Communicated on 22 August 2016

FOURTH SECTION

Application no. 58988/11 Szymon TOMKIEL against Poland lodged on 14 September 2011

STATEMENT OF FACTS

The applicant, Mr Szymon Tomkiel , is a Polish national who was born in 1983 and lives in Giby . He is represented before the Court by Ms K. ZÄ…bkiewicz , a lawyer practising in Suwa Å‚ ki .

A. The circumstances of the case

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

On 27 December 2010 the applicant was remanded in custody until 27 March 2011 by the Bia Å‚ ystok District Court, on suspicion of having been involved in smuggling cigarettes as part of an organised criminal group.

On 31 December 2010 the applicant ’ s defence counsel submitted a power of attorney to the Bia ł ystok appellate prosecutor and applied for access to the investigation file.

On 10 March 2011 the applicant ’ s defence counsel asked the Suwa ł ki Regional Court for leave to consult the prosecutor ’ s application for extension of the applicant ’ s detention. Sh e relied on Article 156 § 5 a of the Code of Criminal Procedure, which specifically provided for such a possibility.

On 14 March 2011 the Suwałki Regional Court replied that, according to the Białystok appellate prosecutor, the defence counsel was not allowed to consult the application for extension of the applicant ’ s detention or the investigation case file. However, n o formal order of the prosecutor was given, and accordingly no appeal was possible.

On 15 March 2011 the Suwa ł ki Regional Court extended the applicant ’ s detention on remand until 27 June 2011. Having regard to the complex nature of the case and the number of suspects involved, the court considered that there was a reasonable risk that he might tamper with evidence. In this connection, it had regard to the fact that several other potential suspects were still being sought. In addition, the applicant had been charged with participating in an organised criminal group which operated in Poland and Lithuania.

The applicant ’ s lawyer appealed.

On 7 April 2011 the Bia ł ystok Court of Appeal upheld the impugned decision. The court noted that the applicant had been charged with participating in an organised criminal group smuggling cigarettes on a large scale. The court also relied on the severity of the anticipated penalty. Furthermore, it dismissed the applicant ’ s allegations regarding the lack of access to the file. It stressed that Article 156 § 5 of the Code of Criminal Procedure allowed the prosecutor to limit the parties ‘ access to the case file in certain situations. Since the law s pecifically provided for such a possibility it was not justified to claim that the applicant was deprived of the right to defend himself.

B. Relevant domestic law and practice

The Code of Criminal Procedure addresses the issue of a detainee ’ s access to an investigation file in Article 156 § 5(a), which reads:

“ In the course of an investigation a suspect and his defence counsel shall be given partial access to the case file, including access to evidence indicated in a [prosecutor ’ s] application for the imposition or extension of detention on remand and [evidence] listed in a [court] decision imposing or extending detention on remand. The prosecutor may refuse to give access to this part of the case file only if there is a justified fear that this would: jeopardise the life or health of the victim or another party to the proceedings; entail a risk of evidence being destroyed, concealed or forged; hinder the identification and arrest of an accomplice to the offence with which the suspect has been charged, or of perpetrators of other offences disclosed in the course of the proceedings; reveal actions undertaken at the pre ‑ investigation stage; or entail a risk of obstructing the investigation by any other unlawful means.”

COMPLAINT

The applicant complains under Article 6 of the Convention that the proceedings regarding the extension of his pre-trial detention were not adversarial, and that he could not effectively challenge the lawfulness of his continued detention. In this respect, he refers to the refusal to provide his counsel with a copy of the prosecution ’ s application for extension of his detention or grant her access to the investigation file.

QUESTION TO THE PARTIES

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 (cf. Łaszkiewicz v. Poland , no. 28481/03 , 15 January 2008)? Reference is made to the fact that the applicant and his defence counsel were denied access to the investigation case file.