FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33229/96

by Dariusz PERLEJEWSKI

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 13 July 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 ,

with 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 13 September 1995 by Dariusz Perlejewski against Poland and registered on 27 September 1996 under file no. 33229/96;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1967. He lives in Warsaw.

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

On an unspecified date at the beginning of the 1990s the applicant began to serve a prison sentence.

On 4 November 1994 the applicant was assaulted by another prisoner, Mr K. S., who was detained in the same cell. On 5 November 1994 he informed the prison officer on duty about the assault. On the same day the applicant was transferred to another prison cell and examined by a doctor. The medical examination showed that he had two broken teeth, and his lips and left arm were swollen.

On 4 August 1995 the applicant sent a letter to the Governor of the GdaÅ„sk Detention Centre, which included several statements concerning the conditions of his detention and corruption in Poland. On 16 August 1995 the Governor requested the applicant to clarify the subject matter of his letter. It appears that he failed to respond to that request.             

On 22 August 1995 the Bartoszyce Regional Court ( Sąd Rejonowy ) convicted Mr K. S. of assaulting the applicant, sentenced him to 15 months’ imprisonment and ordered to pay 100 zlotys to both the applicant and a charity. On 14 December 1995 the Olsztyn Regional Court ( Sąd Wojewódzki ) dismissed Mr K. S.’s appeal against the judgment of the trial court. The applicant acted as a private prosecutor ( oskarżyciel posiłkowy ) in the criminal proceedings against Mr K. S.

On an unspecified date in 1995 the applicant was examined by a psychologist who recommended that he be transferred to a prison medical ward ( oddział leczniczo wychowawczy ) in order to undergo treatment which would improve his psychiatric condition. In addition, the psychologist was of the opinion that further detention of the applicant in a regular ward could lead to aggressive behaviour towards other prisoners.

On an unspecified date the applicant was transferred to the Sztum prison and detained in its medical ward.  Subsequently, he requested the Malbork District Prosecutor ( Prokurator Rejonowy ) to initiate criminal proceedings against the prison officers responsible for his transfer to a medical ward. The applicant claimed that his state of health did not warrant his detention in such a facility.

On 28 June 1995 the Malbork District Prosecutor dismissed the applicant’s request considering that his submissions did not disclose any criminal activity on the part of the prison administration. On an unspecified date the applicant filed with the Elbląg Regional Prosecutor ( Prokurator Wojewódzki ) an appeal against the decision of the District Prosecutor. On 7 September 1995 the Regional Prosecutor dismissed the applicant’s appeal. He pointed out that the decision to transfer the applicant to a medical ward had been based on the recommendation of a psychologist. Moreover, the observation of the applicant during his detention in a medical ward confirmed the conclusions reached by the psychologist. It followed that the prison administration’s decision to transfer the applicant to a medical ward could not be considered as ill-treatment.

On 27 December 1995 the applicant requested the Malbork District Prosecutor to initiate criminal proceedings against prison officers who had allegedly assaulted him on 15 December 1995.

In a letter of 2 January 1996 the Ombudsman pointed out to the applicant that the decision to transfer him to a medical ward had resulted from the recommendation of a psychologist. Moreover, the observation of the applicant during his detention in a medical ward confirmed that he should be detained in such a facility. Finally, with respect to the applicant’s complaint about his detention together with smoking inmates, the Ombudsman observed that he had been detained in a single cell since he had been transferred to the medical ward of the Sztum prison.

In a letter of 9 February 1996 the Governor of the Sztum prison informed the applicant’s father that the decision to transfer the applicant to a medical ward had been taken after he had been diagnosed as suffering from personality disorders and in view of his difficulties in adapting to prison life. He also stated that the applicant had never been diagnosed as being mentally ill and that his observation in the medical ward confirmed that he should be detained in such a facility. The Governor also advised the applicant’s father that the applicant’s complaint about the alleged assault by prison officers on 15 December 1995 had been investigated by the prison authorities, which had concluded that the actions of the officers had been lawful. He further noted that the complaint was still being investigated by the Malbork District Prosecutor.

On 15 March 1996 the Malbork District Prosecutor refused the applicant’s request to prosecute the prison officers who had allegedly assaulted him on 15 December 1995. He pointed out that on 15 December 1995 at 7 p.m. the applicant had been present in a common hall when a power cut had occurred. The applicant had started to shout and had been banging on the door. He had been then approached by a chief duty prison officer who had tried to persuade him verbally to calm down. As the applicant had continued his violent behaviour, the chief duty prison officer had decided that he should be placed in a solitary confinement and had called a few other prison officers to assist him in escorting the applicant. The applicant had continued his violent behaviour when he had been escorted by the prison guards, resisting them and hanging on to railings. In addition, he had been insulting the guards. The District Prosecutor further noted that the prison officers had not hit or kicked the applicant. Moreover, on 16 December 1995, the applicant had been examined by a doctor whom he had informed about the alleged assault. However, the doctor had concluded that, except for slight skin excoriations and lividities , the applicant had had no injuries and had assessed his state of health as good. It followed that the actions of the prison officers were lawful and there were no grounds to prosecute them.

On 13 March and 25 April 1996 the applicant filed with the ElblÄ…g Regional Prosecutor complaints against the decision of the District Prosecutor refusing his request to prosecute prison guards who had allegedly assaulted him. On 29 April 1996 the Regional Prosecutor quashed the impugned decision and instructed the District Prosecutor to take additional evidence in the case.

On 23 June 1996 the Malbork District Prosecutor issued a decision declining the applicant’s request to prosecute the prison officers who had allegedly assaulted him on 15 December 1995. The District Prosecutor referred to an expert medical opinion which concluded that several lividities on the applicant’s body could have resulted from resisting the prison guards escorting the applicant to a solitary confinement but certainly had not been caused by punching him. The District Prosecutor further noted that the evidence taken from an expert dentist showed that the condition of one of the applicant’s teeth, which was loose, had already existed in November 1994.

On 28 June 1996 the ElblÄ…g District Prosecutor charged the applicant with insulting the Malbork District Prosecutor in his letter of 22 March 1996. On 5 August 1996 the ElblÄ…g Regional Prosecutor informed the applicant that charges against him had been brought by the ElblÄ…g District Prosecutor since his case had been transmitted to the ElblÄ…g prosecution service after the applicant had complained about the partiality of the prosecutors working in the Malbork district.

On 21 October 1996 the applicant was released from prison. Subsequently he failed to respond to summonses sent by the Malbork District Court in the course of criminal proceedings against him and provided authorities with a false address. On 20 November 1997 the Malbork District Court stayed the proceedings and issued a warrant for the detention of the applicant. On 13 October 1998 the applicant was detained in the Warsaw Detention Centre after he had been arrested by the police for shoplifting. On 15 October 1998 he filed with the ElblÄ…g Regional Court an appeal against the detention warrant. On 19 November 1998 the Regional Court dismissed his appeal, considering that his behaviour in the course of criminal proceedings against him clearly showed that he intended to abscond.

On 14 April 1999 the Malbork District Court convicted the applicant of insulting the Malbork District Prosecutor and sentenced him to six months’ imprisonment. On the same date the applicant was released from prison as the period of his detention was counted towards his prison term.

On 22 April 1999 the applicant was arrested for shoplifting. He submits that during his arrest he was assaulted by the police officers.

COMPLAINTS

The applicant complains that the conditions of his detention and allegedly inadequate medical treatment provided by the prison health service amounted to inhuman treatment. He also complains that the prosecution authorities declined his requests to initiate criminal proceedings against prison officers. Furthermore, the applicant alleges that on 22 April 1999 he was assaulted by the police officers who arrested him. Finally, he requests the Court “to grant him political asylum”.

THE LAW

1. The Court considers that the applicant’s complaint concerning conditions of his detention and allegedly inadequate medical treatment provided by the prison health service relates to Article 3 of the Convention, which provides:

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

The Court recalls 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 on 5 November 1994 the applicant had complained to the prison authorities about being assaulted by his inmate, Mr K. S., and as a result he was immediately transferred to another cell and examined by a doctor. Moreover, Mr K. S. was convicted of assault against the applicant.

Furthermore, the Court notes that the applicant’s detention in the medical ward of the Sztum prison was based on the recommendation of a psychologist. It resulted from the examination of the applicant, which showed that his psychiatric condition called for treatment in such a facility and that his further detention in a regular ward could lead to aggressive behaviour towards other prisoners. The adequacy of the recommendation was subsequently confirmed by the observation of the applicant during his detention in the medical ward of the Sztum prison.

With respect to the alleged assault of the applicant by prison officers on 15 December 1995, the Court points out that the applicant’s allegations were investigated by both the prison authorities and the prosecution service, which found them to be unsubstantiated. The medical examination of the applicant performed on the day following the incident showed that his state of health was good and that he had only slight skin excoriations and lividities . What is more, an expert medical opinion obtained by the Malbork District Prosecutor, after he had been instructed by the Elbląg Regional Prosecutor to take additional evidence, showed that lividities on the applicant’s body could have resulted from resisting the prison guards but certainly had not been caused by punching him. In addition, an expert opinion issued by a dentist pointed out that the condition of the applicant’s loose tooth had existed before the incident.

Moreover, the Court observes, assuming that the applicant exhausted domestic remedies in that respect, that he did not submit any evidence pointing towards ill-treatment during his detention following his arrest on 13 October 1998.

In sum, the applicant’s condition was, throughout his detention, monitored by the prison health service and he received appropriate medical treatment. There is no indication of any negligence on the part of the medical services, nor has the applicant 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 complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains that the prosecution authorities declined his requests to initiate criminal proceedings against prison officers who decided that he would be transferred to a medical ward and who allegedly assaulted him on 15 December 1995. The Court recalls the above finding that the applicant’s complaint concerning his alleged ill-treatment is manifestly ill-founded and notes that the Convention does not guarantee a right to have criminal proceedings instituted against third persons. Accordingly, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

3. With respect to the applicant’s complaint that on 22 April 1999 he was assaulted by the police officers who had arrested him for shoplifting, the Court is not required to decide whether or not the facts submitted by the applicant disclose any appearance of a violation of the Convention, as the applicant failed to exhaust domestic remedies. In particular, he neither requested the prosecution authorities to institute criminal proceedings against the police officers nor brought private prosecution against them.

4. The applicant also requests the Court to grant him political asylum. However, it is not within the province of the Court to consider such a request.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President