7 April 2009

FOURTH SECTION
Application no. 33314/06
by Dariusz KACZMAREK
against Poland
lodged on 3 August 2006
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Dariusz Kaczmarek, is a Polish national who was born in 1975 and lives in Warszawa. He is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warszawa.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  First set of criminal proceedings against the applicant
On 12 July 2002 the applicant was arrested on suspicion of having committed several counts of theft, robbery and an assault on a police officer committed while acting as part of an organised criminal group.
On 16 July 2002 the Warsaw District Court (Sąd Rejonowy) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question.
The court indicated that the evidence gathered in the case, in particular the testimonies of a crown witness and those of other suspects, showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings. The court also referred to the risk of his absconding and going into hiding given the fact that the applicant had previously been sought by a “wanted” notice. The court found no special grounds, as laid down in Article 259 § 1 of the Code of Criminal Procedure, that would justify imposing a less severe preventive measure.
In the course of the investigation, the applicant’s detention was extended on several occasions by the domestic courts’ decisions.
An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals, he argued that his lengthy detention was against the law.
On an unspecified date a bill of indictment was lodged with the Warsaw District Court. The applicant was charged with several counts of theft, burglary and an assault on a police officer.
On 23 November 2005 the Warsaw District Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment and a fine. The applicant appealed.
On 10 November 2006 the appellate court quashed the first-instance judgment in respect of the applicant and referred the case back for reconsideration.
During the court proceedings the courts further extended the applicant’s detention on 10 November 2006 (to 15 January 2007), 11 January 2007 (to 14 May 2007), on unspecified subsequent dates, on 2 April 2008 (to 11 August 2008) and on an unspecified subsequent date.
On 5 November 2008 the Warsaw District Court found the applicant guilty of several counts of theft, robbery and an assault on a police officer committed while acting as part of an organised criminal group. The court sentenced the applicant to eleven years’ and nine months’ imprisonment and a fine.
It seems that the applicant appealed and the proceedings before the Warsaw Regional Court are still pending.
2.  Second set of criminal proceedings against the applicant
On 27 January 2004 the Warsaw District Court (Sąd Rejonowy) remanded the applicant in custody, relying on the reasonable suspicion of several offences of theft and robbery.
The court indicated that the evidence gathered in the case showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings.
In the course of investigation and during the court proceedings, the applicant’s detention was extended on several occasions by the domestic courts’ decisions. In all their decisions the authorities relied on the original grounds given for the applicant’s detention.
An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals, he argued that his lengthy detention was against the law.
On 15 December 2006 the Warsaw District Court found the applicant guilty as charged and sentenced him to ten years’ imprisonment. The applicant appealed.
On 11 September 2007 the appellate court quashed the first-instance judgment in respect of the applicant and referred the case back for reconsideration.
During the re-trial proceedings the authorities further extended the applicant’s detention on several occasions, namely on 9 January 2008 (to 26 May 2008), 14 April 2008 (to 26 May 2008) and on unspecified subsequent date.
It seems that the proceedings against the applicant are still pending.
3.  The alleged ill-treatment of the applicant
On several occasions the applicant sought to institute criminal proceedings against police officers and prison guards, alleging that he had been ill-treated (beaten, tormented, insulted and intimidated) during his arrest and especially when being brought by the police to the hearings.
On 11 August 2006, 9 May 2007, 31 December 2007, 14 February 2008 and 22 February 2008 the Warsaw District Prosecutor refused to institute an investigation into the applicant’s allegations of abuse of power by the police officers and prison guards. The prosecutor held that there had been insufficient evidence in favour of the applicant’s assertion that the police officers and prison guards had committed an offence.
It appears that the applicant did not appeal against those decisions.
With respect to three other complaints about the ill-treatment on the part of police officers, the applicant failed to submit to the Court the documents supporting his allegations. In particular he did not submit the District Prosecutor’s decisions to discontinue the proceedings against the police officers.
4.  Conditions of the applicant’s detention
The applicant filed at least sixty two complaints about bad conditions in the Warsaw-Białołęka and the Warsaw-Mokotów Detention Centre (Areszt Śledczy), namely about the heating in his cell being broken, about the lack of light in the cells in the evenings, unhealthy food, dirty bedclothes, presence of a foreigner within the inmates, not receiving a criminal code, ragged clothes, slippery pavements in the prison yard and placing him in solitary confinement for fourteen days as a disciplinary punishment.
All the applicant’s complaints were speedily and duly examined by the competent national authorities and dismissed as unfounded.
B.  Relevant domestic law and practice
The relevant domestic law and practice concerning the imposition of pre‑trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others “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 August 2006).
COMPLAINTS
1.  The applicant complains under Article 5 § 3 of the Convention of the unreasonable length of his pre-trial detention in respect of both sets of criminal proceedings against him.
2.  Invoking Article 3 of the Convention, the applicant complains about the conditions of his detention and the alleged ill-treatment on the part of police officers and prison guards.
QUESTION TO THE PARTIES
Has the length of the applicant’s pre-trial detention exceeded a “reasonable time” within the meaning of Article 5 § 3 of the Convention?

In this context, the parties are also invited to make their observations having regard to:

-  the Committee of Ministers’ Interim Resolution CM/ResDH(2007)75 of 6 June 2007 stating that that the great number of the Court’s judgments finding Poland revealed a structural problem; and
-  the Court’s judgment in the case of Kauczor v. Poland (no. 45219/06) of 3 February 2009 (not final) holding that numerous cases brought to the Court have demonstrated that the excessive length of pre-trial detention in Poland reveals a structural problem consisting of “a practice that is incompatible with the Convention (see, in particular, paragraphs 56-62).