DISSENTING OPINION OF MR M.A. NOWICKI

AS REGARDS ARTICLE 5 PARA. 1 ( C ) OF THE CONVENTION,

JOINED BY MM J.-C. GEUS, I. CABRAL BARRETO, M. VILA AMIGÓ

AND MS. HION

We cannot find that, in the circumstances of the case, there has been no violation of Article 5 para. 1 ( c) of the Convention. Our reasons for not agreeing with the majority are as follows:

When considering whether the arrest and detention of the applicant was carried out in accordance with Polish law, we recall that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since failure to comply with domestic law entails a breach of Article 5 para. 1, the Commission can and should exercise a certain power of review in this matter (see Eur. Court HR, the Benham v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 753, para. 41). Under the Polish Code of Criminal Procedure as it stood at the material time, the provisions governing detention on remand set out the margin of discretion as to maintaining a specific preventive measure. Detention on remand was regarded as the most extreme measure among the preventive measures. Moreover, the Code, in its Article 213, laid down the principle that it should not be imposed or maintained if more lenient measures were adequate and sufficient. We have further taken note of the contents of Article 218 of the Code of Criminal Procedure as applicable at the material time. Pursuant to this Article, detention on remand should not be imposed if it involved danger to life or limb, or entailed particular hardship for a suspect or his family. The domestic courts were thus obliged to consider ex officio whether such circumstances arose in a given individual case.

In the present case, the domestic authorities, justifying the applicant’s detention during the period concerned, invoked only the indication, supported by the evidence, that the applicant had committed a serious offence (see para. 20 of the Report). Also, this decision was, in our view, curiously succinct.  The Government argue that the seriousness of the offence with which the applicant was charged was tantamount to “special considerations” within the meaning of Article 218 of the Code of Criminal Procedure, which militated for the imposition of the detention. However, we were struck by the fact that during the period under examination the domestic authorities in fact failed to examine the applicant’s detention under that provision of the Code. Consequently, they did not take into consideration any circumstances relevant for the assessment of the applicant’s detention under Article 218 of the Convention, either in respect of a possible danger to life or limb, or of particular hardship that the detention might have entailed for the detainee, or as regards any “special considerations” within the meaning of the provision, referred to by the Government, of such importance as to justify the detention.

Taking into account the arguments advanced in the dissenting opinion of those who were in the minority as regards the violation of Article 3 of the Convention, and also considering that the authorities failed to assess the applicant’s detention under Article 218 of the Code of Criminal Procedure in so far as it allowed for the appraisal whether the detention on remand caused him a particular hardship, we conclude that the applicant’s detention cannot be said to have been “lawful” within the meaning of Article 5 para. 1 (c) of the Convention.

(Or. English)