FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34091/96 by M.B. against Poland

The European Court of Human Rights (Fourth Section), sitting on 28 January 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 19 July 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to its partial decision of 8 March 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr M.B. , was a Polish national, born in 1967. He died on 26 July 1996. By a decision of 8 March 2001 the Court held that in the light of its case-law there was no obstacle to the case being pursued by the applicant’s father, Mr H.B., who is represented before the Court by Ms Bożenna Banasik , a lawyer practising in Łódź .

A. The circumstances of the case

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

In 1994 the Białystok Regional Prosecutor instituted investigations in rem concerning suspicion of fraud. On 28 March 1995 the applicant was charged with fraud . On 30 March 1995 the Białystok Regional Prosecutor ordered his detention on remand. It was considered that there was a suspicion of fraud committed by the applicant by obtaining under false pretences a loan of USD 380,000 from a State-owned bank. The loan had not been reimbursed. It was further considered that the evidence in the case file rendered the charge against the applicant credible, while his attitude and the circumstances of the case indicated that he would jeopardise criminal proceedings, if left at liberty.

The applicant requested that detailed written grounds of the detention order be prepared by the prosecuting authorities. On 3 April 1995 the applicant’s lawyer and on 6 April 1995 the applicant himself appealed against the detention order, arguing, inter alia , that his bad health was incompatible with his detention.

By a decision of 11 April 1995 the Białystok Regional Prosecutor proferred charges against the applicant. It was stated that the suspicion against him was rendered credible by evidence gathered in the investigations. The prosecutor referred in particular to documents concerning the circumstances in which the applicant had taken the loan, to the manner in which the funds had been transferred to the applicant’s bank account, and to the links established between the suspects in the case.

On 10 April 1995 the Warsaw Regional Court, at a session held in camera , refused the applicant’s lawyer’s appeal against the detention order and on 27 April 1997 the applicant’s own appeal was, likewise, dismissed.

On 25 April 1995 the applicant requested to be released .

On 28 April 1995 the same court refused to allow the applicant’s appeal against the decision of 11 April 1995 by which the prosecution had proferred charges against the applicant. The court considered that the case was complex, that there were many suspects, and that the offences concerned were of a very serious nature.

On 28 April 1995 the Białystok Regional Prosecutor refused the applicant’s application for release of 25 April 1995. On 18 May 1995 the Białystok Appellate Prosecutor upheld this decision, considering that a medical certificate confirmed that the applicant was suffering from Marfan syndrome. However, the applicant was under medical supervision of a prison doctor.  The grounds on which the applicant had been arrested still obtained, and the offence concerned was of a serious nature.

On 13 June 1995 the charges against the applicant were supplemented by two further counts of fraud, committed by obtaining another two bank loans by false pretences. The prosecuting authorities referred, inter alia , to  various Polish and foreign documents, to the testimony of witnesses, interviewed during the investigations, and to other evidence. When questioned by the prosecutor on that day, the applicant requested that detailed written grounds of these charges, giving factual reasons grounding the suspicions against him, be prepared and served on him and on his lawyer.  On 28 June 1995 the applicant was served with this document.

On 26 June 1995 the Warsaw Regional Court prolonged the applicant’s detention for three months, until 29 September 1995.

On 13 July 1995 the applicant requested again to be released. On 17 July 1995 his request was refused by the Białystok Regional Prosecutor.

On 17 July 1995 the applicant requested to be released in order to undergo a specialised ophtalmological examination, submitting that he suffered from an ailment, which seriously affected his eyesight, and that his eyesight had severely deteriorated as a result of his detention.

On 27 July 1995 the Warsaw Court of Appeal dismissed the applicant’s appeal against the decision of the Warsaw Regional Court of 26 June 1995 prolonging his detention for a further three months.

On 11 August 1995 the Białystok Appellate Prosecutor upheld the decision of 17 July 1995, considering that the evidence against the applicant had rendered the charges against him sufficiently credible.

On 12 September 1995 the applicant’s new request for release, submitted on 8 September 1995, was refused by the BiaÅ‚ystok Regional Prosecutor. An identical decision was given on 15 September 1995 in respect of his fresh request for release, the prosecuting authorities considering that the evidence gathered so far in the proceedings supported the charges against the applicant, and that there were genuine grounds for believing that, if released, he would exert pressure on the witnesses.

On 18 September 1995 the applicant’s detention was prolonged until 29 November 1995, the Warsaw Regional Court considering that further measures had to be taken in order to complete the evidence gathered so far during the investigations. On 26 October 1995 the Warsaw Court of Appeal dismissed the applicant’s appeal against that decision.

On 16, 17, 20 and 21 November 1995 the applicant had access to the case file and was informed of his right to submit, within three days, motions for further evidence to be admitted.

On 21 November 1995 the Białystok Regional Prosecutor again refused to release the applicant. On the same day the applicant requested the Białystok Appellate Prosecutor to set aside this decision.

On 23 November 1995 the Warsaw Court of Appeal prolonged the applicant’s detention until 29 December 1995. On the same day the court’s registry was served with the applicant’s letter in which he requested the court to allow him to be present at the court session concerning the prolongation of his detention. On 27 November 1995 the court replied that his request had been included in the case file, noting that it had been served on the court after the session had been held in the applicant’s and his lawyer’s absence.

On 26 November 1995 the Warsaw Court of Appeal upheld the decision of the Warsaw Regional Court of 26 October 1995 prolonging the applicant’s detention.

On 8, 12 and 15 December the applicant read the case file.

On 14 December 1985 the Warsaw Court of Appeal dismissed the applicant’s appeal against the decision of 23 November 1995 prolonging his detention until 29 December 1995.

On 15 December 1995 the applicant requested that certain pages that  had been taken out of the case file and transferred to the file of another case, which had been severed from the applicant’s case in June 1995, be re-included into his file so that he could have access to them.

On 21 December 1995 the Białystok Regional Prosecutor closed the investigation, considering that the case-file contained enough evidence for a bill of indictment to be lodged with a court. On the same date the prosecutor ordered that the applicant be given access to documents that he had requested on 15 December.

On the same day the Białystok Appellate Prosecutor refused to allow the applicant’s appeal against the decision to prolong his detention, given on 23 November 1995.

On 8 January 1996 the applicant requested to be released and on 10 January 1996 he proposed to pay bail in the amount of PLN 5,000.

On 19 January 1996 the applicant requested to be granted access to the case-file, submitting that he had not been shown items Nos. 85, 86, 87.

On 25 January 1996 the Warsaw Regional Court dismissed the applicant’s request to be released on bail.

By a letter of 19 January, submitted to the court on 24 January 1996, the applicant requested to be allowed to read the case file again.

The refusal to release the applicant, given on 25 January 1996, was upheld by the Warsaw Appellate Court on 13 February 1996, which considered that the applicant’s appeal had failed to advance any arguments capable of casting doubt on the lawfulness of the decision under appeal.

By a letter of 21 February 1996 the applicant again requested to be given access to the case file. On 28 February 1996 the case-file was forwarded by the prosecution to the Białystok detention centre and the applicant read it again on 1 March 1996.

On 7 March 1996 the Warsaw Regional Court held a session, concerning the applicant’s request for release on bail and the amount of bail to be paid. The applicant’s lawyer attended that session. The court fixed the bail at PLN 15,000. The applicant was released on the same day after bail had been paid.

On 26 July 1998 the applicant died of Marfan syndrome. On 20 August 1998 the Warsaw Regional Court discontinued the criminal proceedings against him.

B. Relevant domestic law

1. Preventive measures in criminal proceedings

At the relevant time, the authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Code of Criminal Procedure of 1969, which read as follows:

Article 210

"1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)."

Article 212

"1. A decision concerning preventive measures may be appealed [to a higher court] ....

2. A prosecutor’s order on detention on remand may be appealed to the court competent to deal with the merits of the case...."

These provisions were amended on 29 June 1995 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes, which entered into force on 4 August 1996. Pursuant to this amendment, detention on remand could be imposed only by a court order.

A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads:

“1. Detention on remand shall be imposed by a court order.

2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor’s request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case.

3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court."

At the relevant time the presence of the parties at court sessions other than hearings was regulated in Articles 87 and 88 of the Code of Criminal Procedure of 1969, which, insofar as relevant, provided:

Article 87

"The Court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera . ..."

Article 88

"A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it."

Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings.

The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered.

Access to the case file in the course of the investigations was governed by Article 143 § 3 of the Code of Criminal Procedure, which provided, in so far as relevant, that permission to have access to and make copies of the documents in the case file in the course of investigations was to be granted only with the consent of the authority conducting the investigations.

Under Article 277 of the Code, after preliminary investigations were completed and it was decided that there were grounds on which to prepare the bill of indictment, the prosecutor was to grant the suspect access to the case-file of the investigation, to inform him that he was entitled to avail himself of this right personally, and, likewise, to allow his lawyer to read the file.

2. Position of prosecutors under Polish law

At the material time the relations between the organs of the Polish State were set out in interim legislation, i.e. the Constitutional Act of 17 October 1992 ( Mała Konstytucja ). Article 1 of the Act laid down the principle of the separation of powers in the following terms:

"The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts."

Under Article 56 of the Act, the Council of Ministers ( Rada Ministrów ) was composed of the Prime Minister, Deputy Prime Ministers and Ministers.

In pursuance of Article 1 of the Act of 20 June 1985 ( Ustawa o sÄ…dach powszechnych ), the courts are entrusted with administration of justice in the Republic of Poland. The courts are courts of appeal, regional courts and district courts. Under Article 9 of the Law, the Supreme Court exercises supervisory jurisdiction over lower courts.

Article 1 of the Act of 20 June 1985 on Prosecuting Authorities ( Ustawa o Prokuraturze ) which determines general principles concerning the structure, functions and organisation of prosecuting authorities, at the material time read as follows:

"1. The prosecuting authorities shall be the Prosecutor General, prosecutors and military prosecutors. Prosecutors and military prosecutors shall be subordinate to the Prosecutor General.

2. The Prosecutor General shall be the highest prosecuting authority; his functions shall be carried out by the Minister of Justice."

Article 2 of the Act reads:

"The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences."

Under Article 7 of the Act, in carrying out his statutory duties, a prosecutor shall abide by the principles of impartiality and equality of citizens before the law. Pursuant to Article 8 of the Act, a prosecutor is independent in carrying out his or her duties, within the limits set out in this Article. A prosecutor shall abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. The requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order.

Chapter III of the Code of Criminal Procedure of 1969, applicable at the material time, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society", described a prosecutor as a party to criminal proceedings. According to all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case.

Under Article 3 of the Code of Criminal Procedure of 1969 “organs conducting criminal proceedings [including a prosecutor] shall examine and take into account evidence in favour of as well as against the accused.”

COMPLAINTS

1. The applicant complained under Article 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” as required by this provision. The prosecutor, under Polish law as it stood at that time, was also investigating the case and was to represent prosecution later in the judicial proceedings. He submitted that the prosecutor was a representative of the executive.

2. The applicant further complained under Article 5 § 4 of the Convention that in the proceedings concerning his detention he was never brought before a judge and that he did not have any access to the case-file in any proceedings in which his detention was examined. Thus he did not have any possibility of effectively arguing any points relied on by the prosecution in support of his detention.

THE LAW

1. The applicant complained under Article 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 as required by this provision. The prosecutor, under Polish law as it stood at that time, was also investigating the case and was to represent prosecution later in the judicial proceedings. He submitted that the prosecutor was a representative of the executive.

The Government did not comment on the complaint.

The applicant reiterated that the prosecutor, as his position was defined by Polish law applicable at the material time, could not be deemed to perform a judicial function and that, therefore, he should not have been vested with the power to order detention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complained under Article 5 § 4 that in the proceedings concerning his detention he was never brought before a judge. Therefore he did not have any possibility of effectively arguing any points relied on by the prosecution in support of his detention.

Moreover, he complains that he did not have access to the case-file in the proceedings in which the lawfulness of his detention was examined.

Article 5 § 4 reads:

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.

a) As regards the character of the proceedings, the Court first recalls that under Article 35 of the Convention it may only deal with the matter after all domestic remedies have been exhausted.

The parties did not dispute that the applicant exhausted relevant remedies available under Polish law.

b) As to the substance of this part of the application, the Government admit that during his detention on remand the applicant did not participate in the sessions concerning the review of his detention by the Warsaw Regional Court and Warsaw Court of Appeal. This was because the Code of Criminal Procedure, applicable at that time, did not allow for the presence of the detainee, or of his lawyer, at court sessions, where the lawfulness of his detention was examined.

The applicant reiterates that the requirements of Article 5 § 4 of the Convention were not met in that the proceedings concerning review of his detention were not adversarial.  Neither he nor his lawyer was entitled to be present before the court or to be acquainted with the arguments advanced by the prosecution in support of the applicant’s detention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

c) As regards access to the case-file of the investigations in the proceedings in which the lawfulness of the applicant’s detention on remand was examined, the Government submit that the applicant was served with written grounds of all decisions to bring charges against him. In these decisions the factual grounds were specified on which the charges against the applicant were based.

The Government argue that the applicant was eventually given access to the entire case file of the completed investigations. He had an opportunity to read it on 16, 17, 20 and 21 November 1995 and, later on, on 8, 12 and 15 December 1995. Moreover, it was only on 15 December 1995, after more than seven months of detention, that the applicant availed himself of his right to request access to the case-file, and he did it only in respect of  certain documents that had been taken out of the case-file in order to be transferred to the file of another criminal case. Later on, on 1 March 1996 the applicant was again allowed to read the entire case-file.

The Government conclude that the applicant’s access to the case-file in the proceedings concerning review of the lawfulness of his detention satisfied the requirements of Article 5 § 4 of the Convention.

The applicant admits that he was served with the documents specifying charges brought against him and with detailed written grounds of these charges, setting out factual reasons grounding suspicion against him. However, in the applicant’s argument, this was insufficient for the proceedings to meet the requirements of Article 5 § 4 of the Convention.

In view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial, such as the right to adversarial procedure. While national law may satisfy this requirement in various ways, whatever method is chosen should ensure that the detainee will be aware that observations have been filed by the prosecution and will have a real opportunity to comment thereon (see Schops v. Germany, no. 25116/94, 13 February 2001, § 44; Garcia Alva v. Germany, no . 23541/94, § 39; 13 February 2001; Lietzow v. Germany, no . 24479/94, 13 February 2001, § 44; Migoń v. Poland , no. 24244/94, 25 June 2002, § 79).

In the present case the applicant, who was arrested on 28 March 1995,  was served with the detention order shortly afterwards. Later on, he was served also with detailed written grounds of charges against him, referring to factual reasons grounding the suspicion. From 16 to 21 November the applicant had access to the entire case-file. On 15 December 1995 he requested that certain pages that had been taken out of it and transferred to the file of another case, be re-included in his file so that he could have access to them. That request was granted on 21 December 1995.

The Court notes that throughout the proceedings it was open to the applicant to request the prosecuting authorities, under Article 143 § 3 of the Code of Criminal Procedure governing access to the case-file of criminal proceedings, to grant him access to the case-file of the investigations. Had he submitted such request, the prosecuting authorities would have considered, within the limits of the discretionary power granted to them by that provision, whether and to what extent the applicant should be granted, for the purposes of the proceedings concerning the lawfulness of his detention, access to the case-file and to the evidence gathered during the investigations. There was nothing in the provisions of criminal procedure in force at that time, and in particular in Article 143 § 3 of the Code, to justify an assumption that such a request would be automatically refused or disregarded, and the applicant has not submitted convincing arguments to the contrary.

The Court observes that the applicant availed himself of this procedural right only after more than seven months of detention and after four sets of proceedings had been held to review the lawfulness of his detention. Moreover, he then requested to be granted access only to certain documents, which had previously been taken out of the case-file for the purpose of another set of the criminal proceedings. In addition, he did so after he had already been given effective access to the entire case-file of the investigations in November 1995.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible the applicant’s complaints that he was arrested by a public prosecutor who was not a “judge or an officer authorised by law to exercise judicial power”, and that the proceedings concerning his detention on remand were not truly adversarial;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President