Information Note on the Court’s case-law 26

January 2001

Kawka v. Poland - 25874/94

Judgment 9.1.2001 [Section I]

Article 5

Article 5-1

Lawful arrest or detention

Continuation of detention on remand under a practice without any legal basis: violation

Facts : The applicant was arrested in January 1994 and remanded in custody. On 25 March, at the prosecutor's request, the Regional Court prolonged the detentio n. The court rejected two requests for release and later prolonged the applicant's detention until 30 September. This decision was confirmed on appeal. The indictment was lodged on 21 September. The applicant had again requested his release on 1 September, and this request was rejected by the Regional Court on 4 October. Both the applicant's father and his lawyer appealed against this decision, submitting that the detention had expired on 30 September without any further decision prolonging it. However, the appeal was dismissed, the court pointing out that the prescribed time-limits ceased to apply once the indictment had been lodged. This was the practice at the time. The applicant's subsequent requests for release were also rejected, and he was ultimately convicted. At the relevant time, neither a detainee nor his lawyer was entitled to attend hearings relating to prolongation of detention, whereas the prosecutor was. Moreover, there was no requirement that the prosecutor's submissions be communicated to th e detainee or his lawyer.

Law : Article 5 § 1 (c) – The sole basis for the applicant's detention between 1 and 4 October was the fact that the bill of indictment had been lodged. The Court has already found in its Baranowski v. Poland judgment of 28 March 2 000 that this is an insufficient legal basis for detention.

Conclusion : violation (unanimously).

Article 5 § 4 – It is not disputed that at the time neither the applicant nor his lawyer could attend hearings concerning the detention, whereas the prosecutor could, nor that the applicant had no opportunity to comment on the prosecutor's submissions. This is not consistent with the principle of equality of arms.

Conclusion : violation (unanimously).

Article 41 – The Court considered that the finding of a violation of Article 5 § 4 constituted sufficient just satisfaction in that respect, since it could not speculate as to whether he would have been detained if the guarantees of that provision had been respected. With regard to the violation Article 5 § 1, it awarded him PLN 4,000.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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