AS TO THE ADMISSIBILITY OF
Application No. 26756/95
by Kazimierz NOWOJSKI
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 26 September 1993
by Kazimierz NOWOJSKI against Poland and registered on 20 March 1995
under file No. 26756/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Polish citizen born in 1960, is detained on
remand in Wroclaw prison.
I.
On 3 March 1993 the applicant was arrested and remanded in
custody on suspicion of robbery. In the course of initial
investigations the police allegedly instructed the victim to identify
the applicant as a culprit at a subsequent identification parade.
Thereafter, an officially assigned lawyer was appointed as the
applicant's defence counsel.
On 31 May 1993 the Public Prosecutor transmitted a bill of
indictment to the Wroclaw Regional Court (S*d Wojewódzki).
On 23 January and 16 February 1994 the applicant complained to
the Ombudsman (Rzecznik Praw Obywatelskich) about the manner in which
the investigations were conducted. He claimed that he was innocent and
that his defence rights were breached.
On 28 February 1994 the applicant complained to the Court that
the police had shown him to the victim and instructed him to identify
the applicant as a culprit at the identification parade.
On 12 August 1994 the applicant filed a civil action with the
Wroclaw Regional Court, claiming compensation for damage to his health
due to the alleged insufficient medical treatment in prison.
On 9 November 1994 the court proceedings in the criminal case
were commenced.
On 3 January 1995 the Wroclaw Regional Court dismissed the
applicant's challenge of the judges in the criminal case as there was
no indication of lack of impartiality on their part. The Court
considered that the fact that the civil proceedings were pending before
the same Court did not suffice to establish that the judges in the
criminal case lacked impartiality.
On 30 March 1995 the Wroclaw Regional Court refused to entertain
the applicant's repeated challenge of the judges as the alleged grounds
of the Court's lack of impartiality had been known to the applicant
even before the proceedings in the criminal case commenced.
The case is currently pending.
II.
On 30 August 1993 the applicant had an accident in prison. He
badly sprained his left knee.
On 30 September 1993 the Wroclaw Regional Court refused to
release the applicant, considering that there was sufficient evidence
in the case-file that he had committed the offence in question. His
health condition did not necessitate treatment in a civil hospital.
He could be treated by the prison medical services, as certified by the
medical panel of the Wroclaw prison hospital.
On 2 January 1995 the Wroclaw Regional Court requested that an
expert opinion be prepared in order to establish whether the
applicant's detention was compatible with his condition and whether the
applicant's health prevented him from attendance during the criminal
proceedings.
On 10 January 1995 the applicant was examined by the forensic
specialist of the Wroclaw Medical Academy.
On 14 January 1994 the applicant complained to the Wroclaw
Regional Court about his continued detention, despite his bad health.
On 23 January 1995 a medical expert opinion by a forensic
specialist was submitted to the Wroclaw Regional Court for the purpose
of deciding whether the applicant's detention was compatible with his
health. It stated that the applicant needed regular psychiatric
counselling. No need of orthopaedic treatment was established. The
applicant suffered from partial atrophy of the thigh muscle, due to the
past trauma and to his refusal to cooperate with the physicians.
On 24 February 1995 the applicant complained to the prison
governor about insufficient medical care. He alleged that the medical
opinion of 23 January 1995 was inaccurate.
In a letter of 27 March 1995 the prison governor replied that the
results of an internal enquiry had not confirmed the applicant's
allegations. The medical panel at the prison hospital had clearly
stated that the nature and severity of the applicant's affliction
allowed for treatment in the prison hospital. He could also undergo
an operation if he consented to this. The detention did not entail any
danger to his life.
On 11 April 1995 the medical expert opinion was prepared for the
purposes of the civil proceedings. It stated that the applicant
complained of pain in his left knee and that his movements were
limited. After his accident on 30 August 1993 a plaster cast was put
on his leg. On 1 September 1993 he took the cast off and refused to
be examined by a surgeon. He was subsequently examined on 6, 22, 24
and 27 September 1993. It was established that he suffered from an
infection of the knee-joint. He refused to undergo treatment in the
prison hospital. The medical examinations took place on 4 and 26
October 1993. On the latter date a plaster cast was again put on the
leg. The applicant took off the plaster cast on 9 November 1993. He
was examined on 9 and 12 November 1993, but refused to be examined by
an orthopaedist. In January and February 1994 the infection of the
joint had subsided. As a result of the infection, a deterioration of
the meniscus was diagnosed in February 1994. In May 1994 the applicant
was examined in the Central Prison Hospital in Warsaw and
rehabilitation was recommended. The applicant refused to cooperate as
he wished to have an operation instead. In June 1994 an abscess near
the joint was diagnosed, probably as a result of a self-inflicted
infection. The onset of atrophy of the muscles of the left thigh was
also diagnosed. The applicant was examined several times in July,
August and September 1994. Rehabilitation was strongly recommended by
a specialist in orthopaedic surgery. Apparently the applicant refused
to cooperate. The expert concluded that the trauma had not been
treated in the manner which is normal for similar cases, i.e by
evacuation of the fluid accumulated within the joint immediately after
his accident, as the applicant had refused to give his consent. The
applicant's attitude, and in particular his refusal to cooperate with
the physicians, which manifested itself inter alia in the fact that on
numerous occasions he had refused to take medication and had twice
taken the plaster cast off, probably stemmed from his wish to be
treated in a civil hospital. The operation of the deteriorated
meniscus could easily have been carried out by the prison medical
services, but only on condition that the applicant gave his consent.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the criminal proceedings against him are unfair in that the police
instructed the victim to identify him as a culprit before the
identification parade; that during the investigation the Public
Prosecutor did not allow him to question a witness to the robbery; that
he was not arrested until four months after the facts, having been
questioned by the police twice within this period, which indicates that
he is innocent. He further submits that on the critical day he had his
hand in a plaster cast and was thus unable to commit the alleged crime.
He complains of the assessment of the evidence made by the Public
Prosecutor and the court.
The applicant further complains that he is not receiving proper
medical care in prison. He submits that his health is rapidly
deteriorating.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention of the unfairness of the criminal proceedings against him.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal..."
The Commission recalls that it can only assess the fairness of
criminal proceedings when it is able to consider them in their entirety
(see No. 16156/90, Dec. 7.6.90, unpublished). Until the proceedings
have terminated, it is not possible to determine whether Article 6
(Art. 6) has been complied with. In the present case the criminal
proceedings are still pending. This complaint is therefore premature.
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. The applicant further complains that he is not receiving proper
medical care in prison. He submits that his health is rapidly
deteriorating.
The Commission has examined this complaint under Article 3
(Art. 3) of the Convention, which reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that, according to the case-law of the
Convention organs, 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 receives 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 difficult to treat (Chartier v. Italy,
Comm. Report. 8.12.82, D.R. 33 p. 41). The State is under an
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 respect for the ordinary and reasonable
requirements of imprisonment (Bonnechaux v. Switzerland, Comm. Report
5.12.79, D.R. 18 p. 100).
In the present case, the Commission considers that the
applicant's condition does not appear to be so severe as to necessitate
specialised treatment in any particular civil hospital. The
applicant's condition was subject to scrupulous monitoring by the
prison medical services, as he underwent many examinations by general
practitioners and also by specialists in orthopaedic surgery. The
treatment available in prison medical services was offered to the
applicant on numerous occasions and he repeatedly refused to give his
consent. The medical services took him to the Central Prison Hospital
in Warsaw for further examination. There is nothing in the medical
certificates submitted by the applicant to support his submisson that
the only way in which he could be cured is by an operation in a civil
hospital. Moreover, the applicant's condition has apparently
deteriorated as he repeatedly refused to undergo the rehabilitation
treatment offered to him and consistently disregarded various medical
recommendations. Furthermore, regard must be had to the fact that it
appears from the circumstances of the case, as certified by the medical
expert opinion, that the applicant has probably himself acted in such
a way as to cause inflammation of his sprained knee.
The Commission concludes that the treatment complained of does
not attain the threshold of inhuman or degrading treatment within the
meaning of Article 3 (Art. 3) of the Convention as established in the
case-law of the European Court of Human Rights (cf. Eur. Court H.R.,
Ireland v. United Kingdom judgment of 18 January 1979, Series A, no.
25, p. 56, para. 162). It follows that this complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy