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Cite as: [2010] ECHR 1002

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FOURTH SECTION

DECISION

Application no. 20920/04
by Ihar MARKEVICH
against Poland

The European Court of Human Rights (Fourth Section), sitting on 1 June 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 10 May 2004,

Having regard to the declaration submitted by the respondent Government on 1 December 2009 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ihar Markevich, is a Belarusian national who was born in 1966 and lives in Łódź. He was represented before the Court by Ms J. Pawłowska, a lawyer practising in Łódź. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, 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.

The applicant did not complain to the domestic court of the unreasonable length of the proceedings under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time, which entered into force on 17 September 2004.

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

During the applicant's pre-trial detention, both at the investigation and the trial phase, a certain Polish citizen, Ms. A.S. applied several times to the prosecutor, asking for a right to visit the applicant in the remand centre. She introduced herself as the acquaintance of the applicant's family and stated that talking to the applicant was important because of unspecified affairs of her own family.

The applicant's mother, who could not leave Belarus, also applied to the prosecutor, asking that Ms. A.S. be granted a right to visit the applicant on her behalf.

The applicant himself applied once to be allowed to receive Ms A.S. as his visitor in the remand centre.

During the investigation phase of the applicant's criminal case, which lasted two and a half years, the prosecutor granted Ms. A.S. a right to visit the applicant in the remand centre only once at the very early stage of the preliminary proceedings and rejected an unspecified number of subsequent applications made by Ms. A.S.

The visit took place on 12 March 2003 in the presence of an officer of the Central Investigation Agency (Centralne Biuro Śledcze).

On 11 May 2004 the Katowice Regional Prosecutor (Prokurator Prokuratury Okręgowej) informed Ms. A. S. by a formal letter that her application had not been granted because of the character of the investigation (character śledztwa). It was further noted that at that stage of the investigation the only method of communication authorised was by mail send via the prosecutor's office.

By letter of 21 July 2004 the same 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 officer of the Central Investigation Agency would have to be present.

As soon as the investigation was completed Ms. A.S. was allowed to visit the applicant in the remand centre without any obstacles.

In addition, on an unspecified date during the judicial phase of the proceedings the applicant's Belarusian cousin living in Poland, Ms. E.D., was granted a right to visit the applicant in the remand centre.

B. Relevant domestic law and practice

1. Preventive measures, including pre-trial detention

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.

2. Remedies for unreasonable length of proceedings

The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

3. Detainees' right to receive visitors in remand centre

The relevant domestic law and practice concerning detainees' right to receive visitors in remand centre are stated in the Court's judgment in the case of Gradek v. Poland, no. 39631/06, §§ 21-25, 8 June 2010.

COMPLAINTS

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

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

Moreover, he complained 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, the applicant complained that the restrictions imposed by the prosecutor on his right to receive visitors during his pre-trial detention were in breach of his right to respect for his family life under Article 8 of the Convention.

THE LAW

A. Length of the applicant's pre-trial detention

The applicant complained of the unreasonable length of his pre-trail detention relying on Article 5 § 3 of the Convention, which, in so far as relevant, reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

By letter dated 1 December 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“(...) the Government hereby wish to express – by way of unilateral declaration – its acknowledgment of the applicant's pre-trial detention was not compatible with the “reasonable time” requirement within the meaning of Article 5 §3 of the Convention.

In these circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 10,400. ... The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points...”

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references). Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, it should be struck out of the list.

B. Remaining complaints

1. Complaints under Article 6 §§ 1 and 3 (a)

The applicant further complained under Article 6 § 1 of the Convention of the unreasonable length of the criminal proceedings against him and under Article 6 § 3 (a) of the Convention that he had not had the assistance of an interpreter when the charges were brought against him.

Article 6 § 1 of the Convention, in its relevant part, provides:

“In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ...”

Whereas, Article 6 § 3 (a) of the Convention reads as follows:

“ Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”.

However, pursuant to Article 35 § 1 of the Convention:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”.

The Court observes that the impugned criminal proceedings are still pending before the domestic courts and there has been no final ruling against the applicant. The complaint under Article 6 § 3 (a) of the Convention must therefore be considered premature.

As regards the complaint under Article 6 § 1 of the Convention, the Court notes that the applicant did not avail himself of the remedy against the unreasonable length of the proceedings provided the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time, which entered into force on 17 September 2004.

It follows that both complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. Complaint under Article 8

“1. Everyone has the right to respect for his ... family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government in their observations on the case submitted that the limitation on the applicant's right to receive visitors in the remand centre was in accordance with the law and necessary to secure the proper conduct of the preparatory proceedings. The prosecutor's multiple decisions not to allow Ms. A.S. to visit the applicant in the remand centre were taken in the interest of the investigation and they were accompanied by a short reasoning. The applicant was charged with offences, which had allegedly been committed within an international organised criminal gang and the authorities suspected that he would induce potential witnesses to give false testimony. Moreover, at the early stage of the proceedings, the authorities had a reasonable suspicion that an unidentified person with a name similar to that of Ms. A.S. was a member of the applicant's gang. The authorities could not exclude, at that time, that the person in question was Ms. A.S. herself.

In consequence, Ms. A.S. was allowed to visit the applicant during the investigation phase only at the very early stage when she was not yet considered as a likely witness in the applicant's case. That visit took place on 12 March 2003 in the presence of an officer of the Central Investigation Agency.

The Government also stressed that in the judicial phase of the proceedings, when Ms. A.S. was no longer considered as a potential witness, there were no obstacles to her visits in the remand centre.

In addition, the Government submitted that the applicant had received a visit from his cousin and had been allowed to contact his family by post.

The applicant did not make any comments.

The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on private and family life. Such restrictions as limitations on the number of family visits, supervision of those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special arrangements for visits constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision (see Kucera v. Slovakia, no. 48666/99, §§ 127-128, 17 July 2007 and Lorsé and Others v. the Netherlands, no. 52750/99, § 72). However, it is an essential part of a detainee's right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, mutatis mutandis, Messina v. Italy (no. 2) no. 25498/94, § 61, 28 September 2000).

Any restriction of that kind must be “in accordance with the law”, pursue one or more legitimate aims listed in paragraph 2 and, in addition, must be justified as being “necessary in a democratic society”.

The Court will examine this complaint relying on the assumption that Article 8 of the Convention applies in the circumstances of the case since Ms A.S. was presumably a close friend delegated to visit the applicant by his family residing abroad. It follows that the Courts considers that the decisions complained of amounted to “interference” with the exercise of the applicant's rights guaranteed by this provision.

The contested measures were applied under Article 217 of the Code of Execution of Criminal Sentences. This provision, as applicable at the material time, gave the relevant authority (prosecutor or court) the power to grant permission for family visits in prison. The law, however, provided no details as regards the conditions for granting such permission, no guidance as to how the authorities might decide whether the prohibition of visiting rights was merited in a particular case, and what factors might be relevant to that decision. It further did not provide for a possibility to appeal against the refusal of visits. The decision was left to the authorities' absolute discretion.

In this respect the Court notes that on 2 July 2009 the Constitutional Court declared Article 217 § 1 of the Code of Execution of Criminal Sentences unconstitutional. The Court further observes, that it has already held that Article 217 § 1 of the Code of Execution of Criminal Sentences did not indicate with reasonable clarity the scope and manner of the exercise of any discretion conferred on the relevant authorities to restrict visiting rights (see Wegera v. Poland, no. 141/07, § 74-75, 19 January 2010). For these reasons the Court has recently concluded in the case of Gradek v. Poland (cited above) that an unreasoned refusal of family visits in detention was not in accordance with the law.

The Court recalls that in the above mentioned case of Mr Gradek the prosecutor refused the requests of the applicant's wife to visit him in prison in the form of handwritten and blunt notes made on her applications – “no permission” and “permission refused” respectively (see Gradek v. Poland, cited above, §§ 9-10). In contrast, in the instant case, the prosecutor informed Ms. A.S. that at the material time the refusals were made in the interest of the investigation which had a particular character as it concerned allegations of serious offences committed by an international organised criminal gang.

In the particular circumstances of the instant case the Court concludes that the refusals of family visits during the applicant's pre-trail detention were reasoned and thus, the interference was thus in accordance with the law.

The Court further observes that the limitations on the applicant's contact with Ms A.S. were imposed only during the investigative part of the proceedings on the ground that Ms. A.S. was likely to be summoned as a witness in the applicant's criminal case and in the light of the risk that the applicant would try to induce potential witnesses to give false testimony. The impugned measure can accordingly be considered as having been taken in pursuance of “the prevention of disorder and crime”, which is a legitimate aim under Article 8.

Lastly, in the light of the information before it the Court considers that the authorities struck a fair balance between the need to secure the process of obtaining evidence in the applicant's case and his right to respect for his family life while in detention. It has not been shown that the measure complained of went beyond what was necessary in a democratic society “to prevent disorder and crime” in the context of family visits in prison during pre-trial detention and an on-going investigation concerning an organised international criminal gang.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government's declaration in respect of the complaint under Article 5 § 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President