CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 novembre 2010

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He was represented before the Court by   Mr   J.   Majewski, Mr A. Reichelt and Mr M. Gutowski, lawyers practising in   Warsaw and Poznań respectively. 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 an unspecified date the prosecution authorities instituted criminal proceedings concerning the applicant. It appears that he left Poland in   December 2006. On 30 January 2007 the Warsaw-Praga Północ District Court ordered that the applicant be remanded in custody. That decision was upheld on appeal. On 23 July 2007 the Warsaw-Praga Regional Court issued a European Arrest Warrant for the applicant. On 12 November 2007 he was arrested in Germany on the basis of that warrant. On 4 December 2007 the applicant’s counsel (Mr J. Majewski) applied for access to the investigation file. On 6 December 2007 the Warsaw-Praga Regional Prosecutor ordered that at that stage of the investigation the request could not be granted. He   noted that the applicant had been in hiding and had been arrested in   Germany only on 12 November 2007. Furthermore, the applicant had not yet been heard. The prosecutor observed that granting counsel access to the investigation file in those circumstances might influence the applicant’s future statements and prompt him to obstruct the proceedings. On 18 December 2007 the applicant’s counsel appealed, invoking Article 5 § 4 of the Convention. On 19 December 2007 the applicant was extradited to Poland. Subsequently the Warsaw-Praga Regional Prosecutor charged the applicant with, inter alia , numerous counts of bribery of high-ranking officials of the Ministry of Finance. The applicant was represented by three defence counsel. On 21 December 2007, on an application from the Warsaw-Praga Regional Prosecutor, an assessor (junior judge; asesor ) of the Warsaw ‑ Praga Północ District Court remanded the applicant in custody until 19 March 2008. During the hearing the applicant’s counsel complained that they had not been granted access to the investigation file. The applicant’s counsel were provided with a copy of the prosecutor’s application for the imposition of pre-trial detention. Two of the applicant’s counsel (Mr J. Majewski and Mr M. Boruc) lodged appeals against the detention order on 28 December 2007. Counsel J.   Majewski argued, invoking Article 5   §   3 of the Convention, that the detention order had been given by an assessor who could not be considered “a judge” or “other officer authorised by law to exercise judicial power” because he lacked independence from the executive. Relying on   Article   439   §   1   (1) of the Code of Criminal Procedure he submitted that the detention order had been given by a “non-authorised person” ( osoba   nieuprawniona ) to give a decision. In this respect he referred to the Constitutional Court’s judgment of 24 October 2007. He also alleged a   breach of Article 5 § 4 of   the Convention in that the applicant’s defence had been refused access to the investigation file and thus prevented from challenging the detention effectively. On 8 January 2008 the Deputy Chief of the Warsaw-Praga Regional Prosecutor dismissed the appeal against the refusal of 6 December 2007 to   grant access to the file. He found that the right of the defence to have access to evidence was not absolute and could be subject to limitations. On 11 January 2008 the applicant’s third counsel (Mr J. Naumann) filed an appeal against the detention order. On 16 January 2008 one of the applicant’s counsel (Mr J. Majewski) requested the Warsaw-Praga Regional Court to accelerate the examination of the appeals against the detention order. In a reply of 18 January 2008 the President of the VI Criminal Section of   the Regional Court informed counsel that his request could not be   granted. The file was transmitted to the court on 11 January 2008 and on   that day it was decided that the appeals would be examined on   12   February   2008. When fixing the date, the court took into account the complexity of the case, the size of the file (65 volumes) and the caseload of   the section. On 24 January 2008 the applicant’s counsel (Mr J. Majewski) again requested to be granted access to the investigation file. It appears that the request was granted on 1 February 2008. On 12 February 2008 the Warsaw-Praga Regional Court dismissed the appeals against the detention order of 21 December 2007. It held that the assessor could not be considered as “a non-authorised person to give a   decision” within the meaning of Article 439 § 1 (1) of the Code of   Criminal Procedure. The Constitutional Court had struck down the provisions allowing the Minister of Justice to delegate judicial powers to   assessors; however the relevant decisions given by assessors had not been automatically negated. The court observed that following Poland’s accession to the European Union domestic law was undergoing a   continuous process of adjustment to the requirements of European law. However, the transformation of domestic law should not lead to chaos in the legal order and for that reason the Constitutional Court had allowed eighteen months for the necessary legislative changes to be implemented. The court observed that at the relevant time the applicant could only challenge the possible lack of impartiality of the assessor under Article   41   §   1 of the Code of Criminal Procedure. As regards the refusal to grant the applicant’s counsel access to the investigation file the court observed that the refusal could not be interpreted as a limitation of defence rights. B.     Relevant domestic law and practice Access to the investigation file At the relevant time access to the file in the course of investigation was governed by Article   156 § 5 of the Code of Criminal Procedure of 1997, which provided, in so far as relevant, that leave to consult the file and to   make copies of the documents in the file was 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 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 part of the investigation file which served to justify an application to order a person’s detention on   remand. COMPLAINTS   1.     The applicant complained under Article 5 § 3 of the Convention that his detention on remand had been ordered by an assessor who had not been independent from the executive. The assessor issued the order for his detention on the same day on which the prosecutor had made an application. Furthermore, the assessor acted under conditions where the applicant’s case was under intense media and political scrutiny. 2.     The applicant further complained under Article 5 § 4 of the Convention that he had had no access to the investigation file until 1   February 2008. As a result, he could not effectively challenge the prosecution’s application for and the court’s decision to remand him in   custody. 3.     The applicant lastly alleged that his appeals of 28 December 2007 against the Warsaw-Praga Północ District Court’s decision to remand him in custody had not been examined “speedily” as required under Article 5 § 4 of the Convention. THE LAW A.     Complaint under Article 5 § 3 of the Convention The applicant complained under Article 5 § 3 of the Convention that the assessor who had remanded him in custody had not been independent from the executive. The assessor issued the order for his detention on the same day on which the prosecutor had made an application. Furthermore, the assessor acted under conditions where the applicant’s case was under intense media and political scrutiny. The applicant submitted that there had been a breach of Article 5 § 3 of   the Convention. The Government argued that the complaint under Article   5 § 3 should be declared manifestly ill-founded or, alternatively, that there had been no violation of this provision. The Court decides to adjourn the examination of the complaint under Article 5 § 3 of the Convention. B.     Complaints under Article 5 § 4 of the Convention The applicant complained under Article 5 § 4 of the Convention that he   had had no access to the investigation file until 1 February 2008. He   further alleged that his appeals of 28 December 2007 against the Warsaw-Praga Północ District Court’s decision to remand him in custody had not been examined “speedily” as required under Article 5 § 4. Article 5 § 4 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.” By a letter dated 5 May 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues 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 the unilateral declaration – their acknowledgement of the fact that the lawfulness of the applicant’s detention was not examined “speedily” by the domestic authorities and therefore incompatible with requirements within the meaning of Article 5 § 4 of the Convention. Simultaneously, the Government acknowledge that principle of equality of arms as far it concerned the access to the case files as guaranteed by Article 5 § 4 of the Convention was not respected. In these circumstances, and having regard to violations of Article 5 § 4 of the Convention, the Government declare that they offer to pay the applicant the amount of   EUR 2,500 (two thousand five hundred euro), 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 European Convention of 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 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 agreed to the striking out of part of the application regarding violations of his rights under Article 5 § 4 of   the Convention. He argued, however, that the decision to strike out part of the application should be made on the basis of Article 37 § 1 (b) as in respect of this part of the application the matter has been resolved. The applicant submitted that the striking out of an application on the basis of   Article 37 § 1 (c ) of the Convention may have an effect on all complaints in the case and not only on those which were acknowledged. He emphasised that his agreement covered only part of the application related to violations of Article 5 § 4 of the Convention and that he upheld his remaining complaint under Article 5 § 3 of the Convention. The Court observes that Article 37 of the Convention provides that it   may at any stage of the proceedings decide to strike an application or part of 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 or   part thereof 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”. Having regard to the applicant’s clear acceptance of the terms of the Government’s declaration and his willingness to have this part alone of the application struck out of the list, 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; Chruściński v. Poland , no. 22755/04, 6   November 2007, 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 ). The Court underlines that its decision to strike the case out of its list on the basis of Article 37 § 1 (c) concerns only part of the application regarding the acknowledged violations of Article 5 § 4 of the Convention and does not prejudice in any way the examination of the remaining complaint under Article 5 § 3 of the Convention. Accordingly, the part of the application which relates to the complaints under Article 5 § 4 of the Convention should be struck out of the list. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaint under Article 5 § 3 of the Convention; Decides to strike the application out of its list of cases in so far as   it   relates to the complaints under Article 5 § 4 of the Convention, in   accordance with Article 37 § 1 (c) of the Convention.   Lawrence Early   Nicolas Bratza     Registrar   President