European Court of Human Rights

 

 

 

FIRST SECTION

CASE OF DŁUŻEWSKA v. POLAND

(Application no. 39873/18)

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

15 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Dłużewska v. Poland,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Alena Poláčková, President,
          Péter Paczolay,
          Gilberto Felici, judges,
and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 39873/18) 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, Ms Alina Dłużewska (“the applicant”), on 13 August 2018;

the decision to give notice to the Polish Government (“the Government”) of the complaints concerning Article 3 and Article 5 § 3 of the Convention;

the observations submitted by the Government and the observations submitted by the applicant in reply;

the comments submitted by the Helsinki Foundation for Human Rights in Warsaw, who were granted leave to intervene by the President of the Section (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court);

Having deliberated in private on 16 March 2021,

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

INTRODUCTION

1.  The case concerns the allegedly excessive length of the applicant’s detention on remand and its alleged incompatibility with the applicant’s old age and her state of health.

THE FACTS

2.  The applicant was born in 1939 and lives in Warsaw. She was represented by Mr A. Pasierski, a lawyer practising in Wrocław.

3.  The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs.

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

I.        The applicant’s arrest and detention

5.  The applicant is a retired lawyer.

6.  On 30 January 2017 at 6 a.m. she was arrested on suspicion of fraud, forgery, corruption and money laundering. The investigation related to the so-called “reprivatisation proceedings” (concerning the reacquisition of properties in Warsaw, which had been nationalised by the communist government) and involved nine suspects, including the applicant’s husband and her son. At that time, the latter was employed as a deputy director of the City of Warsaw Property Management Office and was empowered to issue administrative decisions on behalf of the Mayor of Warsaw.

7.  On her arrest the applicant informed the authorities of her health condition. She was examined by a medical emergency team at her home and subsequently underwent a medical examination by a court‑appointed doctor.

8.  On 1 February 2017 the Wrocław-Śródmieście District Court decided to detain the applicant on remand for three months until 30 April 2017. The court stressed that the evidence that had been gathered thus far demonstrated a high likelihood that she had committed the offences with which she had been charged. The court further referred to the significant value of the property which had been acquired by the suspects and to the severity of the maximum sentence provided by law for such offences. It noted that some of the other suspects and witnesses were the applicant’s family members or acquaintances with whom she had a close relationship. Thus there was an increased risk that she would obstruct the proceedings. The court further noted that the applicant’s detention would not endanger her life or health. At the same time the court decided that the applicant would be detained in Wrocław Detention Centre No. 1, which had a hospital wing.

9.  The applicant’s appeal against that decision was dismissed on 1 March 2017.

10.  Subsequently the applicant’s detention on remand was extended by the Warsaw Regional Court on 24 April 2017 (until 29 July 2017) and on 24 July 2017 (until 27 October 2017). The court found that the original grounds for the applicant’s detention were still valid. The applicant was facing a potentially long prison sentence and could obstruct the proceedings if released. In particular, the court referred to a letter sent by the applicant to her daughter on 5 February 2017, in which she had planned to contact certain witnesses and to influence them. The court pointed out that the applicant’s detention was not incompatible with her age, and her health was not subject to any concerns. Moreover, she had been provided with the requisite medical care to an adequate level in the detention facility.

11.  The applicant’s appeals against these decisions were dismissed by the Warsaw Court of Appeal on 8 June and 12 September 2017. The court referred to the reasons given by the Regional Court. It further stressed that the applicant’s age and state of health were not an obstacle to her detention on remand, in particular since she had access to medical care in the detention centre and her health was constantly monitored.

12.  On 10 October 2017 the applicant was additionally charged with bribery.

13.  On 23 October 2017 the Warsaw Regional Court extended the applicant’s detention on remand until 25 January 2018. The court pointed out that since the last extension of the applicant’s detention on remand in July 2017, the case had become more complex. It also noted that other preventive measures would not be able to prevent the suspects from contacting each other and attempting to obstruct the course of the proceedings, given their close family ties. The court further referred to the applicant’s age and health and concluded that neither her life nor her health would be put at risk on account of her continued detention, given the medical care provided at the detention facility. An appeal by the applicant was dismissed by the Warsaw Court of Appeal on 19 December 2017.

14.  On 9 January 2018 the applicant was also charged with other acts of fraud, forgery and bribery, as well as illegal possession of firearms.

15.  The applicant’s detention on remand was further extended by the Wrocław Court of Appeal on 24 January 2018. The court relied on the original grounds for keeping the applicant in detention. It referred to the complexity of the case and the need to hear evidence from numerous witnesses, including some who resided abroad. In addition, the court referred to an expert opinion on the applicant’s state of health, in which the expert had confirmed that her condition was compatible with detention. The applicant’s appeal against that decision was dismissed on 9 March 2018.

16.  The applicant’s detention on remand was again extended by the Wrocław Court of Appeal on 24 April 2018. The court referred to the original grounds for keeping the applicant in detention and the threat that, if released, she might abscond.

17.  On 29 May 2018 the Wrocław Court of Appeal dismissed an appeal by the applicant against that decision. One of the judges sitting on the bench appended a dissenting opinion. He noted that the risk of the applicant going into hiding or absconding had not been in any way substantiated by the court. Moreover, he stressed that detention on remand should be applied only if other preventive measures would prove to be insufficient. In the present case the court had failed to establish whether other less restrictive preventive measures could have been imposed.

18.  The Wrocław Court of Appeal once again extended the applicant’s detention on remand on 16 July 2018. In addition to the original grounds, the court referred to an expert opinion of 15 July 2018 concerning the applicant’s state of health. The expert had noted that the applicant had already had a number of specialist medical consultations and that in view of her state of health, she had to have several more specialist consultations. However, her overall health condition was compatible with her detention on remand. The applicant’s appeal against that decision was dismissed on 3 August 2018.

19.  On 8 October 2018 a bill of indictment against the applicant and eight other accused was lodged with the Warsaw Regional Court. The applicant was charged with numerous acts of fraud, forgery, bribery and money laundering, as well as illegal possession of firearms.

20.  On 18 October 2018 the Warsaw Regional Court extended the applicant’s detention until 19 January 2019. At the same time, it held that the applicant could be released on bail and set security in the amount of 500,000 Polish zlotys (PLN) (125,000 euros (EUR)). The deadline for arranging bail was fixed for 16 November 2019. The court found that at that stage of the proceedings, it was possible to use other preventive measures that would be more suitable in view of the applicant’s age and state of health.

21.  The Wrocław Regional Prosecutor’s Office appealed against that decision.

22.  On 19 October 2018 the Warsaw Regional Court decided to stay the enforcement of the decision of 18 October 2018 until the examination of the appeal lodged by the prosecution services.

23.  On 19 November 2018 the Warsaw Court of Appeal amended the decision of 18 October 2018. The court raised the amount of security to PLN 1,500,000 (approximately EUR 375,000) and extended the deadline for paying it to 19 December 2018.

24.  The applicant paid the security required by the court and was released on 4 December 2018.

II.     The applicant’s health and The medical care provided to her in detention

25.  Prior to her arrest the applicant had suffered from cancer. She had undergone a mastectomy and a hip arthroplasty, and she had suffered from osteitis pubis, osteoarthritis, arterial hypertension and coronary heart disease.

26.  The applicant was detained at the following three detention facilities: Wrocław Detention Centre No. 1 (between 1 February and 1 December 2017 and between 11 December 2017 and 22 November 2018); Gdańsk Detention Centre (between 1 and 11 December 2017); and Warsaw‑Grochów Detention Centre (between 22 November and 4 December 2018).

A.    Wrocław Detention Centre No. 1

27.  Initially, until 2 February 2017 the applicant was placed alone in a cell measuring 3.90 sq. m.

28.  Subsequently, she was transferred to the “K” unit for women and placed in a two-person cell, in which the space per person ranged from 3.95 sq. m to 4.33 sq. m. The cell had a separate sanitary unit and there was unlimited access to hot water. The applicant was also allowed to use a kettle, read newspapers and watch television in a daytime common room. She could take a bath at least twice a week in communal bathrooms and was allowed to walk in a courtyard. She did not raise any concerns about the cells being monitored.

29.  On 25 May 2017 the Wrocław Regional Prosecutor’s Office received information about the conditions of the applicant’s detention. It was noted that the applicant had been under regular medical supervision in the detention centre and had consulted medical specialists either in the facility or outside. In particular, on 22 February, 22 March and 17 May 2017 she had consulted an orthopaedist, on 23 February 2017 a gynaecologist, on 14 March 2017 an ophthalmologist, and on 22 March and 21 April 2017 a neurologist. Furthermore, she had had an X‑ray of her lumbar spine, pelvis and knee joints and a gynaecological ultrasound scan. The applicant had consulted a prison doctor eight times and she continued the specialised treatment and medication which had been prescribed to her before her detention.

30.  On 9 August 2017 a further medical opinion was issued, according to which the applicant was being provided with the required medical care in the detention facility and could continue her treatment there.

31.  According to a further medical opinion of 27 November 2017, the applicant had had four consultations with an orthopaedist, one with a gynaecologist, two with an ophthalmologist, seven with a neurologist, one with a surgeon, two with a psychiatrist, one with an oncologist at the Wrocław Oncology Centre and twenty-six with a prison doctor. The prison medical staff monitored the applicant’s health and followed the specialists’ recommendations.

32.  On 10 January 2018 the Wrocław Regional Prosecutor’s Office requested an expert opinion concerning the applicant’s state of health in order to verify whether her health and previously diagnosed medical conditions were compatible with her continued detention on remand. According to the opinion of 14 January 2018, the expert stated that the applicant’s health problems could be treated in the detention facility.

33.  On 2 March 2018 representatives of the Ministry of Justice visited Wrocław Detention Centre No. 1 in order to inspect the conditions of the applicant’s detention. They noted in particular that since 13 September 2017 the applicant had been placed in a monitored cell. This measure had been justified by the need to provide security to her in view of her advanced age and the sensitivity of the case. The applicant and her lawyer had not appealed against those decisions. The representatives concluded that the applicant was being detained in conditions compatible with her age and state of health.

34.  Between 6 and 9 August 2018 the applicant was hospitalised in the Cardiology Clinic of the Wrocław Military Hospital, where she underwent an angioplasty procedure of her carotid artery.

B.    Gdańsk Detention Centre

35.  The applicant spent ten days in the Gdańsk Detention Centre in order to take part in the evidentiary proceedings. She was placed in a two‑person cell that was monitored. She had unlimited access to a sanitary unit that was separated off, with warm and cold running water. She continued the medical treatment as prescribed by specialists in Wrocław.

C.     Warsaw-Grochów Detention Centre

36.  Between 22 November 2018 and 4 December 2018 the applicant was detained in the Warsaw-Grochów Detention Centre. She was placed in a three‑person cell, which was occupied only by her and one other person. The cell, which was monitored, had a separate sanitary unit providing warm water three times a day as well as unlimited cold water.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

37.  The provisions pertaining to medical care in detention facilities and the relevant domestic law and practice are set out in the Court’s judgments in Sławomir Musiał v. Poland (no. 28300/06, §§ 48‑61, 20 January 2009) and Kaprykowski v. Poland (no. 23052/05, §§ 36‑39, 3 February 2009).

38.  The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and the rules governing other, so‑called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in Gołek v. Poland (no. 31330/02, §§ 27‑33, 25 April 2006), Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006), and Kauczor v. Poland (no. 45219/06, §§ 26-27, 3 February 2009).

THE LAW

I.        Preliminary objection

39.  The Government argued that the application was inadmissible as a whole for abuse of the right of application. They submitted that the applicant had failed to inform the Court that her state of health had been continuously monitored by prison medical staff and that she had received adequate medical treatment.

40.  The applicant disagreed and stressed that she had provided the relevant information about her medical treatment in detention in her application form.

41.  The Court reiterates in this connection that an application may only be rejected as an abuse of process in extraordinary circumstances, in particular when it is knowingly based on untrue facts, or when incomplete and thus misleading information concerning the very core of the case has been submitted to the Court (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).

42.  Having regard to its case-law and the above considerations, the Court finds no grounds whatsoever on which to hold that the present case was brought in abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention.

43.  It follows that the Government’s objection as to the alleged abuse of the right of petition must be dismissed.

II.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

44.   The applicant complained that her detention on remand, in spite of her advanced age and poor state of health, amounted to inhuman and degrading treatment in contravention of Article 3 of the Convention, which provides as follows:

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

A.    The parties’ submissions

1.     The Government

45.  The Government firstly submitted that the applicant had failed to exhaust the available domestic remedies in respect of this complaint. In particular, she had failed to complain to the prison authorities about the conditions of her detention and she had not lodged a civil action for compensation under Articles 23 and 24 in conjunction with Article 448 of the Civil Code.

46.  They further asserted that the applicant’s age and health had been taken into consideration from the beginning of her detention. Her condition had been regularly monitored. During her detention she had had more than eighty medical appointments with various medical specialists. Moreover, the domestic authorities, when extending the applicant’s detention, had relied on expert reports on the applicant’s state of health. According to medical records and expert reports, the applicant’s state of health had been stable and had not deteriorated during her detention on remand.

2.     The applicant

47.  The applicant contended that her complaint did not concern inadequate prison conditions but the overall incompatibility of her detention with her state of health and old age, and that in that respect she had exhausted all the available remedies.

48.  She further maintained that her detention on remand, given her old age and state of health, had amounted to inhuman and degrading treatment. She specified that detention of elderly people in poor health was unacceptable in a democratic State. She submitted that her health had deteriorated on account of her prolonged stay in isolation, with inadequate nutrition, no access to sunlight and in a state of permanent stress.

49.  In particular, she submitted that before her detention on remand she had been planning to undergo surgery on her knee. During her detention, an orthopaedist had on 10 October 2017 confirmed the need for such surgery. The operation had been scheduled but eventually had not been carried out. She also alleged that her cell had been monitored. She concluded that there had been a breach of Article 3 of the Convention.

3.     The third-party intervener

50.  The Helsinki Foundation for Human Rights provided statistical data and general information concerning prison policy and the situation of elderly people in detention in Poland. They pointed that while there were a growing number of detainees over the age of 60, the domestic legislation or the prison services did not recognise them as a separate, vulnerable group. In the intervener’s view, the deprivation of liberty of elderly people required conditions of detention facilities to be adjusted to their needs and an adequate level of medical care to be provided.

B.    The Court’s assessment

1.     General principles

51.  The Court observes that if ill-treatment is to fall within the scope of Article 3, it must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000‑XI).

52.  In the instant case, the applicant relied on her age and her state of health. While there is no express prohibition in the Convention against the detention in prison of persons who have attained a certain age, the Court has already had the opportunity to note that, under certain circumstances, the detention of an elderly person over a lengthy period might raise an issue under Article 3. Nonetheless, regard is to be had to the particular circumstances of each specific case (see Priebke v. Italy (dec.), no. 48799/99, 5 April 2001; Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001-VI; and Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001‑VI).

53.  There are at least three specific elements to be considered in relation to the compatibility of an applicant’s health with his or her 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 applicant’s state of health (see Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004, and Contrada v. Italy (no. 2), no. 7509/08, § 78, 11 February 2014).

2.     Application of the general principles to the present case

54.  In so far as the Government submitted that the applicant’s complaint should be dismissed for failure to exhaust the available domestic remedies, the Court observes that the applicant did not complain of overcrowding or poor living conditions in the detention centre (compare Łatak v. Poland (dec.), no. 52070/08, §§ 78-82, 12 October 2010) but rather alleged that her prolonged detention on remand had caused her excessive hardship and suffering on account of her old age and various health problems.

55.  However, the Court finds that it is not necessary to examine whether the applicant has exhausted domestic remedies as, even assuming that she had done so, the complaint is in any event inadmissible for the following reasons.

56.   In the present case the ill-treatment complained of by the applicant consists of the overall incompatibility of her detention on remand with her state of health, coupled with her old age (she was 78 years old at the time of her arrest and had pre-existing medical conditions - see paragraph 25 above).

57.  The Court observes that throughout the total period of her detention on remand, the applicant was detained in a detention centre which had a prison hospital. She was under regular medical supervision and consulted medical specialists either in the detention facility or outside prison. She underwent numerous medical examinations, including an angioplasty procedure of her carotid artery (see paragraphs 28, 29, 31 and 34 above).

58.  The Court further notes that the domestic courts carefully assessed the compatibility of the applicant’s age and state of health with detention, having particular regard to information provided by the prison medical staff (see paragraph above). However, none of the doctors found that the applicant’s state of health was incompatible with detention, stating instead that she had regular access to medical care in the detention centre and her health was constantly monitored (compare Papon, cited above, and Ion Popescu v. Romania (dec.), no. 4206/11, §§ 35-36, 17 March 2015).

59.  The Court also points out that in their subsequent decisions, the domestic courts referred to a medical report prepared by an independent medical expert with a view to assessing the compatibility of the applicant’s health with her continued detention. The expert found that the applicant’s state of health was compatible with her detention on remand and that her various ailments could be treated in the detention centre (see paragraphs 15 and 18 above). While it is certain that the applicant was not enjoying the same quality of life as she would have if she had been at liberty, the Court notes that the national authorities made as much allowance as possible for her state of health and her age.

60.  In conclusion, having regard to the above considerations, the Court accepts that the applicant’s advanced age, coupled with the presence of certain medical conditions, might have made her more vulnerable than the average detainee, and that her detention may have exacerbated to a certain extent her feelings of distress (compare Giorgini v. Italy (dec.), no. 20034/11, 1 September 2015). However, on the basis of the evidence before it the Court does not find it established that she was subjected to ill‑treatment that attained a sufficient level of severity to fall within the scope of Article 3 of the Convention.

61.  It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

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

62.  The applicant complained that the length of her detention on remand had been excessive. She relied on Article 5 § 3 of the Convention, the relevant parts of which read:

“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

63.  The Court notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     Period to be taken into consideration

64.  The applicant’s detention on remand in the present case lasted from 30 January 2017, when she was arrested on charges of fraud, forgery, corruption and money laundering, until 4 December 2018, when she was released on bail (see paragraphs 6 and 24 above). Accordingly, the period to be taken into consideration in the present case amounted to one year and ten months.

2.     The parties’ submissions

(a)    The applicant

65.  The applicant argued that the length of her detention on remand had been unreasonable.

66.  She stressed that the investigative measures had consisted mainly of an analysis of documents already at the disposal of the prosecution services. The suggestion that she could have obstructed the proceedings throughout the whole period of her detention had been purely hypothetical.

(b)    The Government

67.  The Government submitted that the length of the applicant’s detention was compatible with the standards under Article 5 § 3 of the Convention. They argued that the grounds stated in the decisions of the domestic courts were “relevant” and “sufficient” to justify the entire period of the applicant’s detention, particularly given the complexity of the proceedings and the number of suspects. In particular, the reasonable suspicion that the applicant had committed the offences in question had persisted throughout the whole period of detention. There had also been a high likelihood that she could attempt to interfere with the course of the proceedings.

3.     The Court’s assessment

(a)    General principles

68.  The Court reiterates that the general principles regarding the right to a trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000‑XI; McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 84-91, 5 July 2016).

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

69.  In their decisions on the applicant’s detention, the domestic courts, in addition to the reasonable suspicion against the applicant, relied on several grounds, namely (1) the serious nature of the offences with which she had been charged, (2) the severity of the penalty to which she was liable and (3) the risk of obstructing the proceedings. The courts also considered that, in view of the complexity of the case, which involved many defendants, the applicant’s detention was necessary to secure the proper conduct of the proceedings.

70.  The Court accepts that there was reasonable suspicion that the applicant had 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 put forward 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).

71.  As regards the risk of obstruction, the Court notes that apart from the letter to the applicant’s daughter (see paragraph 10 above), the authorities did not indicate any concrete circumstances 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 influence witnesses to give false testimony.

72.  The Court notes that the risk of obstructing proceedings may be much higher if there is a serious suspicion that several accused acted in an organised criminal group, as such a group may try to resort to different unlawful means to try to prevent the prosecuting authorities from establishing the facts. However, although the applicant was charged with offences committed together with eight other suspects, she was not charged with acting in an organised criminal group (contrast Bąk v. Poland, no. 7870/04, § 57, 16 January 2007).

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

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

75.  There has accordingly been a violation of Article 5 § 3 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

76.  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

77.  The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage.

78.  The Government contested this claim.

79.  Making its assessment on an equitable basis, the Court awards the applicant EUR 2,600 in respect of non-pecuniary damage.

B.    Costs and expenses

80.  The applicant claimed PLN 15,552.98 (approx. EUR 3,600) in respect of costs and expenses incurred in the domestic proceedings and before the Court. However, the Court notes that the applicant submitted her claim after the expiry of the allotted time‑limit and she has advanced no reasons for having failed to comply with the requirements of Rule 60 § 2 of the Rules of Court. In these circumstances the Court considers that the applicant’s claim for costs and expenses should be rejected as lodged out of time.

C.    Default interest

81.  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.      Dismisses, the Government’s preliminary objection;

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

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

4.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 2,600 (two thousand six hundred euros) in respect of non‑pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

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

Done in English, and notified in writing on 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

         Attila Teplán                                                                Alena Poláčková
Acting Deputy Registrar                                                            President