EHRM, 16-01-2007, nr. 44115/98

On 5 December 1996 the applicant was examined by a physician of the Opole Detention Centre. He found the applicant to be in good condition. Because the applicant had complained about bad headaches and, noting that a birth-mark on his leg had changed tint, the physician ordered a specialist examination of the applicant to be carried out and that he should be seen by a dermatologist. The applicant was prescribed analgesics.

On the same day the applicant underwent a dental examination; several caries were found and it appeared that the applicant's teeth had been trimmed-down in preparation for the restoration of crowns.

On 3 January 1997 the applicant visited a dentist and requested porcelain fillings for his decayed teeth. The applicant was informed that under the applicable laws this kind of specialist dental treatment could be offered only upon payment.

As during his subsequent dental examination the applicant had complained about the hypersensitivity of his trimmed-down teeth, the dentist partly reconstructed the crowns of the teeth.

In a letter of 25 February 1997 the Opole Regional Prosecutor requested the Head of the Opole Detention Centre to allow the applicant to continue his dental treatment.

Since the applicant declared that he had no financial means that would allow him to cover the costs of crowns (the treatment received so far had been of a temporary character), on 22 December 1997 the Chief Physician of the Regional Inspectorate of Prison Administration in Opole decided that the applicant should obtain artificial replacements and the related treatment in the hospital of the First Wroclaw Prison. During his stay in the Wroclaw Prison in January 1998 the applicant received two sets of artificial dentures. The costs were covered by the Prison Administration.

Further dental treatment (correction of artificial dentures, restoration of crowns, dental fillings) was conducted in the Opole Detention Centre.

The applicant was often examined by various specialists, including an internist, a dermatologist, a psychiatrist, a neurologist, a laryngologist, and a eye specialist. It was established that the applicant suffered from, inter alia, arterial hypertension, gastritis and dizziness. Pharmacological treatment and a special diet were ordered.

In March 1997 the applicant intentionally injured himself by cutting his forearm and afterwards refused to have the wound stitched.

In March 1999 the applicant was diagnosed as suffering from uric acid diathesis and was placed for a month in the hospital of the First Prison in Wroclaw. Subsequently, he continued his treatment in the Opole Detention Centre. On 19 June he was examined by a rheumatologist.

The Government submit that during his detention the applicant contested the quality of his medical treatment and complained about inadequate medical care. On the other hand, he refused to co-operate with medical staff. In particular, the applicant did not consent to giving blood samples for examination, did not adhere to a prescribed diet and refused to take medication for arterial hypertension (the applicant held on to the medication in his cell). The applicant also refused to undergo hospital treatment and questioned the competence of several specialists.

On 2 October 1999 the applicant was examined by the medical panel of the Opole Detention Centre. The panel confirmed the adequacy of medical treatment provided to the applicant and found that his health did not preclude his further detention on remand.

On 2 December 1999, the last day of his detention, the applicant was examined and his general state of health was described as good.

On 5 December 1996 the prosecutor informed the applicant of the charges against him.

On 6 December 1996 the Opole District Court decided to detain the applicant on remand until 2 March 1997. The court considered that in the light of evidence gathered there was a sufficient likelihood that he had committed an offence. The court also pointed to a risk of the applicant's absconding, observing that he had been arrested by a special Interpol unit in Moscow on the strength of an international search warrant.

It would appear that on the same date he lodged an appeal against this decision. On 30 December 1996 the Opole Regional Court dismissed the appeal. It held that as the applicant had remained abroad for a lengthy period of time before being arrested, his argument that his parents required his constant care was not convincing.

On 6 January 1997 the applicant filed a request for release. On 12 February 1997 the Opole Regional Prosecutor dismissed the request.

On 16 February 1997 the applicant appealed. On 10 March 1997 the Wrocław Appellate Prosecutor dismissed the appeal, finding that the evidence gathered so far in the case, as well as the nature of the offences concerned, justified his continuing detention. Moreover, there were no grounds for releasing him under Article 218 of the Code of Criminal Procedure. Nevertheless, in view of the applicant's repeated requests, the prosecutor ordered an examination of his health and a review of the situation of his partner and his parents.

On 26 February 1997 the Opole Regional Court prolonged the applicant's detention until 2 June 1997, finding that the grounds on which the detention had been ordered were still valid. The court also observed that a number of witnesses and an expert in accountancy had still to be heard.

On 28 February 1997 the applicant appealed. On 25 March 1997 the Wrocław Court of Appeal dismissed the appeal, finding that the grounds for maintaining him in detention remained valid. The court referred to a justified risk of the applicant's absconding and of his hindering the conduct of the investigation. The court recalled that the applicant had been sought and arrested by Interpol pursuant to an international search warrant and noted that further extensive evidence needed to be obtained in the case.

On 28 March 1997 the Opole Regional Prosecutor dismissed the applicant's request of 25 March 1997 for release, stating that contrary to his submissions, a thorough examination of his health and his family's situation had shown no grounds which would warrant his release.

On 3 April 1997 the applicant requested the Wrocław Court of Appeal to replace his detention by police supervision. On 17 April 1997 the Opole Regional Prosecutor dismissed the request, relying on the grounds invoked in the decision of 28 March 1997. On 27 April 1997 the applicant appealed. On 15 May 1997 the Appellate Prosecutor dismissed the appeal.

On 27 May 1997 the Wrocław Court of Appeal prolonged the applicant's detention until 2 September 1997, finding that further procedural steps had to be taken and that there were no new circumstances for the purposes of the application of Article 218 of the Code of Criminal Procedure. On 17 July 1997 the Supreme Court dismissed the applicant's appeal of 4 June 1997.

On 18 July 1997 the Opole Regional Prosecutor dismissed the applicant's request for release of 17 July 1997.

On 21 August 1997 the Wrocław Court of Appeal prolonged the applicant's detention until 2 December 1997. The court relied on the probability of the applicant's guilt, the need to secure the proper conduct of the proceedings, the need to continue the investigation and on the risk that the applicant, if released, would go into hiding. On 3 September 1997 the applicant appealed against this decision. On 26 September 1997 the Supreme Court dismissed the appeal.

On 15 September 1997 the applicant requested the prosecuting authorities to release him from detention and to apply more lenient preventive measures. On 24 September 1997 the Opole Regional Prosecutor dismissed the request, observing that his continued detention had been justified and that it had been constantly reviewed by the courts. On 23 October 1997 the Wrocław Appellate Prosecutor dismissed the applicant's appeal of 6 October 1997, referring to the probability of his guilt, the gravity of the charges against him and the fact that the investigation had not yet been completed. The applicant's family situation, although difficult, did not argue in favour of his release.

On 9 October 1997 the Opole Regional Prosecutor discontinued the investigation against the applicant in respect of certain of the charges against him.

On 2 December 1997 the Supreme Court prolonged the applicant's detention until 2 March 1998, finding that all the necessary evidence had not been yet obtained and that there was a reasonable risk of the applicant's absconding. On the same date the applicant complained that the hearing before the Supreme Court, at which the prosecution had been present, had been held in violation of the principle of equality of arms in that he had not been given an opportunity to present his defence in person. The applicant was informed by the Supreme Court that no appeal was available against this decision.

On 8 January 1998 the applicant requested that his detention be replaced with more lenient preventive measures, namely bail in the amount of around PLN 5,000, police supervision, prohibition on leaving the country and seizure of his passport. The applicant's lawyers also argued that it was not true that their client had been hiding in Russia before his arrest, given that he had regularly visited the Polish Consulate in Moscow.

On 22 January 1998 the Opole Regional Prosecutor dismissed the request, finding that there existed a danger of his absconding. On 27 January 1998 the applicant appealed against this decision. On 16 February 1998 the Wrocław Appellate Prosecutor informed him that since the case file had been transferred to the Supreme Court, his appeal would be examined at a later date.

On 4 March 1998 the Appellate Prosecutor dismissed the applicant's appeal, referring to the reasonable risk of his absconding, going into hiding or obstructing the investigation. The prosecutor noted that the investigation would soon be brought to an end.

On 20 January 1998 the applicant requested that he and his lawyer be permitted to attend hearings before the Supreme Court during which his detention on remand would be examined.

On 26 February 1998 the Supreme Court prolonged the applicant's detention until 2 June 1998, finding that his continuing detention was necessary since the investigation had not yet been concluded. In particular, the Central Forensic Laboratory and the Opole Forensic Laboratory had not completed the taking of all necessary expert evidence and the judicial assistance requested from the German prosecuting authorities had not yet been provided. In addition, further victims were emerging in the case. Moreover, there was a reasonable fear that the applicant, if released, would abscond or might otherwise obstruct the investigation.

On 30 March 1998 the applicant, invoking Articles 5 § 1, 5 § 4 and 6 § 3 of the European Convention on Human Rights, complained to the President of the Supreme Court that neither he nor his lawyer had been allowed to participate in a session during which the lawfulness of his detention on remand was examined.

On 19 April 1998 the applicant lodged a request to replace his detention with police supervision, seizure of his passport and bail in the amount of PLN 5,000. On 24 April 1998 the Opole Regional Prosecutor dismissed the request, relying on the same reasons as those set out in his previous decisions. On 15 May 1998 the Appellate Prosecutor dismissed the applicant's appeal.

On 9 May 1998 the applicant requested the President of the Supreme Court to allow him to participate in a court session at which his detention on remand would be considered.

On 28 May 1998 a bill of indictment against the applicant was submitted to the Opole Regional Court. The applicant was charged with several counts of obtaining credit by false pretences, forgery of documents and embezzlement. The public prosecutor requested the court to hear 151 witnesses, 8 expert witnesses and to read out 1,200 documents at the hearing. The investigation files numbered 49 volumes.

On 1 June 1998 the Opole Regional Court decided to continue the applicant's detention until 2 November 1998 in view of the evidence gathered, a justified fear of his absconding or going into hiding, the serious nature of the offence and the complexity of the proceedings.

On 4 June 1998 the applicant lodged an appeal against this decision and requested to be allowed to be present at a hearing before the appellate court at which his appeal would be examined. On 24 June 1998 the Court of Appeal upheld this decision, finding that the detention was necessary in order to ensure the proper conduct of the proceedings. The court noted that the grounds of the applicant's detention had already been examined three times by the Supreme Court.

On 3 June 1998 the applicant requested the court to remit the case to the prosecution in order to review the stage reached in the investigation.

On 29 July 1998 the applicant filed a request for release. The Opole Regional Court dismissed the request on the same day. On 7 August 1998 the Opole Regional Court dismissed the applicant's appeal against this decision, qualifying it as a new request for release.

On 25 August 1998 the applicant submitted a new request for release. On 26 August 1998 the Opole Regional Court decided to adjourn the examination of the applicant's request until information concerning the applicant's health and his family situation had been obtained.

It would appear that on 12 September 1998 the applicant lodged a request to be allowed to participate in a court session before the Opole Regional Court concerning his detention on remand.

On 17 September 1998 the Opole Regional Court held a session to examine the applicant's request for release. The applicant's lawyer was present and submitted his arguments in support of the applicant's release. Having heard the parties the court dismissed the request, relying on the grounds mentioned in the previous decisions.

On 23 September 1998 and 14 October 1998 the applicant requested the court to release him and to allow him and his lawyer to participate in a court session at which his motion would be examined. On 19 October 1998 the court held a session to consider the applicant's request. Having heard the applicant's lawyer and the prosecutor, the court dismissed the request.

On 2 November 1998 the court held the first hearing on the merits of the case. At the hearing the court, having heard both parties, decided to prolong the applicant's detention until 2 December 1998.

In a letter of 2 November 1998 the applicant challenged a judge sitting in the panel.

On 9 November 1998 the court decided to remit the case to the prosecution for further investigations. On 16 November 1998 the prosecutor appealed against this decision. On 17 December 1998 the Wroclaw Court of Appeal decided to quash the decision of the Regional Court.

On 26 November 1998 the Supreme Court prolonged the applicant's detention on remand until 2 June 1999.

On 29 January 1999 the applicant requested the court to quash his detention on remand. On 5 February 1999 the Opole Regional Court refused to release him, finding that his continued detention was necessary to ensure the proper conduct of the proceedings. The applicant's lawyer had been duly summoned, but had failed to appear at the court session.

On 23 February 1999 the court held a hearing. The applicant challenged the presiding judge and the public prosecutor. The applicant also requested that the case be remitted to the prosecution for further investigation and that an expert witness be appointed to examine his state of health. The court adjourned the hearing until the applicant's request challenging the presiding judge had been examined by another panel of judges.

On 25 February 1999 the Opole Regional Court dismissed the applicant's challenge to the judge. On 9 March 1999 the applicant appealed. On 11 March 1999 the court refused to examine the appeal since no appeal was available against such a decision.

On 9 March 1999 the applicant lodged a request for release, complaining that his detention was unlawful and excessively lengthy, that he was in poor health and that there had been a delay in the proceedings in breach of Article 6 § 1 of the European Convention on Human Rights.

On 15 March 1999 the Opole Regional Court dismissed the applicant's request. It considered that his continued detention was necessary to secure the proper conduct of the proceedings and that it did not entail a serious danger to his life or health.

On 16 and 19 March 1999 the applicant requested that the decision to detain him on remand be quashed, submitting, in particular, that his health was very poor and complaining about the failure of the prison medical staff to diagnose and treat his illness. On 26 March 1999 the Opole Regional Court held a session to examine the application for release and requested the prison authorities to submit information on the applicant's state of health.

On 29 March 1999 the applicant's privately-hired lawyer informed the court that the applicant had withdrawn his power of attorney.

On 16 April 1999 the prison authorities submitted to the court the medical opinion on the applicant's health. The opinion stated that the applicant's state of health was no obstacle to his continued detention.

On 19 April 1999 the applicant complained that he had been suffering from a chronic and incurable motor system disorder due to the fact that his ill-health had been neglected by the prosecuting authorities and by incompetent prison medical staff and because he had been treated in appalling conditions in the prison hospital.

On 26 April 1999 the applicant lodged a request to quash his detention on remand, referring to his ill-health.

On 29 April 1999 the Opole Regional Court, having heard the prosecutor and the applicant's lawyer, dismissed the applicant's requests of 16 March 1999 and 26 April 1999, finding that his detention was necessary in view of the probability of his guilt and given that according to medical certificates submitted by the prison doctors, the applicant could be treated under the prison medical scheme.

On 6 May 1999 the applicant challenged a judge sitting in the panel.

On 17 May 1999 the applicant requested to be brought to the court session in the Supreme Court at which his detention on remand would be examined.

On 25 May 1999 the Supreme Court decided to prolong the applicant's detention on remand until 2 December 1999. The court was of the opinion that the applicant had contributed to the delay in the proceedings, given that he had filed a motion challenging a judge and as well as a motion to withdraw his lawyer's power of attorney. The court once again referred to a justified fear of the applicant's absconding and recalled that he had been sought by Interpol. The applicant's legal-aid lawyer failed to appear in court, although he had been duly summoned.

On 9 June 1999 the court appointed two additional legal-aid lawyers for the applicant.

At a hearing held on 16 September 1999 the court dismissed the applicant's request for release. At a hearing held on 13 October 1999 the applicant again unsuccessfully applied for release. The court requested the Medical Panel of the Opole Detention Centre to submit information regarding his health. At a hearing held on 21 October 1999 the applicant again requested to be released.

On 29 October 1999 the Medical Panel of the Opole Detention Centre submitted the opinion concerning the applicant's health. At a hearing held on 4 November 1999 the court dismissed his request for release relying on the medical opinion that he was in good health.

The applicant was released on 2 December 1999. On 1 December 1999 the court imposed police supervision on the applicant and prohibited him from leaving Poland.

According to the applicant's submissions of 26 July 2006, the proceedings in his case are still pending before the first-instance court.

The applicant claimed that he had suffered enormous pain because his teeth had been trimmed down and exposed. He alleges that the prison authorities had repeatedly refused his requests to have artificial porcelain crowns fitted. He complained that the work on the temporary reconstruction of his teeth only began when he had lodged his application with the Court. During period of one year he had been refused treatment and had been required to pay for it.

The applicant further submitted that he had not been placed under psychiatric observation while in detention and that other psychiatric examinations carried out on him had been superficial. It had not therefore been reliably established that his condition was compatible with his detention. He claimed that his suicide attempt in 1997 had proved the authorities' lack of diligence in this matter. The applicant supported his allegations with reference to the fact that after he had been released he underwent psychiatric treatment in a civil hospital between 18 October and 12 November 2002 and was diagnosed with mood disorders.

The applicant did not contest the Government's submissions that while detained he had been examined on numerous occasions and treated by various specialists. However, the applicant complained that he had not been treated by a physician of his own choice and that he had not trusted the prison doctors. He admitted that he had been prescribed a special diet and medication. He claimed that he had followed the doctors' instructions except when his mental condition had been particularly bad.

The Government disputed the applicant's allegations. They stressed that the applicant had been examined by various specialists and had been offered adequate dental treatment. The Government emphasised that the applicant had been provided with two sets of dentures. The Regional Inspectorate of Prison Administration in Opole had eventually offered to bear all the costs of the applicant's dental treatment since he had been unable to cover them, although under the applicable domestic laws this type of treatment could be provided only upon payment by a detainee. The Government also stressed that the applicant had received adequate medical treatment despite the fact that he had repeatedly refused to co-operate with doctors and had challenged their professional competence (see paragraphs 8 and 20 above).

The Court first recalls that according to the Convention organs' case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162). It also recalls that lack of medical treatment in prison may raise an issue under Article 3. In such cases, the factors to be considered are the seriousness of the applicant's condition, the quality of medical care he receives and whether his state of health is compatible with detention. Also, there remains the State's obligation to maintain a continuous review of the detention arrangements employed with a view to ensuring the health and well-being of all prisoners, having due regard to the ordinary and reasonable requirements of imprisonment. However, it cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment (see Lukanov v. Bulgaria, Eur. Comm. HR, Dec. 12.1.1995, D.R. 80-A, pp. 128–130; Aerts v. Belgium, judgment of 30 July 1998, Reports of Judgments and Decisions1998-V, p. 1966, §§ 64 et seq.; Kudła v. Poland, no. 30210/96, §§ 91 and 94, ECHR 2000-XI).

Turning to the circumstances of the present case, the Court observes that the applicant regularly sought, and obtained, medical attention. It was common ground between the parties that he had often been examined by the prison doctors and that various forms of medication had been administered to him. It is to be observed that the health professionals who examined the applicant at no stage considered that his ailments were of such severity as to entail any serious long-term danger to his health.

It is further to be noted that on several occasions, following the applicant's requests for release, the domestic court ordered that a comprehensive medical assessment of his condition be carried out by a medical expert or by a panel of prison doctors (for example in March 1997, August 1998, April 1999, October 1999 and December 1999; see paragraphs 19–20, 28, 47, 60–65 and 71 above). All these reports were prepared with a view to establishing whether the applicant's continued detention was compatible with his condition. None contained a conclusion that the applicant should be released from detention.

With regard to the applicant's dental treatment, the Court observes that the applicant was provided with temporary solutions to ease his pain and that eventually he did receive porcelain crowns free of charge.

Lastly, as regards the applicant's alleged attempted suicide, the Court does not find on the material before it anything to show that the authorities can be held responsible for what happened. The applicant was provided with immediate medical assistance. The fact that three years after his release the applicant was diagnosed with mood disorders is an insufficient basis for substantiating the allegation that the applicant was not provided with adequate psychiatric assistance in detention.

Consequently, the Court considers that the treatment complained of does not disclose any indication of a violation of Article 3 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant complained that neither he nor his lawyer was entitled to be present when the courts were reviewing his detention on remand. Moreover, in the proceedings concerning his detention on remand, the courts refused to examine witnesses on his behalf. These proceedings had therefore not been adversarial. He also submitted that his applications for release as well as his appeals against refusals to release him, in particular those of 4 June 1997 (dismissed by the Supreme Court on 17 July 1997) and 3 September 1997 (dismissed on 26 September 1997) had not been examined speedily by the courts.

The Government acknowledged that before 1 September 1998 (i.e. the date on which the 1997 Code of Criminal Procedure entered into force) an accused and his lawyer had not been entitled to participate in court sessions concerning a request for release or prolongation of detention on remand. However, this situation had considerably changed after 1 September 1998 and already on 17 September 1998 the applicant's lawyer participated in the relevant court sessions and submitted arguments in support of the applicant's request for release. The same adversarial procedure had been applied to the applicant's subsequent requests.

With regard to the complaint that the lawfulness of the applicant's detention had not been decided speedily, the Government submitted that the examination of his appeals of 4 June 1997 and of 3 September 1997 required the transmission of the voluminous case file from the Opole Regional Prosecutor to the Supreme Court in Warsaw. On 27 May 1997 the case file had been examined by the Wroclaw Court of Appeal, on 4 June 1997 the case file had been sent to the Opole Regional Prosecutor and, once the applicant had submitted his appeal, the case file had been forwarded to the Supreme Court. In the meantime the public prosecutor had to conduct normal investigation activities. When the appeal of 3 September 1997 had been examined, the applicant filed (on 15 September) with the Opole Regional Prosecutor a further request for release. It was dismissed on 24 September 1997.

The Government further emphasised that the lawfulness of the applicant's continued detention had been under the continuous supervision of the relevant authorities, including the period when the applicant had been waiting for an examination of his appeal against the decision of 21 August 1997.

The Court first recalls that it has already examined whether the proceedings concerning review of the lawfulness of detention on remand under the provisions of Polish law, as it stood at the relevant time, complied with the requirements of Article 5 § 4 of the Convention. It considered that such proceedings fell short of these requirements and, consequently, found a violation of that provision (see Niedbała v. Poland judgment referred to above; Kawka v. Poland, no. 25874/94, §§ 53–61, 9 January 2001; Trzaska v. Poland, no. 25792/94, §§ 70–79,11 July 2000; Włoch v. Poland, no. 27785/95, §§ 125–136, 9 October 2000). The Court sees no grounds on which to find otherwise in the present case.

Accordingly, there has been a violation of Article 5 § 4 of the Convention with regard to the lack of adversarial proceedings before the courts examining the lawfulness of the applicant's detention, up until 17 September 1998 (see paragraph 49 above).

With regard to the complaint relating to the allegedly excessive length of time taken to examine the applicant's requests for release, the Court recalls that Article 5 § 4, in guaranteeing to persons arrested or detained a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see, for instance, Musiał v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II).

In the circumstances of the present case, the examination of the two appeals complained of had lasted forty two days and twenty three days respectively. The Court however observes that the requirement of a speedy decision provided for in Article 5 § 4 relates primarily to a first decision issued upon the applicant's request for release. Thus, the period of examination of an appeal against this decision will not necessarily entail a breach of this provision, even though the same period of time might not be considered reasonable with regard to proceedings before a first-instance authority. It should also be borne in mind that the applicant retained the right to submit a further application at any time (see, mutatis mutandis, Letellier v. France, judgment of 26 June 1991, Series A no. 207, p. 2, § 56). Indeed, the applicant had fully availed himself of his rights in this respect, having regularly lodged new requests for release which were all dealt with within one to fourteen days.

Consequently, the Court considers that the applicant's right to have the lawfulness of his detention decided speedily has not been breached. The Court thus finds that there has been no violation of Article 5 § 4 of the Convention in this regard.

The Court must first determine whether the applicant has exhausted the remedies available to him in Polish law, in accordance with Article 35 § 1 of the Convention.

The Court reiterates in this connection that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, this rule is subject to exceptions which may be justified by the particular circumstances of each case; this is also the case when the application concerns length of judicial proceedings (see Baumann v. France, no. 33592/96, § 47, 22 May 2001; Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX).

The Court observes that the 2004 Act contains, in its section 18, provisions of a transitional character concerning persons who, as the applicant in the present case, lodged an application with the Court alleging a violation of Article 6 of the Convention on account of the unreasonable length of the proceedings. Under this provision it was open to them to lodge, within six months from 17 September 2004, a complaint provided for by section 5 of that Act with a competent domestic court, provided that their application with the Strasbourg Court had been lodged in the course of the proceedings concerned and that the Court had not yet adopted a decision on the admissibility of their case. Accordingly, the Court finds that the applicant was entitled, throughout the period from 17 September 2004 until 17 March 2005, to lodge such a complaint. Moreover, since the proceedings in his case are pending, he still has the possibility of availing himself of the remedy provided for by section 5 taken alone.

The Court further recalls that it has held that this remedy was effective in respect of the excessive length of criminal proceedings as it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (Charzyński v. Poland (dec.), no. 15212/03).

The Court further notes that the applicant was informed, by a letter of the Registry of 1 December 2004 and 16 May 2006, of the existence of remedies provided for by the 2004 Act. However, by a letter of 6 June 2006 he informed the Court that he did not intend to avail himself of them.

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

The applicant claimed EUR 16,200 in respect of pecuniary and EUR 10,000 in respect of non-pecuniary damage.

The Government contested the claim.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

The Court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of Article 5 § 4 of the Convention had been observed in his case. Consequently, the Court considers that the alleged non-pecuniary damage is adequately compensated by the finding of a violation of this provision (Sałapa v. Poland, no. 35489/97, § 157, 19 December 2002).

On the other hand, the Court accepts that the applicant suffered non-pecuniary damage — such as distress and frustration — resulting from his protracted detention, which is not sufficiently compensated by the findings of violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,000 under this head.

The applicant also claimed reimbursement of the costs and expenses incurred before the domestic courts. He maintained, however, that he could not specify an exact amount since the proceedings had not yet ended.

The Government contested the applicant's claim.

The Court recalls that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred, and reasonable as to quantum. In this regard the Court observes that the applicant has received legal aid in the domestic proceedings and the relevant costs have already been met by the State. The Court reiterates further that costs incurred before national courts may only be taken into account if they were incurred in seeking redress for the violations of the Convention found, which was not so in the instant case (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II).

On the other hand, having regard to all the circumstances, the Court awards the applicant, who was not represented by a lawyer, EUR 100 for the costs and expenses incurred in the Strasbourg proceedings.

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