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. 27915/95                       by Maciej NIEDBALA                       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 5 February 1995 by Maciej NIEDBALA against Poland and registered on 20 July 1995 under file No. 27915/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to:   -      the observations submitted by the respondent Government       on 3 June 1996 and the observations in reply submitted by the       applicant on 28 June 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Polish citizen born in 1969, is serving a prison sentence in Jastrz*bie Zdrój prison.         The facts of the case, as submitted by the parties, may be summarised as follows:   a)     On 31 August 1994 the applicant was arrested.   On 2 September 1994 the Rybnik District Prosecutor remanded him in custody on suspicion of theft of a car.         The applicant appealed to the Katowice Regional Court.   On 12 September 1994 the Court dismissed the appeal, finding that there was sufficient evidence to establish that the applicant might have committed the offence concerned and the reasons for which the applicant had been remanded in custody had not ceased to exist.         On 21 September 1994 the Rybnik District Public Prosecutor prolonged the applicant's detention until 30 November 1994, considering that the evidence gathered in the investigations strongly indicated that the applicant had committed the offence in question.   An expert opinion had still to be taken.         On 10 October 1994 the Katowice Regional Court dismissed the applicant's appeal against this decision, considering that the evidence strongly indicated that the applicant had committed the offence in question.   Further time-consuming evidence still had to be taken, which justified prolongation of the detention.         On 24 October 1994 the Rybnik District Public Prosecutor refused to release the applicant, considering that the investigations had not been completed, further forensic evidence had to be taken and the reasons for which the detention had originally been decided had not ceased to exist.         On 15 November 1994 the Katowice Regional Prosecutor dismissed the applicant's appeal against this decision.   The Prosecutor considered that the evidence strongly indicated that the applicant had committed the offence in question.   The reasons for which the detention had been decided had not ceased to exist.   The investigations should be continued and this required that the applicant remained in detention.         On 9 March 1995 the applicant filed a request with the Katowice Regional Court to have the lawfulness of his detention reviewed as provided for by Article 5 para. 4 of the European Convention of Human Rights.   This request remained unanswered.         On 20 March 1995 the Katowice Regional Court convicted the applicant of possessing stolen goods and ordered that he be released from detention on remand.   The applicant and the Public Prosecutor filed appeals against this judgment.         On 21 April 1995 the applicant was rearrested and the Racibórz District Public Prosecutor decided to put the applicant in detention on remand on suspicion of attempted theft of a car on 20 April 1995. The applicant appealed to the Racibórz District Court, invoking, inter alia, Article 5 para. 3 of the Convention.   On 27 April 1995 the Court dismissed the appeal, considering that the detention on remand had been ordered in accordance with the law.   Article 210 para. 1 of the Code of Criminal Procedure provides that it is the Public Prosecutor who is competent to decide on detention on remand.         On 5 September 1995 the Katowice Court of Appeal amended the impugned judgment in that it found that the applicant was guilty of aiding in selling stolen goods and sentenced him to two years and six months' imprisonment and a fine.   b)     On 2 November 1994 the applicant wrote a letter to the Ombudsman, complaining about the alleged irregularities in the criminal proceedings against him and about having allegedly been assaulted by the police on his arrest.   The prison authorities transferred this letter to the Rybnik District Prosecutor.   On 23 November 1994 the Rybnik District Prosecutor informed the applicant that the letter to the Ombudsman had been transferred to the Tychy District Public Prosecutor, for the purpose of investigating the alleged assault.   It was later forwarded to the Ombudsman.   The letter reached the Ombudsman's office on 27 December 1994 and was registered there under file number RPO 174886/94/II.         In a reply to the applicant's letter, on 12 June 1995 the Ombudsman informed the applicant that the ratification of the Convention did not automatically entail derogation of the provisions of the Polish law relating to the authorities competent to decide on deprivation of liberty.   Thus the courts and prosecutors were still obliged to apply domestic law currently in force in this respect.   The relevant amendments to the Code of Criminal Procedure had already been adopted by the parliament, but they had not yet entered into force. The current public debate about the possible direct applicability of the Convention in the domestic legal order was of a purely theoretical nature.   The decisions concerning the applicant's detention were therefore in accordance with the law.   Relevant domestic law         The authorities competent to decide on detention of remand are provided for in Articles 210 and 212 of the Polish Code of Criminal Procedure, which read as follows:   <Translation>:         Article 210:         "1. Preventive measures [including detention on remand] are       imposed by the Court; before a bill of indictment is sent to the       Court, they are imposed by the prosecutor (...)."         Article 212:         "1. The decision concerning the preventive measures may be       appealed [to the higher court] (...).         2. The prosecutor's order on detention on remand may be appealed       to the Court competent to consider the criminal proceedings at       issue. (...)"   <Polish>         Artykul 210:         "1. Srodki zapobiegawcze stosuje s*d, a przed wniesieniem aktu       oskarzenia - prokurator. (...)"         Artykul 212:         "1. Na postanowienie w przedmiocie srodka zapobiegawczego       przysluguje zazalenie [do s*du wyzszej instancji] (...).       2. Na postanowienie prokuratora o zastosowaniu tymczasowego       aresztowania przysluguje zazalenie do s*du wlasciwego do       rozpoznania sprawy. (...)"         The presence of the parties at the court sessions other than hearings is regulated in Articles 87 and 88 of the Polish Code of Criminal Procedure which, insofar as relevant, provide:   <Translation>:         Article 87:         "The Court pronounces its decisions at a hearing if the law provides    for it; if this is not the case, at a court session in camera.           (...)"         Article 88:         "A court session in camera may be attended by a public prosecutor       (...); other parties may attend if the law provides for it."   <Polish>         Artykul 87:         "S*d orzeka na rozprawie w wypadkach przewidzianych przez ustaw*,       a w innych - na posiedzeniu. (...)"         Artykul 88:         "W posiedzeniu moze wzi*c udzial prokurator (...); inne strony       mog* wzi*c udzial w posiedzeniu, jezeli ustawa to przewiduje."     COMPLAINTS         The applicant complains under Article 5 para. 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 applicant further complains that he was never brought before a judge competent to review the lawfulness of his detention.         He further complains under Article 8 of the Convention that his letter to the Ombudsman was intercepted by the Rybnik Public Prosecutor and never sent to the addressee.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 5 February 1995 and registered on 20 July 1995.         On 29 February 1996 the Commission decided to communicate the applicant's complaint that the decision to remand him in custody was issued by the Public Prosecutor and that he was never brought before the court in the proceedings concerning determination of the lawfulness of his detention, and about the alleged interference with his correspondence.         The Government's written observations were submitted on 3 June 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 28 June 1996.         On 3 December 1996 the Commission granted the applicant legal aid.   THE LAW   1.     The applicant complains under Article 5 para. 3 (Art. 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.         Article 5 (Art. 5) of the Convention, insofar as relevant, provides:         "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 prescribed 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 (...);         3.    Everyone arrested or detained in accordance with            the provisions of paragraph 1 (c) of this            Article shall be brought promptly before a judge            or other officer authorised by law to exercise            judicial power and shall be entitled to trial            within a reasonable time or to release pending            trial.   Release may be conditioned by guarantees            to appear for trial."         The Government submit that under Polish law the function of the Public Prosecutor is to safeguard the rule of law and to prosecute the offenders.   The General Prosecutor, who is also the Minister of Justice, is a superior of all Prosecutors, competent to take all decisions within the scope of their tasks as defined by law and to issue instructions to them.   He or she is competent to request the Constitutional Court to pronounce decisions on compatibility of laws with the Constitution.   The actions of the Public Prosecutors should be governed by the principle of impartiality and equality of citizens before the law.    The Public Prosecutors are independent in carrying out their functions, but are bound by instructions and orders of their hierarchical superiors.         The applicant submits that the Government's submissions are limited to information about the position of the Public Prosecutor under domestic law.   He maintains that the Government failed to address the crucial issue as regards the compliance of his arrest with the requirements of Article 5 para. 3 (Art. 5-3) of the Convention.   The Prosecutor is neither a judge nor an officer authorised to exercise judicial power.   On both occasions the applicant was arrested by the Public Prosecutor.   On 9 March 1995 he requested the Katowice Regional Court to establish whether his arrest of 2 September 1994 was compatible with the Convention.   This request remained unanswered.   On 27 April 1995 the Racibórz District Court declared that the decision to remand him in custody of 20 April 1995 was in accordance with the Polish Code of Criminal Procedure.   It failed to rule on its compatibility with the Convention.   The applicant concludes that the arrest by the Public Prosecutor amounted to a breach of Article 5 para. 3 (Art. 5-3) of 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 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.   2.     The applicant further complains that he was never brought before a judge competent to review the lawfulness of his detention.         The Commission has examined this complaint under Article 5 para. 4 (Art. 5-4) of the Convention, which states:         "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 decisions on detention on remand and on its prolongation 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 those proceedings. However, the courts have an opportunity to examine whether the decisions concerned are lawful and justified.         The Government further 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 prolongation of detention on remand. However, this does not necessarily entail a breach of the principle of equality of arms in such proceedings as the participation of the Prosecutor is only optional.   Further, the court examines the written appeal of the accused and thus has detailed knowledge of his arguments. Moreover, the Prosecutor plays a double role in such proceedings, not only supporting the prosecution, but also representing the public interest.         As regards the present case the Government submit in particular that the applicant appealed against the Rybnik Public Prosecutor's decisions to prolong his detention to the Katowice Regional Court.   The Court therefore knew the applicant's arguments as they were presented in his appeals.   The role of the Public Prosecutor at the hearings should be regarded as that of guardian of public interest.   Moreover, the Katowice Regional Prosecutor who participated in these hearings supervised the investigations run by the Rybnik District Prosecutor.         As regards the court session in camera held on 27 April 1995, at which the Racibórz District Court examined the applicant's appeal against the decision of 20 April 1995 to remand him in custody, the Public Prosecutor was not present.   Therefore the principle of equality of arms was complied with.         The Government conclude that in the proceedings concerning the applicant's detention on remand the guarantees of Article 5 para. 4 (Art. 5-4) were complied with.         The applicant submits that the fact that he was never brought before the court in any of the proceedings concerning the determination of the lawfulness of his detention amounted to a breach of Article 5 para. 4 (Art. 5-4) of the Convention and that the principle of equality of arms was not complied with in the proceedings concerning his detention.         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 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.   3.     The applicant complains under Article 8 (Art. 8) of the Convention that his letter to the Ombudsman was intercepted by the Rybnik Public Prosecutor and never sent to the addressee.         Article 8 (Art. 8) of the Convention, insofar as relevant, reads:         "1.   Everyone has the right to respect for his (...)            correspondence.         2.    There shall be no interference by a public            authority with the exercise of this right except            such as is in accordance with the law and is            necessary in a democratic society in the            interests of national security, public safety or            the economic well-being of the country, for the            prevention of disorder or crime, for the            protection of health or morals, or for the            protection of the rights and freedoms of            others."         The Government submit that under Polish law the rights of persons detained on remand as regards their correspondence are set out in the relevant sections of the Code of Execution of Sentences and Section 33 of the Rules on Detention on Remand.   They provide that the correspondence of persons detained on remand is subject to censorship by the authority conducting the criminal proceedings, i.e. either the Public Prosecutor or the Court, depending on the stage of the proceedings.         They further submit that in the present case, the applicant wrote a letter to the Ombudsman on 2 November 1994, complaining about the alleged irregularities in the criminal proceedings against him and about having allegedly been assaulted by the police at his arrest.   The prison authorities transferred this letter to the Rybnik District Prosecutor.   On 23 November 1994 the Rybnik District Prosecutor informed the applicant that the letter to the Ombudsman had been transferred to the Tychy District Public Prosecutor, for the purpose of investigating the alleged assault.   After being read, it was forwarded to the Ombudsman.   The letter reached the Ombudsman's office on 27 December 1994 and was registered there under file number RPO 174886/94/II. They rely in this respect on results of an internal inquiry of the Katowice Regional Prosecutor, summarised in his letter of 23 March 1996 to the Government.   They conclude that there was no violation of Article 8 (Art. 8) of the Convention.         The applicant submits that on 2 November 1994 he gave three letters to the Zabrze prison administration, two addressed to the Katowice Regional Prosecutor and one to the Ombudsman.   It is true that his correspondence to the Ombudsman was registered with the latter on 27 December 1994 under the file number referred to by the Government. However, there is no proof that it was the letter of 2 November 1994 as on 28 November 1994 he sent a next letter to the Ombudsman and all his further correspondence with him was registered under the same number.   He concludes that the Government's submissions as to the facts are incorrect.         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 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