FOURTH SECTION
CASE OF KULIKOWSKI
v. POLAND (No. 2)
(Application no. 16831/07)
JUDGMENT
STRASBOURG
9 October 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 Kulikowski v. Poland (no. 2),
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 16831/07)
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 Adam Kulikowski (“the applicant”), on 4
April 2007.
The applicant, who had been granted legal aid,
was represented by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent,
Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The applicant alleged that the medical care that
he received in detention was inadequate.
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 1964.
In 1999 he was diagnosed as suffering from
diabetes. He became insulin-dependent on an unspecified later date.
On 22 March 2000 the applicant was arrested. On
24 March 2000 he was remanded in custody by the Gliwice District Court on
suspicion that he had killed his mother. On 24 March 2000 the applicant was
placed in Bytom Remand Centre.
From 13 March 2001 until 11 October 2001 he was
treated for his diabetes in the hospital of the Bytom Remand Centre. The
applicant remained there until 23 October 2002.
On 14 August 2002 the applicant was
convicted of murder and sentenced to twelve years’ imprisonment.
On 3 September 2002 an ophthalmologist examined
the applicant as he had complained about deterioration of his eye-sight. He
received a medical prescription for glasses.
From 7 November to 6 December 2002 the
applicant was detained at the hospital of Krakow Remand Centre, where he
received treatment. From 11 December 2002 until 24 April 2003 the applicant was
detained in Bytom Remand Centre.
From 25 April 2003 the applicant was detained in
Strzelce Opolskie Remand Centre. He remained there until 2 February 2005.
. It transpires from the list of
Polish prisons, available on the Internet site of the Polish prison service, that Strzelce Opolskie where he served most of
his sentence is one of the prisons (i.e. Goleniów, Nysa, Dębica, Koszalin;
Tarnów) which are listed as suitable for serving sentences by inmates suffering
from insulin-dependent diabetes.
In 2004 the applicant met the director of the
prison health service on 7 April, 12 May, 16 June, 4 August, 22 September,
6 October and 24 November 2004 to discuss his condition and the therapeutic
options available to him. It appears that the applicant had been supplied
with a glucometer and that he could test his sugar level himself several times
a day.
He also took various medicines, including
insulin. The applicant alleged, however, that because of the nature of his
illness, he had frequently developed hypoglycaemia in the evening. Because he
did not have the right to keep any glucose in the cell, he had to acquire sugar
from his fellow inmates or the remand centre staff had to call an ambulance.
On 2 February 2005 the applicant was placed in
Bytom Remand Centre for the purposes of medical treatment. He remained there
until 25 February 2005.
In 2005 the applicant had two meetings with a director
and a deputy director of the prison health services, on 5 January and 5 November
2005.
In 2005 the applicant developed glaucoma. He
alleged that it was not treated. The Government disagreed. They submitted that
he received treatment for this condition from the diagnosis onwards.
From 2 to 25 February 2005
the applicant was placed in the Ophthalmological Ward of the Bytom Remand Centre Hospital.
On 14 August 2006 the applicant was examined by
a court-appointed doctor, who ordered that he should be hospitalised in
order to improve his health and stabilise his blood sugar levels.
In July 2006 the applicant developed
conjunctivitis. He was treated for it from 7 September until 5 October 2006.
From October 2006 onwards the applicant’s diet
was adapted because of his diabetes. He was to receive one additional meal per
day so that he could have a fourth injection of insulin.
He also
submitted to the Court his diabetic record (książeczka cukrzyka)
covering the period from August 2005 to January 2007. It transpires therefrom
that he was able to monitor his sugar levels on a regular basis, at least five
times a day. He had five injections of insulin per day.
The applicant suffered from headaches. He was
examined by a neurologist on 17 April 2000, 17 and 24 May 2000, 7 June, 30 August
2000, 18 December 2001, 2 January, 20 February, 29 May, 19 June and 5 October
2002. Subsequently, a neurologist examined him on 3 January and 5 March
2007. On an unspecified date an MRI scan of his head was carried out.
Eventually, on 6 September 2006 the applicant
was transferred to a hospital at Łódź Prison, where he remained until
5 October 2006.
The applicant was examined by an ophthalmologist
on 18 October 2006, 9 March, 25 and 29 May 2007.
From 6 October 2006 until 1 March 2007 the
applicant was again detained in Strzelce Opolskie Remand Centre.
On 29 January 2007 and 29 March 2007 the
applicant talked with the Deputy Director of the Penitentiary Ward about the
treatment of diabetes.
On 2 March 2007 the applicant was transferred to
Bytom Remand Centre, where he was detained in the hospital. The applicant
submitted that the remand centre nurse was frequently late with his insulin injections.
On 16 March 2007 the applicant was transferred again to Strzelce Opolskie
Remand Centre, where he remained until 17 May 2007.
On many occasions the applicant complained to
the penitentiary authorities of his allegedly inadequate medical treatment in Bytom and Strzelce Opolskie Remand Centres. By a letter of 27 April 2007 the Deputy
Director of the Opole Regional Inspectorate of the Prison Service informed the
applicant that his complaints had been considered ill-founded in the light of
the finding that the applicant had repeatedly refused to cooperate with the
medical staff.
From 18 May until 11 June 2007 the applicant was
placed for treatment in the hospital of the Bytom Remand Centre. On the latter
date the applicant was transferred back to Strzelce Opolskie Remand Centre.
On 13 June 2007 the applicant discussed the
treatment of his diabetes with the penitentiary judge. On 5 September 2007
the applicant discussed with the Deputy Director of the Remand Centre the
possibility of hospital treatment.
The applicant submitted a copy of his medical
record (książeczka zdrowia) numbering several hundred pages
and covering the period from 18 September 2000 to July 2007. It transpires
therefrom that the applicant consulted doctors at least twice a month, even
more often at times. He regularly received various medication, including
antidepressants, vitamins and prescriptions for insulin. He also regularly
received packs of glucometer strips for the purpose of measuring blood sugar
levels.
From 2 April to 25 July 2008 the applicant
received treatment in respect of his alcohol addiction.
On 22 September 2008 the Opole Regional Court - Penitentiary
Division decided that the applicant should be released on parole. The court had
regard to the applicant’s conduct in the months prior to this decision. The
applicant was released immediately afterwards.
From 10 to 22 October 2008 and from 6 to 14 November
2008 the applicant was hospitalised in Gliwice Hospital. His medical records
prepared for the purposes of discharge from the hospital show that his diabetes
was very unstable and that the general indicator of stabilisation of diabetes
(HbA1c) was very high (8,3).
In a certificate dated 14 November 2008 the treating doctor observed that
the applicant’s blood sugar levels did not fall within the acceptable range of
60 to 140 mg/dl as a result of his lack of knowledge as regards self-treatment
of diabetes and adapting insulin doses to amounts of food and physical
activity.
On 17 March 2009 the applicant died.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 115 of the Code of Enforcement of
Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:
“1. A
sentenced person shall receive medical care, medicines and sanitary articles
free of charge.
...
4. Medical care is provided, above all, by health
care establishments for persons serving a prison sentence.
5. Health care establishments outside the prison
system shall cooperate with the prison medical services in providing medical
care to sentenced persons if necessary, in particular
1) to provide immediate medical care because of a
danger to the life or health of a sentenced person;
2) to carry out specialist medical examinations,
treatment or rehabilitation of a sentenced person;
3) to provide medical services to a sentenced person who has
been granted prison leave or a temporary break in the execution of the
sentence...”
On the basis of Article 115, paragraph 10, of
the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on
the detailed rules, scope and procedure relating to the provision of medical
services to persons in confinement by health care establishments for persons
deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w
sprawie szczegółowych zasad, zakresu i trybu udzielania
świadczeń zdrowotnych osobom pozbawionym wolności przez
zakłady opieki zdrowotnej dla osób pozbawionych wolności - “the
October 2003 Ordinance”). It entered into force on 17 December 2003.
Under paragraph 1.1 of the October 2003
Ordinance, health care establishments for persons deprived of liberty provide, inter
alia, medical examinations, treatment, preventive medical care,
rehabilitation and nursing services.
Paragraph 1 of this Ordinance further provides:
“2. In a justified case, if the medical services as
enumerated in sub-paragraph 1 cannot be provided to persons deprived
of liberty by the health care establishments for persons deprived of liberty,
in particular due to the lack of specialised medical equipment, such medical
services may be provided by public health care establishments.
3. In a case as described in sub-paragraph 2,
the head of a health care establishment for persons deprived of liberty shall
decide whether or not such medical services [provided by the public health care
establishments] are necessary...”
Paragraph 7 of the October 2003 Ordinance states:
“1. The decision to place a person deprived of
liberty in a prison medical centre shall be taken by a prison doctor or, in his
absence, by a nurse...
2. The decision whether or not it is necessary to
place a person deprived of liberty in a ... prison hospital shall be taken by
the prison hospital’s director or by a delegated prison doctor.
...
6. In case of emergency the decision whether or not
it is necessary to transfer a person deprived of liberty to a hospital may be
taken by a doctor other than a prison doctor...”
The rules of cooperation between prison health
care establishments and public health care facilities are set out in the
Ordinance of the Minister of Justice issued on 10 September 2003 on the
detailed rules, scope and procedure for the cooperation of health care
establishments with respect to persons deprived of liberty (Rozporządzenie
Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i
trybu współdziałania zakładów opieki zdrowotnej ze
służbą zdrowia w zakładach karnych i aresztach
śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym
wolności - “the September 2003 Ordinance”). It entered into force on
17 October 2003.
The domestic provisions and regulations have
been extensively summarised in, inter alia, the case of Kaprykowski
v. Poland, no. 23052/05, § 36-47, 3 February 2009.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
The Court notes at the outset that the applicant
died after the introduction of his application. Subsequently, on 15 June
2009, his sons, Mr Marcin Kulikowski and Mr Tomasz Kulikowski, informed
the Court that they wished to pursue the application introduced by their
father.
The respondent Government submitted that the
applicant’s sons could not be considered persons entitled to pursue the
proceedings before the Court on the applicant’s behalf since they had not
visited him in prison from June 2007 until his release in September 2008.
The Court recalls that when an applicant dies
during the Convention proceedings, the next-of-kin of the applicant has a
legitimate interest to justify the continuation of the examination of the case
(see, for example, Lukanov
v. Bulgaria, judgment of 20 March 1997, Reports of Judgments and Decisions
1997-II, § 35; Fojcik v. Poland,
no. 57670/00, § 46, 21 September 2004).
The Court thus accepts that the applicant’s sons
have a legitimate moral interest to pursue the application on their father’s
behalf and to obtain a ruling on whether in the circumstances of the case his
rights guaranteed by the Convention had been breached.
Accordingly, the applicant’s sons have standing to continue the proceedings before the Court in the
applicant’s stead, and the Government’s preliminary objection should be
dismissed.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant
complained that the medical care provided to him within the penitentiary system
had not been adequate and that, as a result, his health had seriously
deteriorated. He relied on Article 3 of the Convention which reads:
“No one shall be subjected to
torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
The Government submitted that the applicant had
failed to exhaust relevant domestic remedies. He should have made use of the
provisions of Articles 23 and 24 of the Civil Code in conjunction with Article
445 or Article 448 of the Civil Code in order to bring an action for compensation
for the alleged failure to provide adequate medical care. In this connection
they relied on the Warsaw Court of Appeal’s judgment of 18
March 2008 given in the case no. ACa 587/07. In that
case the court awarded compensation to an inmate for the failure on the part of
prison medical services to diagnose a serious psychiatric problem throughout
his detention. They further referred to the Supreme Court’s ruling of 28 February 2007 in the case V CSK 431/06. In the latter
case the Supreme Court had for the first time recognised the
right of a detainee to lodge a civil claim against the State Treasury under
Article 448 of the Civil Code for damage caused by overcrowding and resulting
inadequate living and sanitary conditions in a detention establishment.
The applicant argued that he had exhausted
relevant domestic remedies. On 11 March 2007 he had complained to the General
Prison Physician about alleged deficiencies in the medical care he received.
However, his complaint had been found manifestly ill-founded. In the absence of
an appropriate reaction to his complaint, he had not had any effective remedy
at his disposal.
The Court reiterates that, according to its
established case-law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to
afford the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are submitted to
the Court (see Dankevich v. Ukraine,
no. 40679/98, § 107, 29 April 2003). The Court has already
welcomed the new developments in domestic jurisprudence in the field of
protection of personal rights in the prison context (see Kaprykowski
v. Poland, no. 23052/05, § 55, 3 February 2009 where the
Government relied on a successful civil action for the protection of personal
rights in the context of an inmate complaining about exposure to passive
smoking). It is not persuaded, however, that the relevant judgments can have
any parallel effect in the area of claims arising from inadequate medical care
in detention as of today and even less in 2007, at the time when the applicant
introduced his application with the Court. The Government referred to only one
judicial decision where a claimant was successful in respect of a compensation
claim arising out of inadequate medical care in prison. It must be noted that
the applicant lodged his application with the Court on 4 April 2007. By
that time he had already spent seven years in continuous detention (see
paragraph 7 above).
Moreover, the situation giving rise to the
alleged violation of Article 3 ended on 22 September 2008 when the
applicant was released. He was hospitalised twice afterwards and died in March
2009.
It cannot therefore be said that the examples
from domestic case-law supplied by the Government show that, in the
circumstances of the case and, more particularly, at the time when
the applicant brought his application under the Convention, that an action
under Article 445 or Article 448 of the Civil Code could have offered
him reasonable prospects of securing better medical care in an ordinary
detention facility.
In any event, it must be noted that the
applicant in the present case complained to the penitentiary authorities about
the medical care provided to him. By taking those actions the applicant had
sufficiently drawn the attention of the penitentiary authorities to the
question of the compatibility of the medical care available with the state of
his health.
The Government further submitted that the
application should be declared inadmissible for failure to comply with the six-month
time-limit in so far as the facts relied on by the applicant occurred
prior to 4 October 2006, six months before the applicant lodged his
application with the Court.
Given that the applicant lodged his application
with the Court on 4 April 2007 (see paragraph 1 above), the Court finds
that the complaints concerning events prior to 4 October 2006 are inadmissible
and can only be taken into consideration as factual background to the case.
The Court notes that the application 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 applicant argued that the prohibition of
inhuman or degrading treatment was enshrined both in the Polish Constitution
and the Convention. His condition necessitated appropriate specialised medical
care which the authorities had failed to provide. In particular, they had
failed to have the applicant treated in civil hospitals with the necessary
medical expertise and equipment. The applicant had repeatedly complained about
his suffering and his difficulties to the authorities, to no avail. The
authorities’ failure to give him adequate medical treatment had resulted in an
irreversible deterioration of his condition. He had been infected by a virus
which had resulted in the further deterioration of his condition as he had
already been suffering from glaucoma at that time.
In particular, his insulin-dependent diabetes
had not been properly treated. As a result, he had had hyper- and
hypoglycaemias every day which amounted to a real risk to his life. He had
suffered considerably, knowing that the poor quality of medical care available
to him would result in severe deterioration of his health. He had also suffered
as he had felt helpless in the face of the prison authorities’ inability to
address his situation properly.
The Government submitted that the authorities had displayed due diligence in taking care of the
applicant’s health and with regard to the treatment of his diabetes and
glaucoma. The applicant had never been refused access to appropriate medical
consultations and had received treatment available to all patients in the
public health care system. They further argued that the
applicant had been diagnosed as suffering from certain ailments of his nervous
system caused by diabetes. Due to
difficulties in obtaining stable blood sugar levels, on numerous occasions
twenty-four-hour profiles of blood sugar levels had been carried out. Medical
symptoms of this disorder were, among others, nervousness
and insomnia. This condition could, in the Government’s view, explain the
applicant’s dissatisfaction with his personal situation in prison and with the
treatment he had received.
1. Applicable principles
In accordance with the Court’s settled
case-law, ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3. The assessment of this minimum is
relative; it depends on all the circumstances of the case, such as the duration
of the treatment, its physical and mental effects and, in some cases, the sex,
age and state of health of the victim (see, among other authorities, Price
v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Mouisel
v. France, no. 67263/01, § 37, ECHR 2002-IX; and Naumenko
v. Ukraine, no. 42023/98, § 108, 10 February 2004).
Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis
mutandis, Klaas
v. Germany, 22 September 1993, § 30, Series A no. 269). To
assess this evidence, the Court adopts the standard of proof “beyond reasonable
doubt” but adds that such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted presumptions
of fact (see Ireland
v. the United Kingdom, 18 January 1978, § 161 in
fine, Series A no. 25, and Labita
v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).
In order for a punishment or treatment
associated with it to be “inhuman” or “degrading”, the suffering or humiliation
involved must in any event go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or punishment
(see
Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX).
With particular reference to persons deprived of
their liberty, Article 3 imposes a positive obligation on the State to
ensure that a person is detained in conditions which are compatible with
respect for his human dignity, that the manner and method of the execution of
the measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention and that,
given the practical demands of imprisonment, his health and well-being are
adequately secured by, among other things, providing him with the requisite
medical assistance (see Kudła
v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI, and
Rivière
v. France,
no. 33834/03, § 62, 11 July 2006). Hence, a lack of appropriate
medical care and, more generally, the detention in inappropriate conditions of
a person who is ill may in principle amount to treatment contrary to Article 3
(see, for example, İlhan
v. Turkey [GC], no. 22277/93, § 87, ECHR 2000-VII,
and
Naumenko, cited above, § 112).
The Court often faces allegations of
insufficient or inadequate medical care in places of detention. Although
Article 3 of the Convention cannot be construed as laying down a general
obligation to release detainees or place them in a civil hospital, even if they
are suffering from an illness which is particularly difficult to treat (see Mouisel,
cited above, § 40), it nonetheless imposes an obligation on the State to
protect the physical well-being of persons deprived of their liberty. The Court
cannot rule out the possibility that in particularly serious cases situations
may arise where the proper administration of criminal justice requires remedies
to be taken in the form of humanitarian measures (see Matencio
v. France, no. 58749/00, § 76, 15 January 2004,
and Sakkopoulos
v. Greece, no. 61828/00, § 38, 15 January 2004).
In exceptional circumstances, Article 3 may go as far as requiring the
conditional liberation of a prisoner who is seriously ill or disabled. In
applying these principles, the Court has already held that the detention of an
elderly sick person over a lengthy period may fall within the scope of Article
3 (see Papon
v. France (no. 1)
(dec.), no. 64666/01, ECHR 2001-VI;
Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR
2001-VI; and Priebke
v. Italy (dec.), no. 48799/99, 5 April 2001).
In deciding whether or not the detention of a
seriously ill person raised an issue under Article 3 of the Convention, the
Court has taken into account various factors. Thus, in Mouisel
v. France (cited above, §§ 40-42) the Court examined
such elements of the case as (a) the medical condition of the prisoner, (b) the
adequacy of the medical assistance and care provided in detention and (c) the
advisability of maintaining the detention measure in view of the state of
health of the applicant.
The Court has further held that the mere fact
that a detainee was seen by a doctor and prescribed a certain form of treatment
cannot automatically lead to the conclusion that the medical assistance was
adequate (see Hummatov
v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November
2007). The authorities must also ensure that where necessitated by the nature
of a medical condition the diagnoses and treatment are carried out in a timely
fashion and that supervision, where necessary, is regular and systematic and
involves a comprehensive therapeutic strategy aimed at curing the detainee’s
diseases or preventing their aggravation, rather than addressing them on a
symptomatic basis (see Popov
v. Russia, no. 26853/04, § 211, 13 July 2006;
and Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 114,
29 November 2007) .
2. Application of these principles to the present case
The case raises the issue of the compatibility
of the applicant’s state of health with his detention and the quality of the
medical care provided to him with the requirements of Article 3 of the
Convention. Accordingly, the Court must examine whether the applicant’s
situation attained the required minimum level of severity to fall within the
ambit of Article 3 of the Convention.
The Court has already held that the temporal
scope of the case extends only to the circumstances arising after 4 October
2006 (see paragraph 51 above). In determining whether the medical treatment in
prison which the applicant received after that date complied with the
prohibition of inhuman or degrading treatment, the Court will take into account
the facts prior to that date merely as a background to the case.
. The Court further notes that when
the applicant was arrested he was already suffering from diabetes which
subsequently became insulin-dependent.
. The Court notes in this connection
that immediately after his arrest on 22 March 2000 the applicant was
placed in the hospital of the Bytom Remand Centre. The applicant
submitted a copy of his medical records (książeczka zdrowia)
for the period from 18 September 2000 to July 2007. The Court notes that it
transpires from it that the applicant had access to prison doctors of various
specialities, including general practitioners, doctors in internal medicine,
ophthalmologists and diabetologists on a regular basis throughout this period
as often as twice a month, and at times more often.
. On 2 March 2007 the applicant
was transferred to Bytom Remand Centre, where he was detained in the hospital. From
18 May until 11 June 2007 the applicant was again admitted to the same hospital
for treatment.
. As regards specific issues arising
in connection with the applicant’s diabetes, the Court observes that in the
cases concerning medical care in prison it was most often faced with situations
arising in connection with prisoners affected with severe to very severe
ailments, such as to make their normal daily functioning very difficult (see Kupczak
v. Poland, no. 2627/09, 25 January
2011; Kaprykowski v. Poland, no. 23052/05, 3 February
2009; Arutyunyan v. Russia, no. 48977/09, 10 January 2012). The present case differs
from these cases in that insulin-dependent diabetes does not affect the person’s
everyday functioning in the same way as many serious illnesses do. However, the
Court observes that this is a condition which necessitates injections of
insulin several times per day and, also, regular control of the blood sugar
levels of the person affected with it with a view to maintaining them within
the physiological range. It also requires a special diet. Hence, the treatment
of insulin-dependent diabetes poses special problems within the prison context
as round-the-clock monitoring of the person is necessary. The Court
acknowledges that the applicant must have been aware of the strict requirements
that insulin treatment must meet in order to control diabetes and that he could
have experienced considerable anxiety as to whether these requirements could be
successfully complied with in the prison setting.
. In this connection, the
crucial issue to be determined by the Court seems to be whether the day-to-day
care afforded to the applicant was such as to allow him to properly control his
diabetes. The Court observes that the
applicant served most of his sentence in Strzelce Opolskie prison. It was one
of the prisons in the Polish penitentiary system where the prison medical
administration took appropriate measures in order to make it possible to
provide medical care to prisoners suffering from insulin-dependent
diabetes. Hence, the special requirements necessary for treatment of this
ailment have been addressed by the penitentiary system and the applicant had
been placed in the appropriate institution.
. The Court notes that the applicant
had been allowed to have a glucometer in his cell with a view to monitoring
sugar levels in his blood. He also submitted to the Court his diabetic record (książeczka
cukrzyka) covering the period from August 2005 to January 2007. It transpires
therefrom that he was able to monitor his sugar levels on a regular basis, at
least five times a day. He had five injections of insulin per day. In October
2006 the prison doctors agreed that the applicant should receive a special diet
for diabetics. No arguments have been submitted to the Court to demonstrate
that after January 2007 the quality of the treatment of his diabetes available
to the applicant had diminished.
. The Court is therefore satisfied
that the issues arising in connection with day-to-day care of his
insulin-dependent diabetes were taken into consideration and adequately
addressed by the prison administration.
. However, the Court notes that
diabetic patients, in order to be able to monitor and control their condition
themselves, should be given adequate training regarding insulin therapy, the
doses and timing of injections as well as about the relationship between food
intake, physical activity and insulin therapy. In the applicant’s case, the
medical certificate issued at the time of the applicant’s discharge from the
hospital, already after his release from prison, stated that the applicant had
not received sufficient training and, as a result, was unable to monitor the
treatment and administer injections correctly (see paragraph 35 above). It has
not been shown that throughout the eight years of the applicant’s detention the
prison medical services made adequate and constant efforts to educate the
applicant as to how to deal with his diabetes. It is a matter of regret that
apparently the applicant was not provided with such training during his
detention as it is of primordial importance in the treatment and control of
insulin-dependent diabetes.
. Nonetheless, the Court further notes
that the applicant was hospitalised on a number of occasions in various prison
hospitals, in connection both with his diabetes and his ophthalmological
problems. From 2 to 25 February 2005 the applicant was placed in the
Ophthalmological Ward of the Bytom Remand Centre Hospital. The applicant was
examined by an ophthalmologist on 18 October 2006, 9 March, 25 and 29 May
2007. The Court has already noted, referring to the applicant’s health records,
that the applicant had regular access to various specialists (see paragraph 69
above).
. In view of the foregoing and
having regard to the circumstances of the case seen as a whole, the Court
considers that the quality of the medical treatment which the applicant
received was not such as to put his health in danger and reach thereby the
minimum threshold of severity required in order to fall within the scope of
Article 3 of the Convention.
Accordingly, there has been no violation of this
provision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been no violation of
Article 3 of the Convention.
Done in English, and notified in writing on 9 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David
Thór Björgvinsson
Registrar President
