Communicated on 1 September 2014

FOURTH SECTION

Application no. 34739/13 Mariusz WOŁKOWICZ against Poland lodged on 5 April 2013

STATEMENT OF FACTS

The applicant, Mr Mariusz Wołkowicz , is a Polish national, who was born in 1977. He is currently detained in the Białystok Remand Centre. The applicant is represented before the Court by Ms M. Rybnik, a lawyer practising in Białystok .

The circumstances of the case

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

1. Background information

In 1997 the applicant suffered a spine injury and was bound to a wheelchair. As a result of his psychotherapy the applicant made progress from a wheelchair to crutches.

The applicant was convicted and sentenced respectively to eight, nine and three and a half years of imprisonment by the Bia Å‚ ystok Regional Court in three separate sets of criminal proceedings. It appears that while on leave from prison the applicant fled to the United Kingdom in 2009. In 2010 the applicant fell down some stairs. Subsequently, his spine injury recurred and the applicant became paraplegic. Since then he has been wheelchair bound. In addition, the applicant suffers from urethral stricture .

In May 2011 the Białystok Regional Court issued a European Arrest Warrant (EAW) for the arrest of the applicant for twenty-four offences which he had been convicted for, including failure to return to prison, assault, robbery and burglary. In August 2012 the same court in Poland issued a second EAW for the applicant ’ s arrest for the offence of fraud. In the extradition proceedings the applicant claimed that his extradition to Poland would subject him to the risk of ill-treatment due to his physical and mental condition. However, having regard to the expert evidence, the British courts dismissed the applicant ’ s arguments and ordered his extradition to Poland. The final decision was given on 1 March 2013.

2. The applicant ’ s transfer to Poland on board of a military aircraft

On 14 March 2013 the British police escorted the applicant to the airport and handed him over to the Polish police officers . According to the applicant, the Polish officers were not prepared for transfer of a disabled person. The officers attempted to push the applicant ’ s wheelchair into the aircraft. However, they mishandled the move and the applicant fell off his wheelchair. The applicant climbed on to the wheelchair but he was ordered to get off it and to crawl onto the back of the aircraft. When the applicant refused to follow this order, he was pushed off the wheelchair by three police officers and hit by one of them in the ribs. Subsequently, the police officers dragged the applicant to the back of the aircraft holding his legs and arms. According to the applicant, he was in pain but the Polish officers refused to provide him medical assistance. Eventually, the transport was cancelled because of the engine failure. The applicant was returned to the British police.

On 15 March 2013 the applicant ’ s lawyer requested the Białystok Regional Court to annul the applicant ’ s tran sfer to Poland scheduled for 15 March 2013. He claimed that the aircraft on which the applicant were to be transported to Poland was not adequately equipped. On the same day the Regional Court dismissed the request. It found that the aircraft could securely transport persons bound to a wheelchair.

On 15 March 2013 the applicant was again brought to the airport and handed to the Polish officers. The officers dragged the applicant to the rear of the aircraft. The applicant was forced to get off his wheelchair and take a regular seat. This was contrary to the recommendation of a British doctor who advised that the applicant was to travel seated in his wheelchair.

The applicant was transported to the Warsaw- Mokotów Remand Centre in a police van. He was ordered to crawl into the back of the van which was not equipped for transport of disabled persons. The police officers mocked the applicant when he was crawling.

3. Detention in the Warsaw- Mokotów Remand Centre

The applicant started serving his prison sentence at the Warsaw- Mokotów Remand Centre. Upon arrival he was to be transferred to the Remand Centre ’ s Hospital. However, no places were available at the hospital.

The applicant was placed in a cell measuring 7 metres square with one other detainee. He could not use his wheelchair in the cell because of lack of space and use the toilet independently. In all activities he had to be assisted by his cellmate. The fellow cellmate who suffered from bad knees pulled him to a chair and then dragged the chair to the bed or the toilet. The toilet in the cell was not adapted to the needs of the applicant. There were no handrails and the space was too cramped to use the wheelchair. The applicant could not participate in the outdoor activities and passed all his time in the cell.

On 17 March 2013 the applicant ’ s attempted suicide was prevented. He was consulted by a psychiatrist but there were no places available at the psychiatric ward of the Remand Centre ’ s hospital.

The applicant suffered from faecal and urinary incontinence and was recommended by a doctor to shower every day. However, this recommendation was not followed by the administration of the Remand Centre. Sometimes the applicant could not use a shower for a few days. In addition, the shower was not adapted to his needs. The applicant was placed on a stool and needed to be assisted by a fellow inmate. On two occasions the applicant fell off the stool and had to take shower lying down.

The applicant attached to his application a statement from his cellmate, Mr RP, who had assisted him in his daily activities.

On 3 April 2013 the applicant ’ s lawyer requested the administration of the Remand Centre to provide him with information about the state of the applicant ’ s health and his medical treatment. He also inquired whether the applicant was placed in a cell adapted to the needs of a person in a wheelchair and whether the recommendation regarding daily baths was followed. The lawyer noted that the applicant was paraplegic and suffered from an ailment of his urinary tract which necessitated daily insertion of a catheter. He was also incontinent.

On 22 April 2013 the Deputy Director of the Remand Centre informed the applicant ’ s lawyer about the situation of his client. From 29 March 2013 the applicant was placed in the cell no. 26 measuring 7.18 metres square in pavilion B located on the ground floor. He was provided with adequate medical care. At the relevant time there were no places available in a cell adapted to the needs of disabled prisoners. The applicant refused to be transferred to a hospital ward until a place in a special cell had become available. The applicant received daily showers. He was consulted by an urologist who recommended that the applicant undergo a cystoscopy . The relevant arrangements had been made. The applicant was also consulted by a psychiatrist. With regard to his spine injury, the applicant was consulted by three specialists who recommended an MRI test.

According to the applicant, the Remand Centre did not provide him with adequate urological and neurosurgical care as well as physiotherapy.

On 13 August 2013 the applicant complained to the Penitentiary Division of the Warsaw Regional Court that the Remand Centre did not provide him with adequate living standards and medical care. The complaint concerning medical care was transmitted to the administration of the Remand Centre.

On 10 September 2013 the Deputy Director of the Remand Centre informed the applicant that his complaint was unfounded. With regard to his request for a spine surgery, the applicant underwent an MRI examination of his spine and was consulted by a range of specialists. The specialists did not recommend a surgery but physiotherapy instead in view of the advanced changes in the spine. Accordingly, the Remand Centre inquired with the Physiotherapy Ward of the Łódź Prison. The applicant was offered a place at the ward for September-October 2013 which was subsequently changed to November-December 2013.

With regard to the urological care and problems related to urethral stricture , the applicant was informed that he had been frequently consulted by urologists. In April 2013 he was consulted in a civilian hospital and underwent a cystoscopy. The applicant requested that he under go an urethroplasty surgery but the specialist s considered that it was unnecessary and recommended the ureterostomy instead. The latter surgery could not be performed as scheduled due to the infection of the applicant ’ s urinary tract.

The applicant privately arranged his preferred surgery at the Wloclawek Hospital. However, he was informed that any such treatment required prior agreement of the Director of the Remand Centre. According to the applicant, his request for such treatment was refused.

On 8 July 2013 the applicant requested leave from serving his sentence ( przerwa w odbywaniu kary ) to seek medical care outside prison . On 29 August 2013 the Penitentiary Division of the Warsaw Regional Court refused his request. It found that the applicant ’ s condition was stable and that he could receive adequate care while serving his sentence. The applicant appealed. On 4 November 2013 the Warsaw Court of Appeal quashed the decision and remitted the case. It found that the lower court did not take into account all relevant information concerning the applicant ’ s health. The applicant did not provide information about the follow-up to this decision.

According to the applicant his condition deteriorated over time. In particular, the narrowing of the urethra made the use of catheter practically impossible. On 25 August 2013 the applicant was admitted to the emergency service of the Remand Centre ’ s Hospital due to urinary retention. A doctor on duty was unable to insert the catheter and the applicant was in severe pain. After four hours the applicant was eventually treated by a civilian emergency service.

On 26 August 2013 the applicant was consulted by a specialist in urology. He recommended that the issue of urethral stricture should be resolved and that the applicant should place a catheter in a reclining position. According to the applicant, he had no screen on his bed in order to ensure some privacy during the placement of catheter.

The supply of catheters and disinfectants by the Remand Centre was erratic. Sometimes the applicant had to use the same catheter for a few days. This situation led to recurring urinary tract infection.

The supply of incontinence pads was also insufficient. At some time the Director of the Remand Centre agreed that the applicant ’ s family would supply him with incontinence pads.

On 27 August 2013 the applicant filed a criminal complaint against the administration of the Remand Centre, alleging that he had been treated in a degrading manner. He was not informed about any decision taken in this regard.

4. Detention in the Bia Å‚ ystok Remand Centre

On 30 August 2013 the applicant was transferred to the Bia Å‚ ystok Remand Centre. He was placed in a three-person cell which was not adapted to the needs of a disabled person. The cell wa s too cramped to use his wheelchair. In order to use the toilet the applicant had to move to a chair and then to a toilet.

The showers were not adapted to his needs. He could not enter the shower room with his wheelchair and had to move to a chair. There were no handrails in the shower. The applicant used the shower seated but frequently fell off the chair.

It was impossible for the applicant to participate in the outdoor activities. His cell was on the first floor and access to the outdoor area in the wheelchair was impossible.

The applicant was to a large degree dependent on the assistance of his cellmates. Anytime he wanted to use a telephone or prison shop he had to be carried by his cellmates who he had to pay with coffee or cigarettes.

The applicant frequently but unsuccessfully requested to serve his prison sentence in the “therapeutic regime” for persons with physical disabilities who required specialist treatment (Article 96 of the Code of Execution of Criminal Sentences).

On 28 October 2013 the applicant was consulted by specialists in urology and recommended to undergo an urethroplasty . However, the applicant suffers from a chronic urinary tract infection and cannot undergo such a surgery. He should be treated at urology ward but it appears that none of the penitentiary establishments in the country disposes of such a ward.

On 31 December 2013 the applicant complained to the Bia Å‚ ystok Regional Court about the care provided to him. This complaint was examined by the Director of the Bia Å‚ ystok Regional Inspection of Prison Services who informed the applicant by letter dated 5 December 2013 that his complaint was unfounded.

On 17 February 2014 the penitentiary judge of the Bia ł ystok Regional Court informed the Ombudsman ’ s Office that the conditions of the applicant ’ s detention and the medical care provided in the Białystok Remand Centre were adequate.

5. Detention in the Przytu Å‚ y Stare Prison

On an unspecified date in 2014 the applicant was transferred to the PrzytuÅ‚y Stare Prison. The applicant requested l eave from serving his sentence. On 7 May 20014 the Ostro Å‚Ä™ ka Regional Court granted him a 3 ‑ month leave from prison. It relied on the medical report submitted by the prison administration which concluded that the applicant could not be treated in prison.

COMPLAINT S

1. The applicant complains that he was transferred to Poland on board of a Polish military aircraft which was not adapted to the needs of disabled person and about the ill-treatment to which he was subjected by the Polish police officers during his transfer. He did not invoke any specific provision of the Convention.

2. The applicant complains under Article 3 of the Convention that the Polish authorities did not provide him with adequate medical care and sufficient supply of medical devices (catheters and disinfectants) as well as made it impossible for him to undergo a necessary treatment of his urethral stricture ( urethroplasty ) for which he is willing to pay. He was further refused leave from serving his sentence to seek medical care outside prison.

The applicant also alleges that the conditions in his cells in Warsaw ‑ Mokotów and Bia Å‚ ystok Remand Centres were not adapted to his physical disability. He could not move around the cell in his wheelchair and had no independent access to the toilet. Showers were not equipped to his needs. He had to take shower seated on a chair from which he frequently fell. He had to rely on the assistance of his cellmates and remunerate them with coffee and cigarettes. All his requests to be transferred to a cell adapted to the needs of disabled prisoners or serve his s entence in the “therapeutic regime” were refused.

QUESTIONS TO THE PARTIES

1. Was the military aircraft which transported the applicant to Poland on 15 March 2013 adapted to the needs of disabled persons?

2. Has the applicant been subjected to inhuman or degrading treatment by the Polish officials during his transfer to Poland on 14 and 15 March 2013, in breach of Article 3 of the Convention?

3. Has there been a breach of Article 3 of the Convention on account of the inadequate conditions of the applicant ’ s detention in the Warsaw- Mokotów and Białystok Remand Centres having regard to the nature of the applicant ’ s d isability and his special needs? Reference is made to D.G. v. Poland , no. 45705/07 , 12 February 2013 .

4. Has there been a breach of Article 3 of the Convention on account of the alleged deficiencies in the quality of care provide d to the applicant in detention?