FOURTH SECTION
DECISION
Application no. 5258/08
by Grzegorz SZWEJER
against Poland
The European Court of Human Rights (Fourth Section), sitting on 18 May 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 18 January 2008,
Having regard to the declaration submitted by the respondent Government on 4 February 2010 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
The applicant, Mr Grzegorz Szwejer, is a Polish national who was born in 1965 and lives in Żyrardów. 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
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant's pre-trial detention
On 9 November 2006 the applicant was arrested on suspicion of having committed several robberies as part of an organised criminal group. On the same date the Warsaw District Court (Sąd Rejonowy) remanded him in custody on the reasonable suspicion that he had committed the offences in question. The court indicated that the evidence gathered in the case showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings.
An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions to extend his detention, and all his subsequent applications for release and appeals against refusals to release him were unsuccessful. In his applications and appeals, he argued that his lengthy detention violated the provisions of the Code of Criminal Procedure relating to the imposition of this measure.
In the course of investigation, the applicant's detention was extended on 17 July 2007 (to 8 November 2007) and on 19 October 2007 (to 8 February 2008). In their decisions on the matter the authorities relied on the original grounds given for the applicant's detention. The courts also stressed that, owing to the complexity of the case, the investigation had still not been completed.
On 9 January 2008 a bill of indictment was lodged with the Siedlce Regional Court (Sąd Okręgowy).
On 19 February 2008 the Siedlce Regional Court requested the Lublin Court of Appeal (Sąd Apelacyjny) to refer the case to the Warsaw Regional Court.
On 5 March 2008 the Lublin Court of Appeal referred the case to the Warsaw Regional Court.
During the court proceedings the courts further extended the applicant's detention pending trial on several occasions, namely on 11 August 2008 (to 3 October 2008), 2 October 2008 (to 28 February 2009) and on an unspecified subsequent date. The courts repeated the grounds previously given for the applicant's continued detention. They attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would obstruct the proceedings.
The applicant was released from detention on 12 February 2010.
The criminal proceedings against the applicant are still pending.
2. Access to the investigation file
On an unspecified date the applicant requested access to the investigation file. The request was dismissed.
On 2 December 2007 the applicant lodged a complaint about irregularities in the criminal proceedings against him. In particular, he complained that he was denied access to the investigation file.
On 21 January 2008 the Warsaw Regional Prosecutor (Prokurator Okręgowy) informed the applicant that his complaint was unsubstantiated as he had recently been granted access to the investigation file. He further stated that, while it was true that the applicant had been denied access to the investigation file at the earlier stage of the proceedings, this had been justified by the need to secure the proper conduct of the investigation.
B. Relevant domestic law and practice
1. Pre-trial detention
The relevant domestic law and practice concerning the imposition of pre‑trial detention on remand (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, 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. Access to the investigation file
Access to the file in the course of investigation is governed by Article 156 § 5 of the Code of Criminal Procedure of 1997, which provides:
“Unless otherwise provided by law, during the investigation the parties, defence counsel and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the investigation. With the permission of a prosecutor and in exceptional circumstances access to the files in the investigation may be given to another person.”
COMPLAINTS
1. The applicant complained under Article 5 § 3 of the Convention of the unreasonable length of his pre-trial detention.
2. The applicant further complained in substance under Article 5 § 4 of the Convention that the proceedings regarding the extension of his pre‑trial detention had not been adversarial and that he had not been able to effectively challenge the lawfulness of his continued detention. He referred in this respect to the courts' refusal to grant him access to the investigation file.
3. Relying on Article 8, he also complained that his detention had put an excessive strain on his family life. In particular, he alleged that several of his requests for family visits had been refused.
4. Lastly, the applicant complained under Article 8 that his correspondence with his wife had been monitored.
THE LAW
A. Length of pre-trial detention and lack of equality of arms
The applicant complained about the length of his pre-trial detention. He relied on Article 5 § 3 of the Convention, which, in so far as relevant, provides as follows:
Article 5 § 3
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
He further complained that the proceedings regarding the extension of his pre-trial detention were not adversarial and that he could not effectively challenge the lawfulness of his continued detention. He referred in this respect to the courts' refusal to grant him access to the investigation file. The applicant relied in substance on Article 5 § 4 of the Convention, which provides as follows:
Article 5 § 4
“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.”
By letter dated 4 February 2010 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 the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“...the Government hereby wish to express – by way of the unilateral declaration – its acknowledgement of the fact that the applicant's pre-trial detention was not compatible with a 'reasonable time' requirement within the meaning of Article 5 § 3 of the Convention and its acknowledgement of temporary hindrances in the applicant's access to the case file not in compatibility with Article 5 § 4 of the Convention.
In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of PLN 12,000 [twelve thousand Polish zlotys], which they consider to be reasonable in the light of the Court's case law.
To justify the amount proposed to the applicant the Government would like to point to the Court's case-law concerning the length of pre-trial detention (see, recent cases Goliszewki v. Poland, application no. 14148/05, judgment of 8 December 2009 or Wegera v. Poland, application no. 141/07, judgment of 19 January 2010) and case-law concerning Article 5 § 4 (see, Łaszkiewicz v. Poland, application no. 28481/03, judgment of 15 January 2008, Chruściński v. Poland, application no. 22755/04, judgment of 6 November 2007).
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.
The Government would respectfully 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. ...”
The applicant upheld his previous claims for just satisfaction in the amount of 3,382,308.30 Polish zlotys (PLN).
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof 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”.
It also reiterates that in certain circumstances it may strike out an application or part thereof 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.
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 (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references). It also refers to its case-law regarding complaints of a violation of Article 5 § 4 of the Convention in respect of lack of equality of arms between parties in the proceedings concerning the extension of the detainee's pre-trial detention (see, for example, Łaszkiewicz v. Poland, no. 28481/03, 15 January 2008, and Chruściński v. Poland, no. 22755/04, 6 November 2007).
Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed – 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)).
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).
Accordingly, it should be struck out of the list.
B. Remaining complaints
Invoking Article 8 of the Convention, the applicant complained that his extended detention had put a severe strain on his family life. He further complained under Article 8 of the Convention that his correspondence had been monitored.
The Court has examined both complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints. In particular, in respect of the applicant's complaint concerning the alleged interference with his correspondence, the Court observes that the applicant has failed to substantiate his allegations as he did not submit copies of the letters that had allegedly been monitored. Furthermore, the letters in his file do not show any signs of having been monitored or any other form of interference.
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 complaints under Article 5 §§ 3 and 4 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 complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy