FOURTH SECTION
DECISION
Application no. 36321/08
Arkadiusz SOŁOBODOWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 21 February 2012 as a Committee composed of:
	David Thór Björgvinsson, President,
	Nebojša Vučinić,
	Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 28 July 2008,
Having regard to the declaration submitted by the respondent Government on 16 November 2011 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
1.  The applicant, Mr Arkadiusz Sołobodowski, is a Polish national who was born in 1983 and is currently detained in Iława Prison. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A.  The circumstances of the case
2.  The facts of the case, as submitted by the parties, may be summarised as follows.
1.  Criminal proceedings against the applicant and his pre-trial detention
3.  On 15 March 2005 the applicant was arrested on suspicion of robbery and murder.
4.  On 17 March 2005 the Nowe Miasto Lubawskie District Court (Sąd Rejonowy) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offence in question. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings.
5.  An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful.
6.  On an unspecified date the prosecution filed a bill of indictment with the Elbląg Regional Court (Sąd Okręgowy). The applicant was charged with robbery and aggravated murder.
7.  On 7 November 2005 the trial court held the first hearing. It subsequently held 15 hearings. Throughout the proceedings the applicant was represented by a legal-aid lawyer who actively participated in the trial by lodging motions and questioning witnesses.
8.  During the court proceedings the courts further extended the applicant’s pre-trial detention on several occasions, namely on 6 June 2005 (to 30 September 2005), 27 September 2005 (to 31 December 2005), 19 December 2005 (to 31 March 2006) and on an unspecified subsequent date.
9.  The courts repeated the grounds previously given for the applicant’s continued detention. They also emphasised the need to obtain further items of evidence such as a mental health report on two other accused, expert reports on dactyloscopic data and the DNA testing as well as the ballistics report. Finally, the court found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Code.
10.  On 29 June 2006 the Elbląg Regional Court found the applicant guilty as charged and sentenced him to 15 years’ imprisonment.
11.  The applicant appealed. He remained detained pending the appellate proceedings.
12.  On 13 December 2006 the Gdańsk Court of Appeal (Sąd Apelacyjny) quashed the impugned judgment and remitted the case.
13.  During re-trial the courts further extended the applicant’s pre-trial detention on several occasions, namely on 19 December 2006 (to 31 March 2007), 20 March 2007 (to 20 September 2007) and 20 September 2007 (to 31 December 2007). The courts repeated the grounds previously given for the applicant’s continued detention. In addition, they underlined the need to obtain additional expert reports.
14.  On 20 November 2007 the Elbląg Regional Court found the applicant guilty as charged and sentenced him to 15 years’ imprisonment (case no. II K 11/07). The applicant appealed. The applicant remained detained pending the appellate proceedings.
15.  On 8 May 2008 the Gdańsk Court of Appeal quashed the impugned judgment and remitted the case.
16.  During another re-trial the courts further extended the applicant’s pre-trial detention on several occasions, namely on 16 April 2008 (to 30 June 2008), 26 June 2008 (to 26 December 2008) and on an unspecified subsequent dates. The courts repeated the grounds previously given for the applicant’s continued detention.
17.  On 13 March 2009 the Elbląg Regional Court found the applicant guilty as charged and sentenced him to 15 years’ imprisonment. The applicant appealed.
18.  On 3 November 2009 the Gdańsk Court of Appeal changed the legal qualification of the offence from aggravated murder to murder and upheld the remainder of the first-instance court judgment.
19.  On 14 May 2010 the applicant’s legal-aid counsel informed him that she had found no grounds for lodging a cassation appeal.
20.  Between 27 November 2005 and 27 February 2006 the applicant was serving a prison sentence imposed on him in another set of criminal proceedings.
2.  Proceedings under the 2004 Act (case no. S 19/08)
21.  On an unspecified date the applicant lodged with the Gdańsk Court of Appeal a complaint under section 5 of 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 sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
22.  On 27 May 2009 the Gdańsk Court of Appeal dismissed the applicant’s complaint. The court noted that the hearings in the applicant’s case were held regularly, at short intervals. In its analysis the court examined only the course of the proceedings after 13 May 2009 stating that the applicant’s complaint could only refer to the current stage of the proceedings.
3.  Conditions of the applicant’s detention
23.  Between 15 March 2005 and 25 March 2009 the applicant was detained in Elbląg Remand Centre. The applicant submitted that during the entire period of his detention in that penitentiary facility he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene.
4.  Other issues
24.  Following the applicant’s conviction on 29 June 2006, two local newspapers Dziennik Elbląski and Gazeta Nowomiejska published on 2 July 2006 articles reporting on the criminal proceedings against him. They stated inter alia that the applicant had been convicted by the first-instance court of murder and had been sentenced to 15 years’ imprisonment. The applicant was identified by his name and the first letter of his surname. A photograph from a courtroom was published but his face was covered.
B.  Relevant domestic law and practice
1.  Preventive measures, including pre-trial detention
25.  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” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński 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
26.  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 stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
COMPLAINTS
27.  Invoking Article 3 of the Convention, the applicant alleged that he was beaten by police officers during his arrest on 15 March 2005.
28.  The applicant further complained under Articles 3 and 8 of the Convention about the inadequate conditions of his detention in Elbląg Remand Centre.
29.  Invoking in substance Article 5 § 3 of the Convention, the applicant complained about the length of his pre-trial detention.
30.  The applicant also complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him and further under the same Article about the unfairness of those proceedings, in particular that he was not able to question the key witness.
31.  Relying on Article 6 § 2 of the Convention, the applicant further complained that articles published on 2 July 2006 by local newspapers Dziennik Elbląski and Gazeta Nowomiejska contained untruthful information about him and violated his right to presumption of innocence.
32.  Invoking Article 8, the applicant alleged that he was defamed by the authors of the articles published in Dziennik Elbląski and Gazeta Nowomiejska.
33.  Further under Article 8 of the Convention the applicant complained that he was deprived of contact with his family between March and September 2005 and that his correspondence was deliberately delayed by prison authorities.
THE LAW
A.  Length of pre-trial detention and length of proceedings
34.  The applicant complained about the length of his pre-trial detention. He relied on Article 5 § 3 of the Convention which, in so far as relevant, provides as follows:
Article 5 § 3
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
35.  He further complained about the length of the criminal proceedings against him. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
36.  By letter dated 16 November 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
37.  The declaration provided as follows:
“...The Government hereby wish to express – by way of the unilateral declaration – its acknowledgement of the violation of reasonableness of the length of the applicant’s pre-trial detention and the judicial proceedings within the meaning of Articles 5 § 3 and 6 § 1 of the Convention.
In these circumstances, the Government declare that they are ready to pay the applicant the amount of PLN 12,000, which they consider to be reasonable in the light of the Court’s case-law (see, inter alia, Dublas v. Poland, application no. 48247/06, judgment of 7 October 2008; Boldyrev v. Ukraine, application no. 27889/03, judgment of 20 January 2011; Prokopenko v. Ukraine, application no. 5522/04, judgment of 20 January 2011; Shenoyev v. Russia, application no. 2563/06, judgment of 10 June 2010; and Szydłowski v Poland, application no. 1326/04, judgment of 16 October 2007). The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention for the Protection of Human Rights. In the event of failure to pay this sum within the three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. ...
The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention. ...”
38.  In a letter of 2 December 2011 the applicant expressed the view that the Government’s declaration was unacceptable as it did not refer to all the issues he had raised in his application.
39.  The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
40.  It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
41.  To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
42.  The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland, no. 45219/06, 3 February 2009 with further references). It has also addressed, in numerous cases, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑....; Majewski v. Poland, no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007).
43.  Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).
44.  Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
45.  Accordingly, it should be struck out of the list.
B.  Remaining complaints
46.  Invoking Article 3 of the Convention, the applicant complained that he had been beaten by police officers during his arrest on 15 March 2005. The Court notes that the applicant lodged his application on 28 July 2008. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
47.  The applicant also complained under Articles 3 and 8 of the Convention about the inadequate conditions of his detention. The Court notes that the applicant failed to lodge with the Polish civil courts an action under Article 24 taken in conjunction with Article 448 of the Civil Code seeking compensation for the infringement of his personal rights. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
48.  Relying on Article 6 § 1 of the Convention the applicant further complained about the unfairness of the criminal proceedings against him, in particular that he was not able to question the key witness. The Court notes that all the witnesses in the criminal proceedings against the applicant were duly questioned by his legal counsel. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 and 4 of the Convention.
49.  The applicant also alleged under Article 6 § 2 of the Convention that articles published on 2 July 2006 by local newspapers Dziennik Elbląski and Gazeta Nowomiejska contained untruthful information about him and violated his right to presumption of innocence. The applicant provided
copies of the newspaper articles which stated that he was convicted by the first-instance court of murder and sentenced to 15 years’ imprisonment. In those articles the applicant was identified by his name and the first letter of his surname. A photograph from a courtroom was published but his face was covered. As a result, the Court does not find it established that the newspaper articles had otherwise prejudged the assessment of the facts by the competent judicial authorities. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 and 4 of the Convention.
50.  Invoking Article 8 of the Convention, the applicant also complained that he had been defamed by the authors of articles in Dziennik Elbląski and Gazeta Nowomiejska. The Court notes that the applicant failed to seek compensation for the alleged infringement of his personal rights before the domestic courts. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
51.  The applicant further alleged under Article 8 of the Convention that between March and September 2005 he had been deprived of contact with his family. The Court notes that the applicant lodged his application on 28 July 2008. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
52.  Lastly, invoking also Article 8 of the Convention, the applicant complained that his correspondence had been deliberately delayed by prison authorities. Having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate this complaint. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaints under Article 6 § 1 of the Convention and Article 5 § 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
	Fatoş Aracı	David Thór Björgvinsson
	Deputy Registrar	President