FOURTH SECTION
DECISION
Application no. 11562/10
by Sławomir KAZIMIERSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 31 January 2012 as a Committee composed of:
Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 21 January 2010,
Having regard to the declaration submitted by the respondent Government on 1 October 2011 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Sławomir Kazimierski, is a Polish national who was born in 1974 and lives in Dąbrowa Górnicza. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Main proceedings
3. On 3 June 2009 the applicant was charged with drug trafficking and detained on remand. The Katowice District Court (Sąd Rejonowy) observed, on the basis of the testimonies given by several other suspects and the results of the experiments carried out in the investigation proceedings, that there was a reasonable suspicion that the applicant had committed the aforementioned offence. The court also considered that, due to the nature of the applicant’s charge which involved trafficking large amounts of narcotics, there was a high likelihood that a severe sentence of imprisonment would be imposed on him and that he might attempt to obstruct the proceedings. At the same time, the court found no special circumstances, foreseen by Article 259 § 1 of the Code of Criminal Procedure, militating against the applicant’s detention.
4. The applicant’s appeal was dismissed by the Katowice Regional Court’s (Sąd Okręgowy) decision given on 8 July 2009, which restated the reasons given by the District Court.
5. The applicant’s detention was subsequently extended by the Katowice District Court’s decision of 2 September 2009 and the Katowice Regional Court’s decisions of 30 November 2009, 17 December 2009 and 31 March 2010. The applicant filed appeals against each of the decisions extending his detention, all of which were dismissed by the competent second-instance court.
6. In particular, in his letter to the Court dated 10 June 2010, the applicant submitted that his appeal against the decision of 30 November 2009 extending his detention on remand was examined by the Katowice Court of Appeal on 27 January 2010.
7. In extending the applicant’s detention, the domestic courts stated that the initial grounds invoked in the detention order continued to apply. They moreover pointed to the need of gathering supplementary evidence, such as carrying out cross-examinations between the suspects and soliciting expert medical reports. The courts also underlined the complexity of the proceedings which involved a high number of charges including drug trafficking and pointed out that the files of the case had consisted of over 70 volumes of documents. They considered that the detention on remand constituted the only security measure capable of guaranteeing the correct conduct of the proceedings.
8. Until 10 January 2010 the applicant was serving a concurrent sentence of imprisonment, imposed in another set of criminal proceedings.
9. On 15 March 2010 the applicant’s charges were supplemented by a charge that he was a member of an organised criminal group.
10. On 31 May 2010 the bill of indictment against the applicant and some 50 other persons was lodged with the Katowice Regional Court, requesting the court, inter alia, to hear 118 witnesses.
11. On 25 May 2011 the applicant was released from detention and he currently remains at liberty.
12. The proceedings against the applicant are currently pending before the court of first-instance.
2. Monitoring of the applicant’s correspondence with the Court
13. The envelope of the applicant’s letter to the Registry, sent from Strzelce Opolskie Remand Centre, carried a stamp of the District Prosecutor (Prokurator Rejonowy), a date written by hand (10 February 2010), the word “Censored” (“Ocenzurowano”) in barely legible handwriting and the prosecutor’s signature.
14. The dates indicated on the envelope show that the prosecutor kept the letter from 21 January 2010, when it had been dispatched from the remand centre, until 10 February 2010 when it was signed. The letter reached the Court on 25 February 2010.
B. Relevant domestic law and practice
1. The pre-trial detention
15. The relevant domestic law and practice concerning the imposition of pre‑trial detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006).
2. Monitoring of correspondence with the Court
16. The relevant domestic law concerning monitoring of detainees’ correspondence is set out in the Court’s decision given in the case Mocny v. Poland (dec.), no. 47672/09, 30 November 2010, and in its judgment handed down in the case Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007.
COMPLAINTS
17. The applicant complained under Article 5 § 3 of the Convention that the length of his detention on remand had been excessive.
18. Moreover, relying on Article 5 § 4 of the Convention, he complained that his appeal against the Katowice Regional Court’s decision of 30 November 2009 extending his detention on remand had not been examined.
19. The Court raised ex officio a complaint under Article 8 of the Convention in respect of the monitoring of the applicant’s correspondence.
THE LAW
A. Monitoring of correspondence
20. The Court considered it appropriate to raise ex officio a complaint under Article 8 of the Convention in respect of the monitoring of the applicant’s correspondence.
21. Article 8 of the Convention provides, in so far as relevant:
“1. Everyone has the right to respect for his [...] correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
22. By a letter dated 1 October 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of the application, in accordance with Article 37 of the Convention.
23. The relevant parts of the Government’s declaration provided as follows:
“As to the facts, the Government agree in general with the Statement of Facts (...) as prepared by the Registry of the Court.
(...) the Government hereby wish to express – by way of unilateral declaration ‑ their acknowledgement of the violation of Article 8 of the Convention in the applicant’s case.
Consequently, the Government are prepared to accept the applicant’s claims to a maximum of PLN 2,000. The Government would suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
(...) As it results from the Government’s comments on the facts made in point one the factual circumstances have never been contestable. (...) As transpires from the Government’s unilateral declaration, the Government accepted paying to the applicant as compensation for his pecuniary and non-pecuniary damage up to PLN 2,000 in the event of the Court’s striking the case out of its list.”
24. In his letter to the Court, dated 15 November 2011, the applicant generally contested the unilateral declaration submitted by the Government. In particular, he argued that the facts were in dispute between the parties. He did not refer to any particular facts of the case.
25. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
26. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
27. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75‑77, 6 May 2003).
28. The Court has already established in a number of cases, including those brought against Poland, its practice concerning the monitoring of detainees’ correspondence (see, for example, Sałapa v. Poland, no. 35489/97, §§ 91-102, 19 December 2002; Matwiejczuk v. Poland, no. 37641/97, §§ 94-102; Mianowski v. Poland, no. 42083/98, §§ 62-67, 16 December 2003; Pisk-Piskowski v. Poland, no. 92/03, §§ 26-29, 14 June 2005; Drozdowski v. Poland, no. 20841/02, §§ 23-31, 6 December 2005; Michta v. Poland, no. 13425/02, §§ 57-62, 4 May 2006; Maksym v. Poland, no. 14450/02, §§ 27-33, 19 December 2006; Lewak v. Poland, no. 21890/03, §§ 28-32, 6 September 2007; Kliza v. Poland, no. 8363/04, §§ 59-66, 6 September 2007; Kołodziński v. Poland, no. 44521/04, §§ 34‑41, 8 January 2008; Dzitkowski v. Poland, no. 35833/03, §§ 53-57, 27 November 2007; Stępniak v. Poland, no. 29366/03, §§ 21-25, 29 January 2008 and Miernicki v. Poland, no. 10847/02, §§ 83-87, 27 October 2009).
29. With regard to the applicant’s allegation that the facts of the case are in dispute between the parties, the Court notes that the Government, in their declaration, unequivocally agreed with the facts of the case as they had been presented in the Statement of the Facts. The Court further observes that the applicant himself never contested the contents of the Statement of the Facts. Moreover, it considers that the applicant failed to specify which facts, in his opinion, were subject to challenge. Consequently, the Court is brought to conclude that the facts of the case are not in dispute between the parties.
30. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of the proposed compensation – PLN 2,000 – which is consistent with the amounts awarded in similar cases, the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).
31. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
32. Accordingly, it should be struck out of the list.
B. Remaining complaints
1. Complaint under Article 5 § 3 of the Convention
33. The applicant further complained that the length of his detention on remand had been excessive.
34. The Court observes that the applicant was detained on remand on 3 June 2009 and that, while being detained, until 10 January 2010 he also concurrently served a sentence of imprisonment imposed in other criminal proceedings. It further notes that the applicant was released from detention on 25 May 2011. Thus, the length of the applicant’s pre-trial detention to be considered in the present case amounted to slightly more than one year and four months.
35. The Court takes due account of the fact that the applicant had been charged with trafficking large amounts of narcotics and that these charges were subsequently supplemented by membership of an organised criminal group. In the Court’s view, the fact that the case concerned a person charged with membership of such a group should be taken into account in assessing compliance with Article 5 § 3 of the Convention (see Bąk v. Poland, no. 7870/04, § 57, 16 January 2007). The Court also attaches weight to the complexity of the criminal proceedings conducted against the applicant, which involved the examination of more than 70 volumes of documentary evidence and hearing more than a hundred witnesses, and which were conducted against 50 other accused persons charged with committing several hundred various offences (see above, in paragraphs 7 and 10). The Court notes that the decision to detain the applicant on remand was well‑reasoned and convincingly demonstrated the risk that the applicant’s release would disrupt the proper course of the trial. The subsequent decisions added other specific considerations for extending the applicant’s detention, such as the need to collect additional evidence or to carry out concrete procedural actions (see paragraph 7 above). Having regard to the overall length of the applicant’s pre-trial detention, to the nature and the gravity of the charges and to the conduct of the criminal proceedings, as well as taking into account the fact that the domestic court was faced with the particularly difficult task of trying a case involving an organised criminal group, the Court concludes that the period complained of by the applicant can not be regarded as excessive.
36. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
2. Complaint under Article 5 § 4 of the Convention
37. The applicant further complained under Article 5 § 4 that his appeal against the decision of 30 November 2009, extending his detention on remand, had not been examined. In this regard, the Court takes note of the applicant’s own admission made in his letter of 10 June 2010 (see paragraph 6 above) and observes that the applicant’s appeal against the decision extending his detention on remand has been examined by the appellate court and the applicant was served with a copy of its decision.
38. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy