FOURTH SECTION

Application no. 14344/09 Ł ukasz MALISZEWSKI against Poland lodged on 3 March 2009

STATEMENT OF FACTS

The applicant, Mr Ł ukasz Maliszewski , is a Polish national, who was born in 1980 and lives in Bydgoszcz- Fordon .

A. The circumstances of the case

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

1. The criminal proceedings against the applicant

On 29 May 2003 the applicant was arrested by the police on suspicion of having committed a robbery and a murder of a taxi driver together with one accomplice ( see Choumakov v. Poland , no. 33868/05, 29 July 2008 and Choumakov v. Poland (no. 2) , no. 55777/08 , 1 February 2011).

On 30 May 2003 the Braniewo District Court ( SÄ…d Rejonowy ) decided to detain the applicant on remand. The court relied on a reasonable suspicion that the applicant had committed the offences and the high probability that a heavy sentence would be imposed on him. The court further considered that there was a risk that the applicant might interfere with the course of proceedings and bring pressure to bear on witnesses.

On 26 August and 25 November 2003 and on 23 January 2004 the Elbląg Regional Court extended the detention on remand of the applicant and his co-accused. The court found that the grounds previously invoked were still valid and that only the applicant ’ s detention would secure the proper conduct of the investigation.

On 16 March 2004 the applicant was indicted before the ElblÄ…g Regional Court .

Subsequently, his pre ‑ trial detention was extended on several occasions in 2004 and 2005. The court relied on the reasonable suspicion against the applicant and the risk that a severe sentence would be imposed on him.

On 30 June 2005 the ElblÄ…g Regional Court convicted the applicant and his co ‑ accused and sentenced them to 25 years ’ imprisonment. The applicant lodged an appeal against the judgment.

On 21 December 2005 the Gdańsk Court of Appeal quashed the impugned judgment and remitted the case. On the same day, the appeal court extended the applicant ’ s detention on remand.

On 30 April 2007 the Elbląg Regional Court convicted the applicant as charged and sentenced him to 25 years ’ imprisonment. The applicant lodged an appeal.

On 28 December 2007 the Gdańsk Court of Appeal allowed the appeal and quashed the impugned judgment.

The applicant ’ s detention was further extended. In addition to the grounds invoked previously, the court found that the second co-accused and the applicant had made an attempt to contact each other illegally and to exchange information about the trial which justified the finding that they might interfere with the proper course of the proceedings. Moreover, the court established that both co-accused had contacted the witnesses through other persons.

On 13 November 2009 the Elbląg Regional Court convicted the applicant as charged and sentenced him to fifteen years ’ imprisonment.

On 27 October 2010 the Gdańsk Court of Appeal upheld the impugned judgment.

Since his arrest on 29 May 2003 until 27 October 2010, when the Court of Appeal finally upheld his conviction, the applicant remained at the disposal of the trial court in this case. His detention on remand was extended without interruption by various courts. However, for almost four years the applicant served simultaneously various prison sentences imposed on him by courts on previous occasions. The applicant served prison sentences in following periods:

From 14 December to 29 December 2004; judgment of the Braniewo District Court (II KS 445/03); a fine converted to imprisonment.

From 31 January to 1 September 2005 and from 28 May 2007 to 31 August 2008; judgment of the Bydgoszcz District Court (III K 925/00); sentence of two years ’ imprisonment.

From 1 September 2005 to 28 May 2007; judgment of the Bydgoszcz District Court (IV K 582/01); sentence of two years ’ imprisonment.

2. Proceedings under the 2004 Act

On 18 September 2008 the applicant lodged 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”). He sought a declaration that the criminal proceedings against him were lengthy, and compensation in the amount of 10,000 Polish zlotys (PLN). The applicant submitted that his trial had been remitted on two occasions and that there had been periods of inactivity on the part of the trial court. He submitted the total length of the criminal proceedings in his case indicated a breach of his right to trial within reasonable time.

On 29 October 2008 the Gdańsk Court of Appeal rejected the applicant ’ s complaint (II S 29/08) for formal reasons. It considered that the applicant “had failed to indicate circumstances that would justify his request”.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ), the grounds for its prolongation, 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 GoÅ‚ek v. Poland (no. 31330/02, §§ 27 ‑ 33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22 ‑ 23, 4 August 2006).

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 CharzyÅ„ski v. Poland (no. 15212/03 ( dec .), §§ 12 ‑ 23, ECHR 2005 ‑ V) and 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

1. The applicant complains under Articles 5 § 3 and 6 § 1 of the Convention about the unreasonable length of his pre-trial detention and the criminal proceedings in his case.

2. The applicant complains that while detained in Braniewo Remand Centre in 2003 and Elblag Remand Centre in 2004 and 2005 he was held in the same cell with smokers although he had not smoked. He also complains about overcrowding in the Elblag Remand Centre and unsatisfactory sanitary conditions. The applicant was again placed in an overcrowded cell in the Elblag Remand Centre between June 2008 and December 2009.

3. The applicant further raises various complaints under different Articles of the Convention. He complains under Articles 3 and 8 of the Convention that between 2004 and 31 August 2008, while in pre ‑ trial detention, he served almost four years of imprisonment to which he had been convicted on previous occasions. However, he remained to be considered as a detained person which had been disadvantageous to him in comparison to a regime applicable in a prison. In particular it was not possible for him to participate in vocational courses organised in prison. Moreover, the applicant complains that his letters with family were censored and delayed and he not allowed family visits. Under Article 6 of the Convention he complains about unfairness of the proceedings, in particular, about the assessment of evidence. He submits that he is innocent.

QUESTIONS TO THE PARTIES

With respect to the applicant ’ s complaint about the living and sanitary conditions of his detention;

1 (a). Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

1 (b). Did the applicant ’ s detention amount to inhuman or degrading treatment in breach of Article 3 of the Convention?

2. Was the length of the applicant ’ s pre ‑ trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

3. 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?