Application no. 33885/96 
by Eryk KAWKA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 October 2001 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr J. Makarczyk
 Mr I. Cabral Barreto
 Mrs N. Vajić
 Mr M. Pellonpää, judges
and  Mr V. Berger, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 5 February 1996 and registered on 18 November 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 20 October 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 applicant, Eryk Kawka, is a Polish national, who was born in 1968 and lives in Jaworzno, Poland. He was represented before the Court by Mr Hermeliński, a lawyer practising in Warsaw, Poland. The respondent Government were represented by their Agent, 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 13 January 1996 the applicant was arrested by the police 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 he had committed the offence in question and the serious nature of that offence. 

In the proceedings before the Commission the applicant claimed that he had appealed against the detention order to the Gliwice District Court (Sąd Rejonowy) which, on an unspecified date, had upheld that decision.  He alleged that he had not taken part in the court session at which his appeal had been examined.

According to the Government, the applicant had never appealed against the detention order of 13 January 1996 to the Gliwice District Court.

The relevant order was served on the applicant together with a note informing him that that decision could be appealed against under Article 212 § 2 of the Code of Criminal Procedure, within the time limit of seven days from the date of the service.

On 5 February 1996 the applicant sent a letter to the Gliwice District prosecutor, asking for reasons for his detention to be given.  That letter was deemed to be an application for release.  It was examined as such and rejected on 12 February 1996.

On 11 March 1996 the applicant was indicted on the charge of robbery.

On the same day he asked for release.  The application was rejected by the Gliwice District Court on 15 March 1996.  That decision was subsequently upheld by the Katowice Regional Court (Sąd Wojewódzki).  Neither the Gliwice District Prosecutor, nor the Katowice Regional Prosecutor took part in the sessions held by the relevant courts.  The applicant was not represented either.

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.

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 of 1969 (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 Code of Criminal Procedure of 1969

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.


The applicant complained under Article 5 § 3 of the Convention that after having been arrested he had been brought before the Gliwice District Prosecutor, not before “a judge or other officer authorised by law to exercise judicial power”.

He also alleged a breach of Article 5 § 4 of the Convention, submitting that his appeal against the detention order of 13 January 1996 had been examined by the Gliwice District Court in an unfair and, in his words, “stereotyped” fashion because he had not been allowed to participate in the court’s session.


1.  The applicant complained that, contrary to Article 5 § 3 of the Convention, after having been arrested he had not been brought before a “judge or other officer authorised by law to exercise judicial power”.

Article 5 § 3, in its relevant part, states:

“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.  The Government’s preliminary objection on non-exhaustion

The Government submitted that the applicant had not exhausted domestic remedies available to him because he had failed to appeal, under Article 212 § 2 of the Code of Criminal Procedure of 1969, against the detention order made by the Gliwice District Prosecutor on 13 January 1996.

The applicant considered that that remedy would have been ineffective as under Polish law as then applicable only a prosecutor had been empowered to order detention at the investigative stage.  Furthermore, the relevant legal provisions had not foreseen a possibility for a detainee to be “brought before a judge” at that stage of criminal proceedings.

The Court recalls that in a number of Polish cases it has already ruled that an appeal under Article 212 § 2 of the Code of Criminal Procedure was not a remedy whereby a detainee could have contested the power of the prosecutor to order that measure or whereby he could have been “promptly brought before a judge” (see, for instance, G.K. v. Poland (dec.), no. 38816/97, 8 December 1998, unpublished). 

The Court has also held that, under Polish criminal legislation as it stood at the relevant time, there was no adequate and effective remedy against the breach of the Convention alleged by the applicant (ibid.).

It follows that the Government’s preliminary objection must be rejected.

B.  Compliance with Article 5 § 3

The Government submitted that, given the position of a prosecutor in criminal proceedings and the fact that the prosecutors were under a general duty to remain impartial in such proceedings, the complaint should be rejected as being manifestly ill-founded.

The applicant, relying on a number of the Court’s judgments (on, inter alia, the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, § 43; and 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 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.

2.  The applicant further complained under Article 5 § 4 of the Convention that his appeal against the detention order of 13 January 1996 had been examined by the Gliwice District Court in an unfair manner because he had not been allowed to participate in the court’s session.

Article 5 § 4 states:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government maintained that the applicant could not be regarded as a victim of the alleged violation of Article 5 § 4 because he had never initiated the proceedings of which he complained. 

The applicant did not deny it.  In his written reply to the Government’s observations, which he filed on 13 December 1999, he nevertheless argued that in the course of the criminal proceedings against him he had lodged two applications for release and that the proceedings in which the courts had made decisions on those applications had not been of a truly adversarial nature, in breach of Article 5 § 4.

The Court observes that it clearly emerges from the Commissions’ partial decision that the complaint the applicant made to it under Article 5 § 4 did not concern the examination of his applications for release but the supposed lack of equality of arms in the proceedings relating to the appeal he allegedly directed against the detention order of 13 January 1996.

In the circumstances, the Court can only reiterate the fundamental principle it has established for the purposes of Article 34 of the Convention and recall that the word “victim” in the context of that Article denotes the person directly affected by the act or omission of the State authority (see, among other authorities, the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36). 

Since in the present case the applicant never lodged the appeal in question, the existence of such an act or omission cannot be established and, consequently, he cannot be regarded as a “victim” within the meaning of Article 34.

In so far as the applicant alleged that the proceedings concerning his applications for release had not been adversarial, the Court finds that it cannot deal with the matter because the applicant raised that complaint as late as 13 December 1999, which was more than six months after the events complained of.

It follows that the remainder of the application is inadmissible under Article 35 § 1 and § 3 of the Convention and must be rejected, pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint that after being arrested he was not brought promptly before a “judge”;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress 
 Registrar President