FOURTH SECTION
CASE OF POPENDA v.
POLAND
(Application no.
39502/08)
JUDGMENT
STRASBOURG
9 October 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Popenda v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 39502/08)
against the Republic of Poland lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Polish national, Mr Krzysztof Popenda (“the applicant”),
on 5 August 2008.
The applicant was represented by Ms M. Gąsiorowska,
a lawyer practising in Warszawa. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
On 13 October 2008 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1958 and lives in Częstochowa.
A. The first set of criminal proceedings
On 26 September 2004 the applicant was
arrested by the police.
On 28 September 2004 the Łódź
District Court (Sąd Rejonowy) ordered that the applicant be
detained on remand in view of a reasonable suspicion that he had offered a
bribe to a Member of Parliament, Mr A.P. The applicant was charged
together with Mr M.D., a well-known businessman and lobbyist and his
business partner. Mr M.D.’s case received wide media coverage and aroused
a great deal of political interest. The court established that his detention
was essential to secure the proper conduct of the proceedings. It also referred
to the likelihood that a severe sentence might be imposed on the applicant and
to the risk that he would influence witnesses.
The applicant’s appeal against this decision was
dismissed on an unspecified date.
On 21 December 2004 and 22 March and 21 June
2005 the District Court extended the applicant’s detention. It relied on the
grounds previously relied on.
The applicant’s appeals against those decisions
were dismissed.
On 21 September and 21 December 2005 the
Łódź Court of Appeal (Sąd Apelacyjny) extended the
applicant’s detention pending the outcome of the investigation. The court
referred to the extraordinary complexity of the case, which concerned charges
of corruption involving high-ranking public officials, and reiterated
that other preventive measures would not secure the applicant’s attendance at
his trial.
The applicant’s detention was then extended by
the Court of Appeal on 8 February, 10 May, 21 June, 20 September
and 6 December 2006. The court found that there were circumstances
justifying the fact that the investigation in the applicant’s case had not yet
been terminated by the prosecutor. On the last above-mentioned date the
court also decided that the applicant could be released on bail in the amount
of 300,000 Polish zlotys (PLN) (approximately 76,000 euros (EUR)).
The applicant’s appeals against all the
decisions to extend his detention were dismissed. His numerous applications for
release were also to no avail.
On 5 January 2007 the applicant paid the
bail and his pre-trial detention was lifted.
On 20 January 2007 the Katowice Appeals
Prosecutor lodged a bill of indictment against the applicant, Mr M.D. and
Mr A.P.
The trial court scheduled the first hearing for
27 September 2007, but it was cancelled.
On 25 June
2012 the Pabianice District Court convicted the applicant and sentenced him to two
years and ten months’ imprisonment and a fine (II K 293/07). The
judgment is not final and the applicant applied to receive a reasoned copy of
the judgment with a view to lodging an appeal against it.
B. The second set of criminal proceedings
It appears that on 20 July 2004 the
prosecutor initiated a new investigation against the applicant and other co-accused
including Mr. M.D.
On 8 March 2005 the charges against the
applicant were supplemented with the addition of a charge of money laundering
contrary to Article 229 of the Criminal Code. The investigation was conducted
within the above-described proceedings until 14 November 2005.
Subsequently, the charge under Article 229 of the Code was severed,
to be dealt with in another set of proceedings.
The charges were supplemented in April and
September 2007. In January 2008 the charges against the applicant were further
supplemented with the addition of a charge of forgery contrary to Article 271
of the Criminal Code.
On 14 January 2008 the applicant was
arrested by the police and the prosecutor applied to the court with a motion to
impose pre-trial detention on the applicant in this set of proceedings.
On 15 January 2008 the Katowice District
Court decided to allow the prosecutor’s request and remanded the applicant in
custody. The court relied on the reasonable suspicion that the applicant had
committed the offences and on the risk that a severe sentence would be imposed
on him. The court however considered, contrary to the prosecutor’s assessment,
that there was no risk that the applicant would tamper with the proper course
of the proceedings. It noted that the proceedings in the instant case had been
pending for a long time and the applicant, while at liberty, had not made any
attempt to interfere with their proper course. The court therefore considered
that other preventive measures could secure the applicant’s attendance at his
trial and set bail in the amount of PLN 100,000.
The applicant’s family attempted to pay the
bail. However, the enforcement of the decision of 15 January 2008 was
stayed because the prosecutor had lodged an appeal against it.
It appears that the court allowed the appeal on
5 March 2008 and extended the applicant’s detention.
On 11 April 2008 the Warsaw Regional Court dismissed
the prosecutor’s motion to further extend the applicant’s detention and decided
to place him under police supervision and prohibit him from leaving the country.
The court also criticised the prosecutor in that he had refused to indicate
what investigative measures he had been planning to take in the ongoing investigation.
Relying on the case-law of the Strasbourg Court the Warsaw Regional Court
considered that concealing planned actions from the defence constituted a
breach of defence rights in violation of Article 5 § 4 of the Convention.
On 15 April 2008 the applicant was released
from detention.
The prosecutor lodged an appeal against the
decision.
On 27 May 2008 the Warsaw Court of Appeal
allowed the prosecutor’s appeal and extended the applicant’s pre-trial
detention. The court disagreed with the lower court’s assessment and considered
that the prosecutor had communicated to the applicant sufficiently justified reasons
for extending his pre-trial detention to comply with the Convention standards.
The court reiterated that the prosecutor’s motions had not been confidential
and had been ultimately transmitted to the applicant and his lawyers. At the
same time both Polish law and the Convention case-law allowed for some
information to be withheld from the applicant in order to secure the efficient
conduct of the investigation.
On 28 May 2008 the applicant returned to
the detention centre.
On 25 February 2009 the Katowice Court of
Appeal decided to further extend the applicant’s pre-trial detention
until 31 May 2009. At the same time the court decided that the applicant
could be released on bail of PLN 300,000 (approx. EUR 70,000). The
court underlined that the risk that a severe sentence would be imposed on the
applicant should be assessed taking into account the circumstances of the case
i.e. the amount of evidence that had been collected, the length of detention so
far and the possibility to apply other measures to secure the applicant’s
attendance at his trial.
It appears that the applicant paid the bail. He was
released from pre-trial detention on 8 April 2009.
On 24 May 2011 the Katowice Appellate
Prosecutor discontinued the investigation against the applicant relating to tax
offences finding that no offence had been committed.
On 22 June 2011 and on 21 February
2012 the Katowice Appellate Prosecutor lodged bills of indictment against the
applicant on certain tax fraud- related charges.
The remaining part of the investigation against
the applicant and other co-accused is pending before the Katowice Appeals
Prosecutor (no. Ap V Ds. 6/09/s). On 22 December 2011 the
prosecutor stayed the investigation in this case.
C. Proceedings under the 2004 Act
On 22 December 2009 the Warsaw Court of
Appeal allowed the applicant’s complaint and found that his right to a trial
within a reasonable time had been breached in respect of the investigation
carried out by the prosecutor (no. Ap V Ds. 6/09/s). It awarded the
applicant PLN 10,000 (which amounted to EUR 2,300 at the material
time) in compensation. The applicant relied on the amended Law of 17 June
2004 on complaints about a breach of the right to an investigation conducted or
supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania
sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez
prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
The court noted that the investigation in the
instant case had started on 20 July 2004 and was still pending. The
investigation was extended on several occasions as new charges had been brought
against the applicant and six co-accused. The court considered that many
unrelated charges, mostly concerning one co-accused, Mr M.D., had
been joined to the investigation against the applicant although they had not
concerned his case. Moreover, it criticised the prosecutor’s approach of repeatedly
supplementing the investigation by adding new unrelated charges against the applicant
which had clearly caused protraction of the main investigation against him.
The court agreed with the prosecutor that the
case was complex. However, it noted that there had been many delays and that
many of the actions could have been carried out earlier. For instance, as
regards one charge against Mr M.D., witnesses were heard in July 2009, three
years after the relevant events had been disclosed by the prosecutor. Moreover,
this charge was totally unrelated to the present investigation against the
applicant and should have been dealt with in another set of proceedings. A piece
of evidence, a telephone, was examined one year after it had been seized by the
prosecuting authorities. The court noted other delays in the examination of a
piece of evidence disclosed in August 2008 which resulted in the preparation of
an expert opinion only in March 2009. The Warsaw Court of Appeal also observed
that while in 2005 the applicant had often been heard by the prosecutor, later,
particularly between 2006 and 2008, the prosecutor heard the applicant at much
longer intervals.
The court also noted many periods of inactivity
on the part of the prosecutor in connection with his multiple requests for
international legal assistance. For instance, delays occurred between July 2008
and January 2009 when the prosecutor did not react to a reply to his request
for legal assistance from Latvia. What is more, this request had no relevance
to the investigation against the applicant although it influenced its length.
The court considered that many of those requests for legal assistance had related
not to the charges that had already been brought against the applicant or the
co-accused but to the investigation of new circumstances which might
result in new charges being laid against them in future.
The court therefore considered that the
complexity of the case could not justify the fact that the investigation has
been pending for five years. Nor did the applicant contribute to the length of
the proceedings.
The court finally instructed the prosecutor to
intensify his activity in the case, so that the investigation could be
terminated by 30 March 2010. However, the prosecutor did not manage to
close the investigation by that date and the proceedings relating to the main charge
are still pending (see paragraph 33 above).
D. Access to the case file
The Government submitted that at the pre-trial
stage of the first set of proceedings the applicant was granted access to the
case file on four occasions in 2005 and 2006 and in January 2007. At the
judicial stage the applicant consulted his file in July and August 2008.
However, in September 2006 the prosecutor refused to allow the applicant access
to some parts of the file.
As regards the second set of proceedings the
Government acknowledged that the applicant was temporarily refused access to
the case file by the prosecutor’s decisions of 6 December 2006, 31 August
2007 and 29 January 2008. However, the applicant was subsequently allowed
to consult the file.
The applicant did not contest the Government’s
submissions. He submitted copies of the prosecutor’s decisions of 6 December
2006 and 31 August 2007 refusing the applicant and his lawyers access to
the case file. The applicant appealed against both decisions; however an
appellate prosecutor dismissed them. The applicant also provided a copy of the
decision of 29 January 2008, notified to the applicant’s lawyer on
2 February 2008, in which the prosecutor refused him access to the file
and to transmit to him a reasoned copy of the prosecutor’s motion to impose
detention on remand on the applicant.
The applicant also provided copies of the prosecutor’s reasoned
motions of 15 January 2008 to impose detention on remand on him and of
28 March 2008 to extend his detention.
E. Other issues
During the applicant’s detention his wife and
three children lodged multiple requests for permission to visit him in the
detention centre. On 4 July 2008 the Katowice Appeals Prosecutor dismissed
the request of his wife and two sons for leave to visit the applicant. The
decision contained no reasons.
The applicant submitted that while he had been
detained on remand certain doctors recommended that he undergo surgery; however,
an operation could not be carried out in the detention centre. Moreover, he was
placed in the same cell with a detainee who had been charged with murder who was
awaiting transfer to a medical wing.
II. RELEVANT DOMESTIC LAW
The relevant domestic law and practice
concerning the imposition of detention on remand (aresztowanie tymczasowe),
the grounds for its prolongation, release from detention and rules governing
other, so-called “preventive measures” (środki zapobiegawcze)
are stated in the Court’s judgments in the cases of Kudła v. Poland
[GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński
v. Poland, no. 37444/97, §§ 42-46, 11 October 2005;
and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August
2006.
Article 217 § 1 of the Code of
Execution of Criminal Sentences of 1997, as applicable at the material
time, provided as follows:
“A detainee is allowed to receive visitors, provided that he
obtains permission from the authority at whose disposal he remains
[investigating prosecutor at the investigative stage or from the trial court
once the trial has begun]. If the detainee remains at the disposal of several
authorities, it is necessary to obtain permission from all of them unless they
decide otherwise.”
Other relevant domestic law
and practice concerning family visits are stated in the judgment Gradek v. Poland, no. 39631/06, §§ 20-24,
8 June 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3
OF THE CONVENTION
The applicant complained that the length of his
detention on remand had been excessive. He relied on Article 5 § 3 of
the Convention, which, in so far as relevant, reads as follows:
“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.”
The Government contested that argument.
A. Admissibility
The Government submitted that the applicant, who
had lodged his application on 5 August 2008, had failed to comply with the
six-month requirement laid down in Article 35 § 1 of the
Convention in respect of the first period of his pre-trial detention.
The applicant contested the objection and
maintained that he had been held in detention between 2004 and 2009 with two short
intervals. The prosecutor artificially severed charges so as to have them tried
in a new set of proceedings although they had been based on the same facts.
The Court observes that the applicant’s detention
consisted of two non-consecutive periods relating to different charges. In the first set of proceeding concerning the alleged bribery of a public official, the detention started
on 26 September 2004, when the applicant was arrested, and ended on 5 January
2007 when he was released (see paragraphs 5 and 13 above). The
applicant’s detention on remand thus lasted two years, three months and ten
days. After the investigation was completed, the
authorities decided that a requirement to pay bail would secure his attendance
at the trial and released him. The applicant remained at liberty for
approximately one year. Any complaint in respect of this period of detention
should have been brought within six months of his release (see Idalov
v. Russia [GC], no. 5826/03, § 134, 22 May 2012).
. Having
regard to the above, the Court accepts the Government’s argument and finds that
the complaint in respect of the first period of the applicant’s detention has
been introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
. On
14 January 2008 the applicant was arrested again in the second set of
criminal proceedings against him concerning in particular a charge of money laundering;
he was released on 8 April 2009 (see paragraphs 20 and 30 above).
The period between 15 April and 28 May 2008, when the applicant was
released pending his appeal against the decision not to extend his pre-trial
detention, must be deducted from the period under consideration. This period
thus lasted in total thirteen months and twelve days.
. The Court considers that the
applicant’s complaint under Article 5 § 3 of the Convention in
respect of his second period of his pre-trial detention is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government submitted that the applicant’s
pre-trial detention satisfied the requirements of Article 5 § 3
of the Convention. It was justified by “relevant” and “sufficient” grounds.
Those grounds were, in particular, the gravity of the charges against the
applicant, who had been accused of money laundering and other serious charges, and
the severity of the possible sentence. They also pointed to the particular
complexity of the criminal proceedings against the applicant. The Government
submitted that the national authorities showed special diligence in the conduct
of the proceedings.
The applicant submitted that his detention had
been excessive. He argued that there had been no real risk of his influencing
the proper course of the proceedings by, for example, contacting witnesses as
most of them were foreigners whereas he did not speak any foreign languages.
Moreover, while at liberty the applicant did not attempt to undertake any
actions aimed at tampering with the course of the investigation.
2. The Court’s assessment
(a) General principles
The Court recalls that the general principles
regarding the right “to trial within a reasonable time or to release pending
trial, as guaranteed by Article 5 § 3 of the Convention were stated in
a number of its previous judgments (see, among many other authorities, Kudła
v. Poland [GC], no. 30210/96, § 110 et seq, ECHR
2000-XI; and McKay v. the United Kingdom [GC], no. 543/03,
§§ 41-44, ECHR 2006-..., with further references).
(b) Application of the above principles in the
present case
In their detention decisions, the authorities,
in addition to the reasonable suspicion against the applicant, relied
principally on the serious nature of the offences with which he had been
charged and the severity of the penalty to which he was liable.
The Court accepts that the reasonable suspicion
against the applicant of having committed a serious offence could initially
warrant his detention. Also, the need to determine the
degree of the alleged responsibility of each of the defendants and the need to
secure the proper conduct of the proceedings, in
particular the process of obtaining evidence from witnesses, including experts,
constituted valid grounds for maintaining the applicant’s detention (see Lesiak
v. Poland, no. 19218/07, § 63, 1 February 2011).
The Court notes that already when imposing detention
on the applicant on 15 January 2008 the District Court considered
that it could be replaced with a less stringent
preventive measure and fixed an amount of bail. The applicant was not released
as the appellate court quashed that decision (see paragraphs 22 and 23
above). On 25 February 2009 the Court of Appeal again considered
alternative measures for ensuring his appearance at trial and ordered that the
applicant be released on bail (see paragraphs 29 and 30 above).
The foregoing
considerations are sufficient for the Court to conclude that the grounds given
for the applicant’s pre-trial detention were “relevant” and “sufficient” to justify holding him in
custody for the entire relevant period, namely one year, one month and twelve
days.
It therefore remains to be ascertained whether
the national authorities displayed “special diligence” in the conduct of the
proceedings. In this regard, the Court firstly observes that the criminal
investigation at issue was complex, multilayered and directed against seven co-accused.
The complexity of the case undoubtedly prolonged its examination and
contributed to the length of the applicant’s detention on remand.
. However,
the Court notes that the domestic court in its decision of 22 December
2009 considered that the complexity of the case could not justify the total
length of the investigation against the applicant and found that the applicant’s
right to a trial within a reasonable time had been breached (see paragraph 34
above). The Warsaw Court of Appeal examined the five-year-long investigation
against the applicant, including the period between January 2008 and April 2009
when the applicant was detained on remand, and noted many shortcomings and
delays on the part of the prosecutor. In particular, it considered that in 2008
the applicant had been rarely heard by the prosecutor (see paragraph 36
above). The court observed that there had been a delay in the examination of various
items of evidence disclosed in August 2008. Finally, there were substantial
delays resulting from the multiple requests for international legal assistance
made by the prosecutor; most of those requests had been irrelevant for the
applicant’s investigation (see paragraph 37 above).
The court also criticised the prosecutor’s decision to join to
the present investigation all new charges against the applicant and his other co-accused,
although they had been totally unrelated to the main investigation against him.
This approach had substantially contributed to the length of the investigation (see
paragraph 35 above).
. The
Court sees no reason to contest the above-described findings of the
Warsaw Court of Appeal and its conclusion that the prosecuting authorities should be held responsible for many of the delays
and for not handling the applicant’s case expeditiously.
. Having
regard to the foregoing, it cannot be said that the authorities displayed “special diligence” in the
conduct of the criminal proceedings against the applicant.
There has therefore been a violation of Article 5 § 3
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that during his detention he had been deprived of personal contact with his
family. He complained that the prosecutor’s decision of 4 July 2008 refusing
a visit by his wife and sons had been arbitrary and that the domestic law had
not indicated with reasonable clarity the scope of the prosecutor’s discretion.
The applicant relied on Article 8 of the Convention which provides as
relevant:
“1. Everyone has the right to respect for his ...
family life...
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.”
The Government contested this argument and
maintained that the applicant had been rarely refused family visits. On average,
the applicant had received visits from his family once a month. Although the
prosecutor refused one visit on 4 July 2008, the applicant saw his family
on 13 June 2008 and 15 July 2008.
The Court notes that the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
The Court observes that it has not been
contested that at least on one occasion, namely on 4 July 2008, the
prosecutor refused a visit by the applicant’s wife and children and that the
prosecutor’s decision did not include any reasoning (see paragraph 43 above).
The restriction on the applicant’s personal
contact with his family constituted an “interference” with his right to respect
for his family life.
The Court observes that the contested measure
was applied under Article 217 § 1 of the Code of Execution of
Criminal Sentences. The Court further
notes that this provision, as applicable at the material time, gave the
relevant authority (prosecutor or court) the power to grant permission for
family visits in prison. The law, however, provided no details as regards the
conditions for granting such permission, no guidance as to how the authorities
might decide whether the prohibition of visiting rights was merited in a
particular case, and what factors might be relevant to that decision. It
further did not provide for a possibility to appeal against the refusal
of visits. The decision was left to the
authorities’ absolute discretion.
. The Court further observes that
it had already held in similar Polish cases that Article 217 § 1 of the
Code of Execution of Criminal Sentences did not indicate with reasonable
clarity the scope and manner of the exercise of any discretion conferred on the
relevant authorities to restrict visiting rights. In consequence, the Court has held that an unreasoned refusal to grant permission
for visits was not in “accordance with the law” and found a breach of Article 8
on account of the arbitrariness of the interference (see Wegera v. Poland, no. 141/07,
§ 74-75, 19 January 2010; Gradek, cited above, § 43).
. For these reasons the Court
concludes that the unreasoned refusal of the family visit at issue was not
in accordance with the law. On that account it is not necessary to
ascertain whether the other conditions imposed by Article 8 § 2 have
been complied with.
There has accordingly
been a violation of Article 8 of the Convention.
III. ALLEGED
VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
The applicant complained in general terms that
he had no access to the case file in breach of Article 5 § 4 of the
Convention. The applicant’s representative submitted that “after some time the
applicant had been granted access to some unimportant documents”. The applicant also complained that the proceedings regarding
prolongation of his pre-trial detention had not been adversarial and that
he could not effectively challenge the lawfulness of his continued detention.
The relevant part of Article 5 of the Convention provides
as follows:
“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.”
The Government contested that argument. They
submitted that for some time until January 2008 the applicant had been temporarily
limited in his right to access his case file. However, those limitations were
imposed in accordance with the law and were fully justified by the particular
circumstances of the case. The limitation was temporary and later the applicant
and his lawyers had full access to his file. Moreover, such limitation did not
deprive the applicant of a possibility to effectively challenge his detention
on remand. The Government reiterated the Court’s case-law that the need for criminal investigations to be conducted efficiently
may imply that part of the information collected during them is to be kept
secret in order to prevent suspects from tampering with evidence and
undermining the course of justice.
The Court firstly notes that in so far as it
could be understood that the applicant complained about the prosecutor’s
decision of 26 September 2006 refusing him access to the case file issued
in the first set of proceedings, it had been given more than six months before
5 August 2008, the date on which the applicant lodged his application with
the Court.
As regards the second set of criminal proceedings the applicant
complained about three decisions given by the Katowice Appellate Prosecutor on 6 December
2006, 31 August 2007 and 29 January 2008. The applicant submitted no
evidence that he had lodged an appeal against the most recent of those
decisions.
The Court thus considers that this part of the application has
been introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
Moreover, the Government have submitted that
afterwards the applicant and his lawyers had had access to his case file. The Court
notes that the applicant did not contest this statement and his argument is
limited to a statement that some time later he had been given access to his
file (see paragraph 42 and 74 above). In particular the applicant did
not argue that after January 2008 the prosecutor had again dismissed his
application to consult the file or that he and his lawyers had been again
prevented from accessing the case file. The Court thus considers that this part
of the application has not been substantiated by the applicant.
Finally, the Court notes that the applicant did
not specifically complain that the reasons for the prosecutor’s motion to
impose pre-trial detention on him, or prolong it, had not been
communicated to him. Moreover, he submitted to the Court copies of the relevant
motions of 15 January and 28 March 2008 (see paragraph 42 above).
From the Warsaw Court of Appeal’s decision of 27 May 2008 it is also clear
that the prosecutor’s motions were not confidential and had been transmitted to
the applicant and his lawyers (see paragraph 27 above).
. On
the basis of the parties’ submissions and the documents before it the Court
considers that there is no prima facie evidence that the applicant’s
detention on remand failed to ensure equality of arms and was not truly
adversarial and that the applicant could not adequately challenge the prosecutor’s
motions for prolongation of his detention (compare and contrast Łaszkiewicz
v. Poland, no. 28481/03, § 85, 15 January 2008).
It follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Finally, the applicant complained in general
terms that he had been prevented from undergoing a medical intervention, and
that he had had to share a cell with a dangerous prisoner.
However, the Court notes that the applicant
failed to submit any evidence substantiating those complaints. Moreover, it
does not appear that he raised them with the domestic authorities. In
particular, there is no indication that the applicant asked to be released from
detention for the purpose of undergoing surgery or that he requested to be
transferred to another cell.
Therefore, in the light of all the material in
its possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41
of the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 25,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested this claim.
The Court awards the applicant EUR 1,300 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed 6,100 Polish
zlotys (PLN), equivalent to EUR 1,300 at the material time, for the costs
and expenses incurred before the Court. The applicant’s representative
submitted copies of relevant invoices supporting this claim.
The Government contested the claim.
Regard being had to the documents in its
possession and to its case-law, the Court considers it reasonable to
award the sum claimed in full.
C. Default interest
The Court considers it appropriate that the default
interest rate should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning the length
of the second period of the applicant’s pre-trial detention and the
refusal of 4 July 2008 of a family visit admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 5 § 3 of the Convention;
3. Holds that there has been a violation of
Article 8 of the Convention;
4. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into the currency
of the respondent State at the rate applicable at the date of
settlement:
(i) EUR 1,300 (one thousand three hundred
euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 1,300 (one thousand three hundred
euros), plus any tax that may be chargeable to the applicant, in respect of
costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David
Thór Björgvinsson
Registrar President
