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FOURTH
SECTION
CASE OF GRZYWACZEWSKI v. POLAND
(Application
no. 18364/06)
JUDGMENT
STRASBOURG
31 May
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 Grzywaczewski v.
Poland,
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,
Zdravka Kalaydjieva,
Vincent A. De
Gaetano, judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 10 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18364/06) 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 Zbigniew Grzywaczewski
(“the applicant”), on 24 April 2006.
- The
applicant, who had been granted legal aid, was represented by Mr P.
Sendecki, a lawyer practising in Lublin. 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 and treatment offered to him
during his detention in Lublin Remand Centre and Zamość
Prison had been inadequate in view of his diabetes. He also
complained of overcrowding and poor living and sanitary conditions in
the above mentioned detention facilities.
- On
30 November 2006 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Zbigniew Grzywaczewski, is a Polish national who was
born in 1957. He suffers from insulin-dependent diabetes, prostate
cancer and mild cardiac disorders. He has been classified by the
social security authorities as a person with a “mild-degree
disability” (umiarkowany stopień inwalidztwa)
making him fit to do only light physical work.
A. The period of the applicant’s detention
- On
25 January 2006 the applicant turned himself in to serve an
outstanding sentence of imprisonment. From that day until 11 December
2008 he was in detention, except for the period from 24 to 27
December 2007 when he was at liberty on a short leave from prison
(przepustka). During the relevant period the applicant was
detained in a number of different facilities, namely Lublin Remand
Centre, Zamość Prison and Hrubieszów and Rzeszów
Prisons.
B. The description of the conditions of the applicant’s
detention
- The
parties’ statements relating to the conditions of the
applicant’s detention are, to a large extent, contradictory.
However, the Government’s submissions on the case are limited
to the applicant’s detention prior to his transfer from Zamość
Prison on 6 February 2007. The Government did not make any comments
in relation to the period after that date.
1. First term in Lublin Remand Centre
(a) Uncontested facts
- From
25 January until 3 March 2006 the applicant was detained in Lublin
Remand Centre. He was initially held in cell no. 22 in wing IV. Two
weeks later he was transferred to cell no. 22 in wing III.
- The
official statistics published by the Prison Service (Służba
Więzienna) reveal that at the relevant time the overcrowding
(the degree by which the number of prisoners exceeds the maximum
allowed capacity of a particular detention facility, which, in turn,
is calculated on the basis of the standard of 3 square metres (m²)
of cell floor space per prisoner provided for in Polish law) in
Lublin Remand Centre peaked at 22.5 %.
(b) Facts in dispute
(i) The Government
- The
Government submitted that the applicant’s cell in wing IV
measured 32 m² and could hold from 18 to 29 persons (from 1.7 to
1.1 m² of cell space per person). His cell in wing III
measured over 21 m² and could hold from 7 to 10 people (from 3
to 2.1 m² of cell space per person). The Government did not
specify, however, the actual occupancy rate because, as they
submitted, Lublin Remand Centre had not kept any register of
detainees’ allocation.
- The
Government submitted that the applicant’s cells in Lublin
Remand Centre had been equipped in compliance with the internal
regulations and had been adequately lit and ventilated. They also
noted that the applicant had had an unlimited access to cold water
and that he had been allowed to have one hot shower per week. The
toilet annex inside each cell offered sufficient intimacy. Finally,
the applicant was allowed to spend several hours outside his cell,
either participating in social and cultural activities or staying in
a chapel.
(ii) The applicant
- The
applicant submitted that cell no. 22 in wing IV had originally
been designed for 14 persons but, in fact, it had been shared by 28
prisoners (1.1 m² of cell space per person). His cell in wing
III measured 15 m² and was shared by 10 persons (1.5 m² of
cell space per person).
- The
applicant claimed that Lublin Remand Centre had been so severely
overcrowded that he had had no room to sleep or to have his meals.
For example, in cell 22 in wing IV there were 18 beds and an
unspecified number of mattresses spread on the floor. There was no
private space. Consequently, the applicant had no choice but to
administer his insulin injections in front of his fellow inmates. The
applicant had limited access to the toilet inside the cell because it
was continuously occupied by other cellmates. The cells were not
ventilated and there was a constant foul odour. The conditions of
hygiene maintenance were insufficient. The applicant did not specify
how many times per week he could have a bath or a shower. He
submitted, however, that the shower-room had measured 12 m² and
that it had been used by 20 persons at a time. Detainees were allowed
to stay there for no longer than five minutes. There was no hot
water. The applicant maintained that in Lublin Remand Centre he had
been entitled only to a one hour period of outdoor exercise.
- In
the applicant’s submission the conditions in Lublin Remand
Centre as described above, had been aggravated by the fact that he
had been mocked and laughed at by the guards, while his complaints to
the remand centre’s administration had been ignored or had not
brought the desired effect.
2. Zamość Prison
(a) Uncontested facts
- From
8 August 2006 until 6 February 2007 the applicant was
detained in Zamość Prison which is listed as a semi-open
detention facility.
- According
to the official statistics published by the Prison Service the
overcrowding in Zamość Prison was at the lowest at 30% in
August and September 2006, increased to 38 and 39% in November and
December 2006 respectively, peaked at 45% in January 2007 and dropped
to 38% in February 2007.
(b) Facts in dispute
(i) The Government
- The
Government submitted that the applicant had been consecutively
detained in cells no. 11, 5, 22 and 15. The first two cells measured
over 30 m² and were shared by 12 to 14 persons (from 2.5 to
2.1 m² of cell space per person). Cell no. 22 was located in the
special-care wing. It measured over 12 m² and was occupied by 4
prisoners (3 m² of cell space per person). Cell no. 15 was in
the prison’s hospital wing. It measured over 14 m² and was
occupied by 3 persons (4.6 m² of cell space per person). In the
Government’s submission, the cells in question were
sufficiently lit and ventilated. They were adequately furnished and
equipped. The toilets and shower rooms were accessible from the
corridor.
- The
Government also submitted that Zamość Prison offered to all
prisoners a wide variety of social and sports activities, as well as
language courses and workshops. The applicant followed individual
rehabilitation programme for alcoholics and, together with his wife,
a family therapy.
(ii) The applicant
- The
applicant did not provide any details regarding the occupancy rate or
the size of his cells in Zamość Prison. He submitted,
however, that all his cells, except cell no. 15, had been
overcrowded. He also claimed that on 2 February 2007 a mentally
unstable prisoner had been assigned to his cell. That had caused a
lot of stress to the applicant and posed a real danger to his life
and health.
- The
applicant noted that during the day the prisoners in Zamość
Prison had been free to walk around the prison building. They had
also had daily access to the prison shop and the shower room. The
applicant’s meetings with his wife took place in a spacious
room.
3. First term in Hrubieszów Prison
- From
6 February 2007 until 3 January 2008 the applicant was detained in
Hrubieszów Prison. From 24 until 27 December 2007, however, he
was at liberty as he had been granted a short leave from prison.
- Hrubieszów
Prison was listed at the relevant time as a semi-open detention
facility suitable for incarceration of diabetics.
- According
to the official Prison Service’s statistics the overcrowding in
Hrubieszów Prison ranged at the relevant time from 23 to 27%.
- The
applicant submitted that he was initially placed in cell no. 203 in
wing II. The cell in question measured 13 m² and was shared by 6
prisoners, including the applicant (2.1 m² of cell space per
person).
- On
21 March 2007 the applicant was assigned to cell no. 110 or 111 in
wing I. That cell also measured 13 m². It was shared by 6
prisoners, including the applicant, another diabetic and four healthy
persons (2.1 m² of cell space per person). The applicant
submitted detailed calculations of the size of all equipment and
furniture inside his cell and concluded that the actual living space
of his cell was no more than 5 m².
- In
the applicant’s submission the living and sanitary conditions
in Hrubieszów Prison were appalling. The prison was seriously
overcrowded and the building was devastated. The applicant claimed
that, during an unspecified period, prisoners had been confined to
their cells 23 hours per day. Subsequently, as of April 2007, the
prison cells were left open from 10 a.m. until noon and then,
from 2 to 5 p.m. However, on 5 November 2007 renovation works started
in prison and the cells were opened only from 3 to 5 p.m. The
prisoners were allowed to walk around the prison building and stay
outside their cells; however, the corridors and the room where
prisoners met with their relatives were cramped and noisy. Because of
the existing overcrowding queues to the prison pay phone were long,
which made it difficult for the applicant to maintain regular contact
with his family.
- The
wash room, which was in a very poor condition, was located in a
separate building at a distance from the applicant’s wing. The
prisoners had to walk in the open to and from the shower room in all
weather conditions. The prisoners had little time to dry themselves
and to get properly dressed after taking a shower. Because of that
they were particularly exposed to catching a cold while walking back
to their quarters.
4. Second term in Lublin Remand Centre
- From
8 until 10 January 2008 the applicant was committed to Lublin Remand
Centre and assigned to cell no. 17 in wing IV. He was allowed to have
a one-hour period of outdoor exercise per day. In the applicant’s
submission, the living and sanitary conditions in the remand centre
had not changed since his previous stay there.
- According
to the official Prison Service’s statistics the overcrowding in
Lublin Remand Centre was at 11%.
5. Rzeszów Prison
- From
10 until 31 January 2008 the applicant was detained in Rzeszów
Prison. He was detained in cell no. 132 in wing I. The applicant
submitted that he had slept on a mattress spread on the floor and
that he had had no access to a doctor. He was allowed to make one
phone call every eight days. The applicant went on hunger strike
because, as he claimed, all his requests to be transferred closer to
his home had been dismissed or ignored.
- According
to the official Prison Service’s statistics the overcrowding in
Rzeszów Prison was at the relevant time at 18%.
6. Second term in Hrubieszów Prison
- From
31 January until 11 December 2008 the applicant was detained in
Hrubieszów Prison. He was released home on the latter date.
- It
appears that the applicant was assigned to cell no. 527 wing V. In
his submission, the living and sanitary conditions in prison had not
changed since his last stay there. The applicant’s cell was
overcrowded and shabby. He was confined inside the cell 23 hours per
day. He was entitled to one five-minute phone call every eight days.
- According
to the official Prison Service’s statistics the overcrowding in
Hrubieszów Prison ranged from 20 to 26% between January and
May, was at the lowest 8% in June and October, oscillated around
9-11% from July to September and increased to 15% in December 2008.
C. The applicant’s medical treatment in detention
- The
applicant suffers from diabetes, prostate cancer and some cardiac
disorders. In addition, during his imprisonment, he had been infected
with dermatophytosis. He submitted that the medical care available
within the penitentiary system had been insufficient.
- On
his detention in Lublin Remand Centre he informed the authorities of
his diabetes; however, as the Government submitted, he had initially
refused to go on a special diet. Only after experiencing some health
problems the applicant agreed to be put on a diet for diabetics. The
Government submitted that in the initial phase of his detention in
Lublin Remand Centre the applicant had been examined by a doctor and
had undergone a series of necessary medical tests. On the other hand,
he had never expressed a wish to have his sugar level tested on a
regular basis and had never asked for a glucometer.
- In
Zamość Prison the applicant was provided with medicine for
diabetes. Between 7 August 2006 and 6 February 2007 he went 36 times
to the doctor, including a general practitioner, a neurologist and an
ophthalmologist. In this regard, the applicant submitted that the
doctor practising in Zamość Prison had been a retired
ophthalmologist without any general practice experience or any
knowledge of the applicant’s particular disorders. Furthermore,
the applicant maintained that he had not been supplied with a
glucometer and that his sugar level had never been tested.
- The
applicant claimed that during his detention in Rzeszów Prison
in January 2008 he had had no access to a doctor whatsoever.
- With
respect to Hrubieszów Prison the applicant submitted that even
though the prison was listed as a facility suitable for incarceration
of diabetics, the medical attention he had received there had been
much worse than in the other detention establishments. He stressed
that virtually no medical care had been provided to him there. His
sugar level was never tested during his first detention in Hrubieszów
Prison. It was tested twice during his second detention there. In
addition, the applicant claimed that he had not received any
medication or diet for diabetics.
- Lastly,
the applicant made a general statement that the medical assistance
provided to him in detention had not been sufficient. Despite his
serious health condition he had been treated by the medical staff as
if he suffered from a common ailment, such as a cold. Throughout the
entire period of his detention the applicant administered his insulin
injections without the assistance of a third person. He did so inside
the cell where he lacked privacy and adequate sanitary conditions.
That placed him in an awkward position vis à vis
his fellow inmates. Due to the rapid changes of his sugar level he
lived with the constant stress and fear of losing consciousness
whenever he ran out of snacks. His medical condition worsened during
each move to a new detention facility.
D. The applicant’s actions concerning the living
conditions and medical care provided to him in detention
- The
applicant filed numerous complaints with the administration of Lublin
Remand Centre, Zamość Prison, the penitentiary authorities
and the relevant prosecutors in connection with the conditions of his
imprisonment and the medical care provided. He submitted that many of
his complaints had remained without a reply.
- On
29 January, 12 and 15 February 2006 the applicant filed complaints
about the inadequate medical care in Lublin Remand Centre. The
Government, without providing any details, submitted that those
complaints had been thoroughly examined and that one of them
(concerning the sleeping area) had been considered justified and the
applicant had been instructed about a possibility to file a civil
action for compensation.
- On
17 February 2006 the Governor of Lublin Remand Centre (Dyrektor)
responded to the applicant’s complaint about the insufficient
medical care. He established that the applicant had had a medical
check-up by an in-house doctor on the day of his arrival. It was
further stated that the applicant himself had refused, in writing, to
be put on a special diet and had never expressed a wish to have his
sugar level tested.
- In
a letter of 5 May 2006 the Governor of Lublin Remand Centre found the
applicant’s new complaint about medical care to be manifestly
ill founded. He stated that the applicant had been put on a diet
for diabetics as soon as he had asked for it. Moreover, the applicant
was examined by an in-house doctor and prescribed new medicines. The
applicant was also informed that a medical consultation by a doctor
of his choice outside the penitentiary system could be arranged at
his own expense.
- On
26 March 2007 the Governor of Zamość Prison informed the
applicant that his complaint about different aspects of his detention
in that establishment had been considered ill-founded. It was noted
that the applicant had been assigned to cell no.15 with a bathroom
and a toilet. He had constant access to hot water and he shared the
cell with one and, at times, with two inmates. It was also stressed
that the applicant was supplied on a regular basis with insulin,
syringes and needles. He had been seen on many occasions by an
internist, a neurologist, a psychiatrist and an ophthalmologist.
During the relevant time, the applicant did not raise any objection
as to the adequacy of the medical care and treatment provided to him.
He was administered the necessary medicines and he administered
insulin injections himself whenever he considered it necessary. That
was a typical course of treatment for diabetes. Moreover, the
Governor pointed to the fact that the applicant had himself requested
to be transferred to Zamość Prison because he had wished to
complete a therapy for alcoholics there. Both Zamość and
Hrubieszów Prisons were semi-open facilities and the same
restrictions applied to the applicant.
- The
applicant made numerous requests to the penitentiary court to be
granted a short leave from prison. He was released once in 2007 for
three days. He also complained about his frequent transfers between
different cells or different detention facilities and, lately, of the
conditions of his detention in Hrubieszów Prison. The
applicant claimed that the authorities had found his complaints
concerning Hrubieszów Prison ill-founded in the light of the
fact that that prison was listed as a facility suitable for the
incarceration of diabetics.
- The
applicant did not bring a civil action in tort to seek compensation
for the alleged infringement of his personal rights on account of
overcrowding and inadequate conditions and the inadequate medical
care provided to him during his detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Conditions of detention
- A
detailed description of the relevant domestic law and practice
concerning general rules governing the conditions of detention in
Poland and domestic remedies available to detainees alleging that the
conditions of their detention were inadequate are set out in the
Court’s pilot judgments given in the cases of Orchowski v.
Poland (no. 17885/04) and Norbert Sikorski v. Poland (no.
17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88
respectively). More recent developments are described in the Court’s
decision in the case of Łatak v. Poland (no. 52070/08) on
12 October 2010 (see §§ 25-54).
B. Medical care in prison and detention of ill
prisoners
- The
relevant domestic law and practice concerning medical care in
detention facilities are set out in the Court’s judgment in the
case of Kaprykowski v. Poland, no. 23052/05, §§ 36
-39, 3 February 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained under Article 3 of the Convention that the
medical care provided to him within the penitentiary system had been
inadequate and that the conditions of his detention had been very
poor and had failed in particular to meet the standard required for
persons in his state of health.
Article
3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government raised a preliminary objection, arguing that the applicant
had not exhausted the domestic remedies available to him.
- In
their initial observations the Government formulated this objection
in the same way as they did in the cases of Sławomir Musiał
v. Poland (no. 28300/06, §§ 67-69, 20 January
2009) and Orchowski v. Poland (no. 17885/04, §§
95-98, 22 October 2009).
- In
particular, they stressed that before lodging his Article 3
application with the Court the applicant should have: (1) made an
application to the Constitutional Court under Article 191, read
in conjunction with Article 79 of the Constitution, asking for the
2006 Ordinance to be declared unconstitutional; (2) brought a civil
action seeking compensation for the infringement of his personal
rights, namely his dignity and health, under Articles 23 and 24 of
the Civil Code, read in conjunction with Article 448 of that Code;
and (3) used remedies provided by the Code of Execution of Criminal
Sentences, such as an appeal against any unlawful decision issued by
the prison administration or a complaint to the relevant penitentiary
judge about being placed in a particular cell in prison, or a
complaint about prison conditions to the authorities responsible for
the execution of criminal sentences or to the Ombudsman.
- In
their subsequent submissions, the Government noted that on
11 December 2008 the applicant had been released from prison. In
these circumstances, the situation giving rise to the alleged breach
of Article 3 of the Convention no longer existed and the applicant
should bring a civil action under Article 24 taken in conjunction
with Article 448 of the Civil Code in order to seek compensation for
the past violation.
- In
that regard the Government relied, in particular, on the Orchowski
judgment, reiterating that the Court, having regard to the
principle of subsidiarity, had held that in cases where the alleged
violation of Article 3 no longer continued and could not be
eliminated with retrospective effect, the only means of redress for
the applicant was pecuniary compensation.
- In
view of the foregoing, the Government invited the Court to reject the
application for non-exhaustion of domestic remedies, pursuant to
Article 35 § 1 of the Convention.
- The
applicant in general disagreed with the above arguments and
maintained that the remedies suggested by the Government could not be
considered “effective” for the purposes of Article 35 §
1 of the Convention. He also submitted that he had lodged formal
complaints with the penitentiary authorities on the basis of the
Code of Execution of Criminal Sentences which had been either
rejected or left without examination.
- The Court observes that, in principle, the assessment
of whether domestic remedies have been exhausted is normally carried
out with reference to the date on which the application was lodged
with the Court (see Orchowski cited above, § 109, and
Demopoulos and Others v. Turkey [GC], (dec.) no.
46113/99, ECHR 2010-..., § 87). However, as the Court has held
in its leading decision in the Łatak case (cited above, §
79) and on many other occasions prior to that decision, this rule is
subject to exceptions which may be justified by the particular
circumstances of each case (see Demopoulos and Others,
ibid., with further references). Among such exceptions there are
certainly situations where, following a pilot judgment on the merits
in which the Court has found a systemic violation of the Convention,
the respondent State makes available a remedy to redress at domestic
level grievances of similarly situated persons (see Demopoulos and
Others, cited above, §§ 87-88; Broniowski v.
Poland (merits) [GC], no. 31443/96, §§ 191-93,
ECHR 2004-V; and Nagovitsyn and Nalgiyev v. Russia (dec.),
nos. 27451/09 and 60650/09, §§ 25-26 and 33-44,
23 September 2010).
- To
that effect, in the lead inadmissibility decision in the case of
Łatak v. Poland (cited above), the Court has expressly
held that the above mentioned exception applies to subsequent
applications concerning conditions of detention filed with the Court
which have not yet been declared admissible and that it is
appropriate to assess the adequacy of the remedy relied on by the
Government in the light of the present-day situation.
- In
so doing, the Court had regard to the fact that on the date of the
adoption of its decision there were 271 cases pending before it where
the applicants had raised complaints similar in substance, alleging a
violation of Article 3 in that at various times and for various
periods they had been adversely affected by the same structural
problem, having been detained in overcrowded, insanitary cells (ibid.
§ 84 and § 75 respectively).
- Having
found that a civil action under Article 24 taken in conjunction with
Article 448 of the Civil Code could be considered an “effective
remedy” for the purposes of Article 35 § 1 of the
Convention as from 17 March 2010 and having regard to the 3-year
limitation period for lodging such an action, the Court held that
essentially in all cases in which in June 2008 the alleged violation
had either been remedied by placing the applicant in
Convention-compliant conditions or had ended ipso facto because
the applicant had been released, the applicants concerned should
bring a civil action for the infringement of personal rights and
compensation (ibid. § 85 and § 76 respectively).
- In
the present case the applicant was deprived of liberty from
25 January 2006 until 11 December 2008, with a three-day
interruption, between 24 and 27 December 2007, when he was at liberty
on a short leave from prison (see paragraph 6 above).
- The
Court notes that the applicant’s complaint under Article 3 of
the Convention is two-fold. The applicant, who suffers from
insulin-dependent diabetes, prostate cancer and various cardiac
disorders, complained that the medical care provided to him within
the penitentiary system had been inadequate. In parallel, he
complained about overcrowding and the resultant poor living and
sanitary conditions of his detention, failing in particular to meet
the standard required for persons in his state of health.
- The
Court has already held, in a case which was brought by a mentally ill
detainee who, like the applicant in the instant case, complained of
inadequate medical care combined with prison overcrowding and
inadequate living conditions, that only a remedy able to address the
applicant’s complaint in its entirety and not merely its
selected aspects, could realistically redress his situation (see
Sławomir Musiał v. Poland, no. 28300/06,
§ 80, ECHR 2009-... (extracts)).
- In
any event, it must be noted that the applicant in the present case
filed numerous complaints with the penitentiary authorities in
connection with the conditions of his imprisonment and the medical
care provided. He also applied a number of times to be released from
prison on health grounds (see paragraphs 42 47 above). By taking
those actions the applicant had sufficiently drawn the attention of
the penitentiary authorities to the question of the compatibility of
his living conditions and medical care in prison with the state of
his health.
- Moreover,
the situation giving rise to the alleged violation of Article 3
ended on 11 December 2008 when the applicant was released from
Hrubieszów Prison. The Court considers that, since the
relevant civil action under Articles 24 and 448 of the Civil Code by
which, as the Government claimed, the applicant could seek
compensation for the infringement of his personal rights, including
his dignity and health, is barred by a three-year statute of
limitation, the applicant cannot presently be required to avail
himself of the civil remedy in question.
- In
addition, the Court reiterates that in its pilot judgments in the
cases of Orchowski and Norbert Sikorski (see Orchowski,
cited above, § 96 and Norbert Sikorski, cited above, §§
100-101) it has already held that the findings made by the
Constitutional Court and by this Court that overcrowding in Polish
detention facilities was of a structural nature, “undermined
the effectiveness of any domestic remedy available, making them
theoretical and illusory and incapable of providing redress in
respect of the applicant’s complaint” at the time when he
lodged the present application with the Court (ibid. § 111
and § 121 respectively). This conclusion equally applies to the
present case in so far as it concerns the applicant’s detention
which lasted from January 2006 until December 2008, especially given
that the Government and the penitentiary authorities explicitly
acknowledged the existence and the systemic nature of the problem of
overcrowding in Polish detention facilities at the relevant time
(ibid. § 146 and § 148 respectively).
- Accordingly,
the Court dismisses the Government’s preliminary objection as
to the non-exhaustion of domestic remedies.
- The
Court also considers that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further finds that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant complained that he had not received adequate medical
treatment and care during his detention. He also alleged that the
living and sanitary conditions in each detention facility in which he
had been held from 25 January 2006 until his release on 11
December 2008 had been inadequate for a healthy person and even more
so for someone like him, who suffered from diabetes and other serious
health ailments. In particular, the applicant complained that his
diabetes had not been monitored because he had had no access to
specialised medical care and his sugar level had hardly ever been
tested. Moreover, the applicant complained that he had not had any
privacy or adequate sanitary conditions when he wished to administer
his daily insulin injections. Lastly, the applicant alleged that
because of the overcrowding and poor sanitary conditions in his
detention facilities, his frequent transfers between different cells
or prisons and limitations on his contact with his wife he had been
exposed to situations which had added to his stress and the
deterioration of his health.
- The
Government argued that during his detention the applicant had not
suffered inhuman or degrading treatment which had attained the
minimum level of severity within the meaning of Article 3 of the
Convention.
- The
applicant’s health and life were not in danger as he received
regular specialised medical care and treatment. In particular,
throughout his detention the applicant was administered all necessary
drugs for diabetes and between August 2006 and February 2007 he had
seen a general practitioner, a neurologist and an ophthalmologist on
thirty-six occasions.
- Moreover,
the Government submitted that despite the overcrowding the prison
authorities, taking into account the applicant’s special needs,
had made efforts to secure to him the best possible conditions of
detention. As a result, the applicant had been detained in a slightly
smaller cell than prescribed by the domestic law only for a
transitional period. The Government stressed, however, that Zamość
Prison was a semi-open detention facility and the applicant had been
free to leave his cell to use the toilets and showers which were
located outside.
2. The Court’s assessment
- The
case raises the issue of the compatibility of the applicant’s
state of health with the conditions of his detention in Lublin Remand
Centre and Zamość, Hrubieszów and Rzeszów
Prisons and the adequacy of the medical care provided to him. The
Court must also answer the question whether the applicant’s
situation attained the required minimum level of severity to fall
within the ambit of Article 3 of the Convention.
- A summary of the general principles concerning the
examination of medical care and conditions of detention under Article
3 may be found in the Court’s recent judgments in Sławomir
Musiał v. Poland (no. 28300/06, §§ 85-88,
ECHR 2009-...(extracts)) and Orchowski v. Poland (cited
above, §§ 119-229).
- The
Court notes that the parties have disputed certain circumstances
pertaining to the general conditions of the applicant’s
detention at Lublin Remand Centre and Zamość Prison in the
period from 25 January 2006 until 6 February 2007. The
Government did not make any comments as regards the remaining period
of the applicant’s detention, namely from the date on which
notice of the application had been given to the parties until the
applicant’s release on 11 December 2008.
- The
Court considers, nevertheless, that it can make its assessment of the
case relying on the parties’ submissions, the official
statistics published by the Prison Service and on the recent findings
made by the Polish Constitutional Court and by this Court.
- The
Court has already found in its two pilot judgments in the cases of
Orchowski v. Poland and Norbert Sikorski v. Poland that,
for many years, namely from 2000 until at least mid-2008, the
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, cited above, §§
155-156).
- This
finding is confirmed in the instant case by the official statistics
of the Prison Service, which show that each of the applicant’s
detention facilities was at the relevant time overcrowded with the
occupancy rates ranging from 108 to 145% (see paragraphs 9,16, 23,
29, 31 and 34 above).
- As
to whether the applicant himself was affected by the problem of
overcrowding, the Court makes the following observations.
- The
Government did not contest the applicant’s submission that
during a two-week period in the course of his first detention in
Lublin Remand Centre, his cell in wing IV, measuring 32 m², had
been occupied by 28 prisoners. That resulted in a little over 1 m²
of floor space per person (see paragraphs 10 and 12 above).
- In
the subsequent three weeks’ period, the applicant was detained
with 9 other prisoners in a cell in wing III which measured 21
m², according to the Government, or 15 m², according to the
applicant. Even relying on the Government’s submissions, the
space per person in that cell was 2.1 m² (see paragraphs 10 and
12 above).
- The
Court notes that such severe overcrowding must have resulted in
further hardship for the applicant, such as reduced accessibility to
the toilet, poor air circulation and, most importantly, inconvenient
sleeping arrangements.
- In
connection with the latter element, the Court is struck by the fact
that in cell no. 22, nearly one third of the inmates had to sleep on
mattresses spread on the floor, impeding movement in the cell (see
paragraph 13 above). Irrespective of whether or not the applicant
himself had to sleep on the floor, this arrangement was clearly a
source of aggravated nuisance to him and the other inmates.
- In
view of the parties’ partly conflicting submissions and the
vagueness of the remainder of the Government’s comments
regarding the uncontested high overcrowding rates in Lublin Remand
Centre, the Court is not convinced that the applicant had access to
activities offering social interaction and stimulation outside his
cell. Conversely, the Court considers established that the applicant
had a one-hour period of outdoor exercise per day and one cold or hot
shower per week, possibly lasting a very short time and in a cramped
shower room (see paragraphs 11 and 13 above).
- As
regards Zamość Prison, where the applicant was held for six
months, the Court takes note of the Government and the applicant’s
own submissions that the ventilation, lighting, conditions of
hygiene, opportunities for social interaction and a break from prison
routine were good (see paragraphs 18 and 20 above). The Court
observes, nonetheless, that even in that facility, with the exception
of the hospital cell no. 15, the domestic minimum standard of cell
space per prisoner was either not met or barely met (see paragraph 17
above).
- The
Court will now examine the conditions of the applicant’s
subsequent detention. It must be noted that the Government did not
make any submissions in this connection.
- For
eleven months, from 6 February 2007 until 3 January 2008 and for an
additional ten and a half months, from 31 January until 11 December
2008, the applicant was detained in Hrubieszów Prison.
- In
the applicant’s submission, during his first and second
detention there the floor space of his cells was 2.1 m² per
person. Moreover, the toilet annex, equipment and furniture inside
the cells significantly reduced the actual living space in the cells
(see paragraphs 25 and 33 above).
- The
official statistics of the Prison Service reveal that the average
rate of overcrowding in Hrubieszów Prison ranged between 23
and 27%, during the applicant’s first detention and between 8
and 26%, during his second stay there (see paragraphs 23 and 34
above).
- The
applicant also complained of other hardships during his detention in
Hrubieszów Prison, namely the dreadful technical condition of
the prison, the cramped and noisy visiting-rooms, queues to the
pay-phone and the fact that he had to walk in the open to and from
the shower-room in all weather conditions (see paragraphs 26 and 27
above).
- The
Court observes that the nuisance resulting from overcrowding, which
undoubtedly existed in Hrubieszów Prison, and the prison’s
poor infrastructure were alleviated to some extent by the degree of
freedom of movement enjoyed by the applicant during his first
detention in the semi open wing. The applicant submitted that
during an unspecified period he had been allowed to remain outside
his cell for five hours a day. On the other hand, during certain
periods his cells were opened only for two hours in the afternoon or
locked for 23 hours a day (see paragraph 26 above). It also appears
that during his second detention in Hrubieszów, the applicant
did not enjoy any freedom of movement outside his cell and was
allowed to have only a one-hour period of outdoor exercise per day
(see paragraph 33 above).
- In
this regard the Court considers that the overcrowding, the prison’s
infrastructure and the degree of the applicant’s freedom of
movement in Hrubieszów Prison were substantially worse than
those established by the Court in the Valašinas case
(Valašinas v. Lithuania, no. 44558/98, ECHR 2001 VIII),
where no violation of Article 3 was found inter alia in view
of the fact that the
applicant was allocated at different times approximately 5, 3.2 and
2.7 m² of space in the dormitory and enjoyed considerable
freedom of movement from wake-up time at 6.30 a.m. to lock-in at
10.30 p.m. within the whole prison area, consisting of a separate
dormitory, a leisure room, a kitchen, sanitation areas and an open
courtyard (Valašinas, cited above, § 103).
- Lastly,
the Court notes that during his second detention in Lublin Remand
Centre overcrowding reached 11% and the applicant was confined to his
cell for 23 hours a day (see paragraphs 28 and 29 above). The
Government did not provide any information with respect to this
period of the applicant’s detention. Nor did they contest the
applicant’s submission that when he had been detained for 20
days in Rzeszów Prison he had slept on a mattress spread on
the floor. The official statistics reveal that overcrowding in
Rzeszów Prison was at the relevant time at 18% (see paragraphs
30 and 31 above).
- As
already noted in the Orchowski judgment, the Polish
Constitutional Court found in its judgment of 26 May 2008 that a
person could not be afforded humane treatment in a prison cell in
which individual living space was less than 3 m² (Article 41 §
4 of the Constitution) and that such overcrowding as had existed in
Polish prisons could in itself be qualified as inhuman and degrading
treatment (Article 40 of the Constitution) (Orchowski, cited
above, § 123).
The
Court, mindful of the principle of subsidiarity, found that the
above mentioned ruling of the Constitutional Court could
constitute a basic criterion in the Court’s assessment of
whether overcrowding in Polish detention facilities breached the
requirements of Article 3 of the Convention. In consequence, all
situations in which a detainee was deprived of a minimum of 3 m²
of personal space inside his or her cell, would be regarded as
creating a strong indication that Article 3 of the Convention had
been violated.
- The
second limb of the applicant’s Article 3 complaint relates to
the adequacy of his medical care in prison.
- The
Court notes that during his detention the applicant undeniably
suffered from insulin-dependent diabetes, prostate cancer and mild
cardiac disorders. The case materials, however, reveal that the
applicant’s ailments, although chronic, were at no stage life
threatening (see paragraph 5 above).
- Moreover,
it does not transpire from the documents submitted that the
applicant’s health deteriorated during his detention as a
result of either the conditions of his detention or any negligence on
the part of the prison medical services. Likewise, there is no
indication that his state of health deteriorated as a result of the
inadequacy of the available medical care.
- It
is clear that the applicant was provided, throughout the entire
period of his detention, with insulin, needles and syringes (see
paragraphs 13, 40 and 45 above). When it was considered
necessary, he was administered additional medicine for diabetes (see
paragraphs 37 and 44 above). A special diet for diabetics was made
available to the applicant in Lublin Remand Centre (see paragraphs
36, 43 and 44 above) and, as it appears, despite the applicant’s
submission to the contrary, also in Zamość and Hrubieszów
Prisons (see paragraphs 39, 45 and 46 above). The applicant’s
complaints about his poor health were followed-up by medical
examinations and consultations. At the beginning of his detention in
Lublin Remand Centre, he was examined by a doctor and underwent a
series of medical tests (see paragraph 36 above). During a period of
six months in the course of his detention in Zamość Prison
he consulted different doctors on 36 occasions (see paragraph 37
above). For an unspecified period he was assigned to cells in a
hospital and to a special-care wing in Zamość Prison (see
paragraph 17 above).
- It
is a matter of regret that the prison medical
services had failed to carry out routine tests
of the applicant’s sugar level and to provide him with a
glucometer.
- On
the other hand, the Court accepts that diabetes patients are expected
to administer their own insulin injections in their home environment
without the assistance of a third person. The fact that the applicant
had to administer his injections inside the cell where he lacked
privacy and adequate sanitary conditions must have given rise to
considerable anxiety on his part and must have placed him in a
position of inferiority vis-à-vis other prisoners.
- Assessing
the facts of the case as a whole, having regard in particular to the
cumulative effects of the overcrowding and inappropriate living
conditions provided to the applicant during his detention and the
fact that, because of his state of health, the applicant was in a
vulnerable position vis-à-vis other prisoners, 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 treatment.
- There
has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- With regard to the issue of overcrowding seen from
the standpoint of the applicant’s right to respect for his
physical and mental integrity or his right to privacy and the
protection of his private space, the Court considered it appropriate
to raise of its own motion the issue of Poland’s compliance
with the requirements of Article 8 of the Convention, which in its
relevant part reads as follows:
“1. Everyone has the right to respect
for his private ... life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court notes that this complaint is linked to the one examined above
and must 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. 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 250,000 Polish zlotys (PLN) in respect
of non-pecuniary damage. He did not allege any pecuniary damage.
- The
Government contested the applicant’s claim as exorbitant.
- Deciding
on an equitable basis, the Court awards the applicant 6,000 euros
(EUR) in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant claimed no costs and expenses, either for the Convention
proceedings or for any proceedings before the domestic courts or
authorities.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 8 of the Convention;
- 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 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór Björgvinsson
Registrar President²
