FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28997/95

by Jacek KAWKA

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 29 July 1995 by Jacek Kawka against Poland and registered on 30 October 1995 under file no. 28997/95;

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 citizen born in 1965 and residing in Łódź.

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

On 6 January 1994 the Zgierz District Prosecutor issued a warrant of arrest against the applicant and on the same day remanded him in custody on suspicion of attempted manslaughter by assaulting the victims in their apartment with a knife and an axe.

. On 25 March 1994 the Łódź Regional Court ( Sąd Wojewódzki ) granted the Prosecutor’s request for prolongation of the applicant’s detention until 4 July 1994 in view of the need to obtain further expert opinions. On 5 April 1994 the Łódź Regional Court dismissed the applicant’s request for release.

On 26 April 1994 the Łódź Court of Appeal ( Sąd Apelacyjny ) complied with the applicant’s request to amend the decision of 25 March 1994 and shortened the period for which the applicant’s detention was authorised to 30 June 1994.

On 25 May 1994 the applicant requested his release. The Łódź Regional Court and, upon appeal, the Łódź Court of Appeal, dismissed his request.

On 15 June 1994 the applicant again requested to be released. On 17 June 1994 he underwent a psychiatric examination.

On 28 June 1994 the Łódź Regional Court , acting upon the motion of the Zgierz District Prosecutor, prolonged the applicant’s detention from 30 June until 30 September 1994. The Court considered that the reasons for which the detention had been ordered had not ceased to exist. There was sufficient suspicion that the applicant had committed the criminal offence at issue, supported by the evidence gathered in the course of the investigations. The applicant had to undergo a further time-consuming psychiatric examination. Further investigatory measures had to be taken and evidence had to be obtained.

On 15 July 1994 an additional psychiatric opinion was submitted.

On 19 July 1994 the Łódź Court of Appeal upheld the decision of 28 June 1994. The Court considered that the applicant’s continued detention was necessary in order to ensure the proper conduct of the proceedings in view of the fact that the applicant’s psychiatric examination had not been completed.

On 11 and 28 August 1994 the applicant requested to be released. His requests were subsequently dismissed by the Łódź Regional Court .

On 1 September 1994 the applicant requested his release.

On 5 September 1994 the applicant was informed that the charges against him had been in part modified and he was allowed access to the case-file.

On 21 September 1994 the applicant was served with a bill of indictment. On the same day the Public Prosecutor submitted the indictment to the Łódź Regional Court .

On 4 October 1994 the Łódź Regional Court dismissed the applicant’s request for release of 1 September 1994. The Court considered that there was a reasonable suspicion that the applicant had committed a dangerous offence, supported by the evidence given, inter alia , by the two victims. The reasons for which the detention had been ordered continued to exist. The applicant had failed to indicate in his request any new circumstances which could justify his release.

On 6 October 1994 the applicant’s father appealed against the decision. He submitted that the period of detention had expired on 30 September 1994, whereas the applicant had not received any decision further prolonging his detention.

On 10 October 1994 the applicant’s lawyer appealed against the same decision. He submitted that the Court’s conclusions as to the reasonableness of the suspicion were based on insufficient evidence as only the evidence given by the victims supported the suspicion that the applicant was guilty. The applicant’s detention since 30 September 1994 lacked any legal basis, as the detention period had expired on this date. No further decision relating to the prolongation of the detention had been issued.

On 25 October 1994 the Łódź Court of Appeal upheld the decision of 4 October 1994. The court first considered that the applicant’s arguments as to whether the suspicion against him was reasonable were ill-founded. The court further considered that the applicant’s suggestion that his detention since 30 September 1994 lacked any legal basis was entirely erroneous. The court stated that the applicant’s lawyer must apparently have overlooked the fact that the bill of indictment had been submitted to the court on 21 September 1994. Therefore the time-limits for detention on remand provided for by Article 222 of the Code of Criminal Procedure had ceased to apply, given that this provision applied only to the pre-trial stage of criminal proceedings

On an unspecified later date the applicant challenged all the judges of the Łódź Regional Court, alleging that they were biased against him. On 23 November 1994 the Łódź Regional Court decided that judge J.R. should step down, considering that he had declared, in reply to the applicant’s challenge, that he had known the victims of the offence for many years and that this could make it difficult for him to remain impartial. The court dismissed the applicant’s challenge of the remaining judges, finding that the statutory requirements for them to step down were not satisfied.

The court fixed the date of the first hearing to be held in the case for 27 January 1995. On 23 January 1995 the applicant’s lawyer requested that the hearing be adjourned as he was ill. He further requested the court to obtain a medical expert opinion in order to establish whether in the light of the injuries sustained by the victims the course of the material events could possibly correspond to events as presented in the bill of indictment. He further requested the court to order a reconstruction of the crime, which would allow it to make findings of facts relevant to the determination of the applicant’s criminal responsibility.

Subsequently, on 14, 16, 27 and 31 March 1995 and on 6 April 1995 the applicant requested to be released, but to no avail as the Łódź Regional Court dismissed all his requests.

In April 1995 the applicant complained to the prison medical services that, following pains which he had had in his right eye, he had begun to lose his eyesight.

On 5 June 1995 the Łódź Regional Court convicted the applicant of attempted manslaughter and sentenced him to five years’ imprisonment.

On 6 July 1995 the court informed the applicant that the written grounds of the judgment would be prepared by 10 September 1995.

In June 1995 the Regional Court , supervising the enforcement of sentences ordered that the applicant should be examined by an ophthalmologist. Apparently, this specialist had not found any pathology as regards the applicant’s eyesight, but indicated that a neurological examination was called for. In July the applicant was examined by a neurologist who recommended that he should undergo a comprehensive neurological examination in a specialised hospital.

Subsequently the applicant was transferred to Strzelce Opolskie prison. At the end of July 1995 he was transferred to Wrocław prison.

In a letter of 18 August 1995 the Ombudsman informed the applicant, in reply to his earlier complaints about the allegedly inadequate medical care which he had received in prison, that his allegations had been investigated and that they had proved unfounded. The Ombudsman referred to the fact that upon his admission to the Łódź prison the applicant had only stated that he was short sighted. On 17 January 1995, after the applicant complained that he had had a short loss of consciousness, he had been examined by a neurologist and had undergone a tomography of brain which had not shown any pathological changes. On 1 March 1995 he had been examined by an ophthalmologist, who had stated that his eyesight had not deteriorated since his admission to the prison. It was further stated in the letter that since 1 March 1995 the applicant had not reported any health problems to the prison health services, either after his transfer to the Strzelce Opolskie or after his subsequent transfer to the Wrocław prison. On 3 July 1995 he had only complained of headache.

On an unspecified date in October 1995 the applicant was transferred to another ward of Wrocław prison, to a cell for six inmates. On 19 October 1995 the applicant, following his complaints about his asthma, back pains and problems with his eyesight, was admitted to a hospital in Wrocław prison.

On 27 October 1995 the applicant was served with the written grounds of the judgment of 5 June 1995.

Subsequently the applicant’s lawyers lodged two appeals against this judgment, submitting that the Regional Court had committed errors of law in that it had erroneously applied substantive law and wrongly qualified the offence concerned as attempted manslaughter, whereas it should have been qualified as assault. It was further argued that the court had erroneously assessed the evidence, had disregarded the discrepancies between the testimony of various witnesses and, as a result, had made wrongful findings of fact. The court should have questioned D.W. who, as not having any family links with either the applicant or the victims, would be an impartial and credible witness. His testimony would in particular confirm that the applicant had not acted with an intention to kill.

On 6 November 1995 the applicant requested the Łódź Court of Appeal to expedite the appellate proceedings in his case.

On an unspecified date in November 1995 the doctors of the Wrocław prison hospital found that the applicant suffered from certain degenerative ailment of spine.

On 5 December 1995 the Łódź Court of Appeal informed the applicant that the case-file had not been submitted to that court.

On an unspecified date at the beginning of 1996 the applicant underwent a medical consultation in a public hospital in Wrocław .

On 29 February 1996 the Łódź Court of Appeal partly amended the judgment in that, in the determination of the applicant’s sentence, it relied on different provisions of the Criminal Code as applicable at the material time, and upheld it in its remainder. The court observed that whereas it was true that there had been certain discrepancies between the testimony of the three members of the L. family, the victims of the crime, on the other hand they had been quite concordant in respect of the essential elements of the material circumstances. These discrepancies could be explained by the lapse of time between their first questioning, made in the investigations, and the subsequent ones, made before the trial court. On the whole, the discrepancies were not of such a nature as to diminish the credibility of these witnesses, in particular as regards the weapons used by the applicant and the fact that he had used both of them, i.e. a knife and a kitchen axe. The court further noted that the lower court had summoned witness D.W. for the hearing on 3 June 1995, but as he had failed to attend the hearing, the court had read out his testimony deposed during the investigations, having first requested the parties to state whether they had insisted that this witness be questioned. At this stage the applicant’s lawyers had agreed that this testimony be read out in the court. Thus, the applicant had accepted that it had not been necessary for the court to hear this witness. The court further considered that, in any event, this testimony was in part concordant with the testimony of the other two witnesses, A.S. and D. D. There were no grounds on which to accept that the testimony in question would have entirely exonerated the applicant.

On 5 April 1996 the applicant’s lawyer lodged a cassation appeal against this judgment with the Supreme Court. It was argued that the courts had committed a serious error of law in that the applicant’s offence had erroneously been qualified as attempted manslaughter whereas it should have been qualified as assault. It was further submitted that in the assessment of the evidence the principle in dubio pro reo had not been respected. The Regional Court had committed a procedural error in that it had failed to question witness D.W. and had limited itself to reading out during the trial his testimony submitted during the investigations. It was finally argued that the court had failed to establish certain circumstances relevant for the assessment of the applicant criminal responsibility, in particular as it had failed to order a reconstruction of the circumstances of the crime which would show that the course of the material events could not possibly have been such as established by the court.

On 4 June 1996 the applicant was examined by a medical panel, with a view to establishing whether he was fit for further detention.

On 25 June 1996 the Wrocław Regional Court stayed the enforcement of the applicant’s sentence, having regard to his bad health. The court had regard to a medical certificate of 14 June 1996 and considered that his further staying in prison would be detrimental to his health.

On 27 June 1996 the applicant was discharged from the Surgery Department of the Wrocław prison hospital. A medical certificate issued at his discharge stated that he had been diagnosed as suffering from hernia of the nucleus pulposus . He had been examined by an orthopaedist, a neurologist, and a specialist in neurosurgery. A tomography of the spine had been effected and he had been receiving various medicines to ease his back pain. It was further stated that the applicant’s further serving the sentence could entail a serious danger to his health and that he should be operated on in connection with his spine problems. On an unspecified later date the applicant was released.

From 15 January 1997 to 5 March 1997 the applicant underwent medical treatment in the Neurosurgery Department of the Medical Academy in Bydgoszcz . A medical certificate of 5 March 1997 stated that he suffered from discopathy and painful pressure on spinal cord. A surgical intervention was indispensable, but it could not be envisaged in the applicant’s depressive state and was, accordingly, postponed. However, the postponing of the surgery would ultimately entail very serious risks to the applicant’s health and even life. He was referred to a psychiatric department for further treatment. The date of his next admission to the hospital for neurological treatment was set for 21 July 1997.

From 18 to 26 March 1997 the applicant was treated in the Psychiatry Department of the same hospital. It was established that he suffered from depression.

In May 1997 the applicant apparently started anew to serve his sentence.

On 10 June 1997 the Wrocław Court of Enforcement of Sentences refused to grant the applicant’s request for a conditional release.

On an unspecified date before 10 October 1997 the applicant’s request to have the execution of his sentence stayed was granted in order for him to undergo the operation of the spine.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he did not have adequate medical treatment in prison, in particular as he had serious problems with his eyesight. The prison authorities and the Łódź Regional Court at whose disposal he remained in prison disregarded his complaints about his failing eyesight and intended to make him disabled. He submits that he suffered from severe backache. He complains that the failure on the part of the prison medical services to provide him with adequate medical care caused him acute suffering and resulted in a severe deterioration of his health.

The applicant complains, invoking Article 6 of the Convention, that the Regional Court deliberately failed to question witness D.W. whose testimony would be in his favour. The applicant further complains that the prosecuting authorities did not submit any evidence against him of a physical or biological character. The applicant complains that the court treated the witnesses for the defence and for the prosecution differently, providing guidance to the latter and suggesting replies to them. He further contends that the court committed serious error of law in that the legal qualification of his acts as attempted manslaughter was unacceptable and contrary to common sense.

The applicant further alleges that the Regional Court lacked impartiality. He submits that judge J.L., the president of the criminal division of the regional Court interfered in the case and gave guidance to L. family, the victims of the offence. He alleged that other two judges of the Regional Court were friends of the L. family and, consequently, were biased.

The applicant further complains under Article 6 of the Convention that the authorities hindered him in the exercise of his defence rights in that he was transferred to Strzelce Opolskie prison shortly after the first-instance court had given its judgment. This made it difficult for him to have an effective contact with his defence counsel.

THE LAW

1. The applicant complains under Article 3 of the Convention that he did not receive adequate medical treatment in prison.

Article 3 of the Convention reads:

“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, after he had complained about the problems with his eyesight, the Łódź Regional Court ordered that he be examined by an ophthalmologist. The applicant underwent such examination in June 1995. The specialist pointed out to the necessity of a comprehensive neurological examination, but had not found any pathology in particular as regards the applicant’s eyesight. The applicant was subsequently admitted to the prison hospital where he remained from 19 October 1995 until 27 June 1996. During his stay in the hospital he was also examined by physicians from the public health system. Moreover, the authorities on several occasions examined whether the further serving of the sentence would be compatible with the applicant’s health. In June 1996 the Court of Enforcement of Sentences stayed the enforcement of the applicant’s sentence, having regard to the opinion of the medical panel that the applicant’s further detention would be dangerous to his health. Following this decision, the applicant underwent further treatment of his ailments, including the treatment of depression, apparently induced by his imprisonment, in the Bydgoszcz hospital of the Medical Academy . In 1997 he was granted another stay of the enforcement of the sentence.

The Court further observes that there is no indication that the applicant’s ailments, i.e. asthma, myopia, discopathy and spine problems had been caused by his detention. The Court also notes that the medical records submitted by the applicant do not support his allegations that he suffered any deterioration of his eyesight following his detention.

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 raises various complaints under Article 6 § 1of the Convention.

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

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

The applicant first complains about the admissibility and assessment of evidence made by the courts. He further contends that the courts committed serious errors of law in the legal assessment of his case. He also complains that the Regional Court deliberately failed to question witness D.W. whose testimony would be in his favour.

The Court first observes that the applicant has not shown that the Supreme Court, having examined the applicant’s cassation appeal, gave a final judgment in the present case. However, even assuming that the applicant exhausted this domestic remedy, this part of the application has, in any event, to be declared manifestly ill-founded for the following reasons:

Insofar as the applicant complains about the assessment of the evidence made by the domestic courts, t he Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45 and 46; the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in the Court’s official Reports ).

The Court notes that the domestic courts had regard to the evidence gathered in the proceedings. There is no indication that the courts were arbitrary in the assessment of evidence or that they reached conclusions which would be untenable.

T he Court finds that the applicant’s submissions do not disclose any appearance of unfairness of the proceedings at issue. In particular, there is nothing to show that, assisted by two defence counsel, he could not duly exercise his defence rights, or that the taking and assessment of evidence could be objected to under Article 6.

As regards the complaint that the Regional Court had failed to question witness D.W., the Court recalls that, a ccording to its case-law, the defendant must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see e.g. the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, § 49). However, in the present case that witness was questioned during the investigations. As he did not attend the hearing on 3 July 1995, the Regional Court requested the applicant’s lawyers to state whether they insisted that he be questioned. As they did not request that the hearing be adjourned in order for D.W to be heard and did not object to his testimony taken during the investigations being read out in the court, the Court considers that the applicant thereby waived his right to have this witness questioned. The Court further notes that the Court of Appeal, in its judgment of 29 February 1996, having examined the applicant’s complaint that this witness had not been heard before the first-instance court, observed that the testimony of this witness, in part concordant with the testimony of two other witnesses, would not be decisive for the outcome of the case.

Thus the Court does not consider that the failure by the courts to invite a particular witness was of such a nature as to render the trial unfair as a whole.

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

3. The applicant also contested the impartiality of the Regional Court under Article 6 § 1 of the Convention, pointing out that judge J.L., the president of the criminal division of the Regional Court, interfered in the case and gave guidance to the victims of the offence. He alleges that other two judges of the Regional Court were friends of the L. family and, consequently, were biased. The applicant further complains under Article 6 of the Convention that the authorities hindered him in the exercise of his defence rights in that he was transferred to Strzelce Opolskie prison shortly after the first-instance court gave its judgment. This made it difficult for him to have an effective contact with his defence counsel.

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with the matter after “all domestic remedies have been exhausted”. The above rule requires that an applicant, before complaining to the Court, should make normal use of accessible, effective and sufficient remedies capable of remedying the situation at issue.

On the facts of the present case, the Court first notes that on 23 November 1995 the Łódź Regional Court ruled that judge J.R. should step down, having regard to his declaration that the victims of the crime were his friends. It is true that that judge participated in court panels which had earlier decided on the applicant’s detention on remand. However, the applicant does not allege that this judge participated in the court panel examining the merits of his case. The Court further notes that the applicant did not raise these complaints in the proceedings before the Court of Appeal. Nor did he mention any such grievances in his cassation appeal. The Court finds no justification for the applicant’s silence on this point, given that he contested various other procedural and substantive aspects of the case before the Supreme Court.

It follows that the Court is not required to determine whether the facts submitted by the applicant in this part of the application disclose any appearance of a violation of Article 6 of the Convention, as the applicant failed to exhaust domestic remedies in this respect as required by Article 35 § 1 of the Convention. Therefore, this part of the application must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President