Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25874/94

by Jacek KAWKA

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 May 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

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 22 August 1994 by

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

No. 25874/94;

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 facts of the case, as submitted by the applicant, 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 15 June 1994 the applicant requested his release.

On 28 June 1994 the Lódz Regional Court (S*d Wojewódzki w

Lodzi), 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 had to be

taken.

On 19 July 1994 the Lódz Court of Appeal (S*d Apelacyjny w Lodzi)

upheld the decision of 28 June 1994. The Court considered that the

applicant's psychiatric examination had not been completed.

In September 1994 the applicant requested his release.

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

indictment.

On 4 October 1994 the Lódz Regional Court dismissed the

applicant's request for release. 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 of 4 October. 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.

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.

COMPLAINTS

The applicant complains that the courts were arbitrary in their

decisions relating to his detention. He also complains 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 under Article 5 para. 3 of the Convention

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 he was never

brought before a court competent to review the lawfulness of his

detention on remand, nor was his lawyer entitled to attend any hearing

on such a review.

The applicant complains under Article 6 para. 1 of the Convention

that the proceedings against him are not fair, and that the court is

biased against him.

The applicant complains under Article 6 para. 2 of the Convention

that the Lódz Regional Court in its decision of 4 October 1994 breached

the presumption of innocence in that it considered that the applicant

should remain in detention, despite insufficient evidence to justify

the suspicion against him.

The applicant complains under Article 6 para. 3 of the Convention

that the courts questioned the credibility of certain witnesses with

regard to the suspicion that the applicant had committed the offence

at issue.

THE LAW

1. The applicant complains under Article 6 paras. 1, 2 and 3

(Art. 6-1, 6-2, 6-3) of the Convention in regard to the proceedings

before the Lódz Regional Court.

Under Article 25 (Art. 25) of the Convention the Commission may

only deal with an application "from any person, non-governmental

organisation or group of individuals claiming to be the victim of a

violation of the rights set forth in the Convention".

In the present case the Commission notes that the criminal

proceedings against the applicant are still pending. In particular,

no conviction has yet been pronounced in the proceedings before the

Lódz Regional Court. Against any such decision an appeal could be

filed with the Lódz Court of Appeal.

It follows that in this respect the applicant cannot claim to be

a victim within the meaning of Article 25 para. 1 (Art. 25-1) of the

Convention. This part of the application is therefore manifestly ill-

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

Convention.

2. The applicant complains of arbitrary detention and submits 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. He further complains

under Article 5 para. 3 (Art. 5-3) of the Convention 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, and that he was never brought before a court competent to

review the lawfulness of his detention on remand, nor was his lawyer

entitled to attend any hearing on such a review.

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

file, determine these complaints without the observations of both

parties.

The Commission therefore considers that this part of the

application must be adjourned.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN the examination of the applicant's complaints

concerning the lawfulness and the procedure relating to his

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

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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KAWKA v. POLAND

KAWKA v. POLAND

LEXI