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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
- 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
- The facts of the case, as submitted by the applicant,
may be summarised as follows.
1. Main proceedings
- 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.
- 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.
- 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.
- 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.
- 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.
- Until
10 January 2010 the applicant was serving a concurrent sentence
of imprisonment, imposed in another set of criminal proceedings.
- On
15 March 2010 the applicant’s charges were supplemented
by a charge that he was a member of an organised criminal
group.
- 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.
- On
25 May 2011 the applicant was released from detention and he
currently remains at liberty.
- The
proceedings against the applicant are currently pending before the
court of first-instance.
2. Monitoring of the applicant’s correspondence
with the Court
- 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.
- 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
- 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
- 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
- The
applicant complained under Article 5 § 3 of the Convention that
the length of his detention on remand had been excessive.
- 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.
- 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
- 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.
- 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.”
- 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.
- 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.”
- 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.
- 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”.
- 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.
- 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).
- 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).
- 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.
- 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)).
- 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
1. Complaint under Article 5 § 3 of the Convention
- The
applicant further complained that the length of his detention on
remand had been excessive.
- 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.
- 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.
- 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
- 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.
- 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 Aracı Päivi Hirvelä
Deputy
Registrar President
