Communicated on 27 October 2014

FOURTH SECTION

Application no. 6168/12 Marco MIKL against Poland lodged on 17 January 2012

STATEMENT OF FACTS

The applicant, Mr Marco Mikl , is a German national, who was born in 1978 and lives in Zabrze .

A. The circumstances of the case

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

On 11 August 2011 at 1 a.m. the applicant ’ s car was stopped by the p olice in Opole. At 2.10 a.m. the car was searched on suspicion that t he applicant was transporting objects the possession of which was prohibited . In the course of the search his passport and driving licence were seized. Apparently no prohibited objects were found.

At 4 a.m. the same day the applicant was arrested. According to the arrest record the basis for the arrest was Section 101 (1) of the Aliens Act of 13 June 2003 ( Ustawa o cudzoziemcach ) “ as the re was a suspicion that the applicant did not dispose of a valid identification document and stayed on the territory of Poland illegally” .

The applicant was released on 12 August 2011 at an unspecified time.

Subsequently, he lodged an appeal against his arrest to the Opole District Court.

On 5 January 2012 the Opole District C ourt dismissed his appeal. The court first noted that the Opole District Prosecutor had supervised prosecution proceedings concerning the alleged forgery of a driving licence by the applicant and the alleged illegal possession of arms by him. The proceedings as regards both issues had been discontinued on 15 August 2011 before having been officially instituted ( umorzono dochodzenie przed wszczęciem ) on the ground that no crime was committed. The domestic court first cited some provisions of the Code of Criminal Proceedings relating to possible grounds of arrest, in particular Article 244 § 1 and found that:

“ the police officers arrested the applicant for a reason, lawfully and in accordance with the relevant procedure. There was a reasonable fear that the applicant would obstruct criminal proceedings, that is, there was a reasonable risk that he would abscond, thus he was arrested in accordance with Article 244 of the Code of Criminal Proceedings. The arrest record was properly prepared and the applicant was accordingly informed [of his rights]”

B. Relevant domestic law and practice

Article 244 § 1of the Code of Criminal Proceedings provides as follows:

“ § 1. The Police shall be authorised to arrest a suspected person, if there is good reason to suppose that he has committed an offence, and it is feared that such a person may go into hiding or destroy evidence of his offence or if his identity could not be established or there is a premise to carry proceedings against such person in an expedited manner. ”

Section 101 (1) of the Aliens Act of 13 June 2003 ( Ustawa o cudzoziemcach ) in force at the relevant time provided as follows:

“ An alien in relation to whom any circumstances that justify rendering of the decision on expulsion apply or an alien who evades carrying out obligations specified in the decision on expulsion, may be detained for a period not exceeding 48 hours.”

COMPLAINT

The applicant complains under Article 5 of the Convention about the circumstances of his arrest and proceedings following his arrest .

QUESTION TO THE PARTIES

Was the applicant ’ s arrest on 11 August 2011 in accordance with the purpose of Article 5 of the Convention, namely to protect the individual from arbitrariness? Reference is made to the arrest record and to the subsequent decision by the Opole District Court of 5 January 2012 where the court, among other things, relied on a different basis of arrest than the police officers who had arrested the applicant.