Communicated on 27 August 2014

FOURTH SECTION

Application no. 686/12 SÅ‚awomir BUJAK against Poland lodged on 29 March 2011

STATEMENT OF FACTS

The applicant, Mr SÅ‚awomir Bujak , is a Polish national, who was born in 1954 and lives in Sarbice Pierwsze .

A. The circumstances of the case

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

1 . Background to the case

In the year 1999 the applicant was suspected of having committed several offences of appropriation of leased movable goods, in particular cars, which he had committed while running a company.

On an unspecified date the applicant went to New Zealand and the proceedings against him were stayed.

On 29 March 2004 the Minister of Justice requested that the applicant be extradited to Poland.

Following the procedure in New Zealand, in 2010 the applicant was transported to Poland.

2 . The applicant ’ s arrest and detention

On 9 March 2010 the applicant was arrested.

On 13 March 2010 the Kielce District Court decided to detain him on remand for a period of three months, until 9 June 2010. The court relied on the reasonable suspicion that the applicant had committed the offences with which he was charged. It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding. The court recalled that the applicant had gone to New Zealand in 1999 and therefore the proceedings against him had had to be stayed for 10 years.

On 7 June 2010 the applicant ’ s detention was extended until 7 September 2010. This decision was upheld on 29 July 2010 by the Kraków Court of Appeal which approved the Regional Court ’ s view that the detention had been justified by the risk of severe penalty and the possibility that the applicant might obstruct the proceedings. As regards the applicant ’ s state of health the court relied on two medical experts ’ opinions of 15 April and 14 June 2010 according to which the applicant could be treated in the detention facilities and could participate in the trial.

On 6 September 2010 the Kielce Regional Court extended the applicant ’ s detention for five further months until 4 February 2011. The court reasoned its decision by high probability that the applicant had committed offences with which he had been charged. The court also found that there was a risk that the applicant might go into hiding or obstruct the proceedings; it did not however give grounds for its findings. The court finally stated that there were “no grounds for continuing the detention, in particular those referred to in Article 259 of the Code of Criminal Proceedings”.

On 25 January 2011 the Kielce Regional Court again extended the detention for five further months. The applicant appealed. He relied, among other things, on his state of health, the fact that he had to use a wheelchair, that he was waiting for a spine operation and that he could not undergo physiotherapy in the conditions of detention.

On 22 February 2011 the Kraków Court of Appeal upheld the challenged decision relying, as previously, on the fact that the applicant had gone into hiding in the past. The court also found that the applicant had again obstructed the proceedings because he refused to be transported to the court hearing without a wheelchair. The Court of Appeal did not accept the Regional Court ’ s finding that the applicant might tamper with evidence; this however did not influence the court ’ s overall estimation of the circumstances of the case. As regards the applicant ’ s state of health, the court relied on a medical opinion issued on 28 October 2010 according to which the applicant could participate in the court hearings and could be transported without a wheelchair.

On 28 June 2011 the applicant underwent a medical examination ordered by the Kielce Regional Court. The applicant arrived for the examination in wheelchair, from which he could not get up. The doctor found that the applicant suffered from chronic pain of the thoracic and lumbar vertebral column on the basis of multilevel disc osteoarthritis and that he had had a spine injury and left hip injury in 1999 and 2005. The doctor also ordered the applicant ’ s further examination which took place on 16 August 2011. On 16 October 2011 a fresh opinion was delivered, the relevant part of which reads as follows:

“There are obstacles to further stay of the applicant in the Kielce Detention Centre because he cannot receive neurological treatment there...the result of the electromyography examination (EMG) show a gradual dysfunction of the peripheral nerves ...which qualifies the applicant for neurological surgery that can only be executed in a neurological ward. After the operation and rehabilitation treatment, depending on his neurological state, the patient will be able to continue his detention in the Kielce detention centre”.

On 27 October 2011 the applicant ’ s lawyer requested the Kielce Regional Court to lift the preventive measure applied to the applicant and to release him from detention. The lawyer relied on the applicant ’ s state of health. He referred, among other things, to the fact that the trial court had to order breaks in hearings because the applicant had to rest “in horizontal position”. He also requested that the court order a further examination of the applicant by a specialist in neurology.

On 8 November 2011 the Kielce Regional Court refused the applicant ’ s lawyer ’ s requests. The court held that it had already ordered a medical opinion on 2 November 2011 and that the opinion would be delivered soon. The court further found that the circumstances justifying the applicant ’ s detention had not ceased to exist and that they had already been listed in the court ’ s decision of 21 June 2011. The court did not find it necessary to repeat them.

On 14 November 2011 a fresh opinion of a specialist in neurology was delivered. The doctor found that:

“1. The applicant ’ s further stay in detention and refusal of medical (neurological) treatment may constitute a serious danger for his health or even life.

2. The post-operation rehabilitation should take place in a good rehabilitation ward...it may also take place in detention, however I do not know in which detention centre such ward exists.”

On 14 November 2011 the applicant ’ s lawyer lodged an appeal against the court ’ s decision of 8 November 2011. He requested the court, in case the appeal was not granted, to vary the preventive measure applied to the applicant and to impose bail on him of a “reasonable amount”.

On 22 November 2011 the Kielce Regional Court upheld the challenged decision. The court held that the trial court was aware of the applicant ’ s state of health and that this matter had been taken into account each time the extension of his detention was decided. Apparently the medical expert opinion of 14 November was not yet known to the court.

On 8 December 2011 the Kielce Regional Court acting ex officio released the applicant and imposed another preventive measure on him, namely police supervision. The court found that the grounds originally relied on to impose and extend the applicant ’ s detention still existed. However, given the applicant ’ s state of health, his release was necessary. The court relied on a medical opinion which was eventually completed and issued on 14 November 2011 (see above).

B. Relevant domestic law and practice

1. Medical care in detention facilities

Article 68 of the Constitution, in its relevant part, reads:

“1. Everyone shall have a right to have his health protected.

2. Equal access to health care services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their material situation...”

Article 115 of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) (“the Code”) provides:

“1. A sentenced person shall receive medical care, medicines and sanitary articles free of charge.

2. Prosthesis, orthopedic objects and support measures shall be provided to sentenced persons free of charge if failure of their supply might cause a deterioration of the person ’ s health or prevent the person concerned from serving his sentence. In other cases the above [medical service] shall be provided against payment.

...

4. Medical care is provided, above all, by health care establishments for persons serving a prison sentence.

5. Health care establishments outside of the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular

1) to provide immediate medical care because of a danger to the life or health of a sentenced person;

2) to carry out specialist medical examinations, treatment or rehabilitation of sentenced person;

3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence...”

2. Pre-trial detention

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing other so-called “preventive measures” ( Å›rodki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of KudÅ‚a v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; BagiÅ„ski v. Poland , no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 May 2006.

COMPLAINTS

The applicant complains under Article 3 of the Convention about his conditions of detention and inadequate medical treatment in the detention centre. He further complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand.

QUESTION S TO THE PARTIES

1. D id the applicant ’ s detention amount to inhuman or degrading treatment in breach of Article 3 of the Convention, taking into account the following elements:

- the applicant ’ s conditions of detention, in particular the fact that he used a wheelchair and needed assistance from his inmates each time he wanted to go for a walk;

- the applicant ’ s medical treatment; reference is made to the applicant ’ s statement that he was only prescribed painkillers and had no actual treatment secured. It is undisputed that the state of the applicant ’ s health deteriorated in detention which led to his release on 8 December 2011.

2 . Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?