Communicated on 28 August 2017

FIRST SECTION

Application no. 65196/16 Rafał NORMANTOWICZ against Poland lodged on 27 October 2016

STATEMENT OF FACTS

The applicant, Mr Rafał Normantowicz , is a Polish national who was born in 1983 and is currently detained in Gdańsk Remand Centre.

The circumstances of the case

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

1. Background

Since 2003 the applicant has on several occasions apparently received treatment in psychiatric hospitals in connection with his addiction to various toxic substances. In 2012 he sustained a backbone injury and was diagnosed with spinal disc herniation ( dyskopatia ), spondylolisthesis ( przemieszczenie kręgów ) and backbone chronic pain syndrome ( przewlekly zespół bólowy ) . In September 2014 the applicant was hospitalised for a duodenal ulcer ( choroba wrzodowa dwunastnicy ).

2. Chronology of the applicant ’ s detention

On an unspecified date, probably in late 2014, the applicant started serving a prison sentence which had been imposed for an unspecified criminal offence.

From 7 October until 4 December 2014, the applicant was apparently confined in Kami ń sk Prison. It appears that from 5 until 23 December 2014, from 16 May until November 2015, and from October 2016 until January 2017, he was detained in the hospital wing of Barczewo Prison. From 23 December 2014 until 15 May 2015 and from January 2017 until the present time he has been detained in the hospital wing of Gdańsk Remand Centre.

3. The applicant ’ s medical condition and treatment whilst in detention

Between 5 and 23 December 2014, and between 23 December 2014 and 15 May 2015, the applicant underwent a series of examinations by various specialists (orthopaedists, neurosurgeons, internal medicine specialists and psychiatrists) and tests including MRI and CT scans of his backbone. The examination of the applicant ’ s backbone was repeated in September 2015 (MRI). In October 2015 the applicant was examined by a neurosurgeon. In November 2015 the applicant underwent two urological examinations. In December 2015 and January 2016 laboratory tests were carried out on the applicant at the civilian hospital in Olsztyn. Reports on the monitoring of the applicant ’ s health were issued in November 2014 and in January, February, July, September and November 2015.

The above-mentioned tests and examinations reveal the following development of the applicant ’ s health condition.

In October-November 2014 ( Kamińsk Prison), the applicant was diagnosed with epilepsy in addition to his pre-existing orthopaedic condition. He was administered painkillers, tranquillisers and anti-epilepsy medicine. In October 2014 the applicant refused to take the morning dose of his anti-epilepsy drugs. The applicant was in the process of being prepared for backbone surgery.

In December 2014 ( Barczewo Prison) he was treated for a urinary tract infection.

The report on the monitoring of the appli cant ’ s health issued in January 2015 ( Gdańsk Remand Centre) stated that the applicant had been informed of the possible need for surgery and that in February 2015 he was scheduled for a further test to this end. It was also noted that the applicant ’ s condition allowed for further diagnostics within the prison health care system.

A similar report issued in February 2015 stated that the applicant ’ s test had had to be postponed until March 2015 and that the applicant ’ s condition still allowed for further diagnostics within the prison health care system.

The MRI scan and examination by a neurosurgeon on 16 March 2015 and the CT test carried out in May 2015 resulted in the determination of the type and scope of the applicant ’ s discal hernia.

The following information was noted in the hospital discharge summary issued on 15 May 2015 ( Gdańsk Remand Centre). The applicant was additionally diagnosed with sciatica ( rwa kulszowa ) and was suspected of suffering from ulcers. He received treatment for kidney stone disease ( kamica nerkowa ), insomnia and anxiety disorder. He walked with crutches and reported increasing pain and temporary loss of sensation in his legs. The applicant was recommended for non-urgent surgery to treat his discal hernia. In accordance with his wishes, multiple requests for admission for surgery had been sent to a hospital in his home town. No reply had been received as of the date of issue of the summary. The applicant was also advised to have physical therapy; that treatment however was not considered essential and the applicant had not consented to it. Lastly, it was recommended that a bottom bunk bed be assigned to the applicant.

The report on the monitoring of the applicant ’ s health issued in July 2015 ( Barczewo Prison) stated that the applicant was being treated for hypertension and mood disorders. Furthermore, in reply to the request for surgery sent by the prison administration, the Walbrzych State Hospital recommended that the surgery take place in a hospital which was specialised in complex backbone surgeries. As a consequence, a surgery request was sent to the State neurosurgery clinic in Olsztyn. It was noted that until the examination scheduled for 29 July 2015, the applicant should receive non-invasive treatment ( leczenie zachowawcze ) in prison.

A further report issued in September 2015 ( Barczewo Prison) stated that the applicant had been diagnosed with herniation of various discs and that a second examination at the Olsztyn hospital had been scheduled for October 2015.

A medical certificate issued by a neurosurgeon in October 2015 stated that the applicant ’ s neurological condition had not changed since his previous examination by the doctor (date unspecified) and described what specific procedures should be undertaken prior and during the applicant ’ s two-phase surgery.

The report on the monitoring of the applicant ’ s health issued on 12 November 2015 ( Barczewo Prison) stated that the applicant ’ s first-phase surgery was not possible in view of the poor results of his laboratory tests (urological test of 10 November 2015). The applicant was scheduled to have a urological examination on 13 November 2015. He was also being treated for hypertension and chronic gastritis.

The applicant underwent further urological tests on 18 November and 2 December 2015, and on 8 January 2016.

On 22 December 2015 the applicant attempted to commit suicide. The case-file does not contain any further information in this respect.

On 11 February 2016 the applicant obtained a certificate from the hospital of the Gdańsk Remand Centre which confirmed the previous diagnoses and stated that the applicant was also suffering from depression. The certificate also contained a recommendation that non-urgent surgery of the applicant ’ s discal hernia be scheduled.

On 14 March 2016 the applicant was certified as having a marked degree of disability ( znaczny stopień inwalidztwa ) requiring permanent or long-term care and the aid of another person.

On 10 January 2017 two court-appointed experts certified that the applicant was partly and temporarily unfit for work in view of his orthopaedic condition.

The applicant was scheduled to have surgery at the Olsztyn State H ospital on 11 May 2017.

4. Proceedings for a licence for prison leave

On 14 May 2015 the applicant applied for a licence for leave (also known as a “short break” in the execution of a sentence; przerwa w odbywaniu kary pozbawienia wolno śc i ) on health grounds. On 2 June 2015 his lawyer lodged a similar application on the applicant ’ s behalf. She enumerated the applicant ’ s ailments and argued that they were severe enough to make him unfit for detention. In particular, the applicant could only walk with crutches, wore incontinence pads and was completely dependent on his fellow inmates. The prison system did not provide him with adequate medical monitoring by specialists, treatment or physical rehabilitation, and this was causing his health to deteriorate and increasing his suffering. The lawyer stated that the applicant ’ s surgery was scheduled for 2017 and that, in the meantime, he should receive treatment in a civilian clinic in Olsztyn but ultimately the surgery should be brought forward. The lawyer maintained that the applicant was in an inhumane situation, that his health was rapidly deteriorating, and that he was not able to move around and to reach the prison telephone in order to contact his family. The lawyer asked that an expert report be obtained in order to assess the applicant ’ s health condition, the need for surgery and the consequences of delaying that procedure. Lastly, she asked that, in view of the applicant ’ s state of health, the court hearing be scheduled as soon as possible.

On 22 February 2016 court-appointed experts, a neurosurgeon and a forensic medicine specialist, from the Forensic Medicine Institute in Bydgoszcz, produced a report based on an examination of the applicant and an analysis of his medical records.

The experts concluded that the applicant should undergo surgery to remove his discal hernia but that his detention whilst awaiting the surgery did not pose any risk to life or limb. They recommended that the applicant be assigned a bottom bunk bed and the necessary pharmacological treatment, and that after the surgery he be granted a three-month leave from prison to undergo physical rehabilitation. As stated in the report, at the relevant time the applicant used crutches and was wearing incontinence pads.

On 11 May 2016 the Olsztyn Regional Court ( Sąd Okręgowy ) held a hearing which was attended by the applicant, who by that time was confined to a wheelchair. The applicant was presented with the expert report on his health prepared on 22 February 2016 by the Forensic Medicine Institute in Bydgoszcz. He filed an unspecified medical certificate and asked to be given a medical check-up.

On the same date the court delivered its decision, refusing to grant the licence sought. The Court is not in possession of this document. The applicant informed the Court that he had sent the original decision together with his application form and that if it had not reached the Court it must have been removed by the prison administration.

On 16 May 2016 the applicant appealed, stating that he was suffering from severe and chronic disorders, that he had to use a wheelchair and that his pain caused him a lot of suffering. He argued that Barczewo Prison was not adapted for special needs prisoners, that adequate medical care was not guaranteed to him there and that he needed to undergo surgery in a civilian hospital. He attached medical certificates of 27 January 2015 and 21 April 2016.

On 4 July 2016 the Bialystok Court of Appeal upheld the lower court ’ s decision, observing that a licence for leave could only be granted if the prisoner ’ s illness was so severe that continuing his detention would cause danger to life or limb. The court found that the evidence obtained in the case clearly showed that no such risk existed in the applicant ’ s case. In particular, the expert report unequivocally stated that the applicant could await his surgery and receive appropriate medical treatment in prison; in fact he was provided with medicines, including antidepressants.

On 10 June 2016 the Białystok Court of Appeal dismissed a complaint lodged by the applicant under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) about the unreasonable length of the proceedings for a licence for leave. The court considered that the delay which had marked the impugned proceedings had been caused by the applicant ’ s two hospitalisations and the resultant change of the jurisdiction and transfer of case file between courts in different cities. It was also observed that the case was complex and required assessment of medical records which could not have been obtained without some delay.

5. Related proceedings against prison doctors

It appears that the applicant brought a civil action against a prison doctor and instituted disciplinary proceedings with the Regional Attorney for Professional Liability ( Okręgowy Rzecznik Odpowiedzialności Zawodowej ). No further information has been provided to this end.

COMPLAINTS

The ap plicant complains under Article 3 of the Convention that the State authorities have failed to ensure timely surgery to treat his discal hernia, which has caused irreversible health consequences such as his confinement to a wheelchair. He also complains under the same provision that the State authorities would not grant him leave from prison despite his unfitness for detention. The applicant also complains, invoking Article 6 of the Convention, of the unreasonable length of the proceedings for a licence for leave.

QUESTIONS TO THE PARTIES

1. Does the applicant ’ s detention amount to inhuman or degrading treatment in breach of Article 3 of the Convention, taking into account the nature of the applicant ’ s disability and his special needs, and the quality of care provided to him in detention?

2. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings concerning the applicant ’ s request for a license for prison leave in the present case?

In the affirmative, was the length of the impugned proceedings in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Did the applicant have an “arguable claim” that there had been a violation of his rights under Article 3 of the Convention so as to bring into play Article 13, read in conjunction with the former provision?

In the affirmative, given that the examination of the applicant ’ s appeal for a licence for leave ‒ which was sought on health grounds ‒ lasted one year and seven weeks, did the applicant have at his disposal an effective domestic remedy for his complaint under Ar ticle 3, as required by Article 13 of the Convention?