CASE OF OLSZEWSKI v. POLAND

FOURTH SECTION

CASE OF OLSZEWSKI v. POLAND

(Application no. 21880/03)

JUDGMENT

STRASBOURG

2 April 2013

FINAL

02/07/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Olszewski v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 12 March 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 21880/03) 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 Grzegorz Olszewski (“the applicant”). The first part of the application, concerning criminal proceedings against the applicant (Article 6), was lodged on 22 April 2003. The second part, concerning the conditions of the applicant’s detention and medical care in prison (Article 3), and three sets of civil proceedings (Article 6), was lodged on 31 May 2007.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

3. The applicant, who suffers from orthopaedic and other medical conditions, complained, in particular, that there had been a breach of Article 3 of the Convention owing to overcrowding and inadequate medical care during his detention in Płock Prison.

4. 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

5. The applicant was born in 1958 and lives in Gostynin.

A. Criminal proceedings against the applicant

6. On 22 April 2003 the applicant complained to the Court of procedural shortcomings and the unfavourable outcome of criminal proceedings.

7. On 28 July 1999 he had been acquitted of robbery by the Gostynin District Court (Sąd Rejonowy).

8. On 21 December 1999 the Płock Regional Court (Sąd Okręgowy) partly quashed the judgment and remitted the case to the lower court.

9. On 20 May 2002 the Gostynin District Court convicted the applicant of robbery and sentenced him to six years’ imprisonment.

10. On 2 December 2002 the Płock Regional Court upheld that judgment but reduced the applicant’s sentence to five years’ imprisonment. The judgment, together with the court’s reasoned opinion, was served on the applicant on 16 March 2003.

11. On 24 March 2003 the applicant’s legal-aid lawyer informed the Płock Regional Court that he had not found any grounds to lodge a cassation appeal in the applicant’s case. On 7 April 2003 the court conveyed that information to the applicant and its refusal to appoint another lawyer.

12. On 9 April 2004 the Ombudsman refused to lodge an extraordinary cassation appeal in the applicant’s case, because he had not found any grounds to do so.

13. On 15 March 2005 the applicant made an application to the Supreme Court for the proceedings to be reopened.

14. On 20 June 2005 the Gostynin District Court appointed a legal-aid lawyer to represent the applicant in the proceedings for the reopening of his case. On 8 August 2005 the lawyer prepared and lodged a proper application to reopen the proceedings. He argued that new facts and evidence had come to light since the applicant had been convicted, namely that two of the witnesses for the prosecution had admitted that they had given false statements.

15. On 16 September 2005 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to exempt the applicant from court fees.

16. On 30 September 2005 the Warsaw Court of Appeal refused to reopen the proceedings on the grounds that the witnesses in question had not been convicted of perjury in connection with the main proceedings against the applicant, and that the arguments raised by the applicant’s lawyer were therefore invalid.

17. No appeal was available under the applicable domestic law.

B. Conditions of the applicant’s detention

18. On 31 May 2007 the applicant complained to the Court of overcrowding and inadequate medical care and detention conditions in Płock Prison.

1. Period of the applicant’s detention

19. The applicant was detained in Płock Prison on three separate occasions: (1) from 30 December 1998 to 14 July 1999; (2) from 8 August 2003 until 4 June 2007; and (3) from 9 January until 6 February 2008. Between his first and second periods of detention the applicant was released into the community, and between his second and third periods of detention there, he was detained in the Gdańsk Remand Centre hospital. He was released into the community on 6 February 2008.

2. Conditions of the applicant’s detention from 8 August 2003 until 4 June 2007 and from 9 January until 6 February 2008

20. The applicant submitted that throughout his detention in Płock Prison he had been detained in overcrowded cells. He did not indicate the size of the cells in which he had been placed or the number of inmates he had had to share them with.

21. He did submit to the Court, however, copies of official memoranda revealing that every three to four months or so, the governor of Płock Prison would report to the relevant penitentiary judge along the following lines: “...owing to the overcrowding of [the prison’s] quarters, I have been forced to place prisoners in cells with less than 3 sq. m of living space for each person. This situation affects all cells ...”

22. The official statistics published by the Prison Service (Służba Więzienna) show that during the applicant’s second period of detention, 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 m² of cell space per prisoner provided for in Polish law) at Płock Prison ranged between 19% and 29% in the relevant part of 2003, 22% and 33% in 2004, 22% and 34% in 2005, 25% and 36% in 2006, 29% and 34.5% in the relevant part of 2007, and had been nearly 30% in January 2008 and over 33 % in February of the same year.

23. The Government acknowledged that during the relevant period, namely between 2003 and January 2008, the overall maximum capacity of Płock Prison had been exceeded by on average 32%.

24. The Government also submitted that between 8 August 2003 and 4 June 2007 the applicant had been detained in eight cells, measuring between 6 and 25 sq. m. They submitted that no records existed to show how many prisoners had shared those cells with the applicant. In consequence, it could not be established whether or not the applicant’s cells had been overcrowded.

25. As regards the final period of the applicant’s detention, the Government submitted that between 9 January and 6 February 2008, he had been placed in cell no. 304, which measured nearly 25 sq. m. For a total of nine days he had shared that cell with ten fellow inmates (2.2 sq. m per person). During the remaining nineteen days, he had shared it with eleven inmates (2 sq. m per person).

26. It appears that all cells were clean, well-lit and ventilated.

27. The Government stressed that the applicant had not been confined to his cells all day long. He had been allowed an hour of outdoor exercise per day, an hour in the prison recreation room (świetlica) every other day and two weekly visits to the library. Moreover, the applicant could, if he had wished to do so, have attended education and leisure courses or taken up employment offered by the prison.

28. The applicant, in principle, did not contest the above submissions. As regards his employment opportunities, however, he provided the Court with copies of several letters from the prison administration and the prison authorities, which stated that his job opportunities were objectively limited owing to his disability and the fact that the rate of unemployment among prisoners was very high (see paragraph 39 below).

29. Lastly, the applicant submitted that for two years, from 27 October 2004 until 4 June 2007, he had shared a cell (no. 304, wing III) with an inmate who suffered from schizophrenia and had a history of violence.

30. The Government argued that during his detention in Płock Prison the applicant had not shared his cell with any prisoner suffering from schizophrenia. They also pointed out that the applicant had never made any complaints to that effect to the prison authorities.

C. The applicant’s medical care in prison

31. In his application to the Court of 31 May 2007, the applicant also complained that he had been provided with inadequate medical care by the prison healthcare system during his detention in Płock Prison.

32. The applicant suffered from ulcers, varicose veins, atherosclerosis (hardening of the arteries), osteoarthritis, chronic bronchitis, asthma and a spinal hernia. His conditions were confirmed by numerous hospital records and medical certificates, issued by, among others, a public hospital in Gostyniń on 16 May 2003, Płock Prison medical centre (Zakład Opieki Zdrowotnej) on 30 January 2007, and the Gdańsk Remand Centre hospital on 31 July and 8 February 2007. He used an orthopaedic prosthesis and was in overall poor health.

33. The applicant submitted two hospital discharge reports issued shortly before his detention in 2003. The documents revealed that the applicant had been treated for spondylarthritis (an inflammatory spinal rheumatic disease) and chronic bronchitis and that when he was discharged he had been in a good state of health. The reports also recommended that the applicant should continue taking certain medication and should do physiotherapy exercises at home.

34. The applicant was certified on 14 February 2007 as having a minor disability (umiarkowany stopień niepełnosprawności) and on 31 May 2010 as having a significant disability (znaczny stopień niepełnosprawności).

35. The applicant asserted that he had not received adequate medical care during his imprisonment. In particular, he submitted that he had not been allowed to have specialist orthopaedic treatment and that on several occasions he had been refused painkillers.

36. The Government submitted that the applicant had been provided with regular and adequate care and treatment which had complied with recommended medical practice. He had been examined by general practitioners and various specialists on 259 occasions. More precisely, during his second and third periods of detention in Płock Prison, the applicant had been examined by specialists in internal medicine (147 times) and physiotherapy (twenty-two times), a pulmonologist (forty times), a dentist (eleven times), a radiologist (nine times), a psychiatrist (ten times), a neurologist (fourteen times), a dermatologist (three times), a laryngologist (twice), an ophthalmologist (three times) and by a vascular surgeon once.

37. From 4 June 2007 to 9 January 2008 the applicant was detained in Gdańsk Remand Centre. He was initially placed in a cell in the general wing because of building works in the hospital wing. On 8 August 2007 he was transferred to the hospital wing. The medical certificates issued in the hospital revealed that throughout the whole period in question, the applicant had received hospital treatment for his spinal arthritis and hernia, as well as for chronic bronchitis.

D. Action taken by the applicant concerning the conditions of his detention and medical care in prison

1. Complaints to the prison authorities

38. The applicant lodged numerous complaints with the penitentiary prison authorities concerning his allegedly inadequate medical care and other aspects of his detention but to no avail. The applicant did not lodge any complaints about overcrowding at that stage.

39. By letter of 2 June 2005, an officer authorised by the Director of the Łódź Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that a complaint he had lodged concerning his unemployment in Płock Prison had been rejected as ill‑founded. It was emphasised that the applicant’s job opportunities were objectively limited owing to the nature of his disability and the fact that the rate of unemployment among prisoners was very high.

40. By letters of 19 April, 7 May, 9 July and 8 October 2007 the Directors of the Łódź and Gdańsk Regional Inspectorates of the Prison Service informed the applicant that his complaints of inadequate medical treatment in prison had been rejected as ill-founded. It was established that the applicant had received sufficient medical treatment, having been examined by specialists and prescribed medication. It was also noted that in order to provide him with better medical care, on 4 June 2007 the applicant had been transferred to the hospital at Gdańsk Remand Centre.

41. By letter of 6 August 2007 the Director of the Łódź Regional Prison Service informed the applicant that, as he had claimed, the Płock Prison medical centre had failed to undertake all the necessary measures in order to supply him with prosthetics. No further information can be derived from this document. The applicant did not make any submissions regarding this aspect of his medical conditions and healthcare.

42. The applicant also sought temporary leave from prison on account of his poor health; however, on 27 August 2007 the Gdańsk Regional Court refused to grant the necessary licence.

43. On 14 November 2007 the Gdańsk Court of Appeal upheld that decision. The domestic courts considered that adequate medical care and treatment could be provided to the applicant by the prison system. Reference was made to the medical certificates of 12 July and 8 November 2007 which stated that there was no requirement for the applicant to undergo spinal surgery. The courts concluded that the applicant’s multiple and serious health conditions did not make it impossible for him to continue serving his prison sentence.

2. Civil proceedings against the State Treasury

44. In March 2007 the applicant brought a civil action against the State Treasury for compensation in the amount of 150,000 Polish zlotys (PLN) (approximately 36,000 euros (EUR)) for non-pecuniary damage, which he had allegedly suffered owing to overcrowding and inadequate conditions of detention and medical care in Płock Prison. He also asked to be exempted from paying court fees, on the basis that he was unemployed and had no financial resources.

45. On an unspecified date the Płock Regional Court ordered that the applicant pay court fees in the amount of PLN 7,500 (approximately EUR 2,000).

46. The court later decided to grant the applicant a partial exemption from the fees and ordered that he pay the remaining fee of PLN 1,500 (approximately EUR 420).

47. It would appear that the applicant lodged an interlocutory appeal seeking a full exemption from the court fees.

48. On 30 March 2007 the Płock Regional Court returned the applicant’s interlocutory appeal because it had not been lodged in compliance with the relevant procedural requirements namely the applicant had failed to give full details of his appeal and to submit the necessary supporting documents. On 5 July 2007 the same court rejected a further interlocutory appeal by the applicant because such a remedy had not been available to him under the applicable domestic law.

49. It appears that the applicant sent a further request for an exemption from court fees. On 13 July 2007 the Płock Regional Court invited him to submit a statement of his financial means in support of his request.

50. It appears that the full fee exemption was eventually granted.

51. On 25 June 2009 the Płock Regional Court obtained a medical expert report, which concluded that the applicant’s medical condition, more specifically the atherosclerosis of his legs, spinal hernia, osteoarthritis, chronic bronchitis and joint deformation, did not have any connection and did not directly result from his incarceration and the conditions of his detention in Płock Prison. It was also considered that the cause of the applicant’s multiple health disorders was unknown but they undoubtedly dated back to a time prior to his detention.

52. In addition, the expert made the following findings about the applicant’s health and treatment in Płock Prison: the applicant’s atherosclerosis dated back to 1995 or earlier; he was a smoker and had begun treatment for chronic bronchitis in 1997; he had developed spinal problems in 1998; and he received medication for stomach ulcers. The report also concluded that the medical treatment during his detention could be regarded as effective as his chronic illnesses were not getting any worse.

53. On 5 August 2009 the Płock Regional Court dismissed the applicant’s claim on its merits (no. IC 586/07). A copy of the judgment was served on the applicant on 12 December 2009.

54. On 20 January 2010 the applicant informed the Regional Court that he wished to appeal against the first-instance judgment and asked the court to provide him with its reasoned opinion for the decision.

55. On 8 February 2010 the Płock Regional Court rejected the applicant’s appeal as it was lodged out of time. On 8 April 2010 the same court rejected the applicant’s interlocutory appeal against that decision.

E. The applicant’s divorce proceedings

56. On 31 May 2007 the applicant also complained to the Court of procedural shortcomings and the unfavourable outcome of divorce proceedings to which he was party.

57. On 5 January 2006 the Płock Regional Court ruled in the applicant’s divorce proceedings.

58. On 24 March 2006 the Płock Regional Court dismissed an appeal by the applicant for non-compliance with procedural requirements, inter alia, his failure to specify the exact nature of his appeal, namely whether he wished to have the first-instance court’s judgment amended or quashed entirely, and his failure to pay the required court fee in the amount of PLN 50 (approximately EUR 13).

59. On 22 September 2006 the Warsaw Court of Appeal dismissed an interlocutory appeal by the applicant against that decision.

F. Social security proceedings concerning the degree of the applicant’s disability

60. On 31 May 2007 the applicant also complained to the Court of procedural shortcomings and the unfavourable outcome of social security proceedings he had brought.

61. The applicant failed to submit all the documents relating to the proceedings which were the subject of that part of the application. As a result, it is impossible for the Court to establish exactly what happened.

62. On an unspecified date the applicant instituted social security proceedings for an assessment of his level of disability and his pension.

63. It appears that on 19 June 2006 the Warsaw District Court decided to dismiss the applicant’s claim for non-compliance with procedural requirements, namely a failure by the applicant to pay a basic court fee (opłata podstawowa) in the amount of PLN 30 (approximately EUR 8). It appears that the applicant later lodged a number of interlocutory appeals, some of which were out of time. Eventually, the case was struck out on the grounds that the applicant had failed to comply with several procedural requirements, namely to pay the required basic court fee and lodge his appeals within the prescribed time-limit.

64. On 31 May 2010 the applicant was certified as being significantly disabled.

II. RELEVANT DOMESTIC LAW AND PRACTICE

65. A detailed description of the relevant domestic law and practice, concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate, is set out in the Court’s pilot judgments in Orchowski v. Poland (no. 17885/04, §§ 75-85, 22 October 2009) and Norbert Sikorski v. Poland (no. 17599/05, §§ 45‑88, 22 October 2009). More recent developments are described in the Court’s decision in the case of Łatak v. Poland ((dec.), no. 52070/08, §§ 25-54, 12 October 2010).

66. The provisions pertaining to medical care in detention facilities are set out in the Court’s judgment in the case of Sławomir Musiał v. Poland (no. 28300/06, §§ 48-61, 20 January 2009).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

67. The applicant complained under Article 3 of the Convention of overcrowding and inadequate conditions and medical care in Płock Prison. He claimed, in particular, that the conditions of his detention had failed to meet the standard required for persons in his state of health. The relevant provision reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

1. The Government

68. The Government in their submissions dated 9 May 2008, raised a preliminary objection similar to that relied on in the Orchowski pilot case (cited above, §§ 95-98).

69. In particular, they stressed that before lodging his Article 3 application with the Court on 31 May 2007, 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) used remedies provided for 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; and (3) pursued his civil action against Płock Prison (case no. IC 586/07). As regards the latter remedy, the Government argued that it had been effective at the time when the applicant had lodged his application with the Court. They cited a number of domestic cases in which various provisions of the Civil Code had been successfully relied on, resulting in prisoners being awarded compensation for non‑pecuniary damage suffered on account of an unlawful interference with their right to protect themselves from passive smoking, food poisoning, being beaten up by fellow inmates or being at an increased risk of contracting HIV. The Government also relied on four more recent domestic judgments by virtue of which former detainees had obtained compensation for an infringement of their personal rights on account of overcrowding and inadequate detention conditions.

70. 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.

2. The applicant

71. The applicant did not submit any comments.

3. The Court

72. The Court observes that the rule of exhaustion of domestic remedies set out in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain, not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).

73. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that a remedy was effective and available both in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact used or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (ibid., § 68).

In addition, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (ibid., § 69).

74. In the present case, the application concerning Article 3 of the Convention was lodged on 31 May 2007 while the applicant was still in detention. There were two elements to the applicant’s complaint, as it was made in the context of the applicant’s particular state of health. The applicant complained firstly of overcrowding and the poor living and sanitary conditions he had endured during his detention in Płock Prison as a result, and secondly, about the quality of medical care provided to him there, in view of his orthopaedic disability and other serious medical conditions.

75. The Government argued that before the applicant lodged his complaint under Article 3 he could have made use of a number of available procedural remedies. In particular, he could have pursued the civil claim which he had instituted earlier in 2007 alleging an infringement of his personal rights.

76. It must be noted at the outset that two pilot judgments concerning the conditions in Polish detention facilities were adopted on 13 October 2009 in the cases of Orchowski (cited above) and Norbert Sikorski (Norbert Sikorski v. Poland, no. 17599/05, 22 October 2009). The Court held in these judgments that overcrowding in Polish detention facilities had been of a structural nature from 2000 until at least mid-2008 which undermined the effectiveness of any domestic remedies available, making them theoretical and illusory and incapable of providing redress in respect of the applicants’ complaints (ibid. §§ 111 and 147). The Court, nevertheless, indicated that where the alleged violation no longer persisted and could not, therefore, be eliminated with retrospective effect, the only means of redress was pecuniary compensation. In such situations, regard being had to the principle of subsidiarity, it could not be excluded that applicants who complained of degrading treatment because of the conditions of their detention might be required to first avail themselves of the civil action relied on by the Government (ibid. § 109 ).

77. Subsequently, the Court held, in view of developments in the domestic law in the field of personal rights, 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. Having regard to the three-year limitation period for bringing 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 were required to bring a civil action for the infringement of their personal rights and for compensation (Łatak, cited above, § 85). The Court has expressly confirmed that in cases concerning conditions of detention filed with the Court which have not yet been declared admissible, it is appropriate to assess the adequacy of the remedy relied on by the Government in the light of the current situation, namely at the time of the Court’s examination of the case.

However, the Court has also affirmed that in the specific context of applications following the Orchowski and Sikorski pilot judgments and arising from the above-mentioned problem of overcrowding in Polish detention facilities, until at least 2008, an applicant who lodged his application with the Court at the time when a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could not be considered an “effective remedy” for the purpose of Article 35 of the Convention, that is prior to 17 March 2010 (see Łatak, cited above § 85), cannot in principle be required to avail himself of this remedy if, at the time when the Court was deciding his case, the civil action in question was time-barred (see Grzywaczewski v. Poland, no. 18364/06, § 66, 31 May 2012; Musiałek and Baczyński v. Poland, no. 32798/02, §§ 113-14, 26 July 2011; and Mirosław Zieliński v. Poland, no. 3390/05, § 46, 20 September 2011).

78. In addition, the Court has also ruled on the issue of the effectiveness and adequacy of civil remedies available under Polish law, before 17 March 2010, in cases in which the applicants were prisoners diagnosed with serious health disorders who, like the applicant in the instant case, complained that the inadequate medical care combined with prison overcrowding and poor living conditions had caused them pain and suffering during their detention (see Grzywaczewski, cited above, § 64 and Musiałek, cited above, §§ 111 and 112). It was held in those judgments, referring to the situation before 17 March 2010, 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 Grzywaczewski, cited above, §§ 63-69, and Musiałek, cited above, § 111-12; compare with Sławomir Musiał v. Poland, no. 28300/06, § 80, 20 January 2009).

79. As in those and other previous cases, the Court welcomes the developments in domestic case-law in the field of personal rights. It notes nonetheless, that the examples of the domestic case-law referred to by the Government do not demonstrate that the remedies available at the date of lodging of the application with the Court could have offered him reasonable prospects of securing more adequate conditions and medical care during his detention (see among others, Kaprykowski v. Poland, no. 23052/05, §§ 54 ‑ 57, 3 February 2009 and Kulikowski v. Poland (no. 2), no. 16831/07, § 52, 9 October 2012).

80. This finding is without prejudice to the Court’s ruling in future similar cases which are lodged with the Court at the time (1) when the alleged violation of the Convention no longer continues and cannot, therefore, be eliminated with retrospective effect and (2) when a civil action can be considered an “effective remedy” for the purpose of Article 35 of the Convention, that is after 17 March 2010 (see Łatak, cited above, § 85 and paragraph 77 above). In such situations, regard being had to the principle of subsidiarity, an applicant who complains of treatment contrary to Article 3 of the Convention because of inadequate medical or special care combined with prison overcrowding or poor living conditions should, in principle, avail himself of the civil remedy in question.

In view of the above considerations, taking into account the date on which the applicant in the present case lodged his application with the Court and the date of his release, the Court finds that it is of no importance that the applicant abandoned his claim for compensation for the allegedly inadequate living conditions and medical care provided to him in Płock Prison (contrast Pustelnik v. Poland (dec.), no. 37775/09, 23 October 2012).

81. In any event, it must be noted that by the time the applicant lodged his Article 3 application with the Court, he had already spent nearly four years in continuous detention in Płock Prison (see paragraph 19 above). Prior to lodging his application, he had filed a number of complaints with the prison authorities about the quality of his medical care whilst in detention and sought permission for temporary leave from the prison on account of his poor health (see paragraphs 38‑43 above). For many years the prison authorities considered that the applicant had received sufficient medical treatment in Płock Prison. In June 2007 they decided to keep him for six months at the Gdańsk Remand Centre hospital in order to treat his new medical conditions (see paragraph 37 above). The Court considers that by having taken those actions the applicant has sufficiently drawn to the attention of the relevant authorities the question of the compatibility of his conditions of detention and medical care in prison with his state of health (see among others, Grzywaczewski, cited above, § 65).

82. In sum, the Court does not consider that the Government have demonstrated the effectiveness of any domestic remedy, including the constitutional complaint and remedies under the Code of Execution of Criminal Sentences, which the applicant should have used in conjunction with his request for temporary leave from prison and his complaints to administration and prison authorities in order to obtain the requisite relief.

Accordingly, the Government’s objection on the ground of non‑exhaustion of domestic remedies must be rejected.

83. The Court also points out that it is not open to it to set aside the application of the six‑month rule solely because a respondent Government have not made a preliminary objection based on that rule. It reiterates that the six-month rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals both to individuals and to State authorities the period beyond which such supervision is no longer possible (see Marchowski v. Poland, no. 10273/02, § 48, 8 July 2008, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

84. In cases where there is a continuing situation, the six-month period runs from the cessation of the situation. The concept of a “continuing situation” refers to a state of affairs which results from continuous activities by or on the part of the State that render the applicant a victim. Normally, the six-month period runs from the final decision in the process of the exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 72-79, 10 January 2012; Kawiecki v. Poland (dec.), no. 15593/07, § 90, 23 October 2012; and Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004 with further references).

85. The present case concerns the applicant’s detention in Płock Prison, which took place on three identifiably separate occasions, namely from 30 December 1998 to 14 July 1999, when the applicant was released, and subsequently, from 8 August 2003 to 4 June 2007 and from 9 January to 6 February 2008. It follows that the applicant’s detention in the prison cannot be construed as a “continuing situation” (see Kawiecki, cited above, § 91). Given that the applicant lodged his Article 3 application with the Court on 31 May 2007, the complaint concerning the first period of detention (30 December 1998 to 14 July 1999) must be declared inadmissible for non‑compliance with the six-month rule set out in Article 35 § 1 of the Convention, and rejected in accordance with Article 35 § 4.

The Court also notes that the remainder of the complaint, in so far as it relates to the applicant’s second and third periods of detention in Płock Prison, 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

1. The parties’ submissions

(a) The applicant

86. The applicant submitted that the conditions of his detention in Płock Prisons from 8 August 2003 to 4 June 2007 and from 9 January to 6 February 2008 had fallen short of standards compatible with Article 3 of the Convention and, in particular, those required for persons in his state of health. He complained that he had been detained in overcrowded cells and had been allowed very limited out-of-cell time, that is to say, he had been permitted only an hour of outdoor exercise per day and only one shower per week. The applicant also complained that he had been afforded inadequate medical care during his detention. Lastly, the applicant claimed that he had been forced to share one of his cells with a schizophrenic inmate with a history of violence.

(b) The Government

87. The Government argued that during the applicant’s detention, he had not suffered inhuman or degrading treatment which 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 specialist medical care and treatment.

2. The Court’s assessment

88. The Court must answer the question whether, in view of the applicant’s health, his nearly four-year long period of detention in the conditions of Płock Prison (from 8 August 2003 to 4 June 2007 and from 9 January to 6 February 2008), attained the minimum level of severity to fall within the ambit of Article 3 of the Convention.

89. 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 and Orchowski (both cited above, §§ 85-88 and §§ 119-229 respectively).

90. The applicant submitted, without providing any further details, that during his detention in Płock Prison he had been held in overcrowded cells with only an hour of outdoor exercise per day and one shower per week (see paragraphs 20 and 27 above).

91. The Government acknowledged that from 2003 until January 2008, the overall capacity of Płock Prison had been exceeded on average by 32%. They did not, however, submit any statistics or information relating to the period from 2003 to 2007, from which it could have been established whether or not the applicant himself had been affected by the prison’s general overcrowding and, if so, to what extent (see paragraphs 24 above). As regards the applicant’s third period of detention from January to February 2008, it was confirmed that he had been detained in overcrowded cells with approximately 2 sq. m of cell space per person (see paragraph 25 above). The Government also submitted that the applicant’s cells had been clean, well-lit and ventilated and that a range of recreational activities had been available to him while he was in the prison. It was not disputed that the applicant was only permitted an hour of outdoor exercise per day and one shower per week.

92. The Court reiterates that allegations of ill‑treatment must be supported by appropriate evidence. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see Ananyev, cited above, § 121, with further references).

93. The Court is mindful of the objective difficulties experienced by the applicants in collecting evidence to substantiate their claims about the conditions of their detention. Owing to the restrictions imposed by the prison regime, detainees cannot realistically be expected to be able to furnish photographs of their cell or give precise measurements of its dimensions, temperature or luminosity. Nevertheless, an applicant must provide a reasonably detailed description of the conditions of his or her detention mentioning the specific elements, such as for instance the dates of his or her transfer between facilities, which would enable the Court to determine that the complaint is not manifestly ill-founded or inadmissible on any other grounds.

94. The Court has held on many occasions that cases concerning allegations of inadequate conditions of detention do not lend themselves to a rigorous application of the principle affirmanti incumbit probatio (he who alleges something must prove that allegation), because in such instances the respondent Government alone have access to information capable of corroborating or refuting those allegations. It follows that, after the Court has given notice of the applicant’s complaint to the Government, the burden is on the latter to collect and produce relevant documents. A failure on their part to submit convincing evidence on material conditions of detention may give rise to the drawing of inferences as to the well‑foundedness of the applicant’s allegations (ibid. § 123, with further references).

95. As to the present case, the official statistics of the Polish Prison Service reveal that at the time of the applicant’s detention, Płock Prison was struggling with an overcrowding problem and that the prison’s maximum capacity was exceeded by between 19% and 36% (see paragraph 22 above). This is further confirmed by the fact that on average, every three months between June 2003 and January 2008 the governor of Płock Prison sent official memoranda to the penitentiary judge, informing him about the overcrowding of all cells in the prison (see paragraph 21 above).

96. The Court has already found in the Orchowski and Norbert Sikorski judgments that, for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres revealed a structural problem consisting of “a practice that [was] incompatible with the Convention” (ibid., § 151 and §§ 155-156 respectively).

97. The Court therefore finds it established that during the entire period of the applicant’s detention, Płock Prison faced a serious overcrowding problem. The Court also considers it justified to draw a negative inference from the Government’s failure to provide the necessary information about the occupancy of the applicant’s cells in the period from 2003 to 2007 and to conclude that the applicant himself was affected by the general and systemic problem of overcrowding. Even though the actual living space available to the applicant in his cells during that period is unknown, the Court accepts that it was less than 3 sq. m per person. It is undisputed that in the last period of detention in Płock Prison (in January and February 2008) the applicant was placed in cells with an individual area of 2 sq. m and 2.2 sq. m (see paragraph 25 above).

98. In Orchowski the Court had regard to the judgment of 26 May 2008 in which the Constitutional Court found that a person could not be afforded humane treatment in a prison cell measuring less than 3 sq. m per person and that overcrowding of such a serious nature as had existed in Poland could in itself be qualified as inhuman and degrading treatment (ibid., §§ 85 and 123). The Court, mindful of the principle of subsidiarity, held that the above-mentioned ruling of the Constitutional Court could constitute a basic criterion in the Court’s assessment of whether the overcrowding in Polish detention facilities breached the requirements of Article 3 of the Convention. In consequence, the Court further considered that all situations in which a detainee was deprived of the minimum of 3 sq. m of living space inside his or her cell would be regarded as creating a strong indication that Article 3 of the Convention had been violated (ibid.).

99. As to the second limb of the applicant’s Article 3 complaint, concerning the quality of medical care provided in Płock Prison, the Court notes that during his detention the applicant suffered from ulcers, varicose veins, atherosclerosis, osteoarthritis, chronic bronchitis and a spinal hernia. Because of these multiple conditions he had been in poor health overall. The applicant was certified as disabled in 2007 and in 2010 he was reclassified as significantly disabled (see paragraphs 32 and 34 above).

100. The applicant did not submit any documents indicating that, during his detention, he had required any specialist medical care or particular treatment. The Court notes that he made a vague statement that he had required and been refused specialist orthopaedic treatment. However, in support of his claim, he only submitted two documents, the first showing that in August 2007 the Director of the Łódź Regional Prison Service considered that the Płock Prison medical centre had not undertaken all the necessary measures in order to supply the applicant with prosthetics (see paragraph 41 above) and the second being a copy of the domestic court’s decision of 14 November 2007 stating that in accordance with the medical certificates of 12 July and 8 November 2007 no spinal surgery was required by the applicant (see paragraph 43 above). It must be observed at the outset that the information and documents submitted by the applicant in relation to his orthopaedic problems and the alleged need to obtain prosthetics and undergo surgery, although duly noted, are insufficient to permit the Court to elaborate any further on this aspect of the complaint.

101. In contrast, the material in the Court’s possession shows that the applicant was frequently examined by general practitioners and various specialists (see paragraph 32 above). The Government specified that during his four-year long period of detention in Płock Prison, from 2003 to 2007 and in 2008, the applicant had been examined by specialists in internal medicine (147 times) and physiotherapy (twenty-two times), a pulmonologist (forty times), a dentist (eleven times), a radiologist (nine times), a psychiatrist (ten times), a neurologist (fourteen times), a dermatologist (three times), a laryngologist (twice), an ophthalmologist (three times) and by a vascular surgeon once.

102. In addition, in 2007 the authorities verified and confirmed that the applicant’s developing medical conditions could be effectively treated within the prison system and that the prison medical care which had so far been provided to him had been adequate. Following the applicant’s complaints to the prison authorities, it was established that he had received sufficient medical care, having been examined by medical specialists and prescribed the necessary medication (see paragraph 40 above). And in the course of the proceedings concerning the applicant’s request for temporary leave from prison, the domestic courts considered that adequate medical care and treatment could be provided to him within the prison system and that there were no medical reasons for the applicant to undergo spinal surgery. It was concluded that the applicant’s multiple and serious health conditions did not make it impossible for him to continue serving his prison sentence (see paragraph 43 above).

103. It must be noted that, in his complaint to the Court, the applicant did not appear to contest the extent and quality of the medical care the authorities had provided to him in Płock Prison. Instead, he complained that he had not been examined by an orthopaedic specialist and that on several occasions he had not been administered painkillers (see paragraphs 33 and 100 above).

104. The Court is not in a position to establish whether or not the development of the applicant’s condition could have been prevented or slowed down had he been released into the community and free to seek medical care from professionals of his choosing. It is very apparent in this case, however, that the authorities followed the doctors’ recommendations as to the appropriate medical treatment for the applicant and that his condition was regularly monitored by various specialists. In the absence of any medical certificates in support of the applicant’s allegation that the medical care provided to him in prison had been inadequate or insufficient, the Court will rely on the conclusions made by the medical expert appointed by the court in the course of the applicant’s civil proceedings for compensation. It follows that the Court fully accepts that the results of the applicant’s medical treatment during his detention in Płock Prison were considered good and that his medical conditions, which dated back to before his initial period of detention, did not have any connection with and did not directly result from his imprisonment and the conditions of his detention in the prison in question (see paragraphs 51 and 52 above).

105. Lastly, in the light of the contradictory submissions by the parties and the lack of any evidence on this point, the Court cannot establish whether or not the applicant shared his cell with an inmate who had a history of mental illness and violence (see paragraphs 29 and 30 above). In any event, however, having regard to all the foregoing findings, the Court is not required to examine this element of the present application.

106. Having regard to the circumstances of the case and their cumulative effect on the applicant, the Court considers that the distress and hardship endured by him exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 (compare with Orchowski, cited above, § 134 and 135).

107. There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

108. With regard to the issue of overcrowding vis-à-vis 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.”

109. The Court notes that this complaint is linked to the one examined above and must likewise be declared admissible.

110. 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. The Court would observe, nevertheless, that the Constitutional Court had found that the law setting the standards for conditions of detention in Poland was unconstitutional.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

111. The applicant also made a number of complaints under Article 6 § 1 of the Convention, which, in its relevant part reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him. everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

112. The applicant complained of a breach of his right of access to a court, in that the domestic courts had not granted him a full exemption from the court fees in his civil claim against the State Treasury, which was at that time pending before the first-instance court (see paragraphs 44-55 above).

113. The Court notes that since the time when it received the applicant’s complaint, a full exemption from the court fees appears to have been granted. The case was examined on the merits and the first-instance judgment was delivered on 5 August 2009. In the end, the applicant failed to appeal against it within the statutory time-limit. It cannot, therefore, be said that the applicant’s access to a court was by any means hindered.

114. In so far as the applicant made a similar complaint in relation to his divorce proceedings, the Court observes, leaving aside the question whether or not the fact that the applicant had not been exempted from the basic court fee constituted a breach of Article 6 § 1 of the Convention, that this complaint lacks any substance. The applicant was not allowed to pursue his appeal against the first-instance judgment because he had not complied with a number of procedural requirements, and not merely because he had failed to pay the basic court fee (see paragraph 58 above).

115. A similar complaint in relation to the social security proceedings the applicant brought for an assessment of his disability classification is also unsubstantiated since he failed to submit the necessary documents that would have allowed the Court to establish the exact course of the proceedings.

116. Lastly, the applicant complained in relation to the criminal proceedings against him that the domestic courts had erred in the assessment of its evidence and had refused to appoint a second legal-aid lawyer to prepare a cassation appeal in the case (see paragraphs 6‑17 above).

117. The Court notes, however, that the material submitted does not disclose any arbitrariness or procedural errors on the part of the relevant domestic courts. Throughout his criminal trial, the applicant was represented by a legal-aid lawyer and had a lawyer appointed for the purpose of lodging a cassation appeal. The domestic court merely refused to appoint another lawyer after the first one had found no grounds for such an appeal. The Court has already held in a similar context that Article 6 of the Convention does not confer on the State an obligation to ensure assistance by successive legal‑aid lawyers for the purposes of pursuing legal remedies which have already been found not to offer reasonable prospects of success (see Antonicelli v. Poland, no. 2815/05, § 43, 19 May 2009). Since in the present case there is no indication of arbitrariness or negligence on the first lawyer’s part in discharging his duties, the State can be said to have complied with its obligations to provide a framework for the provision of legal aid in connection with the cassation proceedings.

118. In the light of all the material in its possession, and in so far as all of the above mentioned matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

119. 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

120. The applicant sought compensation for pecuniary and non‑pecuniary damage as a result of his suffering. He did not, however, indicate any amounts in this respect, expressly asking the Court to determine the amount on an equitable basis.

121. The Government submitted that since the applicant had not itemised his claim for just satisfaction, they could not make any comments about it.

122. As to the pecuniary damage allegedly sustained, although not specified by the applicant, the Court reiterates that, in any event, there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention (see Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, §§ 16‑20, Series A no. 285‑C; Berktay v. Turkey, no. 22493/93, § 215, 1 March 2001; and Khudobin v. Russia, no. 59696/00, § 142, ECHR 2006‑XII).

123. The Court, having regard to its findings concerning the applicant’s complaint under Article 3 of the Convention, considers that no causal link has been established between the damage alleged and the violation it has found (see Sławomir Musiał, cited above, §§ 109‑110 and Kalashnikov v. Russia, no. 47095/99, § 139, ECHR 2002‑VI). It therefore dismisses the applicant’s claim for pecuniary damage.

124. On the other hand, the Court considers that the applicant suffered damage of a non-pecuniary nature as a result of his detention in conditions contrary to Article 3 of the Convention (see paragraphs 106 and 107 above), which is not sufficiently redressed by the finding of a violation of his rights under the Convention. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 5,000 under this head.

B. Costs and expenses

125. The applicant also sought the reimbursement of costs and expenses. He did not specify the amount of the claim and whether the costs in question had been incurred before the domestic courts or before the Court. No invoices were enclosed in respect of this claim.

126. The Government noted that the applicant had neither specified nor substantiated his claim for costs by submitting the necessary invoices.

127. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the fact that the applicant failed not only to provide the Court with the necessary documents but also to indicate a precise amount of the costs incurred, the Court rejects the claim for costs and expenses under all heads.

C. Default interest

128. 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 complaints under Articles 3 and 8 of the Convention concerning the quality of medical treatment and the applicant’s living conditions during his detention in Płock Prison, from 8 August 2003 to 4 June 2007 and from 9 January to 6 February 2008, admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention only in respect of the applicant’s living conditions in prison.

3. Holds that there is no need to examine separately the complaint 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 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 2 April 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence EarlyIneta Ziemele
RegistrarPresident

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