CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 octobre 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. 33885/96                       by Eryk KAWKA                       against Poland           The European Commission of Human Rights sitting in private on 20 October 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                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV                Mr     M. de SALVIA, 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 1997 by Erik KAWKA against Poland and registered on 18 November 1996 under file No. 33885/96;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant, a Polish citizen born in 1968, is a worker and resides in Jaworzno, Poland.   He is currently detained in Racibórz prison.         The facts of the case, as submitted by the applicant, may be summarised as follows:   Particular circumstances of the case   a.     Imposition of detention on remand and further appeal proceedings         On 13 January 1996 the applicant was arrested by policemen and brought before the Gliwice District Prosecutor (Prokurator Rejonowy). On the same day, the prosecutor charged the applicant with robbery and detained him on remand in view of the reasonable suspicion that the applicant had committed the offence in question and the serious nature of that offence.   The applicant appealed against the detention order to the Gliwice District Court (S*d Rejonowy) which, on an unspecified date, upheld the contested decision.   The applicant did not take part in the court session concerning the examination of his appeal.   The Gliwice District Prosecutor attended the session.   b.     Trial         On an unspecified date the Gliwice District Prosecutor lodged a bill of indictment with the Gliwice District Court.         On 17 June 1996 the Gliwice District Court convicted the applicant of robbery and sentenced him to four years and six months' imprisonment and three years' deprivation of his civic rights.   The court based its findings of fact on the evidence of a victim who had been intoxicated at the time he was robbed.   However, the court found that his statements were credible in view of the fact that he had immediately called a police station and described all the relevant events in detail.   In particular, he had reported the name of the perpetrator as "Kapka" or "Kapko" which, in the court's view, could not have been a coincidence.         On 17 September 1996 the Katowice Regional Court (S*d Wojewódzki), upon the applicant's appeal, upheld the judgment of the court of first instance and the reasons given therefor.         Subsequently, on an unspecified date, the applicant filed a notice of cassation appeal with the Katowice Regional Court and requested that court to grant him legal assistance in the cassation proceedings.         On 15 January 1997 the Katowice Regional Court granted the applicant's request in view of the fact that throughout the entire trial he had been represented by an officially-appointed lawyer, due to his partial deafness.         The cassation proceedings are currently pending before the Supreme Court (S*d Najwyzszy).   Relevant domestic law and practice   1.     Imposition of detention on remand         Until 4 August 1996 (i.e. the date on which the Law on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force) detention on remand was imposed by an investigating prosecutor.   A detainee could appeal to the court competent to deal with his case against an order for his detention; however, he was not entitled to be brought before a judge, whereas the court examined his appeal in the presence of a prosecutor.         Section 210 para. 1 of the Code of Criminal Procedure stated (in the version applicable at the material time):         "1.   Preventive measures shall be imposed by the court; before       a bill of indictment has been lodged with the competent court,       the measures shall be imposed by the prosecutor."   2.     Prosecutor         Chapter III of the Code of Criminal Procedure entitled: "Parties to proceedings, defence counsel, representatives of the victims and representatives of society" describes a prosecutor as a party to criminal proceedings.   According to all the relevant provisions of the Code read together, a prosecutor performs investigative and prosecuting functions in the course of criminal proceedings.   As regards the general position of the prosecuting authorities, at the material time they were not independent from the executive since the Minister of Justice carried out the duties of Prosecutor General.     COMPLAINTS   1.     The applicant complains under Article 5 para. 3 of the Convention that he was detained on remand by a prosecutor who was neither a judge nor another officer authorised by law to exercise judicial power.   2.     He also complains under Article 5 para. 4 of the Convention that his appeal against the detention order of 13 January 1996 was examined by the Gliwice District Court in an unfair and "stereotyped" fashion as he was not allowed to participate in that court's session.   3.     Under Article 6 of the Convention he complains:   a)     that the courts dealing with his case lacked impartiality and incorrectly assessed the evidence presented during his trial, which resulted in his unjustified conviction;   b)     that the authorities failed to appoint a defence lawyer for him at the initial stage of the proceedings;   c)     that he did not have adequate time to defend himself.     THE LAW   1.     The applicant complains under Article 6 (Art. 6) of the Convention that the courts dealing with his case lacked impartiality and incorrectly assessed the evidence presented during his trial, which resulted in his unjustified conviction.   He also submits that the authorities failed to appoint a defence lawyer for him at the initial stage of the proceedings and that he did not have adequate time to defend himself.         However, the Commission notes that the criminal proceedings against the applicant have not yet been terminated since, following his cassation appeal, they are pending before the Supreme Court.   Thus, the Commission finds that, at this stage, it cannot speculate as to how the applicant's trial will continue, in particular whether, and if so to what extent, his arguments relating to the substance of these complaints will be considered by the Supreme Court.   The complaints are, therefore, premature.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also complains under Article 5 paras. 3 and 4 (Art. 5-3, 5-4) of the Convention that he was detained on remand by a prosecutor who was neither a judge nor another officer authorised by law to exercise judicial power and that he was not allowed to participate in the Gliwice District Court's session relating to the lawfulness of his detention on remand.         The Commission considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of these complaints to the respondent Government.           For these reasons, the Commission,         DECIDES TO ADJOURN the examination of the applicant's       complaints under Article 5 para. 3 of the Convention that       he was detained on remand by a prosecutor who was neither       a judge nor another officer authorised by law to exercise       judicial power and under Article 5 para. 4 of the       Convention that he was not allowed to participate in the       Gliwice District Court's session relating to the lawfulness       of his detention on remand;         unanimously,       DECLARES INADMISSIBLE the remainder of the application.             M. de Salvia                         S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission