FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39190/98

by Jerzy SULIMENKO

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 21 October 1994 by Jerzy SULIMENKO against Poland and registered on 6 January 1998 under file no. 39190/98;

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 1948. He is currently serving a prison sentence in Wronki prison.

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

In 1990 the applicant had an accident in which his right thigh and left foot were broken. Subsequently he underwent an orthopaedic operation.

On 31 May 1991 the Międzyrzecze District Court sentenced the applicant to ten years imprisonment. On 7 May 1993 the same court convicted the applicant of another offence and pronounced another prison sentence.

On 25 August 1993 the Poznań Regional Court granted the applicant a temporary suspension of the execution of his sentence and ordered his release so that he could undergo a further operation in a specialised orthopaedic hospital. The court observed that the applicant’s condition necessitated a further operation on his left foot, in particular in the light of a lack of progress in the treatment he had received. It appears that, while at liberty, the applicant did not report to a hospital. Subsequently he was rearrested and began to serve his sentence again.

On 25 March 1994 the applicant was convicted of another offence and again sentenced to imprisonment.

On 17 April 1996 the Pozna ń Regional Court dismissed the applicant’s request for release, considering that, according to a medical certificate, the recommended treatment could be provided by the prison medical services.

The applicant lodged two complaints with the Central Prison Administration in which he submitted that he was not afforded adequate medical treatment in Wronki prison. In its reply of 12 June 1996, the Poznań Custody Centre, to which the complaint had been forwarded for investigation, informed him that his medical records had been examined. It transpired therefrom that the applicant had been regularly receiving analgesics as he had been refusing to consent to an operation in the prison hospital. It was further stated that his complaints relating to the alleged lack of diligence on the part of the prison physicians, and in particular his allegations that the medical certificates issued by them falsified his actual condition and were thus in breach of the law, were unfounded.

On an unspecified later date the applicant complained to the Ombudsman about the allegedly inadequate medical care he received in prison.

In a reply dated 21 June 1996 the Ombudsman’s office informed the applicant that his complaint had been investigated. That Office had found that the applicant’s right to medical care was secured by the prison authorities and, in particular, that the recommended operation could be carried out in a prison hospital. The applicant was refusing consent to an operation in a prison hospital and had been seeking a temporary release on medical grounds. It was stressed that in the past the applicant had twice obtained a temporary release, but he had not undergone any treatment while at liberty.

On 3 July 1996 the Poznań Regional Penitentiary Court, sitting as a single judge, dismissed the applicant’s request for temporary release. The court stated that the applicant’s condition did not necessitate treatment in a public hospital, whereas he refused to consent to a treatment in a prison hospital. The applicant did not offer any guarantee that, if released, he would indeed undergo the required treatment as during his last temporary release in 1994 he had been heavily drinking and had committed a new offence. Since the prison medical services could provide the applicant with the recommended treatment, there were no grounds militating for his release.

The applicant lodged an appeal with the Poznań Regional Court, sitting in a panel of three judges, which was dismissed on 24 July 1996. The court had before it a medical certificate of 21 June 1996 which stated that the applicant had had his right leg broken and that, as a result of this accident, he had a so-called false joint in his foot. There were no medical indications that the applicant’s condition was incompatible with his detention and that he could not be treated by the prison medical services. The court considered that it was self-evident that the applicant’s continuous refusal to be treated by the prison medical services was in fact a ruse aimed at obtaining release. His assertions that the treatment in prison would not bring about any satisfactory results were to be regarded as lacking any reasonable basis. In the light of the applicant’s persistent refusal to co-operate with the medical services, the entire responsibility for his health was his.

The court further took into consideration the fact that, when released in 1991, the applicant had failed to report to a hospital for the recommended operation and had been drinking heavily, as shown by the fact that after he had been re-arrested, he had manifested symptoms of deprivation of alcohol, typical for alcohol addicts. Afterwards he had three times obtained temporary releases, on each occasion in order for him to follow the treatment of his orthopaedic ailment, and on each occasion he had failed to do so.

On 9 January 1997 the applicant refused to undergo a medical examination at the Orthopaedic Department of Warszawa-Mokotów prison hospital.

By a letter of 7 August 1996 the Central Prison Administration replied to the applicant’s complaint that his earlier complaint had not been adequately investigated by the Poznań Custody Center , and stated that his allegations were entirely unfounded.

On 13 August 1997 the Poznań Regional Penitentiary Court refused to release the applicant, having regard to a medical certificate, stating that the treatment of the applicant’s condition could be provided by the prison medical services.

On 24 September 1997 the Poznań Regional Penitentiary Court, having considered a medical certificate of 18 September 1997, refused to release the applicant and held that he could obtain the necessary medical treatment at the hospital of Warszawa-Mokotów prison.

By a letter of 17 November 1997 the PoznaÅ„ Regional Prison Administration replied to a complaint by the applicant about the allegedly inadequate medical care extended to him. It stated that the applicant, following the 1990 accident, had pains in his left foot and right leg after long walks. He also had painful spots and a so-called false joint in his left foot. An operation, which would alleviate his problems, could be carried on in the prison hospital, but the applicant refused to give his consent. In the past the applicant had been twice granted temporary release, which was later revoked in view of the applicant’s failure to follow the recommended treatment. In view of his refusal of consent for treatment, the applicant was receiving analgesics to soothe his pain. It was further stated that the applicant’s allegations that a physician of the Wronki prison was deliberately issuing untruthful medical certificates was unsubstantiated, the more so as the head physician of the prison delivered medical certificates concerning the applicant’s condition which were consistent with those impugned by the applicant.

On 17 December 1997 the Poznań Regional Penitentiary Court refused to order the applicant’s release in view of the fact that he could obtain the necessary treatment at the hospital of Warszawa-Mokotów prison.

On 11 February 1998 the Poznań Regional Penitentiary Court refused to order the applicant’s release for the same reason.

On 29 July 1998 the Poznań Regional Penitentiary Court, taking into consideration the medical certificate of 16 July 1998, found no grounds on which to order the applicant’s release.

COMPLAINTS

The applicant complains that his detention is discriminatory and inhumane. He further complains about the failure on the part of the authorities to provide him with adequate medical care and about being refused a temporary suspension of the execution of his sentence.  Articles 3 and 14 of the Convention are invoked.

THE LAW

The applicant complains that his detention is discriminatory and inhumane. He further complains about the failure on the part of the authorities to provide him with adequate medical care in prison. Articles 3 and 14 of the Convention are invoked.

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. The assessment of this minimum is, in the nature of things, relative; it depends on

all the circumstances of the case, such as the duration of the treatment, its physical or mental effects, and, in some cases, the sex, age and state of health of the victim (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162).

The Court further recalls that inhuman treatment may be found to exist when a person's detention as such causes him ill-health. It also recalls that lack of medical treatment may raise an issue under Article 3 of the Convention. The State has an 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. 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 (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 circumstances of the present case, the Court first notes that the applicant persistently refuses to consent to treatment by the prison medical services. The domestic authorities offered him such treatment on numerous occasions, but the applicant declined to avail himself of it. However, the applicant has not put forward any argument, allowing for the conclusion that, regard being had to the character and the severity of his condition, the quality of the treatment offered by these services would be unsatisfactory. Nor has the applicant shown that the quality of the treatment he could obtain from the public medical health care system would be so superior to that available to him in prison as to justify his lack of consent to a medical intervention in the prison hospital.

The Court further notes that the courts and other authorities, when examining the applicant’s requests for release, had regard to the medical certificates delivered by the prison medical authorities.

The Court also observes that the applicant’s complaints about allegedly insufficient medical care were examined by numerous domestic authorities, such as the Ombudsman’s office, the Poznań Custody Centre, the Central Prison Administration and the Poznań Regional Prison Administration. In the assessment of the present case, it cannot be overlooked that these authorities, having examined the applicant’s medical records, found no indication of lack of diligence on the part of the prison medical services.

The national courts had regard to the fact that the applicant was several times granted temporary releases in order to undergo the treatment in a public hospital, but that on none of these occasions had he reported to a hospital. They further noted that while at liberty, he had committed further offences of which he had subsequently been convicted. The applicant did not contest these facts. This being the case, the argument of the national authorities that the applicant should not be granted temporary release as he offered no guarantee that he would use such release to undergo medical treatment cannot be regarded as unreasonable. Moreover, the Court considers that the conclusions of the domestic courts, as well as the documents in the case-file, do not lend credibility to his complaints about the allegedly inadequate quality of the medical services available to him.

In conclusion, the Court considers that the circumstances under which the applicant is detained, including the opportunities to have access to medical treatment, do not disclose any appearance of a breach of Article 3 of the Convention. It follows that this complaint must be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

Insofar as the applicant relies on Article 14 of the Convention, the Court, having regard to its findings concerning the complaint under Article 3 of the Convention, considers that the present complaint does not disclose any appearance of a violation of Article 14 of the Convention. It follows that this complaint is also manifestly ill-founded within the meaning of Article 34 § 4 of the Convention and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President