CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 juillet 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 25874/94                       by Jacek KAWKA                       against Poland           The European Commission of Human Rights sitting in private on 7 July 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission         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 reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       18 December 1995 and the observations in reply submitted by the       applicant on 19 February 1996;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the parties, 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 25 March 1994 the Lódz Regional Court (S*d Wojewódzki) granted the Public Prosecutor's request for prolongation of the detention until 4 July 1994 in view of the need to take further expert opinions.         On 5 April 1994 the Lódz Regional Court rejected the applicant's request for release on the ground that it was the Public Prosecutor who was competent to deal with it.         On 11 April 1994 the case was transferred to the Zgierz District Prosecutor.         On 26 April 1994 the Lódz Court of Appeal (S*d Apelacyjny) complied with the applicant's request to amend the decision of 25 March 1994 and shortened the period for which the applicant's detention was authorised until 30 June 1994.         On 25 May 1994 the applicant requested his release.   The Lódz Regional Court and, upon appeal, the Court of Appeal, rejected his request.         On 15 June 1994 the applicant requested his release.         On 17 June 1994 the applicant underwent a psychiatric examination.         On   28 June 1994 the Lódz Regional Court, 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 and evidence had to be taken.         On 15 July 1994 an additional psychiatric opinion was submitted.         On 19 July 1994 the Lódz Court of Appeal upheld the decision of 28 June 1994.   The Court considered that the applicant's psychiatric examination had not been completed.         On 11 and 28 August 1994 the applicant requested to be released. His requests were subsequently rejected by the Lódz Regional Court.         On 1 September 1994 the applicant again requested his release.         On 5 September 1994 the applicant was informed that the charges against him had been in part modified and he was given access to the case-file.         On 21 September 1994 the applicant was served with a bill of indictment.   On the same day the Public Prosecutor submitted the indictment to the Lódz Regional Court.         On 4 October 1994 the Lódz Regional Court dismissed the applicant's request for release of 1 September 1994.   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.   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.         The Court fixed the date for the first hearing for 27 January 1995, but it was later adjourned.   Subsequently, on 14, 16, 27 and 31 March 1995 and on 6 April 1995 the applicant requested to be released, to no avail as the Lódz Regional Court dismissed all his requests.         On 5 June 1995 the Court convicted the applicant of attempted manslaughter and sentenced him to five years' imprisonment. The case is pending before the Lódz Court of Appeal.     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.       Under Article 299 para. 1 of the Polish Code of Criminal Procedure the President of the Court of its own motion or upon a request of a party may commit the case for an interlocutory decision to be taken by a court if he finds that the decision to be taken lies beyond his own authority, and in particular, if an order is to be issued concerning, inter alia, detention on remand.         Under Article 87 para. 1 of the Polish Constitution, the personal liberty of the citizens is guaranteed.   No one can be deprived of his or her liberty, except pursuant to laws in force.     COMPLAINTS         The applicant complains that the courts were arbitrary in their decisions relating to his detention.   He complains in particular 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 that he was never brought before a court competent to review the lawfulness of his detention on remand.   He further complains 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 neither he nor his lawyer was entitled to attend any hearing in review of the lawfulness of his detention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 22 August 1994 and registered on 7 December 1994.         On 17 May 1995 the Commission decided to communicate to the respondent Government the applicant's complaints under Article 5 of the Convention concerning the lawfulness of his detention and the procedure relating thereto, and to declare the remainder of the application inadmissible.         The Government's written observations were submitted on 18 December 1995, after an extension until 20 October 1995 of the time- limit fixed for that purpose had been granted.   The applicant replied on 19 February 1996.     THE LAW   1.     The applicant complains that the courts were arbitrary in their decisions relating to his detention.   He complains in particular 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 Commission has considered this complaint under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention which reads as follows:       "1.   Everyone has the right to liberty and security            of person.   No one shall be deprived of his            liberty save in the following cases and in            accordance with a procedure rescribed by law:            ...         c.    the lawful arrest or detention of a person            effected for the purpose of bringing him before            the competent legal authority on reasonable            suspicion of having committed an offence or when            it is reasonably considered necessary to prevent            his committing an offence or fleeing after            having done so;"         The Government submit that under Article 299 para. 1 of the Polish Code of Criminal Procedure the President of the Court of its own motion or upon a request of a party may commit the case for an interlocutory decision to be taken by a court if he finds that the decision to be taken lies beyond his own authority, and in particular, if an order is to be issued concerning, inter alia, detention on remand.   The applicant's case was committed for a court session in camera pursuant to this provision, following the applicant's request for release.   The decision of the Lódz Regional Court of 4 October 1994, in which the court dismissed the applicant's request for release of 1 September 1994, incorporated a decision to prolong the applicant's detention.   This decision, as well as the later decisions concerning the applicant's detention, taken after the date on which the indictment was transmitted to the Court, were taken in conformity with the Polish law, were not arbitrary and were taken within the framework of correct procedures provided for by the domestic law.         The applicant submits that after the expiry of the decision of 28 June 1994 which had prolonged his detention until 30 September 1994 there was no legal basis for his detention until 4 October 1994.   The Court issued the decision of 4 October 1994 only as a reaction to the applicant's request, but no decision would have been issued on the court's own motion, if the applicant had not requested the court to be released.   Thus, his detention from 1 to 4 October 1994 was based only on an assumption that it should be maintained in view of the indictment having been transmitted to the court.   This assumption was not based on any legal provision and as such was not in conformity with Article 87 para. 1 of the Constitution and with the Convention.         The Commission considers that the applicant's above complaint raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits. It follows that this part of the application cannot be dismissed as manifestly ill-founded within the meaning of Article 27 (Art. 27) of the Convention.   No other ground for declaring it inadmissible has been established.   2.     The applicant complains that he was never brought before a court competent to review the lawfulness of his detention on remand. He further complains 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 neither he nor his lawyer was entitled to attend any hearing in review of the lawfulness of his detention.       The Commission has examined this complaint under Article 5 para. 4   (Art. 5-4) of the Convention which reads as follows:         "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."         The Government submit that the applicant was arrested on 4 January 1994 and the decision of the Public Prosecutor to remand him in custody was issued on 6 January 1994.   It should be therefore considered that the applicant was brought promptly before the competent authority within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.         The Government further submit that under Polish law the decisions on detention on remand and on its extension can be appealed against to a court.   These appeals are examined at court sessions in camera.   It is true that not all the guarantees of fair hearing are applicable in taking these decisions.   However, the courts have an opportunity to examine whether the decisions concerned are lawful and justified.         The Government submit that the law does not provide for mandatory presence of the accused or his lawyer before the court when it is taking decisions on extension of the detention on remand or on the requests for release.   However, this does not necessarily entail a breach of the principle of equality of arms in such proceedings as the participation of the Public Prosecutor is optional and not obligatory. Further, the court examines the written submissions of the detained person and thus has detailed knowledge of his arguments.         As regards the present case the Government submit in particular that the Public Prosecutor was present at the Regional Court's in camera sessions at which the applicant's requests for release were examined.   However, the role of the Public Prosecutor at the hearings concerned should be regarded as that of guardian of public interest. The Public Prosecutor limited himself to supporting the arguments set out in the Regional Court's decisions to maintain the applicant in custody and did not submit any new arguments militating for the applicant's continued detention.   Thus, the proceedings were contradictory as both parties were free to present their arguments to the court deciding on the applicant's detention.         The applicant submits that the position of the Public Prosecutor in the in camera sessions of the court at which the prolongation of detention or the applicant's requests for release were considered did not differ in any way from the position of a party to the proceedings. Thus, the Public Prosecutor defended his position as to the continued detention.   It cannot be reasonably conceived that he would support the position of the detainee.   The written arguments of the detained person or the lawyer presented to the court cannot be considered as an equivalent to the personal appearance of the detainee or the lawyer. Should such position be adopted, it would ultimately result in acknowledging that the criminal proceedings, instead of being public and contradictory, should be non-public and written.       The Commission considers that the applicant's complaints with regard to the subsequent proceedings in review of the lawfulness of his detention raise serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits. It follows that this part of the application cannot be dismissed as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.             H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                    of the Commission