FOURTH SECTION
CASE OF
OLSZEWSKI v. POLAND
(Application no. 21880/03)
JUDGMENT
STRASBOURG
2 April 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 Olszewski 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 Lawrence Early, Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 21880/03)
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 Grzegorz Olszewski (“the applicant”). The
first part of the application, concerning criminal proceedings against the
applicant (Article 6), was lodged on 22 April 2003. The second part,
concerning the conditions of the applicant’s detention and medical care in
prison (Article 3), and three sets of civil proceedings (Article 6), was lodged
on 31 May 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, who suffers from orthopaedic and
other medical conditions, complained, in particular, that there had been a
breach of Article 3 of the Convention owing to overcrowding and inadequate
medical care during his detention in Płock Prison.
On 14 January 2008 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 1958 and lives in Gostynin.
A. Criminal proceedings against the applicant
On 22 April 2003 the applicant complained to the
Court of procedural shortcomings and the unfavourable outcome of criminal
proceedings.
On 28 July 1999 he had been acquitted of robbery
by the Gostynin District Court (Sąd Rejonowy).
On 21 December 1999 the Płock Regional Court
(Sąd Okręgowy) partly quashed the judgment and remitted the
case to the lower court.
On 20 May 2002 the Gostynin District Court
convicted the applicant of robbery and sentenced him to six years’
imprisonment.
On 2 December 2002 the Płock Regional Court
upheld that judgment but reduced the applicant’s sentence to five years’
imprisonment. The judgment, together with the court’s reasoned opinion, was
served on the applicant on 16 March 2003.
On 24 March 2003 the applicant’s legal-aid lawyer
informed the Płock Regional Court that he had not found any grounds to
lodge a cassation appeal in the applicant’s case. On 7 April 2003 the court
conveyed that information to the applicant and its refusal to appoint another
lawyer.
On 9 April 2004 the Ombudsman refused to lodge
an extraordinary cassation appeal in the applicant’s case, because he had not
found any grounds to do so.
On 15 March 2005 the applicant made an
application to the Supreme Court for the proceedings to be reopened.
On 20 June 2005 the Gostynin District Court
appointed a legal-aid lawyer to represent the applicant in the proceedings for
the reopening of his case. On 8 August 2005 the lawyer prepared and
lodged a proper application to reopen the proceedings. He argued that new facts
and evidence had come to light since the applicant had been convicted, namely
that two of the witnesses for the prosecution had admitted that they had given false
statements.
On 16 September 2005 the Warsaw Court of Appeal
(Sąd Apelacyjny) decided to exempt the applicant from court fees.
On 30 September 2005 the Warsaw Court of Appeal
refused to reopen the proceedings on the grounds that the witnesses in question
had not been convicted of perjury in connection with the main proceedings
against the applicant, and that the arguments raised by the applicant’s lawyer
were therefore invalid.
No appeal was available under the applicable
domestic law.
B. Conditions of the applicant’s detention
On 31 May 2007 the applicant complained to the
Court of overcrowding and inadequate medical care and detention conditions in
Płock Prison.
1. Period of the applicant’s detention
The applicant was detained in Płock Prison
on three separate occasions: (1) from 30 December 1998 to 14 July 1999; (2) from
8 August 2003 until 4 June 2007; and (3) from 9 January until 6 February 2008.
Between his first and second periods of detention the applicant was released
into the community, and between his second and third periods of detention there,
he was detained in the Gdańsk Remand Centre hospital. He was released into
the community on 6 February 2008.
2. Conditions of the applicant’s detention from 8
August 2003 until 4 June 2007 and from 9 January until 6 February 2008
The applicant submitted that throughout his
detention in Płock Prison he had been detained in overcrowded cells. He
did not indicate the size of the cells in which he had been placed or the
number of inmates he had had to share them with.
He did submit to the Court, however, copies of official
memoranda revealing that every three to four months or so, the governor of
Płock Prison would report to the relevant penitentiary judge along the
following lines: “...owing to the overcrowding of [the prison’s] quarters, I
have been forced to place prisoners in cells with less than 3 sq. m of living
space for each person. This situation affects all cells ...”
The official statistics published by the Prison
Service (Służba Więzienna)
show that during the applicant’s second period of detention, overcrowding (the
degree by which the number of prisoners exceeds the maximum allowed capacity of
a particular detention facility, which, in turn, is calculated on the basis of
the standard of 3 m² of cell space per prisoner provided for in Polish law) at
Płock Prison ranged between 19% and 29% in the relevant part of 2003, 22% and
33% in 2004, 22% and 34% in 2005, 25% and 36% in 2006, 29% and 34.5% in the
relevant part of 2007, and had been nearly 30% in January 2008 and over 33 % in
February of the same year.
The Government acknowledged that during the relevant period,
namely between 2003 and January 2008, the overall maximum capacity of
Płock Prison had been exceeded by on average 32%.
The Government also submitted that between 8 August
2003 and 4 June 2007 the applicant had been detained in eight cells, measuring
between 6 and 25 sq. m. They submitted that no records existed to show how many
prisoners had shared those cells with the applicant. In consequence, it could
not be established whether or not the applicant’s cells had been overcrowded.
As regards the final period of the applicant’s
detention, the Government submitted that between 9 January and 6 February 2008,
he had been placed in cell no. 304, which measured nearly 25 sq. m. For a total
of nine days he had shared that cell with ten fellow inmates (2.2 sq. m per
person). During the remaining nineteen days, he had shared it with eleven
inmates (2 sq. m per person).
It appears that all cells were clean, well-lit
and ventilated.
The Government stressed that the applicant had
not been confined to his cells all day long. He had been allowed an hour of outdoor
exercise per day, an hour in the prison recreation room (świetlica)
every other day and two weekly visits to the library. Moreover, the applicant
could, if he had wished to do so, have attended education and leisure courses
or taken up employment offered by the prison.
The applicant, in principle, did not contest the
above submissions. As regards his employment opportunities, however, he provided
the Court with copies of several letters from the prison administration and the
prison authorities, which stated that his job opportunities were objectively
limited owing to his disability and the fact that the rate of unemployment
among prisoners was very high (see paragraph 39 below).
Lastly, the applicant submitted that for two
years, from 27 October 2004 until 4 June 2007, he had shared a cell (no.
304, wing III) with an inmate who suffered from schizophrenia and had a history
of violence.
The Government argued that during his detention
in Płock Prison the applicant had not shared his cell with any prisoner
suffering from schizophrenia. They also pointed out that the applicant had
never made any complaints to that effect to the prison authorities.
C. The applicant’s medical care in prison
In his application to the Court of 31 May 2007,
the applicant also complained that he had been provided with inadequate medical
care by the prison healthcare system during his detention in Płock Prison.
The applicant suffered from ulcers, varicose
veins, atherosclerosis (hardening of the arteries), osteoarthritis, chronic bronchitis, asthma and a spinal hernia. His conditions
were confirmed by numerous hospital records and medical certificates, issued by,
among others, a public hospital in Gostyniń on 16 May 2003, Płock
Prison medical centre (Zakład Opieki Zdrowotnej) on 30 January 2007,
and the Gdańsk Remand Centre hospital on 31 July and 8 February 2007. He used
an orthopaedic prosthesis and was in overall poor health.
The applicant submitted two hospital discharge
reports issued shortly before his detention in 2003. The documents revealed
that the applicant had been treated for spondylarthritis (an inflammatory spinal rheumatic disease) and chronic bronchitis and that when he was
discharged he had been in a good state of health. The reports also recommended
that the applicant should continue taking certain medication and should do physiotherapy
exercises at home.
The applicant was certified on 14 February
2007 as having a minor disability (umiarkowany stopień
niepełnosprawności) and on 31 May 2010 as having a
significant disability (znaczny stopień niepełnosprawności).
The applicant asserted that he had not received
adequate medical care during his imprisonment. In particular, he submitted that
he had not been allowed to have specialist orthopaedic treatment and that on
several occasions he had been refused painkillers.
The Government submitted that the applicant had
been provided with regular and adequate care and treatment which had complied
with recommended medical practice. He had been examined by general
practitioners and various specialists on 259 occasions. More precisely, during
his second and third periods of detention in Płock Prison, the applicant
had been examined by specialists in internal medicine (147 times) and physiotherapy
(twenty-two times), a pulmonologist (forty times), a dentist (eleven times),
a radiologist (nine times), a psychiatrist (ten times), a neurologist (fourteen
times), a dermatologist (three times), a laryngologist (twice), an
ophthalmologist (three times) and by a vascular surgeon once.
From 4 June 2007 to 9 January 2008 the
applicant was detained in Gdańsk Remand Centre. He was initially placed in
a cell in the general wing because of building works in the hospital wing. On
8 August 2007 he was transferred to the hospital wing. The medical
certificates issued in the hospital revealed that throughout the whole period
in question, the applicant had received hospital treatment for his spinal arthritis
and hernia, as well as for chronic bronchitis.
D. Action taken by the applicant concerning the
conditions of his detention and medical care in prison
1. Complaints to the prison authorities
The applicant lodged numerous complaints with
the penitentiary prison authorities concerning his allegedly inadequate medical
care and other aspects of his detention but to no avail. The applicant did not lodge
any complaints about overcrowding at that stage.
By letter of 2 June 2005, an officer authorised
by the Director of the Łódź Regional Inspectorate of the Prison
Service (Okręgowy Inspektorat Służby Więziennej)
informed the applicant that a complaint he had lodged concerning his unemployment
in Płock Prison had been rejected as ill-founded. It was emphasised
that the applicant’s job opportunities were objectively limited owing to the
nature of his disability and the fact that the rate of unemployment among
prisoners was very high.
By letters of 19 April, 7 May, 9 July and
8 October 2007 the Directors of the Łódź and Gdańsk Regional
Inspectorates of the Prison Service informed the applicant that his complaints of
inadequate medical treatment in prison had been rejected as ill-founded. It was
established that the applicant had received sufficient medical treatment,
having been examined by specialists and prescribed medication. It was also
noted that in order to provide him with better medical care, on 4 June
2007 the applicant had been transferred to the hospital at Gdańsk Remand
Centre.
By letter of 6 August 2007 the Director of the Łódź
Regional Prison Service informed the applicant that, as he had claimed, the
Płock Prison medical centre had failed to undertake all the necessary
measures in order to supply him with prosthetics. No further information can be
derived from this document. The applicant did not make any submissions regarding
this aspect of his medical conditions and healthcare.
The applicant also sought temporary leave from
prison on account of his poor health; however, on 27 August 2007 the Gdańsk Regional Court refused to grant the necessary licence.
On 14 November 2007 the Gdańsk Court of
Appeal upheld that decision. The domestic courts considered that adequate medical
care and treatment could be provided to the applicant by the prison system. Reference
was made to the medical certificates of 12 July and 8 November 2007
which stated that there was no requirement for the applicant to undergo spinal
surgery. The courts concluded that the applicant’s multiple and serious health conditions
did not make it impossible for him to continue serving his prison sentence.
2. Civil proceedings against the State Treasury
In March 2007 the applicant brought a civil
action against the State Treasury for compensation in the amount of 150,000
Polish zlotys (PLN) (approximately 36,000 euros (EUR)) for non-pecuniary damage,
which he had allegedly suffered owing to overcrowding and inadequate conditions
of detention and medical care in Płock Prison. He also asked to be exempted
from paying court fees, on the basis that he was unemployed and had no
financial resources.
On an unspecified date the Płock Regional
Court ordered that the applicant pay court fees in the amount of PLN 7,500
(approximately EUR 2,000).
The court later decided to grant the applicant a
partial exemption from the fees and ordered that he pay the remaining fee of
PLN 1,500 (approximately EUR 420).
It would appear that the applicant lodged an
interlocutory appeal seeking a full exemption from the court fees.
On 30 March 2007 the Płock Regional Court
returned the applicant’s interlocutory appeal because it had not been lodged in
compliance with the relevant procedural requirements namely the applicant had failed
to give full details of his appeal and to submit the necessary supporting
documents. On 5 July 2007 the same court rejected a further
interlocutory appeal by the applicant because such a remedy had not been available
to him under the applicable domestic law.
It appears that the applicant sent a further
request for an exemption from court fees. On 13 July 2007 the Płock Regional Court invited him to submit a statement of his financial means in
support of his request.
It appears that the full fee exemption was
eventually granted.
On 25 June 2009 the Płock Regional Court
obtained a medical expert report, which concluded that the applicant’s medical
condition, more specifically the atherosclerosis of his legs, spinal hernia, osteoarthritis, chronic bronchitis and joint
deformation, did not have any connection and did not directly result from his
incarceration and the conditions of his detention in Płock Prison. It was
also considered that the cause of the applicant’s multiple health disorders was
unknown but they undoubtedly dated back to a time prior to his detention.
In addition, the expert made the following
findings about the applicant’s health and treatment in Płock Prison: the applicant’s atherosclerosis dated back to 1995 or earlier; he was a
smoker and had begun treatment for chronic bronchitis in 1997; he had developed
spinal problems in 1998; and he received medication for stomach ulcers. The
report also concluded that the medical treatment during his detention could be regarded
as effective as his chronic illnesses were not getting any worse.
On 5 August 2009 the Płock Regional Court
dismissed the applicant’s claim on its merits (no. IC 586/07). A copy of the
judgment was served on the applicant on 12 December 2009.
On 20 January 2010 the applicant informed the Regional Court that he wished to appeal against the first-instance judgment and asked the
court to provide him with its reasoned opinion for the decision.
On 8 February 2010 the Płock Regional Court
rejected the applicant’s appeal as it was lodged out of time. On 8 April
2010 the same court rejected the applicant’s interlocutory appeal against that
decision.
E. The applicant’s divorce proceedings
On 31 May 2007 the applicant also complained to
the Court of procedural shortcomings and the unfavourable outcome of divorce
proceedings to which he was party.
On 5 January 2006 the Płock Regional Court
ruled in the applicant’s divorce proceedings.
On 24 March 2006 the Płock Regional Court
dismissed an appeal by the applicant for non-compliance with procedural
requirements, inter alia, his failure to specify the exact nature of his
appeal, namely whether he wished to have the first-instance court’s judgment amended
or quashed entirely, and his failure to pay the required court fee in the
amount of PLN 50 (approximately EUR 13).
On 22 September 2006 the Warsaw Court of Appeal
dismissed an interlocutory appeal by the applicant against that decision.
F. Social security proceedings concerning the degree
of the applicant’s disability
On 31 May 2007 the applicant also complained to
the Court of procedural shortcomings and the unfavourable outcome of social
security proceedings he had brought.
The applicant failed to submit all the documents
relating to the proceedings which were the subject of that part of the
application. As a result, it is impossible for the Court to establish exactly what
happened.
On an unspecified date the applicant instituted
social security proceedings for an assessment of his level of disability and his
pension.
It appears that on 19 June 2006 the Warsaw
District Court decided to dismiss the applicant’s claim for non-compliance with
procedural requirements, namely a failure by the applicant to pay a basic court
fee (opłata podstawowa) in the amount of PLN 30 (approximately
EUR 8). It appears that the applicant later lodged a number of
interlocutory appeals, some of which were out of time. Eventually, the case was
struck out on the grounds that the applicant had failed to comply with several
procedural requirements, namely to pay the required basic court fee and lodge his
appeals within the prescribed time-limit.
On 31 May 2010 the applicant was certified as being
significantly disabled.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A detailed description of the relevant domestic
law and practice, concerning general rules governing conditions of detention in
Poland and domestic remedies available to detainees alleging that the
conditions of their detention were inadequate, is set out in the Court’s pilot
judgments in Orchowski v. Poland (no. 17885/04, §§ 75-85,
22 October 2009) and Norbert Sikorski v. Poland (no. 17599/05, §§ 45-88, 22 October 2009). More recent developments are described in the Court’s
decision in the case of Łatak v. Poland ((dec.), no. 52070/08,
§§ 25-54, 12 October 2010).
The provisions pertaining to medical care in
detention facilities are set out in the Court’s judgment in the case of Sławomir
Musiał v. Poland (no. 28300/06, §§ 48-61,
20 January 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained under Article 3 of
the Convention of overcrowding and inadequate conditions and medical care in
Płock Prison. He claimed, in particular, that the conditions of his
detention had failed to meet the standard required for persons in his state of
health. The relevant provision reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
1. The Government
The Government in their submissions dated 9 May
2008, raised a preliminary objection similar to that relied on in the Orchowski
pilot case (cited above, §§ 95-98).
In particular, they stressed that before lodging
his Article 3 application with the Court on 31 May 2007, 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) used
remedies provided for 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; and (3) pursued his civil action against Płock Prison (case
no. IC 586/07). As regards the latter remedy, the Government argued that it
had been effective at the time when the applicant had lodged his application
with the Court. They cited a number of domestic cases in which various
provisions of the Civil Code had been successfully relied on, resulting in prisoners
being awarded compensation for non-pecuniary damage suffered on account
of an unlawful interference with their right to protect themselves from passive
smoking, food poisoning, being beaten up by fellow inmates or being at an
increased risk of contracting HIV. The Government also relied on four more
recent domestic judgments by virtue of which former detainees had obtained compensation
for an infringement of their personal rights on account of overcrowding and
inadequate detention conditions.
In view of the foregoing, the Government invited
the Court to reject the application for non-exhaustion of domestic
remedies, pursuant to Article 35 § 1 of the Convention.
2. The applicant
The applicant did not submit any comments.
3. The Court
The Court observes that the rule of exhaustion
of domestic remedies set out in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to remedies which are available
and sufficient to afford redress in respect of the breaches alleged. The
existence of the remedies in question must be sufficiently certain,
not only in theory but also in practice, failing which they will lack the
requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey,
16 September 1996, § 65, Reports
of Judgments and Decisions 1996-IV).
In the area of the exhaustion of domestic
remedies there is a distribution of the burden of proof. It is
incumbent on the Government claiming non-exhaustion to satisfy the Court that a
remedy was effective and available both in theory and in practice at the
relevant time, that is to say, that it was accessible, was capable of
providing redress in respect of the applicant’s complaints and offered
reasonable prospects of success. However, once this burden has been
satisfied it falls to the applicant to establish that the remedy
advanced by the Government was in fact used or was for some reason inadequate
and ineffective in the particular circumstances of the case or that
there existed special circumstances absolving him or her from the requirement
(ibid., § 68).
In addition, Article 35 § 1 must be applied with some degree
of flexibility and without excessive formalism. This means amongst other
things that it must take realistic account not only of the existence of formal
remedies in the legal system of the Contracting Party concerned but also
of the general legal and political context in which they operate as well
as the personal circumstances of the applicants (ibid., § 69).
In the present case, the application concerning
Article 3 of the Convention was lodged on 31 May 2007 while the
applicant was still in detention. There were two elements to the applicant’s
complaint, as it was made in the context of the applicant’s particular state of
health. The applicant complained firstly of overcrowding and the poor living
and sanitary conditions he had endured during his detention in Płock
Prison as a result, and secondly, about the quality of medical care provided to
him there, in view of his orthopaedic disability and other serious medical
conditions.
The Government argued that before the applicant
lodged his complaint under Article 3 he could have made use of a number of
available procedural remedies. In particular, he could have pursued the civil
claim which he had instituted earlier in 2007 alleging an infringement of his
personal rights.
. It
must be noted at the outset that two pilot judgments concerning the conditions
in Polish detention facilities were adopted on 13 October 2009 in the
cases of Orchowski (cited above) and Norbert Sikorski (Norbert Sikorski v. Poland, no. 17599/05, 22
October 2009). The Court held in these judgments
that overcrowding in Polish detention facilities had been of a structural
nature from 2000 until at least mid-2008 which undermined the effectiveness of
any domestic remedies available, making them theoretical and illusory and
incapable of providing redress in respect of the applicants’ complaints (ibid.
§§ 111 and 147). The Court, nevertheless, indicated that where the alleged
violation no longer persisted and could not, therefore, be eliminated with
retrospective effect, the only means of redress was pecuniary compensation. In
such situations, regard being had to the principle of subsidiarity, it could
not be excluded that applicants who complained of degrading treatment because
of the conditions of their detention might be required to first avail
themselves of the civil action relied on by the Government (ibid. § 109 ).
. Subsequently,
the Court held, in view of developments in the domestic law in the field of
personal rights, that a civil action under Article 24 taken in conjunction with
Article 448 of the Civil Code could be considered an “effective remedy” for the
purposes of Article 35 § 1 of the Convention as from 17 March 2010. Having
regard to the three-year limitation period for bringing such an action, the
Court held that essentially in all cases in which, in June 2008, the alleged
violation had either been remedied by placing the applicant in
Convention-compliant conditions or had ended ipso
facto because the applicant had been released,
the applicants concerned were required to bring a civil action for the
infringement of their personal rights and for compensation (Łatak,
cited above, § 85). The Court has expressly confirmed that in cases concerning
conditions of detention filed with the Court which have not yet been declared
admissible, it is appropriate to assess the adequacy of the remedy relied on by
the Government in the light of the current situation, namely at the time of the
Court’s examination of the case.
However, the Court has also affirmed that
in the specific context of applications following the Orchowski and Sikorski
pilot judgments and arising from the above-mentioned problem of overcrowding in
Polish detention facilities, until at least 2008, an applicant who lodged his
application with the Court at the time when a civil action under
Article 24 taken in conjunction with Article 448 of the Civil Code
could not be considered an “effective remedy” for the purpose of Article 35 of
the Convention, that is prior to 17 March 2010 (see Łatak, cited
above § 85), cannot in principle be required to avail himself of this remedy
if, at the time when the Court was deciding his case, the civil action in
question was time-barred (see Grzywaczewski v. Poland, no. 18364/06, § 66, 31 May 2012; Musiałek and Baczyński v. Poland, no. 32798/02, §§ 113-14, 26 July 2011; and
Mirosław Zieliński v. Poland, no. 3390/05, § 46, 20 September 2011).
. In
addition, the Court has also ruled on the issue of the effectiveness and
adequacy of civil remedies available under Polish law, before 17 March 2010, in
cases in which the applicants were prisoners diagnosed
with serious health disorders who, like the applicant in the instant case,
complained that the inadequate medical care combined with prison overcrowding
and poor living conditions had caused them pain and suffering during their
detention (see Grzywaczewski, cited above, § 64 and Musiałek, cited
above, §§ 111 and 112). It was held in those judgments, referring to the situation
before 17 March 2010, that only a remedy able to address the applicant’s
complaint in its entirety, and not merely its selected aspects, could
realistically redress his situation (see Grzywaczewski, cited above, §§ 63-69, and Musiałek, cited above, § 111-12; compare with Sławomir
Musiał v. Poland, no. 28300/06, § 80, 20 January 2009).
As in those and other previous cases, the Court
welcomes the developments in domestic case-law in the field of personal rights.
It notes nonetheless, that the examples of the domestic case-law referred to by
the Government do not demonstrate that the remedies available at the date of
lodging of the application with the Court could have offered him reasonable
prospects of securing more adequate conditions and medical care during his
detention (see among others, Kaprykowski v. Poland,
no. 23052/05, §§ 54 - 57, 3 February 2009 and Kulikowski
v. Poland (no. 2), no. 16831/07, § 52, 9 October 2012).
This finding is without
prejudice to the Court’s ruling in future similar cases which are lodged with
the Court at the time (1) when the alleged violation of the Convention no
longer continues and cannot, therefore, be eliminated with retrospective effect
and (2) when a civil action can be considered an “effective remedy” for the
purpose of Article 35 of the Convention, that is after 17 March 2010 (see Łatak,
cited above, § 85 and paragraph 77 above). In such situations, regard being had
to the principle of subsidiarity, an applicant who complains of treatment contrary
to Article 3 of the Convention because of inadequate medical or
special care combined with prison overcrowding or poor living conditions should,
in principle, avail himself of the civil remedy in question.
In view of the above considerations, taking into account the
date on which the applicant in the present case lodged his application with the
Court and the date of his release, the Court finds that it is of no importance that
the applicant abandoned his claim for compensation for the allegedly inadequate
living conditions and medical care provided to him in Płock Prison
(contrast Pustelnik v. Poland (dec.), no. 37775/09, 23 October 2012).
In any event, it must be noted that by the time the applicant lodged his Article 3 application
with the Court, he had already spent nearly four years in continuous detention
in Płock Prison (see paragraph 19 above). Prior to lodging his
application, he had filed a number of complaints with the prison
authorities about the quality of his medical care whilst in detention and
sought permission for temporary leave from the prison on account of his poor
health (see paragraphs 38-43 above). For many years the prison authorities
considered that the applicant had received sufficient medical treatment in Płock
Prison. In June 2007 they decided to keep him for six months at the Gdańsk
Remand Centre hospital in order to treat his new medical conditions (see
paragraph 37 above). The Court considers that by having taken those
actions the applicant has sufficiently drawn to the attention of the relevant
authorities the question of the compatibility of his conditions of detention
and medical care in prison with his state of health (see among others, Grzywaczewski,
cited above, § 65).
In sum, the Court does not consider that the
Government have demonstrated the effectiveness of any domestic remedy,
including the constitutional complaint and remedies under the Code of Execution
of Criminal Sentences, which the applicant should have used in conjunction with
his request for temporary leave from prison and his complaints to administration
and prison authorities in order to obtain the requisite relief.
Accordingly, the Government’s objection on the ground of non-exhaustion
of domestic remedies must be rejected.
.
The Court also points out that it is not open to it to set aside the
application of the six-month rule solely because a respondent Government
have not made a preliminary objection based on that rule. It reiterates that
the six-month rule, in reflecting the wish of the Contracting Parties to
prevent past decisions being called into question after an indefinite lapse of
time, serves the interests not only of the respondent Government but also of
legal certainty as a value in itself. It marks out the temporal limits of
supervision carried out by the organs of the Convention and signals both to
individuals and to State authorities the period beyond which such supervision
is no longer possible (see Marchowski v. Poland,
no. 10273/02, § 48, 8 July 2008, and Walker
v. the United Kingdom (dec.), no. 34979/97,
ECHR 2000-I).
. In
cases where there is a continuing situation, the six-month period runs from the
cessation of the situation. The concept of a “continuing situation” refers to a
state of affairs which results from continuous activities by or on the part of
the State that render the applicant a victim. Normally, the six-month period
runs from the final decision in the process of the exhaustion of domestic
remedies. Where it is clear from the outset, however, that no effective remedy
is available to the applicant, the period runs from the date of the acts or measures
complained of (see Ananyev and Others v. Russia, nos. 42525/07
and 60800/08, § 72-79, 10 January
2012; Kawiecki v. Poland (dec.), no. 15593/07,
§ 90, 23 October 2012; and Koval v. Ukraine (dec.),
no. 65550/01, 30 March 2004 with further references).
. The
present case concerns the applicant’s detention in Płock Prison,
which took place on three identifiably separate occasions, namely from 30 December
1998 to 14 July 1999, when the applicant was released, and subsequently,
from 8 August 2003 to 4 June 2007 and from 9 January to
6 February 2008. It follows that the applicant’s
detention in the prison cannot be construed as a “continuing situation” (see Kawiecki,
cited above, § 91). Given that the applicant lodged his Article 3
application with the Court on 31 May 2007, the complaint concerning the
first period of detention (30 December
1998 to 14 July 1999) must be declared inadmissible for
non-compliance with the six-month rule set out in Article 35 § 1 of the
Convention, and rejected in accordance with Article 35 § 4.
The Court also notes that the remainder of the complaint, in so
far as it relates to the applicant’s second and third periods of detention in
Płock Prison, is not manifestly ill-founded within the meaning of Article 35
§ 3 (a) of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant submitted that the conditions of
his detention in Płock Prisons from 8 August 2003 to 4 June 2007
and from 9 January to 6 February 2008 had fallen short of standards
compatible with Article 3 of the Convention and, in particular, those
required for persons in his state of health. He complained that he had been
detained in overcrowded cells and had been allowed very limited out-of-cell
time, that is to say, he had been permitted only an hour of outdoor exercise per
day and only one shower per week. The applicant also complained that he had
been afforded inadequate medical care during his detention. Lastly, the
applicant claimed that he had been forced to share one of his cells with a
schizophrenic inmate with a history of violence.
(b) The Government
The Government argued that during the applicant’s
detention, he had not suffered inhuman or degrading treatment which attained
the minimum level of severity within the meaning of Article 3 of the
Convention. The applicant’s health and life were not in danger as he received
regular specialist medical care and treatment.
2. The Court’s
assessment
The Court must answer the question whether, in
view of the applicant’s health, his nearly four-year long period of detention
in the conditions of Płock Prison (from 8 August 2003 to 4 June
2007 and from 9 January to 6 February 2008), attained the minimum
level of severity to fall within the ambit of Article 3 of the
Convention.
A summary of the general principles concerning
the examination of medical care and conditions of detention under Article 3
may be found in the Court’s recent judgments in Sławomir
Musiał and Orchowski
(both cited above, §§ 85-88 and §§ 119-229 respectively).
The applicant submitted, without providing any further
details, that during his detention in Płock Prison he had been held in
overcrowded cells with only an hour of outdoor exercise per day and one shower
per week (see paragraphs 20 and 27 above).
The Government acknowledged that from 2003 until
January 2008, the overall capacity of Płock Prison had been exceeded on
average by 32%. They did not, however, submit any statistics or information
relating to the period from 2003 to 2007, from which it could have been
established whether or not the applicant himself had been affected by the
prison’s general overcrowding and, if so, to what extent (see paragraphs 24
above). As regards the applicant’s third period of detention from January to
February 2008, it was confirmed that he had been detained in overcrowded cells
with approximately 2 sq. m of cell space per person (see paragraph 25 above).
The Government also submitted that the applicant’s cells had been clean,
well-lit and ventilated and that a range of recreational activities had been
available to him while he was in the prison. It was not disputed that the
applicant was only permitted an hour of outdoor exercise per day and one shower
per week.
. The
Court reiterates that allegations of ill-treatment must be supported by
appropriate evidence. In assessing evidence, the Court has adopted the standard
of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow
the approach of the national legal systems that use that standard. Its role is
not to rule on criminal guilt or civil liability but on Contracting States’
responsibility under the Convention. The specificity of its task under Article
19 of the Convention - to ensure the observance by the Contracting States of
their engagement to secure the fundamental rights enshrined in the Convention -
conditions its approach to the issues of evidence and proof. In proceedings
before the Court, there are no procedural barriers to the admissibility of
evidence or pre-determined formulae for its assessment. The Court adopts
conclusions that are, in its view, supported by the free evaluation of all
evidence, including such inferences as may flow from the facts and the parties’
submissions. According to its established case-law, proof may follow from the
coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact. Moreover, the level of persuasion
necessary for reaching a particular conclusion and, in this connection, the
distribution of the burden of proof are intrinsically linked to the specificity
of the facts, the nature of the allegation made and the Convention right at
stake (see Ananyev, cited above, § 121, with further references).
. The
Court is mindful of the objective difficulties experienced by the applicants in
collecting evidence to substantiate their claims about the conditions of their
detention. Owing to the restrictions imposed by the prison regime, detainees
cannot realistically be expected to be able to furnish photographs of their
cell or give precise measurements of its dimensions, temperature or luminosity.
Nevertheless, an applicant must provide a reasonably detailed description of
the conditions of his or her detention mentioning the specific elements, such
as for instance the dates of his or her transfer between facilities, which
would enable the Court to determine that the complaint is not manifestly
ill-founded or inadmissible on any other grounds.
. The
Court has held on many occasions that cases concerning allegations of
inadequate conditions of detention do not lend themselves to a rigorous
application of the principle affirmanti
incumbit probatio (he who alleges something
must prove that allegation), because in such instances the respondent
Government alone have access to information capable of corroborating or
refuting those allegations. It follows that, after the Court has given notice
of the applicant’s complaint to the Government, the burden is on the latter to
collect and produce relevant documents. A failure on their part to submit
convincing evidence on material conditions of detention may give rise to the
drawing of inferences as to the well-foundedness of the applicant’s
allegations (ibid. § 123, with further references).
As to the present case, the official statistics
of the Polish Prison Service reveal that at the time of the applicant’s
detention, Płock Prison was struggling with an overcrowding problem and
that the prison’s maximum capacity was exceeded by between 19% and 36% (see
paragraph 22 above). This is further confirmed by the fact that on
average, every three months between June 2003 and January 2008 the governor of
Płock Prison sent official memoranda to the penitentiary judge, informing
him about the overcrowding of all cells in the prison (see paragraph 21
above).
The Court has already found in the Orchowski and Norbert Sikorski judgments
that, for many years, namely from 2000 until at least mid-2008, the
overcrowding in Polish prisons and remand centres revealed a structural problem
consisting of “a practice that [was] incompatible with the Convention” (ibid.,
§ 151 and §§ 155-156 respectively).
97. The Court therefore
finds it established that during the entire period of the applicant’s
detention, Płock Prison faced a serious overcrowding problem. The Court
also considers it justified to draw a negative inference from the Government’s
failure to provide the necessary information about the occupancy of the
applicant’s cells in the period from 2003 to 2007 and to conclude that the
applicant himself was affected by the general and systemic problem of
overcrowding. Even though the actual living space available to the applicant in
his cells during that period is unknown, the Court accepts that it was less
than 3 sq. m per
person. It is undisputed that in the last period of detention in Płock
Prison (in January and February 2008) the applicant was placed in cells with an
individual area of 2 sq.
m and 2.2 sq. m (see paragraph 25 above).
98. In Orchowski the Court had regard to the judgment of 26 May 2008 in which the
Constitutional Court found that a person could not be afforded humane treatment
in a prison cell measuring less than 3 sq. m per person and that overcrowding
of such a serious nature as had existed in Poland could in itself be qualified
as inhuman and degrading treatment (ibid., §§ 85 and 123). The Court,
mindful of the principle of subsidiarity, held that the above-mentioned ruling
of the Constitutional Court could constitute a basic criterion in the Court’s
assessment of whether the overcrowding in Polish detention facilities breached
the requirements of Article 3 of the Convention. In consequence, the Court
further considered that all situations in which a detainee was deprived of the
minimum of 3 sq. m of living space inside his or her cell would be regarded as
creating a strong indication that Article 3 of the Convention had been violated
(ibid.).
As to the second limb of the applicant’s Article 3
complaint, concerning the quality of medical care provided in Płock
Prison, the Court notes that during his detention the applicant suffered from ulcers,
varicose veins, atherosclerosis, osteoarthritis, chronic
bronchitis and a spinal hernia. Because of these multiple conditions he had
been in poor health overall. The applicant was certified as disabled in 2007
and in 2010 he was reclassified as significantly disabled (see paragraphs 32
and 34 above).
The applicant did not submit any documents
indicating that, during his detention, he had required any specialist medical care
or particular treatment. The Court notes that he made a vague statement
that he had required and been refused specialist orthopaedic treatment. However,
in support of his claim, he only submitted two documents, the first showing that
in August 2007 the Director of the Łódź Regional Prison Service
considered that the Płock Prison medical centre had not undertaken all the
necessary measures in order to supply the applicant with prosthetics (see
paragraph 41 above) and the second being a copy of the domestic court’s
decision of 14 November 2007 stating that in accordance with the medical
certificates of 12 July and 8 November 2007 no spinal surgery was
required by the applicant (see paragraph 43 above). It must be observed at the
outset that the information and documents submitted by the applicant in
relation to his orthopaedic problems and the alleged need to obtain prosthetics
and undergo surgery, although duly noted, are insufficient to permit the Court
to elaborate any further on this aspect of the complaint.
In contrast, the material in the Court’s
possession shows that the applicant was frequently examined by general
practitioners and various specialists (see paragraph 32 above). The Government specified
that during his four-year long period of detention in Płock Prison, from
2003 to 2007 and in 2008, the applicant had been examined by specialists in
internal medicine (147 times) and physiotherapy (twenty-two times), a
pulmonologist (forty times), a dentist (eleven times), a radiologist (nine
times), a psychiatrist (ten times), a neurologist (fourteen times), a
dermatologist (three times), a laryngologist (twice), an ophthalmologist (three
times) and by a vascular surgeon once.
In addition, in 2007 the authorities verified and
confirmed that the applicant’s developing medical conditions could be effectively
treated within the prison system and that the prison medical care which had so
far been provided to him had been adequate. Following the applicant’s
complaints to the prison authorities, it was established that he had received
sufficient medical care, having been examined by medical specialists and
prescribed the necessary medication (see paragraph 40 above). And in the
course of the proceedings concerning the applicant’s request for temporary
leave from prison, the domestic courts considered that adequate medical care
and treatment could be provided to him within the prison system and that there were
no medical reasons for the applicant to undergo spinal surgery. It was
concluded that the applicant’s multiple and serious health conditions did not
make it impossible for him to continue serving his prison sentence (see paragraph 43
above).
It must be noted that, in his complaint to the
Court, the applicant did not appear to contest the extent and quality of the medical
care the authorities had provided to him in Płock Prison. Instead, he complained
that he had not been examined by an orthopaedic specialist and that on several
occasions he had not been administered painkillers (see paragraphs 33 and 100 above).
The Court is not in a position to establish
whether or not the development of the applicant’s condition could have been prevented
or slowed down had he been released into the community and free to seek medical
care from professionals of his choosing. It is very apparent in this case,
however, that the authorities followed the doctors’ recommendations as to the appropriate
medical treatment for the applicant and that his condition was regularly
monitored by various specialists. In the absence of any medical certificates in
support of the applicant’s allegation that the medical care provided to him in
prison had been inadequate or insufficient, the Court will rely on the conclusions
made by the medical expert appointed by the court in the course of the
applicant’s civil proceedings for compensation. It follows that the Court fully
accepts that the results of the applicant’s medical treatment
during his detention in Płock Prison were considered good and that
his medical conditions, which dated back to before his initial
period of detention, did not have any connection with and did not directly
result from his imprisonment and the conditions of his detention in the prison
in question (see paragraphs 51 and 52 above).
Lastly, in the light of the contradictory submissions
by the parties and the lack of any evidence on this point, the Court cannot
establish whether or not the applicant shared his cell with an inmate who had a
history of mental illness and violence (see paragraphs 29 and 30 above). In any
event, however, having regard to all the foregoing findings, the Court is not
required to examine this element of the present application.
. Having
regard to the circumstances of the case and their cumulative effect on the
applicant, the Court considers that the distress and hardship endured by him
exceeded the unavoidable level of suffering inherent in detention and went
beyond the threshold of severity under Article 3 (compare with Orchowski,
cited above, § 134 and 135).
There has accordingly been a violation of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF
ARTICLE 8 OF THE CONVENTION
. With
regard to the issue of overcrowding vis-à-vis the applicant’s right to respect for his physical and mental
integrity or his right to privacy and the protection of his private space, the
Court considered it appropriate to raise of its own motion the issue of Poland’s compliance with the requirements of Article 8 of
the Convention, which in its relevant part reads as follows:
“1. Everyone has the right to
respect for his private ... life ...
2. There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.”
. The
Court notes that this complaint is linked to the one examined above and must
likewise be declared admissible.
. Having
found a violation of Article 3, the Court considers that no separate issue
arises under Article 8 of the Convention with regard to the conditions of the
applicant’s detention. The Court would observe, nevertheless, that the Constitutional Court had found that the law setting the standards for conditions of
detention in Poland was unconstitutional.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also made a number of complaints
under Article 6 § 1 of the Convention, which, in its relevant
part reads as follows:
“In the determination of his civil rights and obligations or of
any criminal charge against him. everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...”
The applicant complained of a breach of his
right of access to a court, in that the domestic courts had not granted him a
full exemption from the court fees in his civil claim against the State
Treasury, which was at that time pending before the first-instance court (see
paragraphs 44-55 above).
The Court notes that since the time when it
received the applicant’s complaint, a full exemption from the court fees
appears to have been granted. The case was examined on the merits and the
first-instance judgment was delivered on 5 August 2009. In the end, the
applicant failed to appeal against it within the statutory time-limit. It
cannot, therefore, be said that the applicant’s access to a court was by any
means hindered.
In so far as the applicant made a similar
complaint in relation to his divorce proceedings, the Court observes, leaving aside
the question whether or not the fact that the applicant had not been exempted
from the basic court fee constituted a breach of Article 6 § 1 of the
Convention, that this complaint lacks any substance. The applicant was not
allowed to pursue his appeal against the first-instance judgment because he had
not complied with a number of procedural requirements, and not merely because
he had failed to pay the basic court fee (see paragraph 58 above).
A similar complaint in relation to the social
security proceedings the applicant brought for an assessment of his disability classification
is also unsubstantiated since he failed to submit the necessary documents that
would have allowed the Court to establish the exact course of the proceedings.
Lastly, the applicant complained in relation to
the criminal proceedings against him that the domestic courts had erred in the
assessment of its evidence and had refused to appoint a second legal-aid lawyer
to prepare a cassation appeal in the case (see paragraphs 6-17 above).
The Court notes, however, that the material
submitted does not disclose any arbitrariness or procedural errors on the part
of the relevant domestic courts. Throughout his criminal trial, the applicant
was represented by a legal-aid lawyer and had a lawyer appointed for the
purpose of lodging a cassation appeal. The domestic court merely refused to
appoint another lawyer after the first one had found no grounds for such an
appeal. The Court has already held in a similar context
that Article 6 of the Convention does not confer on the State an obligation to
ensure assistance by successive legal-aid lawyers for the purposes of
pursuing legal remedies which have already been found not to offer reasonable
prospects of success (see Antonicelli v. Poland, no. 2815/05, § 43,
19 May 2009). Since in the present case there is no
indication of arbitrariness or negligence on the first lawyer’s part in
discharging his duties, the State can be said to have complied with its
obligations to provide a framework for the provision of legal aid in connection
with the cassation proceedings.
In the light of all the material in its possession, and in
so far as all of the above mentioned matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
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 sought compensation for pecuniary
and non-pecuniary damage as a result of his suffering. He did not,
however, indicate any amounts in this respect, expressly asking the Court to
determine the amount on an equitable basis.
The Government submitted that since the
applicant had not itemised his claim for just satisfaction, they could not make
any comments about it.
. As
to the pecuniary damage allegedly sustained, although not specified by the
applicant, the Court reiterates that, in any event, there must be a clear
causal connection between the damage claimed by the applicant and the violation
of the Convention (see Barberà, Messegué and Jabardo v. Spain
(Article 50), 13 June 1994, §§ 16-20,
Series A no. 285-C; Berktay v. Turkey,
no. 22493/93, § 215, 1 March 2001; and Khudobin
v. Russia, no. 59696/00,
§ 142, ECHR 2006-XII).
. The
Court, having regard to its findings concerning the applicant’s complaint under
Article 3 of the Convention, considers that no causal link has been
established between the damage alleged and the violation it has found (see Sławomir
Musiał, cited above, §§ 109-110 and Kalashnikov v. Russia,
no. 47095/99, § 139, ECHR 2002-VI). It
therefore dismisses the applicant’s claim for pecuniary damage.
. On
the other hand, the Court considers that the applicant suffered damage of a
non-pecuniary nature as a result of his detention in conditions contrary to
Article 3 of the Convention (see paragraphs 106 and 107 above), which is not
sufficiently redressed by the finding of a violation of his rights under the
Convention. Making an assessment on an equitable basis, as required by
Article 41 of the Convention, the Court awards the applicant EUR 5,000
under this head.
B. Costs and expenses
The applicant also sought the reimbursement of
costs and expenses. He did not specify the amount of the claim and whether the
costs in question had been incurred before the domestic courts or before the
Court. No invoices were enclosed in respect of this claim.
The Government noted that
the applicant had neither specified nor substantiated his claim for costs by
submitting the necessary invoices.
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
not only to provide the Court with the necessary documents but also to indicate
a precise amount of the costs incurred, the Court rejects the claim for costs
and expenses under all heads.
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 complaints under Articles 3
and 8 of the Convention concerning the quality of medical treatment and the applicant’s
living conditions during his detention in Płock Prison, from 8 August
2003 to 4 June 2007 and from 9 January to 6 February 2008, admissible
and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention only in respect of the applicant’s living
conditions in prison.
3. Holds that there is no need to examine separately
the complaint under Article 8 of the Convention;
4. 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 5,000 (five thousand euros), plus any tax that may be
chargeable, 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:
(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 2 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Ineta
Ziemele
Registrar President
