(Application no. 44369/02)
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 Wenerski 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. Facts relating to the complaint under Article 3 of the Convention about the lack of proper medical care in a detention centre
1. The applicant's health condition
2. Remedies used by the applicant
B. Facts relating to the complaint under Article 8 of the Convention
II. RELEVANT DOMESTIC LAW
A. Access to medical assistance for convicted and remand prisoners
“A convicted person shall have access to free health care ...”
Article 115 was substantially amended in 2003 and on subsequent occasions, the amendments extensively covering the range of medical assistance available to convicted persons and rules for its application. The provision referred to above remained unchanged in substance.
“Unless exceptions are provided for in the present Chapter, a person detained on remand shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of remand prisoners.”
B. Censorship of correspondence
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. Parties' submissions
(a) The Government
(b) The applicant
2. General principles
3. The Court's assessment
Accordingly the Court is satisfied that the applicant must have suffered considerable pain in connection with his eye problem.
Hence, the Court observes that the applicant was denied necessary and urgent treatment for at least six years.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for ... his correspondence.
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.”
The Government's plea of non-exhaustion of domestic remedies
1. Existence of interference
2. Whether the interference was “in accordance with the law”
Consequently, the Court finds that there has been a violation of Article 8 of the Convention.
III. 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
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 3,500 (three thousand five hundred euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(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 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza