AS TO THE ADMISSIBILITY OF
Application No. 32220/96
by Jacek CHOJAK
against Poland
The European Commission of Human Rights sitting in private on
23 April 1998, the following members being present:
MM S. TRECHSEL, President
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
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 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 20 December 1995
by Jacek CHOJAK against Poland and registered on 11 July 1996 under
file No. 32220/96;
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 April 1997 and the observations in reply submitted by the
applicant on 18 June 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1971, is a bricklayer
currently detained in Lowicz prison.
The facts of the case, as submitted by the parties, may be
summarised as follows:
A. Particular circumstances of the case
On 1 June 1995 the Trzebnica District Prosecutor (Prokurator
Rejonowy) issued a warrant to search for the applicant by a wanted
notice. This was due to the fact that the applicant, who was suspected
of committing robbery, had apparently gone into hiding. On 13 June
1995 the applicant was arrested by the police.
On 14 June 1995 the Trzebnica District Prosecutor charged the
applicant with robbery and detained him on remand for three months in
view of the reasonable suspicion that he had committed the offence with
which he had been charged.
On 11 September 1995 the Trzebnica District Prosecutor lodged a
bill of indictment with the Wroclaw Regional Court (S*d Wojewódzki).
The applicant was indicted of robbery and common assault committed
together with two accomplices.
On 5 October 1995 the applicant requested the Wroclaw Regional
Court to release him. On 13 October 1995 the court dismissed his
request. He did not appeal against this decision.
From 21 November to 1 December 1995 the applicant was serving
another sentence since, in the meantime, a fine previously imposed on
him had been converted into ten days' imprisonment.
On 5 December 1995 the applicant requested the Wroclaw Regional
Court to release him. He asserted that his prolonged isolation from
his family argued for his release and that as he had confessed his
guilt he had clearly shown his willingness to cooperate with the
authorities.
On 14 December 1995 his request was dismissed on the grounds that
there was a reasonable suspicion that he had committed a serious crime
and that the need to ensure the due course of proceedings still
existed. The Wroclaw Regional Prosecutor (Prokurator Wojewódzki)
participated in the court session which was held in camera.
On an unspecified date in January 1996 the applicant appealed
against the above decision. He submitted that under the recent
amendments to the Polish Criminal Code, which were introduced on 1
January 1996, a person who committed a trivial robbery had a right to
make a plea in mitigation.
On 8 January 1996, the Wroclaw Regional Court, sitting in camera,
declared that, due to the amendment to the Criminal Code of 29 June
1995 which had been introduced on 1 January 1996, it no longer had
jurisdiction with respect to the subject matter of the case and ordered
the case to be transferred to the Trzebnica District Court (S*d
Rejonowy).
On 9 January 1996, upon the applicant's appeal, the Wroclaw Court
of Appeal (S*d Apelacyjny) upheld the decision of 14 December 1995 and
held that, notwithstanding the existence of mitigating circumstances
which would be relevant to the final judgment, the detention should be
maintained in view of the reasonable suspicion that the applicant had
committed the crime in question and the need to ensure the due course
of proceedings. The Wroclaw Prosecutor of Appeal (Prokurator
Apelacyjny) participated in the court session.
On 16 January 1996 the applicant requested the Trzebnica District
Court to quash the detention order or to replace it by police
supervision.
On 15 February 1996 his request was dismissed. The court found
that the need to maintain the detention still existed and that no
circumstances militated in favour of the applicant's release. The
Trzebnica District Prosecutor took part in the court session.
On 1 March 1996 the applicant appealed to the Wroclaw Regional
Court, submitting that his detention should no longer be maintained on
account of the fact that the criminal proceedings instituted against
him had been going on for an unreasonably long time.
On 4 March 1996 he again requested the Trzebnica District Court
to release him. The court dismissed his request on 13 March 1996. The
applicant did not appeal against this decision.
On 6 March 1996 the court ordered that evidence be taken from
psychiatric experts in order to establish whether tempore criminis the
applicant's co-defendant had acted in a state of diminished
responsibility. The experts submitted their report to the court on
14 April 1996.
In the meantime, on 8 March 1996, the Wroclaw Regional Court
upheld the decision of 15 February 1996 on the grounds that there was
a reasonable suspicion that the applicant had committed the offence in
question and that the need to ensure the due course of proceedings
still existed. The court held that the length of proceedings did not
militate against continuing the detention. The Wroclaw Regional
Prosecutor participated in the court session.
On 16 April 1996 the Trzebnica District Court scheduled a hearing
for 17 June 1996.
On 7 June 1996 the applicant filed an application form addressed
to the European Commission of Human Rights. It transpires from the
first page of the application that it was stamped by the Trzebnica
District Court on 17 June 1996.
The hearing of 17 June 1996 was cancelled and rescheduled for
5 August 1996.
On 5 August 1996 the trial commenced before the Trzebnica
District Court. The court heard evidence from the defendants. The
hearing was adjourned as one of the co-defendants had failed to appear.
In the course of the hearing the applicant requested the court to quash
the order for detention. Apparently, his request was dismissed on the
same day.
On 12 August 1996 the subsequent hearing was adjourned on the
ground that one of the co-defendants had failed to appear. In the
course of the hearing the applicant again requested the court to quash
the detention order. The request was dismissed on the same day.
On 26 August 1996 the next hearing was adjourned as the injured
party had appeared before the court in a state of intoxication. In the
course of the hearing the applicant requested the court to quash the
detention order. On the same day the court released the applicant in
view of the fact that the latter had confessed his guilt and had given
comprehensive testimony.
On 6 September 1996 the Wroclaw Regional Court, upon the
Trzebnica District Prosecutor's appeal, quashed the decision of the
Trzebnica District Court of 26 August 1996. The court ordered that the
applicant should be redetained in view of the need to ensure the due
course of proceedings and the likelihood of a severe penalty. The
court also held that the further detention on remand was justified
because the applicant had gone into hiding before he was arrested. The
court's session was held in camera. The Wroclaw Regional Prosecutor
participated in the court session.
On 16 September 1996 the subsequent hearing was cancelled because
the presiding judge was ill.
On 23 September 1996 the applicant was redetained.
On 7 October 1996 the trial before the Trzebnica District Court
came to an end. However, the court ordered that the judgment be given
on 9 October 1996.
In the meantime, on an unspecified date, the defence lawyer of
one of the co-defendants requested the court to confront certain
witnesses with each other.
On 9 October 1996 the Trzebnica District Court ordered the trial
to be re-opened and to re-hear those witnesses.
On 21 October 1996 the court heard the witnesses and ordered that
the judgment be rendered on 23 October 1996.
On 23 October 1996 the Trzebnica District Court convicted the
applicant of trivial robbery and sentenced him to two years and six
months' imprisonment. The applicant's lawyer lodged a notice of appeal
with the Trzebnica District Court; however neither the applicant nor
the lawyer lodged an appeal against the judgment of the court of first
instance.
B. Relevant domestic law and practice
1. Preventive measures, in particular detention on remand.
The Polish Code of Criminal Procedure lists as "preventive
measures", inter alia, detention on remand, bail and police
supervision.
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, within a seven-day time-limit,
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.
A detention order was enforceable on the date of its issue. It became
final either after the expiry of the seven-day time-limit set out for
lodging an appeal, or on the date on which it was upheld by a court
dealing with the appeal.
Section 210 paras. 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 interrogated in the case as a
suspect. Before ordering detention on remand or deciding on bail
the prosecutor shall personally hear the suspect."
According to Section 222 of the Code of Criminal Procedure (in
the version applicable at the material time) the prosecutor could order
detention on remand for a period not exceeding three months. When, in
view of the particular circumstances of the case, the investigation
could not be terminated within this period, detention on remand could,
if necessary, be prolonged by the court competent to deal with the
case, upon the investigating prosecutor's request, for a period not
exceeding one year.
Section 209 of the Code of Criminal Procedure stated:
"Preventive measures may be imposed in order to secure the due
course of proceedings if the evidence against the accused
sufficiently justifies the opinion that he has committed a
criminal offence."
The Code of Criminal Procedure sets out the margin of discretion
as to maintaining the specific preventive measure. Detention on remand
is regarded as the most extreme among the preventive measures and the
domestic law lays down that in principle it should not be imposed if
more lenient measures are adequate and sufficient.
Section 213 para. 1 of the Code of Criminal Procedure provides:
"1. A preventive measure [including detention on remand] shall
immediately be quashed or altered, if the basis therefor has
ceased to exist or new circumstances have arisen which justify
quashing a given measure or replacing it with a more or less
severe one."
2. Prosecutor.
Chapter III of the Code of Criminal Procedure entitled "Parties
to proceedings, defence counsel, representatives of 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. In particular, after
completing the investigation, he draws up a bill of indictment and
represents the prosecuting authority before the court competent to deal
with the case.
Under Section 3 of the Code of Criminal Procedure "... organs
conducting criminal proceedings [including a prosecutor] shall examine
and take into account exonerating as well as incriminating evidence.
As regards the general position of a prosecutor at the material
time, he was subordinate to the Prosecutor General. He was not,
therefore, independent of the executive since the Minister of Justice
carried out the duties of the Prosecutor General.
3. Domestic remedies relating to the lawfulness and length of
detention on remand.
At the material time there were three different proceedings
enabling a detainee to challenge the lawfulness of his detention and
thus possibly obtain release. Under Section 212 para. 2 of the Code
of Criminal Procedure he could appeal to a court against a detention
order made by a prosecutor. Under Section 222 paras. 2(1) and 3 he
could appeal against a further decision by that court prolonging his
detention on a prosecutor's request. Finally, Section 214 of the Code
stated that an accused could at any time apply to the competent
authority to have a preventive measure quashed or altered. Such an
application had to be decided by the prosecutor or, after the bill of
indictment had been lodged, by the court competent to deal with the
case, within a period not exceeding three days.
COMPLAINTS
1. The applicant complains under Article 5 para. 3 of the Convention
that:
a) he was deprived of his liberty by the decision of the prosecutor,
who was a party to the proceedings and not a judge or other officer
authorised by law to exercise judicial power; and
b) the length of his detention on remand exceeded a "reasonable
time" within the meaning of this provision.
2. He further complains under Article 6 para. 1 of the Convention
that the criminal proceedings instituted against him were lasting for
an unreasonably long time.
3. Finally, the applicant complains under Article 6 para. 3 (c) of
the Convention that he was deprived of his defence rights on account
of the fact that he was never brought before a judge competent to
review his requests for release, nor was his lawyer entitled to attend
any court session concerning the lawfulness of his detention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 December 1995 and registered
on 11 July 1996.
On 17 January 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 18 April
1997, after an extension of the time-limit fixed for that purpose. The
applicant replied on 18 June 1997, stating that he wished to pursue his
application only insofar as it concerned the complaints submitted by
him under Article 5 para. 3 of the Convention. He also stated that he
wished to withdraw the remainder of his complaints.
On 3 February 1997 the Government submitted a translation of
their observations.
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 the decision of the
prosecutor, who was a party to the proceedings and not a judge or other
officer authorised by law to exercise judicial power.
Article 5 para. 3 (Art. 5-3) of the Convention, insofar as
relevant, provides:
"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 ..."
a) "Under Article 26 (Art. 26) of the Convention "the Commission may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law, and within a period of six months from the date on which the final
decision was taken".
The Government maintain, first, that the applicant did not
exhaust the remedies available to him under domestic law as he failed
to submit an appeal, under Section 212 para. 2 of the Code of Criminal
Procedure, against the detention order of 14 June 1995. They further
submit that the applicant could, by means of such an appeal, have
challenged both substantive and formal aspects of the lawfulness of his
detention on remand. In the Government's opinion, the applicant could,
therefore, also contest the fact that it was a prosecutor who had
ordered his detention on remand.
The applicant admits that he failed to appeal against the
detention order of 14 June 1994.
The Commission notes that under Polish law applicable at the
material time the applicant could, by lodging an appeal against the
detention order, have contested the lawfulness of his detention. He
could not, however, on the domestic level, have challenged the power
of the prosecutor to order his detention because, under Section 210
para. 1 of the Polish Code of Criminal Procedure, only a prosecutor was
competent to detain a suspect on remand during the investigative stage.
Moreover, under the national law, the applicant was not entitled to be
brought before a judge dealing with an appeal against the detention
order. Accordingly, an appeal against the detention order of 14 June
1995 cannot be regarded as a remedy whereby the applicant could have
been promptly brought before a judge.
It follows that this complaint cannot be rejected for non-
exhaustion of domestic remedies within the meaning of Article 26
(Art. 26) of the Convention.
b) The Government maintain, secondly, that the applicant also failed
to submit this complaint within the six-month period referred to in
Article 26 (Art. 26) of the Convention.
They further submit that the applicant complains about a single,
concrete fact, namely that the investigating prosecutor, who, in his
opinion, was not impartial, ordered his detention on remand. Hence,
the concept of "continuing violation" does not apply to the present
case (see No. 214/56, Yearbook 2, p. 214 and No. 8317/78, Dec.
15.5.1980, D.R. 20, p. 44 and 76).
In this respect the Government point out that the Trzebnica
District Prosecutor made an order for the applicant's detention on
14 June 1995 and, accordingly, the six-month period began running on
this date. Since the applicant introduced his complaints on 20
December 1995, he clearly failed to respect the six-month time-limit
prescribed by Article 26 (Art. 26) of the Convention.
The applicant replies that at the time of introducing his
complaints he was not aware of how the period concerned should be
calculated.
The Commission recalls that where no domestic remedy is available
the six-month period runs from the act alleged to constitute a
violation of the Convention; however, where it concerns a continuing
situation, it runs from the end of the situation concerned (see, e.g.
No. 14807/89, Dec. 12.2.92, D.R. 72, p. 148; No. 19601/92, Dec.
19.1.95, D.R. 80-B, p. 46; No. 34578;/97, Dec. 1.12.97, unpublished)).
As regards the present case, the Commission notes that the
applicant's complaint that his detention on remand was ordered by the
investigating prosecutor arose out of domestic legislative provisions,
i.e. Sections 210 and 222 of the Polish Code of Criminal Procedure,
which, at the material time, explicitly excluded the possibility of a
person detained at the investigative stage being brought before anyone
other than a prosecutor. The existence of such provisions created,
therefore, a situation in which the person concerned could be for a
long time deprived of his right to be brought before an authority,
which could be considered to constitute "a judge or other officer
authorised by law to exercise judicial power" within the meaning of
Article 5 para. 3 (Art. 5-3) of the Convention.
The Commission further notes that the applicant was brought
before a trial judge on 5 August 1996, when the first hearing in his
case took place and that, during this hearing, he requested the court
to release him. This day he was personally present before a person
clearly acting in a judicial capacity for the first time since his
detention had been ordered by the prosecutor on 14 June 1995.
The Commission therefore considers that the breach of the
Convention of which the applicant complains continued until the point
at which he eventually appeared before a trial judge and could even be
considered to have been gradually aggravated during that period.
Accordingly, the Commission considers that the running of the
six-month period in respect of the present complaint commenced on
5 August 1996.
It follows that this complaint cannot be rejected as being lodged
out of time.
c) The Government contend that in any event this part of the
application is manifestly ill-founded. Thus, under the domestic law,
a prosecutor is considered to be a guardian of the public interest.
Under Section 7 of the Act of 20 June 1985 on Public Prosecutors he
must, when carrying out his duties, follow the principle of
impartiality. Under the provisions of the Code of Criminal Procedure,
in particular Section 3, he is, at any stage of the proceedings, bound
by the general principle of objectivity and obliged to take into
account exonerating as well as incriminating evidence.
They maintain that a prosecutor's function is not limited to a
duty to collect evidence in criminal proceedings. He is obliged to
assess evidence and, when he finds that a given offence does not create
a danger to society, he may order that the investigation be
discontinued either conditionally or unconditionally. Such a decision
should be considered as an act of administration of justice.
The Government admit that in criminal proceedings a prosecutor
acts as a party. This, however, does not absolve him from his general
duty to follow the principles of impartiality and objectivity. For
instance, he may file any appeal on behalf of a defendant if he
considers this justified.
They further stress that in the present case the Trzebnica
District Prosecutor personally heard the applicant before ordering his
detention. Thus, the procedural requirements prescribed by Article 5
para. 3 (Art. 5-3) of the Convention were complied with. They conclude
that this fact taken together with the general position of a prosecutor
in criminal proceedings fully justifies the opinion that the
investigating prosecutor, when detaining the applicant, acted in the
capacity of a "judicial officer" within the meaning of para. 3 of
Article 5 (Art. 5) of the Convention (see Eur. Court HR, Schiesser v.
Switzerland judgment of 4 December 1979, Series A no. 34, pp. 13-14,
para. 31).
The applicant generally contests the Government's submissions,
asserting that the Trzebnica District Prosecutor, when ordering his
detention, did not offer sufficient guarantees of independence as
required under Article 5 para. 3 (Art. 5-3) of the Convention.
The Commission considers, in the light of the parties'
submissions, that this complaint raises complex issues of law and of
fact under the Convention, the determination of which should depend on
an examination of its merits. The Commission concludes, therefore,
that this complaint is not manifestly ill-founded, within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds
for declaring it inadmissible have been established.
2. The applicant further complains under Article 5 para. 3
(Art. 5-3) of the Convention that the length of his detention on remand
exceeded a "reasonable time" within the meaning of this provision.
Article 5 para. 3 (Art. 5-3) of the Convention, insofar as
relevant, provides:
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article ... shall be
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for
trial."
a) Under Article 26 (Art. 26) of the Convention, "the Commission may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law."
The Government submit that the applicant has not complied with
the requirements of Article 26 (Art. 26) of the Convention since he has
not exhausted all the remedies available to him under Polish law.
Firstly, the applicant failed to appeal against the detention order
made by the Trzebnica District Prosecutor on 14 June 1995. Secondly,
he did not appeal against the two subsequent decisions dismissing his
requests for release given by the Wroclaw Regional Court on 13 October
1995 and by the Trzebnica District Court on 13 March 1996. As a
consequence, the applicant did not avail himself of remedies which were
adequate and effective and which, in case of a favourable decision,
would have resulted in his release.
The applicant admits that he did not appeal against the above-
mentioned decisions. However, any such appeals by him would have poor
prospects of success, especially at an early stage of the proceedings.
At this stage, the purpose of which was to collect evidence in support
of the charge laid against him, it was unlikely that the authorities
would have released him, given that they subsequently refused to do so
even though he had confessed his guilt and cooperated with them.
Moreover, any appeal by him against the above-mentioned court decisions
might have resulted in the proceedings being prolonged.
The applicant contends that there is no failure on his part as
regards the exhaustion of domestic remedies, since, on several other
occasions, he requested the authorities to release him and lodged
appeals against their refusals to release him.
The Commission recalls that under Article 26 (Art. 26) of the
Convention an applicant must make a normal use of those domestic
remedies which are likely to be effective and sufficient. When a
remedy has been attempted, use of another remedy which has essentially
the same objective is not required (No.11471/85, Dec. 19.1.89, D.R. 59,
p. 67). It further recalls that the rule concerning the exhaustion of
domestic remedies does not require that an appeal be introduced which
would have
no chance of success (see No. 13251/87, Dec. 6.3.91, D.R. 68, p.138;
No. 13134/87, Dec. 13.12.90, D.R. 67, p. 216).
The Commission notes that the applicant failed to appeal against
the decisions referred to by the Government. However, on 5 December
1995 he requested the Wroclaw Regional Court to release him. He filed
an appeal against that court's decision dismissing his request. On
16 January 1996 he lodged a similar, unsuccessful request with the
Trzebnica District Court and, subsequently, appealed to the Wroclaw
Regional Court against a further refusal to release him.
Under Polish law such requests and appeals secure a judicial
review of the lawfulness of detention on remand and their purpose is
to obtain release. They constitute, therefore, an adequate and
effective remedy against the length of detention. Since the remedies
relied on by the Government would have the same objective, the
applicant should not, in the Commission's opinion, be required to avail
himself of such other remedies.
It follows that this complaint cannot be rejected for non-
exhaustion of domestic remedies.
b) The Government further submit that it cannot be said that the
applicant's detention on remand, which lasted for approximately one
year and three months, was in itself long enough to exceed a
"reasonable time" within the meaning of Article 5 para. 3 (Art. 5-3)
of the Convention.
Furthermore, they point out that the charge laid against the
applicant was of a serious nature. Had the applicant been convicted
of robbery, a sentence of up to fifteen years' imprisonment might have
been imposed on him. There was another aggravating factor, namely that
the applicant had a previous criminal record, which had to be taken
into account by the authorities concerned. Finally, at the initial
stage of the proceedings he went into hiding which prompted the
prosecutor to issue a warrant to search for him by a wanted notice.
As a consequence, there was a risk that the applicant might abscond or
obstruct the due course of the proceedings. This justified his
continuing detention.
According to the Government, the authorities pursued the
applicant's case with due diligence. In particular, there were no
periods of inactivity on their part. The prolongation of the
proceedings resulting from the fact that, due to the amendment to the
Code of Criminal Proceedings relating to the jurisdiction of criminal
courts which took effect on 1 January 1996, the applicant's case was
transferred from the Wroclaw Regional Court to the Trzebnica District
Court was not attributable to the courts dealing with the applicant's
case.
The applicant submits that the issue of the warrant to search for
him by a wanted notice was premature and unnecessary as at the material
time he was remaining at home where, finally, he was arrested by the
police. Moreover, at an early stage of the investigation he confessed
his guilt. This clearly showed his willingness to cooperate with the
authorities. There was, therefore, no risk that he would obstruct the
due course of the proceedings. Finally, as he had decided to make a
plea in mitigation, it was not in his interest to evade justice or any
sentence which might have been imposed.
The Commission considers, in the light of the parties'
submissions, that this complaint raises complex issues of law and of
fact under the Convention, the determination of which should depend on
an examination of its merits. The Commission concludes, therefore,
that this complaint is not manifestly ill-founded, within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds
for declaring it inadmissible have been established.
3. The applicant also complains under Article 6 para. 1 (Art. 6-1)
of the Convention that the criminal proceedings instituted against him
lasted for an unreasonably long time. Under Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention he submits that he was deprived of his
defence rights on account of the fact that he was never brought before
a judge competent to review his requests for release, nor was his
lawyer entitled to attend any court session concerning the lawfulness
of his detention.
The Government contend that these complaints are manifestly ill-
founded.
The applicant submits that he does not wish to pursue this part
of the application.
In these circumstances, the Commission, having regard to the fact
that the applicant does not intend to pursue this part of his petition,
concludes, in accordance with Article 30 para. 1 (a) and (c)
(Art. 30-1-a, 30-1-c) of the Convention that it is no longer justified
to continue the examination of this part of the application.
The Commission also finds no reasons of a general character,
affecting respect for human rights, as defined in the Convention, which
require the further examination of the present complaints by virtue of
Article 30 para. 1 in fine(Art. 30-1) of the Convention.
For these reasons, the Commission,
by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaints that he was detained on remand by the
investigating prosecutor who was neither a judge nor another
officer authorised by law to exercise judicial power and that the
length of his detention on remand exceeded a "reasonable time";
unanimously,
DECIDES TO STRIKE THE REMAINDER OF THE APPLICATION OUT OF ITS
LIST OF CASES.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy