Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26756/95

by Kazimierz NOWOJSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 26 September 1993

by Kazimierz NOWOJSKI against Poland and registered on 20 March 1995

under file No. 26756/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows:

The applicant, a Polish citizen born in 1960, is detained on

remand in Wroclaw prison.

I.

On 3 March 1993 the applicant was arrested and remanded in

custody on suspicion of robbery. In the course of initial

investigations the police allegedly instructed the victim to identify

the applicant as a culprit at a subsequent identification parade.

Thereafter, an officially assigned lawyer was appointed as the

applicant's defence counsel.

On 31 May 1993 the Public Prosecutor transmitted a bill of

indictment to the Wroclaw Regional Court (S*d Wojewódzki).

On 23 January and 16 February 1994 the applicant complained to

the Ombudsman (Rzecznik Praw Obywatelskich) about the manner in which

the investigations were conducted. He claimed that he was innocent and

that his defence rights were breached.

On 28 February 1994 the applicant complained to the Court that

the police had shown him to the victim and instructed him to identify

the applicant as a culprit at the identification parade.

On 12 August 1994 the applicant filed a civil action with the

Wroclaw Regional Court, claiming compensation for damage to his health

due to the alleged insufficient medical treatment in prison.

On 9 November 1994 the court proceedings in the criminal case

were commenced.

On 3 January 1995 the Wroclaw Regional Court dismissed the

applicant's challenge of the judges in the criminal case as there was

no indication of lack of impartiality on their part. The Court

considered that the fact that the civil proceedings were pending before

the same Court did not suffice to establish that the judges in the

criminal case lacked impartiality.

On 30 March 1995 the Wroclaw Regional Court refused to entertain

the applicant's repeated challenge of the judges as the alleged grounds

of the Court's lack of impartiality had been known to the applicant

even before the proceedings in the criminal case commenced.

The case is currently pending.

II.

On 30 August 1993 the applicant had an accident in prison. He

badly sprained his left knee.

On 30 September 1993 the Wroclaw Regional Court refused to

release the applicant, considering that there was sufficient evidence

in the case-file that he had committed the offence in question. His

health condition did not necessitate treatment in a civil hospital.

He could be treated by the prison medical services, as certified by the

medical panel of the Wroclaw prison hospital.

On 2 January 1995 the Wroclaw Regional Court requested that an

expert opinion be prepared in order to establish whether the

applicant's detention was compatible with his condition and whether the

applicant's health prevented him from attendance during the criminal

proceedings.

On 10 January 1995 the applicant was examined by the forensic

specialist of the Wroclaw Medical Academy.

On 14 January 1994 the applicant complained to the Wroclaw

Regional Court about his continued detention, despite his bad health.

On 23 January 1995 a medical expert opinion by a forensic

specialist was submitted to the Wroclaw Regional Court for the purpose

of deciding whether the applicant's detention was compatible with his

health. It stated that the applicant needed regular psychiatric

counselling. No need of orthopaedic treatment was established. The

applicant suffered from partial atrophy of the thigh muscle, due to the

past trauma and to his refusal to cooperate with the physicians.

On 24 February 1995 the applicant complained to the prison

governor about insufficient medical care. He alleged that the medical

opinion of 23 January 1995 was inaccurate.

In a letter of 27 March 1995 the prison governor replied that the

results of an internal enquiry had not confirmed the applicant's

allegations. The medical panel at the prison hospital had clearly

stated that the nature and severity of the applicant's affliction

allowed for treatment in the prison hospital. He could also undergo

an operation if he consented to this. The detention did not entail any

danger to his life.

On 11 April 1995 the medical expert opinion was prepared for the

purposes of the civil proceedings. It stated that the applicant

complained of pain in his left knee and that his movements were

limited. After his accident on 30 August 1993 a plaster cast was put

on his leg. On 1 September 1993 he took the cast off and refused to

be examined by a surgeon. He was subsequently examined on 6, 22, 24

and 27 September 1993. It was established that he suffered from an

infection of the knee-joint. He refused to undergo treatment in the

prison hospital. The medical examinations took place on 4 and 26

October 1993. On the latter date a plaster cast was again put on the

leg. The applicant took off the plaster cast on 9 November 1993. He

was examined on 9 and 12 November 1993, but refused to be examined by

an orthopaedist. In January and February 1994 the infection of the

joint had subsided. As a result of the infection, a deterioration of

the meniscus was diagnosed in February 1994. In May 1994 the applicant

was examined in the Central Prison Hospital in Warsaw and

rehabilitation was recommended. The applicant refused to cooperate as

he wished to have an operation instead. In June 1994 an abscess near

the joint was diagnosed, probably as a result of a self-inflicted

infection. The onset of atrophy of the muscles of the left thigh was

also diagnosed. The applicant was examined several times in July,

August and September 1994. Rehabilitation was strongly recommended by

a specialist in orthopaedic surgery. Apparently the applicant refused

to cooperate. The expert concluded that the trauma had not been

treated in the manner which is normal for similar cases, i.e by

evacuation of the fluid accumulated within the joint immediately after

his accident, as the applicant had refused to give his consent. The

applicant's attitude, and in particular his refusal to cooperate with

the physicians, which manifested itself inter alia in the fact that on

numerous occasions he had refused to take medication and had twice

taken the plaster cast off, probably stemmed from his wish to be

treated in a civil hospital. The operation of the deteriorated

meniscus could easily have been carried out by the prison medical

services, but only on condition that the applicant gave his consent.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the criminal proceedings against him are unfair in that the police

instructed the victim to identify him as a culprit before the

identification parade; that during the investigation the Public

Prosecutor did not allow him to question a witness to the robbery; that

he was not arrested until four months after the facts, having been

questioned by the police twice within this period, which indicates that

he is innocent. He further submits that on the critical day he had his

hand in a plaster cast and was thus unable to commit the alleged crime.

He complains of the assessment of the evidence made by the Public

Prosecutor and the court.

The applicant further complains that he is not receiving proper

medical care in prison. He submits that his health is rapidly

deteriorating.

THE LAW

1. The applicant complains under Article 6 (Art. 6) of the

Convention of the unfairness of the criminal proceedings against him.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal..."

The Commission recalls that it can only assess the fairness of

criminal proceedings when it is able to consider them in their entirety

(see No. 16156/90, Dec. 7.6.90, unpublished). Until the proceedings

have terminated, it is not possible to determine whether Article 6

(Art. 6) has been complied with. In the present case the criminal

proceedings are still pending. This complaint is therefore premature.

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. The applicant further complains that he is not receiving proper

medical care in prison. He submits that his health is rapidly

deteriorating.

The Commission has examined this complaint under Article 3

(Art. 3) of the Convention, which reads:

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

treatment or punishment."

The Commission recalls that, according to the case-law of the

Convention organs, 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 receives 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 difficult to treat (Chartier v. Italy,

Comm. Report. 8.12.82, D.R. 33 p. 41). The State is under an

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 respect for the ordinary and reasonable

requirements of imprisonment (Bonnechaux v. Switzerland, Comm. Report

5.12.79, D.R. 18 p. 100).

In the present case, the Commission considers that the

applicant's condition does not appear to be so severe as to necessitate

specialised treatment in any particular civil hospital. The

applicant's condition was subject to scrupulous monitoring by the

prison medical services, as he underwent many examinations by general

practitioners and also by specialists in orthopaedic surgery. The

treatment available in prison medical services was offered to the

applicant on numerous occasions and he repeatedly refused to give his

consent. The medical services took him to the Central Prison Hospital

in Warsaw for further examination. There is nothing in the medical

certificates submitted by the applicant to support his submisson that

the only way in which he could be cured is by an operation in a civil

hospital. Moreover, the applicant's condition has apparently

deteriorated as he repeatedly refused to undergo the rehabilitation

treatment offered to him and consistently disregarded various medical

recommendations. Furthermore, regard must be had to the fact that it

appears from the circumstances of the case, as certified by the medical

expert opinion, that the applicant has probably himself acted in such

a way as to cause inflammation of his sprained knee.

The Commission concludes that the treatment complained of does

not attain the threshold of inhuman or degrading treatment within the

meaning of Article 3 (Art. 3) of the Convention as established in the

case-law of the European Court of Human Rights (cf. Eur. Court H.R.,

Ireland v. United Kingdom judgment of 18 January 1979, Series A, no.

25, p. 56, para. 162). It follows that this complaint is manifestly

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

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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NOWOJSKI v. POLAND

NOWOJSKI v. POLAND