AS TO THE ADMISSIBILITY OF

                      Application No. 23029/93

                      by Piotr GRZESZCZUK

                      against Poland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           Ms.   M.-T. SCHOEPFER, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 19 July 1993 by

Piotr GRZESZCZUK against Poland and registered on 1 December 1993 under

file No. 23029/93;

      Having regard to:

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government

      on 9 November 1994 and the observations in reply submitted by the

      applicant on 9 January 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as submitted by the parties, may be

summarised as follows:

      The applicant, a Polish citizen born in 1966, is a construction

worker who is detained in Myslowice prison.

Particular circumstances of the case

      On 18 October 1991 the applicant was arrested on suspicion of

robbery and remanded in custody.  At the same time he was serving a

sentence for a previous conviction.  During detention he injured

himself by introducing a piece of metal into his lung whereupon his

health deteriorated.  The court hearings were adjourned several times

as the applicant was unable to participate on grounds of ill-health.

On 15 January 1993 a medical panel of the Bytom prison decided that an

operation in a civil hospital specialised in chest surgery was

necessary.

      On 15 February 1993 the Katowice Regional Court (S*d Wojewódzki)

released the applicant from detention on remand to enable him to

undergo a surgical intervention in a specialised civil hospital.  On

19 February 1993 the Penitentiary Division at the Katowice Regional

Court granted him a temporary suspension of the execution of his

sentence until 31 May 1993 on the same grounds.

      The applicant reported to the appropriate civil hospital and,

after certain medical examinations, the date for the operation was

fixed for 24 March 1993.  On 18 March 1993 the applicant was again

arrested.  On 19 March 1993 the Sucha Beskidzka District Prosecutor

remanded him in custody on suspicion of theft committed after his

release.  He was allegedly beaten by the police upon his arrest.  On

19 March 1993 the applicant was examined by two physicians who declared

that he was fit for detention.

      The applicant then filed two appeals, in which he complained

about his detention.  These appeals were dismissed on 7 and

22 April 1993 by the Sucha Beskidzka District Court (S*d Rejonowy).

      On 13 April 1993 the Sucha Beskidzka District Prosecutor

prolonged detention on remand until 18 May 1993 and again dismissed the

applicant's request for release.  Upon a further request of the

applicant, the Sucha Beskidzka District Prosecutor, on 29 April 1993,

refused to enter into an examination thereof.  On 10 May 1993 the

Public Prosecutor prolonged detention on remand until 18 June 1993.

On 27 May 1993 the Sucha Beskidzka District Court upheld this decision.

On 17 May 1993 and 31 May 1993 the Sucha Beskidzka District Prosecutor

refused to consider requests by the applicant for his release.

      The Sucha Beskidzka District Prosecutor instituted criminal

proceedings in respect of the alleged ill-treatment by the police upon

the applicant's request.  The physicians, who had examined the

applicant on the day of his arrest and were heard as witnesses,

declared that the traces of beating noted on the applicant's body had

been several days old and that they could therefore not have originated

from the occurrences on the date of the arrest.  On 22 June 1993 the

Sucha Beskidzka Prosecutor decided to discontinue the criminal

proceedings as it was established that no crime had been committed.

      While in detention on remand in Wadowice prison the applicant

repeatedly reported pains in his lungs.  Entries in his prison medical

records show that throughout his detention from 19 March 1993 to

18 September 1993 the applicant was  examined by physicians thirty-

three times.

      On 18 September 1993 the applicant suffered a haemorrhage.  On

the same day he was admitted to the Kraków prison hospital, where a

physician stated that his condition did not necessitate immediate

treatment.  A medical consultation of a surgeon from the Kraków Medical

Academy of 18 September 1993 confirmed that an immediate operation was

not necessary.

      On 22 September 1993, during a hearing in the Sucha Beskidzka

District Court, the applicant lost consciousness.  On the same day he

was admitted to the Kraków prison hospital where he remained until

Central Prison Administration about insufficient medical care afforded

to him in prison, in particular about not having been operated on.

      It transpires from the applicant's medical records that in the

period between 10 October 1993 and 7 December 1993 he was examined by

prison physicians on seven occasions.

      On 7 December 1993 the applicant again injured himself by

swallowing a "cross" made of two needles.

      On 6 January 1994, the applicant's condition having deteriorated,

he was transferred to the Bytom prison hospital and was placed at the

surgical ward.  In view of an immediate threat to the applicant's life

caused by the perforation of his gullet by the "cross" and a beginning

inflammatory process in his chest, the operation was made on

28 January 1994 in Bytom prison hospital by surgeons who simultaneously

were employees of the Silesian Medical University.  The foreign object

was removed from his gullet.

      On 21 March 1994, while still in the hospital, the applicant

reported another self-injury by swallowing another "cross".  He did not

participate in the court hearing scheduled on 22 March 1993.

      In June 1994 the applicant reported another self-injury by

swallowing a "cross" and on 13 July 1994 he was again transferred to

prison hospital at Bytom prison.  As a result, he did not attend a

court hearing on 12 July 1994 in criminal proceedings against him.  On

12 August 1994 an X-ray of his chest has not shown any foreign objects

in his body.  The applicant acknowledged that he had swallowed the

"cross" on a thread and then had removed it.  He remained in the

hospital until 17 August 1994.  Throughout his stay in the hospital he

refused consent for the operation.

      Throughout his detention, the applicant complained to various

authorities about the medical care afforded to him in prison.

Relevant domestic law

      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 si* bezplatn* opiek* lekarsk*

      swiadczon* przez sluzb* zdrowia zakladów karnych, a w razie

      potrzeby takze przez zaklady spoleczne sluzby zdrowia, oraz

      bezplatne leki (...)."

      Article 27 of the Rules of Execution of the 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 si* bezplatn* opiek*

      lekarsk* swiadczon* przez sluzb* zdrowia aresztów

      sledczych, a w razie potrzeby takze przez zaklady spoleczne

      sluzby zdrowia, oraz bezplatne zaopatrzenie w leki (...)."

      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.

COMPLAINTS

      The applicant complains under Article 8 about his detention on

remand, claiming that he is innocent, and that he was ill-treated by

the police on 19 March 1993.

      He further complains about not receiving proper medical care in

prison, in particular about being refused a surgical intervention in

a specialised civil hospital as recommended by the medical panel in

January 1993.  He submits that his health rapidly deteriorates.  He

states that he refused to undergo an operation in the prison hospital

as he did not trust the physicians working here.

      The applicant complains under Article 5 para. 4 of the Convention

that he was not brought before a judge in the proceedings in review of

his detention on remand which commenced on 19 March 1993.

      The applicant finally complains under Article 8 of the Convention

that the operation carried out in January 1994 without his consent

amounted to an interference with his private life.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 19 July 1993 and registered on

1 December 1993.

      On 29 June 1994 the Commission decided to communicate the

applicant's complaint concerning medical care in prison to the

respondent Government.

      The Government's written observations were submitted on

9 November 1994, after an extension of the time-limit fixed for that

purpose.  The applicant replied on 9 January 1996.

      On 13 September 1995 the Commission granted the applicant legal

aid.

THE LAW

1.    The applicant complains under Article 8 (Art. 8) about his

detention on remand, claiming that he is innocent, and that he was ill-

treated by the police on 19 March 1993.  He further complains that the

medical care which he was given in prison was entirely insufficient in

view of the severity of his condition.  The Commission has examined

this complaint under Article 3 (Art. 3) of the Convention.

      Article 3 (Art. 3) of the Convention provides:

      "No one shall be subjected to torture or to inhuman or

      degrading treatment or punishment."

a)    The Government first submit that it does not clearly transpire

from the applicant's submissions which decision he considers to be a

final one in his case. However, it seems that his complaints relate

mostly to the fact that detention on remand was imposed on him in March

1993 despite the previous decisions of February 1993 to release him on

health grounds.  The decision to remand the applicant in custody was

taken on 19 March 1993.  The applicant's appeal against this decision

was dismissed by the District Court on 7 April 1993.  On 13 April 1993

the District Prosecutor prolonged the applicant's detention and on

22 April 1993 the  District Court upheld this decision. These dates

precede 1 May 1993, the date on which the Commission's competence to

examine individual applications against Poland became effective.  The

Government conclude that the application should be declared

inadmissible as being incompatible ratione temporis with the

Convention.

      The applicant submits that the Government disregard the fact that

certain decisions maintaining the applicant in custody were  issued on

10 and 27 May 1993. Moreover, even assuming that the situation

complained of as regards the applicant's medical treatment in prison

had originated from decisions taken before 1 May 1993, it continued

after that date. The applicant concludes that the application cannot

be regarded as being incompatible ratione temporis with the Convention.

      The Commission observes that the applicant's complaints relate

principally to the situation created by the decisions imposing and

maintaining his custody, which continued after 1 May 1993.  It follows

that the Commission is competent ratione temporis to examine the

applicant's complaints insofar as they relate to the period after

1 May 1993.

b)    The Government submit that the applicant failed to exhaust

available domestic remedies.  It is true that he used relevant

remedies in respect of his detention on remand under Polish law as he

appealed against the decision to remand him in custody.  He further

appealed to the Court against the Public Prosecutor's decisions to

prolong his custody. Under Polish law, and in particular Articles 218

and 219 of the Code of Criminal Procedure, the competent authorities

are under an obligation to examine health aspects of the case when

taking a decision as to detention on remand.  However, it was open to

the applicant to submit a request to be released to the Public

Prosecutor. He did so on numerous occasions invoking, inter alia, his

bad health.  Nevertheless, he failed to appeal against ensuing refusals

of the Public Prosecutor to a hierarchically superior Prosecutor.

      The applicant submits that the remedy referred to by the

Government cannot be regarded as effective.  It is a known practice

that higher Prosecutors practically always uphold the decisions of

lower Prosecutors.  Moreover, this remedy can be used at any time as

often as a detainee wishes to do so.  A requirement to use this remedy

would result in deferring ad infinitum the moment in which an

application to the Commission could be lodged.  The applicant availed

himself of other remedies in relation to his detention and it should

therefore be considered that he complied with the requirements of

Article 26 (Art. 26) of the Convention.

      The Commission recalls that the applicant must make normal use

of those domestic remedies which are likely to be effective and

sufficient. When a remedy has been attempted, use of another remedy

which has essentially the same objective is not required (No. 11471/85,

Dec. 19.1.89, D.R. 59, p. 67).

      The Commission observes that the applicant lodged two appeals in

which he complained about his detention.  Those appeals were dismissed

on 7 and 22 April 1993 by the Sucha Beskidzka District Court. On

27 May 1993 the same Court dismissed the applicant's appeal against the

Public Prosecutor's decision of 10 May 1993 prolonging his detention.

The Commission considers that the purpose of the remedies tried by the

applicant was to obtain a review of his detention on remand and to

obtain release on account of bad health.  In the circumstances of the

case these remedies constitute adequate and effective remedies within

the meaning of Article 26 (Art. 26) of the Convention as their purpose

was to obtain release in view of the applicant's condition.  They have

the same purpose as the remedy relied on by the Government.  Thus, the

applicant was not required to avail himself additionally of the latter

remedy.

      It follows that this complaint cannot be rejected for non-

exhaustion of domestic remedies.

c)    As to the substance of the complaint, the Government first draw

the Commission's attention to the manipulative character of the

applicant's conduct.  They submit that he inflicted injuries upon

himself in order to obtain certain decisions in respect of his

detention and acknowledged that this was the case.  This, in the

Government's opinion, is shown by the fact that these injuries often

preceded the dates for which court hearings in various criminal

proceedings against the applicant had been fixed.  In particular, it

should be inferred from the applicant's requests for release that he

tended to use the argument of his condition in order to obtain release.

The Government further submit that the applicant's health problems were

also to a large extent caused and aggravated by his persistent refusal

to cooperate with the medical services.  This is shown by medical

records in which it was frequently stated that the applicant

categorically refused to undergo an operation in a prison hospital.

The Government emphasise that the authorities in no case refused him

medical care and did not lower the standard of health care offered to

him despite the fact that he contributed himself to his health

problems.  On the contrary, his complaints were scrupulously followed

by relevant medical examinations and, if necessary, treatment.

      The Government further submit that in the period preceding his

release in February 1993, the applicant refused his consent to undergo

the operation in the prison hospital.  This refusal was certainly of

significance for the recommendation of the medical panel that the

applicant should be released and undergo the operation in a civil

hospital.  It should be noted that after his release he did not follow

the recommended treatment.  It is true that he maintains that he

reported to the hospital and that the date for the operation was set.

However, he does not submit any documents in this respect.  Even

assuming that this was the case, it should be further noted that when

he was arrested he was in a state of intoxication, having apparently

consumed a considerable amount of alcohol.  Thus, serious doubts arise

as to whether he had followed the routinely recommended preparations

for a surgical intervention by abandoning intake of alcohol.

      The Government maintain that after the applicant's arrest in

March 1993, before taking the decision on his detention on remand, the

Public Prosecutor ordered the applicant's medical examination.  This

was meant to ensure that his detention would be in accordance with the

provisions of the Code of Criminal Procedure which require the

competent authorities to consider whether detention is compatible with

the detainee's health.  It should also be emphasised that the applicant

was further transferred for additional examinations to a specialised

ward of Kraków prison hospital.  The opinion that the applicant's

detention was not incompatible with his health condition was later

confirmed by the consultation of a specialist of the Kraków Medical

University.  The applicant was later transferred to the surgical ward

of Bytom prison hospital and remained there  despite his further

refusal to undergo an operation at this ward.  The Government conclude

that the applicant's detention did not cause a deterioration of his

health as he was under constant and specialised medical care.  Despite

his frequent self-injuries and his persistent refusal to undergo a

surgical intervention, the relevant authorities reacted appropriately

to the applicant's health needs.  The case-law of the Convention organs

does not contain as such a right to be detained in a particular prison

or under particular  conditions of detention.  The Government conclude

that this part of the application should be declared manifestly ill-

founded.

      The applicant submits that the decision of 19 March 1993 on his

detention on remand  ran counter to the previous decisions to release

him in view of his condition and thus amounted to inhuman treatment as

it made it impossible for him to undergo the operation.  The subsequent

medical opinions to the effect that the  detention was compatible with

his condition were in fact dictated by the circumstances and

disregarded the applicant's actual condition.  Insofar as the

Government emphasise the applicant's alleged lack of compliance with

the medical recommendations after his release in February 1993, this

is irrelevant and does not discharge the public authorities of their

obligation to ensure proper medical care to persons in detention.

There are no elements which indicate that at the time of the

applicant's arrest in March 1993 and later the considerations relied

on in the decisions taken in February 1993 to release him ceased to

apply.  The applicant's condition subsequently worsened in the course

of his detention.  The fact that the operation was delayed

significantly deteriorated his health.  Regard must be had to the fact

that the operation carried out in January 1994 resulted in a very

unsightly long scar which necessitates to be removed.  The medical

reports relied on by the Government appear to be erroneous as shown by

the fact that the applicant had a haemorrhage on 18 September 1993 and

lost consciousness during the court hearing on 22 September 1993.  They

are further contradicted by the unequivocal medical opinion of

15 January 1993.

      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 (Art. 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 (Art. 3) of the Convention.  The factors to be

considered are the seriousness of the applicant's condition, the

quality of the medical care he received in prison and whether the

applicant's state of health is compatible with detention.  The State

has no obligation under Article 3 (Art. 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 hard to treat (Chartier v. Italy, Comm.

Dec. 8.12.82, D.R. 33  p. 41).  However, the Rapporteur 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).

      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.  It also

appears that the applicant often resorted to self-injuries and

subsequently tried to use the argument of his bad health in order to

obtain certain decisions of the prison or prosecuting authorities.

This does not discharge the domestic authorities of the responsibility

for ensuring health and well-being of persons 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, upon his arrest on 19 March 1993 he was examined

by two physicians, whose findings were later confirmed by a consultant

specialist from the Medical Academy.  The treatment available in the

prison medical services, i.e. the operation in the prison hospital, was

offered to the applicant on numerous occasions and he repeatedly

refused to give his consent to the operation.  Regard must be had to

the fact that the applicant's lack of cooperation has probably worsened

his condition.  It further transpires from relevant documents that the

applicant in fact could be treated in the prison hospital, as shown in

particular by the fact that on 28 January 1994 he underwent the

operation in the hospital of Bytom prison and that this operation,

performed in view of the immediate danger to his life, was successful.

The Commission further considers that the applicant cannot legitimately

rely in support of his complaint under Article 3 (Art. 3) of the

Convention on the argument that the outcome of the operation was

unsatisfactory in that it left a large scar.  The applicant could have

realised that delaying the operation would in all probability lead to

the worsening of his condition and diminish the possibilities of the

operation being successful.  Thus, the Commission concludes that it has

not been established that the applicant's condition deteriorated as the

relevant authorities failed to afford him adequate medical care.

      The Commission therefore considers that the treatment complained

of did not reach the threshold of severity required to fall within the

ambit of Article 3 (Art. 3) of the Convention.  It follows that this

part of the application is manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

2.    Insofar as the applicant complains about his alleged ill-

treatment upon his arrest on 18 March 1993, the Commission is not

required to decide whether or not the facts alleged by the applicant

in support of this complaint disclose any appearance of a violation of

the Convention as Article 26 (Art. 26) of the Convention provides that

the Commission "may only deal with a matter after all domestic remedies

have been exhausted".  In the present case, the applicant requested the

institution of criminal Proceedings.  On 22 June 1993 the Prosecutor

refused this request, finding no basis for criminal charges.  The

applicant could have appealed against this refusal to a hierarchically

superior Prosecutor, but he failed to do so.

      It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

3.    The applicant further complains that his detention on remand was

unjustified.

      The Commission has examined this complaint under Article 5

para. 1 (Art. 5-1) of the Convention.  The Commission observes that

both the Public Prosecutor and the Court to which the applicant

appealed against the decision to remand him in custody considered that

there were serious grounds for suspecting the applicant of having

committed a serious offence, i.e. aggravated theft, as well as a risk

of absconding and collusion.  The Commission considers that there is

no indication of arbitrariness in their decisions.  The Commission

also finds that the decisions complained of were lawful as they

complied with the applicable provisions of Article 217 of the Code of

Criminal Procedure.

      It follows that this complaint must be declared manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.    The applicant finally complains under Article 8 (Art. 8) of the

Convention about the operation which he underwent in January 1994

allegedly without his consent and under Article 5 para. 4 (Art. 5-4)

of the Convention that he was not brought before a judge in the

proceedings in review of the lawfulness of his detention which were

held before the Sucha Beskidzka District Court.

a)    As regards the complaint under Article 5 para. 4 (Art. 5-4) of

the Convention, the Commission observes that it relates to the

proceedings which were held before the Sucha Beskidzka District Court

on 7 and 22 April 1993.  These dates preceded 1 May 1993, i.e. the date

on which the Commission's competence to examine individual applications

against Poland became effective.

      It follows that this complaint is outside the Commission's

competence ratione temporis and therefore incompatible with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

b)    In respect of the complaint under Article 5 para. 4 (Art. 5-4)

concerning the proceedings held before the Sucha Beskidzka District

Court on 27 May 1993 and the complaint under Article 8 (Art. 8) of the

Convention concerning the operation carried out on 28 January 1994, the

Commission observes that the relevant complaints were submitted to the

Commission in the applicant's reply to the Government's observations

on 9 January 1996.  The Commission is therefore not required to decide

whether or not the facts alleged by the applicant disclose any

appearance of a violation of the Convention as the events complained

of had occurred more than six months before the date on which those

complaints were introduced.

      It follows that this part of the application is inadmissible

within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

      M.-T. SCHOEPFER                              G.H. THUNE

        Secretary                                  President

  to the Second Chamber                      of the Second Chamber