Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25669/94

by Andrzej JASTRZ*BSKI

against Poland

The European Commission of Human Rights sitting in private on

6 July 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 September 1994

by Andrzej Jastrz*bski against Poland and registered on 15 November

1994 under file No. 25669/94;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1948, is a construction

technician. He is currently detained on remand in Poznan prison.

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

summarised as follows:

In 1988 the applicant's right thumb was amputated as a result of

a car accident.

In March 1991 the applicant was arrested and detained on remand,

on suspicion of selling stolen goods, by virtue of a warrant of arrest

issued by the Leszno District Public Prosecutor.

In June 1991 the applicant was released for health reasons. From

June to September 1991 he had one of his toes transplanted to his hand

to replace the thumb.

On 4 September 1991 the applicant was rearrested. His hand was

badly swollen and became gangrenous. In November 1991 the applicant

was released for health reasons.

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

and immediately thereafter admitted to a clinic specialised in hand

surgery in which he underwent a further operation.

On 28 December 1992 the Poznan Regional Court (S*d Wojewódzki)

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 Poznan Court

of Appeal (S*d Apelacyjny) dismissed the applicant's appeal against the

warrant of arrest.

On 21 May 1993 the applicant underwent a medical examination at

the Poznan Clinic of Forensic Medicine.

On 7 June 1993 the Poznan Regional Court dismissed the

applicant's request for release. On 27 July 1993 the Poznan Court of

Appeal upheld this decision.

On 5 October 1993 the medical panel at the Poznan prison hospital

examined the applicant and concluded that it was necessary to release

him for treatment in a specialised clinic.

On 18 October 1993 the Court decided that the applicant should

be examined in the forensic medicine clinic.

On 16 November 1993 the Poznan Regional Court dismissed the

applicant's request for release.

On 30 November 1993 the Poznan 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.

On 4 January 1994 the medical panel at the Poznan 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.

Apparently on 12 January 1994 the Director of the Forensic

Medicine Ward informed the Court that the treatment required could be

provided in detention.

On 24 January 1994 the Poznan Regional Court refused to release

the applicant. On 8 February 1994 the Poznan Court of Appeal upheld

this decision. The Court noted that the applicant had failed to

undergo the treatment while he was released 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.

On 5 May 1994 the Poznan 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.

On 24 May 1994 the medical panel at the Poznan prison hospital

recommended that the applicant be released to undergo further treatment

in a specialised surgical clinic.

On 4 June 1993 the Poznan 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.

On 6 June 1994 the Bydgoszcz Penitentiary Court (S*d

Penitencjarny) decided that the execution of the applicant's

imprisonment penalty should be suspended so that he could undergo the

necessary treatment, as recommended in the medical opinion of

24 May 1994.

On 27 June 1994 the Director of the Poznan prison hospital

informed the Poznan Regional Court that there was no serious danger to

the applicant's health or life.

On 4 July 1994 the Poznan 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 1992 been released to undergo an 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 Poznan Court of Appeal.

In a letter to the judge, dated 16 October 1994, the applicant

apparently complained, inter alia, that he had not received the

decisions relating to his detention on remand and that he could not

obtain copies of certain documents in the case-file.

On 21 October 1994 the medical panel at the Poznan 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.

On 25 October 1994 the judge replied that the applicant had in

fact received the court decisions at issue and that according to the

Code of Criminal Procedure he could only be granted access to the case-

file; he could not obtain copies of the documents in the case-file

other that the court decisions.

On 14 March 1995 the medical panel at the Poznan 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.

On 30 March 1995 the Poznan 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 in view of his health problems.

On 12 April 1995 the Poznan Penitentiary Court 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. A panel of this Court, composed of three judges,

dismissed the applicant's appeal on 26 April 1995.

The date for the applicant's admission to the Poznan University

Clinic has been set for 26 June 1995.

COMPLAINTS

The applicant complains that he did not receive proper medical

care in prison. In particular he was refused a surgical intervention

in a specialised civil hospital as recommended by three medical panels.

He submits that according to the Penitentiary Court his health status

justified a suspension of the execution of his imprisonment, but the

court deciding on detention on remand disregarded the medical

recommendations. His health is rapidly deteriorating and he is

threatened with the amputation of his hand, afflicted by gangrene.

The applicant further complains that the Poznan Regional Court

is biased against him as the judge told him that he would not let him

have proper medical treatment. He further complains that his requests

to call witnesses have been dismissed and that the criminal proceedings

are too long.

The applicant finally complains that the Poznan Regional Court

refused to give him copies of the documents in the case-file for the

purposes of submitting an application to the Commission.

The applicant does not invoke any provisions of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 September 1994 and

registered on 15 November 1994.

On 22 February 1995 the Commission decided to communicate the

application to the Polish Government who were invited to submit their

observations on the admissibility and merits of the complaints under

Articles 3 and 25 of the Convention before 24 March 1995. At the

Government's request, this time-limit was subsequently extended until

15 April 1995.

By letter of 18 April 1995 the Government requested a further

extension until 20 May 1995. The Government were informed that an

extension of the time-limit until 12 May 1995 would be granted. 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 in

view of the particular circumstances of the case the time-limit for the

submission of the observations had been shortened to four weeks. In

these circumstances the further extension could not be granted. The

Government were also informed that the application was being considered

for inclusion in the list of cases for examination by the Commission

at its June session.

THE LAW

1. The applicant complains he did not receive proper medical care

in prison. In particular he was refused a surgical intervention in a

specialised civil hospital as recommended by four medical panels. He

submits that according to the Penitentiary Court his health status

justified a suspension of the execution of his imprisonment, but the

court deciding on detention on remand disregarded the medical

recommendations.

The Commission has examined this complaint under Article 3

(Art. 3) of the Convention, which states, insofar as relevant:

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

a) The Government, who have been informed that the application was

considered for inclusion in the agenda of the Commission at its present

session, have submitted no observations on the admissibility and merits

of the application.

b) It is the normal practice of the Commission, where an application

has been communicated to the respondent Government, in part or as a

whole, not to declare the complaint concerned inadmissible for failure

to exhaust domestic remedies, unless this matter has been raised by the

Government in their observations. The Commission considers that the

same principle should be applied where, as in the present case, the

respondent Government have not submitted any observations at all (see

No. 22947/93, Dec. 11.10.93, unpublished).

It follows that this part of the application cannot be rejected

under Article 26 (Art. 26) of the Convention for non-exhaustion of

domestic remedies.

c) The Commission further recalls the Convention organs' case-law,

according to which the parties must be invited to participate in the

examination of the facts by the Commission, though such an examination

cannot be hindered by the manner in which the parties in fact

participate (see No. 8007/77, Dec. 10.7.78, D.R. 13 p. 85).

d) Having examined these complaints, the Commission finds that they

raise serious questions of fact and law which are of such complexity

that their determination should depend on an examination of the merits.

The application cannot, therefore, be regarded as being manifestly ill-

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

Convention, and no other ground for declaring them inadmissible has

been established.

2. The applicant further complains that in the criminal proceedings

instituted against him the Poznan Regional Court was biased. He

adduces as a proof thereof that the judge told him that he would not

let him have proper medical treatment. The applicant further complains

that his requests to call witnesses were dismissed. The applicant also

complains that the criminal proceedings against him lasted too long.

The Commission has examined these complaints under Article 6

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

states:

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

everyone is entitled to a fair ... hearing within a reasonable

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

a) The Commission is not required to decide whether or not the facts

submitted by the applicant in support of the complaints concerning the

bias and the calling of witnesses 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".

The Poznan Regional Court convicted the applicant of selling

stolen goods and sentenced him to four years' imprisonment on

30 March 1995. Against this judgment the applicant could file an

appeal in last resort to the Poznan Court of Appeal. The applicant has

not shown that he did so and that he obtained a final judgment in this

case. It follows that the applicant has not complied with the

requirements as to the exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention.

This part of the application must therefore be rejected under

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

b) As regards the complaint about the length of proceedings, the

Commission recalls that Poland recognised the competence of the

Commission to receive individual applications "from any person, non-

governmental organisation or group of individuals claiming to be a

victim of a violation of the rights recognised in the Convention

through any act, decision or event occurring after 30 April 1993". In

accordance with the generally recognised principles of international

law, the Commission is not competent to examine complaints relating to

alleged violations of the Convention by acts, decisions or events that

have occurred prior to this date.

However, the Commission further recalls the Convention organs'

case-law, according to which where, by reasons of its competence

ratione temporis, the Commission can only examine part of the

proceedings, it can take into account, in order to assess the length,

the stage reached in the proceedings at the beginning of the period

under consideration (No. 7984/77, Dec. 11.7.79, D.R. 16 p. 92).

The Commission also recalls that the reasonableness of the length

of proceedings must be assessed in accordance with the circumstances

of the case and the criteria laid down by the Convention organs' case-

law: complexity of the case, attitude of the applicant and conduct of

the case by the judicial authorities (see, inter alia, Eur. Court H.R.,

B. v. Austria judgment of 28 March July 1990, Series A no. 175, p. 18,

para. 49).

In the present case the proceedings started at the latest in

March 1991, i.e. at the date at which the applicant was first arrested.

On 30 March 1995 the first instance judgment was pronounced. The

Commission observes that the period to be considered began only on

1 May 1993, the date on which the recognition of the right of

individual petition against Poland took effect. The period to be

considered is therefore two years and two months. However, in the

examination of the reasonableness of the period after 1 May 1993 the

stage reached in the proceedings at this date can be taken into account

(see No. 7984/77, loc. cit.).

The Commission need not examine whether the applicant has

complied with the requirement under Article 26 (Art. 26) of the

Convention as to the exhaustion of domestic remedies since this part

of the application is in any event manifestly ill-founded for the

following reasons. The applicant was rearrested on 4 April 1993. The

Commission observes that at this stage the proceedings could not have

been seriously advanced as since his arrest in March 1991 the applicant

was released three times for long periods in order to undergo medical

treatment in various hospitals, or was treated in prison hospital. It

is also noted that after 1 May 1993 the applicant submitted five

requests for release to the Poznan Regional Court. He filed three

appeals against the decisions of this Court, refusing to release him.

Furthermore, the applicant complains about the conduct of the

authorities. However, he has failed to provide information about any

procedural decisions which were taken, when the investigations were

completed and the indictment transferred to the Court, or when the

hearings were held.

Assessing the proceedings globally the Commission considers that

there is no appearance of a violation of the reasonable time

requirement. This complaint is therefore manifestly ill-founded within

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

3. The applicant further complains that the Poznan Regional Court

refused to give him copies of the documents in the case-file for the

purposes of submitting an application to the Commission.

The Commission has examined this complaint under Article 25

para. 1 (Art. 25-1) of the Convention which states:

"1. The Commission may receive petitions addressed to the

Secretary General of the Council of Europe from any person...

claiming to be the victim of a violation by one of the High

Contracting Parties of the rights set forth in this Convention...

Those of the High Contracting Parties who have made such a

declaration undertake not to hinder in any way the effective

exercise of this right."

The Commission notes that the applicant sent eight letters to the

Commission and has apparently received all the letters which the

Commission sent to him in reply. The applicant also sent to the

Commission numerous documents and copies of documents relating to his

health condition and treatment. He has been able to substantiate his

complaints under Article 3 (Art. 3) of the Convention.

The Commission considers that the applicant has not been hindered

in the effective exercise of his right to lodge an application as

guaranteed in Article 25 para. 1 (Art. 25-1) in fine of the Convention.

For these reasons, the Commission,

unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint under Article 3 (Art. 3) of the Convention;

by a majority,

DECLARES INADMISSIBLE the remainder of the application;

unanimously,

DECIDES to take no further action in respect of the alleged

interference with the effective exercise of the right of

individual petition.

Deputy Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A NØRGAARD)

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JASTRZEBSKI v. POLAND

JASTRZEBSKI v. POLAND

LEXI