WOŁKOWICZ v. POLAND

FOURTH SECTION

DECISION

Application no. 34739/13
Mariusz WOŁKOWICZ
against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 March 2017 as a Committee composed of:

Nona Tsotsoria, President,
Krzysztof Wojtyczek,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above application lodged on 5 April 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mariusz Wołkowicz, is a Polish national who was born in 1977. He is currently residing in the United Kingdom. He was represented before the Court by Ms M. Rybnik, a lawyer practising in Białystok.

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

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background information

4. In 1997 the applicant suffered a spinal injury and became wheelchair-bound. As a result of physiotherapy, he progressed from a wheelchair to crutches.

5. The applicant was convicted and sentenced respectively to eight, nine and three and a half years’ imprisonment by the Białystok Regional Court in three separate sets of criminal proceedings (cases nos. III K 126/03, III K 206/05 and III K 105/06).

6. On 11 January 2010 the applicant was granted a three-month temporary release from prison, which was subsequently extended to 11 July 2010. However, he absconded to the United Kingdom.

7. In 2010 the applicant suffered another spinal injury and became paraplegic. He has been confined to a wheelchair since and also suffers from a urethral stricture.

8. On 26 May 2011 the Białystok Regional Court issued a European Arrest Warrant (EAW) in respect of the applicant. It noted that the Polish police were seeking the applicant as he had failed to return to prison after the expiry of his leave. The court received information that the applicant was in the United Kingdom, where he had been arrested on suspicion of a new offence. The EAW related to the twenty-four offences which the applicant had been convicted for, including failure to return to prison, assault, robbery and burglary. On 14 August 2012 the court issued a second EAW in relation to an alleged offence of fraud.

9. The applicant argued during his extradition proceedings that his surrender to Poland would subject him to a risk of ill-treatment. However, based on expert evidence, the British courts rejected the applicant’s arguments and ordered his surrender to Poland.

2. The applicant’s transfer to Poland on board a military aircraft

10. The Białystok Regional Court asked the British authorities to carry out a medical examination of the applicant before the flight. A medical certificate dated 13 March 2013 reads as follows:

“Dear Sir/Madam,

Re: Mariusz Wolkowicz D.O.B: 30/10/77 A7757AW

The above named individual is currently a prisoner at HMP Leads. He is a wheelchair user. As requested, I can confirm that he is fit for travel purposes utilising transport that will accommodate for his wheelchair and/or transfer to a fixed seat. Mr Wolkowicz is able to transfer himself from his wheelchair.”

11. On 14 March 2013 the British police escorted the applicant to the airport and handed him over to the Polish police.

12. According to the applicant, the Polish officers were not prepared for the transfer of a disabled person. The officers attempted to push his wheelchair into the aircraft, however, they did not perform the move properly and the applicant fell out of his wheelchair. He climbed back into it but was ordered out again and told to crawl into the back of the aircraft. When the applicant refused to follow this order, he was pulled out of the wheelchair by three police officers and was hit in the ribs by one of them. Subsequently, the police officers dragged the applicant to the back of the aircraft, holding his legs and arms. According to the applicant, he was in pain but the Polish officers refused to provide him with medical assistance.

13. The Government contested the applicant’s argument that the Polish officers had not been prepared for the transfer of a disabled person. The officers had known of the medical certificate of 13 March 2013 (see paragraph 10 above) and the applicant had been informed that for safety reasons he would have to move from a wheelchair to a regular seat during the flight. A special platform had been provided to allow the applicant to enter the plane. Owing to the platform’s position, it had been necessary to tilt the applicant backwards and for that reason he had been requested to hold on to the side of the wheelchair. The applicant had failed to do so, had bent forward and fallen out. He had been put back in the wheelchair after saying that he did not need any help.

14. The flight was eventually cancelled because of engine failure and the applicant was returned to the British police. He was later examined by a doctor who found no new abnormalities. The doctor certified that the applicant could be discharged to the police and follow established legal procedures.

15. On 15 March 2013 the applicant’s lawyer requested that the Białystok Regional Court annul the order for the applicant’s transfer to Poland, scheduled for that day. He argued that the aircraft to be used to transport the applicant to Poland was not properly equipped. The Regional Court rejected the request the same day. It found that the aircraft could securely transport people who were wheelchair-bound. On the basis of information received from a British doctor, the court also noted that the applicant would not be required to leave his wheelchair during the journey.

16. The applicant was again examined by a British doctor before the transfer on 15 March 2013 and the doctor found that he was fit for travel. The applicant was again taken to the airport and handed over to Polish police officers that day.

17. The applicant stated that the officers had dragged him to the rear of the aircraft. He had been forced to get out of his wheelchair and take a regular seat.

18. The Government submitted that the applicant had been requested to get out of his wheelchair and take a regular seat, in accordance with the recommendation of the British doctor who had stated that the applicant should travel either in his wheelchair or in a normal seat (see paragraph 10 above).

19. On arrival in Warsaw, the applicant was transported to the Warsaw‑Mokotów Remand Centre in a police van. The applicant alleged that he was ordered to crawl into the back of the van, which was not equipped for transporting disabled people. The police officers mocked the applicant while he was crawling. According to the Government, the applicant produced no proof for those statements.

20. One of the officers who escorted the applicant during his transfer from the United Kingdom to Poland prepared a note for his superior, dated 18 March 2013. He had been informed that the applicant was confined to a wheelchair and that he had done everything to prevent his transfer back to Poland. The officer had informed the applicant that he would have to move from his wheelchair to a regular seat during the flight. The applicant had objected. The officer stated in the note that he had been given a medical certificate indicating that the applicant could move from his wheelchair to a seat.

3. The Warsaw-Mokotów Remand Centre

21. The applicant was detained in the Warsaw-Mokotów Remand Centre between 15 March and 26 June 2013 and 15 July and 30 August 2013.

22. Upon his arrival, the doctors found that the applicant could be detained in the remand centre and did not need to be placed in hospital. After the order for his detention on remand was quashed, the applicant was transferred from an ordinary cell for remand prisoners to one adapted to the needs of the disabled.

23. The applicant was initially put in a cell of 7 square metres with one other detainee.

(a) The applicant’s version of facts

24. The applicant submitted that he could not use his wheelchair in the cell because of a lack of space or use the toilet independently. He had to be assisted by his cellmate all the time. The cellmate, who suffered from bad knees, pulled him onto a chair and then dragged the chair to the bed or toilet. The toilet was not adapted to the applicant’s needs as there were no handrails and the space was too cramped to use the wheelchair. The applicant could not participate in outdoor activities and spent all his time in the cell.

25. The applicant suffered from faecal and urinary incontinence and a doctor had recommended that he take a shower every day. According to the applicant, the remand centre administration did not follow that recommendation and he was sometimes unable to shower for several days. In addition, the shower was not adapted to his needs. He was placed on a stool and needed to be assisted by a fellow inmate. On two occasions the applicant fell off the stool and had to take a shower lying down. The applicant attached a statement to his application from his cellmate, Mr R.P., who assisted him in his daily activities.

26. According to the applicant, the Remand Centre did not provide him with adequate urological and neurosurgical care or physiotherapy. His condition deteriorated over time. In particular, the narrowing of his urethra made the use of a catheter virtually impossible. On 25 August 2013 the applicant was admitted to the emergency unit of the remand centre’s hospital wing because of urinary retention. According to the applicant, the doctor on duty was unable to insert the catheter and he was in severe pain. At 11.20 a.m. the applicant was successfully treated by the civilian emergency services.

27. On 26 August 2013 the applicant was seen by a urology specialist. He recommended that the issue of urethral stricture be resolved and that the applicant should insert a catheter while in a reclining position. According to the applicant, he had no screen around his bed and had no privacy during the placement of the catheter.

28. The applicant stated that the supply of catheters and antiseptic material by the remand centre was erratic. Sometimes he had to use the same catheter for several days. That situation led to recurring urinary tract infections. The supply of incontinence pads was also insufficient. At some point in time the director of the remand centre had agreed that the applicant’s family could supply him with incontinence pads.

29. The applicant alleged that on 17 March 2013 he attempted to commit suicide, but was stopped. He was seen by a psychiatrist but no places were available on the remand centre hospital’s psychiatric ward.

(b) The Government’s version of facts

30. According to the Government, the applicant informed doctors during his initial interview after admission to the remand centre on 16 March 2013 that he had been suffering from depression since injuring his spine. According to the applicant’s statement, he had tried to commit suicide two months before entering the remand centre. The applicant was therefore seen by a psychologist and a special suicide risk card was issued. The Government submitted that the applicant had not been allowed to have a screen in his cell because he had been classified as a suicide risk. However, the applicant did not attempt to commit suicide during his detention.

31. The Government submitted that between 21 March and 29 March and 20 May and 30 August 2013 the applicant had been placed in cells adapted to the needs of disabled people. There had been handrails and the applicant had been able to use his wheelchair as there had been enough space between the beds (135 centimetres). The applicant had also had unrestricted access to a telephone. It had only been when he had been detained in other cells (from 29 March until 20 May 2013) that he had had to be assisted by his cellmates. None of the cellmates had complained and had willingly helped him. All the medical procedures, however, had been performed by the medical staff.

32. The Government submitted that the prison authorities had followed a recommendation that the applicant have a daily shower and that there had been special handrails in the bathroom located in wing C/l, where the applicant had been detained between 18 and 29 March and 20 May and 30 August 2013. The bathroom in the other wing, where the applicant had been detained for a short period of time, had not been adapted to the needs of disabled people and it had been necessary for him to rely on the assistance of his cellmates.

33. The applicant had been able to participate in outdoor activities. The walking area for prisoners placed in wings C and B/l, where the applicant had been detained, was equipped with a platform for wheelchairs. The access points were 70 centimetres wide so people on wheelchairs could easily get about. The applicant had therefore had the possibility to participate in outdoor activities; however, he had refused to take advantage of it. He had never filed any complaint about that issue.

34. The Government submitted that the applicant had received all the antiseptic material and incontinence pads he required, according to the needs that had been notified to the authorities. Moreover, the remand centre’s administration had ordered special Nelaton catheters, used in urology wards, for the applicant. He had been informed that he needed to wait for them and had not filed any complaints. While awaiting the Nelaton catheters, the applicant had been offered temporary Foley catheters, but he had refused to use them. The applicant had been offered help at the urology ward of the Ministry of Internal Affairs Hospital in Warsaw if he had difficulties with self-catheterisation. The authorities had on numerous occasions offered to perform the above treatment at the prison hospital but the applicant had refused. The Government submitted a copy of the applicant’s prisoner medical record with relevant entries to confirm their assertion.

(c) The complaints made by the applicant in relation to his conditions of detention in the Warsaw-Mokotów Remand Centre

35. On 3 April 2013 the applicant’s lawyer requested that the remand centre administration provide him with information about the applicant’s health and his medical treatment. He also asked whether the applicant had been placed in a cell adapted for wheelchair use and whether the recommendation on daily showers was being followed. The lawyer noted that the applicant was a paraplegic and suffered from an ailment of his urinary tract which necessitated the daily insertion of a catheter. He was also incontinent.

36. On 22 April 2013 the deputy director of the Remand Centre informed the applicant’s lawyer about his client’s conditions of detention. From 29 March 2013 the applicant had been placed in cell no. 26, measuring 7.18 square metres, in wing B located on the ground floor. He had been provided with adequate medical care. At the time in question there had been no places available in a cell adapted to the needs of disabled prisoners. Owing to the planned renovation of a cell designated for the disabled, the director of the remand centre’s hospital had proposed that the applicant be placed in the hospital wing; however, he had refused to be moved until a place in the special cell had become available. On 20 May 2013, after the renovation, the applicant was immediately moved to a cell for the disabled, where he stayed until the end of his incarceration in that establishment on 30 August 2013. Furthermore, as he was incontinent and needed to insert catheters into himself, doctors had recommended he have a daily shower and that recommendation was being followed.

37. On 13 August 2013 the applicant complained to the Prison Division of the Warsaw Regional Court that the Remand Centre was not providing him with adequate living conditions and medical care. The complaint about his medical care was transmitted to the remand centre’s administration.

38. On 10 September 2013 the deputy director of the remand centre rejected the applicant’s complaint as unfounded. With regard to his request for spinal surgery, the applicant had undergone an MRI examination of his spine and had consulted several specialists (an orthopaedist, neurologist and a neurosurgeon). He had also had a consultation at the Stocer Rehabilitation Centre in Konstancin. The specialists had recommended physiotherapy rather than surgery in view of the advanced changes to the spine. Accordingly, the Remand Centre had made enquiries with the physiotherapy unit at Łódź Prison. The applicant had been offered a place at the unit for September-October 2013, which had subsequently been changed to November-December 2013.

39. With regard to his urological care and the problems related to his urethral stricture, the remand centre decision noted that the applicant had had frequent consultations with urologists. He had also been seen by other specialists. A cystoscopy had been ordered owing to the narrowing of his urinary tract. On 23 April 2013 he had had a consultation in the Ministry of Internal Affairs Hospital and had undergone a cystoscopy. The doctor performing the treatment had found that the applicant should continue to catheterise himself as long as he was able to continue such treatment. If, however, he wanted a cystotomy (cystotomia), the doctor recommended he wait for possible spinal surgery first. An assessment of the necessity for such a procedure was to be done in another consultation. When it had been found that the applicant did not require spinal surgery, the prison authorities had contacted the urology specialist who had performed the cystoscopy in order to establish whether the applicant needed urethroplasty (ureteroplastyka). The specialist had found that the patient did not require such surgery but needed a ureterostomy (uretrotomia). Despite the specialist’s opinion, the applicant had requested urethroplasty. A date had been set for the ureterostomy, subject to arrangements for an escort. Since the applicant had continued to request urethroplasty and had complained that the prison medical service was preventing him from having that procedure, he had been offered a meeting with a specialist to discuss his treatment. On the date scheduled for the procedure the applicant had been transferred to the Ministry of Internal Affairs Hospital in Warsaw; however, the ureterostomy could not be performed as he had a urinary tract infection.

40. On the same day at the hospital the applicant informed the urologist that he had been given a date in September 2013 for urethroplasty at Wloclawek Hospital. It was established during the conversation with the applicant that he was talking about an appointment for a consultation with a urologist that he had arranged privately, without informing the prison authorities. He was informed that any such treatment required prior agreement by the director of the remand centre. According to the applicant, his request for that treatment was refused.

41. The applicant’s lawyer complained to the Ombudsman about the conditions of her client’s detention in the Warsaw-Mokotów and Białystok Remand Centres. The Ombudsman requested that her complaint be examined by the relevant authorities. In a letter of 26 March 2014 the General Inspectorate of the Prison Service informed the Ombudsman that no shortcomings on the part of the Warsaw-Mokotów Remand Centre had been established. In particular, the applicant had been receiving daily showers, as recommended. There was no hindrance to his taking part in outdoor activities since a wheelchair ramp had been provided for access. The General Inspectorate had not identified any irregularities in respect of the supply of catheters and incontinence pads to the applicant. The prison service had made arrangements to obtain special Nelaton catheters for the applicant.

4. The Białystok Remand Centre

42. On 30 August 2013 the applicant was transferred to the Białystok Remand Centre where he remained until 21 December 2013. He was placed in a three-person cell in the infirmary (izba chorych).

(a) The applicant’s version of facts

43. The applicant stated that the cell had not been adapted to the needs of a disabled person. It was too cramped to use his wheelchair and in order to use the toilet he had to move to a chair and then to the toilet. The showers were not adapted to his needs as he could not enter the shower room with his wheelchair and had to move to a chair. There were no handrails in the shower. The applicant used a chair in the shower but frequently fell off it.

44. According to the applicant, it was impossible for him to participate in outdoor activities. His cell was on the first floor and access by wheelchair to the outdoor area was impossible. The applicant submitted that whenever he wanted to use a telephone or the prison shop he had to be carried there by his cellmates, whom he had to pay with coffee or cigarettes.

(b) The Government’s version of facts

45. The Government submitted that the cell had been adapted for wheelchair use as there was no raised threshold and there were handrails in the shower and the toilet. The entrance to the toilet and bathroom had been widened and divided off with a curtain.

46. The Government maintained that the applicant’s cell was on the ground floor and access to the outdoor area in the wheelchair was possible. There were two entrances to the exercise area, including a wide gate, through which the applicant could easily pass on a wheelchair. The applicant, however, had not used his right to one hour of outdoor activity.

47. According to the Government, the applicant, who was to some degree dependent on the assistance of his cellmates, was provided with such assistance under the supervision of a prison officer. A reply from the General Inspectorate of the Prison Service to the Ombudsman dated 26 March 2014 showed that there had been no corroboration for the applicant’s allegation that he had had to use cigarettes and coffee to pay fellow prisoners for their assistance.

48. On 2 September 2013 the applicant consulted a neurology specialist. The doctor recommended further urological consultations and rehabilitation. On 28 October 2013 the applicant was seen by a urologist at Białystok Hospital and recommended to undergo urethroplasty. On 19 November and 11 December 2013 the prison authorities requested that the hospital set a date for his admission to the urology ward in order to perform that procedure. On 21 December 2013 the applicant was transported by a specially adapted car for disabled people to the rehabilitation ward of the hospital at Łódź Prison no. 2.

49. At the Białystok Remand Centre the applicant received daily one to two incontinence pads and around three catheters and antiseptic material.

(c) The complaints made by the applicant in relation to his conditions of detention in the Białystok Remand Centre

50. On 31 October 2013 the applicant complained to the Białystok Regional Court about the quality of the care provided to him. The complaint was examined by the director of the Białystok Regional Inspectorate of Prison Services. By a letter dated 5 December 2013 he informed the applicant that his complaint had been rejected as unfounded.

51. On 31 December 2013 the applicant complained again about the conditions at the Białystok Remand Centre. On 4 March 2014 the director of the Regional Inspectorate of Prison Services informed him that the care provided to the applicant had been adequate. The applicant lodged a further complaint on 9 January 2014 and received a reply on 18 March 2014.

52. On 17 February 2014 the prison judge of Białystok Regional Court informed the Ombudsman’s Office that the conditions of the applicant’s detention and the medical care provided in the Białystok Remand Centre had been adequate.

53. In its letter of 26 March 2014 (see paragraph 41 above), the General Inspectorate of the Prison Service informed the Ombudsman that it had found no shortcomings in the applicant’s conditions of detention during his stay at the Białystok Remand Centre. The applicant’s cell in the infirmary had been adapted as much as possible to the needs of a disabled person. Handrails had been fitted in the shower and toilet and the way to them had been widened. The applicant had been able to participate in outdoor activities. When moving around the remand centre, he had been assisted by prisoners employed by the prison administration who had worked under the supervision of a prison guard. The applicant had had a sufficient supply of catheters and incontinence pads.

5. Łódź Prison no. 2

54. The applicant was placed in the rehabilitation ward (Oddział Rehabilitacji Narządu Ruchu) of Łódź Prison hospital between 21 December 2013 and 17 February 2014. His cells were adapted for wheelchair use, being equipped with orthopaedic beds and toilet areas with handrails. The width of the cell doors and the toilet areas were adapted for wheelchair use and the surface area allowed for free movement in a wheelchair. The showers were also adjusted to the needs of people with disabilities and the applicant used the shower every day. He regularly received incontinence pads and other hygienic material, according to his needs. He had privacy for carrying out his catheterisation.

55. The applicant did not need help from other people, refused the assistance of medical personnel and attended to all his hygiene needs by himself. There was also no need to leave his cell to buy things.

56. On 31 December 2013 the applicant’s lawyer requested information on the applicant’s conditions of detention and the standard of health care at Łódź Prison. On 17 January 2014 the prison director informed the lawyer that the conditions of the applicant’s detention were adequate.

57. The applicant was seen by a urology specialist on 8 and 29 January and on 15 February 2014. The specialist recommended surgery in Białystok Hospital, but the applicant refused.

6. Czerwony Bór Prison

58. The applicant was detained in Czerwony Bór Prison between 17 February 2013 and 13 March 2014. He was placed in a single cell on the ground floor. He had a shower, toilet and washbasin. There were handrails for the disabled and a special seat for disabled people in the shower. The cupboards had been lowered and there were no obstacles to using a wheelchair. The applicant had hot water in the mornings and evenings, in accordance with medical recommendations.

59. The applicant had the possibility to take part in outdoor activities. The exit from the wing was equipped with a special wheelchair lift and there was a ramp to get to the exercise area.

60. The applicant regularly received sanitary pads (at least three a day), catheters (at least four a day) and antiseptic material, according to his needs. The applicant had complete privacy when he was held in a single-occupant cell and had access to divided-off toilet and washing facilities when placed in a bigger cell.

61. The applicant did not have to leave his cell to use the telephone. He could use a special transporter operated by a prison official or be assisted by other people to get to the canteen or visitors room.

7. Przytuły Stare Prison

62. On 13 March 2014 the applicant was transferred to Przytuły Stare Prison. He was placed in a double cell adapted to his needs. There were handrails facilitating the use of the toilet and shower, a special seat in the shower and a food cupboard that had been placed at a lower height. He could move about the cell in his wheelchair and had access to hot water twice a day as recommended by the doctor.

63. The applicant used his right to a daily outdoor activity and his cell was located next to the exit leading to the walking area. There were no stairs or other obstacles preventing him from moving about in his wheelchair.

64. The applicant was seen by a urologist on 14 March 2014 and the doctor found no need for him to be admitted to hospital. Consultations also took place on 3 and 5 May 2014. As the applicant refused to undergo a cystectomy, urethroplasty was recommended, to be performed at Wloclawek Hospital. Doctors also recommended that the applicant continue doing the exercises he had learnt during his rehabilitation sessions at Łódź Prison hospital.

65. The applicant received an unlimited supply of incontinence pads and other necessary materials. The applicant could get to the canteen and visiting room in a wheelchair by using a special transporter. There were no obstacles to using the telephone as it was placed in an easily accessible area.

8. Leave from prison

66. On 8 July 2013 the applicant applied for temporary release (przerwa w odbywaniu kary) to seek medical care outside prison, but on 29 August 2013 the Warsaw Regional Court rejected his application. It found that the applicant’s condition was stable and that he could receive adequate care while serving his sentence. The applicant appealed.

67. On 4 November 2013 the Warsaw Court of Appeal quashed the decision and remitted the case. It found that the lower court had not taken all the relevant information concerning the applicant’s health into account.

68. After the case was transferred to the competent court, on 7 May 2014 the Ostrołęka Regional Court granted the applicant a three-month temporary leave. It relied on a medical report from Przytuły Stare Prison which concluded that the applicant could not receive the treatment he required in prison.

69. On 22 July 2014 the applicant requested another period of temporary release, but the application was rejected on 30 December 2014 by the Ostrołęka Regional Court. It noted that the main reason for the earlier leave had been so that the applicant could undergo urethroplasty at Włocławek Hospital, which had been set for 17 June 2014. However, the applicant had not undergone the planned procedure or any other form of treatment. The court further noted that the applicant had left Poland for the United Kingdom. The applicant’s attitude indicated that he had had no intention of returning to Poland voluntarily. The court noted that the applicant’s health had not deteriorated since his accident in 2010 and that he could wait for urethroplasty while in prison. The court concluded that the applicant’s attitude clearly indicated that he had only pretended to want to undergo the above-mentioned procedure and noted that the applicant had effectively attempted to avoid serving his prison sentence. The applicant appealed.

70. On 3 March 2015 the Białystok Court of Appeal dismissed his appeal. It found that the Regional Court had correctly established that the applicant had not continued the treatment for which his temporary leave had been granted. The applicant had not undergone the surgery which had been scheduled for 17 June 2014 in Wloclawek Hospital and had not arranged another date for any time in the following six months. He had left the country and remained abroad. Medical documentation sent from the United Kingdom indicated that the applicant had not undertaken any treatment there either. It also indicated that the applicant did not require urgent medical intervention that prevented him from serving his sentence. The Court of Appeal concluded that the applicant had not used the leave for the purposes for which it had been granted but had only pretended to do so.

B. Relevant domestic law

71. The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61, 20 January 2009; and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009.

COMPLAINTS

72. The applicant complained that he had been transferred to Poland on board a military aircraft that had not been adapted to the needs of a disabled person and that he had been subjected to ill-treatment by police officers during his transfer.

73. The applicant complained under Article 3 of the Convention that the Polish authorities had not provided him with adequate medical care in prison. He also alleged that the conditions in his cells in Warsaw‑Mokotów and Białystok Remand Centres had not been adapted to his physical disability.

THE LAW

A. The complaint under Article 3 concerning the applicant’s transfer to Poland and alleged ill-treatment during the journey

74. The applicant complained that he had been transferred to Poland on board an aircraft which had not been adapted to his special needs and that he had been ill-treated during his transfer. The complaint falls to be examined under Article 3 of the Convention which reads as follows:

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

1. The parties’ submissions

(a) The Government

75. The Government submitted that the medical opinion of 13 March 2013 had shown that the applicant could be transported by plane to Poland either in a wheelchair or in a regular passenger seat (see paragraph 10 above). Furthermore, the applicant had been able to get himself out of his wheelchair into a seat. There had therefore been no need to transport the applicant in an aircraft adapted to the needs of disabled people. The doctor had not found that travelling in a regular seat would have any negative consequences for the applicant’s health. For those reasons, there had been no violation of the Convention during the applicant’s transfer to Poland on 15 March 2013.

76. The Government also denied that the applicant had been subjected to inhuman or degrading treatment during his transfer to Poland on 14 and 15 March 2013. The officials responsible for the transfer had made every effort to guarantee his safety and comfort during the journey. A special platform for wheelchairs had been provided and the officers had asked the applicant to hold on to the side of the chair while he was being pulled up to the aircraft by an officer. As the applicant had failed to do as requested, he had fallen out of the chair. The Government contested the applicant’s assertion that the officers had made mistakes during the move. They also contested the applicant’s submission that he had been mistreated by the officers and that they had refused to provide him with medical assistance. The results of the medical examination carried out on 14 March 2013 had not confirmed the applicant’s complaints of alleged mistreatment during his transfer to Poland (see paragraph 14 above). On 15 March 2013 the applicant had again been examined by a doctor who had confirmed that there had been no reason not to go ahead with the transfer (see paragraph 16 above).

(b) The applicant

77. The applicant argued that there had been two different documents concerning the travel arrangements. The first was the decision of the Białystok Regional Court of 15 March 2013 which had stated, on the basis of information received from a British doctor, that the applicant would not be required to leave his wheelchair during the journey (see paragraph 15 above). The second document was the medical certificate dated 13 March 2013 indicating that the applicant could travel in a regular seat (see paragraph 10 above). The applicant submitted that the Białystok Regional Court’s decision of 15 March 2015 better reflected the doctor’s instructions which were, according to him, not to leave the wheelchair during his journey.

78. The applicant maintained that it had not been his fault that he had fallen out of the wheelchair but the officers’. In addition, he had been deliberately pulled out of his wheelchair by the officers.

2. The Court’s assessment

79. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015, with further references).

80. Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Bouyid, cited above, § 82).

81. With regard to the conditions of the applicant’s transfer, the Court notes that according to the medical certificate of 13 March 2013 the applicant was fit for travel on transport that accommodated his wheelchair or allowed him to be transferred to a fixed seat, or both. The certificate further stated that the applicant could get himself out of his wheelchair (see paragraph 10 above). Following his fall from the wheelchair on 14 March 2013, the applicant was twice examined by British doctors who confirmed that there was no reason to halt the transfer (see paragraphs 14 and 16 above).

82. The police officers escorting the applicant were aware of the medical certificate dated 13 March 2013. They accordingly requested that the applicant move from his wheelchair to a regular passenger seat. The applicant referred to the Białystok Regional Court’s decision of 15 March 2015 which said that, following unspecified information received from a British doctor, the applicant would not be required to leave his wheelchair during the journey (see paragraph 15 above). However, the Court considers that the most relevant document for the purposes of examining the applicant’s fitness for travel was the certificate of 13 March 2013 produced by the Government. The Court finds that the applicant’s transport on board the aircraft was in accordance with the recommendations indicated in that certificate and that the conditions of his transfer took the applicant’s special needs into account.

83. The applicant also complained that the police officers had ill-treated him during the transfer. The Court notes that the applicant failed to provide any prima facie evidence to substantiate that complaint.

84. It follows that the complaint under Article 3 concerning the conditions of the applicant’s transfer to Poland and the alleged ill-treatment during the journey is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. The complaint under Article 3 concerning the quality of medical care and the conditions of the applicant’s detention in view of his disability

85. The applicant complained under Article 3 of the Convention that he had not received adequate medical care in prison. The authorities had not provided the applicant with a sufficient supply of medical devices (catheters and antiseptic material) and had made it impossible for him to undergo the necessary treatment for his urethral stricture (urethroplasty). The applicant also alleged that the conditions in his cells in Warsaw‑Mokotów and Białystok Remand Centres had not been adapted to his physical disability. These complaints fall to be examined under Article 3 of the Convention.

1. The parties’ submissions

(a) The Government

86. The Government argued that the applicant had not exhausted domestic remedies as he had failed to bring a civil action for compensation under Articles 23 and 24, read in conjunction with Article 448, of the Civil Code whereby people deprived of their liberty who suffered a violation of their personal rights as a result of the conditions of their detention may bring a civil action against the State Treasury. The above-mentioned action constituted an effective remedy with regard to all aspects of conditions of detention, including medical care.

87. The Government further submitted that the applicant had received adequate care throughout the period of his detention. On admission to the remand centre the applicant had been seen by doctors who had found nothing to show that he could not be incarcerated. The applicant had regularly consulted medical specialist, both in prison and in civilian hospitals. He had been seen by urologists on twelve occasions.

88. The authorities had taken the initiative to provide the applicant with the best possible care. When he had notified them of problems with self-catheterisation and had requested urethroplasty, the Warsaw-Mokotów Remand Centre had contacted a urologist to determine whether the applicant needed such treatment (see paragraph 39 above). The specialist had decided that the applicant did not need such treatment, proposed a uretrotomy instead and a date for that procedure had been scheduled. The applicant had obstructed the authorities’ efforts by demanding urethroplasty, against medical advice (ibid.). He had also failed to inform the prison administration about a consultation that he had arranged privately without obtaining the remand centre’s permission (see paragraph 40 above). The Białystok Remand Centre had also taken steps to arrange for the applicant’s admission to a urology ward to perform the above surgery. However, he had refused to be diagnosed and treated at Białystok Hospital while he was being detained in Łódź Prison (see paragraph 57 above).

89. In the course of his detention in the Warsaw-Mokotów Remand Centre, the applicant had undergone an MRI examination of his spine. He had subsequently consulted an orthopaedist, a neurologist and a neurosurgeon and had attended a physiotherapy centre. The specialists had established that there was no need for surgery and had recommended physiotherapy. Accordingly, the prison authorities had arranged for the applicant’s admission to the physiotherapy unit of Łódź Prison (see paragraph 38 above).

90. The Government submitted that the applicant had received all the necessary medical equipment (catheters, incontinence pads and antiseptic material). The Warsaw-Mokotów Remand Centre had ordered special Nelaton catheters for the applicant (see paragraphs 34 and 41 above). He had also been offered help with self-catheterisation at the urology ward of the Ministry of Internal Affairs Hospital in Warsaw, but had refused (ibid.). The applicant had been provided with privacy during catheterisation, except for his stay in the Warsaw-Mokotów Remand Centre when he had informed the authorities about his alleged suicidal thoughts (see paragraph 30 above). He had also had access to daily showers where that had been recommended by the doctors.

91. With regard to the conditions of the applicant’s detention in view of his disability, the Government maintained that the conditions had been to a large extent adequate. The applicant had generally been placed in cells adapted to his special needs. He had only been placed for short periods of time in other cells at the Warsaw-Mokotów Remand Centre – between 15 and 21 March 2013 (six days) and between 29 March and 20 May 2013 (one month and three weeks; see paragraphs 31 and 36 above). However, during the second of those periods, the applicant had been offered a place in the hospital wing during the preparation of a special cell, but he had refused (see paragraph 36 above). During the remaining period of his detention at the Warsaw-Mokotów Remand Centre, the applicant had been placed in cells equipped with handrails for the disabled. He had been able to move about in his wheelchair in those cells. He had also had access to a bathroom and telephone, had been able to take part in outdoor activities and buy any articles he needed (see paragraphs 31-33 above).

92. The applicant had been placed in an infirmary at the Białystok Remand Centre. His cell had been adapted for wheelchair use as there had been no raised threshold and the showers and toilet had been equipped with handrails. The applicant had been able to participate in outdoor activities, use a telephone or buy the necessary articles. When going to the telephone or visiting area, the applicant had had the assistance of a cellmate under the supervision of a prison official (see paragraph 47 above).

93. In contrast to the case of D.G. v. Poland (no. 45705/07, § 144, 12 February 2013), where the applicant had been detained in a prison not adapted to his needs for a total of over eighteen months, the applicant in the present case had generally been placed in special cells, equipped with handrails in the toilets and showers allowing him to use them independently. The applicant had only been for a short period of time placed in cells where he had needed help, in certain situations, from cellmates acting under the supervision of prison officials.

94. The Government stated that they were convinced that the conditions of the applicant’s detention in the Warsaw-Mokotów and Białystok Remand Centres had generally been adequate. Regarding the short period when the applicant had been placed temporarily in other cells, the Government submitted that the conditions had not reached the threshold of severity required under Article 3 of the Convention, even if he had had some difficulties in moving about in his wheelchair and had had temporarily to use the help of other people for a short period of time.

95. In conclusion, the Government stated that it wished to attract the Court’s attention to the fact that many of the applicant’s complaints had not been confirmed in the facts of the case. Furthermore, the applicant’s real intentions were highly questionable. First of all, the applicant’s transfer from the United Kingdom to Poland had been necessary due to the fact that he had not returned to prison when his leave had ended. It had therefore been the applicant’s illegal activity that had put an additional burden on the domestic authorities of finding him and transporting him back to Poland. Nevertheless, his transport had been performed in accordance with medical recommendations and all the binding legal regulations. Furthermore, the Government emphasised that the applicant had complained about the conditions of his transport back to Poland, but had nevertheless been able to travel such a large distance by himself twice. Indeed, during his second long leave from prison (from 7 May 2014) the applicant had again gone to the United Kingdom instead of having scheduled medical treatment in Poland. The applicant had on many occasions refused the help offered by medical staff or improvements in the standard of his detention. The Government maintained that the applicant had constantly and intentionally avoided medical treatment in order to extend his leave from prison.

(b) The applicant

96. The applicant argued that a civil action in his case would have been ineffective and had had no reasonable chance of success.

97. The applicant maintained that in Warsaw‑Mokotów and Białystok Remand Centres he had not been able to move around the cells in his wheelchair and had had no independent access to the toilet. The showers had not been equipped to meet his needs. He had had to take a shower while seated on a chair, from which he had frequently fallen. He had had to rely on the assistance of his cellmates and to pay them with coffee and cigarettes.

98. The applicant submitted that urethritis had prevented him from undergoing urethroplasty in June 2014 after being granted leave from prison the month before. He had gone to the United Kingdom in order to receive medical treatment more promptly. His urethritis had been treated there and he had returned to Poland. On 11 July 2014 the applicant had received a referral for urethroplasty, which had initially been scheduled for the end of September 2014. The applicant had applied for another temporary leave from prison in order to continue medical treatment which was not possible in prison. He had then gone to the United Kingdom again.

99. The applicant argued that the Ostrołęka Regional Court had wrongly rejected his application for temporary leave. It had held, without seeking expert opinion, that his health had improved so much that he could continue serving his prison sentence. The applicant disagreed with the court that his stay in the United Kingdom and his treatment there had been wrongful because he should have been treated only in Poland. In his view, there was no ban on medical treatment in other countries of the European Union. The applicant contested the Government’s submission that he had not taken any steps to improve his health during his temporary leave from prison. He had sought medical help in Poland and then in the United Kingdom. It was not true that he had used his health problems as a way to remain at liberty. The infection of the urethra and frequent urinary retention were painful, with the latter also being life-threatening. It was hardly likely that he would expose himself to pain and the negative consequences for his health of a lack of medical treatment because of a wish to remain at liberty.

100. The applicant maintained that the medical care in prison had been inadequate. Medical consultations had been superficial and prisoners had been offered the cheapest solutions. The applicant’s health had deteriorated so much that it had been justifiable to grant him leave from prison. Such leave had been granted because it had been assumed that the further execution of his sentence would threaten his life and health. The applicant admitted that he had refused to be catheterised with Foley catheters instead of Nelaton catheters (see paragraph 34 above). However, that had been justified by the fact that Foley catheters were of inferior quality and could cause infection.

101. The applicant submitted that he had not agreed to be placed in a cell that was not adapted to his needs during his detention in the Warsaw-Mokotów Remand Centre. He had never been offered such a choice.

2. The Court’s assessment

102. The Court notes the Government’s submission that the applicant failed to bring a civil action for compensation for the alleged infringement of his personal rights in relation to the conditions of his detention, including inadequate medical care. The Court finds it unnecessary to rule on the Government’s preliminary objection in respect of exhaustion of domestic remedies since, in any event, it considers the applicant’s complaint to be manifestly ill‑founded for the following reasons.

103. The Court recalls that Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to transfer him to a civil hospital, even if he is suffering from an illness that is particularly difficult to treat (see, among others, Sławomir Musiał v. Poland, no. 28300/06, § 86, 20 January 2009). However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI; Mouisel v. France, no. 67263/01, § 40, ECHR 2002‑IX; Sławomir Musiał, cited above, 86; and Kaprykowski v. Poland, no. 23052/05, § 69, 3 February 2009). There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, cited above, §§ 40‑42; Sakkopoulos v. Greece, no. 61828/00, § 39, 15 January 2004; and Melnik v. Ukraine, no. 72286/01, § 94, 28 March 2006). The authorities must also ensure that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy that seeks, to the extent possible, to cure the detainee’s diseases or to avoid aggravating them, rather than to address them on a symptomatic basis (see, among many other authorities, Mikalauskas v. Malta, no. 4458/10, § 63, 23 July 2013). Where the authorities decide to place and maintain in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to his special needs resulting from his disability (see, Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004, and Zarzycki v. Poland, no. 15351/03, § 102, 12 March 2013).

104. The Court notes that the applicant suffered from a spinal injury that had made him paraplegic. He also suffered from a urethral stricture and was confined to a wheelchair (see paragraph 7 above).

105. The Court will next examine whether the applicant was provided with adequate medical care while in detention. With regard to his urological problems, the Court notes that the applicant was seen by urologists on twelve occasions. During his detention in the Warsaw-Mokotów Remand Centre the applicant also had a consultation with a urologist in a civilian hospital who recommended that he undergo a uretrotomy, while the applicant insisted on urethroplasty. In the end, an infection prevented any such surgery taking place. Subsequently, the applicant was seen by another urologist in Białystok Hospital who recommended urethroplasty. However, the applicant refused to be operated on in that hospital (see paragraph 57 above).

106. In so far as the applicant’s spine problems were concerned, the Court notes that the applicant underwent an MRI examination and was seen by an orthopaedist, a neurologist and a neurosurgeon. The specialists saw no need for spinal surgery and recommended physiotherapy. The authorities arranged for the applicant’s transfer to Łódź Prison hospital where he followed a programme of physiotherapy (see paragraphs 38 and 54 above).

107. With regard to the allegedly insufficient supply of medical devices (catheters, antiseptic material and incontinence pads), the Court, on the basis of the available evidence, finds it established that the applicant regularly received all the necessary medical items (see paragraphs 41 and 53 above). The applicant was also offered help in the prison hospital if he had problems with self-catheterisation. However, he refused that help (see paragraph 34 above).

108. The Court also observes that the applicant filed numerous complaints about the quality of his medical care to the prison authorities, the courts and the Ombudsman. However, his complaints were dismissed as unfounded (see paragraphs 38, 41, 50-53 and 56 above).

109. The Court also notes that the issue of whether the applicant should be kept in detention in view of his medical condition was kept under regular review. Throughout the period of his incarceration, medical practitioners consistently expressed the opinion that the applicant could be treated while in detention. Whenever necessary, the authorities arranged for consultations in civilian hospitals. On 7 May 2014 the applicant was granted leave from prison with a view to undergoing surgery scheduled for 17 June 2014 at Wloclawek Hospital (see paragraph 68 above). The Court notes that the applicant did not undergo the planned surgery and did not undertake any treatment. Instead, he left Poland and travelled to the United Kingdom. It appears that he did not undertake any treatment there either (see paragraph 70 above). The Court concurs with the findings of the domestic courts that the applicant did not use the leave for the purpose for which it had been granted, namely to receive treatment.

110. All the above-mentioned undertakings demonstrate that the authorities were attentive to and constantly monitored the applicant’s specific medical condition. In their view, the applicant received appropriate medical care in detention (see paragraphs 38, 41, 50-53 and 56 above) and the Court sees no reason to find otherwise. The authorities actively assisted the applicant to treat his condition. On the evidence before it, the Court does not find any indication that the medical care provided to the applicant was deficient or below the standard level of health care available to the population generally (see, a contrario, Kaprykowski, cited above, § 75, and Stettner v. Poland, no. 38510/06, § 53, 24 March 2015).

111. The applicant also complained that his cells in the Warsaw-Mokotów and Białystok Remand Centres were not adapted to his disability.

112. The Court notes that the applicant was placed in cells that were not adapted to the needs of disabled prisoners during his detention at the Warsaw-Mokotów Remand Centre between 15 and 21 March 2013 and 29 March and 20 May 2013 (see paragraphs 31 and 36 above). In respect of the second of those periods, when the special cell was being renovated, the applicant was offered a place in the hospital wing, but refused it, as stated in the Remand Centre deputy director’s reply to the applicant’s lawyer dated 22 April 2013 (see paragraph 36 above). Accordingly, that fact cannot be held against the authorities. For the remaining period of the applicant’s detention in the Warsaw-Mokotów Remand Centre, the applicant was held in cells equipped with handrails where he could move about in his wheelchair. He had unobstructed access to a bathroom and a telephone and could participate in outdoor activities (see paragraph 41 above). The recommendation concerning daily showers appears to have been followed (see paragraph 41 above).

113. At the Białystok Remand Centre the applicant was placed in an infirmary. His cell was suitable for the needs of a wheelchair-bound person. It had no raised threshold and the showers and toilet were equipped with handrails. The applicant was able to participate in outdoor activities. He had to be assisted by another prisoner supervised by a prison official when going to use the telephone or attend the visiting area (see paragraph 53 above). It appears that the applicant had to rely on help from his fellow prisoners only to a limited extent. It cannot be said therefore that the authorities failed in their obligations to the applicant and left him to rely entirely on the availability and goodwill of his fellow prisoners (see, mutatis mutandis, Zarzycki v. Poland, no. 15351/03, § 116, 12 March 2013). Furthermore, the Court notes that during the applicant’s subsequent detention in Łódź, Czerwony Bór and Przytuły Stare Prisons, his cells were adapted for special-needs prisoners (see paragraphs 54, 58 and 62 above).

114. The overall period of the applicant’s detention amounted to nearly one year and two months. The applicant was placed in cells adapted to his special needs for most of that time, except for a short period between 15 and 21 March 2013 (compare and contrast, D.G. v. Poland, cited above, § 144, where a disabled prisoner was placed in a standard prison which was not adapted for people in wheelchairs).

115. Having regard to the above, the Court finds that the authorities provided the applicant with adequate medical care and made sufficient efforts to reasonably accommodate the applicant’s special needs resulting from his disability.

116. It follows that the complaint under Article 3 concerning the quality of medical care and the conditions of the applicant’s detention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 March 2017.

Andrea TamiettiNona Tsotsoria
              Deputy RegistrarPresident

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