Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33863/96

by Janusz KAZIMIERCZAK

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 April 1996 by

Janusz KAZIMIERCZAK against Poland and registered on 18 November 1996

under file No. 33863/96;

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 1950, is a painter by

trade. He is currently detained in Warsaw-Bialol*ka prison.

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

summarised as follows:

Particular circumstances of the case:

The applicant has been suffering from tuberculosis since 1994.

On 24 July 1995 the applicant was arrested by the police on

suspicion of having committed murder. Subsequently, he was brought

before the Otwock District Prosecutor, charged with homicide and

detained on remand.

a) Proceedings concerning alleged inhuman treatment

Shortly after being arrested the applicant was interrogated by

police officers and allegedly beaten, kicked, assaulted by several

constables who also intimidated him in an attempt to extract a

confession from him. On 4 August 1995 the applicant complained to the

Otwock District Prosecutor (Prokurator Rejonowy) that he had been

subjected to torture during the interrogation of 24 July 1995.

Subsequently, on 7 September 1995, the prosecutor instituted

investigations relating to the applicant's complaint. On 30 October

1995 the Otwock District Prosecutor discontinued the investigations

since there was no evidence that the offence had been committed. On

29 January 1996 the applicant appealed against the decision

discontinuing the investigations. On 27 March 1996 the Otwock District

Prosecutor refused to allow the applicant's appeal as it had been

lodged outside the prescribed time-limit. On 25 June 1996 the Warsaw

Regional Prosecutor (Prokurator Wojewódzki) upheld the decision of the

prosecutor at first instance.

b) Criminal proceedings instituted against the applicant

After 24 July 1995 the investigations against the applicant were

continued and, inter alia, evidence was taken from various experts.

On an unspecified date in October 1995 the Otwock District

Prosecutor requested the Warsaw Regional Court (S*d Wojewódzki) to

prolong the applicant's detention on remand until 24 January 1996 in

view of the need to obtain further evidence, i.e. to request reports

from psychiatrists. On 19 October 1995 the court granted the request.

On 24 October 1995 the applicant complained about the decision of

19 October 1995 to the Prosecutor General (Prokurator Generalny),

arguing that his detention was unjustified. This was presumed to be

an appeal against the decision in question and transferred to the

Warsaw Regional Court and, subsequently, to the Warsaw Court of Appeal

(S*d Apelacyjny). On 14 December 1995 the Warsaw Court of Appeal

dismissed the appeal in view of the reasonable suspicion that the

applicant had committed the offence charged and the need to supplement

the existing evidence.

On an unspecified date in January 1996 the Otwock District

Prosecutor requested the Warsaw Regional Court to prolong the

applicant's detention on remand until 30 May 1996. On 18 January 1996

the court granted the request in view of the need to take further

evidence in the course of the investigations.

Subsequently, a bill of indictment was lodged with the Warsaw

Regional Court. The court scheduled a hearing for 4 and 5 February

1997. On an unspecified date, in October or November 1996, the

applicant requested the Warsaw Regional Court to alter the preventive

measure imposed on him, submitting that his state of health was very

bad. On 7 November 1996 the court dismissed his request in view of the

reasonable suspicion that the applicant had committed the serious

offence charged and the fact that the grounds which had previously been

given to justify his detention had not ceased to exist.

On 4 February 1997 the court cancelled the hearing and scheduled

the next hearings for 14 and 16 April, and 14 May 1997, respectively.

Relevant domestic law and practice

The Polish Code of Criminal Procedure lists as preventive

measures, inter alia, detention on remand, bail and police supervision.

Section 209 of the Code of Criminal Procedure provides:

"Preventive measures may be imposed in order to secure the due

course of proceedings if the evidence against the accused

sufficiently justifies the opinion that he has committed a

criminal offence."

The Code of Criminal Procedure sets out the scope of the

discretion as to maintaining the preventive measures. Detention on

remand is regarded as the most extreme measure among the preventive

measures and the domestic law lays down that in principle it should not

be imposed if more lenient measures are adequate and sufficient.

Section 225 of the Code of Criminal Procedure provides:

"Detention on remand shall be imposed only when it is mandatory;

this measure shall not be imposed if bail or police supervision,

or both of these measures, are considered adequate."

The relevant provisions of the Code which provided for "mandatory

detention" were repealed by virtue of a new Law of 29 June 1995 on

Amendments to the Code of Criminal Procedure and Other Criminal

Statutes.

COMPLAINTS

1. The applicant complains that on 24 July 1995 the police officers

of the Otwock Police Station tortured him during the interrogation.

2. He also complains about the length of his detention on remand and

that it is unjustified since he is innocent. In this respect he also

submits that the domestic authorities did not take into account his

state of health in their decisions relating to his continuing

detention.

The applicant does not invoke any specific provision of the

Convention in respect of these complaints.

THE LAW

1. The applicant complains that on 24 July 1995 the police officers

of the Otwock Police Station tortured him during the interrogation.

The Commission notes that by its nature the applicant's above

complaint would fall within the scope of Article 3 (Art. 3) of the

Convention, which provides:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

However, the Commission is not required to decide whether or not

the facts submitted by the applicant in support of this complaint

disclose any appearance of a violation of the Convention as, according

to Article 26 (Art. 26) of the Convention, it "may only deal with a

matter after all domestic remedies have been exhausted". In

particular, domestic remedies have not been exhausted when an appeal

is not admitted because of a procedural mistake by the appellant (see

No. 12794/87, Dec. 9.7.88, D.R. 57, p. 251).

In the present case the applicant failed to file his appeal

against the decision of the Otwock District Prosecutor of 30 October

1995 within the time-limit prescribed by Polish law. As a result, on

27 March 1996 the Otwock District Prosecutor refused to allow the

appeal in question and on 25 June 1996 the Warsaw Regional Prosecutor

upheld the decision of the prosecutor at first instance. Thus, the

applicant has not complied with the requirement of Article 26 (Art. 26)

of the Convention as to the exhaustion of domestic remedies.

It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies according to Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant also complains about the length of his detention

on remand. He submits that the domestic authorities did not take into

account his state of health in their decisions relating to his

continuing detention.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint 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 the complaint to the

respondent Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's

complaint about the length of his detention on remand,

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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KAZIMIERCZAK v. POLAND

KAZIMIERCZAK v. POLAND

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