Lexploria

Application No. 26751/95

by Eugeniusz CWIRKO-GODYCKI

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 20 May 1994 by

Eugeniusz CWIRKO-GODYCKI against Poland and registered on 20 March 1995

under file No. 26751/95;

Having regard to:

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

the Commission;

- the observations submitted by the respondent Government on

13 September 1996 and the correspondence between the Secretariat

and the applicant and his representative since January 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1955, serves a prison

sentence in Chelm prison.

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

summarised as follows:

In 1991 the execution of the applicant's earlier prison sentence

was suspended and he was released from prison in order to undergo an

operation of oedema in a civil hospital. He failed to report to the

hospital. On 5 May 1993 the applicant was arrested on suspicion of

theft and remanded in custody. On 12 May 1993 he had an X-ray made in

a prison hospital.

On 6 August 1993 the applicant was examined by a pulmonologist,

and on 4 October 1993 by another specialist. On 23 October 1993 he was

again examined by a specialist who stated that he did not qualify for

an operation as the operation risk was too high.

On 17 November 1993 the applicant underwent an examination by a

medical panel which concluded that as the applicant was not fit for

operation and another treatment could be administered in the prison,

there were no medical grounds for release.

On 14 February 1994 the applicant refused to have an X-ray.

On 17 March 1994 the applicant underwent an examination by a

medical panel which concluded that he suffered from oedema and

breathing insufficiency. The only effective therapy would be an

operation for which the applicant had previously been refusing consent.

On 14 April 1994 a physician A.M., having examined the applicant

in Warszawa-Mokotów prison, decided that there were no grounds for

releasing the applicant ("brak jest wskazan medycznych dla udzielenia

przerwy w wykonywaniu kary pozbawienia wolnosci"). This opinion

referred to a previous medical opinion issued by professor M.

On 13 May 1994 the Lublin Regional Court (S*d Wojewódzki),

Penitentiary Division, dismissed the applicant's request to have the

execution of his sentence suspended so that he could undergo treatment

in a civil hospital. The applicant's appeal was upheld by the same

Court on 3 June 1994 as there were no sufficient medical grounds for

his release.

On 30 August 1994 the Central Penitentiary Supervisory Office

(Centralny Zarz*d Zakladów Karnych) informed the applicant that his

complaint concerning the manner in which the medical opinion of

14 April 1994 had been issued was unfounded.

On 19 September 1994 the Lublin Regional Court, Penitentiary

Division, refused the applicant's further request to have the execution

of his sentence suspended. The Court considered that the applicant's

health was under continuous review of the prison medical services as

witnessed by entries in his health booklet dated 14 June, 11 August,

12 August, 28 August and 14 September 1994. The Court further

considered the opinion of the medical panel of Warszawa-Mokotów prison

of 14 April 1994 and concluded that the applicant's condition did not

constitute sufficient grounds for his release.

The applicant appealed against this decision. He submitted that

the medical opinion dated 14 April 1994 had not corresponded to his

actual condition. He further submitted that the dates referred to in

the Court's decision were only the dates on which he had complained to

the prison physicians, but he had not received appropriate assistance.

On 14 October 1994 the same Court dismissed the applicant's

appeal. The Court considered that the applicant's disease was not in

dispute, but it did not amount to a serious danger to his life and the

operation was not immediately necessary. There were no indications

that the applicant's condition had deteriorated since the medical

opinion of 14 April 1994 had been issued.

In November 1994 the applicant requested the Penitentiary Court

that the execution of his penalty be suspended.

On 3 February 1995 the applicant requested that criminal

proceedings be instituted against physicians of Warszawa-Mokotów and

Chelm prisons whose decisions had put his life in immediate danger.

On 6 February 1995 the Penitentiary Court adjourned the decision

concerning the applicant's request for temporary release, submitted in

November 1994 and ordered that the applicant be examined again in a

civil hospital.

On 17 February 1995 the applicant underwent an examination in

Chelm hospital by a panel composed of two prison physicians and one

specialist. Arrangements were being made for the applicant's admission

to the hospital at the Warsaw prison for thorough examination by

professor M. to establish whether an operation would improve his

condition.

On 29 March 1995 the applicant was taken to the Warsaw Prison

Hospital for further medical consultation. Eventually he was not

examined as physician A.M. prevented him from undergoing the

examination.

On 21 April 1995 the Chelm District Prosecutor, having

investigated the applicant's complaint, discontinued the proceedings

as no criminal offence had been committed. It was established that

the applicant had been suffering from oedema for several years. On

numerous occasions he had undergone medical examinations and

contradictory opinions had been issued. The applicant had not in fact

been examined by professor M., whose opinion had been referred to in

the medical opinion of 14 April 1994, but, as stated by the physician

A.M. when questioned in the investigations, by his assistant K.

Separate investigations had been instituted in this respect as to

whether an offence of forgery of documents could have been committed.

With regard to the applicant's complaints as to the medical opinions

issued by the medical services of Chelm prison, it was established that

in their opinions of 14 April 1994, 15 December 1994, 3 and

24 February 1995 they only referred to the contradictory conclusions

of specialists. There were no indications that the physicians had

fabricated any evidence or had not been duly diligent in examining the

applicant. Furthermore, there were no indications that the medical

care afforded to the applicant in prison was insufficient.

In January 1996 the applicant requested to be temporarily

released. On 11 April 1996 the Court, having had regard to the

information submitted by a pulmonologist, decided that in view of the

need of a climatic treatment, such temporary release should be granted

until 31 July 1996.

The applicant was released on an unspecified later date. He did

not return to prison since.

COMPLAINTS

The applicant complains under Article 3 of the Convention about

insufficient medical treatment afforded to him in prison. He submits

that his disease makes it difficult for him to breathe and live

normally. He submits that the medical opinion of April 1994 was wrong

and that the physician who had signed it had in fact never seen him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 May 1994 and registered on

20 March 1995.

On 27 June 1996 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

16 September 1996. On 18 September 1996 a copy of these observations

was sent to the applicant who was invited to submit, before

6 November 1996, his observations in reply. No such observations were

received by the Commission.

By letters sent to the applicant on 4 April 1997 and again on

5 May 1997 and 11 June 1997 by registered mail, the applicant was

reminded that the time-limit for the submission of his reply to the

Government's observations had expired on 6 November 1996. He was

further invited to state whether he intended to pursue his application

and was warned about the provision of Article 30 para. 1(a) of the

Convention. No reply was received.

By letter of 23 April 1997 the Government informed the

Secretariat of the Commission that the applicant had been granted a

temporary release from prison in order to undergo the operation until

31 July 1996. The applicant failed to report to the hospital and had

not returned to prison.

REASONS FOR THE DECISION

The Commission notes that the applicant did not react when

invited to submit observations in reply to the Government's

observations. Three warning letters were sent to him, two of them by

registered mail, informing him that lack of reaction on his part might

lead the Commission to the conclusion that the applicant did not

seriously intend to pursue the application. No response was received.

In these circumstances, the Commission concludes pursuant to

Article 30 para. 1 (a) and (c) of the Convention that the applicant

does not intend to pursue his application and that it is, therefore,

no longer justified to continue the examination of the petition.

Moreover, there are no reasons of a general character affecting respect

for Human Rights as defined in this Convention which require the

further examination of the application by virtue of Article 30 para. 1

in fine of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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CWIRKO-GODYCKI v. POLAND

CWIRKO-GODYCKI v. POLAND

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