FOURTH SECTION
CASE OF
WENERSKI v. POLAND(No. 2)
(Application no.
38719/09)
JUDGMENT
STRASBOURG
24 July 2012
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 Wenerski v. Poland(no. 2),
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David ThórBjörgvinsson, President,
LechGarlicki,
PäiviHirvelä,
GeorgeNicolaou,
ZdravkaKalaydjieva,
NebojšaVučinić,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 3
July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 38719/09)
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 Ernest Wenerski (“the
applicant”), on 16 June 2009.
The applicant, who had been granted legal aid,
was represented by Mr L. Korpecki, a lawyer practising in Łódź.
The Polish Government (“the Government”) were represented by their Agent,
Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The applicant mainly complained under
Article 3 of the Convention of the inadequate conditions of his detention,
in particular overcrowding.
On 6 December 2010the 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 1970 and lives in
Kluczbork.
A. Background
The applicant has a long criminal record. He has
been detained on several occasions since 1997.
The present application concerns his detention in
Łódź Remand Centre during the following periods of time: (1) from
1 September 2004 until 10 March 2005, (2) from 20 May until
30 November 2005, (3) from 14 December 2005 until 19 January
2007, (4) from 5 February until 22 July 2007 and (5) from
8 January 2009 until an unspecified date in June 2010.
It appears that the applicant has been in
continuous detention since 1 September 2004, first in Łódź
Remand Centre and then in other detention facilities. Immediately before
1 September 2004 he was detained in Chełm Remand Centre and on an
unspecified date in June 2010 he was transferred to Kluczbork Prison.
The applicant suffers from epilepsy and has
regular seizures. He has also been diagnosed with a personality disorder.
B. Recommendations of medical experts concerning the
applicant’s confinement
Three reports on the applicant’s health were obtained
from experts in neurology, psychiatry and psychology in the course of the first‑instance
civil proceedings in tort(see paragraph 28 below). The domestic court wished to
obtain the experts’ opinion as to whether or not the applicant was fit for
detention and, in the affirmative, whether special conditions needed to be
created for him in the remand centre.
The first report was prepared on 2 October
2006 by Dr G.B., an expert in neurology. The report stated that the applicant’s
epilepsy did not, in itself, require that special conditions be created for him
in the remand centre. Detention in a multi‑person cell according to the
standards in place would not have a negative effect on the course of the
applicant’s illness. The expert recommended, however, that the applicant be
assigned a bottom bunk in a cell which was not overcrowded.
The second report was drafted on 9 August
2008 by Dr M.B., an expert in psychiatry. The expert found that the
applicant suffered from a mild personality disorder and experienced occasional
mood swings. Detention in ordinary prison conditions would not exacerbate the
applicant’s disorder.
The third report was prepared on 21 April
2009 by Dr L.S., an expert in psychology. The expert found that the
applicant suffered from a personality disorder with an increased tendency
to emotional outbursts which manifested themselves in self‑injury. The
expert concluded, however, that the applicant’s personality disorder had
developed in his early life and was independent of the overcrowding and
difficult conditions of detention.
C. The course of the applicant’s illness and the
medical care provided to him in Łódź Remand Centre
As established by the domestic courts, during
the first four terms of his detention in Łódź Remand Centre the
applicant had numerous epileptic fits. The fits often resulted in minor facial
and bodily injuries such as cut lips, bruises, skin abrasions and bumps to the
head. On one occasion the applicant bit his tongue. On another occasion,
he cut his head against the edge of the bed.
It was also found that during his epileptic fits
the applicant had received first aid from his fellow inmates. Where the
seizures occurred during the day, an in‑house doctor had been called in
to examine the applicant. At night or on public holidays the authorities had
called for an ambulance.
The applicant submitted copies of five ambulance
reports issued after each post‑seizure intervention in the remand centre
(on 24 April, 2, 12 and 19 May and 16 June 2005).
During the first four terms of his detention the
applicant did not receive medical help after an epileptic fit on at least two
occasions. On an unspecified date in March 2007 the warden instructed the
applicant’s cell mates to turn the applicant on his side and to put something
in his mouth. Likewise, when the applicant was detained in cell no. 149 in
block no. 2, wing no. 4, he did not receive any assistance during his
epileptic fit because the warden considered that the applicant had been
simulating.
After his seizures the applicant usually rested
in his cell.
The domestic courts established that the
applicant had a record of self‑mutilation. He had received adequate
medical treatment after each self‑injury.
On 9 March 2005 and 19 June 2006 the
applicant had EEG scans in the hospital of Łódź Prison.
D. General conditions of the applicant’s detention in
Łódź Remand Centre
In the course of the civil proceedings the
domestic courts established that from 2002 until 2006 the statutory minimum
space per prisoner was significantly reduced in Łódź Remand Centre
because of the nationwide problem of overcrowding and the fact that the remand
centre was undergoing extensive renovation and many cells were out of use.
It was found that during the first four terms of
his detention in Łódź Remand Centrethe applicanthad consecutively
occupied fourteen different cells, which measured between 10.5 and
12 sq. m and were shared by four to six prisoners. The living space
in the applicant’s cells had ranged between 2 and 2.4 sq. m per person. The
courts did not consider that the overcrowding had been of a temporary nature
since the applicant had spent several years with approximately
2 sq. m of personal space.
The applicant submitted that the maximum
permissible capacity of his cells in Łódź Remand Centre had been
significantly exceededon a permanent basis. For example, cell no. 159 in
block no. 1, wing no. 4, which was designed for two people, had in
fact been shared by six prisoners including the applicant. Cell no. 151 in
block no. 1, wing no. 4 measured 12 sq. m and was designed to
accommodate four prisoners. It had in fact been occupied by six persons
including the applicant. Cell no. 92, block no. 3, wing no. 3
measured 12.7 sq. m and had been shared by six instead of four
prisoners.
The civil courts established that overcrowding
in prisons and remand centres had a clear negative impact on prisoners’health
and the sanitary conditions of their detention. Moreover, the difficult living
conditions had led to increased stress and aggression among the prisoners. The
applicant had been involved in quarrels and fights with his fellow inmates. On
several occasions he had received a disciplinary punishment as a result.
The domestic courts further established that on
an unspecified date in 2004 the applicant had shared a single cell with another
prisoner. Because his fellow inmate was recovering from an injury the applicant
had been assigned the top bunk bed despite medical recommendations to the
contrary. The applicant had to climb onto his bed from the lower bunk because
there was no ladder. The top bunk was not equipped with a security rail.
The courts also noted that during the first four
terms of his detention in Łódź Remand Centre the applicant had for
the most part been committed to cells which required renovation. On one
occasion only, for an unspecified period of time in the autumn of 2006, he had
been placed in cell no. 151, which had been freshly renovated and thus had
airtight windows and was not damp.
The applicant submitted that the cells in which
he had been held during all five terms of his detention in Łódź
Remand Centre had been dirty, not ventilated and infested with bugs and mould.
The toilet annex in each of his cells had been separated from one side only and
with just a sheet of fabric. As a result, the prisoners had had no privacy when
using the toilet and a foul odour was constantly in the air.
E. Civil action for infringement of the applicant’s
personal rights
On 18 February 2005 the applicant brought a
civil action in tort, seeking compensation in the amount of 70,000 Polish
zlotys (PLN, approximately 18,000 euros, EUR) because, as he claimed,
during his detention in Łódź Remand Centre he had been held in
overcrowded cells in conditions which had been unsuitable for a person in his
state of health. The applicant argued that, as a result, his health had
deteriorated and he had suffered distress and physical pain when he had injured
himself during his epileptic fits.
At a hearing on 25 May 2008 the applicant
specified that his civil action concerned his detention from 1 September
2004 until 22 July 2007.
On 26 May 2009 the Łódź Regional Court (Sąd Okręgowy) found in the applicant’s favour and awarded
him PLN 2,000 in respect of non‑pecuniary damage.
In the course of the proceedings the domestic
court obtained three medical reports prepared by experts in psychiatry,
psychology and neurology (see paragraphs 10 to 13 above) and
testimonies from the applicant, his fellow inmates and the remand centre’s
staff. The facts which were established by the domestic court on the basis of
that material are described in the relevant paragraphs above.
The Łódź Regional Court examined the
applicant’s claim under Articles 23 and 24 of the Civil Code (Kodeks
Cywilny), in conjunction with Article 448 of that Code.
The domestic court held that the applicant’s
personal rights, namely his right to dignity and to humane treatment, had been
infringed in that he had been held in severely overcrowded cells (approximately
2 sq. m per person) for a long period of time (several years). The overcrowding
in Łódź Remand Centre had not been of a temporary nature and had not
been justifiedby any exceptionalcircumstances.
On the other hand the first‑instance court
noted that, as suggested by the expert in neurology, the course of the applicant’s
epilepsy had been independent of the conditions of his detention. The
overcrowding in itself had not aggravated the frequency of the applicant’s
epileptic fits. However, it might have influenced his personality disorder.
Moreover, the risk of the applicant injuring himself during his epileptic fits
had been higher in overcrowded cells.
The domestic court observed that a breach of
personal rights ought to be redressed primarily through non‑pecuniary
means. The applicant, however, had sought only pecuniary compensation. Taking
the view that the applicant’s suffering had been of a minor degree, the court
awarded him PLN 2,000 for non‑pecuniary damage. The applicant was
also ordered to pay PLN 1,000 (approximately EUR 240) in partial
reimbursement of his lawyer’s fee.
Following an appeal by the applicant, the
Łódź Court of Appeal on 30 October 2009 changed the first‑instance
judgment by increasing the amount of the applicant’s award to PLN 5,000
(approximately EUR 1,180).
The appellate court considered that the findings
of fact and law which had been made by the regional court had been correct. It
held, however, that the amount of compensation awarded had been inadequate in
view of the degree of harm suffered by the applicant.
A cassation appeal was not available under the
applicable provisions.
F. Complaints to the penitentiary authorities
On numerous occasions the applicant complained
to the Łódź Regional Inspectorate of the Prison Service (Okręgowy
Inspektorat Służby Więziennej) about the inadequate medical
care and living conditions in Łódź Remand Centre.
His complaints were considered manifestly ill‑founded
(decisions of 15 May 2009 in reply to the complaint of 6 March 2009
and of 16 July 2009 in reply to the complaint of 25 May 2009).
II. RELEVANT DOMESTIC LAW AND PRACTICE
The provisions pertaining to medical care in
detention facilities and general conditions of detention, and the relevant
domestic law and practice, are set out in the Court’s judgments in Kaprykowski v. Poland, no. 23052/05,
§§ 36‑39, 3 February 2009, Sławomir
Musiałv. Poland, no. 28300/06, §§ 48‑61
ECHR 2009‑... (extracts) and Orchowski v. Poland, no. 17885/04, §§ 74‑85,
13 October 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the conditions of
his detention in Łódź Remand Centre where he had been held for a
period of over four yearshad been inadequate taking into account his particular
health condition, namely epilepsy and personality disorder. He alleged that the
cells had been overcrowded, badly ventilated, and without a fixed partition
separating the toilet. The applicant submitted that such conditions attained a
minimum level of severity amounting to inhuman and degrading treatment in
breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government did not make any comment on the
admissibility and merits of the case.
A. Admissibility
The Court recalls at the outset that its
competence to decide whether an applicant is a victim does not depend on an
objection being raised by the respondent Government (see Hay v. the United Kingdom (dec.),
no. 41894/98, ECHR 2000‑XI; and Staykov v. Bulgaria, no. 49438/99, § 89, 12 October 2006). Before going into the
merits of each complaint, the Court must be satisfied of the applicant’s
continuing status as a victim in respect of it, this question being relevant at
all stages of the proceedings (see, as a recent authority, Scordino v. Italy (no. 1)
[GC], no. 36813/97, § 179, ECHR 2006‑V(no. 1)). The Court reiterates on
this point that a decision or measure favourable to an applicant is not in
principle sufficient to deprive him of this status unless the national
authorities have acknowledged, either expressly or in substance, and then
afforded redress for, the breach of the Convention (ibid., § 180).
The Court observes that in the compensation
proceedings instituted by the applicant the courts acknowledged that he had
been held in severely overcrowded cells for a long period of time (see paragraph
33 above). They also examined what influence such conditions might have
had on the applicant’s state of health taking into account his epilepsy and
personality disorder (see paragraph 34 above).The Court thus accepts that
the courts did acknowledge the failure of the domestic authorities to comply
with Article 3 of the Convention in these respects. It thus remains to be
determined whether the compensation awarded to the applicant amounted to
sufficient redress.
The applicant was awarded theequivalent of EUR 1,180 in
compensation; however, he had been ordered to reimburse approximately
EUR 240 of the lawyer’s fees.
The just satisfaction awarded by the Court of
Appeal amounts to approximately 25 per cent of what the Court would be likely
to have awarded the applicant in accordance with its practice, taking into
account the particular circumstances of the case. The Court therefore concludes
that the redress provided to the applicant at domestic level, considered on the
basis of the facts of which he complains before the Court, was insufficient. In
these circumstances, the Court considers that the applicant can still be
considered as a “victim” of a violation of Article 3 of the Convention.
The Court notes that this complaint 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
The Court firstly notes that on 20 January
2009 it found a breach of Article 3 of the Convention in the first case
brought by the applicant on account of the State’s failure to provide him with
necessary and urgent treatment for his right eye socket (see Wenerski v. Poland,
no. 44369/02, § 64, 20 January 2009).The first application and
the present one both raise issues of alleged inhuman and degrading treatment of
the applicant during his detention. However, the circumstances of both cases
differ substantially since the present case raises new complaintsrelating to
the conditions of the applicant’s detention arising out of overcrowding and the
applicant’sepilepsy.
A summary of the general principles applicable
to the Court’s examination of medical care and conditions of detention under
Article 3 may be found in the Court’s judgments in Sławomir
Musiał andOrchowski
(cited above, §§ 85‑88 and §§ 119‑229 respectively).
The Court notes that the applicant limited his
complaint to several periods from 2004 until 2010 when he had been detained in
Łódź Remand Centre and which amounted to approximately four years
(see paragraphs 7 and 42 above).
As mentioned before, the Government did not
submit any observations concerning the merits of the case. However, the
domestic proceedings instituted by the applicant reveal that the applicant was
affected by theproblem of overcrowding as during the most part of the period
under consideration hewas placed in cells where the space per detainee was
about 2 sq. m. (see paragraphs 22 and33 above).
The Court has already found in its two pilot
judgments in the cases of Orchowski and Norbert Sikorskithat, for
many years, namely from 2000 until at least mid‑2008, overcrowding in
Polish prisons and remand centres had revealed a structural problem consisting
of “a practice that [was] incompatible with the Convention” (see Orchowski,
cited above, § 151, and Norbert Sikorski v. Poland, no. 17599/05, §§ 155‑156, 22 October
2009).
53. Taking all these
elements into consideration, the Court finds it established that forseveral
yearsthe applicant was
detained in overcrowded cells with less than 3 sq. m. of personal space (see
Musiałek and Baczyński v. Poland, no. 32798/02, § 130, 26 July 2011).
54. Moreover,
the Court notes that during his detention the applicant undeniably suffered
from epilepsy and had been diagnosed with a personality disorder.
The domestic courts and experts established that
the applicant’s state of health had been independent of the conditions of his
detention and had not been incompatible with detention (see paragraph 34
above). The Court is not in a position to contradict such findings.
Nevertheless, the Court accepts that the very
nature of the applicant’s condition made him more vulnerable than the average
detaineeand that his detention in the conditions described above can reasonably
be considered to have exacerbated his feelings of distress. The overcrowding
increased tension among prisoners and no doubt had an impact on the applicant’s
personality disorder. Moreover, during his seizures the applicant sustained
injuries which had clearly been worsened by overcrowded and cluttered cells.
Indeed, during
his stay in Łódź Remand Centre the applicant had numerous epileptic fits
which often resulted in facial and bodily injuries (see paragraphs 14‑20
above). The applicant bit his tongue, cut his head against the edge of the bed,
cut his lips and sustained bruises, skin abrasions and bumps to the head. In
all these incidents his fellow inmates provided immediate assistance. Only
later was an in‑house doctor or an ambulance called. On a few occasions
he received no medical assistance after his seizures.
In this connection the Court reiterates that it
has previously criticised a situation in which the staff of a remand
centre feels relieved of its duty to provide security and care to a detainee
suffering from frequent epileptic fits by making his cellmates responsible for
providing him with daily assistance or, if necessary, with first aid
(see Kaprykowski v. Poland, no. 23052/05, § 74, 3 February
2009).
Assessing the facts of the case as a whole,
having regard in particular to the cumulative effects of the inappropriate
living conditions during the applicant’s incarceration and his vulnerable
medical condition which necessitated frequent medical assistance, the Court
considers that the nature, duration and severity of the ill‑treatment to
which the applicant was subjected are sufficient to be qualified as inhuman and
degrading (see Egmez
v. Cyprus, no. 30873/96, § 77, ECHR 2000‑XII; Labzov
v. Russia, no. 62208/00, § 45, 16 June 2005; and
Mayzit
v. Russia, no. 63378/00, § 42, 20 January 2005).
There has accordingly been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant also complained that his detention
conditions breached his right to respect for his physical and mental integrity
and his right to privacy and the protection of his private space. He relied on 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 therefore likewise be declared admissible.
However, 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 and the medical treatment he received.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained, invoking
Articles 6 and 13 of the Convention, of the unfairness of the civil
proceedings for compensation before the domestic courts.
The Court reiterates that, in accordance with
Article 19 of the Convention, its duty is to ensure the observance of the
engagements undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law allegedly
committed by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention.Moreover, while Article 6
of the Convention guarantees the right to a fair hearing, it does not
lay down any rules on the admissibility of evidence or the way it should be
assessed, which are therefore primarily matters for regulation by national law
and the national courts (see, García Ruiz v. Spain
[GC], no. 30544/96, § 28, ECHR 1999‑I, with further
references).
65. The Court has examined
the remainder of the complaints as submitted by the applicant. However, having
regard to all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that the
applicant has failed to substantiate his complaints.
It follows that this part of the application is
manifestly ill‑founded and must be rejected in accordance with Article 35
§§ 3 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 claimed EUR 20,000 in respect
of non‑pecuniary damage.
The Government did not comment on the
applicant’s claim.
The Court awards the applicant EUR 5,000 in
respect of non‑pecuniary damage.
B. Costs and expenses
The applicant, who had been represented by a
lawyer and had been granted legal aid from the Council of Europe, did not make
any claim in respect of costs and expenses.
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 complaint concerning Articles 3 and 8 of the Convention
admissible and the remainder of the application inadmissible;
2. Holdsthat
there has been a violation of Article 3 of the Convention;
3. Holdsthat
noseparateissue arises 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 ofnon‑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. Dismissesthe remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 July
2012, pursuant to Rule 77§§ 2 and 3 of the Rules of Court.
Fatoş Aracı David
Thór Björgvinsson
Deputy Registrar President
