FOURTH SECTION
CASE OF
KOWRYGO v. POLAND
(Application no.
6200/07)
JUDGMENT
STRASBOURG
26 February 2013
This judgment will become final in the circumstances set
out in 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
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.
The Polish Government
(“the Government”) were represented by their Agent, Mr J.
Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the
Ministry of Foreign Affairs.
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.
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
The applicant was born in 1953 and lives in Gliwice.
A. The applicant’s pre-trial detention and criminal
proceedings against him
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.
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.
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.
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.
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.
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.
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.
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.
The applicant’s appeal against this decision was
dismissed on 8 August 2007.
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.
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.
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.
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.
On 28 April 2008 the Gliwice Regional Court
released the applicant from pre-trial detention.
On 5 June 2008 the Katowice Court of Appeal
dismissed the applicant’s appeal against the first-instance judgment.
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
The applicant suffers from blood circulation and
cardiological ailments.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
On 30 August 2007 the Bytom District Court
upheld that decision.
On 22 August 2007 the applicant was placed in the
hospital ward.
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.
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).
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
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
. 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
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.”
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.
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).
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.
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.
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.
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.
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).
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.
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).
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).
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.
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
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
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.
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.
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
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).
Accordingly, the period to be taken into
consideration amounts to one year, eight months and twenty-five days.
2. The parties’ submissions
The applicant submitted
that his pre-trial detention had been exceedingly long and that the trial court
repeatedly refused to release him.
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
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).
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.
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).
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.
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).
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).
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).
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.
Having regard to the foregoing,
the Court considers there was a violation of Article 5 § 3 of the
Convention.
III. OTHER COMPLAINTS
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.
The Government submitted that the applicant did
not exhaust the required domestic remedies in respect of this complaint.
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).
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
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
The applicant claimed 250,000 Polish zlotys
(PLN) in respect of pecuniary damage and PLN 500,000 in respect of non-pecuniary
damage.
The Government contested this claim.
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
The applicant also claimed PLN 19,000 for costs
and expenses incurred before the domestic courts and before the Court.
The Government contested this claim.
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
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
Aracı Ineta
Ziemele
Deputy Registrar President
