AS TO THE ADMISSIBILITY OF
by Lucjan NOCHA
The European Court of Human Rights (Fourth Section), sitting on 27 September 2011 as a Chamber composed of:
Nicolas Bratza, President,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 25 March 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Lucjan Nocha, is a Polish national who was born in 1963 and lives in Częstochowa. He is represented before the Court by Ms A. Przedpełska, a lawyer practising in Częstochowa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The background of the case
Since his early childhood, the applicant has been suffering from epilepsy marked by frequent seizures.
On 23 March 2008 the applicant was remanded in custody in the United Kingdom in connection with criminal proceedings pending at that time against him. During his detention, he was treated at St George’s Hospital.
On 18 July 2008 the applicant was extradited to Poland.
On 17 February 2009 he was convicted of a criminal offence by a competent Polish court and sentenced to three years’ imprisonment.
The proceedings are currently pending on appeal.
2. The chronology of the applicant’s detention in Poland
On 27 August 2008 the applicant was committed to Częstochowa Remand Centre.
On 25 March 2009 he was transferred to the hospital of Gdańsk Remand Centre.
On 2 June 2009 the applicant was discharged from the hospital and transported in a prison van to Częstochowa Remand Centre (a journey of approximately 500 km). He was committed to Bydgoszcz Remand Centre overnight. Subsequent short stopovers took place on 3 June at Piotrków Trybunalski and Inowrocław Remand Centres.
On 3 June 2009 at 5 p.m. the applicant arrived at Częstochowa Remand Centre. He was detained there until 25 August 2009 when he was released.
On 19 November 2009 the applicant was committed to Częstochowa Remand Centre to serve his prison sentence.
Six days later, on 25 November 2009 he was granted prison leave on health grounds.
3. The conditions of the applicant’s detention in Częstochowa Remand Centre
(a) The applicant’s submission
The applicant submitted that in Częstochowa Remand Centre he had been detained in overcrowded cells. The cells in question measured on average 12 sq. m and were shared by eight detainees including the applicant (1.5 sq. m per person). They were insufficiently lit. As a result, the applicant’s eyesight deteriorated.
The applicant also claimed that the cells had been dirty and infested with insects. They were furnished with triple bunk beds, two tables and stools. The toilet annex in each cell was not separated and there was always a stench inside.
The applicant also complained of being bullied and laughed at by the staff of Częstochowa Remand Centre.
(b) The Government’s submission
The Government acknowledged that from September 2008 until November 2009, with the exception of July 2009, Częstochowa Remand Centre had been overcrowded. The degree by which the number of prisoners exceeded the maximum capacity for that detention facility (calculated on the basis of the standard of 3 sq. m of cell space per prisoner provided for in Polish law) ranged from 22 to 33% in the period from September 2008 until January 2009. It was 16% in February, 7% in April, 5% in June, 3% in August, and 12% in November 2009.
Moreover, the detailed records provided by the Government reveal the following information concerning the applicant.
From 27 August until 17 October 2008 the applicant was assigned to cell no. 30 which measured 14 sq. m. It was shared by three to seven detainees, including the applicant (2 to 4.6 sq. m per person).
From 17 to 23 October 2008 the applicant was committed to cell no. 27 which measured 14.6 sq. m and was shared by five detainees including the applicant (2.9 sq. m per person).
From 23 October 2008 until 17 February 2009 he was again detained in cell no. 30, which was this time shared by five to seven persons (2 to 2.8 sq. m per person).
Lastly, from 3 June to 25 August 2009 and from 19 to 25 November 2009 the applicant was held in cells nos. 37 and 39 respectively, which measured over 16 sq. m and were shared by two to seven detainees including the applicant (2.3 to 8 sq. m per person).
The Government also submitted that the applicant’s cells had been clean, with the toilet annex separated by a concrete or plywood wall. The applicant had one shower per week and an hour’s outdoor exercise per day.
4. The applicant’s medical condition and treatment afforded to him during his detention in Poland
(a) The applicant’s submission
The applicant submitted that in Częstochowa Remand Centre he had not been under regular medical supervision and that his epilepsy had been treated with inadequate generic drugs administered in wrong dosages. As a result his epileptic seizures had increased and he had lived in constant fear for his life and in despair.
Ambulances were called to the remand centre for the applicant on more than sixty occasions (namely, five times in November and twenty-two times in December 2008, eighteen times in January, twelve in February and seven in March 2009). He continued to have fits in Gdańsk Remand Centre hospital, although, as he submitted, the medicine he received there had been more effective. The applicant also submitted that throughout his detention he had often been taken to the local hospitals in Częstochowa for emergency treatment.
During the applicant’s journey from Gdańsk to Częstochowa Remand Centre on 2 and 3 June 2009, he did not receive adequate medical attention. His medicine was administered in the evening of 2 June in Bydgoszcz Remand Centre. The next morning, however, despite his repeated requests, the applicant did not receive any drugs. On 3 June at 1 p.m. he had a serious epileptic fit, after which he lost consciousness.
On 17 July 2009 the applicant had a serious epileptic seizure during his outdoor exercise in Częstochowa Remand Centre. He fell and hit his head on the concrete floor of the courtyard. He received some help from his fellow inmates. Five minutes into the seizure the applicant was surrounded by the remand centre’s guards who were armed and wearing bullet proof vests. A remand centre doctor and a nurse only arrived twenty-five minutes later. The applicant was given an injection. Still unconscious, he was taken inside the building, where he was given another injection. He was then moved inside his cell, where he suffered from another seizure. Only then was an ambulance called and the applicant received some further medical treatment.
On 26 July 2009 he was denied access to the remand centre’s in-house doctor, even though he was not feeling well. His legs became momentarily paralysed and he was dragged into his cell by his fellow inmates. Since then, he has had difficulty walking.
(b) The Government’s submission
The Government submitted that throughout his detention the applicant had been under constant medical treatment and care in conformity with the requirements of his medical condition and the recommendations of specialist doctors. In order to avoid any accidents or injuries the applicant was assigned a bottom bunk bed. He was also regularly administered medicines as prescribed by a neurologist and a psychiatrist.
The Government did not comment on the number of the applicant’s epileptic seizures and medical emergencies. It was noted, however, that despite the efforts of the remand centre’s medical staff, the applicant’s epileptic fits had become more frequent and more serious.
In March 2009 the applicant had to be hospitalised in Gdańsk Remand Centre. He was prescribed complex pharmacological treatment for patients with medicine-resistant epilepsy. The treatment gave good results and on 2 June 2009 the applicant was transferred back to Częstochowa Remand Centre in good condition with the recommendation to follow further treatment as an out-patient.
The Government did not comment on the applicant’s transport from the hospital in Gdańsk to Częstochowa Remand Centre on 2 and 3 June 2009. They also did not refer to the alleged incidents of 17 and 26 July 2009.
In the Government’s submission, until his release from the remand centre on 25 August 2009, the applicant’s seizures were mild and less frequent than before his hospitalisation.
On the other hand, when the applicant returned to prison on 19 November 2009 after nearly two months at liberty, his epilepsy was much worse than before his release. A medical examination of 23 November 2009 confirmed that the applicant was at risk of suffering injuries during his epileptic fits in prison and that he was not fit for further detention. On these grounds the authorities of Częstochowa Remand Centre applied to suspend the execution of the applicant’s sentence (zawieszenie wykonania kary). The suspension was granted on 25 November 2009.
(c) Documents concerning the applicant’s medical treatment during his detention
On 13 May 2009 the Katowice Court of Appeal (Sąd Apelacyjny) examined the applicant’s interlocutory appeal against a decision to extend his pre-trial detention. The applicant argued, among other things, that he had not been fit for further detention. The domestic court relied on an expert report which had been obtained by the first-instance court reviewing the applicant’s preventive measure. It appears from another document in the Court’s possession that the expert report in question was ordered by the Częstochowa Regional Court on 15 January 2009. As quoted by the Katowice Court of Appeal, the expert had concluded that the applicant could receive adequate treatment in detention.
The hospital information chart (karta informacyjna) of 2 June 2009, which was signed by a neurology specialist, Dr D.Z.W., contained the following relevant information: “Recommendations for further treatment: Periodical neurological check-ups. Regular pharmacological treatment. Bottom bunk bed. Medicine: Tegretol CR400 2 x 1 pill, Lamotrix 2 x 150 mg, Kepra 2 x 500 mg.”
On 9 November 2009 the applicant was certified as having a mild disability (umiarkowany stopień niepełnosprawności). The relevant document stated that the applicant had had the disability since 2002.
5. The applicant’s medical condition after release
Since his release the applicant has been receiving constant medical treatment but his epilepsy is very severe. He suffers from frequent seizures, dizziness and anxiety. He claimed that he had to be accompanied by another person in his daily routine.
From 11 to 15 March 2010 the applicant was admitted to the Częstochowa Municipal Hospital (Miejski Szpital Zespolony) because he had broken his elbow during one of his epileptic fits.
The applicant submitted that his current state of health had been caused by the inadequate treatment provided to him in prison.
6. Actions concerning the conditions of the applicant’s detention
The applicant lodged numerous complaints with the Governor of Częstochowa Remand Centre, the Director of the Prison Service and with other prison authorities. He claimed that he had not received adequate medical care in Częstochowa Remand Centre. He also alleged to have been denied access to his medical records.
Moreover, the applicant submitted many habeas corpus requests, asking to be released on health grounds.
Lastly, the applicant submitted that he could not afford to bring a civil lawsuit.
B. Relevant domestic law and practice
The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61 ECHR 2009 ... (extracts); and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009. More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08, §§ 25-54, 12 October 2010).
In particular, the following civil-law provisions regulate the State Treasury’s liability in tort.
“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 § 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 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.”
Moreover, Article 445 § 1 of the Civil Code, applicable in the event that a person suffers a bodily injury or 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.”
Lastly, 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 as follows:
“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 4421 of the Civil Code sets out the limitation periods for civil claims based on tort. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows:
“1. A claim for compensation for damage caused by a tort shall not be brought after the expiration of three years from the date on which the claimant learned of the damage and of the person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”
The applicant complained under Article 3 of the Convention of inadequate medical care provided to him during his detention in Poland, in particular in Częstochowa Remand Centre. He also complained that the conditions of his detention had been very poor and had failed in particular to meet the standard required for persons in his state of health.
The applicant complained under Article 3 of the Convention of inadequate medical care provided to him during his detention in Poland, in particular in Częstochowa Remand Centre. He also complained that the conditions of his detention had been very poor and had failed in particular to meet the standard required for persons in his state of health. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government raised a preliminary objection, arguing that the applicant had not exhausted the domestic remedies available to him.
They submitted that the applicant did not lodge any complaints with the prison authorities regarding the overcrowding and inadequate living conditions in Częstochowa Remand Centre or bring a civil action for compensation for the alleged deterioration of his health (material damage) or suffering (non-material damage) sustained as a result of the inadequate medical care and conditions of his detention under Article 23 of the Civil Code, read in conjunction with Articles 417 or 448 of that Code.
In particular, Article 417 of the Civil Code is a well-established and effective remedy which provides for the liability of the State Treasury for any material damage, including health damage, incurred as a result of an unlawful action or omission of a State official carried out in the course of performing his duties.
To that effect the Government referred to a judgment delivered by the Warsaw Court of Appeal on 18 March 2008 in the case of M.M., no. IACa 587/07. The domestic court awarded the plaintiff, a mentally ill detainee, 50,000 Polish zlotys on account of a wrong diagnosis and resulting lack of psychiatric treatment in detention.
Moreover, the Government argued that an action for infringement of personal rights under Articles 23 and 24 of the Civil Code read in conjunction with Article 448 of that Code would have been equally effective in the applicant’s case. To that end they cited a number of judgments of various domestic courts awarding pecuniary compensation to former detainees who proved that they had suffered non-material damage because of overcrowding and inadequate conditions of their detention (for those and further references see Łatak, cited above, §§ 47-54).
Lastly, the Government drew the Court’s attention to the fact that indigent plaintiffs were free to apply for a waiver of court fees under section 102 of the Act of 28 July 2005 on Court Fees in Civil Proceedings.
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 did not comment on the Government’s preliminary objection.
A. General principles relating to exhaustion of domestic remedies
The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention 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 also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).
In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (ibid., § 68).
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).
B. Application of these principles to the present case
The Court has recently examined two cases against Poland which are similar to the instant application. One was an application by an epileptic prisoner who complained of inadequate medical care (Kaprykowski v. Poland, no. 23052/05, 3 February 2009) and another one, brought by a mentally ill detainee who, like the applicant in the instant case, complained of inadequate medical care combined with prison overcrowding and inadequate living conditions (see Sławomir Musiał, cited above).
Both applications were introduced and examined at the time when the practice of Polish civil courts concerning claims for infringement of personal rights under Article 23 of the Civil Code, read in conjunction with Article 448 of that code was not uniform and consolidated (see Kaprykowski, §§ 54-56, and Sławomir Musiał, §§ 76-77, both cited above). The applicant in the first case spent nearly ten years in detention before introducing his application with the Court and an additional two and a half years after that. The applicant in the second case was still in detention when his case was being examined by the Court and the overcrowding in Polish detention facilities was of a systemic nature (see Sławomir Musiał, cited above, § 75).
The Government’s preliminary objection about the non-exhaustion of domestic remedies on the ground that the applicants had not availed themselves of a civil remedy was rejected by the Court in both of the above-mentioned cases.
The Court held that since such civil claims could possibly result only in awards of compensation and could not lead to an improvement of the status quo, they were not a remedy capable of providing adequate redress (see Kaprykowski, §§ 54-56, and Sławomir Musiał, §§ 77 and 82, both cited above; and, mutatis mutandis, Orchowski, cited above, §§ 108-09). It was explained that remedies for conditions of detention which were of a purely compensatory nature could be regarded as effective only in respect of applicants who had either been released or placed in conditions which met Convention standards (see Orchowski, cited above, § 109).
The Court fully confirmed that position in a number of recent cases brought against Poland in the context of prison overcrowding and inadequate detention conditions (see, among others, Łatak, cited above, §§ 77-85). More importantly, however, in these recent cases, the Court found that as from 17 March 2010 a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purpose of Article 35 § 1 of the Convention. Having regard to the three-year statute of limitation for lodging such an action, the Court held that in essentially all cases in which, in June 2008 or later, 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 claim compensation (see, in particular, Łatak, cited above, § 85).
The question which arises in the circumstances of the instant case is whether a purely compensatory remedy would be sufficient to provide the applicant with adequate redress at present, seeing that he is no longer being detained.
The applicant lodged his application with the Court on 25 March 2009. His detention in Częstochowa Remand Centre began seven months prior to that date and ended less than three months after it. He was released from the remand centre on 25 August 2009 and remained at liberty until 19 November 2009. On the latter date the applicant was again committed to the remand centre but six days later, namely on 25 November 2009, the execution of his sentence was suspended because he was considered not to be fit for detention.
Before lodging his application with the Court, the applicant complained to various prison authorities that during his detention in Częstochowa Remand Centre he had been provided with inadequate medical care and treatment. He had also raised the issue of his allegedly deteriorating health in his numerous habeas corpus appeals.
Copies of the relevant letters from the authorities in reply to the applicant’s complaints have not been submitted to the Court. It appears, however, that the medical treatment afforded to him in Częstochowa Remand Centre was considered appropriate and, consequently, his complaints were considered ill-founded. It is uncertain whether it was because of the applicant’s actions or on the authorities’ own initiative that on 25 March 2009 the applicant was transferred to the hospital of Gdańsk Remand Centre where he was given different medical treatment. In any case, however, during the applicant’s detention prior to 25 November 2009, the authorities at all times considered that he was fit for detention.
It appears that, as the Government indicated, the applicant has not lodged any similar complaints about the alleged overcrowding and inadequate living conditions in Częstochowa Remand Centre.
The Government argued that, in addition to his complaints to the prison authorities about his medical care, the applicant should have brought a civil action for compensation for material and non-material damage on account of the alleged deterioration of his health and any suffering caused by inadequate living conditions in the remand centre.
In principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Orchowski cited above, § 109, and Demopoulos and Others v. Turkey [GC], (dec.) no. 46113/99, ECHR 2010-..., § 87). However, as the Court has held in its leading decision in the Łatak case (cited above, § 79) and on many other occasions prior to that decision, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Dempoulos and Others, ibid., with further references). Among such exceptions there are certainly situations where, following a pilot judgment on the merits in which the Court has found a systemic violation of the Convention, the respondent State makes available a remedy to redress at domestic level grievances of similarly situated persons (see Demopoulos and Others, cited above, §§ 87 88; Broniowski v. Poland (merits) [GC], no. 31443/96, §§ 191-93, ECHR 2004-V; and Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 25-26 and 33-44, 23 September 2010).
To that effect, in the lead inadmissibility decision in the case of Łatak v. Poland, the Court expressly held that the above-mentioned exception applies to subsequent applications concerning conditions of detention filed with the Court which have not yet been declared admissible and that it is appropriate to assess the adequacy of the remedy relied on by the Government in the light of the present-day situation.
That said, the Court has also considered that applicants should not always be expected or required to act with the utmost scrupulousness in availing themselves of all the remedies available. Such exceptions have indeed been made in particular circumstances; for example, when the applicant has psychiatric problems (see Sławomir Musiał, cited above, § 73). The Court is of the opinion that this exception does not apply to the applicant in the instant case, because, apart from living with an obvious handicap on account of his epilepsy, he enjoys full mental capacity in his current life at liberty.
The civil-law remedies indeed appear suitable in the applicant’s case. Firstly, the situation giving rise to the alleged breach of Article 3 of the Convention no longer exists. Secondly, the applicant not only claimed that his inadequately treated epilepsy had caused him suffering during his detention because of the increased frequency and seriousness of his seizures, he also argued that it had resulted in material damage to his health which had long-lasting effects. He expressly asserted that his current state of health had been caused by the inadequate treatment provided to him in prison. The Court is neither mandated nor in a position to obtain and examine the evidence which would be necessary to rule on the existence of a causal link between the applicant’s treatment in prison and his current state of health. Conversely, a domestic civil court would be well-suited to examine such an issue and, if appropriate, to award the applicant sufficient redress for the damage suffered by him during his detention and at present.
In these circumstances and having regard to the fundamental principle of subsidiarity, the Court considers that the applicant still has time to bring a civil action under Article 23 taken in conjunction with Article 417 or Article 448 of the Civil Code in order to seek compensation for the alleged past violation.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas