudsman and all

his further correspondence with him was registered under the same

number. He concludes that the Government's submissions as to the facts

are incorrect.

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

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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NIEDBALA v. POLAND

NIEDBALA v. POLAND

LEXI