(Application no. 28300/06)
20 January 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 Sławomir Musiał v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's medical treatment in detention
B. Conditions of the applicant's detention
1. Zabrze Remand Centre
(a) Uncontested facts
(b) Facts in dispute
(i) The Government
(ii) The applicant
2. Sosnowiec Remand Centre
(a) Uncontested facts
(b) Facts in dispute
(i) The Government
(ii) The applicant
3. Herby Stare Prison
(a) Uncontested facts
(b) Facts in dispute
(i) The Government
(ii) The applicant
C. The applicant's complaints to domestic courts and authorities
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant constitutional provisions1
48. Article 2 of the Constitution reads as follows:
“The Republic of Poland shall be a democratic State ruled by law and implementing the principles of social justice.”
Article 40 of the Constitution reads:
“No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.”
Article 41 of the Constitution, in its relevant part, provides:
“4. Anyone deprived of liberty shall be treated in a humane manner.”
B. General rules on conditions of detention
1. Code of Execution of Criminal Sentences
“1. A sentenced person shall be placed in an individual cell or a cell shared with other inmates.
2. The area of the cell shall be no less than 3 square metres per detainee.”
Article 248 of the Code provides:
“1. In particularly justified cases a governor of a prison or remand centre may decide to place detainees, for a specified period of time, in conditions where the area of the cell is less than 3 square metres per person. Any such decision shall be promptly communicated to a penitentiary judge.
2. The Minister of Justice shall determine, by means of an ordinance, the rules which are to be followed by the relevant authorities in a situation where the number of persons detained in prisons and remand centres exceeds on a nationwide scale the overall capacity of such establishments ...”
2. The 2000 and 2003 Ordinances
Paragraph 1.1 of this Ordinance provided:
“In the event that the number of detainees placed in prisons and remand centres, as well as in subordinate detention facilities, hereinafter referred to as 'establishments', exceeds on a nationwide scale the overall capacity of such establishments, the Director General of the Prison Service, within seven days from the day the capacity is exceeded, shall convey the relevant information to the Minister of Justice, the regional directors of the Prison Service and the governors of the establishments ...”
Paragraph 2 of the Ordinance read:
“1. Having received the relevant information, the regional director of the prison service and the governor of the establishment are under a duty, each within their own sphere of competence, to take action in order to adapt quarters not otherwise included in the establishment's [accommodation] capacity, to comply with the conditions required for a cell.
3. In the event that the establishment's capacity is exceeded, detainees shall be placed in supplementary cells for a specified period of time.
4. In the event that the additional accommodation in the supplementary cells is used up, detainees may be placed in conditions where the area of a cell is less than 3 square metres per person.”
C. Medical and psychiatric care in detention facilities
Specific rules regarding detention in a medical institution, as well as psychiatric care in prisons and remand centres, are provided for in the Code of Criminal Procedure and the Code of Execution of Criminal Sentences, as well as in a number of ordinances issued by the Minister of Justice.
Article 259, paragraph 1, of the Code of Criminal Procedure provides that, unless there are particular reasons to the contrary, pre-trial detention should be waived if it could result in putting a detainee's life or health at risk.
Article 260 of the Code of Criminal Procedure, on the other hand, provides:
“If required by the accused's health condition, [his] pre-trial detention may take the form of placement in a suitable medical establishment.”
Article 213 of the Code of Execution of Criminal Sentences provides:
“In cases described in the Code of Criminal Procedure, pre trial detention shall take place outside a remand centre, in a medical establishment indicated by an authority responsible for the detainee. The same authority shall also provide directions as to the conditions of the detainee's placement in the indicated medical establishment.”
On the basis of Article 115, paragraph 10, of the Code of Execution of Criminal Sentences, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons deprived of their liberty by health care establishments for persons deprived of their liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “the October 2003 Ordinance”). It entered into force on 17 December 2003.
Under paragraph 1.1 of the October 2003 Ordinance, health care establishments for persons deprived of their liberty provide, inter alia, medical and psychological examinations, medical and psychological treatment and preventive medical care to persons deprived of their liberty.
Paragraph 1 of this Ordinance further provides:
“2. In justified cases, if the medical services as enumerated in sub paragraph 1 cannot be provided to persons deprived of their liberty by the health care establishments for persons deprived of their liberty, in particular owing to the lack of specialised medical equipment, such medical services may be provided by public health care establishments.
3. In cases described in sub paragraph 2, the head of a health-care establishment for persons deprived of their liberty shall decide whether or not such medical services [provided by public health care establishments] are necessary...”
Paragraph 7 of the October 2003 Ordinance states:
“1. The decision to place a person deprived of his liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse ...
2. The decision as to whether or not it is necessary to place a person deprived of his liberty in a ... prison hospital shall be taken by the prison hospital's director or by a delegated prison doctor.”
Paragraph 11 of the October 2003 Ordinance provides:
“In the event of a suspicion that a person deprived of his liberty suffers from mental disorders, mental retardation ..., the prison doctor:
(1) shall give directions as to the placement of the person concerned in prison, the manner of observation and the mode of proceeding [with the person concerned];
(2) shall direct the person concerned to undergo a psychiatric examination.”
Paragraph 12.1 of the October 2003 Ordinance states:
“A person deprived of his liberty shall be placed in the psychiatric ward of a prison hospital:
(1) if a court has ordered the examination of such person together with psychiatric observation;
(2) [if this has been] directed – in compliance with the rules of the Mental Health Protection Act of 19 August 1994 – by a psychiatrist because of the diagnosis of mental disorders which require examination or treatment in hospital.”
Paragraph 13 of the October 2003 Ordinance further provides:
“In justified cases, if, as a result of a psychiatric examination together with psychiatric observation, a person deprived of his liberty has been diagnosed with mental illness, mental retardation or any other mental dysfunction ..., based on the decision of a chief doctor, [such person] shall remain in the psychiatric ward of a prison hospital until the relevant court's ruling.”
The August 2003 Ordinance states that pre trial detention takes place in remand centres. However, paragraph 28 of the Ordinance provides:
“1. With regard to detainees held in hospitals ..., as well as chronically ill [detainees], the governor [of a remand centre] may, at the request of or after consultation with a doctor, make necessary exceptions to the arrangements for pre trial detention as envisaged in the code of practice, in so far as this is justified by the health condition of the detainees concerned.
2. Sub paragraph 1 shall be applied in respect of detainees who have been diagnosed with non-psychotic psychiatric disorders, mental retardation ... The governor [of a remand centre] may make [necessary] exceptions at the request of or after consultation with a doctor or a psychologist.”
D. 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 relating to the 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; the decision [in question] shall be published or served with a reasoned opinion and an instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority which issued the contested decision. If [that] authority does not consider the appeal favourably, it shall refer it, together with the case file and without undue delay, to the competent court.
4. The Court competent for examining the appeal may suspend the enforcement of the contested decision ...
5. Having examined the appeal, the court shall decide either to uphold the contested decision, or to quash or vary it; the court's decision shall not be subject to an interlocutory appeal.”
In addition, under Article 33 of the Code, a penitentiary judge is entitled to make unrestricted visits to detention facilities, to acquaint himself with documents and to be provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of their 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 his 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 the person concerned] of that fact, and, if necessary, shall order the release of the person concerned.”
Lastly, 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. 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 by 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”).
E. Civil remedies
1. Relevant legal provisions
“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 the necessary steps 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.”
Article 445 § 1 of the Civil Code, applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“... [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 ...”
In addition, Articles 417 et seq. of the Polish Civil Code provide for the State's liability in tort.
Article 417 § 1 of the Civil Code formerly 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 being amended in 2004, 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.”
2. Case-law of civil courts as submitted by the Government
(a) 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 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.
(b) Judgments of other civil courts
Another one of the cases referred to concerned a prisoner who had suffered food poisoning in prison and another one concerned a detainee who had been beaten up by his fellow inmate.
In another case, of a certain J.K., who had been detained for seven days in an overcrowded and unsanitary cell, the Warsaw Court of Appeal had granted partial compensation on account of the fact that the prison's governor had failed to inform a competent penitentiary judge, in compliance with the applicable procedure, about the problem of overcrowding present at the time when the plaintiff was serving his sentence there.
Finally, in the case of a certain S.G. the Cracow Court of Appeal had held that there had been no legal basis to grant compensation for detaining the plaintiff in an overcrowded cell. The court observed that the protection of personal rights offered by Article 24 § 1 of the Civil Code was conditional on two elements: firstly, there must have been an infringement or a risk of infringement of the right protected; secondly, the infringement must have resulted from an unlawful act or omission. It was reiterated that an act or omission was not unlawful, even though it might breach personal rights, as long as it was based on a valid legal provision. The court further noted that the plaintiff had the burden of proving the infringement or the risk of infringement while the respondent had the burden of proving that his acts or omissions were not unlawful. The Cracow Court of Appeal held that detaining the plaintiff in conditions below the minimum standard established by Article 110 § 2 of the Code of Execution of Criminal Sentences was not unlawful, as it was regulated by the 2003 Ordinance.
F. Constitutional Court's practice
1. The Ombudsman's application
On 18 April 2006 the Ombudsman limited the scope of his initial application, asking the Constitutional Court (skarga konstytucyjna) to declare paragraph 2(4) of the 2003 Ordinance to be in breach of Article 41 of the Polish Constitution.
On 19 April 2006, a day before the date set for the Constitutional Court's hearing, the Minister of Justice abrogated the impugned Ordinance in its entirety and issued a new one under the same title and with immediate effect (“the 2006 Ordinance”). The provisions of the new 2006 Ordinance remain the same as in the previous instrument, except for paragraph 2(4), which currently reads as follows:
“In the event that the additional accommodation in the supplementary cells is used up, detainees may be placed, for a specified period of time, in conditions where the area of a cell is less than 3 square metres per person.”
As a consequence of these changes, on 19 April 2006 the Ombudsman withdrew his application.
2. Judgment of 26 May 2008
On 26 May 2008 the Constitutional Court held, inter alia, that the impugned Article 248 of the Code of Execution of Criminal Sentences was in breach of Article 40 (prohibition of torture or cruel, inhuman, or degrading treatment or punishment), Article 41 § 4 (right of a detainee to be treated in a humane manner) and Article 2 (the principle of the rule of law) of the Constitution. The court stressed that the provision lacked clarity and precision, which allowed for a very broad interpretation.
The Constitutional Court found that, in effect, the provision in question allowed for an indefinite and arbitrary placement of detainees in cells below the statutory size of three square metres per person, thus causing chronic overcrowding in Polish prisons and exposing detainees to the risk of inhuman treatment. The court observed that the overcrowding of detention facilities had to be treated as a serious problem, posing a permanent threat to rehabilitation of prisoners. Moreover, in the court's view, the overcrowding in itself could be qualified as inhuman and degrading treatment. If combined with additional aggravating circumstances, it may even be considered as torture. In that connection the court noted that already the minimum statutory standards of three square metres per person was one of the lowest ones in Europe.
The Constitutional Court further stressed that the provision in question was meant to be applied only in particularly justified cases, for example an engineering or building disaster in prison. Such a provision should not leave any doubt as to the definition of those permissible circumstances, the minimum size of the cell and maximum time when the new standards would apply. It should also lay down clear principles on how many times a detainee could be placed in conditions below the standard requirements and the precise procedural rules to be followed in such cases. Conversely, in practice Article 248 of the Code of Execution of Criminal Sentences gave a wide discretion to prison governors to decide what constituted “particularly justified circumstances” and in consequence sanctioned the permanent state of overcrowding in detention facilities. It allowed for the placement of detainees in a cell where the area was below the statutory size for an indefinite period of time and it did not set a minimum permissible area.
The Constitutional Court, taking into consideration “the permanent overcrowding of the Polish detention facilities”, ruled that the unconstitutional Article 248 of the Code of Execution of Criminal Sentences should lose its binding force within eighteen months from the date of the publication of the judgment. The Constitutional Court justified the delayed entry into force of its judgment by the need to undertake a series of actions to reorganise the whole penitentiary system in Poland, in order to, ultimately, eliminate the problem of overcrowding. It was also noted that, in parallel, a reform of criminal policy was desired with the aim of achieving a wider implementation of preventive measures other than deprivation of liberty. The court observed that an immediate entry into force of its judgment would only aggravate the already existing pathological situation where, because of the lack of room in Polish prisons, many convicted persons could not serve their prison sentences. At the time when the judgment was being passed, the problem concerned 40,000 persons.
In addition, the Constitutional Court under the principle of the so-called “right of privilege” (przywilej korzyści) ordered an individual measure, namely that with regard to the author of the constitutional complaint the judgment should enter into force immediately after its publication. The right of privilege is relied on by the Constitutional Court in the event the proceedings instituted by an individual terminate with a judgment with a delayed entry into force. This principle aims at rewarding the individual who brought the first constitutional complaint concerning a particular matter for his or her proactive attitude.
As regards the context of the case, all the State authorities involved in the proceedings before the Constitutional Court, namely the Prosecutor General, the Ombudsman and the Speaker of the Sejm, acknowledged the existence of the overcrowding in the Polish detention facilities. The Prosecutor General, in his pleadings of 6 December 2007, submitted that the problem of overcrowding in Polish detention facilities had continually existed since 2000, arising from the flawed interpretation of the impugned provision by domestic courts and penitentiary authorities. He also pointed out that, with the rate of overcrowding peaking at 118.9% on 31 August 2007, the prison authorities estimated that 15,000 new places were needed in order to secure to detainees the statutory space of three square metres per person.
III. RELEVANT INTERNATIONAL DOCUMENTS
“I. Main characteristics of the right to health care in prison
A. Access to a doctor
1. When entering prison and later on while in custody, prisoners should be able at any time to have access to a doctor or a fully qualified nurse, irrespective of their detention regime and without undue delay, if required by their state of health. All detainees should benefit from appropriate medical examinations on admission. Special emphasis should be put on the screening of mental disorders, of psychological adaptation to prison, of withdrawal symptoms resulting from use of drugs, medication or alcohol, and of contagious and chronic conditions.
3. A prison's health care service should at least be able to provide outpatient consultations and emergency treatment. When the state of health of the inmates requires treatment which cannot be guaranteed in prison, everything possible should be done to ensure that treatment is given, in all security, in health establishments outside the prison.
4. Prisoners should have access to a doctor, when necessary, at any time during the day and the night. Someone competent to provide first aid should always be present on the prison premises. In case of serious emergencies, the doctor, a member of the nursing staff and the prison management should be warned; active participation and commitment of the custodial staff is essential.
5. Access to psychiatric consultation and counselling should be secured. There should be a psychiatric team in larger penal institutions. If this is not available as in the smaller establishments, consultations should be assured by a psychiatrist, practising in hospital or in private.
III. The organisation of health care in prison with specific reference to the management of certain common problems
D. Psychiatric symptoms, mental disturbance and major personality disorders, risk of suicide
55. Prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. The decision to admit an inmate to a public hospital should be made by a psychiatrist, subject to authorisation by the competent authorities.
58. The risk of suicide should be constantly assessed both by medical and custodial staff. Physical methods designed to avoid self-harm, close and constant observation, dialogue and reassurance, as appropriate, should be used in moments of crisis.”
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Having regard to the European Convention on Human Rights and the case law of the European Court of Human Rights, ...
Recommends that governments of member states:
- be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules;
Appendix to Recommendation Rec(2006)2
12.1 Persons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose.
12.2 If such persons are nevertheless exceptionally held in prison there shall be special regulations that take account of their status and needs.
39. Prison authorities shall safeguard the health of all prisoners in their care.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
47.1 Specialised prisons or sections under medical control shall be available for the observation and treatment of prisoners suffering from mental disorder or abnormality who do not necessarily fall under the provisions of Rule 12.
47.2 The prison medical service shall provide for the psychiatric treatment of all prisoners who are in need of such treatment and pay special attention to suicide prevention.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The applicant's complaints fall 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. Government's preliminary objection
(a) The Government
In that connection the Government referred to the judgment of the Supreme Court of 28 February 2007 which recognised for the first time the right of a detainee under Article 24, read in conjunction with Article 448 of the Civil Code, to lodge a civil claim against the State Treasury for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment (see paragraphs 56-58 above).They also submitted copies of nine recent judgments in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights (see paragraph 59 above).
(b) The applicant
2. 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).
3. Application of these principles to the present case
(a) As regards complaints to penitentiary authorities
In these circumstances, it cannot be said that any attempt by the applicant to seek with the penitentiary authorities an improvement of the conditions of his detention would give sufficient prospects of a successful outcome. By making the relevant appeals to the Ombudsman and the courts deciding on his pre-trial detention, the applicant sufficiently brought to light his situation as regards both the medical care and the overall conditions of his detention.
(b) As regards civil law remedies
The Court welcomes the new developments in domestic jurisprudence, in particular the new direction in the interpretation and application of the Civil Code provisions on availability of damages for a breach of personal rights, which was set by the 2007 Supreme Court's judgment. However, without prejudice to its assessment of the issue of exhaustion of domestic remedies in other cases pending before it, the Court observes that the judgments of domestic courts referred to by the Government arose from situations distinct from that of the applicant in the present case. They mainly concerned the practice of mixing smoking and non-smoking prisoners, a practice which was indisputably not in compliance with domestic law. Two cases concerned healthy prisoners held in overcrowded and unsanitary cells whose civil actions, contrary to the Government's submission, did not succeed. The judgments in those cases clearly illustrate that the domestic courts have consistently interpreted Article 24 § 1 of the Civil Code as being conditional on two elements, one of them being that the infringement alleged must have resulted from an unlawful act or omission. The analysis of the relevant Polish case-law shows that prior to the judgment of the Constitutional Court of 26 May 2008 the policy of reducing the space for each individual in detention establishments was considered to be in accordance with domestic law and was widespread. The latter has been confirmed by the Constitutional Court, the Prosecutor General, the Ombudsman and the Speaker of the Sejm. All these authorities referred explicitly to the flawed interpretation of Article 248 of the Code of Execution of Criminal Sentences by the domestic courts and penitentiary authorities (see paragraph 61 above).
In that connection, 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 was detained on 19 April 2005 and that he lodged his application with the Court on 18 June 2006. By the time of the landmark Constitutional Court's ruling of 26 May 2008 the applicant had already spent over three years in detention and his case has been pending before the Court for nearly two years.
(c) As regards constitutional complaint
The Court has already taken note of the Constitutional Court's judgment of 26 May 2008 in which the impugned provision had been declared unconstitutional (see paragraph 61 above). It observes, however, that the subject matter of the above constitutional complaint and of the instant application is not identical.
In this connection, the Court, mindful of the applicant's limited capacities as a person with psychiatric problems and held in custody, observes that only a remedy able to address his complaint in its integrity and not only its selected aspects, could realistically redress the applicant's situation.
The Court also considers that the instant application is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties' submissions
2. The Court's assessment
(a) General principles
(b) Application of these principles to the present case
The case therefore raises the issue of the compatibility of the applicant's state of health with his detention in a facility designed for healthy detainees where he is not treated or monitored on a daily basis by specialist medical personnel. The Court must also answer the question of whether that situation attained the minimum level of severity to fall within the ambit of Article 3 of the Convention.
The Court finds that those conditions would not be considered appropriate for any person deprived of his liberty, still less for someone like the applicant with a history of mental disorder and in need of a specialised treatment. In this connection the Court refers to the judgment of the Constitutional Court which held that the overcrowding in itself could be qualified as inhuman and degrading treatment and, if combined with additional aggravating circumstances, as torture (see paragraph 61 above).
The Court accepts that the very nature of the applicant's psychological condition made him more vulnerable than the average detainee and that his detention in the conditions described above, with the exception of the two short periods in 2005 and 2007 when the applicant was an in-patient in a prison hospital, may have exacerbated to a certain extent his feelings of distress, anguish and fear. In this connection, the Court considers that the failure of the authorities to hold the applicant during most of his detention in a suitable psychiatric hospital or a detention facility with a specialised psychiatric ward has unnecessarily exposed him to a risk to his health and must have resulted in stress and anxiety.
Moreover, the Court finds that the fact that for the most part the applicant has received the same attention as the other inmates, notwithstanding his particular state of health, shows the failure of the authorities' commitment to improving the conditions of detention in compliance with the recommendations of the Council of Europe. In particular, the Court notes that the recommendations of the Committee of Ministers to the member States, namely Recommendation No. R (98) 7 concerning the ethical and organisational aspects of health care in prison and Recommendation on the European Prison Rules provide that prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff (see paragraphs 62 and 63 above). In recent judgments the Court has drawn the authorities' attention to the importance of this recommendation, notwithstanding its non-binding nature for the member States (see Dybeku v. Albania, no. 41153/06, § 48, 18 December 2007; Rivière, cited above, § 72; and Naumenko, cited above, § 94).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
III. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Article 46
As regards the measures which the Polish State must take, subject to supervision by the Committee of Ministers, in order to put an end to the violation that has been found, the Court reiterates that it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment. This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). However, by its very nature, the violation found in the instant case does not leave any real choice as to the individual measures required to remedy it (see, mutatis mutandis, Assanidze v. Georgia [GC], no. 71503/01, §§ 201-203, ECHR 2004 II).
B. Article 41
2. Costs and expenses
3. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to secure at the earliest possible date adequate conditions of the applicant's detention in a specialised institution capable of providing him with necessary psychiatric treatment and constant medical supervision (paragraph 106);
(b) 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 10,000 (ten 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;
(c) 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 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
1 The Court’s translation is based on the text of the official translation made for the research department of the Sejm (lower house of the Polish Parliament) Chancellery.