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
Full & Egal Universal Law Academy