CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 septembre 2010

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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. On 19 February 2003 the applicant was arrested by the Regional Prosecutor of Zielona Góra on suspicion of several offences of fraud during his time as president of the management board of a limited liability company. On the same day the applicant's two defence counsel applied to the prosecutor for permission to contact their client. The prosecutor refused their request, stating that there were “technical difficulties” in ensuring the presence of a third person and with regard to transporting the applicant to the court. On 20 February 2003 the applicant was heard by the prosecutor. Because of the absence of his lawyers he refused to give testimony. Before the questioning, one of the applicant's defence counsel asked the prosecutor to allow him to visit his client. This request was again refused. The applicant produced his lawyer's statement to confirm the above. According to the Government's submissions, the applicant was heard in the presence of his defence counsel on 20 February 2003. On 21 February 2003 the Zielona Góra District Court decided to place the applicant in detention. On 24 February 2003 the applicant's lawyers lodged an appeal against the applicant's detention. The applicant and his defence counsel were denied access to the investigation file while preparing the appeal. On 26 February 2003 the applicant's lawyers again requested the Regional Prosecutor to allow them to visit their client. The prosecutor refused and the lawyers requested to see his superior. On the same day the senior prosecutor granted the lawyers permission to see their client, but only on 28 February 2003, at 2 p.m. On 27 February 2003 the defence counsel telephoned the Zielona Góra detention centre and requested that their client be informed of their visit the following day. Their request was refused. On 28 February 2003, before the scheduled visit, the applicant's lawyers went to the Regional Court and requested access to the investigation file. Their request was refused. On 28 February 2003, at 2 p.m., for the first time since his arrest on 19   February 2003, the applicant was allowed to talk to his defence counsel. The visit lasted only sixty minutes because according to the detention centre rules all visits had to end by 3 p.m. On 10 March 2003 the applicant's lawyers lodged “further submissions in connection with their appeal of 24 February 2003” with the Zielona Góra Regional Court. They argued that the description of the charges against the applicant was limited to a simple repetition of the statutory description of the relevant offences. They further argued that the denial of access to the investigation file in practice excluded their client from conducting an effective defence and deprived them of the opportunity of challenging the reasons relied upon for remanding him in custody. They also requested that the court appoint a medical expert to determine whether the applicant was fit to be held in detention, given his state of health. On 12 March 2003 the Zielona Góra Regional Court examined the applicant's lawyers' appeal against his detention and upheld the challenged decision. The court referred to the lawyers' argument that they had been denied access to the investigation file and found that “it was obvious that the applicant's defence counsel could not have access to the file at this stage of the proceedings”. On 12 March 2003 one of the applicant's lawyers requested the Regional Prosecutor to release the applicant from detention. On 14 March 2003 the Zielona Góra Regional Prosecutor dismissed that request. On 19 March 2003 the prosecutor granted the request of 10 March 2003 and appointed a medical expert to examine the applicant. On 20 March 2003 the applicant's lawyers were served with the Regional Prosecutor's decision, in which they were asked to specify the material in the investigation file to which they wished to have access. According to the lawyers' submissions they were never granted access to the file at all. On 24 March 2003 the applicant's lawyers lodged an appeal against the prosecutor's decision of 19 March 2003. On 7 March 2003 the applicant's defence counsel had been summoned to testify as witnesses in another set of proceedings, in which the applicant's co-accused had been charged with making threats. Therefore, during the conversation with the applicant on 24 March 2003 they informed him that they could no longer represent him before the court. It was agreed that the defence relationship would be terminated on 25 March 2003. On 25 March 2003 the applicant's lawyer, Mr R.W., informed the Regional Prosecutor by fax that he was no longer representing the applicant. On the same date Mr J.D. informed the Regional Prosecutor that he would represent the applicant. On 27 March 2003 the prosecutor refused to examine the appeal of 24   March 2003, finding that the lawyers who had lodged it were no longer representing the applicant. On 10 and 15 April 2003 the prosecutor asked the applicant's defence counsel whether the representation relationship with the applicant had indeed been terminated. They confirmed this (by letters dated 11 and 23   April 2003). However, they submitted that at the time of lodging the appeal, the applicant had been properly represented. Subsequently, on 18 April 2003, the prosecutor quashed his decision of 27 March 2003 and transferred the appeal of 24 March 2003 to the Appellate Prosecutor. On 25 April 2003 the Appellate Prosecutor examined the appeal of 25   March 2003 and upheld the challenged decision. This decision was served on the applicant's lawyer on 5 May 2003. On 4 July 2003 the applicant was released from detention. On 26 September 2003 a bill of indictment against the applicant was lodged with the Zielona Góra District Court. The criminal proceedings are pending. B.     Relevant domestic law At the relevant time access to the file in the course of an investigation was governed by Article   156 § 5 of the Code of Criminal Procedure, which provided, in so far as relevant, that leave to consult a file and to make copies of the documents in the file could be granted only with the consent of the authority conducting the investigation. On 19 September 2007 the Ombudsman lodged an application with the Constitutional Court seeking a constitutional review of Article   156   §   5   of   the Code of Criminal Procedure. On 3 June 2008 the Constitutional Court ruled (case no. K 42/07) that this provision was incompatible with the Constitution in so far as it allowed the prosecutor to arbitrarily refuse access to the part of an investigation file which served to justify an application to remand a person in custody. COMPLAINTS 1.     The applicant complained under Article 5 § 4 of the Convention that he had had no access to the investigation file in the initial phase of his detention. As a result, he could not effectively challenge the prosecution's application and the court's decision to remand him in custody. 2.     The applicant further alleged that his appeal of 24 February 2003 against the Zielona Góra District Court's decision to remand him in custody, his request of 10 March 2003 to appoint a medical expert, and his request for release of 25 March 2003 had not been examined “speedily”, as required by Article 5 § 4 of the Convention. 3.     The applicant also complained under Articles 5 § 2 and 6 § 3 of the Convention that he had not been informed promptly of the reasons for his arrest and that he did not have adequate time and facilities for the preparation of his defence, especially as a result of the denial to grant him access to his lawyers. 4 .     Lastly, he complained under Article 6 § 1 of the Convention that the length of the criminal proceedings was excessive. THE LAW A.     Alleged violation of Article 5 § 4 of the Convention on account of lack of access to the investigation file and the Government's request to strike this part of the application out of the list of cases The applicant complained that he had had no access to the investigation file in the initial phase of his detention. He relied on Article 5 §   4 of the Convention, which provides as follows: Article 5 § 4 “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 a letter dated 18 May 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 this part of the application in accordance with Article 37 of the Convention. The declaration provided as follows: “(...) the Government hereby wish to express – by way of a unilateral declaration – their acknowledgement of the fact that the principle of equality of arms, as guaranteed by Article 5 § 4 of the Convention, was not respected in the proceedings relating to the imposition of the applicant's pre-trial detention and the appeal proceedings before the Zielona Góra District Court as it related to the lack of access of the applicant's lawyers to the investigation file in the initial phase of the proceedings, especially at the time of the preparation of the appeal against the applicant's detention. In these circumstances and having regard to the violation of Article 5 § 4 of the Convention, the Government declare that they offer to pay the applicant the amount of PLN 4,000, which they consider to be reasonable in the light of the Court's case-law. 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 Convention. 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 the 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.” In a letter of 14 June 2010 the applicant informed the Court that he wished to maintain his application and submitted his just satisfaction claims . The Court observes 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) in particular enables the Court 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”. The Court 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 the declaration carefully 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, 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). 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 the light of the above considerations, and in particular given the clear and extensive case-law on the topic (see   Lietzow   v.   Germany , no.   24479/94, ECHR 2001 ‑ I; Migoń v. Poland , no. 24244/94, 25 June 2002; and Łaszkiewicz v. Poland , no. 28481/03, 15   January 2008), 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.     Further complaint under Article 5 § 4 of the Convention. The applicant further complained that his appeal against the decision of 21   February 2003 to remand him in custody and his appeal of 24   March 2003 against the decision refusing his request for release had not been examined “speedily”, in breach of Article   5   §   4. The first appeal was lodged on 24 February 2003 and examined on 12 March 2003, and the appeal against the refusal to release was lodged on 24 March 2003 and examined on 25 April 2003. Thus, the relevant periods amount to sixteen and thirty ‑ two days respectively. The Government did not dispute the periods to be taken into consideration. They considered however that, in the circumstances of the present case, the duration of the proceedings complied with the requirements of Article 5 § 4 of the Convention. The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to persons arrested or detained a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful ( Baranowski v. Poland , no. 28358/95, ECHR 2000 ‑ III). The requirement of Article 5 § 4 of the Convention that decisions be taken “speedily” must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case (see Sanchez-Reisse v.   Switzerland , 21   October 1986, §§ 55 and 60, Series A no. 107). Turning to the circumstances of the present case, the Court will examine the various stages of the proceedings. The applicant was detained on 21 February 2003. On 24 February 2003 his lawyer appealed against the decision to place the applicant in pre-trial detention. On the same day the President of the Zielona Góra District Court requested the Regional Prosecutor to send him the case files as a matter of urgency. In the meantime, three appeals were lodged by the other suspects in the same case. On 26 February 2003 the case files, along with all appeals, were submitted to the Regional Court. Subsequently, on 10 March 2003, the applicant's lawyer lodged further submissions in connection with his appeal of 24 February 2003. The appeal was examined and the decision given by the Regional Court on 12   March 2003. As regards the applicant's appeal against the refusal to release him, it was lodged with the Appellate Prosecutor on 24 March 2003. On the next day one of the lawyers who had lodged the appeal, Mr R.W., informed the Regional Prosecutor that he was no longer representing the applicant. On the same day another lawyer, Mr J.D., informed the prosecutor that he would represent the applicant. On 27 March 2003 the Regional Prosecutor refused to examine the appeal. On 3 April 2003 Mr J.D. lodged an interlocutory appeal against the decision of 27 March 2003. On 11 April 2003 the applicant's lawyers, including the lawyer with whom the representation relationship had been terminated, sent a letter to the prosecutor explaining that the appeal had been lodged when both the lawyers were officially representing the applicant. On 18 April 2003 the Regional Prosecutor granted the appeal of 3 March 2003, quashed his own decision of 27 March 2003 and sent the case files, with the appeal, to the Appellate Prosecutor. On 25 April 2003 the Appellate Prosecutor upheld the challenged decision. It follows that the applicant's lawyers, although exercising their client's procedural rights, partly contributed to the overall length of the impugned proceedings. Therefore the Court considers that the length of the periods of examination of the applicant's appeals cannot be entirely attributed to the authorities. Having regard to all the circumstances, the Court finds that there is no appearance of a breach of Article 5 § 4 and it therefore rejects this complaint as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention. C.     Remaining complaints The applicant also complained under Articles 5 § 2 and 6 § 3 of the Convention that he had not been informed promptly of the reasons for his arrest and that he did not have adequate time and facilities for the preparation of his defence, as a result, in particular, of the denial to grant him access to his lawyers. Lastly, he complained under Article 6 § 1 of the Convention that the length of the criminal proceedings had been excessive. As regards the complaint of denial of access to a lawyer, the Court notes that on 20 February 2003, when the applicant was heard by the District Prosecutor, he refused to give testimony. It follows that he did not make any self-incriminating or other statements to which the authorities might attach weight at a later stage of the proceedings (see, by contrast, Płonka   v.   Poland , no. 20310/02,   31 March 2009). In any event, this complaint is premature, since the relevant proceedings are still pending and so far no first-instance judgment has been given. Therefore, it is not known whether and to what extent any statement made by the applicant in the absence of his lawyer might have influenced the outcome of the proceedings. As regards the complaint that the applicant was not informed promptly of the reasons for his arrest, the Court notes that the applicant was informed of the charges against him at the time of his arrest on 19   February 2003. Therefore, this complaint lacks substantiation. 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. As regards the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings, the applicant failed to lodge a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). Therefore this complaint must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention because of the applicant's failure to exhaust domestic remedies. For these reasons, the Court unanimously   Takes note of the terms of the respondent Government's declaration in respect of the complaint under Article 5 § 4 of the Convention concerning lack of access to the investigation file 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.   Lawrence Early   Nicolas Bratza   Registrar   President