FIRST SECTION

DECISION

Application no. 31672/17 Artur MĘDRZYCKI against Poland

The European Court of Human Rights (First Section), sitting on 2 July 2019 as a Committee composed of:

Pere Pastor Vilanova, President, Krzysztof Wojtyczek, Pauliine Koskelo, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 28 April 2017,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Artur Mędrzycki , is a Polish national who was born in 1977 and lives in Piaseczno . He was represented before the Court by Ms M. Gąsiorowska , a lawyer practising in Warsaw.

2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

3. The case was communicated by the duty judge following the applicant ’ s request to apply interim measure under Rule 39, which was rejected.

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

5. On 30 April 2003 the Warsaw District Court ( Sąd Rejonowy ) convicted the applicant of bribery and sentenced him to four years ’ imprisonment. His conviction was upheld on 19 April 2004 by the Warsaw Regional Court ( Sąd Okręgowy ).

6. Since 2007 the applicant has suffered from various neurological symptoms. He has been hospitalised on numerous occasions. The diagnosis included, amongst others, Weber ’ s syndrome, Miller-Fisher syndrome, mitochondrial myopathy and chronic autoimmune encephalitis.

7. Following the diagnosis, the applicant was given State-funded specialist care, consisting of six to eight rounds of intravenous immunoglobulin treatment (hereafter: “IVIG”) and rehabilitation, which was expected to last from twelve to eighteen months.

8. In 2005 and 2007 the applicant ’ s prison sentence for his 2003 conviction was postponed due to his poor state of health.

9. On 30 April 2009 the enforcement proceedings were stayed for the same reason.

10. In 2012 an expert declared that the applicant was able to serve his sentence. On 27 March 2012 the Warsaw District Court resumed the enforcement proceedings. On 22 November 2012 the Warsaw Regional Court upheld that decision.

11. On 15 July 2013 the applicant ’ s lawyer applied to postpone the execution of the sentence for six months due to the applicant ’ s health problems and asked for an expert opinion regarding the possibility of placing him in prison. She also requested a stay of the enforcement proceedings due to the treatment he was receiving (IVIG and intensive neurological rehabilitation).

12. During these proceedings the court ordered a neurologist ’ s opinion, which was prepared on 27 December 2013 and supplemented by the same expert on 10 February 2014. According to the expert, the applicant ’ s condition did not prevent him from being placed in prison.

13. On 14 April 2014 the Warsaw District Court refused the request to postpone the execution of the applicant ’ s prison sentence.

14. Following an appeal by the applicant, on 25 June 2014 the Warsaw Regional Court quashed that decision, ordering the District Court to obtain a psychiatric opinion. The Regional Court was also dissatisfied with the neurologist ’ s opinion, as the expert had admitted that he was not a specialist in the field of mitochondrial myopathy.

15. On 25 September 2014 the Warsaw District Court obtained the opinion of an expert in general medicine and cardiology, who admitted that he was not competent in the field of Miller-Fisher syndrome. He observed that the applicant ’ s condition could be treated within the prison medical service and did not prevent his deprivation of liberty.

16 . In an opinion of 19 March 2015 two experts – a neurologist and a specialist in paediatrics and clinical genetics – declared that the applicant ’ s symptoms were either of a psychogenic nature or simulated, as they did not correspond to any known mitochondrial myopathy. They declared that the applicant was able to serve his sentence.

17 . The forensic psychiatric opinion ( opinia sÄ…dowo-psychiatryczna ) of 11 August 2016, prepared after the psychiatric evaluation of the applicant, stated that he was able to serve his prison sentence in a therapeutic prison ward and with guaranteed psychiatric and psychological care.

18. On 7 October 2016 the Warsaw District Court, relying on the experts ’ opinions available, refused to postpone the execution of the sentence and stay the enforcement proceedings. It also refused the applicant ’ s lawyer ’ s request for an expert opinion to determine whether the applicant could be treated and rehabilitated in prison and whether the interruption of treatment would have serious consequences for him. The court recommended that the applicant be placed in a therapeutic prison ward.

19. The applicant appealed and asked the appellate court to establish, in particular, the possibility of treatment and rehabilitation in prison and whether discontinuation of the treatment could cause a significant deterioration of his health.

20. On 20 October 2016 the Warsaw District Court ordered the applicant to pay the costs of the proceedings, which amounted to approximately 12,500 Polish zlotys (PLN) (approximately 3,000 euros (EUR)). The applicant appealed.

21 . On 2 January 2017 the Warsaw Regional Court dismissed the applicant ’ s appeal against the decision of 20 October 2016. The applicant argued that he received disability benefits, which was his only source of income, that he had no assets, and that the fact that he had a lawyer of his own choosing did not mean that he had paid for the lawyer ’ s work. The court ruled, however, that the applicant had a permanent source of income and that his parents, with whom he lived, were helping him. Therefore the District Court did not err in ordering him to cover the costs of the proceedings. The court assessed as premature the statement that the applicant would not be able to pay the costs, because the institutions provided by law, such as payment in instalments of execution of the debt by the bailiff ( egzekucja komornicza ) had not yet been used.

22. On the same date it upheld the decision of 7 October 2016. Referring to the lawyer ’ s arguments, it stated:

“... there are no grounds for stating that the applicant ’ s imprisonment could cause a breakdown of his health based solely on a general statement that the prison medical service does not have at its disposal the treatment suitable for [the applicant] ... For the dates of the IVIG treatment provided by [the applicant] in February-March, July 2017 he will be able to apply for so-called prison leave ( przepustka )”.

The court also held that the facility in Gdańsk had a neurological ward, and that the prison medical service worked in cooperation with the civilian medical service. If such a need arose, a convoy could be organised to transport the applicant to a civilian hospital.

23. On 25 January 2017 the Warsaw District Court refused to change the decision of 7 October 2016 concerning the postponement of the execution of the prison sentence. The applicant appealed. On 16 March 2017 the Warsaw Regional Court upheld the challenged decision.

24. On 16 February 2017 the Warsaw District Court issued a warrant notice with a view to detaining the applicant and suspended the enforcement proceedings. The applicant appealed. On 31 March 2017 the Warsaw Regional Court upheld that decision.

25. The relevant provisions of domestic law concerning medical care in prisons and remand centres are set out in the Court ’ s judgments in Sławomir Musiał v. Poland (no. 28300/06, §§ 48 and 51-53, 20 January 2009), Kaprykowski v. Poland (no. 23052/05, §§ 36-39, 3 February 2009) and Bujak v. Poland (no. 686/12, §§ 51-52, 21 March 2017).

26. Article 150 of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy – “the Code”) provides:

“1. The court shall postpone the execution of a prison sentence in the event of mental illness or other serious illness preventing the execution of that sentence until the obstacle ceases to exist.

2. A convicted person ’ s condition is considered a serious illness if placing him or her in prison could pose a danger to his or her life or cause a serious danger to his or her health.”

27. Article 151 of the Code provides, in so far as relevant:

“1. The court may postpone the execution of a prison sentence for a period up to one year if immediate execution of the sentence would cause too serious consequences for the convicted person or his or her family ...”

28 . Article 153 of the Code provides, in so far as relevant:

“1. A penitentiary court shall grant leave from serving a sentence in the cases provided for in Article 150 § 1 until the obstacle ceases to exist.

2. A penitentiary court may grant leave from serving a sentence if important family or personal reasons so require ...

3. No leave shall be granted within one year of the end of the previous leave and return to the prison, unless the convicted person is mentally ill or seriously ill or in the event of another unforeseen event ...”

29 . Article 206 § 2 of the Code provides that the costs of proceedings can be paid in instalments or written off due to lack of funds, and the relevant provisions concerning fines should be applied accordingly.

30. Article 49 of the Code allows for payment of the costs of proceedings in instalments over one year and, in exceptional cases, over three years.

31 . Article 51 § 1 of the Code provides:

“If the sentenced person, owing to circumstances beyond his or her control, did not pay the fine, and the execution of that penalty in another manner turned out to be impossible or futile, the court can, in especially justifiable cases, write off the fine partially, or, exceptionally, also in full; the execution shall not be commenced if from the circumstances of the case it appears that it would be ineffective.”

COMPLAINTS

32. The applicant complained under Articles 2 and 3 of the Convention that serving the sentence in his state of health, without any guarantee that he could continue his treatment in prison, would endanger his life and health. Furthermore, he submitted that the proceedings for postponement of the execution of his prison sentence had not constituted an effective remedy, because the courts had refused to establish whether he could continue the treatment in prison.

33. The applicant also complained that serving the sentence in his state of health, without any guarantee that his illness could be properly treated in prison conditions, would constitute a breach of his right to private life contrary to Article 8 of the Convention.

34. Lastly, relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that he had been ordered to pay the costs of the proceedings for postponement of the execution of his sentence, even though he had no income other than his disability pension.

THE LAW

35. The Government submitted that the present application constituted abuse of right to petition.

36. Furthermore, they submitted that the applicant could not claim to be a victim of a violation of Articles 2, 3 or 8 of the Convention within the meaning of Article 34 of the Convention, because he had not yet been imprisoned.

37. They pointed out that the applicant, once imprisoned, could apply for leave from serving his sentence (see paragraph 28 above) if his state of health deteriorated, and that if he were dissatisfied with the prison conditions, he would be entitled to appeal against the director ’ s decisions to the penitentiary court and against the decisions of the penitentiary court.

38. The applicant challenged the Government ’ s arguments concerning abuse of right to petition.

39. Furthermore, he argued that, if imprisoned, he would be unable to benefit from continuous and highly specialised medical care.

40. In the applicant ’ s opinion, leave from serving the sentence was not an adequate solution for his situation, since the relevant proceedings could take several months.

41. The Court considers that it is not necessary to examine the preliminary objection concerning abuse of petition, since the application is inadmissible on other grounds.

42. As regards the complaints under Articles 2, 3 and 8, the Court notes that in the course of the domestic proceedings initiated by the applicant he was found to be physically and mentally fit to serve his prison sentence (see paragraphs 16 and 17 above).

43. In order to rely on Article 34 of the Convention, an applicant must meet two conditions: he or she must fall into one of the categories of petitioners mentioned in that provision and must be able to make out a case that he or she is the victim of a violation of the Convention. According to the Court ’ s established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Gorraiz Lizarraga and Others v. Spain , no. 62543/00, § 35, ECHR 2004-III). The word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (see SARL du Parc d ’ Activités de Blotzheim v. France , no. 72377/01, § 20, 11 July 2006). Hence, Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (see, mutatis mutandis , Defalque v. Belgium , no. 37330/02, § 46, 20 April 2006, and Tourkiki Enosi Xanthis and Others v. Greece , no. 26698/05, § 38, 27 March 2008).

44. The Court notes that the applicant has not yet been imprisoned and, therefore, he cannot prove that he has suffered any harm. Moreover, even after imprisonment he could, in case of health problems, apply for leave from serving his sentence (see paragraph 28 above). Therefore, he cannot claim to be directly affected by a violation of Articles 2, 3 or 8 of the Convention (see Tănase v. Moldova [GC], § 104, no. 7/08 , 27 April 2010) .

45. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof.

46. The applicant complained that he had been ordered to pay the costs of the proceedings for postponement of the execution of his sentence, even though he had no income other than his disability pension.

47. The Court notes that in his appeal against the decision of 20 October 2016 the applicant stated that the disability pension constituted his only income (see paragraph 21 above). However, the appeal was very general and did not provide detailed information on the applicant ’ s income. Moreover, the applicant did not submit that he had asked to pay the costs of the proceedings in instalments or that they be written off due to a lack of funds (see paragraphs 29-31 above). This complaint is therefore inadmissible for non-exhaustion of domestic remedies. It follows that it must be rejected pursuant to Article 35 §§ 1 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 September 2019 .

Renata Degener Pere Pastor Vilanova Deputy Registrar President