European Court of Human Rights

15 May 2009

FOURTH SECTION

Application no. 5258/08
by Grzegorz SZWEJER
against Poland
lodged on 18 January 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Grzegorz Szwejer, is a Polish national who was born in 1965 and lives in Warszawa.

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

On 9 November 2006 the applicant was arrested on suspicion of having committed several counts of robbery committed in organised criminal group. On the same date the Warsaw District Court (Sąd Rejonowy) remanded him 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 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.

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 violated the provisions of the Code of Criminal Procedure relating to the imposition of this measure.

In the course of investigation, the applicant’s detention was extended on 17 July 2007 (to 8 November 2007) and 19 October 2007 (to 8 February 2008). In their decisions on the matter the authorities relied on the original grounds given for the applicant’s detention. The courts also stressed that, owing to the complexity of the case, the investigation had still not been completed.

On 9 January 2008 a bill of indictment was lodged with the Siedlce Regional Court (Sąd Okręgowy).

On 19 February 2008 the Siedlce Regional Court requested the Lublin Court of Appeal (Sąd Apelacyjny) to refer the case to the Warsaw Regional Court.

On 5 March 2008 the Lublin Court of Appeal referred the case to the Warsaw Regional Court.

During the court proceedings the courts further extended the applicant’s detention pending trial on several occasions, namely on 11 August 2008 (to 3 October 2008), 2 October 2008 (to 28 February 2009) and on an unspecified subsequent date. The courts repeated the grounds previously given for the applicant’s continued detention. They attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would obstruct the proceedings.

The criminal proceedings against the applicant are still pending.

2. Access to the investigation file

On an unspecified date the applicant requested access to the investigation file. The request was dismissed.

On 2 December 2007 the applicant lodged a complaint about irregularities in the criminal proceedings against him. In particular, he complained about being denied access to the investigation file.

On 21 January 2008 the Warsaw Regional Prosecutor (Prokurator Okręgowy) informed the applicant that his complaint was unsubstantiated as he had been recently granted access to the investigation file. He further stated that, while it was true that the applicant had been denied access to the investigation file at the earlier stage of the proceedings, it had been justified by the need to secure the proper conduct of the investigation.

B.  Relevant domestic law and practice

1.  Pre-trial detention

The relevant domestic law and practice concerning the imposition of pre trial detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others, so-called “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).

2.  Access to the investigation file

Access to the file in the course of investigation is governed by Article 156 § 5 of the Code of Criminal Procedure of 1997, which provides:

“Unless otherwise provided by law, during the investigation the parties, defence counsel and legal representatives shall be allowed to consult the files and make certified copies and photocopies but only with the permission of the person conducting the investigation. With the permission of a prosecutor and in exceptional circumstances access to the files in the investigation may be given to another person.”

COMPLAINTS

QUESTIONS TO THE PARTIES

1.  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 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).

2.  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, given that the applicant had no access to the investigation file before January 2008, i.e. for a period of over one year and that he was detained on remand during this period?