21 July 2010

FOURTH SECTION
Application no. 60606/09
by Zbigniew TROJAK
against Poland
lodged on 4 November 2009
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Zbigniew Trojak, is a Polish national who was born in 1956 and lives in Cracow.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1992 the applicant was diagnosed with glaucoma (jaskra), which led progressively to the 85% loss of his vision (100% in his left eye). The applicant's disease has been accompanied by raised intraocular pressure. The applicant has received pharmacological treatment. He was hospitalised on several occasions and in 2001 he underwent three eye operations.
In 2003 the applicant took an orientation and mobility course for the blind (kurs orientacji przestrzennej).
On 13 April 2004 the applicant was certified as a permanently disabled person with a moderate disability (umiarkowany stopień niepełnosprawności).
1.  Conditions of the applicant's detention
From 18 March 2005 until 31 August 2008 the applicant was imprisoned in Pińczów Prison after being convicted of a criminal offence.
From 18 March until 13 December 2005 the applicant was assigned to cell no. 117 in wing I, which measured 15.4 sq m.
From 13 until 14 December 2005 he was detained in cell no. 620 in wing VI, which measured 12 sq m.
From 14 until 19 December 2005 he was detained again in cell no. 117 in wing I.
From 19 December 2005 until 20 January 2006 the applicant was held again in cell no. 620 in wing VI.
From 20 January until 30 May 2006 he was detained in cell 614 in wing VI, which measured 15 sq m.
From 30 May until 28 July 2006 he was detained in cell no. 336 in wing III, which measured 28.2 sq m.
From 28 July 2006 until 28 March 2008 the applicant was detained in cell no. 417 in wing IV, which measured 16 sq m. He shared this cell with seven other prisoners (2 sq m per person). The cell in question was furnished with six beds which were attached permanently to the floor, two beds which could be moved around the cell, three tables, five stools and cupboards. A toilet annexe was situated in the corner with a washbasin and a toilet. The cell was so crowded that some of the prisoners had to have their meals in their beds.
From 28 March until 28 July 2008 the applicant was detained in an unspecified cell, which measured 24 sq m and was occupied by eight people including himself (3 sq m per person).
Lastly, from 28 July until his release on 31 August 2008 the applicant was detained in cell no. 417 in wing IV.
The two latter cells were in a good technical condition because they had been renovated shortly before the applicant's detention there.
The applicant submitted that the sanitary and living conditions in Pińczów Prison had been dreadful. The cells were so crammed that the applicant had had difficulty moving around. He had constantly stumbled over his fellow inmates or furniture. He had once injured his head because he had not seen wires sticking out of a bunk bed.
As established by the domestic court in the course of the civil proceedings for compensation (see below), the official rate of overcrowding (meaning, the percentage by which a prison population exceeded the maximum capacity of the establishment) in Pińczów Prison was 25% in November 2006 and 23% in January 2007.
2.  Medical care provided to the applicant in prison
As it was established by the domestic courts, the applicant had made use of the prison's medical services and he had received specialised ophthalmological care.
On 17 May and 16 August 2005 the applicant had been taken under escort to an ophthalmology clinic and an ophthalmology ward, respectively, of the Bytom Remand Centre's Hospital. In addition, he had been examined by the prison's ophthalmologist four times in 2006, six times in 2007 and once in 2008.
The doctor who had examined the applicant on 13 July 2007 suggested that he should undergo surgery to his right eye because he had developed a cataract (zaćma). In August 2007 the applicant was put on a waiting list for the surgery at the Katowice Ophthalmological Clinic. The applicant was informed, however, that the clinic would not have any vacant bed for another two years.
3.  Complaints to penitentiary authorities
On an unspecified date in October 2005 the applicant applied to the Kielce Regional Penitentiary Court (Sąd Okręgowy Wydział Penitencjarny) for a transfer to Bydgoszcz-Fordon Prison, which was adapted for prisoners with vision impairments.
The applicant was informed in reply that the Pińczów Prison Governor had discretionary powers to decide whether to transfer the applicant.
It appears that throughout his detention the applicant made more similar requests. They were all to no avail.
4.  Civil proceedings against the State Treasury
On 29 January 2007 the applicant brought a civil action for compensation against the State Treasury and Pińczów Prison. He claimed that, as a severely visually impaired person, he should have been committed to Fordon-Bydgoszcz Prison which was adapted for prisoners with visual impairments. The applicant further argued that, because of the dreadful living and sanitary conditions in Pińczów Prison and the lack of adequate medical care, he had experienced great mental and physical suffering.
On 1 October 2008 the Kielce Regional Court (Sąd Okręgowy) dismissed the applicant's action on the merits.
The court, having obtained reports from independent experts in ophthalmology and testimonies from other witnesses, established that the applicant did not qualify for detention in Fordon-Bydgoszcz Prison because his medical condition did not fall into any medical category required by the administration of the prison in question; in particular he was not completely blind.
It was also established that blind prisoners were committed to Fordon‑Bydgoszcz Prison only temporarily in order to complete an orientation and mobility course for the blind. Afterwards, they were always transferred to detention facilities closer to the place of their permanent residence. The domestic court speculated that, because the applicant had completed such a course while at liberty in 2003, he would not in any event have been admitted to the prison in question.
Concerning the overcrowding, the domestic court acknowledged the fact that from 28 July 2006 until 28 March 2008 the applicant had been detained in a cell in which the statutory minimum space of 3 sq m per person had been reduced to 2 sq m. The domestic court took into consideration the fact that the provision, which had legitimised the reduction of the above‑mentioned minimum statutory requirement (Article 248 of the Code of Execution of Criminal Sentences) had been declared unconstitutional on 26 May 2008. The Kielce Regional Court held, however, that, because the Constitutional Court in its judgment decided that the provision in question was to lose its binding force only in December 2009, the actions of the administration of Pińczów Prison, which had given rise to the applicant's action in tort, were at the relevant time in compliance with the law. In consequence, the applicant's civil action for the alleged breach of his civil rights was dismissed.
On 13 March 2009 the Cracow Court of Appeal (Sąd Apelacyjny) upheld the first-instance judgment, agreeing fully with the findings of fact and law of the first-instance court. That judgment was served on the applicant on 16 November 2009.
A cassation appeal was not available in the applicant's case.
B.  Relevant domestic law and practice
The legal provisions concerning medical care in detention facilities are set out in the Kaprykowski judgment (see Kaprykowski v. Poland, no. 23052/05 §§ 36-39 3 February 2009).
The relevant domestic law and practice concerning conditions of detention and domestic remedies are presented in the Orchowski judgment (see Orchowski v. Poland, no. 17885/04, §§ 74-85, 22 October 2009, ECHR 2009 - .... (extracts)).
COMPLAINT
The applicant complains under Article 3 of the Convention that he was detained in overcrowded cells in conditions which failed in particular to meet the standard required for persons in his state of health. He also alleged that the medical care provided to him in prison was inadequate. He claims that he should have been detained in Bydgoszcz-Fordon Prison, which was adapted for special needs prisoners.
QUESTION TO THE PARTIES
Did the applicant's detention amount to inhuman or degrading treatment in breach of Article 3 of the Convention, taking into account the following elements:

-  the nature of the applicant's disability and his special needs;
-  the quality of care provided to the applicant in detention;
-  the overcrowding and the overall conditions of the applicant's detention?