Communicated on 19 January 2015

FOURTH SECTION

Application no. 26443/13 Łukasz KOZŁOWSKI against Poland lodged on 2 April 2013

STATEMENT OF FACTS

The applicant, Mr Łukasz Kozłowski , is a Polish national, who was born in 1983 and is currently being detained in the Lublin Remand Centre .

A. The circumstances of the case

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

On 12 September 2012 the applicant was arrested on suspicion of drug trafficking. During the search of his home the police secured drugs. The applicant was charged with supplying significant amounts of drugs to the market. He denied any involvement in drug trafficking.

On 14 September 2012 the Lublin- Zachód District Court remanded him in custody for a period of three months in view of a reasonable suspicion that the applicant had been involved in drug-trafficking together with another person. It had regard to the results of the search at the applicant ’ s home where a significant amount of drugs had been secured. The court also relied on the severity of the anticipated penalty and the risk of tampering with evidence. The applicant appealed.

On 13 September 2012 the applicant ’ s lawyer applied to the prosecutor for access to the investigation file. He relied on Article 156 § 5a of the Code of Criminal Procedure (“CCP”). On 21 September 2012 the Lublin Regional Prosecutor refused the applicant ’ s request. He noted that the principle of adversarial proceedings did not fully apply to the criminal investigation. The Code of Criminal Procedure authorised the party conducting the investigation (the prosecutor) to give a provisional priority to the interests of the investigation over the rights of the defence. The prosecutor found that in the case of granting access to the investigation file there was a risk of tampering with evidence or of preventing the arrest of other persons involved in criminal acts imputed to the applicant. The refusal was further justified by the ongoing process of gathering of the evidence in the case which concerned other persons. The prosecutor also noted that the right of access to the materials of the investigation was not absolute and had to be balanced against other legitimate interests, such as the protection of witnesses.

On 1 October 2012 the applicant ’ s lawyer appealed. He argued that the prosecutor had erred in finding that the applicant would tamper with the evidence or that there was any risk that other persons involved in criminal activities imputed to the applicant would not have been arrested. The applicant ’ s lawyer requested that as a minimum he should have been granted access to the file in as much as it concerned the prosecutor ’ s application for imposition of detention on remand.

On 4 October 2012 the Lublin Regional Court upheld the District Court ’ s decision remanding the applicant in custody. The applicant ’ s detention on remand was prolonged by a number of subsequent decisions.

On 11 October 2012 the Lublin Regional Prosecutor informed the applicant that he had upheld the earlier decision refusing access to the investigation file. No reasons were provided for this decision.

On 7 October 2013 the Lublin- Zachód District Court convicted the applicant of drug-trafficking offences and sentenced him to four and half years ’ imprisonment. On the same day the court prolonged the applicant ’ s detention on remand until 26 April 2014.

On an unspecified date the Lublin Regional Court quashed the first ‑ instance judgment and remitted the case.

On 15 May 2014 the applicant was released from detention on remand.

B. Relevant domestic law and practice

Access to the case file in the course of investigation was governed by Article 156 § 5 of the Code of Criminal Procedure of 1997, which provided, in so far as relevant, that l eave to consult the file and to make copies of the documents in the file was granted only with the consent of the authority conducting the investigation.

On 3 June 2008 the Constitutional Court ruled (case no. K 42/07) that this provision was incompatible with the Constitution in so far as it allowed the prosecutor to arbitrarily refuse access to part of the investigation file which served to justify an application to order a person’s detention on remand.

Following the Constitutional Court ’ s judgment, § 5a was added to Article 156 of the Code of Criminal Procedure. This provision entered into effect on 28 August 2009. It provides that in the course of an investigation the suspect or his defence counsel shall be granted access to the case file in part concerning evidence indicated in an application for imposition of detention on remand or decision imposing it. The same provision stipulates that in specific exceptional circumstances access to the case file may be refused.

COMPLAINT

The applicant complains under Article s 5, 6, 8 and 13 of the Convention that the refusal to grant him access to the investigation file violated the rights of the defence and prevented him from challenging the lawfulness of his detention.

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)?