Communicated on 7 April 2014

FOURTH SECTION

Application no. 10930/10 Wiesł aw BERECKI against Poland lodged on 1 February 2010

STATEMENT OF FACTS

The applicant, Mr Wiesł aw Berecki , is a Polish national, who was born in 1975 and lives in Lublin.

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

A. The applicant ’ s pre-trial detention and the criminal proceedings against him

On 9 October 2007 the applicant was arrested on suspicion of leading an organised criminal group and drug trafficking committed in an organised criminal group. On the same date the Lublin District Court ( SÄ…d Rejonowy ) remanded him in custody.

During the investigation the courts continually imposed the pre ‑ trial detention on the applicant.

On 2 June 2008 a bill of indictment was lodged with the Lublin Regional Court ( SÄ…d OkrÄ™gowy ). The applicant was charged with leading an organised criminal group and drug trafficking committed in an organised criminal group. The proceedings concerned sixteen co ‑ defendants at that time.

After the bill of indictment had been lodged, some of the accused submitted themselves to sentences. The charges against the remaining defendants were severed to be examined in separate proceedings. In consequence, the composition of the court had to be modified in June 2008 and, later, in December 2008. Each time the first hearing had to be rescheduled. Subsequently, from January until March 2009, the hearing was further rescheduled due to sick-leave of the presiding judge.

On 20 May 2009 the Lublin Regional Court opened the trial. At the hearing the applicant pleaded not guilty and refused to testify further as he had not had access to the whole case file. Subsequently, the court held nineteen hearings in the case. The applicant finally testified on 29 April 2010.

Meanwhile, his detention on remand was extended by the decisions of the Lublin Regional Court of 30 December 2008, 7 April, 27 May and 25 August 2009. The applicant unsuccessfully appealed against the decision of 7 April 2009. He also lodged several applications for release, but to no avail.

In the decisions prolonging the applicant ’ s detention the Lublin Regional Court relied on a strong suspicion that the applicant had committed the offences in question, the severity of the anticipated penalty, and the need to secure the proper conduct of the proceedings, justified by the fact that the applicant had been charged with offences committed in an organised criminal group.

Subsequently, the applicant ’ s detention on remand was extended by the decisions of the Lublin Court of Appeal ( Sąd Apelacyjny ) of 7 October and 2 December 2009 and of 27 January, 31 March and 26 May 2010. The applicant lodged appeals against the decisions of 27 January, 31 March and 26 May 2010. His appeals were dismissed by the Lublin Court of Appeal on 24 February, 12 May and on 23 June 2010 respectively. The Court of Appeal essentially repeated the grounds previously given for the applicant ’ s detention. It also examined the conduct of the proceedings by the trial court. It noted that several hearings had to be rescheduled by the court due to absences of the parties or due to sick-leave of the judges. It thus considered that the length of the proceedings did not result from any lack of due diligence on the part of the Regional Court.

On 28 July 2010 the Lublin Court of Appeal extended the applicant ’ s detention until 1 October 2010. It again relied on the grounds previously given for the applicant ’ s detention. It also urged the trial court to terminate the proceedings within the period for which the detention was extended.

The applicant was released on 1 October 2010 as the Lublin Court of Appeal had not prolonged his detention on remand beyond the period indicated in the decision of 28 July 2010.

On 16 June 2011 the Lublin Regional Court gave judgment (case no. IV K 394/08 ). It convicted the applicant of participation in an organised criminal group and of drug trafficking committed in an organised criminal group. The court imposed a cumulative sentence of six years of imprisonment on the applicant. The whole period of his detention was deducted from the sentence.

The applicant appealed against the first-instance judgment.

On 25 April 2012 the Lublin Court of Appeal quashed the first ‑ instance judgment and remitted the case for retrial as regards the charges against the applicant (case no. II AKa 235/11 ).

It appears that the proceedings are still pending.

B. Proceedings under the 2004 Act

The applicant lodged four complaints under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”).

In his complaint of 20 February 2009 he sought a finding that the length of the proceedings before the Lublin Regional Court had been excessive and 50,000 Polish zlotys (PLN) in compensation. He complained, in particular, about the delay in opening the trial by the court.

On 18 March 2009 the Lublin Court of Appeal dismissed his complaint (case no. II S 5/09 ). The court noted that although the bill of indictment was lodged with the Lublin Regional Court on 2 June 2008, the court still had not held the first hearing in the case. It nevertheless considered that this delay was not attributable to the court as it resulted from the fact that the charges against some of the accused were severed to be dealt with in separate proceedings and from justified absences of the judge and the parties. It found that the trial court had conducted the proceedings in a correct and timely manner.

On 27 July 2009 the applicant lodged another complaint under the 2004 Act with the Lublin Court of Appeal. On 2 September 2009 the Court of Appeal rejected the complaint on formal grounds pursuant to section 9 paragraph 2 of the 2004 Act. It found that it had been lodged less than twelve months after the dismissal of the applicant ’ s previous complaint (case no. II S 16/09 ).

On 14 April 2010 the Lublin Court of Appeal rejected the applicant ’ s complaint of 18 March 2010 on the same grounds (case no. II S 7/10 ).

On 22 April 2010 the applicant lodged another complaint under the 2004 Act. He sought a finding that the length of the appellate proceedings had been excessive and PLN 10,000 in compensation.

On 19 May 2010 the Lublin Court of Appeal dismissed the applicant ’ s complaint (case no. II S 16/10 ). The court considered that the length of the proceedings resulted from the complexity of the case and numerous procedural motions lodged by the parties.

C. Restrictions on the applicant ’ s contact with his family

In the period from October 2007 until July 2008 the applicant was detained in Chełmno Remand Centre.

During the investigation he was granted permissions to receive monthly visits from his family (comprising his wife, daughter born in 1999 and son born in 2006) by the investigating prosecutor. Most of these visits were “closed visits” (he was separated from the visitors by Perspex partition and they had to communicate through internal phone). The applicant ’ s wife did not bring their son to those visits, considering that those restrictions rendered any real contact with such a small child impossible.

At least once, in December 2007, the applicant was granted a permission to receive an “open visit” from his family (a visit during which the detainee and the visitors can have unrestricted conversation and direct physical contact). However, the applicant and his wife decided that his son should not participate in this visit.

After the bill of indictment had been lodged with the Lublin Regional Court on 2 June 2008, permissions for visits received by the applicant were to be granted by the trial court.

In July 2008 the applicant was transferred to Lublin Remand Centre.

In the period from 2 June 2008 until 22 May 2009, upon the decision of the trial court, the applicant was only granted “closed visits”.

On several occasions the applicant lodged complaints about the type of the visits he had been granted. He argued, in particular, that the Perspex partition prevented him from having any real contact with his son, who was at that time two years old. He also relied on the fact that he had been allowed to have direct contact with his family by the prosecution authorities.

By letter dated 6 March 2009 the President of the Lublin Regional Court informed him that there was no right to appeal against the decisions granting a visit of particular type.

The applicant petitioned several institutions complaining about his situation. He asked the Ombudsman ( Rzecznik Praw Obywatelskich ) and the Ombudsman for Children ’ s Rights ( Rzecznik Praw Dziecka ) to intervene in his case.

On 13 May 2009 the Ombudsman requested relevant information from the Lublin Regional Court.

By letter dated 2 June 2009 the President of the Lublin Regional Court informed the applicant that on 22 May 2009 the presiding judge had agreed to grant him “open visits”. The court referred to the fact that on 20 May 2009 the first hearing in the applicant ’ s case had been held and he had testified on this date.

In July 2009 the applicant received the first “open visit” from his family including his son. His son did not recognise him.

By letter of 24 July 2009 the Ombudsman for Children ’ s Rights informed the applicant that, according to the information submitted by the Lublin Regional Court, the applicant had testified at the hearing held on 20 May 2009 and he was to be granted "open visits" from his family afterwards.

The applicant claims to have received another “open visit” from his son in August 2009.

By letter of 25 September 2009 the Ombudsman informed the applicant that his case was considered to have been positively finalised . The Ombudsman referred to the letter of the Lublin Regional Court of 2 June 2009.

The applicant cl aims that from August 2009 the “dangerous detainee” regime was imposed on him. The visits he received from his family were to be supervised by armed prison officers. The applicant had to wear prison clothes during the visits. He and his wife feared that those conditions could have negative impact on his children. Upon their decision, the applicant ’ s children did not visit him at least until February 2010.

D. Relevant domestic law and practice

1. Length of pre-trial detention

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” ( Å›rodki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of KudÅ‚a v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; BagiÅ„ski v. Poland , no. 37444/97, §§ 42–46, 11 October 2005; and Celejewski v. Poland , no. 17584/04, §§ 22–23, 4 May 2006.

2. Length of proceedings

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court ’ s decisions in the cases of Charzy Å„ ski v. Poland ( dec. ), no. 15212/03, §§ 12–23, ECHR 2005 ‑ V and Ratajczyk v. Poland ( dec. ), no. 11215/02, ECHR 2005-VIII, and judgments in the cases of Krasuski v. Poland , no. 61444/00, §§ 34–46, ECHR 2005-V and Wende and Kukówka v. Poland , no. 56026/00, §§ 38–42, 10 May 2007 .

3. Right to visits in detention

The relevant domestic law and practice concerning the right to receive visitors by persons detained on remand, the procedure for granting a visit permission, the types of visits and the conditions for receiving visits by dangerous detainees are set out in the Court ’ s judgment in the case of Horych v. Poland , no. 13621/08 , § § 57-62, 17 April 2012.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that the length of his pre-trial detention was excessive.

2. He further complains under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him.

3. He also complains under Article 8 of the Convention about the restrictions on visits from his family imposed throughout his detention. He in particular complains about the fact that on several occasions he was not allowed to have direct contact with his family, including his two-year old son. He alleges that those decisions were arbitrary and that the domestic authorities did not take into account his personal situation.

QUESTIONS TO THE PARTIES

1. Did the length of the applicant ’ s pre-trial detention exceed a “reasonable time” within the meaning of Article 5 § 3 of the Convention?

2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Has there been a violation of the applicant ’ s right to respect for his family life guaranteed by Article 8 of the Convention on account of the restrictions on his right to receive visitors during his detention on remand?

The Government are requested to produce copies of the relevant documents, in particular a copy of the list of visits received by the applicant during his detention on remand.