DISSENTING OPINION OF JUDGE PAVLOVSHI

On 4 April 2006 the Fourth Section, having examined the case of Celejew ski against Poland , found a violation of Article 5 § 3 of the Convention.

I regret very much that I cannot agree with the majority ’ s decision in the present case. In my opinion, despite the fact that the applicant had spent quite a considerable period of time in pre-trial detention, there was no violation of the above-mentioned provision of the Convention.

In my view, the case before us is a border-line case which required more careful examination.

The applicant spent in pre-trial detention 3 years and 9 months, which, at first sight, seems to be excessive. But this is only at first sight. A slightly more attentive examination of the situation would show that in the particular circumstances of the present case this term was not excessive at all.

According to the Government ’ s observations, the applicant had a previous criminal record. On 6 March 1998 he was sentenced to 5 and a half years of imprisonment for armed robbery and stayed in prison till 5 October 1999 , when he was released as he started to co-operate with the Central Bureau of Investigation. However, once liberated, the applicant started to organise his own criminal gang. [1]

The applicant was detained on remand on 7 March 2002 in view of reasonable suspicion that he had committed several crimes including kidnapping for ransom and extorting protection money. [2]

On 14 August 2003 the Katowice Regional Prosecutor filed a bill of indictment against the applicant and nine other persons that comprised 41 charges. The applicant was indicted on 13 separate counts, all concerning offences, including three serious crimes, committed when acting in an organised group.

On 2 June 2004 the Katowice District Court decided to detain the applicant pending trial in connection with another set of criminal proceedings against him. Subsequently, the applicant was indicted in this set of proceedings too.

On 20 December 2005 the Częstochowa Regional Court gave judgment. The applicant was convicted and sentenced to 14 years imprisonment.

It is not clear from the material at our disposal when the applicant ’ s case was transmitted for the court ’ s consideration, but it was not later than 17 October 2003 , when according to the Government ’ s observations this case was sent to the Częstochowa Regional Court . That means that the preliminary investigation in the present case was finalised within 19 months. During this period of time the Polish authorities had managed to collect evidence about 41 offences believed to have been committed by 10 accused persons operating in the regions of Silesia and Małopolska between October 2000 and March 2001. [3]

Taking into consideration the impressive volume of work done by the investigative authorities in the present case, I fail to understand why the majority did not take it into consideration. In my personal view, 19 months for such a huge amount of investigative work could indeed be considered a record, and it would be unfair to criticise the Polish authorities for that.

As far as the judicial examination of the case is concerned, it took another period of 26 months to have the criminal charges against the applicant determined.

On 22 October 2004 and 20 May 2005 the Katowice Court of Appeal further prolonged the applicant ’ s detention. In the latter decision the court examined the course of the trial and found that there had been no delays and that the trial had proceeded according to the schedule. The court pointed to the particular complexity of the case involving the organised group charged with numerous offences and the substantial amount of evidence adduced.

Indeed, it seems that, in his complaint the applicant did not substantiate any period of unjustified inactivity by the courts which in theory could have been attributed to the Polish authorities.

Moreover, as can be seen from the Government ’ s objections – which, it seems, were not questioned by the applicant - a substantial part of the length of the judicial examination of the applicant ’ s case is attributable to the applicant himself as well as to his lawyer.

For example, on 18 March 2005 the applicant filed a request for remission of the case to the prosecutor “to complete the proceedings by presentation of the new charge of Article 258 § 3 of the Criminal Code”. On 22 March 2005 he filed a request for confrontation between the co-accused M.B. and a witness A.Z . On 28 June 2005 he formulated four new requests for evidence and so on and so forth. [4]

In my view, the period of 26 months for the judicial examination of the case against the applicant and 9 other persons, charged with 41 offences, committed in different regions of Poland, with no unjustified delays, regularly scheduled and held hearings, and in conditions where the applicant himself contributed to the prolongation of the trial cannot be regarded as an excessively long period requiring the international protection of the applicant ’ s rights under Article 5 §3.

Taking into consideration the applicant ’ s previous criminal record, the seriousness of the charges against him, the number of offences he was charged with, as well as all the above reasons, combined with the fact that while prolonging the applicant ’ s detention the national judicial authorities had regularly given new grounds justifying and explaining their decisions, I consider that in this case there were “relevant” and “sufficient” reasons for the applicant ’ s detention and that the Polish authorities did exercise the special diligence they are expected to observe in such cases.

Moreover, the heavy sentence - 14 years of imprisonment - inflicted on the applicant for his criminal activity, unlike in the case of Dudek v. Poland [5] , objectively justifies both the seriousness of the suspicions and the charges against him and the existence of the evidence backing them.

To conclude, I consider that in the case before us there has been no violation of the applicant ’ s rights under Article 5 §3 of the Convention.

[1] See the Government’s observations, pages 1-2

[2] See the present judgment, paragraph 6

[3] see the Government’s observations, page 2

[4] see the Government’s observations, page 4

[5] see Dissenting opinion in the case of Dudek v Poland