FOURTH SECTION

Application no. 55177/12 Janusz DRWIĘGA against Poland lodged on 18 June 2012

STATEMENT OF FACTS

The applicant, Mr Janusz Drwi ę ga , is a Polish national, who was born in 1968 and is currently detained in Łupków Prison .

A. The circumstances of the case

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

1. The applicant ’ s health and medical care in detention

The applicant has been detained since 8 March 2009. First, he was detained in Lublin Remand Centre. On 19 October 2009 he was transferred to Rzeszów Prison and on further unspecified time to Łupków Prison, where he continues to be detained.

The applicant suffers from HIV and Hepatitis C (HCV) .

O n 11 September 2002 the applicant has been diagnosed with HIV and on 3 October 2002 with HCV.

The applicant submits that the medical care provided to him is insufficient and he should rather be treated at liberty. In particular, he submits that his state of health worsened. He submitted test results for the level of HIV copies per ml. Accordingly, the level of copies increased from 71 in November 2011 to 4,052 in February 2012 and to 27,238 in June 2012.

From the documents in the case file it appears that the applicant has been examined in the Krakow Immune Deficiency Clinic ( P rzychodnia nabytych niedoborów odpornoś ci ) twice a year.

According to the doctor ’ s note of 25 January 2012 the applicant had been receiving antiretroviral therapy (ART) since the beginning of 2011 and his overall state of health was good. The tests done in 2011 showed that the number of HIV copies per ml fluctuated between 71 and 383. The doctor prescribed further tests.

According to the doctor ’ s note of 13 July 2012 the ART appeared to be ineffective. Change of therapy was advised. Also, due to the applicant ’ s overall poor state of health a neurological consultation was advised.

As per doctor ’ s note of 18 October 2012 the applicant suffered multiple pains. A weight loss was also recorded. Neurological consultation was again recommended as well as cancer screening. Based on an antiretroviral drug resistance report of 24 September 2012 (which showed the applicant ’ s resistance to some types of drugs) a change was recommended in the ART.

2. The proceedings in which the applica nt sought leave from serving a prison sentence

The applicant sought temporary leave from prison on account of his poor health. He lodged his application in July 2011.

On 18 August 2011 the Krosno Regional Court ( Sąd Okręgowy ) refused to grant him such leave. The domestic court considered that adequate medical care and treatment could be provided to the applicant within the prison system. Reference was made to the medical certificate of 29 July 2011 according to which the applicant had been under continuous supervision of the Krakow Immune Deficiency Clinic. The domestic court further relied on the opinion of the prison doctor according to which the applicant ’ s condition allowed to continue treatment in detention.

The applicant lodged an interlocutory appeal.

On 15 September 2011 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) quashed the decision of 18 August 2011 and remitted the case. The appellate court held that, in the light of the applicant ’ s submissions his state of health had worsened and that it was necessary to examine whether the treatment implemented by the prison medical services complied with the treatment prescribed by the Krakow Clinic and whether the applicant ’ s state of health allowed him to continue serving a prison sentence.

On 8 November 2011 the Zamość Regional Court refused to grant temporary leave from prison. The applicant appealed. It appears that the decision was quashed and the case remitted for re-examination.

Finally, on 28 May 2012, the Rzeszów Court of Appeal examined the applicant ’ s appeal against the Krosno Regional Court ’ s decision of 13 April 2012 refusing to grant the applicant leave. The appellate court dismissed the applicant ’ s interlocutory appeal. The court relied on a note which had been issued by a doctor of the Łupków Prison Medical Centre ( oś rodek zdrowia ). According to the note the applicant could continue his treatment in detention. The domestic court concluded that the applicant had been under continuous medical supervision and could continue serving his prison sentence.

B. Relevant domestic law and practice

The legal provisions concerning medical care in prison and detention of ill prisoners are set out in the Court ’ s judgment in the case of Sławomir Musiał v. Poland , no. 28300/06, §§ 48–61, 20 January 2009 and in paragraphs 30-37 of the judgment delivered by the Court on 20 September 2011 in the case of Mirosław Zieliński v. Poland , no. 3390/05 .

COMPLAINT

The applicant complains without invoking any Article of the Convention that the medical care provided to him within the penitentiary system was inadequate and that his health condition has deteriorated .

QUESTION TO THE PARTIES

Does 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 numerous health problems,

- the quality of the medical care provided within the penitentiary system.