PROCEDURE

The case originated in an application (no. 34611/97) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Zbigniew Dacewicz (“the applicant”), on 25 March 1996.

The applicant, who had been granted legal aid, was represented by Mr Hermeliński, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs

The applicant alleged, in particular, that after having been arrested he had not been brought before a “judge” or “officer authorised by law to exercise judicial power”, as required under Article 5 § 3 of the Convention.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

By a decision of 21 June 2001 the Court declared the application admissible.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1955 and lives in Biała Podlaska, Poland.

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 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 of 4 January 1996. It examined it as such and dismissed it on 18 January 1996. The court considered that the applicant should be detained because there was a reasonable risk that he might obstruct the proper conduct of the proceedings.

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.

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 stood at the material time, the prosecutor had a power to detain him on remand; however, under the amendments to Polish criminal legislation, which were to enter into force on 4 August 1996, only the courts of law could impose detention on remand.

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 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. ...”