CEDH · CASELAW;COMMUNICATEDCASES;ENG — 7 février 2019

.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 7 February 2019   FIRST SECTION Application no. 8734/13 Marcin SOBOLEWSKI against Poland lodged on 17 January 2013 STATEMENT OF FACTS The applicant, Mr Marcin Sobolewski, is a Polish national who was born in 1982 and lives in Warsaw. He is represented before the Court by Mr   M.   Korolczuk, 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. On 23 May 2012 the Warsaw Prosecutor of Appeal ( Prokurator Prokuratury Apelacyjnej ) decided to charge the applicant with being a key member of an organised armed criminal group aimed at committing of crimes including thefts, robberies, trading and dealing in drugs and procuring of sexual services (case no. Ap V Ds 99/11). On 28 May 2012 the applicant was arrested. On the same day the applicant’s defence counsel requested leave to consult the investigation file in the part concerning the evidence in support of the prosecutor’s application for imposition of detention on remand. His request was denied. The application to have the applicant detained on remand was lodged with the Warsaw-Wola District Court ( Sąd Rejonowy ) on 29 May 2012. It was based in a significant part on the testimony of a key prosecution witness (the so-called “crown witness”). On the same day the Warsaw-Wola District Court (case no.   III   Kp   1025/12) ordered the applicant’s detention on remand. The domestic court relied on the reasonable suspicion that the applicant had committed the offences in question and on the severity of the anticipated penalty. It also stressed that taking into consideration the alleged high position of the applicant in the criminal group and the links between the co-accused, it was probable that the applicant would try to obstruct the proper course of the investigation. The domestic court indicated that the reasonable suspicion that the applicant had committed the offences in question was based, in particular, on the testimony of a key prosecution witness, M.H., and indicated the most relevant parts of this testimony by referring to specific pages of the investigation file. On 31 May 2012 the applicant’s defence counsel submitted another request for leave to consult the case file. He asked for access to the evidence that constituted the basis for an application to have the applicant detained on remand and the evidence that was cited in the court’s decision. On 4 June 2012 the prosecutor denied access to the case file. The prosecutor relied on the fact that the investigation concerned an organised criminal group and that it was at its initial stages, when – in the prosecutor’s opinion – there was a risk of fabricating evidence or interfering with the effort to discover and arrest all the possible co-accused. The applicant’s defence counsel appealed against this decision. On 19   July 2012 the Warsaw Deputy Prosecutor of Appeal ( Zastępca Prokuratora Apelacyjnego ) upheld the decision of 4 June 2012. The prosecutor relied on the complexity of the case against the applicant, on the assumption that the sole fact that the applicant was detained on remand did not guarantee that he would not attempt to interfere with the proper course of the proceedings and on the probability that the applicant’s lawyer would discuss the evidence with his client. On 5 June 2012 the applicant lodged an appeal against the decision of 29   May 2012 ordering his detention on remand. On 5 July 2012 the Warsaw Regional Court ( Sąd Okręgowy – case no.   IX Kz 1376/12) dismissed the appeal. It indicated that the decision of 29   May 2012 contained references to specific evidence which substantiated the reasonable suspicion against the applicant. It also held that the testimony of M.H., in that part which referred to the applicant’s activities, had been corroborated by the statements of at least two other co-accused. In addition to that, the Regional Court reiterated that the circumstances of the case justified the probability that, if released, the applicant would interfere with the proper course of the proceedings. The court also referred to the applicant’s lawyer’s argument that he had had no opportunity to consult the case file. It stated that this fact was irrelevant for the assessment of the lawfulness of the applicant’s detention on remand as the decision concerning refusal of access to the case file had been well-reasoned and domestic law did not provide for the absolute right of the defendant and his or her lawyer to consult the case file at this stage of the criminal proceedings. The applicant’s defence counsel was granted leave to consult the investigation file on an unspecified date in late August 2012. The applicant’s detention on remand was subsequently prolonged on at least two occasions (on 24 August and 22 November 2012). The applicant has not informed the Court whether or when it ended. According to the submissions made to the Court, the criminal proceedings against the applicant are still pending. B.     Relevant domestic law and practice Until 27 August 2009 access to the case file in the course of an 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 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 the investigation file which served to justify an application to order a person’s detention on remand. Following the Constitutional Court’s judgment, § 5a was added to Article   156 of the Code of Criminal Procedure. This provision entered into force on 28 August 2009. As applicable at the relevant time, it provided that in the course of an investigation the suspect or his defence counsel should have been granted access to the case file in the part concerning the evidence indicated in an application for imposition of detention on remand or a decision imposing it. The same provision stipulated that access to the case file might have been refused in specific exceptional circumstances (if there was a justified fear that this would jeopardise the life or health of the victim or another party to the proceedings, would entail the risk of evidence being destroyed, concealed or forged or would hinder the identification and arrest of an accomplice to the offence with which the suspect has been charged or of perpetrators of other offences disclosed in the course of the proceedings, would reveal actions undertaken at the pre ‑ investigative stage or would entail the risk of obstructing the investigation by any other unlawful means). COMPLAINT The applicant alleges a violation of Article 5 § 4 of the Convention. He submits that his lawyer was deprived of the possibility to challenge effectively the lawfulness of his detention on remand owing to the fact that he was given no access to the investigation file. The applicant submits that the refusals to grant him access to the relevant part of the case file contravened the principle of equality of arms in the proceedings concerning the review of the lawfulness of his detention. QUESTION TO THE PARTIES 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? In particular, was the principle of equality of arms between the applicant and the prosecution respected in the present case notably in terms of access to the case file (see, among other authorities, Łaszkiewicz v.   Poland , no. 28481/03, §§ 72-85, 15 January 2008, and Piechowicz v.   Poland , no. 20071/07, §§ 198-204, 17 April 2012)?