Communicated on 19 January 2015

FOURTH SECTION

Application no. 48218/13 Sławomir WIEWIÓR against Poland lodged on 17 July 2013

STATEMENT OF FACTS

The applicant, Mr Sławomir Wiewiór , is a Polish national, who was born in 1977. He is curre ntly detained at the Warsaw- Białołęka Remand Centre. He is represented before the Court by Mr J. Brydak , a lawyer practising in Warsaw .

A. The circumstances of the case

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

1. The investigation conducted by the Warsaw Regional Prosecutor (no. V Ds 14/12)

On 13 June 2012 the Warsaw- Mokot ó w District Court remanded the applicant in custody on suspicion of drug-trafficking offences. On 14 June 2012 Mr J. Brydak notified the Office of the Warsaw Regional Prosecutor that he was appointed a defence counsel for the applicant. He applied for access to the investigation file in part concerning evidence in support of the prosecutor ’ s application for imposition of detention on remand. He relied on Article 156 § 5a of the Code of Criminal Procedure (“the CCP”). He repeated his request on 22 June 2012. On 4 July 2012 the applicant ’ s lawyer complained to the Warsaw Regional Prosecutor about the prosecutor ’ s failure to rule on his request for access to the file. On 27 July 2012 he inquired why no decision has been taken on his complaint.

On 30 July 2012 the Warsaw Regional Prosecutor refused to grant access to the investigation file. He noted that in the framework of the investigation a several dozen persons had been remanded in custody on suspicion of drug ‑ trafficking offences. The prosecutor considered that granting access at this stage of the investigation would have prejudicial effect on the investigation and may lead to the risk of tampering with evidence. The applicant ’ s lawyer appealed.

On 31 October 2012 the Warsaw Regional Prosecutor informed the applicant ’ s lawyer that the investigation no. V Ds 14/12 will be joined to the investigation conducted by the Warsaw Appellate Prosecutor (see below).

2. The investigation conducted by the Warsaw Appellate Prosecutor

The applicant was arrested on 4 June 2012. The Warsaw Appellate Prosecutor charged the applicant with three counts of supplying significant amounts of drugs to the market. On 4 June 2012 Mr J. Brydak notified the Office of the Warsaw Appellate Prosecutor that he was appointed a defence counsel for the applicant. On the following day he requested the Office of the Warsaw Appellate Prosecutor to grant him access to the investigation file in part concerning evidence in support of the application for imposition of detention on remand. He relied on Article 156 § 5a of the CCP.

On 5 June 2012 the Warsaw- Wola District Court remanded the applicant in custody for a period of three months on reasonable suspicion that he had committed the offences referred to abov e. It found that there was a reasonable risk that the applicant might tamper with evidence and had also regard to the severity of the anticipated penalty. The applicant appealed.

On 6 June 2012 the Warsaw Appellate Prosecutor partly granted the request of the applicant ’ s lawyer. He decided that the applicant ’ s lawyer would be granted access to the records of questioning of the co-suspect R.M. who had incriminated the applicant. The prosecutor refused however to provide copies of those records. The applicant ’ s lawyer filed an interlocutory appeal.

It appears that the applicant ’ s lawyer did not receive copies of the records of questioning of the suspect R.M. On 6 June 2012 he again requested the prosecutor to provide him with the said copies.

On 12 July 2012 the Warsaw Appellate Prosecutor upheld the refusal of 6 June 2012. He noted that the applicant ’ s lawyer had been granted access to the requested part of the file with a view to preparing an appeal against a decision imposing detention on remand. With regard to the allegation that the decision was made on 6 June 2012, that is a day after the detention on remand had been imposed, the appellate prosecutor noted that it was objectively impossible to rule on the request any time earlier. The appellate prosecutor agreed that the refusal to provide the applicant ’ s lawyer with copies of the records of questioning was justified by the interests of the investigation. In this respect he noted that it was revealed only on 4 June 2012 that the suspect R.M. had started cooperating with the authorities.

On 1 August 2012 the Warsaw Regional Court upheld the decision to remand the applicant in custody.

On 21 August 2012 the Warsaw Appellate Prosecutor filed an application for prolongation of the applicant ’ s detention on remand. The applicant ’ s lawyer opposed the application. He argued that it was practically impossible to refute the prosecutor ’ s application because he had not been allowed access to the investigation file.

On 28 August 2012 the applicant ’ s lawyer applied for access to the investigation file in part concerning evidence relied on by the prosecutor in his application for prolongation of detention on remand.

On 29 August 2012 the Warsaw Regional Court prolonged the applicant ’ s detention on remand until 3 December 2012. The applicant appealed.

On 4 and 12 September 2012 the applicant ’ s lawyer repeated his request for access to the investigation file. These requests remained unanswered. On 28 September 2012 the applicant ’ s lawyer filed an interlocutory appeal with the Warsaw Appellate Prosecutor against the failure to determine his requests for access to the investigation file. He invoked, inter alia , Article 5 § 4 of the Convention.

On 2 October 2012 the Warsaw Court of Appeal upheld the Regional Court ’ s decision of 29 August 2012 extending the applicant ’ s detention on remand.

On 4 October 2012 the Warsaw Appellate Prosecutor decided to grant the applicant ’ s lawyer access to part of the investigation file concerning evidence against the applicant.

On 8 October 2012 the Warsaw Appellate Prosecutor decided not to entertain the interlocutory appeal of the applicant ’ s lawyer of 28 September 2012. He noted that access was granted in a decision of 4 October 2012. He admitted nonetheless that the prosecutor should have treated the applicant ’ s lawyer ’ s three requests for access to the investigation file as a matter of urgency.

On 6 November 2012 the applicant ’ s lawyer consulted some materials from the case file. On 8 November 2012 he received copies of these materials.

On 9 November 2012 the Warsaw Appellate Prosecutor informed the applicant ’ s lawyer that his interlocutory appeal against the decision of the Regional Prosecutor refusing him access to the file of the investigation had been lost. He was requested to provide a copy of the appeal if possible. The applicant ’ s lawyer provided those on 14 November 2012.

On 14 November 2012 the Warsaw Appellate Prosecutor served on the applicant ’ s lawyer copies of records from the investigation file. According to the applicant, these copies were illegible and concerned only a limited amount of evidence against the applicant.

On 19 November 2012 the Warsaw Appellate Prosecutor filed an application for extension of detention on remand.

On 23 November 2012 the applicant ’ s lawyer requested the prosecutor to allow him access to part of the investigation file concerning evidence referred to in the application for extension of detention on remand. He relied on Article 156 § 5a of the CCP. On 26 November 2012 the applicant ’ s lawyer requested access to additional materials from the investigation file.

On 27 November 2012 the Warsaw Appellate Prosecutor partly granted the request for access. The applicant ’ s lawyer was provided with copies of statements of the co-suspect A.G. incriminating the applicant. Parts of the statement referring to other persons were blanked out.

On 28 November 2012 the Warsaw Appellate Prosecutor refused to grant access to evidence of two unidentified co-suspects which supported the evidence of A.G. and R.M. incriminating the applicant. He considered that the refusal was justified by a risk of tampering with evidence and the risk that it might be impossible to arrest co-perpetrators of the offences imputed to the applicant.

On the same day the applicant ’ s lawyer requested the Warsaw Regional Court to postpone the hearing scheduled for 29 November 2012 at which the court was to rule on the prosecutor ’ s application for extension of detention on remand. He argued that the Appellate Prosecutor had provided him access to only some material referred to in his application for extension. This request was refused.

On 29 November 2012 the Warsaw Regional Court prolonged the applicant ’ s detention until 9 February 2013.

The applicant appealed. He submitted that he could not properly contest the application for extension of detention on remand since he had been refused access to all evidence supporting the application.

On 5 December 2012 the applicant ’ s lawyer filed an interlocutory appeal against the decision of 28 November 2012 partially refusing his request for access to materials from the investigation file. On 12 December 2012 he supplemented his interlocutory appeal.

On 15 January 2013 the Warsaw Court of Appeal upheld the Regional Court ’ s decision of 29 November 2012 prolonging detention on remand. The Court of Appeal noted that a refusal to grant access to the investigation file was possible only in exceptional cases; however in the present case the prosecutor ’ s refusal was justified by the risk that the evidence could have been tampered with.

On 18 January 2013 the Appellate Prosecutor filed an application for extension of detention on remand.

On 25 January 2013 the applicant ’ s lawyer, relying on Article 156 § 5a of the CCP, applied for access to evidence relied on by the prosecutor in support of his application. On the same day the applicant ’ s lawyer returned to the Appellate Prosecutor copies of the records of the questioning of the suspects A.G. and R.M. He complained that the records had been blanked out and that prevented him from comprehending the records.

On 29 January 2013 the applicant ’ s lawyer requested the Warsaw Regional Court to postpone the hearing scheduled for 31 January 2013 at which the court was to rule on the prosecutor ’ s application for extension of detention on remand. This request was refused on 30 January 2013. On the same day the court informed the applicant that the Appellate Prosecutor did not allow his access to the investigation file.

On 30 January 2013 the Warsaw Appellate Prosecutor dismissed the interlocutory appeal against the decision of 28 November 2012 refusing access to some materials in the investigation file.

On 31 January 2013 the Warsaw Regional Court prolonged the applicant ’ s detention on remand until 3 June 2013. The applicant ’ s lawyer appealed.

On 4 February 2013 the Appellate Prosecutor refused the request for access to evidence relied by the prosecutor in support of his application. He noted that under Article 156 § 5a of the CCP the applicant ’ s lawyer could have applied for access to a relevant part of the investigation file but not for access to evidence in the file.

On 13 February 2013 the applicant ’ s lawyer filed an interlocutory appeal. He explained that he applied for access to evidence in the file and that such requests had been allowed on earlier occasions. He relied, inter alia , on Article 5 of the Convention and the Court ’ s case-law.

On 4 March 2013 the Warsaw Appellate Prosecutor dismissed the interlocutory appeal.

On 7 March 2013 the Warsaw Court of Appeal upheld the Regional Court ’ s decision of 31 January 2013 extending detention on remand.

On 20 May 2013 the Appellate Prosecutor filed an application for extension of detention on remand. He enclosed 156 volumes of the investigation. The prosecutor informed the court he did not allow the suspects or their lawyers access to the file.

On 26 May 2013 the applicant ’ s lawyer informed the Warsaw Court of Appeal that he would not appear at the hearing scheduled for 28 May 2013 at which the court will examine the prosecutor ’ s application. He submitted that he continued to be refused access to the investigation file which prevented him from refuting the arguments put forward in the above ‑ mentioned application.

On 28 May 2013 the Warsaw Court of Appeal prolonged the applicant ’ s detention until 3 September 2013. The applicant appealed. He referred to the arbitrary refusals of the Appellate Prosecutor to grant him access to the investigation file. On 2 July 2013 a different panel of the Warsaw Court of Appeal dismissed the appeal.

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 alleges a violation of Article 5 § 4 of the Convention . He submits that the Warsaw Regional and Appellate Prosecutors repeatedly and arbitrarily refused him access to relevant parts of the investigation file. These refusals made impossible the exercise of the defence rights and contravened the principle of equality of arms. The applicant was deprived of liberty for a considerable period of time and his lawyer was refused access to evidence which constituted grounds for consecutive applications for extension of detention on remand. The applicant ’ s lawyer was deprived of a possibility to effectively challenge the lawfulness of detention on remand.

He further claims that there was no proper appeal procedure in the case of the prosecutor ’ s refusal to grant access because an appeal was decided by a superior prosecutor and there were no strict time-limits applicable. He submits that the courts did not have any power to overrule the prosecutor ’ s decision refusing access.

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 )?