FOURTH SECTION

FINAL DECISION

Application no. 22752/03 by Artur MIDERA against Poland

The European Court of Human Rights (Fourth Section), sitting on 12 December 2006 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 9 July 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 19 May 2005 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Artur Midera, is a Polish national who was born in 1970 and lives in Częstochowa . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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 24 April 2001 . On the following day the Katowice Regional Prosecutor ( Prokurator Okręgowy ) charged him with having participated in an organised armed gang led by a certain M.M. which had been set up to carry out robberies and supply illegal drugs. The Regional Prosecutor relied, inter alia , on evidence given by the State ’ s witnesses ( świadek koronny ). On the same day the Katowice District Court ( Sąd Rejonowy ) ordered the applicant ’ s detention on remand for three months on suspicion of having participated in an organised armed group. It observed that on the basis of witnesses ’ evidence obtained in the investigation there was a strong likelihood that the applicant had committed the offences. It pointed also to the risk that the applicant would tamper with evidence. That decision was upheld by the Katowice Regional Court ( Sąd Okręgowy ) on 30 May 2001 . Subsequently , the applicant was also charged with drunken driving.

On 19 July 2001 the Częstochowa Regional Court prolonged the applicant ’ s detention until 23 October 2001 . It relied on evidence given by three witnesses who had provided information about the structure of the criminal gang and identified its members. It also noted that given the complexity of the case it was necessary to continue the investigation in order to establish various aspects of the gang ’ s activities and determine the responsibility of its individual members. Lastly, it observed that there was a risk that t he applicant would obstruct the proceedings if released.

On 18 October 2001 the Częstochowa Regional Court prolonged the applicant ’ s detention until 10 December 2001 . In addition to the grounds previously give n, it found that the investigation could not be completed due to the large number of suspects, the wide -ranging scope of the investigation and various new issues in the case which kept emerging. That decision was upheld on appeal on 14 November 2001.

On 29 November 2001 the Regional Court ordered that the applicant be held in custody until 24 April 2002 . It relied on some of the grounds given in the previous decisions. It also noted that his continued detention was necessary in order to ensure the proper conduct of the proceedings , given the severity of the likely sentence and the related risk that t he applicant would tamper with evidence if released.

On 9 April 2002 the Katowice Appellate Prosecutor ( Prokurator Apelacyjny ) applied to the Katowice Court of Appeal ( Sąd Apelacyjny ) for the prolongation of the applicant ’ s detention until 10 June 2002. He relied on the need to o btain evidence from fingerprint and firearm s experts and submitted that it was also necessary to visit the scene of the crime and to confront the suspects with each other. On 17 April 2002 the Katowice Court of Appeal granted that application pursu ant to Article 263 § 4 o f the Code of Criminal Procedure. On 22 May 2002 the Court of Appeal ordered the further prolongation of the applicant ’ s detention until 10 December 2002 . In addition to the grounds previously relied on, it based its decision on the complex nature of the case which involved multiple charges against a few dozen co-accused and numerous expert reports. That decision was upheld on appeal by the Court of Appeal, sitting in a different panel of three judges, on 12 June 2002 . In its decision, replying to the applicant ’ s submission that he was in need of an orthopaedic surgery, the court found that such surgery could be performed in the prison hospital and that his state of health did not justify his release. On 4 December 2002 the Court of Appeal ordered a further prolongation of the applicant ’ s detention until 24 April 2003.

On 25 February 2003 the Regional Prosecutor filed a bill of indictment with the Częstochowa Regional Court against the applicant and his co-accused . The applicant was charged with six offences, including membership of an organised armed gang, attempted drug smuggling and unlawful possession of firearms. The prosecution requested the trial court to hear evidence from some 70 witnesses.

On 9 April 2003 the Court of Appeal ordered that the applicant and his 5 co-accused be held in custody until 24 December 2003 . That decision was upheld on appeal on 7 May 2003 .

Between 20 August and 18 September 2003 the applicant was held in the hospital of the Warsaw-Mokotów Detention Centre. On 1 September 2003 he underwent orthopaedic surgery.

On 13 December 2003 the Częstochowa Regional Court applied to the Katowice Court of Appeal for prolongation of the applicant ’ s detention and that of 5 of his co-accused until 24 June 2004. That application was granted on 17 December 2003 . The Court of Appeal emphasised the exceptionally complex nature of the case and the fact that , despite the good organisation of the trial , it had not been possible to complete the proceedings. The applicant appealed against that decision, arguing that the charges against him were groundless and invoking the poor state of his health. On 14 January 2004 the Court of Appeal, sitting in a different panel of three judges, upheld the contested decision. In respect of the applicant ’ s state of health, the Court of Appeal noted that the applicant had had surgery scheduled for 17 December 2003 in the hospital of the Warsaw-Mokotów Detention Centre, but that he had refused to be treated there.

On 26 May 2004 the Court of Appeal, on an application from the trial court, prolonged the applicant ’ s detention and that of 5 of his co-accused until 24 December 2004. It upheld all the previous grounds for the applicant ’ s detention. It also found that because of the large number of witnesses to be heard, both for the prosecution and the defenc e, the trial could not be terminated .

On 15 December 2004 the trial court made another application for the extension of the applicant ’ s detention until 24 April 2005. The Court of Appeal granted that application on 22 December 2004. The Court of Appeal further prolonged the applicant ’ s detention by decisions given on 20 April 2005 (until 24 July 2005) and 13 July 2005 (until 24 November 2005).

It appears that the trial court held about 50 hearings and that some of them had to be adjourned for reasons which could not be attributed to the court. The applicant ’ s numerous appeals against decisions prolonging his detention and his applications for release were unsuccessful.

It appears that the applicant is still in detention pending trial.

2 . Monitoring of the applicant ’ s correspondence

1. On 21 July 2003 the Court received the applicant ’ s letter of 8 July 2003 . The envelope bears the following stamps: “Code 118 Received on 09.07.2003. ( Kod 118 Wpłynęło dn. 09.07.2003r ), “Received for censorship on 14 July 2003 Secretary” ( Wpłynęło do cenzury dn. 14 LIP. 2003 Sekretarz ) and an illegible signature, and “Received for censorship without control 14 July 2003 ” ( Wpłynęło do cenzury bez kontroli dnia 14 VII 03r. ) and an illegible signature.

2. On 6 October 2003 the Court received the applicant ’ s letter of 14 September 2003 . The envelope bears the following stamps: “Warsaw-Mokotów Detention Centre received on 16.09.2003” ( Areszt Śledczy Warszawa-Mokotów wpłynęło dnia 16.09.2003 ) and “Received for censorship without control on 24 September 2003 ” and an illegible signature.

3. On 16 December 2003 the Court received the applicant ’ s letter of 30 November 2003 . The envelope bears a stamp that read: “Received for censorship without control on 3 December 2003 ” and an illegible signature.

4. On 3 February 2004 the Court received the applicant ’ s letter of 17 January 2004 . The envelope bears the following stamps: “Częstochowa Detention Centre Received on 20.01.2004” and “Received for censorship without control on 23 January 2004 ” and an illegible signature and “the Regional Court 42-201 Częstochowa II Section Criminal no. 23/25 Dąbrowskiego Street”.

5. On 9 February 2004 the Court received the applicant ’ s letter of 27 January 2004 . The envelope bears two stamps: “Częstochowa Detention Centre Received on 27 January 2004 ” and “Received for censorship without control on 30 January 2004 ” and an illegible signature.

6. On 19 March 2004 the Court received the applicant ’ s letter of 24 February 2004 . The envelope bears the following stamps: “Częstochowa Detention Centre Received on 24 February 2004 ” and “Received for censorship Received for censorship without control on 27 February 2004 Secretary” and an illegible signature.

7. On 2 August 2004 the Court received the applicant ’ s letter sent on an unspecified date in July 2004. The envelope bears the following stamps: “Częstochowa Detention Centre Received on 20 July 2004 ” and “Received for censorship without control on 22 July 2004 ” and an illegible signature.

8. On 16 February 2005 the Court received the applicant ’ s letter sent on an unspecified date in February 2005. The envelope bears the following stamps: “Częstochowa Detention Centre Received on 03.02.05” and “Received for censorship without control on 4 February 2005 ” 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 19 May 2005 the application was communicated to the respondent Government. On 18 October 2005 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 9 December 2005. He failed to do so.

On 12 July 2006 the Registry sent, by registered post, two letters addressed to the detention centre and 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. According to the postal slip, the applicant received the letter sent to his private address. However, he did not reply. The letter addressed to the detention centre was returned with a note that the applicant had been released on 21 December 2005. A further reminder from the Registry was sent to the applicant by registered post on 7 September 2006. 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