FOURTH SECTION

Application no. 59739/08 Marek GLIŃSKI against Poland lodged on 3 December 2008

STATEMENT OF FACTS

The applicant, Mr Marek Gliński , is a Polish national who was born in 1961 and is currently detained in Barczewo Prison.

The circumstances of the case

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

1. The applicant ’ s prison sentence and procedure for early release

On 26 August 1997 the Poznań Regional Court ( Sąd Okręgowy ) convicted the applicant of murder and sentenced him to twenty-five years ’ imprisonment. On 13 November 1997 that judgment was upheld by the Poznań Court of Appeal. On 10 December 1998 the Supreme Court dismissed the cassation appeal lodged by the applicant.

The applicant is to finish serving his sentence on 13 June 2020.

The domestic courts tried the applicant on the basis of the 1969 Criminal Code ( Kodeks Karny ) (“the 1969 Code”), which was in force at the relevant time. On 1 September 1998 the 1969 Code was replaced by the new Criminal Code (“the 1997 Code”). The applicant submitted that if the 1969 Code had remained in force or continued to be applicable to his case, he would have been eligible to apply for early release on 13 December 2007. Instead, under the currently applicable 1997 Code that date was set for 13 June 2010.

On an unspecified date in 2008 the applicant applied for early release. He asked the penitentiary court to apply the provisions of the 1969 Code.

By a decision of 29 December 2008 the Włocławek Regional Court discontinued the proceedings concerning the applicant ’ s request for early release. The domestic court observed that under Article 78 § 3 of the 1997 Code a person who had been sentenced to twenty-five years ’ imprisonment was eligible for early release after serving fifteen years of his or her sentence. In the applicant ’ s case, therefore, that date was 13 June 2010. The Włocławek Regional Court also noted that the provisions which regulated the entering into force of the 1997 Code did not allow for the application of the 1969 Code in the applicant ’ s case.

It appears that after 13 June 2010 the applicant applied for early release. On an unspecified date his application was rejected because he was assessed as likely to commit further offences if released.

2. Procedure for the applicant ’ s pardon

By a letter of 15 October 2009 the Poznań Regional Court confirmed that between 2000 and 2009 the applicant had asked for pardon twelve times. His requests were to no avail.

3. Reopening of the criminal proceedings against the applicant

On an unspecified date in early 2006 the applicant ’ s lawyer applied for the reopening of the applicant ’ s criminal case on the ground that new, important evidence had been revealed. The reference was made to a letter from one of the applicant ’ s convicted accomplices, W.G., who had confessed that he had falsely accused the applicant of ordering and participating in the murder of which the men were convicted in 1998.

On 4 July 2006 the Supreme Court dismissed the application for reopening. The Supreme Court noted that W.G. had already made similar submissions in the course of the main trial. The domestic courts, however, had found sufficient evidence to the contrary and convicted the applicant nevertheless. It was held that the letter from W.G. did not constitute “new evidence” within the meaning of the provisions regulating the reopening of criminal proceedings.

4. The course and the conditions of the applicant ’ s detention

The applicant went to prison on 30 June 1995. Since that date he has been transferred fifty-two times between a total of eighteen different detention facilities.

The applicant was detained in the following prisons and remand centres:

Poznań Remand Centre – from 30 June 1995 until 7 January 1998, 30 November 1999 until 12 January 2000, 26 January until 21 June 2000, 22 until 29 November 2000, and from 16 February 2005 until 13 April 2005;

Gębarzewo Prison – from 7 January until 1 October 1998;

Potulice Prison – from 1 until 12 October 1998 and from 8 July until 19 August 2008;

Barczewo Prison – from 12 October 1998 until 30 November 1999, 2 September until 14 October 2003, 8 December 2003 until 16 April 2004, 7 September until 12 October 2004, 21 April until 10 October 2005, 29 November 2005 until 5 April 2006, 16 November 2006 until 5 January 2007, and from 18 October 2011 until the present day;

Warszawa Mokotów Remand Centre – from 12 until 26 January 2000 and from 23 March until 18 April 2007;

Rawicz Prison – from 21 June until 19 or 20 September 2000, 29 November until 13 December 2000, 20 June until 5 December 2001, and from 11 December 2002 until 31 July 2003;

Warszwa Grochów Remand Centre – from 19 or 20 until 21 September 2000;

Warszawa Białołęka Remand Centre – from 21 September until 22 November 2000;

Włocławek Prison – from 19 December 2000 until 20 June 2001, 6 February until 23 March 2007, 18 April 2007 until 20 May 2008, 23 September 2008 until 30 July 2009, and from 1 August 2009 until 18 October 2011;

Sieradz Prison – from 5 December 2001 until 2 July 2002 and from 5 April until 6 September 2006;

Iława Prison – from 2 July until 9 August 2002 and from 3 September until 16 October 2002;

Olsztyn Remand Centre – from 9 August until 3 September 2002 and from 10 October until 29 November 2005;

Kamińsk Prison – from 16 October until 29 November 2002, 31 July until 2 September 2003, 14 October until 8 December 2003, 16 April until 7 September 2004, and from 12 October until 16 November 2004;

Bydgoszcz Remand Centre – from 13 until 19 December 2000, 29 November until 11 December 2002, 13 until 21 April 2005, 5 January until 6 February 2007, 20 May until 17 June 2008, and from 26 August until 23 September 2008;

Bydgoszcz Fordon Prison – from 16 November 2004 until 16 February 2005, 17 June until 8 July 2008, and from 19 until 26 August 2008;

Łódź No. 1 or No. 2 Remand Centre – from 6 September until 6 November 2006;

Sztum Prison – from 6 until 16 November 2006; and

Warszawa Ciupagi Remand Centre – from 10 July until 1 August 2009.

The applicant made a general statement that he had been detained in overcrowded cells in which the statutory minimum standard of 3 sq. metres of floor space per person had not been respected.

5. The applicant ’ s medical condition and treatment

At the beginning of his detention, on 19 July 1995, the applicant was classified as a “category A” healthy prisoner.

He submitted that, because of his lengthy detention in poor living and sanitary conditions and without adequate nutrition and medical care, he had developed very serious health problems and had suffered an almost fatal heart attack.

A medical certificate issued in Kamińsk Prison on 13 August 2003 confirmed that the applicant, who had been complaining of pains and numbness of his arms and legs, and of stomach and liver aches, could continue his detention and medical treatment in Kamińsk Prison as his health and life were not in direct danger. It was also noted that the applicant was suffering from neurosis, pains in his cervical vertebrae and varicose veins.

By a letter of 18 August 2003 the applicant informed the penitentiary judge of the Olsztyn Regional Court that he wished to be examined by an independent medical panel. To justify his request, the applicant submitted that his health had drastically deteriorated since the beginning of his detention and that he could not obtain an accurate diagnosis from the prison doctors. He noted that his earlier gastrointestinal problems had been ignored by the prison doctors for such a long time that, in the end, he had had to undergo three o esophagogastroduodenoscopies ( gastroskopia ). He also alleged that the medication which had been administered to him in prison had been inadequate and that for two years he had not received any medical treatment for his varicose veins. The applicant submitted that he had not been feeling well. He had been experiencing pains in his neck, bruising of his arms and face and light-headedness.

On 26 August 2003 the applicant had a heart attack. C ardiopulmonary resuscitation was performed and he was taken to hospital in Bartoszyce . On 27 August 2003 the applicant was taken for further treatment to the Regional Cardiological Hospital in Olsztyn (hospital records of 27 August 2003). According to the medical records of Olsztyn Regional Cardiological Hospital , on the same day the applicant refused to undergo coronary catheterisation and was transferred back to the prison hospital in Barczewo .

On 4 November 2003 the penitentiary judge of the Olsztyn Regional Court informed the applicant that there were no grounds for him to intervene with respect to the applicant ’ s medical treatment in prison.

On 2 December 2003 the applicant was admitted to the Olsztyn Regional Cardiological Hospital where he underwent coronary catheterisation, a mi n imally invasive procedure to widen his coronary arteries.

According to the hospital records of 3 December 2003 the applicant developed angina pectoris ( angina pozawałowa ).

According to the medical certificate issued by a doctor of Barczewo Prison ’ s Health Establishment ( Zakład Opieki Zdrowotnej ) on 18 May 2004, the applicant ’ s condition was stable. The patient required long-term pharmacological treatment, although his condition was not likely to be cured. The certificate also stated that prisoners no longer received health categories.

It appears that on an unspecified date in 2004 or 2005 the applicant was certified as a disabled person of an unspecified degree, permanently unfit to work.

On 14 July 2006 the applicant was examined by a cardiologist from the Łódź Cardiological Clinic (Dr D.P.-S.) who came to Sieradz Prison at the applicant ’ s request. On the same day the doctor informed the penitentiary judge of the Sieradz District Court that the applicant ’ s ischaemic heart disease was in an acute phase. The deterioration of the applicant ’ s condition was to be attributed to his heart attack of 2003 and the fact that he was under a lot of stress. The doctor recommended that the applicant be subjected to a “more friendly form of punishment”, namely that he be transferred to a semi-open prison. It was also suggested that the authorities should consider sending the applicant to a sanatorium where his heart could be properly monitored. The doctor pointed out that in the conditions of Sieradz Prison the applicant could not be examined with an electrocardiograph whenever his condition required it. Neglecting the applicant ’ s medical supervision would be, in the doctor ’ s opinion, a mistake because the applicant was likely to suffer another heart attack. Lastly, the doctor noted that placing the applicant in a prison hospital was not recommended because the applicant did not trust the prison medical staff after their failure to prevent his first heart attack in 2003.

On 14 November 2010 the parole board of Włocławek Prison decided that the applicant should continue serving his sentence in a closed prison. It was noted that because of his changing behaviour, long sentence, the nature of the offence of which he had been convicted and the assessment that he was likely to reoffend if released, the applicant did not qualify to be detained in a semi-open prison.

6. The applicant ’ s religious practice in prison

The applicant is a Jehovah ’ s Witness. He made a general submission that the prison authorities did not allow him to participate in religious services together with other followers of that religion at liberty, at the “Kingdom Hall” ( Sala Królestwa ). He also noted that a representative of the Jehovah ’ s Witnesses preached in the prison ’ s entertainment room once a week but no proper religious services for Jehovah ’ s Witnesses were available in prison.

On an unspecified date the applicant applied for a five-day period of unescorted leave from prison ( zezwolenie na czasowe opuszczenie zakładu ) to attend the congress of the Jehovah ’ s Witnesses. The applicant submitted that he was a practising member of that religious group.

On 8 July 2010 the Włocławek Regional Court issued an order ( zarządzenie ) not to grant the request. It was noted that the applicant was able to and did indeed sufficiently practise his religion in prison. It was also observed that he had been convicted of a serious criminal offence and still had a long sentence to serve. In addition, it was pointed out that in August 1998 the applicant had been found to be planning an escape from Gębarzewo Prison. In the light of these circumstances, the domestic court considered that there was a high risk that the applicant would not report back to prison if the leave was granted to him.

7. The applicant ’ s treatment for alcohol addiction

The applicant made a general statement that he had undergone forced treatment for his alcohol addiction. To that effect he submitted a note according to which on 17 November 2009 an unspecified decision concerning the treatment of the applicant ’ s alcohol addiction was taken by the penitentiary judge of the Włocławek Regional Court .

As established by a domestic court in the course of the civil proceedings described below, in December 2007 the Włocławek Prison parole board decided that the applicant should undergo therapy for alcohol addiction, scheduled for 2009. The applicant appealed against that decision to the Regional Court but his appeal was rejected as lodged out of time.

It is unclear whether or not the applicant in fact underwent the impugned therapy in prison.

8. The applicant ’ s actions concerning his prison conditions and the quality of medical care provided to him

(a) Complaints to the prison authorities

The applicant submitted that he had lodged many complaints about the conditions and various other aspects of his detention, including his frequent transfers and the quality of medical care. They were all to no avail.

On 21 August 2009 the Bydgoszcz Regional Inspectorate of the Prison Service (the Inspectorate) ( Okręgowy Inpsektorat Służby Więziennej ) confirmed that since 1998 the applicant had lodged twenty-one complaints to the prison authorities.

On 20 August 2009 the Warsaw Inspectorate confirmed the receipt of eighteen such complaints.

On 17 March 2009 the Central Board of the Prison Service ( Centralny Zarząd Służby Więziennej ) confirmed that between 2005 and 2008 the applicant had filed fifteen such complaints. The applicant ’ s earlier complaints were no longer listed in the Board ’ s register.

(b) Civil actions

The applicant submitted that he had lodged many civil actions concerning the overcrowding, general living conditions and the quality of medical care provided to him during his detention.

( i ) Case no. IC 84/07

On an unspecified date the applicant brought a civil action against the State Treasury and Włocławek Prison, seeking compensation on account of the alleged overcrowding and the authorities ’ failure to ensure he had access to sufficient outdoor exercise, and medical treatment and nutrition appropriate to his health requirements (no. IC 84/07).

On 10 September 2008 the Włocławek Regional Court dismissed the applicant ’ s action. The court established the following facts.

The applicant has been deprived of his liberty since 13 June 1995. From 19 December 2000 until 20 June 2001, 6 February until 23 March 2007, and from 18 April 2007 until 18 August 2008 he was detained in Włocławek Prison.

During the second above-mentioned period the applicant was held in a cell in the prison hospital ’ s “S” wing.

During the third above-mentioned period, from 22 until 29 May 2007, the applicant was detained in a cell in “D” wing. The cell in question measured 18.6 square metres and was designed for six prisoners. At his request, the applicant was transferred back to “S” wing, where he was detained in cells nos. 302 and 314, both measuring nearly 10 sq. m. For the most part, the cells in question were shared by three prisoners including the applicant (3 sq. m per person). From 5 until 19 June, 5 until 18 July, 7 until 22 August and from 21 until 24 September 2007, the cells in question were shared by four prisoners including the applicant (2.5 sq. m per person). From 5 until 19 September and from 2 October until 8 November 2007 two persons including the applicant were detained in those cells (5 sq. m per person). The cells in question were equipped with a cold water tap. They were damp because the prisoners did their laundry and cooked inside the cells. As a result, the walls of those cells were partly covered with mould. The applicant ’ s cells were repainted in the summer of 2006. Because of the poor ventilation, the cells in question were cold in wintertime (20 degrees Celsius) and hot in the summer. In January 2007 the applicant complained to the prison authorities about all the above-mentioned elements of his detention conditions.

As for the applicant ’ s medical condition, the domestic court made the following findings of fact. In 2003 the applicant had a cardiac arrest and was treated by coronary catheterisation. As a consequence, the applicant developed chronic ischaemic heart disease and hypertension. From the beginning of his detention in Włocławek Prison, the applicant was provided with permanent care by the prison medical staff. In compliance with the applicant ’ s wish (expressed on an unspecified date in writing), the applicant remained under the care of a private cardiologist of his own choosing. The applicant received medication and underwent specialised medical tests in compliance with his doctor ’ s orders. The applicant refused to undergo some of the recommended examinations. On an unspecified date the applicant was taken to a civil hospital in Warsaw , were he had a series of cardiological check-ups. He was then transferred back to Włocławek Prison, as further hospitalisation was considered unnecessary in view of the applicant ’ s stable condition. The domestic court further found that the applicant ’ s heart disease, including his cardiac arrest, was idiopathic. It was caused by genetic conditions and the fact that he was a heavy smoker. His health condition was in no way related to his detention. In Włocławek Prison the applicant was on a controlled, light diet. He had the statutory one hour of outdoor exercise per day and was eligible for an additional hour if he so wished. The applicant did not make use of the prison ’ s gym even though this was open to him.

The domestic court examined the applicant ’ s claim under Articles 445 and 448 of the Civil Code in conjunction with Articles 23 and 234 of that Code. The court obtained a report from an expert cardiologist and examined the submissions of two of the prison ’ s medical staff members.

The court noted that the applicant had not had the statutory minimum standard of 3 sq. m of cell space per person only for forty-five days of the eighteen months of his detention in Włocławek Prison. The practice was, nevertheless, in accordance with Article 248 of the Code on the Execution of Criminal Sentences. It was considered that the applicant ’ s health had not been affected either by that short-term overcrowding or by the excessive humidity and mould in his cells. The latter was not a result of the authorities ’ actions or omissions (since the prison was renovated in 2006) but of the prisoners ’ cooking and doing laundry inside the cells.

On the issue of the applicant ’ s medical care and his health, the domestic court affirmed the medical expert ’ s report and concluded that the applicant had received extensive, regular and specialised medical care appropriate to his health requirements. The applicant ’ s heart disease, including his cardiac arrest, was considered idiopathic, meaning that it was caused by genetic conditions and the fact that the applicant was a heavy smoker.

Lastly, the Włocławek Regional Court held that, in view of the above, the applicant ’ s personal rights such as his health, dignity and life had not been infringed. The applicant appealed.

On 18 December 2008 the Gdańsk Court of Appeal upheld the first-instance judgment. A cassation appeal was not available.

(ii) Case no. (no. 98/07).

The applicant also brought a civil action for compensation and for a disability pension on account of the alleged damage to his health caused by the inadequate conditions and medical treatment in Włocławek and Kamińsk Prisons. He was represented, in the course of these proceedings, by a legal-aid lawyer.

On 7 November 2008 the Włocławek Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s claim on the merits (no. 98/07).

On the basis of various medical documents, the report of an expert cardiologist and the submissions of the applicant and two prison staff members, the domestic court established the following facts.

During his detention in Włocławek Prison from 19 December 2000 until 20 June 2001, the applicant was seen by doctors and received extensive medical treatment and care. In particular, the applicant was treated for throat infections, ulcers and mycosis. He had specialised scans of his stomach and thyroid. He was also seen by a neurologist. When the applicant was diagnosed with gastritis, he was put on a special diet. The applicant, however, complained about the new diet and did not quit smoking.

During his detention in Kamińsk Prison, from 16 October until 29 November 2002 and from 31 July until 2 September 2003, the applicant was free to have daily outdoor exercise for one hour, use the gym and to spend time in an entertainment room. The prison ’ s medical staff comprised four doctors, including an anaesthesiologist. The prison was equipped with a defibrillator, oxygen mask, electrocardiograph and an ambulance.

On 12 August 2003 the applicant was examined by a prison doctor because he was complaining of numbness and pains in his arms. The examination did not reveal any worrying symptoms.

On 26 August 2003 the applicant had a heart attack. His circulation and breathing stopped. Cardiopulmonary resuscitation was performed, first by a warden and then by the prison ’ s medical staff. Three or four minutes into the applicant ’ s cardiac arrest, a defibrillator was used. Within twenty minutes the applicant was transported in the prison ’ s ambulance to a civil hospital in Bartoszyce .

The applicant argued that he had suffered cardiac arrest because the staff of Włocławek and Kamińsk Prisons had been negligent and had not performed the necessary specialised medical examinations despite his manifesting serious symptoms prior to 26 August 2003.

The Włocławek Regional Court examined the applicant ’ s claim under Article 417 of the Civil Code.

Based on the material gathered in the case the domestic court considered that the applicant had failed to demonstrate a causal link between his heart attack and the alleged actions or omissions of the staff of Włocławek and Kamińsk Prisons. It was noted that the applicant had been detained in Włocławek Prison for only six months, more than two years prior to the date of the medical incident in question. As for Kamińsk Prison, the domestic court fully affirmed the expert ’ s medical report and held that the ailments of which the applicant had been complaining prior to the incident were not, from the point of view of established medical principles , the symptoms of heart disease. Moreover, a specialised medical scan which could reveal an approaching cardiac arrest was not yet available to the medical profession. Lastly, the domestic court noted that the applicant himself had contributed to the deterioration of his health by being obese, a heavy smoker and by not exercising in the prison gym.

On 5 February 2009 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal lodged by the applicant against the above-mentioned judgment (no. IACa 9/09). The appellate court fully upheld the findings of fact made by the first-instance court.

On 7 September 2009 the applicant ’ s legal-aid lawyer informed the applicant in writing that she had not found any grounds to lodge a cassation appeal against that judgment.

(iii) Case no. ICo 91/09

Lastly, the applicant brought a civil action against the State Treasury concerning overcrowding ( ICo 91/09). The outcome of these proceedings is unknown.

(c) Criminal proceedings against third parties

It appears that the applicant attempted to institute a number of sets of criminal proceedings against the medical staff of various detention facilities. These proceedings were to no avail.

COMPLAINTS

The applicant complains under Article 3 of the Convention of the inadequate conditions of his detention, in particular the overcrowding of his cells and his frequent transfer between different detention facilities.

He also complains under the same provision that the medical care provided to him since the beginning of his detention has been inadequate to his health requirements and has led to the deterioration of his medical condition and an almost fatal cardiac arrest in 2003.

In addition, the applicant complains under Article 9 of the Convention that the authorities have failed to provide him with sufficient opportunity to practise his religion in prison.

Moreover, the applicant complains, without invoking any provisions of the Convention, that even though he was convicted under the 1969 Criminal Code, the conditions of his early release are regulated by the new 1997 Code. In particular, the applicant argues that if the 1969 Code had remained in force or continued to be applicable to his case, he would have been eligible to apply for early release on 13 December 2007. Instead, under the currently applicable 1997 Code that date was set for 13 June 2010.

The applicant also complains about the refusals of different domestic authorities to grant him short leave from prison or a pardon.

The applicant further complains under Article 6 of the Convention about the Supreme Court ’ s refusal to reopen his criminal case.

Lastly, the applicant makes a general complaint about being allegedly forced by the domestic authorities to undergo treatment for alcohol addiction in prison.

QUESTIONS TO THE PARTIES

With respect to the applicant ’ s complaint about the living and sanitary conditions of his detention and about the frequency and the number of his transfers,

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Does the applicant ’ s detention amount to inhuman or degrading treatment in breach of Article 3 of the Convention?