FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26761/95 by Wacław PŁOSKI against Poland

The European Court of Human Rights ( Fourth Section ) sitting on 9 December 1999 as a Chamber composed of

Mr M. Pellonpää, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova, judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 July 1994 by Wacław Płoski against Poland and registered on 20 March 1995 under file no. 26761/95;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1949. He is a welder by profession and lives in Wrocław , Poland.

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

On 22 February 1994 the applicant was assaulted on a street in the vicinity of his house. In the course of the assault he was approached by an individual who threw herself on the applicant and subsequently attacked him twice with a chemical-irritant spray. A tear gas sprayed on the applicant’s face caused intensive lacrimation and impaired his sight. The applicant was then handcuffed while he was rubbing his eyes. Subsequently, he was escorted to the police station situated 200 meters away. The applicant claims that his son-in-law, who accompanied him at the time of the assault, ran to the applicant’s house to inform his wife about the attack.

After arriving at the police station, the applicant was informed that the individual who had used the chemical-irritant spray against him and handcuffed him was a police officer in plain-clothes. She was assisted by a male police officer who did not take any action but merely observed the events. The applicant claims that he recognised the voice of the male police officer as that of Mr A. H., whose prosecution on charges of ill-treatment he had sought unsuccessfully on several occasions. The applicant submits that his arrest and prosecution resulted from the collusion between both police officers who had fabricated evidence in order to obtain his conviction.

The applicant further submits that his request to wash his eyes was refused by the police officers although he informed them that he was suffering from pain and a burning sensation. In addition, the applicant’s request for medical treatment was refused.

Subsequently, the applicant was placed alone in a cell. He submits that he informed police officers that he should be always accompanied by another person as he suffered from epilepsy. The applicant also produced a medical certificate issued on 19 April 1993 by the GÅ‚ubczyce Prison and signed by a paediatrician, stating that his further imprisonment threatens his health. After he was locked in the cell, the applicant suffered an attack of epilepsy and lost consciousness. He submits that although in the course of the attack he hit his head against the floor and as a result had a headache after re-gaining consciousness, he was again refused medical treatment. The applicant also claims that he was not given medicines brought by his relatives to the police station.

On 24 February 1994 the applicant was brought before the Wrocław District Prosecutor ( Prokurator Rejonowy ). He submits that he still had swollen eyes and asked the Prosecutor to provide him with medical treatment, producing his medical certificate. However, his request was declined and he was advised that he would receive medical treatment from the prison health service. On the same date the applicant was charged with larceny, detained on remand and taken to the Wrocław Detention Center .

The applicant further submits that at the time of his admission to the Detention Center he produced his medical certificate and asked to see a prison doctor but his request was again refused.

On 28 February 1994 the applicant appeared before the Wrocław Prison Medical Panel ( Komisja Lekarska przy Szpitalu Więziennym ).

On 25 and 31 March 1994 the President of the Second Criminal Section of the Wrocław-Środmieście District Court ( Sąd Rejonowy ) informed the applicant that his complaint about the decision to detain him on remand would be decided after the court received a medical opinion about his state of health requested from the medical panel.

On 31 March 1994 the Wrocław Prison Hospital Medical Panel issued a medical certificate stating that the applicant’s state of health did not call for his hospitalisation and that he could remain in a prison. It also stated that further detention would not pose any risk to the applicant’s health and that he could take part in the court proceedings. The certificate was based on the following medical examinations conducted between 8 and 23 March 1994: an x-ray, an electrocardiogram, examinations by a neurologist, an ophthalmologist and a specialist in internal medicine.

In a letter of 19 April 1994 the President of the Second Criminal Section of the Wrocław-Środmieście District Court informed the applicant that his statements concerning his state of health submitted together with the complaint about the decision to detain him on remand received the serious attention of the court. As a result, it requested a medical opinion on the applicant’s state of health. On 12 April 1994 the court received an opinion issued on 31 March 1994 by a medical panel. Since the opinion stated that the applicant’s state of health allowed him to continue his detention, the court upheld the decision to detain him on remand.

On 28 April 1994 the Wrocław Regional Prosecutor ( Prokurator Wojewódzki ) replied to the applicant’s letter of 18 April 1994 in which he had complained that the rights of a person suspected of committing a criminal offence were violated in his case. The Prosecutor informed the applicant that the inspection of his case file showed that his complaint was unsubstantiated. He pointed out that on 12 April 1994 the District Court dismissed the applicant’s complaint about the decision to detain him on remand after receiving a medical opinion confirming that the applicant’s state of health allowed him to continue his detention. Moreover, the applicant’s claim that he was interrogated in the conditions excluding his freedom of expression was groundless. The Prosecutor also advised the applicant that none of the applicable regulations was breached in the course of the applicant’s admission to the Wrocław Detention Center .

The applicant submits that in May 1994 he asked a prison officer to allow him to meet a doctor as he suffered from pain and inflammation of his right eye. The officer refused his request. However, the applicant continued to complain about the condition of his eye and as a result the prison officer told him that he annoyed him and that he would be transferred to another ward. The applicant replied that he would agree to be transferred to another ward only after he was examined by a doctor. This statement was treated by the prison officer as a refusal to move to another ward. The applicant alleges that on 25 August 1994 he was asked by the prison officer to come to his room. When he entered the room a group of prison officers attacked him. A towel was put over his mouth to silence him. He was then escorted to solitary confinement. Prison officers kicked the applicant in the spine and kidneys and hit his neck while escorting him. After arriving to the cell the applicant was instructed to strip naked. He was then beaten in the back, stomach and neck. Subsequently, his pants were given back to him and he was locked alone in the cell. The stress caused by the assault led to an attack of epilepsy.

On 26 August 1994 a nurse brought the applicant a medicine for epilepsy. When she saw the applicant she insisted to the accompanying prison officer that the applicant could not be left alone in the cell because of his state of health. The nurse subsequently approached the Chief of the Detention Center Surgery, who in turn advised the Governor of the Detention Center about her request. Approximately 20 minutes after the visit of the nurse, the Governor came to the applicant’s cell and ordered his release from solitary confinement.

The applicant further submits that on 26 August 1994 the Chief of the Detention Center Surgery decided that he should be urgently taken to the Wrocław Eye Clinic. On the same day the applicant was taken to the Clinic where doctors decided that the state of his right eye required his immediate hospitalisation. However, prison officers escorting the applicant did not agree to leave him in the Clinic and he was taken back to the Detention Center .

Between 5 September and 12 October 1994 the applicant was hospitalised in the Bytom Detention Center Hospital where the inflammation of his eye was treated.

In a letter of 6 September 1994 the President of the Criminal Section of the Wrocław-Śródmieście District Court informed the applicant that he was not aware of any reasons for questioning the conclusion of the medical panel that the applicant’s state of health allowed to continue his detention. He also advised the applicant that his letter of 29 June 1994 requesting further medical examinations had been transmitted to the Governor of the Detention Center who assured the court that the applicant received proper medical care.

On 7 November 1994 the Chief of the Wrocław Detention Center Surgery issued a medical certificate stating that the applicant suffered from the following ailments: post-injury encephalopathy, retrogressive changes of the spine, discopathy , chronic duodenal ulcer disease, dystonia of the cardiovascular system, inflammation of the right eyeball, post- haemophthalmia condition of the right eye. In addition, the certificate included a recommendation that the applicant undergoes physiotherapy and a statement that the Detention Center had no facilities to provide it to him. The certificate also included a request that the applicant be examined by a medical panel.

On 5 December 1994 the District Agent for Professional Responsibility ( Okręgowy Rzecznik Odpowiedzialności Zawodowej ) of the Wrocław Chamber of Physicians refused to investigate the applicant’s complaint about the allegedly incorrect medical opinion issued by the Wrocław Prison Hospital Medical Panel and the refusal of the prison health service to provide him with medical treatment. The Agent pointed out that he could not consider an appeal against the decision of the Prison Hospital Medical Panel and that any requests for a new examination by a medical panel should be lodged with a court.

On 6 January 1995 the Deputy Governor of the Wrocław Prison informed the applicant’s wife and daughter that the investigation of their complaints about the allegedly inadequate medical treatment provided to the applicant in the Wrocław Detention Center showed that they were unsubstantiated. The applicant’s right eye had been treated in the Bytom Detention Center Hospital and he could benefit from further medical treatment in the Wrocław Prison Surgery according to the recommendations of an ophthalmologist and a neurologist.

In a letter of 17 January 1995 the applicant requested the President of the Wrocław Regional Court ( Sąd Wojewódzki ) to provide him with a written explanation of reasons for which he had not been allowed to attend, either alone or under police escort, the funerals of his mother and father who had died on 2 July and 3 August 1994, respectively. On 31 January 1995 the Legal Secretary of the Wrocław Regional Court advised the applicant that his requests for leave had been rejected by the Wrocław-Śródmieście District Court because it had considered him to be a recidivist posing a risk of absconding.

On 8 February 1995 the Penitentiary Judge refused the applicant’s request to grant him leave from prison to visit his daughter who was hospitalised in the Psychiatric Clinic of the Wrocław Medical Academy. The applicant submits that he was not allowed to make a phone call to his daughter when she was hospitalised.

On 10 February 1995 the Wrocław District Court refused the applicant’s request that he be released from detention. On 2 March 1995 the Wrocław Regional Court rejected the applicant’s appeal against the decision of the District Court. It dismissed the applicant’s argument that his further detention would result in a grave danger to his health pointing out that although the medical certificate issued on 16 February 1995 stated that the applicant required rehabilitation, it did not say that he could not remain in detention.

On 31 March 1995 the Ombudsman informed the applicant that the investigation of his complaints showed that on numerous occasions he had been examined by ophthalmologists from both prison and public health services. After the applicant had been diagnosed by the Wrocław Medical Academy Eye Clinic as suffering from the inflammation of the right eye, he had been admitted to the Eye Ward of the Bytom Prison Hospital where the inflammation had been treated. However, the treatment did not lead to an improvement of his eyesight. In addition, the Ombudsman pointed out that after his release from the hospital the applicant had been receiving treatment recommended by ophthalmologists. He concluded that the applicant had received proper medical treatment despite lack of improvement as expected by him.

On 20 June 1995 the applicant was examined by a doctor from the public health service.

On an unspecified date in 1995 the applicant was convicted of larceny and sentenced to a prison sentence.

On 14 July 1995 the applicant was transferred from the Wrocław Detention Center to the Wrocław Prison.

On 27 July 1995 the Wrocław Regional Medical Commission on Invalidity and Employment ( Wojewódzka Komisja Lekarska d.s . Inwalidztwa i Zatrudnienia ) granted the applicant the status of an invalid person considering that the condition of his eyesight caused a third degree disability.

In a letter of 24 September 1995 the Wrocław Medical Academy informed the Governor of the Wrocław Prison that the ophthalmological examination of the applicant performed on 12 September 1995 after he had lodged a complaint with the Ombudsman showed changes in the sight of his left eye, which required further neurological and psychiatric examinations. The letter was accompanied by a written diagnosis which stated, inter alia , that the applicant suffered from “practical blindness” ( praktyczna ślepota ) of his right eye.

In a letter of 13 November 1995 the Ombudsman informed the applicant that a doctor from the public health service, who had examined him on 20 June 1995, had been of the opinion that the applicant had received proper ophthalmological treatment and that surgical treatment of his right eye would not lead to the improvement of its condition.

On 6 December 1995 the Director of the Wrocław Prison Surgery issued a medical certificate stating that the applicant suffered from the following ailments: blindness of the right eye, post- haemophthalmia condition of the right eye, inflammation of the right eyeball, post-injury encephalopathy, retrogressive changes of the spine, chronic duodenal ulcer disease and dystonia . The certificate also stated that in 1990 the applicant had suffered an injury to his right eye and in August 1994 he had an inflammation of his right eyeball. The certificate confirmed that the applicant had received medical treatment in the Bytom Detention Center Hospital where he had been diagnosed with a post- haemophthalmia condition and an inflammation of his right eyeball. Finally, the certificate stated that the applicant’s eyesight was deteriorating and he suffered from “practical blindness” of his right eye.

On 24 January 1996 the Chief Agent for Professional Responsibility rejected the applicant’s complaint about the District Agent’s decision of 5 December 1994.

On 21 November 1996 the Legnica Regional Court rejected the applicant’s action against the State Treasury in which he claimed compensation for the injury of his right eye sustained in 1990 in the Głogów Prison and the allegedly inadequate treatment of the resulting ailment of his eye. The court considered that there was no causal link between the blindness of the applicant’s right eye and the accident which had taken place on 21 July 1990 when the applicant, who had been serving a prison sentence in the Głogów Prison, had worked as a welder. It relied on several medical opinions, including those obtained by the prosecution service in the course of an investigation following the accident, which confirmed lack of such a causal link. The court also noted that in 1994 the applicant had suffered from haemophthalmia in his right eye and as a result had received treatment in the Bytom Detention Center Hospital. In addition, it referred to an expert medical opinion prepared on 14 June 1996 by the Wrocław Forensic Medicine Institute, which stated that haemophthalmia had not been caused by the accident and did not exclude the possibility of self-infliction of injuries.

On an unspecified date in 1996 the applicant was released from prison.

On 24 April 1997 the Wrocław Court of Appeal ( Sąd Apelacyjny ) rejected the applicant’s appeal against the judgment of the Legnica Regional Court. On 10 June 1998 the Wrocław Court of Appeal dismissed the applicant’s appeal in cassation against the judgment of 24 April 1997 since it had been lodged out of time.

On 24 July 1998 the applicant was granted the status of an invalid suffering from the first-degree disability on account of the condition of his eyesight.

COMPLAINTS

1. The applicant complains about a violation of Article 3 of the Convention. In particular, he submits that the refusal to release him from detention and allegedly inadequate medical treatment provided to him by the prison health service resulted in the blindness of his right eye and constituted inhuman treatment and torture.

2. Moreover, the applicant submits that the facts of his case disclose a violation of Article 8 of the Convention. In particular, he complains about the refusal to allow him to attend funerals of his parents and to contact his hospitalised daughter. In addition, he complains about the censorship of his correspondence. The applicant also invokes former [1] Article 25.

3. Furthermore, t he applicant complains under Article 2 of the Convention about the violation of his right to life. He also claims that he was held in slavery in breach of Article 4 and that his right to security was violated in breach of Article 5 § 1. The applicant further claims that the refusal to allow him to attend his parents’ funerals violated Articles 9 and 10. He also invokes Articles 7, 13, 14, 17, 19 and former Articles 24 and 26.

THE LAW

1. The applicant complains that his treatment at the time of his arrest and detention was in breach of Article 3 of the Convention which provides:

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

(a) As far as it could be understood that the applicant complains about the actions of police officers who on 22 February 1994 arrested him and subsequently kept him in detention at the police station and prison officers who on 25 August 1994 allegedly assaulted him, the Court notes that the applicant failed to exhaust domestic remedies as he neither requested the prosecution authorities to institute criminal proceedings against the officers concerned nor brought private prosecution against them. Accordingly, it is not required to decide whether or not the facts submitted by the applicant in that part of the application disclose any appearance of a violation of the Convention.

(b) Furthermore, with respect to the applicant’s complaint that the refusal to release him from detention on medical grounds and the allegedly inadequate medical treatment provided to him by the prison health service resulted in the blindness of his right eye and amounted to inhuman treatment and torture, the Court would firstly recall that according to the Convention organs’ case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162). It also recalls that lack of medical treatment may raise an issue under Article 3. In such cases, the factors to be considered are the seriousness of the applicant’s condition, the quality of medical care he receives and whether his state of health is compatible with detention. Also, there remains the State’s 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 regard to the ordinary and reasonable requirements of imprisonment (see Bonnechaux v. Switzerland, Eur. Comm. HR, Report 5.12.1979, D.R. 18, pp. 100 and 148; Lukanov v. Bulgaria, Eur. Comm. HR, Dec. 12.1.1995, D.R. 80-A, pp. 128-130).

Turning to the facts of the present case, the Court observes that the applicant based his request for release from detention on a medical certificate issued on 19 April 1993, i. e. ten months before his arrest on 22 February 1994. The certificate was issued by the Głubczyce Prison and was signed by a paediatrician. However, the Court notes that as a result of the applicant’s complaint about the decision to detain him, the Wrocław-Śródmieście District Court ordered that he be examined by a medical panel. On 28 February 1994 the applicant appeared before the Wrocław Prison Medical Panel. Between 8 and 23 March 1994 he underwent a comprehensive medical examination by several doctors. On the basis of that examination a panel of four doctors concluded on 31 March 1994 that the applicant could remain in prison and that his further detention would not pose any risk to his state of health. Moreover, the investigation by the Ombudsman of the applicant’s complaints alleging inadequate medical treatment showed that they were unsubstantiated and that on numerous occasions the applicant had been examined by opthalmologists from both prison and public health service.

Furthermore, with regard to the applicant’s claim that on 26 August 1994 he was refused an urgent treatment of his right eye, the Court observes that the inflammation of his eye had been treated in the Eye Ward of the Bytom Prison Hospital between 5 September and 12 October 1994. Subsequently, the applicant was examined on 20 June 1995 by a doctor from the public health service who concluded that he had received proper ophthalmological treatment and that surgical treatment of his right eye would not lead to the improvement of its condition. Finally, the Court notes that an expert medical opinion prepared on 14 June 1996 by the Wrocław Forensic Medicine Institute did not exclude the possibility that the condition of the applicant’s eye had been caused by self-inflicted injuries.

The Court concludes, assuming that the applicant exhausted domestic remedies, that the applicant’s state of health was compatible with detention and that his condition was, throughout his detention, monitored by the prison health service and he received appropriate medical treatment. The applicant has not adduced any evidence to show that his complaints were wrongfully disregarded by prison authorities.

In those circumstances the Court considers that the treatment complained of does not disclose any indication of a violation of Article 3 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. Furthermore, t he applicant complains under Article 2 of the Convention about the violation of his right to life. He also claims that he was held in slavery in breach of Article 4 and that his right to security was violated in breach of Article 5 § 1. The applicant further claims that the refusal to allow him to attend his parents’ funerals violated Articles 9 and 10. He also invokes Articles 7, 13, 14, 17, 19 and former Articles 24 and 26.             

The Court considers that the applicant’s assertions about the violations of the above provisions of the Convention are in no way substantiated. It follows that these complaints are inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant further complains that the facts of his case disclose a violation of Article 8 of the Convention which provides:

“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 applicant submits that he was not allowed to attend, either alone or under police escort, the funerals of his mother and father who had died on 2 July and 3 August 1994, respectively. The applicant further submits that he was not allowed to either visit or telephone his daughter after she had been hospitalised in the Psychiatric Clinic of the Wrocław Medical Academy.

Moreover, the applicant complains under Article 8 about the censorship of his correspondence. He also invokes former Article 25. The applicant submitted three letters sent to him by the European Commission of Human Rights on 28 and 31 August 1995 and 5 October 1995. Each letter bears what appears to be an official stamp with a date and an illegible signature.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaints under Article 8 and former Article 25 of the Convention that he was not allowed to attend the funerals of his parents and to contact his hospitalised daughter and that his correspondence was censored by the prison authorities;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.