European Court of Human Rights

22 May 2009

FOURTH SECTION

Application no. 20920/04
by Ihar MARKEVICH
against Poland
lodged on 10 May 2004

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Ihar Markevich, is a Belarusian national who was born in 1966 and is currently living in Łódź, Poland. He is represented before the Court by Ms A. Senczenko, a Polish citizen and a friend of the applicant’s family.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The applicant’s pre-trial detention and criminal proceedings against him

On 15 February 2002 the applicant was arrested on suspicion of having been involved in drug trafficking as a member of an organised criminal gang.

On 18 February 2002 the Katowice District Court (Sąd Rejonowy) remanded the applicant in custody in view of the reasonable suspicion that he had committed the offence in question. The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings given the risk that he might attempt to induce witnesses to give false testimonies. The court also stressed the fact that the applicant did not have a permanent residence in Poland.

The applicant’s detention was subsequently extended by several decisions of the Szczecin District Court, Szczecin Regional Court (Sąd Okręgowy) and the Katowice Court of Appeal (Sąd Apelacyjny). In their decisions, the courts repeatedly relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences, the complexity of the case, the fact that the applicant did not have a permanent residence in Poland and the risk that he would obstruct the proceedings or become a fugitive. The courts considered the latter arguments particularly valid, in the light of the fact that the applicant had already been convicted of serious offences in his home country.

Interlocutory appeals lodged by the applicant’s lawyer were rejected.

On 14 December 2004 the prosecutor lodged a bill of indictment with the Katowice Regional Court against the applicant and thirty-two other co accused. The applicant was indicted on multiple counts of drug trafficking and money counterfeiting, which he had allegedly committed as a member of an organised criminal gang.

The applicant’s detention was further extended pending trial before the first instance court.

The applicant submitted that since the date of his arrest only two trials had taken place.

On 30 October 2007 the Katowice Regional Court ordered that the applicant’s passport be seized as a security.

It appears that on 5 November 2007 the applicant was released from detention.

The proceedings before the first-instance court have not yet been terminated.

2.  Restrictions on the applicant’s right of visit during his detention

During the applicant’s pre-trial detention, his mother, who could not leave Belarus, applied several times to the prosecutor, asking that a certain A.S., a Polish citizen and a friend of the applicant’s family be granted a right to visit the applicant in the remand centre.

It appears that, during the entire investigation against the applicant, which lasted 2.5 years, A.S. was allowed to visit the applicant only once.

By letter of 21 July 2004 the Katowice Regional Prosecutor informed the applicant’s mother that, in principle, third persons could not be granted a right to visit the applicant in the remand centre. On the other hand, she was assured that such a right would be granted to her personally. In such case, however, the conversation between her and her son would have to be in Polish and an agent of the Central Investigation Agency (Centralne Biuro Śledcze) would have to be present.

B.  Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated 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

The applicant complains under Article 5 § 3 of the Convention of the length of his pre-trial detention.

He also complains under Article 6 § 1 of the Convention of the unreasonable length of the criminal proceedings against him.

Moreover, he complains under Article 6 § 3 (a) of the Convention that he did not have the assistance of an interpreter when the charges were brought against him.

Lastly, he complains under Article 8 about the restrictions on his right to receive visitors.

QUESTIONS TO THE PARTIES

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 in violation of Article 5 § 3 of the Convention on account of the unreasonable length of pre-trial detention revealed a structural problem; and

-  the Court’s judgment in the case of Kauczor v. Poland (no. 45219/06) of 3 February 2009 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).

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?