FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39538/98

by Andrzej LIPOWSKI

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 20 April 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 1 March 1996 by Andrzej LIPOWSKI  against Poland and registered on 28 January 1998 under file no. 39538/98;

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 1968. He is a carpenter and is currently detained in the PÅ‚ock prison.

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

On 16 May 1996 the applicant was detained on remand. On 17 May 1996 he was transferred to the Bartoszyce Detention Center. Between 12 and 27 June 1996 the applicant was on hunger strike.

On 24 June 1996 the applicant complained to the Governor of the Bartoszyce Detention Center about the ill-treatment by prison officers. In a letter of 31 July 1996 the Deputy Governor of the Bartoszyce Prison informed the applicant that he considered his complaint as unsubstantiated. He pointed out that during the applicant’s hunger strike, which had been prompted by the decision to detain him and by his family problems, he enjoyed constant medical and psychological care.

The applicant alleges that on 25 July 1996 he was assaulted by three prison officers and subsequently spent two days in solitary confinement.

On 16 August 1996 the applicant complained to the District Director of the Prison Service about the assault, the absence of medical examination before his transfer to the solitary confinement, and about his poor health. On 25 October 1996 the District Director rejected the complaint as ill-founded. He admitted that at 8:20 a.m. on 25 July 1996 the applicant had been overpowered, handcuffed and put in solitary confinement. At 11:30 a.m. on the same day the applicant had been examined by a physician who had concluded that he had not have any injuries except for a slight skin excoriation on his hands. The second medical check-up, conducted at 8:10 a.m. on 26 July 1996, had resulted in the doctor’s opinion that the applicant could remain in the solitary confinement. Moreover, an ambulance had been called in the afternoon of 26 July 1996 as the applicant had been complaining about stomach pain, but the medical examination on that occasion had resulted in the conclusion that the applicant’s condition had been normal and analgesics could be prescribed. The Director further noted that together with the Chief Medical Officer of the District Prison Board he had analysed the applicant’s medical file and found that the applicant had always been receiving prescribed medicines. Whenever they had not been available in the prison’s surgery, they had been purchased in the pharmacy outside the prison.

On 10 October 1996 the applicant informed the Bartoszyce District Prosecutor that on 25 July 1996 he had been assaulted by the prison officers. On 14 November 1996 the District Prosecutor decided to discontinue the investigation of the complaint as he concluded that the prison officers had acted lawfully. In particular, the District Prosecutor found that on 25 July 1996 the applicant had been kicking the door of his cell, shouting and threatening with self-mutilation. He had been warned several times that force would be used against him if he had not stopped this behaviour. Since the applicant had continued to behave in this manner, the Prison Governor had authorised the use of force against the applicant, handcuffing him and putting in solitary confinement. That decision had been carried out by three prison officers under the supervision of two senior prison officers. Since the applicant had behaved violently, the officers had used force to overpower him. During his solitary confinement the applicant had been examined on several occasions by physicians who had found no injuries except for a slight skin excoriation on his hands. Further medical examination undertaken after the applicant had complained about stomach pain had resulted in the finding of superficial gastritis. The pain had disappeared after administration of analgesics and a special diet.

On 19 December 1996 the Kętrzyn District Court convicted the applicant of assault and sentenced him to three and a half years’ imprisonment.

On 3 February 1997 the applicant was transferred to the Olsztyn Detention Center.

In a letter of 13 February 1997 the District Director of the Prison Service informed the applicant that his complaints submitted on 20 October 1996 to the Ombudsman were ill-founded. The District Director was of the opinion that the testimony given by the witnesses and medical evidence clearly showed that the alleged assault had not in fact taken place as the prison officers had lawfully responded to the applicant’s violent behaviour. Moreover, he pointed out that in his conversation with the Prison Governor, which had taken place on 27 July 1996, the applicant had not raised any complaints about the alleged assault. The Director also dismissed as unsubstantiated the applicant’s complaints concerning irregularities in the delivery of mail, the failure to give him prescribed medicines and difficulties in contacting his family members.

On 2 April 1997 the applicant was transferred to the Kamińsk Prison.

On 10 April 1997 the Olsztyn District Court convicted the applicant of larceny and sentenced him to four and a half years’ imprisonment.

On 19 April 1997 the Ombudsman informed the applicant that his complaints relating to the alleged irregularities in the mail delivery were unfounded. He pointed out that during the interview with the Penitentiary Judge held on 18 March 1997 the applicant had failed to provide any facts which would make it possible to investigate his allegations. The Ombudsman also observed that the applicant’s allegations concerning the assault by the prison officers had been investigated by the District Prosecutor who had concluded that they were unfounded and discontinued the investigation.

On 28 April 1997 the applicant complained to the District Director of the Prison Service about the inadequate medical treatment and inaccurate diagnosis of his condition at the time of his detention in the Olsztyn Detention Center. In a letter of 27 June 1997 the District Director dismissed the complaint. He pointed out that after the applicant had complained about problems with his kidneys and urinary system he had undergone several medical examinations. In particular, blood and urine tests had been administered. Furthermore, an x-ray of his abdominal cavity had been taken together with an ultrasound of his urinary bladder. The applicant had also had two consultations in the urology clinic. The Director concluded that since the applicant had had access to proper medical care in the Olsztyn Detention Center his complaint was ill-founded.

On 27 August 1997 the applicant complained to the District Director of the Prison Service about the assault by prison officers on 25 July 1996 and about an inaccurate diagnosis given by a psychologist who had examined him. On 13 October 1997 the District Director rejected his complaint. He observed that the incident, which had taken place on 25 July 1996, was investigated by a prosecutor who concluded that the prison officers acted lawfully. Furthermore, the Director informed the applicant that he had been given psychological counselling since he had suffered from personality disorders. The psychologist’s note in the applicant’s medical records merely described his difficulties in adapting to the prison environment and was not used by the prison administration to make any decision concerning his detention.

On 13 November 1997 the Olsztyn District Court pronounced a cumulative judgment in respect of the judgments of 19 December 1996 and 10 April 1997 and reduced the applicant’s sentence to six and a half years’ imprisonment.

On 9 May 1998 the applicant’s mother died. On 18 May 1998 the Penitentiary Judge refused the applicant’s request for a leave to attend her funeral but apparently granted permission for his attendance under police escort.

On 31 July 1998 the applicant got married. He still serves his prison sentence.

COMPLAINTS

The applicant complains under Article 3 of the Convention that on 25 July 1996 he was assaulted by three prison officers and put in solitary confinement for two days. He also complains about allegedly inadequate medical care provided by prison doctors.

THE LAW

The applicant complains that on 25 July 1996 he was assaulted by three prison officers and put in solitary confinement for two days. He also complains about allegedly inadequate medical care provided by prison doctors. The applicant invokes Article 3 of the Convention which provides:

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

The Court firstly 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 1979, Series A no. 25, p. 65, § 162). It also recalls that lack of medical treatment may raise an issue under Article 3 of the Convention. 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 notes that the applicant lodged several complaints with the national authorities in which he alleged that on 25 July 1996 he had been assaulted by three prison officers. However, the investigation of the complaint by the District Director of the Prison Service and the District Prosecutor led to the conclusion that the prison officers had lawfully overpowered the applicant and put him in the solitary confinement as a result of his violent behaviour. The medical examination conducted three hours after the incident had taken place showed that the applicant had no injuries except for a slight skin excoriation on both hands. Also, the medical check-up conducted in the morning of the second day of solitary confinement resulted in the opinion that the applicant could be detained in such conditions.

Furthermore, the Court observes that the applicant’s numerous complaints relating to the medical care were promptly investigated by the authorities which found them unfounded. Moreover, the applicant underwent several medical examinations which showed that his state of health was compatible with detention. In addition, he was provided with psychological counselling. The inspection of his medical file by the authorities showed that he received the prescribed medicines.

In sum, the applicant’s condition was, throughout his detention, monitored by the prison health services 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