European Court of Human Rights

 

 

 

FOURTH SECTION

Application no.48369/09
DanutaSZWED-WÓJTOWICZ
against Poland
lodged on 3 September 2009

STATEMENT OF FACTS

 

The applicant, Ms DanutaSzwed-Wójtowicz, is a Polish national, a lawyer who was born in 1949. She is currently serving a prison sentence in Łódź prison.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Criminal proceedings against the applicant

On 1 February 1995 the District Prosecutor in Łódź held a press conference and informed the public that company A., of which the applicant owned 90 per cent of shares, had been issuing short-term obligations without a necessary licence to run a bank-like operations.

On 6 April 1995 the prosecutor charged the applicant with offences of running bank-like operations without licence and of issuing obligations without permission by the Securities Commission (KomisjaPapierówWartościowych).

On 5 February 1998 a bill of indictment against the applicant was lodged with the Łódź District Court. The applicant was accused of six various offences connected with and resulting from running a company conducting bank‑like activities without necessary licences.Another bill of indictment, concerning further similar charges, was lodged with the same court on 26 March 1998. The Łódź District Court joined the cases and examined them jointly.

By a judgment of 27 June 2006 the applicant was acquitted of two charges and convicted of two other charges of fraud.She was sentenced to five years and six months’ imprisonment.

The applicant appealed.

On 26 November 2007 the ŁódźRegional Court dismissed her appeal.

The applicant lodged a cassation appeal with the Supreme Court. On 6 March 2009 the Supreme Court held a hearing and dismissed the applicant’s appeal, finding that it was manifestly ill‑founded. Having heard the parties, the court gave orally brief grounds for its decision.

The copy of the decision contained information that under Article 535 § 2 of the Code of Criminal Procedure no written grounds for that decision shall be prepared.

2.  The applicant’s medical history

In July 1997 the applicant was admitted to the ŁódźRegionalHospital with one-sided paresis. She was treated there for three weeks. Diagnosis of an ischemic cerebral incident (stroke) was made.

In March 1999 the applicant was hospitalised for three weeks following a loss of consciousness. Certain chronic problems with cerebral circulation caused by the vascular incident she had had in 1995 were diagnosed.

From 21 to 31 October 2002 the applicant was hospitalised again. Spots of post-stroke cerebral damage, persistent headaches, spots of intra‑cranial calcifications and hypertension were diagnosed.

From 17 to 23 October 2011 the applicant was treated in a hospital in connection with her condition resulting from the stroke.

From 4 to 10 May and from 6 to 17 June 2008 the applicant was hospitalised again in connection with acute pancreas inflammation.

On 25 May 2008 the applicant was operated on. A hematoma in extra peritoneal cavity was diagnosed and evacuated. She was discharged on 4 June 2007.She was hospitalised again shortly afterwards in connection with post‑operational complications and subsequently discharged on 28 July 2008.

In February 2009 the applicant was operated again in connection with certain complications following the operation she had had in 2008.She was diagnosed as having had an enteric fistula, a status post-occlusion caused by hematoma, chronic inflammation of pancreas, chronic cerebrovascular insufficiency and recurrent left-side paresis (paralysis) resulting from several strokes.

On 22 June 2009 the Disability Board (zespół do spraworzekania o niepełnosprawności) gave a decision, confirming that the applicant was suffering from significant disability (niepełnosprawnośćstopniaznacznego).

On 19 January 2010 the applicant was admitted to a hospital in Łódź. She was diagnosed as suffering from chronic pancreas inflammation, liver disease, chronic cerebrovascular insufficiency, depression, recurrent left-side paresis resulting from several strokes.

She was discharged on 27 January 2010.Ten various medicaments were prescribed to be taken on permanent basis.

The applicant was hospitalised again on 28 April 2010 for strong abdomen pains caused apparently by pancreas inflammation. Seven various medicaments were prescribed, essentially to alleviate the circulation and pancreas problems and analgesics and relaxants.

From November 2006 until November 2010 the applicant was under supervision by a neurologist whom she had visited on 26 occasions. In a certificate dated 15 April 2011 he stated that her condition necessitated a permanent neurological supervision.

3.  Medical care in prison

On 4 November 2010 the applicant was arrested and taken to the Łódź prison in order to serve her sentence.

On 29 November 2010 she requested to be granted temporary release (przerwa w karze). She referred to her numerous ailments and the need to have them treated properly which, in her submission, was impossible in prison, in particular in respect of her persistent neurological condition resulting from repeated strokes.

On 16 June 2011 the ŁódźRegional Court, Penitentiary Division (WydziałPenitencjarnyiNadzorunadWykonaniemOrzeczeńKarnych) refused to allow the applicant’s request.It was of the view that the grounds for ordering a temporary release, provided for by Article 153 § 2 of the Code of Execution of Sentences, did not obtain in the case.Prisons were not deprived of medical services.It relied on two medical certificates given by doctors working for prison medical services. Both doctors acknowledged that the applicant’s health was very fragile (“jest osobąschorowaną”) and listed her ailments. However, these ailments by themselves did not mean that she had a right to be treated by civil doctors and to be released. The court further noted that her situation had been discussed with specialists, a vascular surgeon and psychiatrist (apparently by the two doctors who had signed the certificates referred to above).Other medical examinations and medical certificates had also been issued in her case.The applicant was under medical care and she was fit for detention.In any event, she was not really interested in improving her health as she had been on several occasions penalised for hoarding medicaments.

The applicant appealed.Her lawyer argued that the court had referred to the views of specialists.However, no documents on the case‑file indicated that any specialists had certified their opinions by any officially signed medical records available in the applicant’s file.The prison doctors on whose certificates the court had relied were not specialists relevant for the applicant’s condition.Furthermore, it was not in dispute that the applicant had for a long time been suffering from cerebrovascular insufficiency and that she had had several strokes which had caused partial paresis. Nevertheless, she had not been examined by a neurologist since she had started to serve the sentence.The argument that the applicant had not been interested in improving her health could not be regarded as serious. The court had failed to establish what medicaments had been prescribed to her,whether they had been appropriate in her condition and whether the applicant, who had over the years acquired reasonable knowledge about her condition and treatment, had not been right in hoarding rather than takingthem.

It was further submitted that the court had erred in refusing to admit evidence from a report of specialists in forensic medicine who could assess the applicant’s condition globally and determine whether she was really fit for detention.

On 31 August 2011 the Łódź Court of Appeal allowed the appeal. It was of the view that the first-instance court had failed to establish the facts properly. The character and number of the applicant’s numerous and serious ailments called for a detailed medical opinion, in particular given by a neurologist. The court noted that the applicant had been under neurological supervision since 2006 and that she had strokes on six occasions.It was of the view that the taking of the evidence should therefore be complemented by more detailed opinions of relevant specialists.

The applicant submitted to the court a privately commissioned medical opinion, referring to twenty-one various documents from her medical records.It confirmed the applicant’s ailments. It was further stated that the medical records of the care which the applicant had been receiving in prison were not sufficiently detailed and coherent to allow for establishing her current condition. It could therefore not be excluded that she was not fit for detention and that her serving of sentence was dangerous to her health and life. She should be examined by, at least, a neurologist and a specialist in internal medicine.

In its decision of 24 February 2012 the ŁódźRegional Court refused to release the applicant. It was of the view that the applicant was fit for detention, having regard to a medical certificate, given by a non-identified doctor, apparently working for prison medical services, and dated 10 January 2012.It noted that since her arrest the applicant had been examined by a neurologist, psychiatrist, vascular surgeon and a gastroenterologist.

The applicant’s appeal was dismissed by the Łódź Court of Appeal on 24 April 2012, that court sharing the conclusions of the lower court as to the applicant being fit for detention.

B.  Relevant domestic law

The provisions pertaining to medical care in detention facilities and to the general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of SławomirMusiałv. Poland, no. 28300/06, §§ 48-61 ECHR 2009‑... (extracts) and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009.

In particular, Article 153 § 2 of the Code of Execution of Criminal Sentences provides that a temporary release from prison can be ordered if important personal or health reasons justify it.

COMPLAINTS

The applicant complains under Article 3 of the Convention about inadequate medical care provided to her during her imprisonment and about the courts’ refusal to take her condition into consideration when refusing to grant her a temporary release on medical grounds.

The applicant further complains that the criminal proceedings in her case lasted for fourteen years which breached her rights to have her case examined within a reasonable time.

The applicant further complains, relying on Article 6 of the Convention, that the decision of the Supreme Court dismissing her cassation appeal contained no written grounds and that no such grounds would have been prepared at her request. This, in her view, amounts to a violation of her right to a fair hearing as knowing the grounds for a judicial decision on the merits of a case constitutes a crucial element of that right.

The applicant submits that the criminal courts had committed serious breaches of substantive law in convicting her, essentially because they based her conviction on untenable and unlawful interpretation of applicable provisions of criminal law and had wrongly assessed the evidence against her.She argues that issuing short-term obligations could not, at the relevant time, be regarded as unlawful.

 

 

QUESTION TO THE PARTIES

 

Do the conditions in prisons where the applicant is serving her sentence amount to degrading or inhuman treatment in breach of Article 3 of the Convention, taking into account in particular, the applicant’s ailments and the quality of medical care she receives?