FOURTH SECTION
DECISION
Application no. 29521/07
by Rafał MROWCZYK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 14 September 2010 as a Chamber composed of:
Nicolas Bratza, President,Lech Garlicki,Giovanni Bonello,Ljiljana Mijović,David Thór Björgvinsson,Ledi Bianku,Mihai Poalelungi, judges,and Lawrence Early,
Having regard to the above application lodged on 3 July 2007,
Having regard to the declaration submitted by the respondent Government on 14 January 2010 requesting that the Court strike part of the application out of the list of cases and the applicant's reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Rafał Mrowczyk, is a Polish national who was born in 1977 and lives in Gliwice. He was represented before the Court by Mr J. Zaleski, a lawyer practising in Katowice. 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
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in 1977 and lives in Gliwice.
On 21 March 2006 he was arrested by the police on suspicion of having committed burglary and being a member of an organised criminal group.
On 23 March 2006 the Rybnik District Court (III Kp 276/06) decided to remand the applicant in custody, relying principally on the length of the sentence that might be imposed on the applicant and on the fact that he had been previously convicted.
The applicant appealed against this decision but his appeal was dismissed on 24 October 2006 by the Gliwice Regional Court.
Subsequently, the applicant's pre-trial detention was extended by the Rybnik District Court on 14 June, 18 September, and 19 December 2006 pending preliminary proceedings. In its order of 14 June 2006, the court relied on the reasonable suspicion against the applicant and the likelihood that a lengthy sentence would be imposed on him. The reasons for the two latter decisions were almost identically worded.
On 14 February 2007 the applicant's lawyer was informed that on 26 February 2007 he would be allowed to consult the applicant's file. It is unclear whether the lawyer made use of this opportunity.
On 8 March 2007 the applicant was indicted before the Rybnik District Court. Pursuant to Article 338 § 3 of the Polish Code of Criminal Procedure (“the Code”), the indictment was served on the applicant without disclosing reasons for the indictment. The case was subsequently transferred to the Gliwice District Court.
On 19 March 2007 the Rybnik District Court further extended the applicant's detention. The court relied on the risk that the applicant would interfere with the proper course of the proceedings – basing this finding on the fact that he had been charged with being a member of an organised criminal group and on the possibility that a lengthy sentence would be imposed.
Subsequently, the Gliwice District Court extended the applicant's detention on 1 June and the Gliwice Regional Court on 1 October 2007, both courts reiterating the previously stated grounds.
The applicant's appeals against all of the above decisions extending his detention were dismissed. In his appeal against the decision of 1 June 2007, the applicant's lawyer complained that indicting the applicant without giving reasons for the indictment had amounted to a breach of the applicant's defence rights.
On 4 July 2007 the Gliwice Regional Court dismissed the applicant's appeal against a further extension of the proceedings, considering that the exceptional situation of indicting the applicant without giving reasons “had been justified by the need to protect a state secret.” The Court also informed the applicant's lawyer that it would be possible to read the reasons for the indictment after obtaining the approval of the Court or the President of the Court.
On 21 January 2008 the District Court further extended the applicant's detention, finding that the grounds previously relied on remained valid. It also found that since the beginning of the trial, it had not yet carried out any action in which the applicant and his co-accused's presence could be considered necessary. Therefore, only his continued detention could secure the proper conduct of the proceedings.
The applicant appealed against the above decision but on 27 February 2008 the Gliwice Regional Court dismissed the appeal.
On 11 March 2008 the Gliwice District Court held the first trial hearing (III K 1937/07), called the applicant and his co-accused, and decided to release them both from detention. The court considered that because the trial had already started and all of the accused had been called by the trial court, the grounds for continuing the applicant's detention had lost their importance.
At the same hearing the applicant's lawyer requested that the court provide him with a copy of the indictment containing reasons for the indictment. His request was rejected because the reasoning was classified as confidential.
On 17 June 2010 the applicant's lawyer confirmed that the applicant had acquainted himself with the reasoning contained in the indictment by consulting the confidential files of the Gliwice District Court.
The trial against the applicant is pending before the Gliwice District Court.
B.  Relevant domestic law and practice
1.  As regards detention on remand
The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and the rules governing other, so-called “preventive measures” (środki zapobiegawcze), are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 May 2006.
2.  regards access to case files classified as “confidential”
Article 156 § 4 of the Code provides that, when a danger arises that state secrets may be revealed to the public, access to case files, and making notes and copying documents from such files shall only be allowed under special arrangements provided for by the trial court or by its president. Certified copies shall not be released unless otherwise provided by law.
Article 157 § 2 of the Code provides that, if a case has been heard in camerabecause of State interests at stake, the accused may receive a copy of the decision concluding the proceedings that does not disclose the reasons for the decision.
Article 159 of the Code provides that a refusal to grant access to the case file during an investigation is subject to an interlocutory appeal to the prosecutor.
Article 338 § 3 of the Code provides:
§ 3. If there is a danger of revealing a state secret, the indictment shall be served on the accused without [disclosing] its reasons. The reasons shall, however, be made available subject to conditions set forth by the president of the court or the court.
Article 360 § 1 (3) of the Code provides that the court shall order that all or part of a hearing be held in camera if its public character might disclose matters which should remain secret in the light of the state interests at stake.
COMPLAINTS
The applicant complained under Article 5 § 3 of the Convention of the unreasonable length of his pre-trial detention. He also complained that he had had no access to the reasons for the indictment because the file had been classified as “confidential”.
Lastly, he appeared to complain of the excessive length of the criminal proceedings in which he is involved.
THE LAW
A.  Alleged violation of Article 5 § 3 of the Convention
The applicant complained that the length of his detention on remand had been excessive. He relied on Article 5 § 3 of the Convention. The detention started on 21 March 2006, when he was arrested on suspicion of having committed burglary and being a member of an organised criminal group. On 11 March 2008 the Gliwice District Court released the applicant from detention. Accordingly, the period to be taken into consideration amounts to one year, 11 months and 21 days.
By letter dated 14 January 2010 Government informed the Court that they proposed making a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested that the Court strike this part of the application out of the list of cases in accordance with Article 37 of the Convention.
The declaration provided as follows:
“[T]he Government hereby wish to express – by way of a unilateral declaration – their acknowledgement of the fact that the applicant's pre-trial detention was not compatible with the “reasonable time” requirement within the meaning of Article 5 § 3.
The Government are prepared to accept the applicant's claims for just satisfaction to a maximum of 4,000 zlotys (PLN), which they consider to be reasonable in the light of the Court's case-law. They would suggest that the above declaration be accepted by the Court as 'any other reason' justifying the striking out of the case from the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention.
(...
[A]s transpires from the Government's unilateral declaration, they accept paying the applicant a maximum of PLN 4,000 as just satisfaction in the event of the Court's striking the case out of its list.
...”
 In a letter of 25 March 2010 the applicant's lawyer expressed the view that the sum mentioned in the Government's declaration was too low and considered that the applicant should be granted 4,000 euros in just satisfaction.
The Court recalls that Article 37 of the Convention provides that it may, at any stage of the proceedings, decide to strike an application or part thereof 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”.
It also recalls that in certain circumstances, it may strike out an application or part thereof 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.
To this end, the Court will carefully examine the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acarjudgment (Tahsin Acar v. Turkey(preliminary issue) [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, 18 September 2007).
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)).
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).
Accordingly, it should be struck out of the list.
B.  Alleged violation of Article 5 § 4 of the Convention
The applicant further complained that he had had no access to the reasoning contained in the indictment, because the file had been classified as “confidential”. This complaint was communicated under Article 5 § 4 of the Convention which reads as follows:
“4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Government submitted that the complaint under Article 5 § 4 of the Convention should be declared inadmissible on account of the applicant's failure to exhaust all available domestic remedies. In this respect the Government relied on the possibility of requesting – whether through a lawyer or by the applicant himself – access to a case file classified as “confidential” and to the possibility of lodging an interlocutory appeal if access had been denied. According to the Government, there is no record in the Gliwice District Court's registry that the applicant or his lawyer ever requested access to the case file concerning the applicant.
The applicant's lawyer did not comment on the Government's argument concerning the alleged non-exhaustion of domestic remedies.
The Government submitted that the applicant had had the possibility of acquainting himself with the reasoning contained in the indictment by consulting the confidential files in the domestic court, in accordance with the relevant provisions of the Code. According to the Government's submissions, neither the applicant nor his defence counsel ever requested access to the classified documents gathered in the applicant's case. At the hearing on 11 March 2008 the applicant's lawyer only requested that the domestic court give him a copy of the indictment containing reasons for the indictment. However, this request could not be granted because the reasoning was classified as “confidential” and access to it could therefore only be granted to the parties in special circumstances and in accordance with the procedure provided for in the Code.
The Court notes that the applicant was indicted on 8 March 2007. Therefore, the possibility of the applicant and/or his lawyer reading the reasons for the indictment by consulting the confidential files of the domestic court existed from that date. The applicant's defence counsel only sought to review the reasons for indictment on 11 March 2008: that is, one year after the indictment had been lodged with the domestic court. Moreover, the lawyer's request was procedurally incorrect. The Court considers that a professional lawyer should have been aware of the special procedure provided for by the Code as regards the consultation of confidential documents. Furthermore, in its decision of 4 July 2007 the Gliwice District Court had already informed the applicant's lawyer that access to the reasons contained in the indictment could only be granted by that court or its president.
For the foregoing reasons, the Court considers that, regardless of whether there was a remedy to be exhausted, the applicant's complaint about the violation of his defence rights by depriving him of access to the reasons contained in the indictment is manifestly ill-founded and therefore must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Alleged violation of article 6 § 1 of the Convention on account of the excessive length of the proceedings
Lastly, the applicant appeared to complain of the excessive length of the criminal proceedings against him.
The applicant's lawyer submitted that “as regards the excessive length of the proceedings, complaints provided for by Polish law were lodged.” However, he failed to produce any evidence to substantiate his submissions. It follows that there is no evidence that the applicant made use of the complaint procedure provided for by the Law of 17 June 2004 on complaints of 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).
Therefore, the complaint under Article 6 § 1 of the Convention of the excessive length of the domestic proceedings must be declared inadmissible for non-exhaustion of domestic remedies and rejected in accordance with Article 35 §§ 1 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 complaint under 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 complaint, in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
	Lawrence Early	Nicolas Bratza
		President