FOURTH SECTION

DECISION

Application no . 10824/11 Robert Wincenty HOŁOWNIA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 10 February 2015 as a Chamber composed of:

Guido Raimondi , President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 2 February 2011 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . T he applicant, Mr Robert Wincenty Hołownia , is a Polish national, who was born in 1958 and lives in Warszawa .

2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. The applicant was represented by Mr K. Doma ński, lawyer practising in Warsaw.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 5 November 1999 at 6.20 p.m. the applicant was stopped by the police during a routine traffic check. He was arrested, as there was an arrest warrant pending against him in the context of criminal proceedings concerning, apparently, a minor case of fraud. During the arrest he informed the officers that he suffered from rheumatoid arthritis for which he took medication. He was taken to hospital for a check-up. The results confirmed that he suffered from the condition. The doctor examining him did not find it necessary to prescribe any medication.

5 . The applicant was subsequently taken to a police station, where he spent two nights in a cell. He was given no medication. On 7 November 1999 he was transferred to Warsaw-Mokotów Detention Centre.

6 . His requests to be allowed to take painkillers were refused. He was told that he would be examined by the prison doctor and put in a cell.

7 . On the night of 7 November 1999, at approximately at 2 a.m., the applicant fell off his bed and could not get up. The prison guard called by his cellmate did not enter the cell, but ordered him to help the applicant climb back onto the bed, which the cellmate did. Shortly afterwards the applicant fell off the bed again. He remained on the floor until morning.

8 . At 8 a.m. the applicant could not get up and had difficulty moving. He was taken to see the prison doctor, who diagnosed stroke. It was established that he suffered from rheumatoid arthritis and type 2 diabetes. The applicant was then taken to a nearby hospital for treatment.

9. The applicant had partial paralysis in one of his arms and legs. On 24 July 2002 he lodged a compensation claim with the Warsaw Regional Court. He claimed 500,000 Polish zlotys (PLN) in respect of alleged pecuniary and non-pecuniary damage on account of the fact that he had been left permanently disabled as a result of the stroke, and PLN 40,000 as reimbursement of his treatment costs. The applicant argued that the conduct of the prison authorities after his arrest on 7 November 1999 had caused his health to deteriorate and left him unable to work. He referred to the refusal of the prison guards to give him anti-inflammatory drugs and painkillers for his rheumatoid arthritis. He further submitted that the prison guards had failed to provide him with any medical assistance during the night in question. Seven to eight hours had passed between the incident and him receiving medical care, which was only offered to him in the morning. He argued that this delay had contributed to the seriousness of his condition. Had he been given assistance earlier, his condition would not have become so serious.

10 . On an unspecified later date the applicant was exempted from the obligation to pay court fees and granted legal aid for the purposes of proceedings before the first- and second-instance courts.

11 . In the course of the proceedings before the first-instance courts, experts in neurology, rheumatology and diabetology confirmed that the applicant suffered from rheumatoid arthritis, although it was noted that he had failed to submit any medical records concerning his treatment prior to the arrest. The rheumatologist stated that, even assuming that the applicant had been treated for the condition prior to his arrest, a three-day interruption in taking the relevant medication could not have caused a stroke. The expert further stated that left untreated, diabetes might have contributed to its occurrence. The neurologist stated that an earlier diagnosis of the stroke could have limited the damage to the applicant ’ s health.

12 . The applicant ’ s claim was dismissed on 10 November 2006. In issuing its judgment the Warsaw Regional Court relied on the expert opinions. It noted that the applicant had failed to submit medical records showing that he had been in some form of treatment prior to his arrest. The court found no causal link between the conduct of the prison authorities after the applicant ’ s arrest and the stroke he had subsequently suffered.

13 . The applicant appealed. He argued, inter alia , that the court had erred by failing to examine whether there had been a causal link between the failure to assist him during the night in question and the condition he had developed as a result of the stroke. He referred to the opinion given by t he neurologist (see paragraph 11 above).

14 . On 15 January 2008 the Warsaw Court of Appeal quashed the contested judgment and remitted the case to the lower court. It considered that the first-instance court had failed to establish the facts of the case correctly, in particular as to the applicant ’ s medical history prior to his arrest. It instructed the lower court to take additional evidence regarding this aspect of the case.

15 . The case was examined again by the Warsaw Regional Court. During these proceedings the court ordered the applicant to restate his claim. The applicant ultimately claimed co mpensation in the amount of PLN 490,000. He referred to Article 319 § 2 of the Civil Code. This amount covered PLN 450,000 in re spect of loss of income and PLN 40,000 for the treatment costs he had borne after the accident. He further claimed a monthly pension of PLN 1,500, referring to Article 444 of the Civil Code.

16 . On 18 November 2009 the Warsaw Regional Court dismissed the applicant ’ s claim. It found that he had been arrested on 5 November 1999 and placed in detention in Warsaw-Mokotów Detention Centre two days later, on 7 November 1999. He had felt unwell that night and fell out of bed twice. After the first fall his cellmate had helped him up, as directed by the prison guard. When he had fallen out of bed for a second time, he was unable to get up, even with the assistance of his cellmate. He had remained on the floor until morning. When morning came a nurse had decided that he should be taken to the doctor, who had realised that the applicant had suffered a stroke during the night. He had subsequently been taken to the neurological ward of a nearby hospital, where he had undergone treatment for the next three weeks.

17 . The court referred to medical expert opinions prepared for the purposes of the case. The experts had found that it had not been established that prior to his arrest the applicant had been regularly taking medication for his rheumatoid arthritis. However, even assuming that he had, the fact that he did not receive any after his arrest during the days preceding his stroke had had no bearing on the stroke itself. It had probably been caused by his circulation problems, which could have also been caused by his previously undiagnosed and untreated diabetes.

18 . The Regional Court referred to the supplementary expert opinion of a neurologist, who observed that the refusal to provide the applicant with painkillers/anti-inflammatory drugs after his arrest could not have caused the stroke, even though it might have caused him some suffering. He was of the view that the stroke would likely have occurred even if the applicant had not been arrested, as deterioration of health leading to stroke was normally a long-term process.

19 . The court had regard to evidence given by R.J., the inmate who had shared a cell with the applicant on the night of 7 November 1999. He testified that when the applicant had fallen off the bed, no medical assistance had been given to him. The court observed that leaving the applicant in the cell until the morning without any help from the prison guards was inappropriate. However, it was of the view that this failure was of no relevance to the applicant ’ s compensation claim, as the stroke had most probably been caused by the applicant ’ s pre-existing condition prior to his arrest. Hence, even the fact that no medical assistance had been given to him during the night in question, could not be regarded as giving rise to the State ’ s liability in tort in respect of the obvious damage to his health caused by the stroke.

20 . The court observed that the applicant had essentially relied on the refusal of the police officers and prison guards to give him medication during his arrest and afterwards. In the absence of a demonstrated causal link between the refusals to give the applicant medication and his stroke on 7 November 1999, the statutory conditions for the State ’ s liability in tort had not been met.

21 . The applicant appealed. He complained, inter alia , that the first ‑ instance court had failed to examine the issues crucial to the case. In particular, the court had failed to address the shortcomings of the medical attention given to the applicant during the critical night. He referred again to the fact that the prison authorities did not do anything to help him and that he remained on the cell floor from 2 a.m. to 8 a.m. He submitted that that fact had had an impact on the development of his condition and that the failure to give him proper and timely medical assistance had resulted in subsequent serious damage to his health. He referred to a statement made by one of the expert witnesses who had confirmed that the lack of such prompt attention resulted in the scope of that damage.

22 . On 15 October 2010 the Warsaw Court of Appeal dismissed the applicant ’ s appeal and upheld the judgment. It fully shared the findings of the first-instance court and its legal assessment of the case. Under the applicable law, the applicant ’ s legal aid expired on that date.

23 . The applicant did not lodge a cassation appeal (appeal on points of law) against the appellate court ’ s judgment.

24 . In 2005 the social insurance authorities certified the applicant was suffering from a serious and permanent disability, in need of assistance in everyday life and unable to work. He received no income apart from disability benefit. He was not entitled to receive a pension because, as he was self-employed prior to his arrest, he had not been paying social insurance contributions.

B. Relevant domestic law and practice

25. Article 91 of the 1997 Constitution reads:

“1. After promulgation thereof in the Journal of Laws of the Republic of Poland ( Dziennik Ustaw ), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.

3. If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.”

26 . On 5 February 2005 amendments to the Code of Civil Procedure, adopted on 22 December 2004 ( Ustawa o zmianie ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych ), entered into force.

28 . Pursuant to Article 87 (1) § 1 of the Code a party must be represented before the Supreme Court by an advocate or a legal adviser. Cassation appeals not lodged by an advocate or a legal adviser must be rejected.

29 . Pursuant to Article 117 of the Code persons exempted from paying court fees may request legal aid. Under Article 118 § 1 of the Code legal aid expires when a second-instance judgment becomes valid in law ( prawomocny ). A new application for legal aid must be lodged for the purposes of subsequent proceedings before the Supreme Court.

30 . Under Article 398 (2) § 2 of the CCP a cassation appeal is available in cases concerning pecuniary rights if the value of the dispute exceeds PLN 50,000.

31. Under Article 398 (3) § 1 of the CCP a cassation appeal may be based on the following grounds:

(1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;

(2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.

32 . Under Article 399 (9) § 1 of the CCP the Supreme Court shall agree to entertain a cassation appeal if:

(a) a significant legal issue is involved in the case;

(b) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in judicial practice;

(c) the proceedings have been invalid in law; or

(d) the cassation appeal is manifestly well-founded.

33 . Pursuant to Article 398 (15) § 1 of the CCP the Supreme Court, having allowed a cassation appeal, can quash the challenged judgment in its entirety or in part and remit the case for re-examination.

35 . On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postÄ™powaniu sÄ…dowym bez nieuzasadnionej zwÅ‚oki ) (“the 2004 Act”) entered into force. A party to pending proceedings may ask for the proceedings to be expedited and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court ’ s decisions in the cases of CharzyÅ„ski v. Poland (no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005 ‑ VIII), and in its judgment in the case of Krasuski v. Poland (no. 61444/00 , §§ 34 ‑ 46, ECHR 2005-V).

COMPLAINT

36. The applicant complained under Article 3 of the Convention that the prison guards had failed to provide him with appropriate medical assistance after his stroke, that the delay in getting medical care had contributed to the seriousness of his present cond ition and that his efforts to obtain compensation had f ailed.

THE LAW

37 . The applicant complained under Article 3 of the Convention which, in so far as relevant, reads:

“No one shall be subjected to ... inhuman or degrading treatment ...”

38. The Government submitted that the applicant had failed to exhaust domestic remedies.

39 . Firstly, they argued that the applicant, who had been represented by a lawyer, should have also lodged a cassation appeal with the Supreme Court against the judgment of the appellate court. He had been exempted from paying court fees at each and every stage of the proceedings. It was therefore likely that he would obtain a further exemption and, consequently, legal aid, in respect of any subsequent cassation proceedings.

40 . At the material time, a cassation appeal was available if the value of the dispute to be pursued before the Supreme Court exceeded PLN 50,000. The value of the dispute to be pursued in the applicant ’ s case before the Supreme Court was equivalent to PLN 508,000. He was therefore entitled to submit a cassation appeal to that court. Such an appeal did not amount to an extraordinary remedy within the meaning of the Court ’ s case-law, so was therefore an available and effective remedy at his disposal.

41 . Secondly, the applicant should have brought a claim before the courts for the protection of his personal rights within the meaning of Articles 23, 24 and 448 of the Civil Code in respect of the failure to give him medical assistance. Had he chosen to do so, it would have been open to him to raise arguments based on his suffering and to also claim non ‑ pecuniary damages, whereas his action before the domestic courts had been targeted solely at proving that the State Treasury was liable in tort for pecuniary damage arising out of the fact that he could no longer work.

42 . Thirdly , the Government argued that the factual arguments raised by the applicant before the Court had never been examined in the domestic proceedings. In his application to the Court, he had essentially complained that the prison staff had not helped him during the night in question and that this failure had caused serious damage to his health. They claimed that these circumstances, referring to the prohibition of inhuman treatment, had not constituted the factual basis of the applicant ’ s claim before the domestic courts, as he had not complained about his suffering or about a lack of medical assistance. His case had failed as there had been no causal link between his ill health and pecuniary damage allegedly resulting therefrom on the one hand or the conduct of the prison authorities on the other.

43 . The Government acknowledged that the domestic court had observed that leaving the applicant in the cell during the night without assistance from the prison guards was inappropriate. However, it had held that this conduct was of no relevance to the applicant ’ s compensation claim, as the stroke had most probably been caused by his pre ‑ existing condition prior to his arrest.

44 . In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domesti c remedies, pursuant to Article 35 § 1 of the Convention.

45 . The applicant submitted that, as a result of the circumstances complained of, he had suffered both pecuniary and non-pecuniary damage. The former corresponded to the income he had lost over the ten years he had been unable to work. The latter was for his suffering, the nervous breakdown he had suffered, his loss of autonomy and the fact that he had not acquired an entitlement to either an old age or a disability pension. During the night in question, the prison authorities had failed to provide medical care to him. It was not open to doubt that the conduct of the authorities towards him fell within the ambit of treatment prohibited by Article 3 of the Convention.

46 . The applicant averred that in the civil proceedings he had not been in a position to submit evidence concerning his medical treatment prior to his arrest. His efforts to find the relevant medical records for the purposes of the civil proceedings had been to no avail, as more than ten years had passed. Some of the clinics where he had been treated had since closed down. Certain documents pertaining to his treatment could no longer be found in the archives. The applicant furth er insisted, referring to a non ‑ specific medical opinion, that the fact that h e had not had received any anti ‑ inflammatory treatment for three days after his arrest could have resulted in a stroke.

47 . The applicant submitted that he had not lodged a cassation appeal with the Supreme Court as it would have prolonged the proceedings considerably. Moreover, that court could have quashed the judgment of the appellate court and remitted the case for re-consideration. That would have prolonged the proceedings even more. The applicant could not be expected to spend more time trying to assert his rights, given that his disability caused by the events complained of was obvious.

48 . The Court reiterates that it is paramount that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04 , § 69, ECHR 2010 ; Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV ; Łatak v. Poland (dec.), no. 52070/08 , 12 October 2010, § 75; and Samsel v. Poland (dec.), no. 55100/11, 27 August 2013; H ö sl-Daum v. Poland (dec.), no. 10613/07, 7 October 2014).

49 . The rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many other authorities, Antoni Lewandowski v. Poland , no. 38459/03 , § 61, 2 October 2012).

50 . In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement. Mere doubts regarding the effectiveness of the relevant remedy, if not supported by material evidence, such as examples from the established domestic practice, are not sufficient to absolve an applicant from his duty under Article 35 § 1 (see Pikielny and Others v. Poland (dec.), no. 3524/05 , 18 September 2012, § 57).

51 . The Government submitted that the factual arguments raised by the applicant before the Court had not been examined in the domestic proceedings as he had never complained that the prison staff had not helped him during the night in question and that this failure had caused serious damage to his health (see paragraph 42 above). The Court notes, firstly, that the applicant submitted already in his statement of claim that the prison guards had failed to provide him with any medical assistance during the night in question; that seven to eight hours had passed before he received any medical care, and that this delay had contributed to the seriousness of his condition. He further argued that had he been given assistance earlier, his condition would not have been so serious (see paragraph 9 above). Further, in his appeal against the judgment of 10 November 2006 the applicant argued that the courts had faile d to examine the existence of a causal link between the failure to assist him during the night in question and the condition he had developed as a result of the stroke (see paragraph 13G13 above). The Court is satisfied that the applicant brought this aspect of his case sufficiently to the attention of the domestic authorities.

52 . The Court therefore concludes that this part of the Government ’ s objection must be dismissed.

53 . The Government further argued that the applicant should have brought a cassation appeal to the Supreme Court.

54 . The Court notes that in a number of decisions and judgments given in cases against Poland, it has examined the necessity for applicants to have recourse to a civil cassation appeal for the purposes of Article 35 § 1 of the Convention in the light of the individual circumstances of the case seen as a whole. For example, in the case of Dzieciak v. Poland (no. 77766/01, 9 December 2008), the Court noted that the Government had failed to refer to any cases in which the Supreme Court had allowed a cassation appeal and considered the merits of a claim where the lower courts had found that the claimant had sustained no damage on account of the authorities ’ failure to provide appropriate medical care to a detained person who ultimately died, and where the courts would have relied on the outcome of criminal proceedings in which no unlawful action by a State agent had been disclosed. Even assuming that the applicant in that case had been successful in recovering civil damages from a State body by way of a cassation appeal on account of negligent acts or omissions leading to her late husband ’ s death, this would still not have resolved the issue of the procedural obligations arising under Article 2 of the Convention. A Contracting State ’ s obligation under this provision to conduct an investigation capable of leading to the identification and punishment of that responsible might be rendered illusory if, in respect of complaints under that Article, an applicant were required to make use of a remedy leading only to an award of damages (ibid., §§ 79-81). In the case of Antoni Lewandowski (cited above) the Court was of the view, having regard to the domestic judicial practice in similar cases, that the prospects of success of the applicant ’ s cassation appeal would have been very slim and therefore insufficient for the purposes of Article 35 § 1 of the Convention (ibid., §§ 62-66). In a number of cases, the Supreme Court had refused to entertain cassation appeals brought by the applicants, and the Government did not raise the non-exhaustion objection in the subsequent proceedings before the Court (see, for example, Plechanow v. Poland , no. 22279/04 , 7 July 2009, and Węgrzynowski and Smolczewski v. Poland , no. 33846/07, 16 July 2013). In other cases, the Supreme Court had examined cassation appeals on the merits and the Court subsequently accepted that the applicants had exhausted relevant remedies (see Błaja News Sp. z o. o. v. Poland , no. 59545/10 , 26 November 2013, and Remuszko v. Poland , no. 1562/10, 16 July 2013).

55 . It falls therefore to the Court to examine whether in the particular circumstances of the case a cassation appeal was a remedy which should have been used by the applicant.

56 . Firstly, the Court notes that the applicant obtained a judgment of the appellate court. The value of the dispute to be pursued by way of a further appeal far exceeded the threshold of PLN 50,000, as his claim of PLN 450,000 was dismissed in its entirety. A cassation appeal was therefore available to the applicant. The applicant did not submit any arguments to the contrary.

57 . Secondly, the Court is aware that legal representation was mandatory for the purposes of lodging a cassation appeal. The applicant benefited from legal aid in the proceedings at first and second instance; however, he failed to request legal aid for the purp oses of preparing and lodging a cassation appeal. While his legal aid expired after the judgment of the appellate court became valid, no arguments have been submitted to the Court to explain why a further legal aid request was not submitted to the courts, or to demonstrate that such a request would have offered no prospects of success.

58 . Thirdly, the Court notes that under Article 398(3) § 1 of the Code of Civil Procedure a cassation appeal could be based on a breach of substantive law (see paragraph 31 above ). It further observes that pursuant to Article 91 of the Constitution a ratified international self-executing agreement shall constitute part of the domestic legal order and shall be applied directly (see paragraph 2 5 above). It has not been shown to the Court ’ s satisfaction, in the light of the practice of the Supreme Court, that a cassation appeal based on allegation of a substantive breach of Article 3 of the Convention would not have complied with the formal requirements laid down by the Code of Civil Procedure.

59 . Fourthly, the applicant failed to make specific arguments, with reference to the established practice of the Supreme Court in similar cases. to show that in the circumstances of the present case a cassation appeal did not offer any prospects of success.

60 . Fifthly, in so far as the applicant argued that lodging a cassation appeal would have prolonged the proceedings which had in any event lasted a long time, the Court observes that the proceedings were instituted in 2004. On 17 September of that year the 2004 Act entered into force; however, the applicant did not have recourse to this remedy throughout the proceedings and failed thereby to seek either compensation for their length or to have them expedited. In the proceedings before the Court, he failed to advance any arguments as to why recourse to this remedy was neither used nor envisaged.

61. In consequence, having regard to the circumstances of the case seen as a whole, the Court finds that it would be inconsistent with the subsidiarity principle to accept the application for substantive examination without requiring the applicant to first submit the substance of his Convention complaint to the Supreme Court by way of a cassation appeal.

62 . It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 March 2015 .

             Françoise Elens-Passos Guido Raimondi Registrar President