FOURTH SECTION
DECISION
Application no. 39241/08
Jarosław POFELSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 11 February 2014 as a Committee composed of:
Ledi Bianku, President,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 17 July 2008,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Jarosław Pofelski, is a Polish national, who was born in 1966 and lives in Szymbark.
The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings before the Gdańsk Regional Court (case no. IV K 35/05)
On 10 February 2004 the Gdańsk District Court remanded the applicant in custody in view of the reasonable suspicion that he had been a member of a group involved in drug trafficking.
On 28 January 2005 the prosecution filed a bill of indictment with the Gdańsk Regional Court. On 10 February 2006 the applicant’s detention on remand was lifted.
On 28 December 2006 the trial court severed some of the charges against the applicant to be examined in different set of proceedings (case no. IV K 166/08).
On 8 February 2007 the President of Criminal Section IV of the Gdańsk Regional Court decided that the applicant’s trial should be conducted de novo and assigned the case to a new judge.
On 24 July 2008 the applicant filed a complaint about a breach of his right to a trial within a reasonable time. On 15 October 2008 the Gdańsk Court of Appeal dismissed his complaint.
2. Proceedings before the Świdnica Regional Court (case no. III K 16/08)
The applicant was arrested on 14 May 2007 on suspicion of drug trafficking. On 16 May 2007 the Wrocław-Śródmieście District Court remanded him in custody in view of the reasonable suspicion that he had been involved in a group dealing in amphetamine. On 3 July 2007 the Wrocław Regional Court dismissed the applicant’s appeal.
In February 2008 the prosecution filed a bill of indictment with the Świdnica Regional Court. The applicant was charged with drug-trafficking offences.
On 7 August 2007 the Świdnica Regional Court prolonged the applicant’s detention on remand until 13 November 2007. The applicant’s detention on remand was subsequently prolonged on 8 November 2007 (until 13 February 2008), 11 February 2008 (until 13 August 2008), 21 July 2008 (until 15 November 2008), 3 November 2008 (until 15 February 2009) and 9 February 2009 (until 14 May 2009). The applicant appealed unsuccessfully against decisions prolonging his detention on remand.
On 26 February 2009 the Świdnica Regional Court lifted the applicant’s detention on remand on condition that he put up bail in the amount of PLN 50,000. It further placed him under police supervision and imposed a ban on leaving the country. On 15 April 2009 the Wrocław Court of Appeal upheld the decision of 26 February 2009.
3. Imposition of the “dangerous detainee” regime
On 16 May 2007 the Wrocław Remand Centre Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee” pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences. The applicant did not provide a copy of this decision. On 29 May 2008 the applicant appealed. It appears that the Wrocław Regional Court upheld the Penitentiary Commission’s decision. The applicant’s classification as a “dangerous detainee” was prolonged on a number of occasions. On 10 October 2008 the Wrocław Regional Court upheld the decision of the Penitentiary Commission of unspecified date prolonging the application of the regime. In its decision the Wrocław Regional Court stated, inter alia:
“the conducted proceedings showed that the convict requires to be placed in conditions ensuring enhanced protection of society and the security of the remand centre having regard to the nature and the circumstances of the acts committed by him.”
The applicant was subjected to a body search, including an inspection of his anus every time he left and entered the cell. He had to wear shackles on his hands and feet when escorted outside the remand centre, including during court hearings.
On 12 May 2008 the applicant unsuccessfully requested the trial court to authorise the removal of his handcuffs during the hearing and during breaks.
On 30 October 2008 the applicant complained to the Ombudsman that the application of the “dangerous detainee” regime to him amounted to torture and inhuman and degrading treatment. On 9 February 2009 the Ombudsman informed the applicant that the special measures applied in his case were justified.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention about being shackled on the days of court hearings for a period of 11 hours at a stretch and that his requests to remove handcuffs during court hearings had been refused. He also complained about the personal check procedure on leaving the remand centre.
2. The applicant complained under Article 5 of the Convention about the circumstances of his arrest on 14 May 2007.
3. He complained under Article 5 § 3 of the Convention about the excessive length of his detention on remand in the proceedings before the Gdańsk Regional Court and before the Świdnica Regional Court.
4. The applicant complained under Article 6 § 1 of the Convention about the length of both sets of criminal proceedings against him.
5. He further alleged a breach of Article 8 of the Convention on account of his detention on remand in the Wrocław Remand Centre which was located 500 km from his home. He claimed that his disabled wife and his daughters (12 and 22 years old) could not visit him on account of his wife’s illness and the lack of financial resources. He complained that he had been allowed only two closed visits from his wife whereby a detainee was separated from his visitor by a Perspex partition and they communicated through an internal phone.
6. The applicant complained under Article 13 of the Convention about the delay in the service of the decision of the Wrocław Court of Appeal on his appeal against the prolongation of his detention on remand.
7. In his letter of 17 November 2008 the applicant complained about overcrowding in the Wrocław Remand Centre.
8. In his letter of 27 April 2009 the applicant complained about a breach of the right to be presumed innocent under Article 6 § 2 of the Convention in connection with the reasons given for the decision of the Wrocław Regional Court of 10 October 2008.
THE LAW
By letter dated 1 August 2013 the Government’s observations were sent to the applicant, who was requested to submit any observations together with any claims for just satisfaction in reply by 12 September 2013.
By letter dated 15 October 2013, sent by registered post, the applicant was notified that the period allowed for submission of his observations had expired on 12 September 2013 and that no extension of time had been requested. The applicant’s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The applicant received this letter on 21 October 2013. However, no response has been received. A similar letter dated 20 November 2013 has remained unanswered.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş AracıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy