SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49913/99 
by Sławomir ZIELONKA 
against Poland

The European Court of Human Rights (Second Section), sitting on 26 April 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr I. Cabral Barreto
 Mr V. Butkevych
 Mrs A. Mularoni
 Mr L. Garlicki
 Mrs E. Fura-Sandström, 
 Ms D. Jočienė, judges
and Mr S. Naismith, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 2 March 1998,

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, Sławomir Zielonka, is a Polish national who was born in 1954 and lives in Łódź. The respondent Government were represented by their agents, Mr K. Drzewicki and subsequently Mr J. Wołąsiewicz 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 21 November 1997 the applicant was arrested on suspicion of receiving and selling stolen goods.

On 22 November 1997 the Łódź District Court ordered that the applicant be detained on remand until 21 February 1998. The court referred to the strong probability of the applicant's guilt and to the high risk of his hindering the proper conduct of the proceedings. The court also emphasised that it was likely that the applicant, if released, would go into hiding.

By a decision of 24 February 1998, the Łódź District Court prolonged the applicant's detention on remand until 21 September 1998. The court considered that the reasons for which the detention had been ordered continued to exist. The decision was served on the applicant on 25 February 1998.

The applicant appealed, claiming that keeping him in custody between 21 February 1998 and 24 February 1998 had been unlawful since there had been no valid judicial decision authorising his detention.

On 25 March 1998 the Łódź Regional Court dismissed the applicant's appeal as unsubstantiated. However, the court altered the decision of 24 February 1998 and prolonged the applicant's detention on remand until 30 June 1998, finding that the case had not been complex and that the evidence against the applicant pointed to his guilt.

In a letter of 28 April 1998, the Łódź District Court admitted its mistake and confirmed that there had been no valid judicial decision authorising the applicant's detention on remand between 21 February 1998 and 24 February 1998. It added that this period would be deducted from any sentence of imprisonment eventually imposed on the applicant.

On 5 June 1998 the Łódź District Court convicted the applicant as charged and sentenced him to 3 years' imprisonment.

B.  Relevant domestic law

Article 250 of the Code of Criminal Procedure (“CCP”) of 6 June 1997 provides as follows:

“1. Detention on remand may only be imposed by a court order.

2. At the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor's request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case.

3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court.”

COMPLAINT

The applicant complains under Article 5 § 1 of the Convention that his detention on remand in the criminal proceedings against him lacked any legal basis, as there was no valid judicial decision authorising his detention from 21 to 24 February 1998.

THE LAW

The applicant submits that his detention on remand from 21 to 24 February 1998 had not been “lawful” within the meaning of Article 5 § 1 of the Convention, the relevant part of which states:

 “1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

 (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”

A. The parties' submissions

The Government concede that the Łódź District Court should have renewed the period of the applicant's detention on remand by 21 February 1998 at the latest, but it failed to do so. The relevant decision was taken three days later, on 24 February 1998. However, this does not mean that his detention during those three days was unlawful, since there were reasons justifying his continued detention. Thus, ex post facto, the decision of the Łódź District Court of 24 February 1998 validated the lawfulness of the applicant's detention between 21 and 24 February 1998.

Furthermore, the Government underline that the whole period of the applicant's detention, including the three days between 21 and 24 February 1998, was deducted from the sentence of imprisonment which was ultimately imposed.

The applicant maintains his claim, as recognised by the Łódź District Court itself.

B. The Court's assessment

The Court considers, in the light of the parties' submissions, that the application raises serious issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes therefore that the application is not manifestly-ill founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Naismith J.-P. Costa  
 Deputy Registrar President

ZIELONKA v. POLAND DECISION


ZIELONKA v. POLAND DECISION