FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63905/00 by Adam WASILEWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 September 2003 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 26 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Adam Wasilewski , is a Polish national, who was born in 1974 and lives in Brwinów .

A. The circumstances of the case

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

The applicant is physically handicapped and suffers from various mental disorders which originated from prenatal damage caused by his mother’s car accident. He suffers from encephalopathy, epilepsy and he is mentally retarded. His thumbs are malformed and he lacks one kidney.

The applicant is legally incapacitated. In 1994 the court appointed his father, M.W., as his guardian.

On 15 April 1998 the applicant was arrested and charged with attempted extortion of money by threats. He was apprehended at the very moment of his attempt to extort money, as a result of police trap. He pleaded guilty but failed to name his accomplices. The applicant appealed against his arrest maintaining, among others, that in view of his health condition he should not be held in the detention centre. On 16 April the Pruszków District Court dismissed his appeal, finding that the arrest was justified and the documents available in the local psychiatric clinic did not indicate that his detention would be particularly harmful for his health.

On 17 April 1998 the Pruszków District Court decided to detain the applicant on remand until 14 July 1998. The court found that there was a reasonable suspicion that the applicant had committed an offence in collusion with other persons and that, there existed a danger of his obstructing the proceedings as the other perpetrators had escaped and their identity had not been established. The court further referred to the fact that the applicant might face severe punishment and that the medical report requested confirmed that his health condition was not incompatible with detention.

Throughout the initial period of his detention, at least until 2 July 1998, the applicant remained in the detention centre Warszawa- Białołęka , which apparently was not fit for detainees with mental disorders. No details have been submitted by the applicant as regards the precise material conditions of his detention. It is unclear whether he was detained in a common cell or on premises of the medical ward at the detention centre.

As of 17 April 1998 the doctors at the Warszawa- Białołęka detention centre administered to the applicant a drug called “ Amizepin ”, allegedly of a psychotropic nature.

On 28 April 1998 the Warsaw Regional Court instructed the administration of the detention centre to set up a medical commission to examine the applicant, assess whether the state of his health allowed him to remain in custody and, if so, to specify the conditions in which he should be kept. The court requested that the matter should be considered as urgent and the report should be sent by facsimile as soon as possible.

On an unspecified date in June 1998 the applicant wrote to his father that he had been brought for medical examinations which were, however, allegedly abandoned.

The medical examination was eventually carried out on 1 July 1998. On 2 July 1998 the medical commission of the detention centre clinic issued a medical report. It found that the applicant suffered from encephalopathy with disorders of behaviour, from epilepsy with infrequent attacks and that he was mentally retarded. The commission concluded that the applicant could remain in a detention centre with a medical clinic provided that it had a psychiatric and neurological unit.

On an unspecified date after 2 July 1998, following the medical report the applicant was transferred to the detention centre Warszawa- Mokotów , which had a psychiatric clinic. It is not clear whether he was actually held in the clinic or in a common cell.

On an unspecified date the applicant filed an appeal against his detention. On 9 July 1998 the Warsaw Regional Court dismissed the appeal. The court shared the arguments of the first instance court and found that the applicant was receiving specialist medical care in detention.

On 13 July 1998, upon the competent public prosecutor’s motion, the Pruszków District Court decided to prolong the applicant’s detention until 14 October 1998. The court found that four days earlier the Regional Court had upheld the initial detention order and since then the circumstances remained unchanged. The court also noted that nothing had been done in the investigation against the applicant because the prosecutor had not had the case file at his disposal ever since the applicant’s arrest (“ w dotychczas zakreślonym terminie Prokurator w istocie nie dysponował sprawą i sytuacja procesowa znajduje się praktycznie w punkcie jak w dniu stosowania aresztu ”). The court concluded that the proper conduct of the investigation required the applicant’s stay in detention.

The applicant appealed against the prolongation of his detention. He also contended that, should the detention order be upheld, he should remain in a regular hospital and not in a detention centre.

On 4 August 1998 the Warsaw Regional Court found that the detention was necessary as, in particular, a psychiatric report had been requested. It decided, however, that the extension given by the District Court was excessively long and ruled that the applicant should be detained until 14 September 1998.

On 27 August 1998, the prosecutor conducting the investigation decided to place the applicant under psychiatric observation with a view to determining whether he could be held criminally liable. This decision was upheld by a court upon the applicant’s appeal.

On 26 July 1998 the applicant sent his first letter to the European Commission of Human Rights. A letter of 24 August 1998, sent by the Commission to the applicant was intercepted by the administration of the detention centre on 15 September 1998.

On 8 September 1998 the Pruszków District Court decided to prolong the applicant’s detention until 14 October 1998. The court referred to the persistence of a reasonable suspicion that the applicant had committed the offence at issue and to the seriousness of this offence and the severity of the potential sentence. It also noted that further procedural steps were necessary to identify the other perpetrators and considered that there was a danger that the applicant would obstruct the investigation. Reference was also made to the applicant’s bad reputation in his place of residence and the need for further psychiatric examinations of him.

On 29 September 1998 the doctors from the clinic of the Warszawa ‑ Mokotów detention centre examined him and concluded that he could remain in the detention centre provided that it had psychiatric and neurological clinic.

The applicant appealed against the prolongation of his detention. The Warsaw Regional Court dismissed his appeal on 8 October 1998, upholding the findings of the first instance court. On the same date, the same court examined a fresh motion by the prosecutor and again prolonged the applicant’s detention, until 31 December 1998. The court found that, since the psychiatric report was of crucial importance for determining the scope of the applicant’s criminal liability, and since the doctors had stressed the need for the applicant’s observation in the psychiatric hospital, the prolongation of his detention was necessary. Following an appeal, the Warsaw Court of Appeal upheld the decision on 6 November 1998.

On 29 October 1998 the applicant renewed his motion to be detained in a regular hospital instead of a detention centre, pursuant to the provisions of the Code on the Execution of Sentences, applicable also to detention on remand. It appears that no decision was rendered in this respect.

In the meantime, he was summoned to testify as a witness in a case pending before the Olsztyn Regional Court, approximately 200 km from Warsaw. That court requested the competent authorities to escort the applicant and to ensure his presence at the hearing on 5 October 1998 in Olsztyn . He was brought to the Olsztyn detention centre on 1 October 1998 at 4.45 am. When it was established that he could not stay in the Olsztyn detention centre as it did not have appropriate medical services, he was transported to the Barczewo prison, approximately 15 kilometres from Olsztyn . He stayed in a solitary cell of the prison hospital of Barczewo from 1 October 1998 until 7 October 1998 when he was escorted back to Warsaw.

The applicant’s subsequent motions for release were dismissed by the Pruszków District Court on 24 December 1998 and 15 January 1999.

On 26 January 1999, upon his renewed motion, the Pruszków District Court decided to release him and subject to police supervision.

In January 2000 the applicant was hospitalised for anaemia. As stated by the doctors of the specialised clinic, due to the significant lapse of time it was no longer possible to establish whether the allegedly careless administration of “ Amizepin ” between April 1998 and October 1998 had had any impact on the applicant’s blood circulation. In March 2000 he was again hospitalised following a suicide attempt.

By a judgment of 28 June 2002 the Pruszków District Court found the applicant guilty of an attempt to extort money by threats in collusion with other persons whose identity had not been established. The court found that, despite certain mental disorders, the applicant could be held criminally liable. His handicap and limited capacity to understand and control his conduct was taken into account as mitigating circumstances. The court sentenced the applicant to two years’ imprisonment, suspended.

The applicant appealed. The case is now pending before the Warsaw Regional Court. On 27 May 2003 the court decided to stay the appellate proceedings in view of the fact that the applicant’s state of health did not allow him to participate in the proceedings. It appears that the applicant is subject to regular blood transfusions because of anaemia which was allegedly prompted by the uncontrolled administration of “ Amizepin ”. On an unspecified date he was also diagnosed as having been contaminated with hepatitis which was allegedly caused by lack of hygiene in the prison hospital.

In 1998 the applicant instituted civil proceedings against the prison authorities. He claimed damages in respect of conditions of his detention and in particular in respect of his health deterioration allegedly resulting from inadequate medical care. The proceedings remain pending.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the conditions of his detention were inhuman and degrading and that he did not receive adequate medical care. In particular, he submits that, between April and July 1998 he was detained in a detention centre which did not have appropriate medical facilities. He submits that the lack of appropriate medical care and the uncontrolled administration of the drug “ Amizepina ” caused his anaemia. He also complains that he was contaminated with hepatitis. He also complains that his detention in a solitary cell in Barczew between 1 and 7 October 1998 constituted an inhuman treatment given his health and mental condition.

The applicant further complains under Article 5 of the Convention that his detention was unlawful and excessively long. In particular, he submits that  the authorities failed to act with special diligence when conducting the investigation in his case. He raises that, given his medical condition, he should not have stayed in detention.

He also complains under Article 6 of the Convention about the allegedly excessive length of the criminal proceedings against him.

He also complains under Article 8 of the Convention about the alleged censorship of his correspondence with the European Commission of Human Rights.

THE LAW

1. The applicant complains about allegedly inhuman and degrading conditions of his detention. He submits that the lack of adequate medical care caused his anaemia and that he was contaminated with hepatitis. He also complains that his detention in a solitary cell in Barczew between 1 and 7 October 1998 constituted an inhuman treatment given his health and mental condition.

Article 3 of the Convention provides as follows:

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

Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted.

The Court notes that the applicant instituted civil proceedings for damages against the prison authorities. He claims compensation for inhuman and degrading conditions of his detention and in particular in respect of the deterioration of his health allegedly resulting from inadequate medical care in detention. These proceedings remain pending before domestic courts, before which the applicant can raise, at least in substance, the complaints which is now putting before the Court. The applicant’s complaints submitted under Article 3 of the Convention are accordingly premature.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies

2. The applicant also complains that his detention was unlawful. This complaint falls to be examined under Article 5 § 1 of the Convention.

Article 5 § 1, insofar as relevant, provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so:”

The Court first recalls that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary (see, among other authorities, Baranowski v. Poland, no. 28358/95, §§ 50-57, ECHR 2000-III; and the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 19-20,§§ 45 et seq.).

The Court further recalls that the “reasonableness” of the suspicion on which an arrest must be based forms an essential element of the safeguard against arbitrary arrest and detention. Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (cf. the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32).

In the present case the applicant’s detention was imposed in accordance with domestic law and fell within the ambit of Article 5 § 1 of the Convention. The Court notes that the applicant was apprehended at the very moment of his attempt to commit a criminal offence. He pleaded guilty but failed to name his accomplices. The criminal proceedings were instituted in order to establish all circumstances and identify other perpetrators.

In the light of all material in its possession the Court finds no indication that the applicant’s detention was unlawful or arbitrary.

It follows that this complaint is manifestly ill-founded and it must be rejected in accordance with Article 35 §§ 4 and 5 of the Convention.

3. The applicant further complains that, given his medical condition, his detention was excessively long.

Article 5 § 3 of the Convention, insofar as relevant, provides as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore  necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

4. The applicant also complains that the length of criminal proceedings against him exceeded reasonable time.

Article 6 § 1 of the Convention, insofar as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

5. The applicant also complains about the interference with his right to respect for his correspondence.

Article 8 of the Convention provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore  necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of his detention, length of criminal proceedings against him and the interception of his correspondence with the European Commission of Human Rights;

Declares the remainder of the application inadmissible.

Michael O’B oyle Nicolas Bratza Registrar President