CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 janvier 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 23 January 2018   FIRST SECTION Application no. 46605/13 Paweł Wiesław ŁUCZAJ against Poland lodged on 12 July 2013 STATEMENT OF FACTS The applicant, Mr   Paweł Wiesław Łuczaj, is a Polish national who was born in 1978 and lives in Warsaw. He is represented before the Court by Mr   J.   Brydak, a lawyer practising in Warsaw. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was placed under arrest on 4   June 2012 on suspicion of drug-trafficking offences by the Warsaw Regional Prosecutor ( Prokurator Okręgowy ) under case no. V Ds 14/12. On the same day Mr   Brydak (“the lawyer”) notified the Warsaw Regional Prosecution Office ( Prokuratura Okręgowa ) that he had been appointed as the applicant’s lawyer and requested copies of all the decisions and reports concerning his client. On 5   June 2012 the applicant’s lawyer lodged a request for access to the part of the case file concerning the evidence the prosecutor had used for his application for the applicant’s detention on remand and for a copy of that part of the case file. He did not receive any   reply and on 6   June 2012 he took part in the hearing concerning the detention application without the evidence in question. At the hearing the Warsaw-Mokotów District Court ( Sąd Rejonowy ) decided to detain the applicant on remand for three months to 3   September 2012. Requests for access to the case file and copies of the material in question were repeated on 11 and 12   June 2012. On 15   June 2012 the Regional Prosecutor refused such access, noting that the investigation had led to several dozen people being remanded in custody on suspicion of drug-trafficking offences. The prosecutor considered that granting access to the case file at that stage would have a prejudicial effect on the investigation and lead to a risk of tampering with evidence. The lawyer lodged an interlocutory appeal against that decision. On 27   June 2012 the lawyer also lodged an appeal against the 6   June remand decision. On 12   July 2012 he requested that the Warsaw Regional Court ( Sąd Okręgowy ) postpone the hearing of that appeal to allow him to read the case file. The court had not dealt with the request and on 17   July 2012 upheld the detention decision. On 26   July 2012 the lawyer lodged another request for access to the case file and for copies of the documents mentioned in the prosecutor’s application for the applicant’s detention and in the court decision of 6   June 2012. He also wrote a letter to the Warsaw Regional Prosecutor, urging an examination of his interlocutory appeal against the decision of 15   June 2012 refusing him access to the case file. On 27   July 2012 the prosecutor dismissed his interlocutory appeal, finding that proceedings at the investigative stage were by their very nature not adversarial and so no issue arose of “equality of arms” between the prosecutor and suspects. On an unspecified date sometime before 22   August 2012, the applicant’s case was transferred to the Warsaw Appellate Prosecution Office ( Prokuratura Apelacyjna ) and was joined to case no. Ap   V   Ds 12/11. On 16, 22 and 28   August 2012 the lawyer lodged requests for access to the case file and for copies of the relevant documents. On 29   August 2012 the Warsaw Regional Court prolonged the applicant’s detention for three months, until 3   December 2012. On 4   September 2012 the lawyer lodged another request for access to the case file and for copies of documents. On 10   September 2012 the lawyer lodged an appeal against the decision of 29   August 2012, raising the argument that it had been worded in general terms and that the defence had had no access to the case file. On 12   September 2012 the lawyer lodged a further request for access to the case file and for copies of the relevant documents. On 2   October 2012 the Warsaw Court of Appeal ( Sąd Apelacyjny ) upheld the decision of 29   August 2012. On 4   October 2012 the Appellate Prosecutor ( Prokurator Apelacyjny ) allowed the access request of 28   August 2012, a decision which was served on the lawyer on 9   October 2012. On 8   October 2012 the lawyer lodged an interlocutory appeal, complaining that he had lodged eleven requests for access to the case file and had so far received only one refusal. On 25   October 2012 the Appellate Prosecutor decided to disregard that appeal, pointing out that the lawyer’s request had been allowed on 4   October 2012. On 9   November 2012 the Appellate Prosecutor sent a letter to the lawyer, informing him that his requests of 16   August and 12   September 2012 were missing. On 12   November 2012 the lawyer sent copies of those documents. On 16   November 2012 the Appellate Prosecutor allowed both requests, stating that the evidence listed in the application for the applicant’s detention and in the prolongation decision should be made available to the lawyer and that he should receive copies. On 26   November 2012 the lawyer lodged a request for access to certain pages from the case file containing depositions by two unnamed co-accused and to obtain a copy of that material. On 28   November 2012 the Appellate Prosecutor refused the request in writing and orally informed the lawyer’s trainee, who was present in the Appellate Prosecutor’s office, that the case file would not be made available. The lawyer lodged two interlocutory appeals, one each against the oral and written refusals. The Appellate Prosecutor dismissed the first appeal on 18   December 2012. On 29   November 2012 the Warsaw Regional Court prolonged the applicant’s detention for another three months, to 9   February 2013. The lawyer appealed but the Warsaw Court of Appeal upheld the decision on 15   January 2013. On 25   January 2013 the lawyer lodged a request for a copy of the evidence listed in the Appellate Prosecutor’s application to prolong the applicant’s detention. That day he also returned to the Appellate Prosecutor copies of the depositions by two co-accused, R.M. and A.G. He had been given the documents earlier but they were incomprehensible as part of the text had been blanked out. On 29   January 2013 the lawyer asked the Warsaw Regional Court to postpone a hearing scheduled for 31   January 2013 and to send the case file to the prosecution office to allow him access to it. The lawyer stressed that he had not received copies of all of the relevant documents and that those that he had received had been blanked out and incomprehensible. In a letter dated 22   January 2013 the Appellate Prosecutor opposed allowing the lawyer such access and on 30   January 2013 the Warsaw Regional Court informed him that it had refused his request. The Appellate Prosecutor also that day dismissed the lawyer’s interlocutory appeal against the decision of 28   November 2012. On 31   January 2013 the Warsaw Regional Court prolonged the applicant’s detention for another three months to 3   June 2013. The lawyer appealed, arguing that despite multiple requests he had not been able to consult the case file in a manner that would safeguard the applicant’s defence rights. On 4   February 2013 the Appellate Prosecutor refused the lawyer’s request of 25   January 2013, stating that Article   156 §   5a of the Code of Criminal Procedure only secured the right to have access to the case file, not to obtain copies of it. The lawyer lodged an interlocutory appeal, but the Appellate Prosecutor upheld the decision on 4   March 2013. On 7   March 2013 the Warsaw Court of Appeal dismissed the lawyer’s appeal against the decision of 31   January 2013. On 20   May 2013 the Appellate Prosecutor lodged an application to prolong the applicant’s detention on remand, together with 156 volumes of investigation documents. The prosecutor in charge informed the court he was not allowing the suspects or their lawyers to access the case file. On 27   May 2013 the lawyer informed the court that he would not take part in hearings as he had not been allowed access to the case file, despite many requests. On 28   May 2013 the Warsaw Court of Appeal prolonged the applicant’s detention until 3   September 2013. The lawyer appealed, again pointing out that he had not had access to the case file. On 2   July 2013 the Warsaw Court of Appeal upheld the earlier decision. On 13   August 2013 the Appellate Prosecutor lodged an application to extend the applicant’s detention on remand, together with 168 volumes of investigation documents. The prosecutor again informed the court that he was not allowing suspects or their lawyers to access the case file. On 29   August 2013 the Warsaw Court of Appeal prolonged the applicant’s detention until 9   December 2013. On 10   September 2013 the applicant’s other lawyer, Mr   P. Jezierski (“the second lawyer”), appealed against that decision but the Warsaw Court of Appeal upheld it on 24   September 2013. On 15   November 2013 the second lawyer applied to change the date the applicant was scheduled to consult the case file in the final stage of the investigation. He submitted that the applicant did not have enough time to read the case file and supported his request for some of the handwritten reports to be transcribed because they were illegible. He also requested that the applicant have an opportunity to view the contents of compact discs which were in the case file. On 20   November 2013 the Appellate Prosecutor dismissed that request and stated that it had only been made to protract the proceedings. It said that the applicant had been taken twenty-three times to the offices of the Warsaw Appellate Prosecutor’s Office, where he had been able to read the case file from 10   a.m. to 3   p.m. The reports the applicant had had difficulty reading had been read to him by officers of the Central Bureau of Investigation ( Centralne Biuro Śledcze ). The second lawyer appealed against that decision. On 25   November 2013 the Warsaw Appellate Prosecutor lodged a bill of indictment against the applicant and the case was registered under no.   XII   K 192/13. On 3   December 2013 the Warsaw Court of Appeal decided to keep the applicant in detention until 7   March 2014. On 10   December 2013 the second lawyer applied to the Warsaw Regional Court to have the case returned to the prosecutor in order to correct significant failings in the investigation. He pointed out that the applicant had not had time to read the final ten volumes of the case file. On 16   January 2014, the Warsaw Court of Appeal upheld the decision of 3   December 2013 after an appeal by the second lawyer. On 8   July 2014 the Warsaw Regional Court dismissed the request of 10   December 2013 and stated that any deficiencies in the investigation could be rectified during the court proceedings. Between hearings the case file was sent to the detention centre, where the applicant was able to read them for between one to three hours a day. However, he was not able to read them every day. B.     Relevant domestic law and practice Access to case files in the course of investigations 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 files and make copies of documents was granted only with the consent of the authority conducting the investigation. On 3   June 2008 the Constitutional Court ruled (case no.   K 42/07) that that provision was incompatible with the Constitution as it allowed the prosecutor to arbitrarily refuse access to the part of the investigation file which served to justify an application for a person’s detention on remand. Following the Constitutional Court’s judgment, paragraph 5a was added to Article   156, entering into force on 28   August 2009. It provides that during an investigation a suspect or his defence lawyer must be granted access to the part of the case file concerning evidence used in an application for the imposition of detention on remand or in a decision imposing such a restriction. It also states that access to the case file may be refused in specific exceptional circumstances. COMPLAINT The applicant complains under Article   5 §   4 of the Convention that the Warsaw Regional and Appellate Prosecutors repeatedly and arbitrarily refused him access to relevant parts of the investigation file. Those refusals made it impossible to exercise his defence rights and contravened the principle of equality of arms. The applicant was deprived of his liberty for a considerable period of time and his lawyer was refused access to evidence which constituted the grounds for consecutive applications to extend his detention on remand. The applicant’s lawyer was deprived of the possibility to effectively challenge the lawfulness of his detention on remand. QUESTION   Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article   5 §   4 of the Convention (see Piechowicz v.   Poland , no.   20071/07, § 204, 17   April 2012)?