FOURTH SECTION

FINAL DECISION

Application no. 34964/03 by Paweł KOWALSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 January 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 13 October 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the partial decision of 18 October 2005 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Paweł Kowalski, is a Polish national who was born in 1972 and lives in Częstochowa . 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

The applicant was arrested on 2 October 2001. On 3 October 2001 the Katowice District Court ( Sąd Rejonowy ) ordered that the applicant be detained on remand until 10 December 2001 in view of the reasonable suspicion that he had committed a series of offences while acting as a member of an organised armed gang. The court had regard to evidence obtained so far in the investigation, including evidence given by the State ’ s witnesses ( świadek koronny ). It added that the measure was justified by the complexity of the case and the fact that the applicant had not confessed. It also considered that, given that the applicant had not confessed and the risk that he might tamper with evidence, keeping him in detention was necessary to secure the proper conduct of the investigation.

The applicant ’ s appeal against the detention order and his further appeals against decisions prolonging his detention and his applications for release were unsuccessful.

On 3 December 2001 the Katowice District Court, on an application by the Katowice Appeal Prosecutor ( Prokurator Apelacyjny ), prolonged the applicant ’ s detention pending the outcome of the investigation until 2 January 2002. It reiterated the grounds previously given for his detention and added that the measure was also justified by the severity of the likely sentence.

On 13 December 2001 the Częstochowa Regional Court ( S ąd Okręgowy ) prolonged the applicant ’ s detention until 2 April 2002 , repeating the grounds that had been given in the previous decisions. It also stated that there was no risk that his continued detention would seriously jeopardise his life or health, or entail excessively harsh consequences for the applicant or his family.

Between 14 March and 4 December 2002 the courts prolonged the applicant ’ s pre-trial detention on 5 occasions. The relevant decisions were given by the Częstochowa Regional Court on the following dates: on 14 March 2002 (extending his detention until 10 June 2002 ), on 23 May 2002 (prolonging his detention until 10 September 2002 ) and on 5 September 2002 (extending his detention until 2 October 2002 ). Subsequently, further decisions prolonging the applicant ’ s detention were taken by the Katowice Court of Appeal ( Sąd Apelacyjny ) on the following dates: on 25 September 2002 (prolonging the applicant ’ s detention until 10 December 2002) and on 4 December 2002 (extending his detention up to 24 April 2003).

In all those decisions the courts relied on a strong suspicion that the applicant had committed the offences with which he had been charged. They considered that, if released, there was a risk that the applicant might go into hiding or tamper with evidence. The courts further stressed that the need to secure the proper conduct of the proceedings, especially the need to obtain extensive evidence, justified holding him in custody. They attached importance to the grave nature of the offences and the severity of the likely sentence.

On 24 February 2003 the investigation was terminated by the decision of the Katowice Regional Prosecutor ( Prokurator Okregowy ). On 25 February 2003 the prosecution filed a bill of indictment with the Częstochowa Regional Court against the applicant and his co-accused . The applicant was charged with eight offences, including extortion, robbery, unlawful possession of firearms and drugs smuggling while acting in an organised criminal gang.

On 23 April 2003 the Częstochowa Regional Court ordered that the applicant be kept in custody until 2 October 2003. The court referred to a strong likelihood that he had committed the serious offences with which he had been charged and stressed that a heavy penalty might be imposed on him. The court also relied on the complex nature of the case and the fact that 75 witnesses were to be heard.

Subsequently, the Katowice Court of Appeal prolonged the applicant ’ s detention pending trial on the following dates: on 17 September 2003 (extending his detention until 24 December 2003), on 17 December 2003 (prolonging that term until 24 June 2004), on 24 May 2004 (prolonging his detention until 24 December 2004), on 22 December 2004 (extending it until 24 April 2005), o n 20 April 2005 (ordering the applicant ’ s continued detention until 24 July 2005), on 13 July 2005 (prolonging his detention until 24 November 2005) and on 23 November 2005 (extending it until 24 January 2006). The court reiterated the grounds originally given for the applicant ’ s detention.

From 12 February 2004 to 21 December 2005 the applicant was serving a sentence of imprisonment which had been imposed on him in another set of proceedings.

On 13 July 2005 the Court of Appeal dismissed as unfounded the applicant ’ s complaint about the excessive length of the criminal proceedings.

On 21 December 2005 the trial court lifted the applicant ’ s detention. The applicant was released under police supervision. The court also issued an order prohibiting him from leaving the country.

Between July 2003 and December 2005 the trial court held 98 hearings. On 28 December 2005 the Częstochowa Regional Court gave judgment. The applicant was convicted as charged (except for one count of extortion) and sentenced to 7 years ’ imprisonment. The period of his detention on remand was deducted from his sentence.

2 . Monitoring of the applicant ’ s correspondence

On 20 October 2003 the Court received the applicant ’ s letter of 28 September 2003. The envelope bears the following stamps: “ Częstochowa detention Centre received on 29.09.2003” ( Areszt Śledczy w Częstochowie wpłynęło dnia 29.09.2003) and “Received for censorship without control on 1 October 2003 ” and an illegible signature and “Received for censorship without control on 8 October 2003 ” and an illegible signature.

COMPLAINTS

1. The applicant complain ed under Article 5 § 3 of the Convention about the excessive length of his pre-trial detention.

2. In respect of the monitoring of the applicant ’ s correspondence, the Court raised of its own motion a complaint relating to a possible breach of Article 8 of the Convention.

THE LAW

On 18 October 2005 the application was communicated to the respondent Government. On 13 June 2006 the Government ’ s observations on the admissibility and merits of the case were received and the applicant was invited to submit his written observations in reply by 4 August 2006. He failed to do so.

On 10 October 2006 the Registry sent, by registered post, a letter addressed to the applicant ’ s private address in which he was again requested to reply to the Government ’ s observations and advised that his failure to respond might result in the striking out of his application. However, the applicant did not reply. On 10 November 2006 the Registry sent to the applicant, by registered post, a further reminder addressed to the detention centre where he used to be held. He did not reply.

The Court infers from the applicant ’ s continued silence that he does not intend to pursue his application. Furthermore, the Court considers that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the case. In these circumstances, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list in accordance with Article 37 § 1 (a) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

T.L. Early Nicolas Bratza Registrar President