FOURTH SECTION
Application no. 45705/07
by Daniel GÓJSKI
against Poland
lodged on 20 September 2007

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Daniel Gójski, is a Polish national who was born in 1980 and lives in Siedlce.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  Background to the case
On 13 May 2000 the applicant broke his spine in a car accident. He was subsequently diagnosed with paraplegia resulting in serious malfunctions of the urethral and anal sphincters.
Subsequently, in various sets of criminal proceedings, the applicant was sentenced to a total of eight years’ imprisonment.
On 7 January 2001 he was arrested and detained in Siedlce Prison.
On 11 January 2001 he was transferred to the surgical and orthopaedic ward of the Warszawa-Mokotów Remand Centre’s hospital, where he underwent medical examinations and treatment. He remained there until 28 February 2001.
2.  The applicant’s detention and periods of leave in the enforcement of sentence until September 2005
On 28 February 2001 the applicant was granted a 6-month period of leave in the enforcement of his sentence (przerwa). He was taken home by an ambulance.
The leave from prison was extended for another six months in August 2001. It appears that it was subsequently extended again on a later, unspecified date.
In August 2002 the Siedlce Regional Court (Sąd Okręgowy) refused to grant the applicant another extension of the leave, finding that he was fit for detention. The applicant’s appeal was dismissed by the Warsaw Court of Appeal. Following the expiry of the leave, the applicant chose not to return to prison.
In March 2003 the applicant was granted a 3-month period of leave in the enforcement of his sentence. Following the expiry of this new leave, the applicant again did not to return to prison.
On 1 September 2003 the applicant was arrested, taken to Siedlce Prison by prison transport bus and placed in a single-occupancy cell (so-called “infirmary cell”). During the transfer to the prison, the applicant was seated in his immobilised wheelchair, leaning against the back of the bus.
Upon his arrival in Siedlce Prison, the applicant was not offered any fresh diapers and had to use the ones which he had managed to take with him upon his arrest. The prison did not provide him with fresh catheters.
On 3 September 2003 the applicant was transferred by prison transport bus to Warszawa-Mokotów Remand Centre. During the transfer he was seated in the immobilised wheelchair, but according to his submissions he had to constantly hold the handrails for stability throughout the transfer. The catheter which the applicant had been using since his arrest broke and began to leak during the journey.
Upon his arrival in the remand centre’s hospital ward, the applicant was placed alone in a cell of about 7.5 m2 with two double bunk beds. The cell had dirty walls and ceiling and its toilet was not separated from the rest of the cell.
On 5 September 2003 he was placed in another, cleaner cell where the toilet was separated from the rest of the cell by a narrow partition. The applicant had to rely on the help of his co-detainees who heaved him onto the toilet so that he could change his diaper and access the washbasin for daily hygiene. When taking a shower in the remand centre’s bathhouse, the applicant was seated on a stool located under the showerhead. He submits that, on one occasion, he fell off the stool and had to continue taking the shower while lying on the floor, unassisted by anyone.
On an unspecified date in September 2003 the applicant noticed that he had developed a bedsore. On 11 September 2003 he was taken to the remand centre’s hospital ward in order to treat the bedsore. The bedsore was sewn together but, according to the applicant, the stitches did not last a long time and the wound soon opened up again.
On several occasions he was taken by the prison bus to attend hearings in courts in Siedlce and Warszawa. During each of those transfers he was seated in his wheelchair.
In December 2003 the applicant developed foot dermatomycosis. He was given an anti-mycosis cream but he claims that he preferred to use the cream given to him by his co-detainee, which healed his sore foot.
On 7 January 2004 he was transferred by prison bus back to Siedlce Prison, where he was placed in a large cell designed to hold twelve detainees. The cell was a smoking cell and the applicant was one of the only two non-smoking detainees. He was given the lowest bunk bed. The applicant was assisted by his co-detainees in caring for his daily hygiene, but was often forced to remain in soaked diapers, in particular during the night.
On an unspecified date in April 2004 the applicant was transferred by prison bus to the hospital ward of Warszawa-Mokotów Remand Centre, where he underwent a short medical examination in order to assess the state of his health with a view to being granted leave in the enforcement of his sentence. On the same day he was taken back to Siedlce Prison, again by prison bus.
On 26 May 2004 the applicant was granted a 3-month period of leave in the enforcement of his sentence. He was taken home from prison by his mother.
A medical report issued on 27 May 2004 by the regional hospital in Siedlce confirmed the presence of a bedsore, 2 by 3 cm large, on the applicant’s buttock.
The applicant’s leave from prison was subsequently extended in August 2004, on an unspecified later date and finally in February 2005 for another three months’ period.
3.  The arrest in September 2005 and further detention
On 6 June 2005 the Siedlce Regional Court refused to grant the applicant a further extension of the leave. The applicant unsuccessfully appealed against that decision.
On 2 September 2005 the applicant was arrested and taken by police car to Siedlce Prison. He was placed in the prison infirmary. He was not given any fresh diapers or catheters and was thus forced to use the ones which he had taken with him upon his arrest.
On 8 September 2005 he was seen by a doctor for the first time since his arrest.
During his detention, the applicant was allowed to take a bath on a daily basis. It appears that he was eventually given fresh diapers but not catheters. Towards the end of the month he was transferred to a cell of about 8 m2 with inadequate furnishings. During his daily baths he was seated on an ordinary chair placed directly under the showerhead.
On 3 October 2005 the applicant requested the Siedlce Regional Court to grant him another period of leave in the enforcement of his sentence.
On 20 November 2005 the applicant fell painfully after an attempt to heave himself up from the wheelchair onto his prison bunk. An ambulance was called and the applicant was administered anaesthetics and sedatives. He claims that the back pains from the fall continued over a period of two weeks.
On 19 December 2005 the Siedlce Regional Court ordered the applicant to undergo a medical examination in order to assess the state of his health with a view to granting him leave from prison. The examination was carried out on 21 December 2005.
On an unspecified date in January 2006, the applicant developed a high fever and experienced problems urinating. On 15 January 2006 he was taken by ambulance to the regional hospital in Siedlce, where he was diagnosed with a massive infection of the urinary ducts and the presence of the bacteria enterococcus faecalis. He was offered treatment in Mokotów Remand Centre’s hospital which he refused, observing that the remand centre’s hospital did not have a urological ward. The hospital staff then gave the applicant anti-fever medication and a new catheter. They also carried out blood and urine tests, following which the applicant was taken back to Siedlce Prison by ambulance. On 19 January 2006 he was administered antibiotic treatment and had another urine test. He continued to be treated on an outpatient basis until 26 January 2006.
On 8 February 2006 the Siedlce Regional Court refused to grant the applicant leave in the enforcement of his sentence (file no. III Kow 399/05). The court found, on the basis of medical opinions prepared by an expert traumatologist and a neurologist, that the applicant’s health had been stable and that he could receive adequate medical care in detention, provided that two to three times a year he was given physical rehabilitation treatment and appropriate medication, regularly treated for his bedsore and held in a single-occupancy cell. In passing, the court noted that the applicant had refused a transfer to undergo a medical examination in the hospital ward of Warszawa-Mokotów Remand Centre and considered that the applicant’s refusal had been unjustified.
On 23 February 2006 the Siedlce District Court (Sąd Rejonowy) refused to adjourn the execution of the applicant’s sentence (odroczenie wykonania kary) (file nos. II K 11/00, II K 1070/02, II 1Ko 488/05). The court observed that two medical opinions prepared by an expert neurologist and an expert orthopaedist had confirmed that the applicant’s health problems could be properly treated in detention. It further considered that two other medical expert opinions, which had reached the opposite conclusion, were insufficiently reasoned. The court concluded that Siedlce Prison had so far been able to provide the applicant with adequate conditions of detention. Consequently, the court refused to grant the applicant’s request. The applicant’s appeal was later dismissed by the Siedlce Regional Court on the basis of similar reasoning.
On 10 May 2006 the Lublin Court of Appeal dismissed the applicant’s appeal against the Siedlce Regional Court’s decision of 8 February 2006, adding to the reasoning invoked by the lower court the argument that the applicant belonged to the prison subculture and that he had committed another crime during his previous period of leave from prison (file no. II AKzw 259/06).
According to the applicant’s own statements, on the night of 10 May 2006 he attempted to commit suicide by cutting the veins of his left hand but was rescued and had his veins stitched during the morning roll call. He did not provide any evidence in support of this statement.
On 15 May 2006 an ultrasound imaging of the applicant’s stomach revealed a blockage of the urinary ducts.
On 22 May 2006 the applicant filed another request with the Siedlce Regional Court for leave in the enforcement of his sentence. There is no information in the file as to the further course of his request.
On 2 June 2006 he was examined by an expert urologist who prescribed the surgical removal of kidney stones and urgent further specialist treatment. A medical opinion prepared on 16 August 2006 as a result of the examination stated that it was possible for the applicant to remain in detention provided that he could also be treated in the urological ward of the regional hospital in Siedlce.
On 21 June 2006 the Governor (Dyrektor) of Siedlce Prison requested the Łódź Regional Court to allow the applicant’s request for a leave in the enforcement of his sentence. The Governor submitted that, in his opinion, the state of the applicant’s health required advanced physical rehabilitation and observed that the necessary treatment would not be possible before September 2006. According to a medical opinion of 20 June 2006, joined to the Governor’s request, the applicant continued to suffer from spastic paraplegia and muscle atrophy, had a bedsore with a diameter of 3 cm2 and his general state of health had been deteriorating. The opinion’s conclusion was that the applicant could not be properly treated in detention.
On 2 August 2006, a medical certificate prepared by an expert orthopaedist confirmed that the applicant should undergo further physical rehabilitation treatment.
On 28 August 2006 the applicant was transferred by prison bus to Łódź Prison where he was afforded basic physical rehabilitation treatment. He was initially trained to use the Parapodium orthotic device but the training was discontinued after the applicant developed severe back pain, which had to be treated with an anaesthetic. In Łódź Prison he was also afforded treatment for his bedsore.
On 23 October 2006 the Łódź Regional Court refused to grant the Siedlce Prison Governor’s request to grant the applicant leave from prison (file no. VI Kow 1499/06/Pr). The court observed that on 28 August 2006 the applicant had been transferred to Łódź Prison and held that he had been receiving adequate physical rehabilitation treatment there. The court referred to a medical certificate, issued on 5 October 2006 by the staff of Łódź Prison’s hospital ward, which had confirmed that the applicant could be afforded adequate treatment in detention. It also noted that the applicant had abused the court’s trust by his failure to return on time from the previously granted period of leave from prison.
On 31 October 2006 the applicant was transferred back to Siedlce Prison by prison ambulance.
On 28 November 2006 the applicant underwent a short medical examination in the hospital in Konstancin, after which he was taken back to Siedlce Prison by prison bus.
On 29 November 2006 the Siedlce District Disability Evaluation Board (Powiatowy Zespół do Spraw Orzekania o Niepełnosprawności) declared the level of the applicant’s disability as “significant” (znaczny) and confirmed that he required constant care of another person due to a largely limited capacity to deal with his handicap.
On 20 December 2006 the Łódź Court of Appeal dismissed the applicant’s appeal against the Łódź Regional Court’s decision of 23 October 2006, finding the refusal to be justified (file no. II AKzw 872/06).
An X-ray performed on the applicant’s kidneys on 1 March 2007 revealed the presence of large (2 to 3 cm) kidney stones.
On 21 March 2007 the applicant was transferred by prison bus to Mokotów Remand Centre’s surgical ward, where he was treated for a bedsore. He was offered surgical treatment but refused it. The applicant was subsequently given further outpatient treatment for his bedsore. Several blood and urine tests were also performed.
On 24 April 2007 the applicant was transferred to the urology ward of the Łódź Prison’s hospital, where he was given laser treatment for his bedsore and afforded further medical care. On 30 April 2007 he had his kidney stones surgically removed.
On 28 May 2007 the applicant was transferred back to Siedlce Prison by ambulance. He was placed in a cell with smokers. He submits that the toilet section in the cell was too narrow for his wheelchair and that he was not able to reach the washbasin without soliciting help from his co-detainees.
On 19 June 2007 the applicant was moved to a non-smoking cell. In order to access the toilet in that cell, he had to heave himself from his wheelchair onto a stool and from that stool onto the toilet seat.
On 27 June 2007 another request for leave from prison, filed by the applicant, was dismissed by the Siedlce Regional Court (file no. III Kow 218/07/pr). The court observed that, according to the most recent medical certificates at hand, the applicant could be properly treated in detention. It moreover observed that the applicant had abused his previous leave from prison by failing to return to prison after the expiry of the period of leave. Lastly, the court pointed out that after his 2000 accident the applicant, despite having already been confined to a wheelchair, still managed to commit a theft.
The applicant’s appeal against the above-mentioned decision was rejected for being lodged out of time by the President (Prezes) of the Siedlce Regional Court. On 30 October 2007 the Lublin Court of Appeal dismissed the applicant’s interlocutory appeal against the rejection (file no. II AKzw 759/07).
On 15 October 2007 an expert neurologist ordered that magnetic resonance imaging be performed on the applicant’s spine.
On 21 October 2007 the applicant developed a high fever. An ambulance was called and the applicant was administered anti-fever medication and a sedative.
On 19 November 2007 the applicant experienced sudden pain in the spine. He was examined by the prison doctor and administered painkillers.
On 2 January 2008 the applicant’s spine was examined by magnetic resonance imaging in the regional hospital in Siedlce.
On 10 January 2008 the applicant was brought by prison bus to the hospital in Konstancin, where a neuro-orthopedic examination was performed and surgery of the spine was prescribed. The applicant was subsequently taken back to Siedlce Prison by prison transport bus.
On 21 August 2008 the applicant underwent a medical examination in the regional hospital in Siedlce and was prescribed regular physical rehabilitation treatment. He was transferred to the hospital and back by prison transport bus. It appears that no physical rehabilitation treatment was ever offered to him.
On 6 February 2008 the applicant was moved to ward IX of Siedlce Prison. He was later moved to ward IV and placed in a dirty cell with smokers, which according to the applicant, was not adapted to needs of a handicapped person.
4.  Fourth period of leave in the enforcement of sentence and the suspension of the applicant’s sentence
On 18 June 2008 the applicant was granted leave in the enforcement of his sentence. The court considered that he required urgent surgery and a subsequent rehabilitation treatment. Following that date, the applicant’s leave was extended three more times: on 1 December 2008, 18 June 2009 and on 7 December 2009. In extending the applicant’s leave, the court considered that the applicant had to undergo further operations and that further urological treatment was also required. It also held that the applicant’s behaviour outside the prison had been correct. The applicant’s leave from prison continued until 18 June 2010.
On 19 June 2010 the Siedlce District Court, on the basis of an expert surgeons’ opinion, stayed the execution of the applicant’s sentence until the applicant’s health problems requiring surgical interventions were finally resolved (case no. II K 538/05, II 2 Ko 1250/10)
The applicant currently remains at liberty.
B.  The applicant’s actions concerning the conditions of his detention
1.  Complaints to the Ombudsman and the penitentiary authorities
On 12 May 2006 the applicant complained to the Ombudsman (Rzecznik Praw Obywatelskich) about the quality of the medical care afforded to him in detention.
On 10 October 2006 the Ombudsman informed the applicant of the results of his inquiries. He found that, while in detention, the applicant had been entitled to take a daily bath and was given 4 diapers per day. He was examined many times by surgeons, orthopaedists and neurologists. He further delivered a concise summary of the medical care afforded to the applicant, in particular of the physical rehabilitation treatment in Łódź Prison, and concluded that it had been adequate to the applicant’s needs.
Following a further request from the applicant, filed on 29 May 2007, on 27 September 2007 the Ombudsman requested the Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) to provide him with details concerning the conditions of the applicant’s detention.
On 9 November 2007 the Inspectorate informed the Ombudsman that, according to the information in its possession, from the beginning of his detention in Siedlce Prison in 2 September 2005 the applicant had been provided with adequate medical care. The Inspectorate observed that the applicant continued to suffer from an old bedsore, which was difficult to heal, but that he had the dressing changed every day. The Inspectorate further observed that the applicant had once refused to have his bedsore removed by surgery. It moreover pointed out that the applicant had had his kidney stones surgically removed and that, in the course of his detention, he had been treated many times on an outpatient basis. Lastly, the Inspectorate explained that Siedlce Prison had been built in 1844 and acknowledged that its cells had not been adapted to the needs of handicapped detainees or to the use of wheelchairs. It explained that any conversion or modification to the construction of the prison buildings would require the prior authorisation of the Regional Inspector of Historic Monuments (Wojewódzki Konserwator Zabytków). The Inspectorate did not indicate whether any request to that end had been filed.
2.  Criminal proceedings against the authorities of Siedlce Prison (file nos. 1 Ds 1261/06 and II Kp 481/06)
On 29 June 2006 the Siedlce District Prosecutor refused to investigate the issue of the conditions of the applicant’s medical care in detention. The prosecutor held that the medical care afforded to the applicant had been adequate and that the applicant himself had at times refused to undergo the surgical treatment offered to him. The prosecutor moreover observed that the authorities of Siedlce Prison had requested the transfer of the applicant to Łódź Prison for physical rehabilitation treatment.
The applicant’s appeal against the refusal was dismissed by the Siedlce District Court on 11 December 2006. The court restated the prosecutor’s arguments and observed that the applicant had been in the meantime transferred to Łódź Prison, where he had been afforded special rehabilitation treatment.
C.  Relevant domestic law and practice
Medical care in detention
The relevant provisions of domestic law and practice concerning medical care and conditions of detention in prisons and remand centres are set out in the Court’s judgments handed down in the cases of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61, 20 January 2009; and Orchowski v. Poland, no. 17885/04, §§ 75-85, 13 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.
In particular, the following civil-law provisions regulate the State Treasury’s liability in tort.
Article 23 of the Civil Code contains a non-exhaustive list of “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24 § 1 of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
Article 417 § 1 of the Civil Code provides:
“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
Moreover, Article 445 § 1 of the Civil Code, applicable in the event that a person suffers a bodily injury or health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“[T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
Lastly, under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation.  That provision, in its relevant part, reads as follows:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
Article 4421 of the Civil Code sets out the limitation periods for civil claims based on tort. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows:
“A claim for compensation for damage caused by a tort shall not be brought after the expiration of three years from the date on which the claimant learned of the damage and of the person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”
COMPLAINTS
1.  The applicant complains under Article 3 of the Convention that:
-  the conditions of his detention from 7 January 2001 to 28 February 2001, from 1 September 2003 to 26 May 2004 and from 2 September 2005 to 18 June 2008 were incompatible with his disability (paraplegia), in particular that:
-  he had constant problems with accessing and using the toilet and the washbasin in his cell;
-  that the prison facilities were not adapted to the use of a wheelchair;
-  that he was not offered any meaningful and durable physical rehabilitation treatment adapted to his disability;
-  he developed serious health problems in detention, such as bedsores, repeated inflammations of urinary ducts, acute bacterial infections, kidney stones, and that these problems had not met with an adequate medical response;
-  the overall conditions of his detention were inadequate, in particular in that he was held in overcrowded and dirty cells, together with detainees who smoked,
-  that, despite his handicap, he was regularly transported between prisons and hospitals on a prison transport bus, without being properly fastened to his seat, and only rarely by an ambulance.
2.  Under the same provision, the applicant moreover complains that, on an unspecified date, he was beaten by a prison guard in Siedlce Prison.
QUESTIONS TO THE PARTIES
1.  Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of his complaints raised under Article 3, described under point 1) of the “Complaints” part of the Statement of Facts?

2.  Having regard to:
-  the nature of the applicant’s disability and his special needs;
-  the quality of care provided to the applicant in detention;
-  the overall conditions of the applicant’s detention;
was the applicant’s health and well-being adequately secured by the requisite medical assistance in detention?
Has there been a breach of Article 3 of the Convention on account of the authorities’ failure to secure to the applicant adequate conditions of detention and adequate medical care in detention from 2 September 2005 to 18 June 2008?