FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39247/98

by M.P.

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 25 May 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 16 July 1997 by M.P.   against Poland and registered on 8 January 1998 under file no. 39247/98;

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 1952. He is a milling machinist and is currently detained in WÅ‚odawa prison.

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

Between 1977 and 1991 the applicant served a prison sentence. In 1986 he informed the medical service of Strzelce Opolskie prison that he had pain in his testicles. The applicant submits that after his problems with the testicles had started in 1986, until his release on probation in 1991 he was treated only by a dermatologist and a surgeon while his condition had called for a treatment by an urologist.

In August 1992 the applicant underwent a surgery in the Ostrowiec Świętokrzyski Hospital. It resulted in the removal of his left testicle on which a cyst had been found.

On 4 April 1994 the applicant was detained after he had attempted to commit a murder.

On 15 April 1994 the applicant was examined by a physician but did not complain about any significant medical problems.

Between 14 July 1994 and 28 September 1994 the applicant was detained in the psychiatric ward of the Cracow Detention Centre Hospital where he underwent observation. During his stay in that facility the applicant was also examined by a surgeon who diagnosed an infection of the testicle. The surgeon prescribed antibiotics and decided that the applicant qualified for a surgery. However, the applicant informed the Director of the Cracow Detention Centre Hospital that he would agree to the surgery only after the surgeon who was to perform it confirmed in writing that it would not cause any damage to the testicle and that there would be no further metastasis of the cyst. That statement was considered by the prison health service as a refusal to undergo the surgery.

In the meantime, the applicant sent letters to the Governor of Załęże prison, the Director of the Cracow Detention Centre Hospital and the Opatów District Prosecutor, in which he requested that he be examined by an urologist and an oncologist. On 24 August 1994 the Opatów District Prosecutor informed the applicant that, according to the information he had received from the Cracow Detention Centre Hospital, the applicant’s condition did not call for an examination by an oncologist and that he would be offered  surgery as soon as he agreed to it.

On 29 September 1994 the applicant was transferred from the Cracow Detention Centre Hospital to Rzeszów prison.

On 4 October 1994 the applicant was admitted to the urology clinic of the Rzeszów   Regional Hospital. On 10 October 1994 he was examined by an urologist who recommended that the applicant undergo surgery. In a letter of 14 October 1994, the Deputy Director of the Cracow Detention Centre Hospital informed the Governor of Rzeszów prison that the applicant could undergo a surgical treatment in that facility after having agreed to it.

Between 15 and 22 November 1994 the applicant remained in the Cracow Detention Centre Hospital.

On 19 December 1994 the Penitentiary Judge replied to the applicant’s letter of 2 November 1994 in which he had claimed that his state of health had called for his release from the prison. The judge pointed out that after the applicant’s brother had raised a complaint in that regard, the Central Prison Board together with the Chief Medical Officer of the prison service had conducted an investigation which had showed that the complaint was ill-founded. Moreover, the applicant had not reported any significant problems during his first medical examination on 15 April 1994. The judge also considered that, after the applicant had complained about his state of health, he had received proper medical treatment. He further observed that the applicant himself had made surgery impossible since he had refused to undergo it without a written guarantee that it would be successful, a statement which could not be made by any health service.

On 28 December 1994 the applicant had an ultrasound scan of the testicle administered in the surgical ward of the Łódz Prison Hospital. It showed a presence of a cyst.

In a letter of 21 January 1995 the Penitentiary Judge informed the applicant that his requests for oncological treatment were unfounded as his medical record showed that his condition was not due to cancer.

On 20 June 1995 the applicant was examined by an urologist and agreed to the surgery. On 22 June 1995 the Director of the Rzeszów Prison Surgery issued a health certificate stating that the applicant’s testicle should be removed in the urological ward of the Łódz Prison Hospital.

On 4 September 1995 the Director of the Central Prison Board informed the applicant that his complaint about inadequate medical treatment in the Rzeszów Prison Surgery was ill-founded.

On 5 December 1995 the applicant was examined in the urological ward of the Łódz Prison Hospital.

On 29 January 1996 the applicant filed with the Rzeszów Regional Court an action against the State Treasury in which he claimed compensation for inadequate medical treatment provided by the prison health service. In particular, he claimed that his medical problems with his testicles had started in 1986 while he had been detained and had worked in unhealthy conditions. The applicant further contended that he had been treated by doctors with inappropriate specialisations and had been refused surgical treatment.

On 7 February 1996 the Regional Court exempted the applicant from the court fees. On an unspecified later date he was granted legal aid.

On 21 March 1996 an urological surgeon issued an expert opinion on the applicant’s state of health, as requested by the Regional Court. He stated that the applicant had received adequate medical treatment during his detention. The opinion referred to an ultrasound examination of the applicant’s testicle administered in April 1995 in the urological ward of the Rzeszów Regional Hospital and to an examination on 5 December 1995 in the urological ward of the Łódz Prison Hospital. It pointed out that those examinations had showed that the applicant’s testicle was in a good condition, which proved the adequacy of the pharmaceutical treatment received by the applicant.

On 14 April 1996 the applicant submitted to the Regional Court written pleadings in which he challenged the conclusion of the expert opinion and requested that he be again examined by doctors. On an unspecified date the court ordered that the applicant be re- examined by another court-appointed expert. The examination took place on 26 June 1996 in the urological ward of the Rzeszów Regional Hospital. It consisted of two physical examinations of the applicant’s testicle and prostate gland and an ultrasound of the testicle. The expert opinion issued on the basis of those examinations concluded that the applicant had received proper medical treatment during his detention and that his condition did not call for either surgical or further pharmaceutical treatment. On 17 May 1996, the Penitentiary Judge informed the applicant that he considered his complaint about inadequate medical care, which the applicant had lodged during an interview with the judge held on 30 April 1996, to be ill-founded. On 15 July 1996 the Rzeszów Regional Court dismissed the applicant’s action, considering that the evidence before it had proved the applicant’s claim to be unfounded. On 14 November 1996 the Rzeszów Court of Appeal dismissed the applicant’s appeal against the judgment of the Regional Court.

On 19 March 1997 the Penitentiary Judge informed the applicant that he would not grant his request to be examined by a medical panel since the medical opinion issued on 17 March 1997 by the Rzeszów Prison Surgery had stated that the applicant could be treated in that facility.

Since 1 April 1997 the applicant has complained about his state of health to numerous institutions including, inter alia , the President of Poland, the Ombudsman, a member of parliament and the prison administration.

COMPLAINT

The applicant complains under Article 3 of the Convention that allegedly inadequate medical care he received in detention amounted to torture and inhuman treatment.

THE LAW

The applicant complains under Article 3 of the Convention that allegedly inadequate medical care he received in detention amounted to torture and inhuman treatment. Article 3 provides:

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

The Court firstly observes that the facts complained of relate in part to a period prior to 1 May 1993. Poland recognised the competence of the European Commission of Human Rights to receive individual applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Poland of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993”. According to Article 6 of Protocol No. 11, this limitation shall remain valid for the jurisdiction of the Court under that Protocol. It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

Turning to the facts of the present case which took place after 1 May 1993, 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).

The Court observes that during his first medical examination in detention, which took place on 15 April 1994, the applicant did not raise any significant complaints about his state of health. Moreover, after the surgeon who had examined the applicant during his first stay in the Cracow Detention Centre Hospital had recommended that he undergo a surgery of his testicle, the applicant informed the prison health service that he would not agree to it unless he was provided with a written statement guaranteeing its successful outcome. After an examination by an urologist on 10 October 1994, the applicant persisted in his demand for a guarantee that the surgery would be successful and that there would be no metastasis of the cyst. This demand, which was regarded by the prison health service as a refusal of the applicant’s consent to a surgery, prevented the treatment recommended by doctors at that time.

The Court further notes that a medical opinion issued on 21 March 1996 by a court-appointed expert stated that the applicant’s testicle was in a good condition as a result of adequate pharmaceutical treatment provided by the prison health service and did not require any further treatment. What is more, after the applicant had contested the conclusion of that opinion, a second medical examination performed on 26 June 1996 by another doctor led to the same conclusion.

It is also noteworthy that during his detention the applicant was examined on numerous occasions in several different medical facilities. Moreover, his complaints relating to medical care were promptly investigated by the authorities which considered that they were unfounded.

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 the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President