(Application no. 23052/05)
3 February 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kaprykowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 13 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's medical history prior to 5 August 2003
B. The applicant's detention and medical assistance provided to him prior to 5 August 2003
C. The applicant's detention after 5 August 2003
D. Medical assistance provided to the applicant after 5 August 2003
In addition, from 24 June until 12 July 2005 he was placed under medical observation in the Poznań Remand Centre hospital. At the hospital new generic drugs were administered to the applicant in place of Gabitril, which was an expensive medicine.
On his release from the hospital, the doctors considered the applicant to be in a good overall shape and self-sufficient. It was recommended that he be assigned a bottom bunk bed, be put on a diet and continue the pharmacological treatment prescribed, comprising Gabitril. It was also stressed that the applicant be placed under 24-hour medical supervision.
The Government did not submit any medical documents or information regarding the applicant's health condition or his treatment.
E. Medical report drawn up after 5 August 2003
F. The applicant's complaints to the prison authorities
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Medical care in detention facilities
“1. Everyone shall have a right to have his health protected.
2. Equal access to health care services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their material situation...”
“1. A sentenced person shall receive medical care, medicines and sanitary articles free of charge.
4. Medical care is provided, above all, by health care establishments for persons serving a prison sentence.
5. Health care establishments outside of the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular
1) to provide immediate medical care because of a danger to the life or health of a sentenced person;
2) to carry out specialist medical examinations, treatment or rehabilitation of sentenced person;
3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence...”
Under paragraph 1.1 of the October 2003 Ordinance, health care establishments for persons deprived of liberty provide, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services to persons deprived of liberty.
Paragraph 1 of this Ordinance further provides:
“2. In a justified case, if the medical services as enumerated in sub paragraph 1 cannot be provided to persons deprived of liberty by the health care establishments for persons deprived of liberty, in particular due to the lack of specialised medical equipment, such medical services may be provided by public health care establishments.
3. In a case as described in sub paragraph 2, the head of a health care establishment for persons deprived of liberty shall decide whether or not such medical services [provided by the public healthcare establishments] are necessary...”
Paragraph 7 of the October 2003 Ordinance states:
“1. The decision to place a person deprived of liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse...
2. The decision whether or not it is necessary to place a person deprived of liberty in a ... prison hospital shall be taken by the prison hospital's director or by a delegated prison doctor.
6. In case of emergency the decision whether or not it is necessary to transfer a person deprived of liberty to a hospital may be taken by a doctor other than a prison doctor...”
B. Judicial review and complaints to administrative authorities
Under Article 6 of the Code of Execution of Criminal Sentences (“the Code”) a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence.
Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a Governor of a prison or a remand centre, a Regional Director or the Director General of the Prison Service or a court probation officer. Applications related to execution of prison sentences are examined by a competent penitentiary court.
The remainder of Article 7 of the Code reads as follows:
“3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the publication or the service of the decision; decision [in question] shall be published or served with a reasoned opinion and instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority who had issued the contested decision. If [that] authority does not consider the appeal favourably, it shall transfer it together with the case file and without undue delay to the competent court.
4. The Court competent for examining the appeal can cease the enforcement of the contested decision...
5. Having examined the appeal the court shall rule on upholding the contested decision, [its] quashing or changing; the court's decision shall not be a subject of an interlocutory appeal.”
In addition, under Article 33 of the Code of the Execution of Criminal Sentences (“the Code”) a penitentiary judge is entitled to make unrestricted visits to detention facilities, to be acquainted with documents and provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of liberty without the presence of third persons and to examine their applications and complaints.
Article 34 of the Code in its relevant part reads as follows:
“1. A penitentiary Judge shall quash an unlawful decision [issued by, inter alia, the Governor of a prison or remand centre, the Regional Director or the Director General of the Prison Service] concerning a person deprived of liberty.
2. An appeal to the penitentiary court lies against the decision of a penitentiary judge...
4. In the event of finding that the deprivation of liberty is not in accordance with the law, a penitentiary judge shall, without undue delay, inform the authority [in charge of a person concerned] of that fact, and, if necessary, shall order the release of the person concerned.”
Finally, Article 102, paragraph 10, of the Code guarantees a convicted person a right to lodge applications, complaints and requests with other competent authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. The detailed rules on the procedure are laid down in the Ordinance of the Minister of Justice issued on 13 August 2003 on the manner of proceeding with applications, complaints and requests of persons detained in prisons and remand centres (Rozporządzenie w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych) (“the August 2003 Ordinance”).
C. Civil remedies
“The personal rights of an individual, such as in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24 paragraph 1 of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take steps necessary to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
“... [T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
Article 417 § 1 of the Civil Code provided:
“The State Treasury shall be liable for damage (szkoda) caused by an agent of the State in carrying out acts entrusted to him.”
After 2004 amendments Article 417 § 1 of the Civil Code provides:
“The State Treasury or [as the case may be] a self-government entity or other legal person responsible for exercising public authority shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
D. Practice of civil courts as submitted by the Government
1. Koszalin Regional Court's judgment of 30 May 2006
The Koszalin Regional Court observed that according to the Ordinance of 26 November 1996 on the principles for the permitted use of tobacco in closed establishments under the Minister of Justice (Rozporządzenie w sprawie określenia zasad dopuszczalności używania wyrobów tytoniowych w obiektach zamkniętych podległych Ministrowi Sprawiedliwości) (“1996 Ordinance”) persons detained in remand centres and prisons could smoke only inside the selected cells designated for smokers.
It was held that the administration of the remand centre where the applicant had been detained with smokers had acted in breach of the 1996 Ordinance and Article 68 of the Constitution. The court found that the plaintiff had not proved any material damage, namely the physical injury or health disorder. He had however suffered non-material damage resulting from an unlawful interference with his right to protect himself from passive smoking. The court awarded the plaintiff PLN 5,000.
2. Supreme Court's judgment of 28 February 2007
That judgment originated from the civil action brought by a certain A.D., who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm. The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions.
The Supreme Court dismissed the cassation appeal in so far as it related to the allegation of inadequate medical care. In this connection the Supreme Court upheld the judgments of the first and second-instance courts which had found no causal link between the deterioration of the plaintiff's health and the quality of medical care provided to him in detention.
In so far as the cassation appeal related to the allegation of overcrowding and inadequate conditions of the plaintiff's detention the Supreme Court quashed the second-instance judgment in which the applicant's claim had been dismissed. The Supreme Court held that the case should have been examined under Article 24, in conjunction with Article 448 of the Civil Code, and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff's personal rights had not been infringed. The case was remitted to the appeal court.
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. Government's preliminary objection on non-exhaustion of domestic remedies
(a) The Government
(b) The applicant
(i) General principles relating to exhaustion of domestic remedies
In addition, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (ibid., § 69).
(ii) Application of these principles to the present case
In that context the Court reiterates that, according to its established case law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003). It must be noted that the applicant lodged his application with the Court on 4 June 2005. By that time he had already spent nearly two years in continuous detention (see paragraphs 1 and 20 et seq. above).
(c) The Court's conclusion
Accordingly, the Government's objection on exhaustion of domestic remedies must be rejected.
2. Government's preliminary objection on non-compliance
with the six-month rule
(a) The Government
(b) The applicant
(c) The Court's conclusion
3. Conclusion on admissibility
The Court upholds the Government's objection on non-compliance with the six-month rule and finds that the application, in so far as related to the applicant's detention in Poznań Remand Centre during the four terms specified above (see paragraph 60 above), has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Consequently, the Court holds that the remainder of the application, as far as it concerns the applicant's detention in Poznań Remand Centre from 18 May 2005 until 12 July 2005, from 5 January 2006 until an unspecified date, presumably 20 March 2006, and from 9 May 2007 until 30 November 2007, is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties' submissions
(a) The applicant
(b) The Government
2. The Court's assessment
(a) General principles
(b) Application of these principles to the present case
In this connection the Court reiterates that the scope of the instant application has been limited by the applicant only to Poznań Remand Centre and the complaints concerning four terms of his detention in this facility did not comply with the six-month rule. Notwithstanding, the question of whether or not the applicant has suffered inhuman and degrading treatment during his detention in Poznań Remand Centre in the above mentioned periods must be determined against the entire background of the case. The Court must thus examine this case bearing in mind that the applicant was in continuous detention from 5 August 2003 until 30 November 2007.
Moreover, placing the applicant, from 9 May until 30 November 2007, in an ordinary cell of a general wing of Poznań Remand Centre, without providing him with a 24-hour medical supervision, was clearly in contradiction to the recommendations of the doctors who had treated the applicant in the Czarne Prison hospital in the preceding months. The fact that during that time the applicant was attended eighteen times by the remand centre's medical staff has no bearing since the medical care provided to him was of a general character, none of the doctors being a neurologist.
Finally, the Court is struck by the Government's argument that the conditions of the applicant's detention were adequate, because he was sharing his cell with other inmates who knew how to react in the event of his medical emergency. The Court wishes to stress its disapproval of a situation in which the staff of a remand centre feels relieved of its duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, with first aid.
Firstly, the time when the applicant could rely solely on the prison health care system amounted to more than four years, from 5 August 2003 until 30 November 2007. In that connection, the Court is concerned about the fact that the applicant was detained most of the time in ordinary detention facilities or, at best, in an internal disease ward of a prison hospital. He was detained in the specialised neurological hospital of Gdańsk Remand Centre on only two occasions.
Secondly, the applicant was often transported long distances and transferred about eighteen times between different detention facilities. In this connection, the Court considers that such a frequent change of environment must have produced unnecessary negative effects on the applicant who was, at the relevant time, a person of a fragile mental state.
Thirdly, the Court takes note of the facts that for a considerable time the applicant was taking certain non-generic drugs which had been prescribed by the neurology specialists of the Gdańsk Remand Centre hospital and that in June 2005 his treatment was changed to generic drugs upon the decision of the doctors practising in the Poznań Remand Centre hospital, who were not neurologists. The Court also notes that when in October 2005 the applicant was finally transferred to the neurology ward of the Gdańsk Remand Centre hospital, he immediately resumed taking previously prescribed medicines.
The Court reiterates that the Convention does not guarantee a right to receive medical care which would exceed the standard level of health care available to the population generally (see Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002). Nevertheless, it takes note of the applicant's submission, which was not contested by the Government, that the change to generic drugs resulted in an increase in the number of his daily seizures and made their effects more severe (see paragraph 64 above) and as such contributed to the applicant's increased feeling of anguish and physical suffering.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
However, he did not specify the amount and did not furnish any documents in that respect.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 3 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza