EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25669/94

Andrzej Jastrzębski

against

Poland

REPORT OF THE COMMISSION

(adopted on 19 May 1998)

25669/94 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-52)              3

A. The particular circumstances of the case

(paras. 17-50)              3

B. Relevant domestic law

(paras. 51-52)              6

III. OPINION OF THE COMMISSION

(paras. 53-65)              7

A. Complaint declared admissible

(para. 53) 7

B. Point at issue

(para. 54) 7

C. As regards Article 3 of the Convention

(paras. 55-64)              7

CONCLUSION

(para. 65) 9

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Polish citizen, born in 1948.

3. The application is directed against Poland.  The respondent Government were represented by Mr Krzysztof Drzewicki , of the Ministry of Foreign Affairs.

4. The case concerns the allegations of insufficient medical treatment in prison.  The applicant invokes Article 3 of the Convention.

B. The proceedings

5. The application was introduced on 14 September 1994 and registered on 15 November 1994.

6. On 22 February 1995 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Articles 3 and 25 of the Convention.

7. At the Government's requests dated 18 April 1995, the time-limit for the submission of the observations was subsequently extended.  On 9 May 1995 the Government requested a further extension of the time-limit until 30 May 1995.  By letter of 18 May 1995 the Government were informed that the application was being considered for inclusion in the list of cases for examination by the Commission at its June 1995 session.

8. The Government's observations were submitted on 5 July 1995.

9. On 6 July 1995 the Commission declared admissible the applicant's  complaint under Article 3 of the Convention.  It declared inadmissible the remainder of the application and decided to take no further action in respect of the alleged interference with the effective exercise of the applicant's right of petition.

10. The text of the Commission's decision on admissibility was sent to the parties on 20 July 1995 and they were invited to submit such further information or observations on the merits as they wished.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 19 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant, a Polish citizen born in 1948, is a construction technician.  He is currently serving a prison sentence in Potulice prison.

18. In 1988 the applicant's right thumb was amputated as a result of a car accident.

19. On 10 May 1991 the applicant was arrested and detained on remand, on suspicion of selling stolen goods, breaking and entering  and theft by virtue of a warrant of arrest issued by the Leszno District Public Prosecutor.

20. In June 1991 the applicant was released in order to undergo an operation of transplantation of a toe to his hand to replace the thumb.  From 24 June to 1 September 1991 he underwent an operation and treatment in the Orthopaedic Department of the Poznań Medical Academy.  On 1 September 1991 he left the hospital without having informed the staff thereof.

21. On 4 September 1991 the Poznań Regional Court (Sąd Wojewódzki ) decided to rearrest the applicant in view of the fact that he had left the hospital.  On 5 September 1991 applicant was rearrested in view of his escape from the hospital.  His hand was badly swollen and became gangrenous.  In November 1991 the applicant was released for health reasons in order to undergo a further operation.  Apparently he did not report to a hospital.

22. The applicant was rearrested on 5 March 1992.  In the same month he had an operation and the transplanted toe was amputated as the transplant had been rejected.  Apparently he was released in October 1992 and immediately thereafter admitted to a clinic specialised in hand surgery in which he underwent a further operation.

23. On 28 December 1992 the Poznań Regional Court issued a warrant of arrest against the applicant as he had failed to comply with the court summons.  On 4 April 1993 the applicant was rearrested and remanded in custody.  On 10 May 1993 the Poznań Court of Appeal (Sąd Apelacyjny ) dismissed the applicant's appeal against the warrant of arrest.

24. On 21 May 1993 the applicant underwent a medical examination at the Poznań Clinic of Forensic Medicine.

25. On 7 June 1993 the Poznań Regional Court dismissed the applicant's request for release.  On 27 July 1993 the Poznań Court of Appeal upheld this decision.

26. On 5 October 1993 the medical panel at the Poznań prison hospital

examined the applicant and concluded that it was necessary to release him for treatment in a specialised clinic.

27. On 18 October 1993 the Court decided that the applicant should be examined in the forensic medicine clinic.

28. On 16 November 1993 the PoznaÅ„ Regional Court dismissed the applicant's request for release. 

29. On 30 November 1993 the Poznań Regional Court requested the prison governor to arrange for the medical examination of the applicant by the medical panel to establish whether the applicant's detention entailed a serious danger to his life or health.

30. On 4 January 1994 the medical panel at the Poznań prison hospital, having examined the applicant on 30 December 1993, stated that the applicant suffered from an extensive post-amputation inflammation of the bone, with an abundant flow of pus.  The panel stated that it was necessary that the applicant underwent an operation in a specialised hospital to prevent further spreading of the inflammation.  The panel concluded that it was essential that the applicant was released.  It referred to the date of admission to the clinic, which had been set for 24 January 1994.

31. Apparently on 12 January 1994 the Director of the Forensic Medicine Ward informed the Court that the treatment required could be provided in detention.

32. On 24 January 1994 the Poznań Regional Court refused to release the applicant.  On 8 February 1994 the Poznań Court of Appeal upheld this decision.  The Court noted that the applicant had failed to undergo the treatment after he had been released for that reason in November 1991 and referred to the letter of 12 January 1994.  The Court considered that the risk of absconding, relied upon by the Court in its decision of 28 December 1992, had not ceased to exist.  The Court observed that the applicant could be treated in a prison hospital.

33. On 5 May 1994 the Poznań Medical Academy informed the prison hospital that the applicant could be admitted to the hospital on 6 or 13 June 1994 to have an operation and continued treatment.

34. On 24 May 1994 the medical panel at the Poznań prison hospital recommended that the applicant be released to undergo further treatment in a specialised surgical clinic.

35. On 4 June 1994 the Poznań Regional Court considered the applicant's request for release.  The Court requested the medical panel  to indicate whether the continued detention of the applicant would involve a serious and direct danger to his life and health.

36. On 6 June 1994 the Bydgoszcz Penitentiary Court (SÄ…d Penitencjarny ) decided that the execution of the applicant's prison sentence should be suspended so that he could undergo the necessary treatment, as recommended in the medical opinion of 24 May 1994.

37. On 27 June 1994 the Director of the Poznań prison hospital informed the Poznań Regional Court that there was no serious danger to the applicant's health or life.

38. On 4 July 1994 the Poznań Regional Court dismissed the applicant's request for release.  The Court considered the medical opinions of 24 May 1994 and 27 June 1994.  The Court found that the applicant's current health status did not involve any direct danger to his life or health.  The Court had regard to the fact that the applicant had already in November 1991 been released to undergo a second operation, but he had failed to report to the hospital and failed to comply with the court summons to appear.  On 6 September 1994 this decision was upheld by the Poznań Court of Appeal.

39. A medical examination of 25 August 1994 showed that there was an abundant flow of pus from the thumb and that as a result thereof there was a danger of further complications, including a possible necessity of amputation.

40. On 21 October 1994 the medical panel at the Poznań prison hospital found an abundant flow of pus from the applicant's hand, caused by its gangrenous state which could necessitate an amputation.  The panel recommended that the applicant be released in order to undergo an operation in a specialised clinic.  The date of admission to the clinic was set for 5 December 1994.

41.  In an opinion of 22 November 1994 the Forensic Medicine Department of the Poznań Medical Academy stated that the applicant had an open  wound of dimensions 2 cm to 4 cm.  The hand was not swollen.  The applicant's condition necessitated further treatment which could be effected by prison health services.  However, the treatment could only be successful if the applicant complied with the recommendations.  In view of an extraordinary length of the time in which the wound remained inflamed and the ease with which the applicant could reopen the wound, it was very likely that he consistently failed to follow medical recommendations.  The applicant's further detention did not entail a danger to life or limb.  Further inflammation could eventually cause further dangerous complications.  There was no immediate danger of amputation at the moment.

42. On 14 March 1995 the medical panel at the Poznań prison hospital established that there was a suspicion of inflammation of the bone and found a flow of pus from the applicant's hand, caused by its gangrenous state.  The panel recommended that the applicant be released in order to undergo an operation in a specialised clinic as the treatment in prison had proved to be completely ineffective.

43. On 30 March 1995 the Poznań Regional Court convicted the applicant of selling stolen goods and sentenced him to four years' imprisonment.  The Court also decided to release the applicant from detention on remand for the purposes of the case and observed that the applicant would in any event remain in prison to serve his sentences, which had previously been imposed in other criminal proceedings against him.

44. On 12 April 1995 the Poznań Penitentiary Court, having regard to the medical opinion of 22 November 1994, refused to suspend the execution of the applicant's penalty as there was no certainty that if released the applicant would comply with the medical recommendations.  The applicant's conduct hitherto, and in particular his failure to comply with those recommendations resulted in lack of any improvement of his state.  A panel of this Court, composed of three judges, dismissed the applicant's appeal on 26 April 1995.  The Court referred to the opinion of the Forensic Medicine Department of 22 November 1994 and further considered that, given that the applicant did not comply with physicians' recommendations while in custody, there was no certainty that he would do so if released and admitted to a hospital.

45.   Apparently on 18 May 1995 a further opinion of a medical panel was pronounced to the effect that the applicant should undergo an operation and that it was impossible to carry it out in a prison hospital.

46. The date for the applicant's admission to the Poznań University Clinic was set for 26 June 1995.

47.   On 26 June 1995 the Poznań Penitentiary Court decided to release the applicant.  In a letter of 6 July 1995 he informed the Commission that he had been released and subsequently admitted to the Hand Surgery Clinic and a decision had been taken to amputate the hand.  The applicant had refused and had chosen an outpatient ward to treat him.  A prompt improvement had ensued and certain further treatment had been recommended in order to prepare the hand for a further transplantation.

48. On 8 January 1996 the applicant was rearrested as he had failed to cooperate in certain pending proceedings against him.

49. Apparently on 14 March 1996 a medical panel in Bydgoszcz Prison hospital stated in its opinion that the state of the applicant's hand had deteriorated, an inflammation was again present and an operation was required.             

50.   On 3 October 1996 the applicant was released.

B. Relevant domestic law

51. Article 23 of the Rules of Execution of Prison Sentences reads:

< Translation >

"A prisoner shall receive free medical treatment as well as free drugs (...) from prison medical services or, if need be, from public medical services."

< Original >

" Skazanemu zapewnia się bezpłatną opiekę lekarską świadczoną przez służbę zdrowia zakładów karnych , a w razie potrzeby także przez zakłady społeczne służby zdrowia , oraz bezpłatne leki (...)."

Article 27 of the Rules of Execution of Detention on Remand reads:

< Translation >

"A detainee on remand shall receive free medical care as well as free drugs (...) from the medical service of a detention centre              or, if need be, from public medical services."

< Original >

" Tymczasowo aresztowanym zapewnia się bezpłatną opiekę lekarską świadczoną przez służbę zdrowia aresztów śledczych , a w razie potrzeby także przez zakłady społeczne służby zdrowia , oraz bezpłatne zaopatrzenie w leki (...)."

52. According to Section 217 para. 1 of the Polish Code of Criminal Procedure, a person may be held in detention on remand if there is a risk of his absconding or collusion, if he is a recidivist or if he is suspected of having committed a dangerous offence.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

53. The Commission has declared admissible the applicant's complaint that he was kept in detention on remand contrary to the medical opinions that it was incompatible with his health condition.

B. Point at issue

54. Accordingly, the point at issue is whether there has been a violation of Article 3 of the Convention.

C. Article 3 of the Convention

55. Article 3 of the Convention reads:

"No one shall be subjected to (...) inhuman or degrading treatment or punishment."

56. The applicant submits that his condition required treatment in a clinic of a Medical University as it was impossible to carry out his operation, due to its seriousness, in any prison hospital.  He submits that the courts disregarded the medical opinions as to the danger to his health and consequently, aggravated his condition.  His detention was not compatible with his bad health and he could not obtain sufficient treatment while in prison.  As a result, he risked  amputation of his hand.

57. The Government submit that the applicant's detention on remand complied with the requirements  under Polish law, and in particular with those applicable to the health aspects of detention.  The applicant contends that the refusals to release him were contrary to the  opinions of the medical panels of prison hospitals. However, it was open to the courts, when deciding on the applicant's detention, to request additional opinions of experts whose professional competence ensured the highest professional standards.  The Regional Court availed itself of this possibility, in particular to decide whether the applicant's detention was compatible with his condition and whether an operation in a specialised hospital was necessary.  Thus, the court's decisions were based not only on the opinions of the prison medical panels, but also on the expert opinions according to which the applicant could be treated in prison and his further detention did not entail danger to life and limb.  It is to be further stressed that the court's decisions were subject to judicial review by the Court of Appeal, which upheld them, and stated in one of its decisions that the applicant's appeal was entirely ill-founded.

58. The Government emphasise that the authorities in no case refused medical care to the applicant and did not lower the standard of health care offered to him.  An internal inquiry did not confirm that he could not obtain adequate medical care while in prison.  The applicant's requests for release were regularly followed by a medical examination by specialists.  This shows that the authorities exercised due diligence in monitoring the applicant's condition and in the examination of his requests for release as to their health aspects.

59. The Government maintain that the applicant did not follow the medical recommendation and did not undergo treatment when he was released in order to do so.  They submit that no causal link has been established between the applicant's detention and the worsening of his condition which would have been caused by the authorities' failure to afford sufficient medical care to him.  The Government further rely on the Commission's case law in that it does not guarantee as such a right to be detained in a particular prison or to particular conditions of detention.

60. The Government conclude that the authorities in dealing with the applicant's case acted in accordance with the applicable laws and that their refusals to release the applicant were not arbitrary.

61. The Commission recalls that, according to the case-law of the Convention organs, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention (Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1979, Series A no. 25, p. 65, para. 162).  The Commission further recalls that lack of medical treatment in prison may raise an issue under Article 3 of the Convention.  The factors to be considered are the seriousness of the applicant's condition, the quality of the medical care he receives in prison and whether the applicant's state of health is compatible with detention.  The State has no obligation under Article 3 of the Convention to release a detainee or to transfer him to the civil hospital, even when he has a disease which is particularly difficult to treat ( Chartier v. Italy, Comm. Dec. 8.12.82, D.R. 33, p. 41).  However, the Commission recalls the State's obligation to maintain a continuous review of the detention arrangements employed with a view to ensuring the health and well-being of all prisoners, having due regard to the ordinary and reasonable requirements of imprisonment ( Bonnechaux v. Switzerland, Comm. Report 5.12.79, D.R. 18, p. 100).

62. The Commission considers that it does not appear that the severity of the applicant's condition was such as to be incompatible with his detention.  It transpires from the documents submitted that the authorities did not refuse medical care to the applicant while he was in prison.  On the contrary, his health was  continuously monitored by the prison health services.  Several opinions were issued by the medical panels of prison hospitals.  The applicant was also repeatedly referred for examination to external health services in order to verify the opinions given by the prison physicians, and in particular to various specialists, including forensic medical specialists.  Regard must be had to the fact that the applicant's lack of cooperation probably worsened his condition.  The Commission further considers that the possibility cannot be ruled out that the applicant resorted to self-injuries of his thumb by reopening the wound left by the transplantation which had failed.  Subsequently he relied on the argument of his bad health in order to obtain certain decisions of the prison authorities or of the courts.  This is indicated in the medical opinion of 22 November 1994, which points out the ease with which the wound could have been reopened and the extraordinarily lengthy period in which the inflammation of the applicant's hand persisted.  Further, the Commission notes that the applicant was released pursuant to the court decision of 26 June 1995 and already ten days later he reported in his letter to the Commission that there had been a significant improvement in his condition.  This also lends credibility to the Government's argument as to the applicant's persistent self-injuries being the real source of his health problems, rather than the natural progress of a disease.  The Commission further observes that the applicant was released in November 1991 in order to undergo a further operation, but that no operation was subsequently performed.  He did not submit convincing arguments as to why he had not had the operation during his release.

63. It is true that these circumstances in themselves do not discharge the domestic authorities from the responsibility for ensuring the health and well-being of the applicant while in detention.  However, the applicant's numerous complaints about his bad health were followed by frequent medical examinations and consultations, as shown by his medical records.  Thus, the Commission concludes that it has not been established that the applicant's condition deteriorated on the grounds that the authorities failed to afford him adequate medical care or to take relevant measures to alleviate the effects of his detention.

64. After considering all the information at its disposal, the Commission is of the opinion that, although rigorous in its effects, the applicant's detention did not constitute treatment that can be described as inhuman or degrading.

CONCLUSION

65. The Commission concludes, unanimously, that in the present case there has been no violation of Article 3 of the Convention.

        M. de SALVIA                       S. TRECHSEL

         Secretary                  President

      to the Commission            of the Commission