AS TO THE ADMISSIBILITY OF
Application No. 23029/93
by Piotr GRZESZCZUK
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 July 1993 by
Piotr GRZESZCZUK against Poland and registered on 1 December 1993 under
file No. 23029/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government
on 9 November 1994 and the observations in reply submitted by the
applicant on 9 January 1996;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant, a Polish citizen born in 1966, is a construction
worker who is detained in Myslowice prison.
Particular circumstances of the case
On 18 October 1991 the applicant was arrested on suspicion of
robbery and remanded in custody. At the same time he was serving a
sentence for a previous conviction. During detention he injured
himself by introducing a piece of metal into his lung whereupon his
health deteriorated. The court hearings were adjourned several times
as the applicant was unable to participate on grounds of ill-health.
On 15 January 1993 a medical panel of the Bytom prison decided that an
operation in a civil hospital specialised in chest surgery was
necessary.
On 15 February 1993 the Katowice Regional Court (S*d Wojewódzki)
released the applicant from detention on remand to enable him to
undergo a surgical intervention in a specialised civil hospital. On
19 February 1993 the Penitentiary Division at the Katowice Regional
Court granted him a temporary suspension of the execution of his
sentence until 31 May 1993 on the same grounds.
The applicant reported to the appropriate civil hospital and,
after certain medical examinations, the date for the operation was
fixed for 24 March 1993. On 18 March 1993 the applicant was again
arrested. On 19 March 1993 the Sucha Beskidzka District Prosecutor
remanded him in custody on suspicion of theft committed after his
release. He was allegedly beaten by the police upon his arrest. On
19 March 1993 the applicant was examined by two physicians who declared
that he was fit for detention.
The applicant then filed two appeals, in which he complained
about his detention. These appeals were dismissed on 7 and
22 April 1993 by the Sucha Beskidzka District Court (S*d Rejonowy).
On 13 April 1993 the Sucha Beskidzka District Prosecutor
prolonged detention on remand until 18 May 1993 and again dismissed the
applicant's request for release. Upon a further request of the
applicant, the Sucha Beskidzka District Prosecutor, on 29 April 1993,
refused to enter into an examination thereof. On 10 May 1993 the
Public Prosecutor prolonged detention on remand until 18 June 1993.
On 27 May 1993 the Sucha Beskidzka District Court upheld this decision.
On 17 May 1993 and 31 May 1993 the Sucha Beskidzka District Prosecutor
refused to consider requests by the applicant for his release.
The Sucha Beskidzka District Prosecutor instituted criminal
proceedings in respect of the alleged ill-treatment by the police upon
the applicant's request. The physicians, who had examined the
applicant on the day of his arrest and were heard as witnesses,
declared that the traces of beating noted on the applicant's body had
been several days old and that they could therefore not have originated
from the occurrences on the date of the arrest. On 22 June 1993 the
Sucha Beskidzka Prosecutor decided to discontinue the criminal
proceedings as it was established that no crime had been committed.
While in detention on remand in Wadowice prison the applicant
repeatedly reported pains in his lungs. Entries in his prison medical
records show that throughout his detention from 19 March 1993 to
18 September 1993 the applicant was examined by physicians thirty-
three times.
On 18 September 1993 the applicant suffered a haemorrhage. On
the same day he was admitted to the Kraków prison hospital, where a
physician stated that his condition did not necessitate immediate
treatment. A medical consultation of a surgeon from the Kraków Medical
Academy of 18 September 1993 confirmed that an immediate operation was
not necessary.
On 22 September 1993, during a hearing in the Sucha Beskidzka
District Court, the applicant lost consciousness. On the same day he
was admitted to the Kraków prison hospital where he remained until
28 September 1993. On 6 October 1993 the applicant complained to the
Central Prison Administration about insufficient medical care afforded
to him in prison, in particular about not having been operated on.
It transpires from the applicant's medical records that in the
period between 10 October 1993 and 7 December 1993 he was examined by
prison physicians on seven occasions.
On 7 December 1993 the applicant again injured himself by
swallowing a "cross" made of two needles.
On 6 January 1994, the applicant's condition having deteriorated,
he was transferred to the Bytom prison hospital and was placed at the
surgical ward. In view of an immediate threat to the applicant's life
caused by the perforation of his gullet by the "cross" and a beginning
inflammatory process in his chest, the operation was made on
28 January 1994 in Bytom prison hospital by surgeons who simultaneously
were employees of the Silesian Medical University. The foreign object
was removed from his gullet.
On 21 March 1994, while still in the hospital, the applicant
reported another self-injury by swallowing another "cross". He did not
participate in the court hearing scheduled on 22 March 1993.
In June 1994 the applicant reported another self-injury by
swallowing a "cross" and on 13 July 1994 he was again transferred to
prison hospital at Bytom prison. As a result, he did not attend a
court hearing on 12 July 1994 in criminal proceedings against him. On
12 August 1994 an X-ray of his chest has not shown any foreign objects
in his body. The applicant acknowledged that he had swallowed the
"cross" on a thread and then had removed it. He remained in the
hospital until 17 August 1994. Throughout his stay in the hospital he
refused consent for the operation.
Throughout his detention, the applicant complained to various
authorities about the medical care afforded to him in prison.
Relevant domestic law
Article 23 of the Rules of Execution of Prison Sentences reads:
< Translation >
"A prisoner shall receive free medical treatment as well as
free drugs (...) from prison medical services or, if need
be, from public medical services."
< Original >
"Skazanemu zapewnia si* bezplatn* opiek* lekarsk*
swiadczon* przez sluzb* zdrowia zakladów karnych, a w razie
potrzeby takze przez zaklady spoleczne sluzby zdrowia, oraz
bezplatne leki (...)."
Article 27 of the Rules of Execution of the Detention on Remand
reads:
< Translation >
"A detainee on remand shall receive free medical care as well as
free drugs (...) from the medical service of a detention centre
or, if need be, from public medical services."
< Original >
" Tymczasowo aresztowanym zapewnia si* bezplatn* opiek*
lekarsk* swiadczon* przez sluzb* zdrowia aresztów
sledczych, a w razie potrzeby takze przez zaklady spoleczne
sluzby zdrowia, oraz bezplatne zaopatrzenie w leki (...)."
According to Section 217 para. 1 of the Polish Code of Criminal
Procedure, a person may be held in detention on remand if there is a
risk of his absconding or collusion; if he is a recidivist or if he is
suspected of having committed a dangerous offence.
COMPLAINTS
The applicant complains under Article 8 about his detention on
remand, claiming that he is innocent, and that he was ill-treated by
the police on 19 March 1993.
He further complains about not receiving proper medical care in
prison, in particular about being refused a surgical intervention in
a specialised civil hospital as recommended by the medical panel in
January 1993. He submits that his health rapidly deteriorates. He
states that he refused to undergo an operation in the prison hospital
as he did not trust the physicians working here.
The applicant complains under Article 5 para. 4 of the Convention
that he was not brought before a judge in the proceedings in review of
his detention on remand which commenced on 19 March 1993.
The applicant finally complains under Article 8 of the Convention
that the operation carried out in January 1994 without his consent
amounted to an interference with his private life.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 July 1993 and registered on
1 December 1993.
On 29 June 1994 the Commission decided to communicate the
applicant's complaint concerning medical care in prison to the
respondent Government.
The Government's written observations were submitted on
9 November 1994, after an extension of the time-limit fixed for that
purpose. The applicant replied on 9 January 1996.
On 13 September 1995 the Commission granted the applicant legal
aid.
THE LAW
1. The applicant complains under Article 8 (Art. 8) about his
detention on remand, claiming that he is innocent, and that he was ill-
treated by the police on 19 March 1993. He further complains that the
medical care which he was given in prison was entirely insufficient in
view of the severity of his condition. The Commission has examined
this complaint under Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) of the Convention provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
a) The Government first submit that it does not clearly transpire
from the applicant's submissions which decision he considers to be a
final one in his case. However, it seems that his complaints relate
mostly to the fact that detention on remand was imposed on him in March
1993 despite the previous decisions of February 1993 to release him on
health grounds. The decision to remand the applicant in custody was
taken on 19 March 1993. The applicant's appeal against this decision
was dismissed by the District Court on 7 April 1993. On 13 April 1993
the District Prosecutor prolonged the applicant's detention and on
22 April 1993 the District Court upheld this decision. These dates
precede 1 May 1993, the date on which the Commission's competence to
examine individual applications against Poland became effective. The
Government conclude that the application should be declared
inadmissible as being incompatible ratione temporis with the
Convention.
The applicant submits that the Government disregard the fact that
certain decisions maintaining the applicant in custody were issued on
10 and 27 May 1993. Moreover, even assuming that the situation
complained of as regards the applicant's medical treatment in prison
had originated from decisions taken before 1 May 1993, it continued
after that date. The applicant concludes that the application cannot
be regarded as being incompatible ratione temporis with the Convention.
The Commission observes that the applicant's complaints relate
principally to the situation created by the decisions imposing and
maintaining his custody, which continued after 1 May 1993. It follows
that the Commission is competent ratione temporis to examine the
applicant's complaints insofar as they relate to the period after
1 May 1993.
b) The Government submit that the applicant failed to exhaust
available domestic remedies. It is true that he used relevant
remedies in respect of his detention on remand under Polish law as he
appealed against the decision to remand him in custody. He further
appealed to the Court against the Public Prosecutor's decisions to
prolong his custody. Under Polish law, and in particular Articles 218
and 219 of the Code of Criminal Procedure, the competent authorities
are under an obligation to examine health aspects of the case when
taking a decision as to detention on remand. However, it was open to
the applicant to submit a request to be released to the Public
Prosecutor. He did so on numerous occasions invoking, inter alia, his
bad health. Nevertheless, he failed to appeal against ensuing refusals
of the Public Prosecutor to a hierarchically superior Prosecutor.
The applicant submits that the remedy referred to by the
Government cannot be regarded as effective. It is a known practice
that higher Prosecutors practically always uphold the decisions of
lower Prosecutors. Moreover, this remedy can be used at any time as
often as a detainee wishes to do so. A requirement to use this remedy
would result in deferring ad infinitum the moment in which an
application to the Commission could be lodged. The applicant availed
himself of other remedies in relation to his detention and it should
therefore be considered that he complied with the requirements of
Article 26 (Art. 26) of the Convention.
The Commission recalls that the applicant must make normal use
of those domestic remedies which are likely to be effective and
sufficient. When a remedy has been attempted, use of another remedy
which has essentially the same objective is not required (No. 11471/85,
Dec. 19.1.89, D.R. 59, p. 67).
The Commission observes that the applicant lodged two appeals in
which he complained about his detention. Those appeals were dismissed
on 7 and 22 April 1993 by the Sucha Beskidzka District Court. On
27 May 1993 the same Court dismissed the applicant's appeal against the
Public Prosecutor's decision of 10 May 1993 prolonging his detention.
The Commission considers that the purpose of the remedies tried by the
applicant was to obtain a review of his detention on remand and to
obtain release on account of bad health. In the circumstances of the
case these remedies constitute adequate and effective remedies within
the meaning of Article 26 (Art. 26) of the Convention as their purpose
was to obtain release in view of the applicant's condition. They have
the same purpose as the remedy relied on by the Government. Thus, the
applicant was not required to avail himself additionally of the latter
remedy.
It follows that this complaint cannot be rejected for non-
exhaustion of domestic remedies.
c) As to the substance of the complaint, the Government first draw
the Commission's attention to the manipulative character of the
applicant's conduct. They submit that he inflicted injuries upon
himself in order to obtain certain decisions in respect of his
detention and acknowledged that this was the case. This, in the
Government's opinion, is shown by the fact that these injuries often
preceded the dates for which court hearings in various criminal
proceedings against the applicant had been fixed. In particular, it
should be inferred from the applicant's requests for release that he
tended to use the argument of his condition in order to obtain release.
The Government further submit that the applicant's health problems were
also to a large extent caused and aggravated by his persistent refusal
to cooperate with the medical services. This is shown by medical
records in which it was frequently stated that the applicant
categorically refused to undergo an operation in a prison hospital.
The Government emphasise that the authorities in no case refused him
medical care and did not lower the standard of health care offered to
him despite the fact that he contributed himself to his health
problems. On the contrary, his complaints were scrupulously followed
by relevant medical examinations and, if necessary, treatment.
The Government further submit that in the period preceding his
release in February 1993, the applicant refused his consent to undergo
the operation in the prison hospital. This refusal was certainly of
significance for the recommendation of the medical panel that the
applicant should be released and undergo the operation in a civil
hospital. It should be noted that after his release he did not follow
the recommended treatment. It is true that he maintains that he
reported to the hospital and that the date for the operation was set.
However, he does not submit any documents in this respect. Even
assuming that this was the case, it should be further noted that when
he was arrested he was in a state of intoxication, having apparently
consumed a considerable amount of alcohol. Thus, serious doubts arise
as to whether he had followed the routinely recommended preparations
for a surgical intervention by abandoning intake of alcohol.
The Government maintain that after the applicant's arrest in
March 1993, before taking the decision on his detention on remand, the
Public Prosecutor ordered the applicant's medical examination. This
was meant to ensure that his detention would be in accordance with the
provisions of the Code of Criminal Procedure which require the
competent authorities to consider whether detention is compatible with
the detainee's health. It should also be emphasised that the applicant
was further transferred for additional examinations to a specialised
ward of Kraków prison hospital. The opinion that the applicant's
detention was not incompatible with his health condition was later
confirmed by the consultation of a specialist of the Kraków Medical
University. The applicant was later transferred to the surgical ward
of Bytom prison hospital and remained there despite his further
refusal to undergo an operation at this ward. The Government conclude
that the applicant's detention did not cause a deterioration of his
health as he was under constant and specialised medical care. Despite
his frequent self-injuries and his persistent refusal to undergo a
surgical intervention, the relevant authorities reacted appropriately
to the applicant's health needs. The case-law of the Convention organs
does not contain as such a right to be detained in a particular prison
or under particular conditions of detention. The Government conclude
that this part of the application should be declared manifestly ill-
founded.
The applicant submits that the decision of 19 March 1993 on his
detention on remand ran counter to the previous decisions to release
him in view of his condition and thus amounted to inhuman treatment as
it made it impossible for him to undergo the operation. The subsequent
medical opinions to the effect that the detention was compatible with
his condition were in fact dictated by the circumstances and
disregarded the applicant's actual condition. Insofar as the
Government emphasise the applicant's alleged lack of compliance with
the medical recommendations after his release in February 1993, this
is irrelevant and does not discharge the public authorities of their
obligation to ensure proper medical care to persons in detention.
There are no elements which indicate that at the time of the
applicant's arrest in March 1993 and later the considerations relied
on in the decisions taken in February 1993 to release him ceased to
apply. The applicant's condition subsequently worsened in the course
of his detention. The fact that the operation was delayed
significantly deteriorated his health. Regard must be had to the fact
that the operation carried out in January 1994 resulted in a very
unsightly long scar which necessitates to be removed. The medical
reports relied on by the Government appear to be erroneous as shown by
the fact that the applicant had a haemorrhage on 18 September 1993 and
lost consciousness during the court hearing on 22 September 1993. They
are further contradicted by the unequivocal medical opinion of
15 January 1993.
The Commission recalls that according to the case-law of the
Convention organs, ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 (Art. 3) of the
Convention (Eur. Court HR. Ireland v. United Kingdom judgment of
18 January 1979, Series A No. 25, p. 65, para. 162). The Commission
further recalls that lack of medical treatment in prison may raise an
issue under Article 3 (Art. 3) of the Convention. The factors to be
considered are the seriousness of the applicant's condition, the
quality of the medical care he received in prison and whether the
applicant's state of health is compatible with detention. The State
has no obligation under Article 3 (Art. 3) of the Convention to release
a detainee or to transfer him to the civil hospital, even when he has
a disease which is particularly hard to treat (Chartier v. Italy, Comm.
Dec. 8.12.82, D.R. 33 p. 41). However, the Rapporteur recalls the
State's obligation to maintain a continuous review of the detention
arrangements employed with a view to ensuring the health and well-being
of all prisoners, having due regard to the ordinary and reasonable
requirements of imprisonment (Bonnechaux v. Switzerland, Comm. Report
5.12.79, D.R. 18 p. 100).
The Commission considers that it does not appear that the
severity of the applicant's condition was such as to be incompatible
with his detention. It transpires from the documents submitted that
the authorities did not refuse medical care to the applicant. It also
appears that the applicant often resorted to self-injuries and
subsequently tried to use the argument of his bad health in order to
obtain certain decisions of the prison or prosecuting authorities.
This does not discharge the domestic authorities of the responsibility
for ensuring health and well-being of persons in detention. However,
the applicant's numerous complaints about his bad health were followed
by frequent medical examinations and consultations, as shown by his
medical records. Thus, upon his arrest on 19 March 1993 he was examined
by two physicians, whose findings were later confirmed by a consultant
specialist from the Medical Academy. The treatment available in the
prison medical services, i.e. the operation in the prison hospital, was
offered to the applicant on numerous occasions and he repeatedly
refused to give his consent to the operation. Regard must be had to
the fact that the applicant's lack of cooperation has probably worsened
his condition. It further transpires from relevant documents that the
applicant in fact could be treated in the prison hospital, as shown in
particular by the fact that on 28 January 1994 he underwent the
operation in the hospital of Bytom prison and that this operation,
performed in view of the immediate danger to his life, was successful.
The Commission further considers that the applicant cannot legitimately
rely in support of his complaint under Article 3 (Art. 3) of the
Convention on the argument that the outcome of the operation was
unsatisfactory in that it left a large scar. The applicant could have
realised that delaying the operation would in all probability lead to
the worsening of his condition and diminish the possibilities of the
operation being successful. Thus, the Commission concludes that it has
not been established that the applicant's condition deteriorated as the
relevant authorities failed to afford him adequate medical care.
The Commission therefore considers that the treatment complained
of did not reach the threshold of severity required to fall within the
ambit of Article 3 (Art. 3) of the Convention. It follows that this
part of the application is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant complains about his alleged ill-
treatment upon his arrest on 18 March 1993, the Commission is not
required to decide whether or not the facts alleged by the applicant
in support of this complaint disclose any appearance of a violation of
the Convention as Article 26 (Art. 26) of the Convention provides that
the Commission "may only deal with a matter after all domestic remedies
have been exhausted". In the present case, the applicant requested the
institution of criminal Proceedings. On 22 June 1993 the Prosecutor
refused this request, finding no basis for criminal charges. The
applicant could have appealed against this refusal to a hierarchically
superior Prosecutor, but he failed to do so.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) of the Convention.
3. The applicant further complains that his detention on remand was
unjustified.
The Commission has examined this complaint under Article 5
para. 1 (Art. 5-1) of the Convention. The Commission observes that
both the Public Prosecutor and the Court to which the applicant
appealed against the decision to remand him in custody considered that
there were serious grounds for suspecting the applicant of having
committed a serious offence, i.e. aggravated theft, as well as a risk
of absconding and collusion. The Commission considers that there is
no indication of arbitrariness in their decisions. The Commission
also finds that the decisions complained of were lawful as they
complied with the applicable provisions of Article 217 of the Code of
Criminal Procedure.
It follows that this complaint must be declared manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant finally complains under Article 8 (Art. 8) of the
Convention about the operation which he underwent in January 1994
allegedly without his consent and under Article 5 para. 4 (Art. 5-4)
of the Convention that he was not brought before a judge in the
proceedings in review of the lawfulness of his detention which were
held before the Sucha Beskidzka District Court.
a) As regards the complaint under Article 5 para. 4 (Art. 5-4) of
the Convention, the Commission observes that it relates to the
proceedings which were held before the Sucha Beskidzka District Court
on 7 and 22 April 1993. These dates preceded 1 May 1993, i.e. the date
on which the Commission's competence to examine individual applications
against Poland became effective.
It follows that this complaint is outside the Commission's
competence ratione temporis and therefore incompatible with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b) In respect of the complaint under Article 5 para. 4 (Art. 5-4)
concerning the proceedings held before the Sucha Beskidzka District
Court on 27 May 1993 and the complaint under Article 8 (Art. 8) of the
Convention concerning the operation carried out on 28 January 1994, the
Commission observes that the relevant complaints were submitted to the
Commission in the applicant's reply to the Government's observations
on 9 January 1996. The Commission is therefore not required to decide
whether or not the facts alleged by the applicant disclose any
appearance of a violation of the Convention as the events complained
of had occurred more than six months before the date on which those
complaints were introduced.
It follows that this part of the application is inadmissible
within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy