CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 juin 2001

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Ress , President ,   Mr   A. Pastor Ridruejo ,   Mr   L. Caflisch ,   Mr   J. Makarczyk ,   Mr   V. Butkevych ,   Mr   J. Hedigan ,   Mrs   S. Botoucharova , judges , and Mr   V.   Berger , Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 25 March 1996 and registered on 28   January 1997, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Zbigniew Dacewicz, is a Polish national, born in 1955 and living in Biała Podlaska.   He is represented by Mr   W.   Hermeliński, a lawyer practising in Warsaw, Poland.   The respondent Government are represented by Mr   K.   Drzewicki, of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 2 January 1996 the applicant was arrested by the police on suspicion of having committed burglary.   On 4 January 1996 he was brought before U. Ś.-O., a district prosecutor from the Biała Podlaska District Prosecutor’s Office ( Prokuratura Rejonowa ), charged with two counts of burglary and, under Article 210 §1 read together with Article 217 § 1 (2) of the Code of Criminal Procedure, detained on remand in view of the reasonable risk that he might obstruct the proper conduct of the proceedings.   On 5 January 1996 the applicant lodged a complaint with the Biała Podlaska District Court ( Sąd Rejonowy ), maintaining that his detention was unlawful because the detention order had been made by the prosecutor, who did not have the attributes of a “judge” required under Article 5 § 3 of the Convention. The court deemed the complaint to be an appeal against the detention order made by the prosecutor.   It examined it as such and dismissed it on 18   January 1996.   The court considered that the applicant should be detained as there was a reasonable risk that he might obstruct the proper conduct of the proceedings.   That decision was based on Article 209 read together with Article 217 § 1 (2) of the Code of Criminal Procedure. Subsequently, in January and February 1996, the applicant complained to the Biała Podlaska District Prosecutor and the Ombudsman ( Rzecznik Praw Obywatelskich ) that, after having been arrested, he had not been brought before a judge but before the prosecutor, who had not been authorised by law to exercise judicial power.   He maintained that the Polish authorities were failing to fulfil their obligations under Article 5 § 3 of the Convention. On 21 February 1996 the Biała Podlaska District Prosecutor replied to that complaint, stating that, under the provisions of the Code of Criminal Procedure, as they had stood at the material time, the prosecutor had been competent to detain him on remand; however, under the amendments to Polish criminal legislation, which would enter into force on 4 August 1996, only the courts of law would be competent to impose detention on remand. On 7 March 1996 the Ombudsman replied to the applicant’s complaint, explaining that, under Article 210 of the Code of Criminal Procedure a prosecutor was competent to detain a suspect on remand at the investigative stage of criminal proceedings, whereas the courts were competent to impose detention in the court proceedings. On 27 March 1996 the Biała Podlaska District Prosecutor lodged a bill of indictment with the Biała Podlaska District Court. On 23 June 1996 the Biała Podlaska District Court gave judgment and convicted the applicant of dealing with stolen goods.   On 17 July 1996 the applicant complained to the Supreme Court ( Sąd Najwyższy ) that, after having been arrested, he had not been brought before a judge but before the Biała Podlaska District Prosecutor.   On 30 July 1996 the Case-law Department of the Supreme Court replied to the applicant’s complaint in the following way: “ ... Under Article 210 § 1 of the Code of Criminal Procedure, a court imposes preventive measures after a bill of indictment has been lodged with that court; beforehand - a prosecutor [imposes such measures].   It thus follows that your doubts as to the imposition of detention [in your case] are unreasonable. Article 5 § 5 of the Convention clearly states that everyone detained shall be brought promptly before a judge – or other officer authorised by law to exercise judicial power.   Under [the relevant] legislation, a prosecutor is such an officer. ...” B.     Relevant domestic law and practice 1.     Imposition of detention on remand At the material time, legal provisions governing detention on remand were contained in Chapter XXIV of the Code of Criminal Procedure of 19   April 1969, entitled “Preventive measures” ( Środki zapobiegawcze ).   That Code is no longer in force as it was repealed and replaced by the so-called “New Code of Criminal Procedure” of 6 June 1997 which entered into force on 1 September 1998. Article 209 of the Code of Criminal Procedure of 1969 provided: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force) at the investigative stage of criminal proceedings detention on remand was imposed by a prosecutor. Article 210 §§ 1 and 2 of the Code of Criminal Procedure (in the version applicable at the material time) stated: “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.     A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect.   Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect.” A detainee could, under Article 212 § 2 of the Code, appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the court dealing with his appeal. 2.     Legislative, judicial and executive branches of the State At the material time the relations between the authorities of the Polish State were set out in interim legislation, the so-called “Mini-Constitution” ( Mała Konstytucja ), i.e. the Constitutional Act of 17 October 1992.   Article 1 of the Act affirmed the principle of the separation of powers in the following terms: “The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts.” 3.     Judicial and prosecution authorities The Law of 20 June 1985 (as amended) on the Structure of Courts of Law ( Ustawa o ustroju sądów powszechnych ) in the version applicable at the material time provided, in Section 1: “1.     Courts of law shall dispense justice in the Republic of Poland. 2.     Courts of law shall be courts of appeal, regional courts and district courts.” Section 9 of the Law provided: “The Supreme Court shall exercise supervisory jurisdiction over [lower] courts of law.” The Law of 20 June 1985 (as amended) on Prosecution Authorities ( Ustawa o Prokuraturze ) set out general principles concerning the structure, functions and organisation of prosecution authorities. Section 1 of the Law, in the version applicable at the material time, stipulated: “1.     The prosecution authorities shall be the Prosecutor General, prosecutors and military prosecutors.   Prosecutors and military prosecutors shall be subordinate to the Prosecutor General. 2.     The Prosecutor General shall be the highest prosecution authority; his functions shall be carried out by the Minister of Justice.” Section 2 of the Law, setting out the general duties of prosecutors, stated: “The prosecution authorities shall ensure the observance of the rule of law and the prosecution of criminal offences.” Section 3 § 1 of the Law, setting out the detailed duties of prosecutors, read, in so far as relevant: “1.     The Prosecutor General and prosecutors subordinate to him shall carry out the[ir] duties set out in Article 2 by [the following means]: (1)     carrying out and supervising the carrying out of criminal investigations and performing prosecution functions before the courts; (2)     submitting civil claims in criminal and civil cases and taking part in civil proceedings ... if the public interest [or the need to ensure the observance of] the rule of law or citizens’ rights so require; (3)     taking [the appropriate] action provided by law in order to secure the correct and uniform application of the law in judicial, administrative ... or any other proceedings; (4)     supervising the enforcement of judgments given in criminal cases, decisions on detention on remand and other decisions on deprivation of liberty; (5)     carrying out research into crime, the prevention of crime and combating crime; (6)     appealing to the relevant court against any administrative decision taken in breach of the law, and participating in proceedings relating to the lawfulness of such decisions; (7)     co-ordinating the crime-prevention activities of other State authorities; (8)     co-operating with [other State authorities] and non-governmental organisations in order to prevent crime and other breaches of the law; (9)     giving advisory opinions on draft legislation; (10)     taking [any other] action provided for by statute.” Section 7 of the Law stated: “In carrying out his statutory duties, a prosecutor shall follow the principles of impartiality and of equal treatment of citizens.” Section 8 of the Law provided, in so far as relevant: “1.     In carrying out his duties, a prosecutor shall be independent; the limits of his independence are set out in paragraph 2 hereof. 2.     A prosecutor shall abide by the instructions, guidelines and orders of his superiors.   However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. Requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order.” Section 11 of the Law provided, in so far as relevant: “Prosecutors of appeal, regional and district prosecutors shall be appointed by the Prosecutor General.” 4.     Parties to criminal proceedings under the 1969 Code of Criminal Procedure Chapter III of the Code, entitled “Parties, defence counsel, representatives of victims and representative of society” ( Strony, obrońcy, pełnomocnicy i przedstawiciel społeczny ) described a prosecutor as a party to criminal proceedings.   Under all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in criminal proceedings.   In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case. Under Article 3 of the Code of Criminal Procedure, as it stood at the material time, “...authorities conducting criminal proceedings [including a prosecutor] shall examine and take into account exonerating as well as incriminating evidence”. There was no legal obstacle to prosecutors performing investigative and prosecution functions concurrently.   According to domestic practice – which, at the material time, was a very frequent one and which reflected the general principle of achieving a maximum of efficiency at the investigative stage – the same prosecutor made a detention order, conducted the relevant investigation, drew up a bill of indictment and represented (or could be called upon to represent at any time) the prosecution before the trial court. COMPLAINT The applicant complained under Article 5 § 3 of the Convention that, after having been arrested, he had not been brought promptly before a judge or other officer authorised by law to exercise judicial power but before the investigating prosecutor, who had not had attributes of a “judge” required under the Convention. THE LAW The applicant complained that after having been arrested he had not been brought promptly before a “judge” and alleged a breach of Article 5 § 3 of the Convention which, in its relevant part, reads: “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 ... .” The applicant, relying on a number of the Court’s judgments (on, inter alios , the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, § 43; the Pauwels v. Belgium judgment of 26 May 1988, Series A no. 135, p. 18, § 38; and the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3298, §   146), maintained that there could be no doubt that in the light of the relevant jurisprudence the prosecutor who had detained him on remand had not offered guarantees of independence from the executive and the parties, as required under Article 5   §   3. The Government, for their part, submitted that, given the position of a prosecutor in criminal proceedings and the fact that prosecutors were under a general legal duty to remain impartial in such proceedings, the application should be rejected as being manifestly ill-founded. The Court, having regard to the criteria established in its case-law in respect of a “judge” or “officer authorised by law to exercise judicial power” for the purposes of Article 5 § 3 and, more particularly, to its judgment in the case of Niedbała v. Poland (no. 27915/95, §§ 48-57, 4 July 2000) considers that the examination of the merits of the case is required. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case.   Vincent Berger   Georg Ress   Registrar   President