CASE OF KOWRYGO v. POLAND

FOURTH SECTION

CASE OF KOWRYGO v. POLAND

(Application no. 6200/07)

JUDGMENT

STRASBOURG

26 February 2013

FINAL

26/05/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kowrygo v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 5 February 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 6200/07) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jerzy Kowrygo (“the applicant”), on 15 January 2007.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that the length of his detention on remand had been excessive and that the medical care available to him in a detention centre was inadequate.

4. On 12 January 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1953 and lives in Gliwice.

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

6. On 20 April 2006 the applicant was arrested on suspicion of producing drugs and other related offences. On his arrest the applicant informed the authorities about his health condition. On the same day the applicant underwent a medical examination. On the following day he was placed under hospital observation.

7. On 22 April 2006 the Gliwice Regional Court (Sąd Okręgowy) remanded him in custody. The court decided that in view of the applicant’s health he should be committed to the medical wing of the detention centre. The court stressed that the evidence gathered so far demonstrated a high likelihood that the applicant had committed the offences with which he had been charged. The court further referred to the fact that the applicant had not pleaded guilty to the offences in question and therefore if released he could obstruct the proceedings. The preventive measure in question was also justified by the gravity of the offences with which he had been charged and the likelihood that a severe penalty would be imposed if convicted. The applicant’s appeal against this decision was dismissed on 24 May 2006.

8. Subsequently, the applicant’s pre-trial detention was extended by decisions of the Gliwice Regional Court of 10 July and 9 October 2006 and 15 January and 16 April 2007.The court found that the original grounds for the applicant’s pre-trial detention were still valid and, in addition, relied on the risk that the applicant could obstruct the proceedings if released. In particular, the court stressed that he could influence the testimonies of witnesses. The court was further of the view that the applicant’s state of health was not an obstacle to his continued detention on remand.

9. The applicant’s appeals against the decisions were dismissed by the Katowice Court of Appeal (Sąd Apelacyjny) on 9 August and 20 December 2006 and 21 February 2007. The court referred to the reasons given by the Regional Court. It further stressed that the applicant’s health was not an obstacle to his detention on remand.

10. Meanwhile, on 6 April 2007 the bill of indictment against the applicant and his alleged accomplice was lodged with the Gliwice Regional Court. The applicant was charged with manufacturing amphetamine and trafficking in drugs. The case file consisted of twelve volumes; in addition, seven witnesses were to be heard.

11. On 16 April 2007 the Regional Court extended the applicant’s pre‑trial detention. The court referred to the original grounds for keeping the applicant in detention. On 4 May 2007 the Court of Appeal dismissed the appeal lodged by the applicant’s lawyer against this decision. The court considered that the reasoning of the first-instance court was accurate. Moreover, it found that the applicant’s health was not an obstacle to his further detention.

12. The first hearing was held on 10 July 2007. During that hearing the applicant pleaded guilty to the offences in question. Throughout the trial the court held hearings on average once a month. In total, the court held seven hearings.

13. On 10 July 2007 the Regional Court again extended the applicant’s detention. The court relied on the original grounds for keeping the applicant in detention. Before taking the decision, the Regional Court obtained information about the applicant’s health from the Director of the Hospital Ward of the Bytom Detention Centre. The director confirmed that the applicant had undergone a series of medical examinations, including: an electrocardiogram, a heart ultrasound, and an exercise test in the Zabrze Cardiological Clinic. He further stressed that the applicant could be treated in the detention centre.

14. The applicant’s appeal against this decision was dismissed on 8 August 2007.

15. On 5 October 2007 the Regional Court again extended the applicant’s detention. The court referred to a medical certificate issued by the Director of the Hospital Ward of the Bytom Detention Centre on 27 September 2007, according to which the applicant’s life or health would not be put at risk on account of his continued detention. The applicant’s appeal against this decision was dismissed on 31 October 2007.

16. On 14 January 2008 the Gliwice Regional Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The applicant’s pre-trial detention was extended on the same date.

17. On 28 January 2008 the Gliwice Regional Court refused to release the applicant from pre-trial detention. The applicant’s interlocutory appeal was dismissed on 6 February 2008.

18. On 21 April 2008 the Regional Court ordered an expert to prepare an opinion on the applicant’s state of health. On 25 April 2008 the expert submitted his opinion to the court. Having examined the relevant medical documentation and the applicant, the expert considered that the applicant should have been treated outside the detention facility. He stressed that further detention would put the applicant’s life in danger.

19. On 28 April 2008 the Gliwice Regional Court released the applicant from pre-trial detention.

20. On 5 June 2008 the Katowice Court of Appeal dismissed the applicant’s appeal against the first-instance judgment.

21. His subsequent cassation appeal was likewise dismissed by the Supreme Court on 8 January 2009.

B. The applicant’s health and medical care provided to him in detention

1. Prior to 20 April 2006

22. The applicant suffers from blood circulation and cardiological ailments.

23. On 15 November 2002 he was classified by the relevant authorities as a person with a “mild degree of disability” of a permanent character. It was noted in the disability certificate that the applicant required aid in attending to his needs.

24. Prior to his detention, the applicant was hospitalised on several occasions, either because he had required surgery or due to the occasional deterioration of his health.

25. On 14 March 2002 the applicant had an ileocaecal valve implanted and post-surgery rehabilitation therapy. In the subsequent months, he remained under close medical supervision in the hospital in Chorzów and then in Gliwice. The applicant was considered to be in good health when he finished his therapy in May 2002 and was released home. In June 2003 he was hospitalised again. In March 2004 he had a heart attack. He was in hospital from 12 until 18 March 2004. He was released home in overall good health with a recommendation to take medication and monitor his health.

26. From 10 until 13 December 2004 the applicant was again hospitalised. He was released home in good condition upon his own request. It was recommended that he continue the pharmacological treatment prescribed and monitor his condition.

27. From 15 until 23 March 2005 and from 12 until 22 September the applicant was again in hospital. It appears that in 2005 he had another heart attack.

2. After 20 April 2006

28. Between 24 April 2006 and 20 February 2008 and between 19 March 2008 and 28 April 2008 the applicant was detained in the Bytom Remand Centre.

29. Between 24 April and 17 May 2006 the applicant was detained in the Hospital Ward of the Bytom Remand Centre (“the hospital ward”). During his stay he was diagnosed with ischemia of the heart, a post-inferior myocardial infarction condition, post-transcutaneous coronary angioplasty condition with a stent implant, post-aortic valve implantation condition, post-myocarditis endomyocarditis and pleuropericarditis, paroxysmal atrial filbrillation and ventricular rhythm disturbance.

30. Subsequently, his health stabilised. On 17 May 2006, he was released from the hospital ward and assigned to cell no. 68 together with other detainees. On his release from the hospital ward, the doctors recommended that the applicant be put on a diet and continue the pharmacological treatment prescribed. It was also stressed that the applicant should undergo weekly blood tests.

31. On 19 December 2006 the applicant fainted in his cell and, when falling down, hit his head against the floor. He was examined by a prison doctor immediately after the accident. A series of cardiological and general tests was performed, including an X-ray of his skull.

32. On 27 December 2006 the applicant was examined by a specialist neurologist and a neurosurgeon. Both doctors considered that there was no need to conduct additional tests. The applicant wished to have an MRI scan of his head. However, the doctor in charge refused to prescribe one. Since then the applicant has not suffered from any after effects of the accident.

33. On 7 February 2007 the Katowice Regional Agent for Professional Responsibility (Okręgowy Rzecznik Odpowiedzialności Zawodowej) refused to open an inquiry into the applicant’s allegations that from 19 December 2006 onwards his life had been put at risk by the staff of the hospital of Bytom Remand Centre. It was noted that medical doctors were free to choose the diagnostic methods which they considered appropriate in a particular case.

34. On 28 February 2007 the Bytom Police refused to open an inquiry into the same allegations made by the applicant. Based on the testimonies of the applicant and the doctor concerned, it was found that the applicant had received sufficient medical attention after the accident of 19 December 2006 and that his health was not at risk.

35. On 30 August 2007 the Bytom District Court upheld that decision.

36. On 22 August 2007 the applicant was placed in the hospital ward.

37. Between 27 August until 3 September 2007 the applicant was hospitalised in the Zabrze Cardiological Hospital where he underwent a coronary angioplasty and had a pacemaker implanted. Subsequently, he was transported to the hospital ward where he remained until 18 October 2007.

38. On 30 June 2008 the applicant was classified by the relevant authorities as a person with a “considerable degree of disability” of a temporary character (until 30 June 2010).

39. On 12 July 2010 the relevant authorities reclassified the applicant as a person with a “mild degree of disability” of a permanent character.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Conditions of detention and medical care in prison

40. The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice, are set out in the Court’s judgments in Kaprykowski v. Poland, no. 23052/05, §§ 36‑39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48‑61, ECHR 2009‑... (extracts); and Orchowski v. Poland, no. 17885/04, §§ 74‑85, 13 October 2009.

B. Detention on remand

41. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out 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).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

42. The applicant complained without invoking any provisions of the Convention that the medical care provided to him within the penitentiary system was inadequate and that his health had deteriorated. The applicant’s complaints fall to be examined under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

43. The Government raised a preliminary objection, arguing that in respect of the complaint about lack of medical care in prison, the applicant had not exhausted the domestic remedies available to him.

44. In their observations the Government formulated this objection in the same way as they had in the cases of Sławomir Musiał (cited above, §§ 67-69), and Orchowski (cited above, §§ 95-98).

45. In particular, they stressed that before lodging his Article 3 application with the Court the applicant should have: (1) made an application to the Constitutional Court under Article 191, read in conjunction with Article 79 of the Constitution, asking for the 2006 Ordinance to be declared unconstitutional; (2) brought a civil action seeking compensation for the infringement of his personal rights, namely his dignity and health, under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code; and (3) used remedies provided by the Code of Execution of Criminal Sentences, such as an appeal against any unlawful decision issued by the prison administration or a complaint to the relevant penitentiary judge about being placed in a particular cell in prison, or a complaint about prison conditions to the authorities responsible for the execution of criminal sentences or to the Ombudsman.

46. The Government submitted that when deciding on the applicant’s pre-trial detention the authorities had at all times relied on the medical experts’ opinions and took their recommendations into account. In addition, the authorities assisted the applicant with the relevant medical treatment both inside and outside the detention facility. The Government were of the opinion that the quality of medical care provided to the applicant was adequate in view of his condition. All doctors working in the Bytom Detention Centre were specialists in their fields of medicine. Even after the applicant was placed in a regular cell he was frequently examined by the doctors in the hospital ward. He attended 17 appointments. In addition, when it was impossible to provide the applicant with certain medical services in the hospital ward, such services were provided to him by a relevant public health establishment. The Government concluded that the applicant had received relevant medical assistance (for example he had a valve implant operation) and the authorities had fulfilled their positive obligation deriving from Article 3 of the Convention.

47. The applicant argued that he should not have been placed in pre-trial detention in view of his heart problems. He further stressed that according to the court’s decision of 22 April 2006 he should have been placed in a hospital ward throughout his pre-trial detention. However, he had been in the prison hospital only between 22 April and 17 May 2006 and from 22 August to 27 August 2007 and also from 3 September to 18 October 2007. Otherwise he was placed in a regular cell with other detainees and was deprived of adequate medical care. Following his accident on 19 December 2006 he was refused an MRI scan. This refusal caused a further deterioration of his health.

48. The Court does not find it necessary to examine the Government’s objection concerning the applicant’s failure to exhaust domestic remedies, as the present complaint is in any event inadmissible for the reasons set out below.

49. The Court recalls that Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to transfer him to a civil hospital, even if he is suffering from an illness that is particularly difficult to treat (see Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX). However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure does not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI; Sławomir Musiał, cited above, § 86; and Kaprykowski, cited above, § 69). There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, cited above, §§ 40-42; Melnik v. Ukraine, no. 72286/01, § 94, 28 March 2006).

50. The Court notes that it is undisputed that the applicant in the instant case suffers from a serious cardiological disorder and on that account he was in need of specialised medical treatment.

51. The Court will next examine whether the applicant was provided with adequate medical assistance and care in detention. It notes first that according to the court’s decision of 22 April 2007 his pre-trial detention was considered possible. However, he was to be assigned to the hospital wing (see paragraph 7 above). It was subsequently noted that the applicant’s state of health stabilised and he was moved to a cell subject to his having regular medical consultations (see paragraph 30 above). The doctors in their opinions consistently and repeatedly noted that the applicant could be kept in pre-trial detention (see paragraphs 13 and 15 above). Accordingly, the Court finds that there were no grounds to consider that the applicant’s detention was excluded on medical grounds (see Turzyński v.Poland (dec.), no. 10453/03, 7 April 2009).

52. With regard to the adequacy of the medical care provided, the Court notes that during the period of his incarceration, which amounted to just over twenty-four months, the applicant was detained for over two and a half months in the prison hospital and one week in a regular hospital where he underwent a coronary angioplasty and had a pacemaker implanted (see paragraphs 29 and 37 above). During the period of the applicant’s detention in the general wing of the prison, he was regularly seen by prison doctors and underwent several examinations (see paragraphs 13 and 48 above). He also received pharmacological treatment. On the evidence before it, the Court does not find any indication that the medical care provided to the applicant was deficient or below the standard level of health care available to the population generally (see, Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002 and Kaprykowski, cited above, § 75).

53. In so far as the applicant alleged that after his accident on 19 December 2006 he had not received adequate medical care, the Court observes that in addition to being seen by a general practitioner immediately after the accident the applicant was subsequently seen by a specialist neurologist and a neurosurgeon. He also underwent a series of cardiological and general tests, including an X-ray of his skull (see paragraphs 31 and 32 above). The Court also notes that in the disciplinary proceedings before the Katowice Disciplinary Agent it was concluded that the applicant had received sufficient medical attention after the accident (see paragraph 33 above). The Court sees no reason to doubt the correctness of this conclusion.

54. In conclusion, the Court finds that the applicant was provided with adequate medical care in detention which took into account the specific demands of his illness. It follows that the complaint under Article 3 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

55. The applicant further complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which, in its relevant part, reads as follows:

“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.”

A. Admissibility

56. The Government maintained that the applicant could have lodged a constitutional complaint with the Constitutional Court arguing that Article 263 of the Code of Criminal Procedure, which allowed the extension of detention without any time-limits, was contrary to the Constitution.

57. The Court recalls that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Kennedy v. the United Kingdom, no. 26839/05, § 109, ECHR 2010‑...). However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case (see Betteridge v. the United Kingdom, no 1497/10, § 48, 29 January 2013 (not yet final)). The Court notes that the arguments raised by the Government in the present case are similar to those already examined and rejected in previous cases against Poland (see, among other authorities, Bruczyński v. Poland, no. 19206/03, §§ 38-45, 4 November 2008, and Biśta v. Poland, no. 22807/07, §§ 26-30, 12 January 2010). The Government have not submitted any new evidence which would lead the Court to depart from that finding. In particular, no evidence was provided to demonstrate that the development of domestic case-law entailed a more effective protection of the rights guaranteed under Article 5 § 3 of the Convention. Therefore, the Government’s objection should be dismissed.

58. It follows that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established.

B. Merits

1. Period to be taken into consideration

59. The applicant’s detention started on 20 April 2006, when he was arrested on suspicion of producing and distributing drugs. On 14 January 2008 the Regional Court convicted him as charged. As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła, cited above, § 104).

60. Accordingly, the period to be taken into consideration amounts to one year, eight months and twenty-five days.

2. The parties’ submissions

61. The applicant submitted that his pre-trial detention had been exceedingly long and that the trial court repeatedly refused to release him.

62. The Government maintained that in the present case all the criteria for the application and extension of pre-trial detention had been met. In their opinion the applicant’s detention was justified during the whole period. The charges against the applicant concerned several offences. A reasonable suspicion that the applicant had committed the offences in question persisted during the whole period of his detention and there was a need to secure the proper conduct of the proceedings. Lastly, the Government noted that the applicant’s pre-trial detention was subject to periodic supervision by the trial court. Decisions extending his detention or dismissing his motions for release were reasoned in a detailed manner. In addition, the applicant’s state of health was always taken into account by the domestic authorities. The proceedings were extremely complex and the prosecutor and the trial court had to obtain extensive evidentiary material.

3. The Court’s assessment

(a) General principles

63. The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, were stated in a number of its previous judgments (see, among many other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207; Wemhoff v. Germany, 27 June 1968, § 12, Series A no. 7; Yağcı and Sargın v. Turkey, 8 June 1995, § 52, Series A no. 319‑A; Kudła, cited above, § 110 et seq, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-X, with further references).

(b) Application of the above principles in the present case

64. In their detention decisions, the authorities, in addition to the reasonable suspicion against the applicant, relied on several grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable, (3) the risk of obstructing the proceedings. The decisions also invoked the necessity to collect specifically named evidence. It should be stressed that the Gliwice Regional Court justified its first decision of 22 April 2006 imposing the pre‑trial detention, by referring, beside the above-mentioned grounds, to the fact that the applicant had not pleaded guilty and therefore could have obstructed the proceedings (see paragraph 7 above).

65. As regards the reference to the fact that the applicant did not plead guilty, the Court finds it difficult to accept this reasoning. The decision to plead not guilty should not be considered as a relevant circumstance for the justification of the pre-trial detention (see, Górski v. Poland, no. 28904/02, § 58, 4 October 2005; Garycki v. Poland, no.14348/02, § 48, 6 February 2007). It should also be noted that even after the applicant had pleaded guilty (see paragraph 12 above), the domestic courts nevertheless continued to extend his pre-trial detention for another nine months.

66. The Court accepts that there was a reasonable suspicion against the applicant of having committed serious offences. However, with the passage of time, that ground became less and less relevant. The Court must then establish whether the other grounds adduced by the courts – namely, the risk that the applicant would obstruct the proceedings and tamper with evidence – were “relevant” and “sufficient” (see Trzaska v. Poland, no. 25792/94, § 63, 11 July 2000; Drabek v. Poland, no. 5270/04, § 46, 20 June 2006; and Kudła, cited above, § 111).

67. As regards this risk, the Court notes that the authorities did not indicate any concrete circumstance capable of showing that the anticipated risk went beyond a merely theoretical possibility. The Court is not therefore persuaded that that argument can justify the entire period of the applicant’s detention, especially as it appears that there was no indication that at any earlier stage of the proceedings the applicant had tampered with evidence or had made any attempt to induce witnesses to give false testimony.

68. In this connection the Court reiterates that where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the concrete facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Muller v. France, 17 March 1997, §§ 35-45, Reports of Judgments and Decisions 1997-II; Labita v. Italy [GC], no. 26772/95, §§ 152 and 162-165, ECHR 2000-IV; Ječius v. Lithuania, no. 34578/97, §§ 93 and 94, ECHR 2000-IX; and Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).

69. The risk of obstructing proceedings may be much higher if there is a serious suspicion that several accused acted in organised criminal group, as such group may try to resort to different unlawful means to try to prevent the prosecuting authorities from establishing the facts. The Court observes in this context that the applicant was detained on charges of producing and distributing drugs committed together with one accomplice. The defendants had not been charged with acting in an organised criminal group (a contrario Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).

70. As a general rule, the competent authorities should resort to the least restrictive means in order to ensure a proper conduct of criminal proceedings. However, in the applicant’s case there is no indication that during the entire period in question the authorities have ever envisaged the possibility of imposing less restrictive preventive measures on the applicant, such as bail or police supervision. The decisions of the courts applying the pre-trial detention never addressed the question why these less restrictive means were considered insufficient in the present case (Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000; Ilowiecki v. Poland, no. 27504/95, §§ 63-64, 4 October 2001; and Celejewski v. Poland, no. 17584/04, § 39, 4 May 2006).

71. Having regard to the foregoing, the Court concludes that the grounds given by the domestic authorities were not “relevant” and “sufficient” to justify holding him in custody for the entire relevant period. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.

72. Having regard to the foregoing, the Court considers there was a violation of Article 5 § 3 of the Convention.

III. OTHER COMPLAINTS

73. In his observations of 1 November 2009, the applicant complained without invoking any provisions of the Convention that for an unspecified period of time he had been placed in a cell with smokers.

74. The Government submitted that the applicant did not exhaust the required domestic remedies in respect of this complaint.

75. The Court observes that the applicant failed to put the substance of his complaint before any domestic authority (see Łatak v. Poland (dec.), no. 52070/08, 12 October 2010, and Łomiński v. Poland no. 33502/09 (dec.), 12 October 2010).

76. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

77. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

78. The applicant claimed 250,000 Polish zlotys (PLN) in respect of pecuniary damage and PLN 500,000 in respect of non-pecuniary damage.

79. The Government contested this claim.

80. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 2,200 under this head.

B. Costs and expenses

81. The applicant also claimed PLN 19,000 for costs and expenses incurred before the domestic courts and before the Court.

82. The Government contested this claim.

83. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the fact that the applicant failed to provide the Court with the necessary documents, the Court rejects the claim for costs and expenses.

C. Default interest

84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint under Article 5 § 3 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,200 (two thousand two hundred euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable,

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 26 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıIneta Ziemele
Deputy RegistrarPresident

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