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MIROSLAW ZIELINSKI v. POLAND - 3390/05 [2011] ECHR 1350 (20 September 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1350.html
Cite as:
[2011] ECHR 1350
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FOURTH
SECTION
CASE OF MIROSŁAW ZIELIŃSKI v. POLAND
(Application
no. 3390/05)
JUDGMENT
STRASBOURG
20
September 2011
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 Mirosław Zieliński
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 3390/05) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Mirosław Zieliński
(“the applicant”), on 14 January 2005.
The
Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
The
applicant alleged, in particular, that Article 3 of the Convention
had been violated in that he had been detained in overcrowded and
dirty cells, he was forced to share his cell with HIV and
HCV-positive inmates and he had not received adequate medical care in
prison. In addition, the applicant complained under Article 8 about
the monitoring of his correspondence with the Court.
On
4 October 2007 the President of the Fourth Section decided to give
notice of the complaints under Articles 3 and 8 of the Convention to
the Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Mr Mirosław Zieliński, is a Polish national who
was born in 1953 and is currently detained in Włocławek
Prison.
A. Period of the applicant’s detention subject of
the instant application
From
18 November 2004 until 24 July 2008 the applicant was detained in
Łowicz Prison. It is not clear whether on the latter date he was
released or transferred to another detention facility. He is
currently detained in Włocławek Prison.
B. Overall conditions of the applicant’s
detention
The
applicant submitted that in Łowicz Prison he had been held in
overcrowded and dirty cells. During the period of his detention in
Łowicz, the applicant had occupied a total of seventeen cells,
including cell no. 202 in wing II, in which he had been
detained from 26 October 2007 until 24 July 2008.
The
Government acknowledged that during almost the entire period of the
applicant’s detention in Łowicz Prison the space per
person in his cells had been inferior to 3 square metres. They
submitted that the cells had been clean and that the applicant had
had one shower per week and one hour of outdoor exercise per day.
C. The applicant’s detention together with HIV
and HCV-positive detainees
The
applicant also complained about the practice of mixing healthy
prisoners with those who were infected with transmissible diseases,
such as HIV or hepatitis C (HCV). Prisoners were not informed by the
authorities about such state of affairs. On one occasion the
applicant was told by his fellow cellmate that the latter was
HIV-positive. To that effect the applicant submitted a statement
dated 13 February 2008, in which a certain P.P., a person
claiming to be an HIV-positive prisoner, certified that on
12 February 2008 he had been placed in the applicant’s
cell no. 202 wing II. P.P. further stated that neither the applicant
nor other inmates had been aware of his illness and that he, in fact,
had been instructed by the prison administration not to reveal his
HIV status.
The
applicant complained that he had been exposed to the risk of
contamination because he had shared his cell with infected persons
and he had not been informed about it. He also had not been advised
of the dangers relating to HIV and HCV and of the means of protection
against it. Moreover, he submitted that from the moment when he had
found out that his fellow cellmates were either infected or could
potentially be infected, he feared for his well-being.
D. The applicant’s medical history
In
2001 the applicant suffered a fracture of the skull and underwent
surgery in which a small part of his skull was removed. In addition,
prior to his detention he had been hospitalised on several occasions
because of his epilepsy, chronic ischemic heart
disease (choroba wieńcowa)
and thinning of the cervical cortex
(zanik kory mózgowej). Prior to his detention in Łowicz
Prison the applicant was under regular medical supervision; he
received pharmacological treatment and had numerous medical
check-ups. On 1 July 2004 he was tested for HIV and HCV. On
12 July 2004 he underwent coronary
catheterisation (koronografia).
On
20 May 2004 the applicant was certified as “temporarily
disabled” with a mild degree of disability (umiarkowany
stopień niepełnosprawności). It was indicated that
the applicant occasionally required the help of a third person in his
daily life. The certificate was valid until 20 May 2007.
The
parties did not furnish any medical reports or certificates related
either to the period when the applicant was detained in Łowicz
Prison or after his release.
E. The applicant’s actions concerning different
aspects of his detention
1. Overcrowding
The
applicant lodged several complaints about overcrowding in Łowicz
Prison. In reply the authorities acknowledged the existence of the
problem and pointed to its systemic nature. On the other hand the
applicant did not bring a civil action in tort to seek compensation
for the alleged infringement of his personal rights on account of
overcrowding and inadequate conditions of his detention.
2. Detention with HIV and HCV positive inmates
The
applicant instituted three sets of criminal proceedings against the
prison administration and filed penitentiary complaints in relation
to the alleged fact that from March until October 2006 and from March
2006 until February 2008 he had been forced to share his cell with
inmates infected with HIV and HCV.
On 8 December 2006 the Łowicz District Prosecutor
(Prokurator Rejonowy) discontinued the criminal inquiry into
the allegations described above. It was established that, as a matter
of law, namely because of medical secrecy and antidiscrimination
laws, the prison administration had never been informed about
prisoners’ health. In consequence, potentially ill prisoners
were mixed with potentially healthy prisoners. The practice, however,
could not be considered as criminal negligence on the part of the
prison administration.
A
similar decision was issued by the Łowicz District Prosecutor on
30 April 2007. On 26 September 2007 after the applicant’s
interlocutory appeal the decision was upheld by the Łowicz
District Court (Sąd Rejonowy). In addition to the
reasoning presented in the prosecutor’s 2006 decision, the
court relied on the submissions of the doctor in charge of the prison
hospital, who had stated that mixing healthy prisoners with those who
were HIV or HCV positive did not create any health risks to the prior
group.
Lastly
on 25 June 2008 the Łowicz District Prosecutor refused to open
an inquiry into similar allegations related to the longer period from
March 2006 until February 2008. On October 2008 the Łowicz
District Court upheld that decision.
3. Medical care
The
applicant lodged at least eleven complaints with State authorities
about the quality of medical care in Łowicz Prison. It appears
that he also tried to institute criminal proceedings against the
medical staff and administration of Łowicz Prison and applied
for a prison break on health grounds.
The
penitentiary authorities considered the applicant’s allegations
groundless. It was found that the applicant had received good quality
medical care and that he had been under the regular supervision of
medical specialists. On the other hand, it was repeatedly stated that
the applicant had been a difficult and vexatious patient who did not
cooperate with prison doctors and did not follow their
recommendations.
On
28 September 2006 the Łódź Regional Court (Sąd
Okręgowy) rejected the applicant’s application for a
prison break which he claimed to need in order to undergo surgery.
The applicant wished to have an implant which would fill the bone gap
created in his skull as a result of his 2001 surgery. The regional
court considered the procedure which was sought by the applicant
unnecessary in the light of the fact that he was under regular
medical supervision and received adequate medical treatment.
F. Criminal proceedings against the applicant
On
an unspecified date the applicant was convicted by a criminal court
of the first-instance. He appealed against that judgment and informed
the authorities that, despite being represented by a lawyer, he
wished to be brought to the appellate hearing under escort from the
remand centre in order to present his case in person.
On
15 March 2006 the Płock Regional Court rejected the applicant’s
request. The court reasoned that the applicant’s presence was
unnecessary in the light of the fact that his legal-aid lawyer was
under a duty to participate in the hearing and that the applicant had
already presented his case to the appeal court in writing.
The
applicant did not submit any further information about the course and
the outcome of the proceedings in question.
G. Monitoring of the applicant’s correspondence
The
applicant’s first letter to the Court, which was dated
1 January 2005, was deposited by the applicant with the
administration of Łowicz Prison on 3 January 2005 and was
received by the Registry of the Court on 21 January 2005.
The envelope of that letter bears a stamp reading “Censored
Deliver to the addressee Date ... Judge” (Ocenzurowano
Doręczyć adresatowi Data ... Sędzia). The date of
14 January 2005 has been written by hand on the dotted line. An
illegible signature is visible under the heading “Judge”.
In
his second letter to the Court, which was dated 7 February 2005, the
applicant complained about the regular withholding and monitoring of
his correspondence by the authorities. That letter was received by
the Registry of the Court on 21 February 2005. The envelope of the
letter in question bears a stamp and a signature identical to those
described above. The date of 17 February 2005 has been
written by hand on the dotted line.
The
other letters which were sent by the applicant to the Court do not
bear any similar stamps.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Conditions of detention
A detailed description of the relevant domestic law
and practice concerning general rules governing the conditions of
detention in Poland and domestic remedies available to detainees
alleging that conditions of their detention were inadequate are
set out in the Court’s pilot judgments given in the cases of
Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v.
Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85
and §§ 45-88 respectively). More recent developments
are described in the Court’s decision in the case of
Łatak v. Poland (no. 52070/08) on 12 October
2010 (see §§ 25-54).
B. Monitoring
of a detainee’s correspondence
The
legal provisions concerning monitoring of detainees’
correspondence applicable at the material time and questions of
practice are set out in paragraphs 65-66 of the judgment delivered by
the Court on 4 May 2006 in Michta v. Poland , no.
13425/02.
C. Medical care in prison and detention of ill
prisoners
Article
68 of the Constitution, in its relevant part, reads:
“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...”
Article
115 of the Code of Execution of Criminal Sentences (Kodeks karny
wykonawczy) (“the Code”) provides:
“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 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 a 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...”
On
the basis of Article 115, paragraph 10 of the Code, 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 in confinement by health care establishments for
persons deprived of 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”). This Ordinance was in force
from 17 December 2003 until 11 July 2010.
Under
paragraph 1.1 of the October 2003 Ordinance, health care
establishments for persons deprived of liberty provided, inter
alia, medical examinations, treatment, preventive medical care,
rehabilitation and nursing services to persons deprived of liberty.
Under
paragraph 2 of this Ordinance a person deprived of liberty was
subjected to preliminary and periodical medical examinations (badania
wstępne i okresowe) and check-ups (badania kontrolne).
According
to paragraph 3, a person deprived of liberty was to undergo
preliminary medical examinations, namely questioning about his/her
medical history (wywiad chorobowy) and a physical examination
(badanie fizykalne) as soon as he/she was admitted to a
detention establishment. Moreover, no later than fourteen days from
the admission date, a person deprived of liberty was to have a chest
x-ray and a dental examination.
In
practice, a person deprived of liberty who was committed to a
detention facility for the first time, was to be initially placed in
a transitional cell in order to undergo the above mentioned
preliminary medical examinations.
A
prisoner who was merely transferred from another detention facility
was not to be subjected to such a procedure (see Article 79 b §§1
and 2 of the Code of Execution of Criminal Sentences). Instead,
he/she was to undergo a medical check up (questioning about his/her
medical history and a physical examination) before being transferred
to another detention facility or released (see paragraph 5 of the
October 2003 Ordinance).
Moreover
paragraph 3.5 of the October 2003 Ordinance authorised a prison
doctor (lekarz więzienny) to prescribe medical tests
other than those mentioned above if it was justified in the light of
the health of the person deprived of liberty. Those tests, however,
were not mandatory and could be performed only with a prisoner’s
consent.
In practice, upon his/her admission to a detention
facility or at any other moment during his/her detention, a person
deprived of liberty could request to be tested free of charge for
HCV, HIV or any other transmissible disease. A decision whether or
not to grant such a request lay with a prison doctor and could be
appealed.
According
to the internal rules of the penitentiary medical service in force at
the relevant time, a request for HCV testing was only to be granted
if it was accompanied by a recommendation of a prison doctor. A
prison doctor could refuse to support the prisoner’s request
if, after questioning the prisoner about his/her medical history and
risky behaviour, the test was considered unnecessary.
On
the other hand, a request for HIV testing did not require an
additional medical recommendation and was granted almost
automatically. Such test was to be performed, at reasonable
intervals, each time it was requested by a prisoner.
During
the preliminary medical examinations a newly admitted prisoner was to
receive counselling on risky behaviour and modes of HIV and HCV
transmission. The prisoner was to be asked whether he/she wished to
be tested for HIV and a note to that effect was to be made in his/her
health record book (książka zdrowia).
The
October 2003 Ordinance was replaced by a largely similar text of the
Minister of Justice’s Ordinance of 23 December 2010 on the
provision of medical services to persons in confinement by health
care establishments for persons deprived of liberty (Rozporządzenie
Ministra Sprawiedliwości z dnia 23 grudnia 2010 r. w sprawie
udzielania świadczeń zdrowotnych osobom pozbawionym
wolności przez zakłady opieki zdrowotnej dla osób
pozbawionych wolności),
which entered into force on 3 January 2011.
Other,
currently binding, rules relevant to the provision of medical
services to persons deprived of liberty are to be found, among
others, in the Minister of Justice’s Ordinance of 2 February
2011 on types and the scope of medical documentation kept by health
care establishments for persons deprived of liberty and on the manner
of its processing (Rozporządzenie
Ministra Sprawiedliwości z dnia 2 lutego 2011 r. w sprawie
rodzajów i zakresu dokumentacji medycznej prowadzonej w
zakładach opieki zdrowotnej dla osób pozbawionych
wolności oraz sposobu jej przetwarzania),
which entered into force on 10 March 2011.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that his detention in the conditions of Łowicz
Prison, in which he had been held from 18 November 2004 until 24 July
2008, had amounted to inhuman and degrading treatment contrary to
Article 3 of the Convention. In particular, the applicant complained
about the prison’s overcrowding and unsanitary conditions,
inadequate medical care and the practice of mixing healthy prisoners
with those infected with HIV and HCV. Article 3 of the Convention
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Overcrowding and living and sanitary conditions of
the applicant’s detention
1. Admissibility
The
Government submitted that on 24 July 2008 the applicant had been
released from Łowicz Prison. In these circumstances, the
situation giving rise to the alleged breach of Article 3 of the
Convention no longer existed and the applicant should bring a civil
action under Article 24 taken in conjunction with Article 448 of the
Civil Code in order to seek compensation for the past violation.
In
that regard they relied, in particular, on the Orchowski judgment,
reiterating that the Court, having regard to the principle of
subsidiarity, had held that in cases where the alleged violation of
Article 3 no longer continued and could not be eliminated with
retrospective effect, the only means of redress for the applicant was
pecuniary compensation.
In
view of the foregoing, the Government invited the Court to reject the
application for non-exhaustion of domestic remedies, pursuant
to Article 35 § 1 of the Convention.
The
applicant in general disagreed with the above arguments and
maintained that the remedy suggested by the Government could not be
considered “effective” for the purposes of Article 35 §
1 of the Convention.
The Court has already examined a similar objection
based on exhaustion of domestic remedies raised by the Government in
the above mentioned cases of Łatak v. Poland and
Łomiński v. Poland and considered their arguments not
only in the context of those two particular applicants but also in
respect of other actual or potential applicants with similar
complaints. (see Łatak v. Poland no. 52070/08 and
Łomiński v. Poland no. 33502/09 (dec.), 12 October
2010, §§ 71-85 and §§ 62-76 respectively).
In
so doing, the Court had regard to the fact that on the date of the
adoption of its decisions there were 271 cases pending before it
where the applicants had raised complaints similar in substance,
alleging a violation of Article 3 in that at various times and
for various periods they had been adversely affected by the same
structural problem, having been detained in overcrowded,
insanitary cells (ibid. § 84 and § 75 respectively).
Having
found that a civil action under Article 24 taken in conjunction with
Article 448 of the Civil Code could be considered an “effective
remedy” for the purposes of Article 35 § 1 of the
Convention as from 17 March 2010 and having regard to the 3-year
limitation period for lodging such an action, the Court held that
essentially in all cases in which in June 2008 the alleged violation
had either been remedied by placing the applicant in
Convention-compliant conditions or had ended ipso facto because
the applicant had been released, the applicants concerned should
bring a civil action for the infringement of personal rights and
compensation (ibid. § 85 and § 76 respectively).
In
the present case the situation giving rise to the alleged violation
of Article 3 ended on 24 July 2008 when the applicant was
released from Łowicz Prison. The Court considers, however, that
since the relevant civil action under Articles 24 and 448 of the
Civil Code is barred by a three-year statute of limitation, the
applicant cannot presently be required to avail himself of the civil
remedy in question.
Moreover,
the Court reiterates that in its pilot judgments in the cases of
Orchowski and Norbert Sikorski (see Orchowski,
cited above, § 96 and Norbert Sikorski, cited above,
§§ 100-101) it has already held that the findings made by
the Constitutional Court and by this Court that overcrowding in
Polish detention facilities was of a structural nature, “undermined
the effectiveness of any domestic remedy available, making them
theoretical and illusory and incapable of providing redress in
respect of the applicant’s complaint” at the time when he
was lodging the present application with the Court (ibid. § 111
and § 121 respectively). This conclusion equally applies to the
present case in so far as it concerns the applicant’s detention
which lasted from 2004 until mid-2008, especially given that the
Government and the penitentiary authorities explicitly acknowledged
the existence and the systemic nature of the problem of overcrowding
in Polish detention facilities at the relevant time (ibid. § 146 and
§ 148 respectively and paragraph 17 above).
Accordingly, the Court dismisses the Government’s
preliminary objection as to the non-exhaustion of domestic remedies
in so far as the applicant’s first detention is concerned.
The
Court also considers that this part of the 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.
2. Merits
(a) The applicant
The
applicant submitted that the conditions of his detention in Łowicz
Prison had fallen short of standards compatible with Article 3 of the
Convention. In particular, he complained that he had been detained in
overcrowded cells with less than 3 square metres of space per
person and allowed to spend a very limited time outside the cell,
e.g. he had only a one hour long outdoor exercise per day and a
right to take only one shower per week.
(b) The Government
The
Government acknowledged that during almost the entire period of the
applicant’s detention in Łowicz Prison the space per
person in his cells had been inferior to 3 square metres. They
argued, however, that the applicant had not suffered inhuman or
degrading treatment which attained the minimum level of severity
within the meaning of Article 3 of the Convention.
(c) The Court’s assessment
A restatement of the general principles concerning the
examination of conditions of detention under Article 3 may be found
in the Court’s recent judgment in Orchowski v. Poland
(cited above, §§ 119-229).
The
Court has already found in its two pilot judgments in the cases of
Orchowski v. Poland and Norbert Sikorski v.
Poland that, for many years, namely from 2000 until at least
mid-2008, overcrowding in Polish prisons and remand centres had
revealed a structural problem consisting of “a practice that
[was] incompatible with the Convention” (see Orchowski,
cited above § 151 and Norbert Sikorski, cited above,
§§ 155-156).
Moreover, in the instant case the penitentiary authorities and the
Government did not contest the applicant’s submissions and, in
fact, acknowledged that during almost the entire period of his
detention in Łowicz Prison the space per person in his cells had
been inferior to 3 square metres (see paragraphs 14 and 50 above).
Having
regard to the cumulative effects of the overcrowding and the overall
inappropriate living conditions during the applicant’s
detention, which lasted three years and eight months, the Court
considers that the nature, duration and severity of the ill-treatment
to which the applicant was subjected are sufficient to be qualified
as inhuman and degrading (see Egmez v. Cyprus,
no. 30873/96, § 77, ECHR 2000-XII; Labzov
v. Russia, no. 62208/00, § 45, 16 June 2005;
and Mayzit v. Russia, no. 63378/00, § 42, 20
January 2005).
There
has accordingly been a violation of Article 3 of the Convention.
B. Medical care in prison
The
applicant also complained under Article 3 that in Łowicz Prison
he had not received adequate medical care and treatment in view of
his health condition.
He
submitted that during his detention Łowicz Prison had
1,000 prisoners and employed only one doctor. Because of that
ratio, the doctor could not possibly provide sufficient care and
attention to prisoners who required medical assistance.
The
applicant also claimed that, despite his repeated requests, he had
not been authorised to undergo any specialised medical procedures and
check ups such as: reconstruction of his skull,
electroencephalography (EEG)
and X-ray computed tomography
(CT) of his head, electrocardiography
(ECG), unspecified
pulmonological tests, blood tests for HCV and
HIV. The applicant wished to have the above mentioned medical
examinations carried out every three months.
Lastly,
the applicant submitted that during his detention an unsuitable
medicine, called “Metocard”, had been prescribed by the
prison doctors to treat his heart disease.
The
Government submitted that no doctors or authorities had ever declared
the applicant unfit for detention or recommended that he should be
detained in a hospital wing. They further maintained that in prison
the applicant had received adequate pharmacological treatment and had
been under the regular medical supervision of a cardiologist,
neurologist, psychiatrist and a surgeon.
The
Government also argued that the applicant had not cooperated with the
prison medical staff. He had read medical literature and had insisted
on receiving specific medicine and undergoing particular medical
tests, while disagreeing with the decisions of the prison doctors. He
had refused to undergo a number of medical exams scheduled
(e.g. cardiological, chirurgical, ophthalmological and pulmonary
check-ups and an EEG scan on 14 March 2008). He had regularly
inflicted injuries on himself. The applicant, who became addicted to
medicine, had faked health problems in order to receive strong
psychotropic medicine.
On
the basis of the available material, particularly in the absence of
any medical reports related to the applicant’s health during
and after his detention in Łowicz Prison, the Court finds no
indication of any shortcomings on the part of the authorities in
providing adequate medical tests, treatment and care to the
applicant.
The
Court considers that the applicant’s complaint does not
disclose any appearance of a violation of Article 3 of the
Convention. It follows that it is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
C. The applicant’s detention together with HIV
and HCV-positive detainees
The
applicant complained that for a total of eight months in 2006 and
2008 he had been kept in a cell with HIV and HCV-positive inmates and
that he had not been informed by the authorities about that fact. He
claimed that once he had acquired such information from fellow
prisoners he had been exposed or had feared exposure to the risk of
contamination because he shared his cell with infected persons and
was not advised of the dangers relating to HIV and HCV and of the
means of protection against it.
The
Government submitted that it was impossible to verify the applicant’s
allegations that he had shared his cell with HIV and HCV positive
inmates because prisoners’ medical history was confidential.
Consequently, neither the prison staff nor fellow prisoners could be
aware of the medical condition of their cellmates.
They
also submitted that all prisoners who were newly admitted to a
detention facility received counselling on risky behaviour and modes
of HIV and HCV transmission. Prisoners were asked whether they wished
to be tested for HIV and a note to that effect was made in their
health record books.
The
Court observes that, according to the existing international
standards (see Artyomov v. Russia, no. 14146/02, §
96-100, 27 May 2010), segregation, isolation and restrictions on
occupational and recreational activities are considered unnecessary
in the case of HIV-infected persons in the community or when they are
detained (see also Enhorn v. Sweden, no. 56529/00, § 55,
ECHR 2005-I). When detained, they should not be segregated from the
rest of the prison population unless this is strictly necessary on
medical or other relevant grounds. Adequate health care should be
afforded to HIV-positive detainees, with due regard to the obligation
of confidentiality. National authorities should provide all detainees
with counselling on risky behaviour and modes of HIV transmission.
The
Court will examine the applicant’s complaint on the assumption
that he did share detention facilities with HIV and HCV-positive
detainees. The Court need not determine the truthfulness of each and
every allegation because the complaint is in any event inadmissible
for the following reasons.
The
protection of medical data, in particular the confidentiality of
information about a person’s health, in particular about his
HIV status, is of fundamental importance to a person’s
enjoyment of his or her right to respect for private life and that
the domestic law must therefore afford appropriate safeguards to
prevent any such disclosure which may run counter to the guarantees
of Article 8 of the Convention (see Z v. Finland, judgment of
25 February 1997, Reports of Judgments and Decisions
1997-I, § 95).
On the other hand, the Court recalls that Article 3 of
the Convention imposes an obligation on the State to ensure that a
person is 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 him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention
and that, given the practical demands of imprisonment, his health and
well-being are adequately secured (see Kudła v. Poland [GC],
no. 30210/96, §§ 92-94, ECHR 2000-XI, and
Popov v. Russia, no. 26853/04, § 208, 13 July
2006).
In
the present case, it has not been claimed that the applicant
contracted HIV or HCV or that he had been unlawfully exposed to a
real risk of infection, for instance, through sexual contacts or
intravenous drug use. The mere fact that HIV or HCV-positive
detainees use the same medical, sanitary, catering and other
facilities as those for all other prisoners does not in itself raise
an issue under Article 3 of the Convention (see Korobov and Others
v. Russia (dec.), no. 67086/01, 2 March 2006 and
Salmanov v. Russia, no. 3522/04, 31 July 2008). Moreover,
according to the domestic law and internal practices, the
penitentiary authorities provided prisoners and detainees at the
beginning of their detention with counselling on risky behaviour and
modes of HIV and HCV transmission (see paragraph 36 above).
Irrespective of that the Court considers that, because the applicant
is an adult with full mental capacity, he could reasonably be
expected to know about risky behaviour and modes of contracting
transmissible diseases whether at liberty or in a prison environment.
In the light of all the above elements, the Court cannot find that
the authorities failed in the circumstances of the case to secure the
applicant’s health or that they exposed him to a degree of
mental suffering attaining the minimum level of severity required by
Article 3 of the Convention.
Therefore,
the Court considers that the applicant’s complaint does not
disclose any appearance of a violation of Article 3 of the
Convention. It follows that it is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under of Article 6 of the Convention that
in the course of his criminal proceedings he had not been allowed to
participate in the hearing of the appellate court. The provision in
question, in its relevant part, provides the following:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
....”
The
Court reiterates that Article 6, read as a whole, guarantees the
right of an accused to participate effectively in a criminal trial,
including, inter alia, not only his right to be present, but
also to hear and follow the proceedings (see Stanford v. the
United Kingdom, 23 February 1994, § 26, Series A no.
282-A). The principle of equality of arms – one of the
elements of the broader concept of a fair trial – requires each
party to be given a reasonable opportunity to present his case under
conditions that do not place him at a substantial disadvantage
vis-à-vis his opponent (see, among other authorities,
Nideröst-Huber v. Switzerland, judgment of 18 February
1997, § 23, Reports 1997-I). The concept of a fair trial
also means in principle the opportunity for the parties to a trial to
have knowledge of and comment on all evidence adduced or observations
filed with a view to influencing the court’s decision (see
Kress v. France [GC], no. 39594/98, § 74,
ECHR 2001-VI, with further references).
It follows that a person charged with a criminal
offence should, as a general principle based on the notion of a fair
trial, be entitled to be present at the first-instance hearing.
However, the personal attendance of the defendant does not
necessarily take on the same significance for an appeal hearing.
Indeed, even where an appellate court has full jurisdiction to review
the case on questions both of fact and law, Article 6 does not always
entail the right to a public hearing and to be present in person.
Regard must be had in assessing this question to, inter alia,
the special features of the proceedings involved and the manner in
which the defence’s interests are presented and protected
before the appellate court, particularly in the light of the issues
to be decided by it and their importance for the applicant (Belziuk
v. Poland, 25 March 1998, § 37, Reports of Judgments and
Decisions 1998-II; and Kremzow v. Austria, 21
September 1993, §§ 58-59, Series A no. 268-B ...).
In
the present case, it must be noted at the outset that the applicant
did not inform the Court about the detailed course and the ultimate
outcome of the impugned proceedings. Nevertheless, it appears that a
public hearing was held at first instance, at which the applicant was
heard. Moreover, the applicant was represented by a lawyer before the
first and second-instance courts.
The
Płock Regional Court which rejected the applicant’s
request to be brought to the appellate trial, reasoned that his
presence was unnecessary in the light of the fact that his legal-aid
lawyer was under a duty to participate in the hearing and that the
applicant had already presented his case in the appeal which he had
submitted to the court in writing (see paragraph 23 above).
In
these circumstances, the Court finds no indication that the applicant
was prevented from properly arguing his case or from submitting his
arguments to the courts. The applicant had the opportunity to present
his defence in the written appeal which he had submitted to the court
and at the appeal trial his interests were represented by his counsel
(in contrast, Belziuk v. Poland, ibid, §§ 38-40).
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON
ACCOUNT OF WITHOLDING AND MONITORING OF THE APPLICANT’S
CORRESPONDENCE
The
applicant complained under Article 8 of the Convention about the
censorship and the withholding of two letters sent by him to the
Registry of the Court. The relevant part of this provision reads as
follows:
“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.”
A. Admissibility
The
Government submitted that the applicant had not exhausted all
available domestic remedies in that he had failed to bring an action
under Article 24 §§ 1 and 2 in conjunction with
Articles 417, 448 and 23 of the Civil Code. These provisions would
have allowed him to assert that by censoring his correspondence the
authorities had breached his personal rights protected by the Civil
Code and claim non-pecuniary damages.
In this connection, the Government relied on the
judgment delivered by the Warsaw Regional Court on 27 November 2006
in which a prisoner had been awarded PLN 5,000 in damages from the
State Treasury for a breach of secrecy of his correspondence with the
Central Board of the Prison Service and the Central Electoral Office.
The Regional Court held that secrecy of correspondence was one of the
personal rights protected under Article 23 of the Civil Code and
that in the case of its breach a claimant may be entitled to an award
of non-pecuniary damages. The judgment was upheld by the Warsaw Court
of Appeal on 28 June 2007.
The
applicant did not submit observations in this respect.
The
Court observes that Article 35 § 1 must be applied with some
degree of flexibility and without excessive formalism. The rule
of exhaustion of domestic remedies contained in that provision
requires that normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in
respect of the breaches alleged. The existence of the remedies
in question must be sufficiently certain not only in theory but in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, among other authorities, Akdivar and
Others v. Turkey, judgment of 16 September 1996,
Reports of Judgments and Decisions 1996-IV, § 65).
The alleged censorship in the present case concerned
two letters sent by the applicant on 1 January and 7 February
2005, therefore before the delivery of the Warsaw Regional Court’s
judgment of 27 November 2006. Hence, any relevance that that judgment
might possibly have in respect of the present case is reduced by the
fact that it was given after the relevant time (see, among other
authorities, Lewak v. Poland, no. 21890/03, § 25,
6 September 2007; Kołodziński v. Poland,
no. 44521/04, § 29, 8 January 2008; and Misiak v. Poland,
no. 43837/06, § 18, 3 June 2008).
Moreover, the Court notes that the examples of
domestic case-law provided by the Government do not constitute
evidence of a sufficiently established judicial practice to show that
a claim for damages under Article 24 §§ 1 and 2 in
conjunction with Articles 417, 448 and 23 of the Civil Code was an
effective remedy available in theory and practice at the material
time.
In the circumstances of the case, it cannot therefore
be said that any attempt by the applicant to seek redress by lodging
such an action would have provided reasonable prospects of a
successful outcome (see Pasternak v. Poland, no.
42785/06, § 29-32, 16 July 2009).
It
follows that the Government’s plea of inadmissibility on the
ground of non-exhaustion of domestic remedies must be dismissed.
The
Court notes that this complaint 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.
B. Merits
1. Whether there was interference
It
is noted that the envelopes, in which the applicant’s letters
of 1 January and 7 February 2005 were sent to the Registry of
the Court, bear stamps indicating that the letters had been censored
(see paragraphs 25 and 26 above).
The Court has held on many occasions that as long as
the Polish authorities continue the practice of marking detainees’
letters with the “censored” stamp, the Court has no
alternative but to presume that those letters have been opened and
their contents read (see Matwiejczuk v. Poland,
no. 37641/97, § 99, 2 December 2003;
Pisk-Piskowski v. Poland, no. 92/03, § 26,
14 June 2005, Michta v. Poland, no. 13425/02,
§ 58, 4 May 2006).
It follows that in respect of the applicant’s
letters of 1 January and 7 February 2005 there was
“interference” with his right to respect for his
correspondence under Article 8.
2. Whether the interference was “in accordance
with the law”
The Court reiterates that any “interference by a
public authority” with the right to respect for correspondence
will contravene Article 8 of the Convention unless it is “in
accordance with the law”, pursues one or more of the legitimate
aims referred to in paragraph 2 of that Article and is
“necessary in a democratic society” in order to achieve
them (see, among many other authorities,
Silver and Others v. the United Kingdom,
25 March 1983, Series A no. 61, p. 32, § 84;
Campbell v. the United Kingdom, 25 March 1992,
Series A no. 233, p. 16, § 34; and
Niedbała v. Poland no. 27915/95,
§ 78).
It is important to respect the confidentiality of
applicant prisoners’ correspondence with the Court since it may
concern allegations against prison authorities or prison officials.
The opening of letters both to and from the Convention organs
undoubtedly gives rise to the possibility that they will be read and
may conceivably, on occasion, also create the risk of reprisals by
prison staff against the prisoner concerned (see Campbell,
cited above, p. 22, § 62). No compelling reasons have been found
to exist for monitoring or delaying an applicant’s
correspondence with the Court (see Campbell, cited above, §§
48 and 62; and Peers v. Greece, no. 28524/95, § 84,
ECHR 2001-III; and Drozdowski v. Poland, no. 20841/02,
§§ 27-31, 6 December 2005).
As
regards the interference with the applicant’s right to respect
for his correspondence with the Court, the Court observes that
Article 103 of the 1997 Code expressly prohibits the monitoring of
correspondence with the European Court of Human Rights (see Michta,
cited above, § 61, and Kwiek, no. 51895/99, § 44, 30
May 2006).
It
follows that the interference with the applicant’s
correspondence with the Court was not “in accordance with the
law”. Having regard to that finding, the Court does not
consider it necessary to ascertain whether the other requirements of
paragraph 2 of Article 8 were complied with.
Consequently,
the Court finds that there has been a violation of Article 8 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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. Damage
The
applicant claimed 105,000 euros (EUR) in respect of non pecuniary
damage.
The
Government submitted that the applicant’s claim was excessive.
The
Court awards the applicant EUR 3,200 in respect of non pecuniary
damage on account of the violation of Articles 3 and 8 of the
Convention.
B. Costs and expenses
The
applicant claimed no costs and expenses, either for the Convention
proceedings or for the proceedings before the domestic courts.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints
concerning the inadequate conditions of the applicant’s
detention and the interference with his correspondence admissible and
the remainder of the application inadmissible;
Holds that there has been a
violation of Article 3 of the Convention;
Holds that there has been a
violation of Article 8 of the Convention;
Holds
(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 3,200 (three thousand two hundred 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;
Dismisses the remainder of
the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
