DISSENTING OPINION OF MR M. A.  NOWICKI

AS REGARDS ARTICLE 3 OF THE CONVENTION, JOINED BY MM C.ROZAKIS, J.-C. GEUS, I. CABRAL BARRETO,  K. HERNDL, E.ALKEMA, M. VILA AMIGÓ AND MS M.HION

We are unable to agree with the conclusions of the majority in the present case for the following reasons.

The majority consider that the applicant’s detention on remand and the conditions thereof did not amount to a treatment which should be deemed contrary to Article 3 of the Convention.

Whereas we accept the Government’s argument that the applicant’s age could not as such be regarded as a factor which would exonerate him from criminal responsibility or prevent him from being put in detention, we find it necessary to emphasise that the applicant's condition at his arrest was so grave as to warrant an immediate hospitalisation. He remained in the prison hospital throughout the entire period of his detention. It was established upon his admission that he suffered from cardiovascular insufficiency, had been taking relevant medication and that he had chronic constriction of oesophagus. His condition necessitated that he be kept on a half-liquid diet as he could not keep the food served in prison. Consequently, the applicant was fed by intravenous drip on a continuous basis. He received about one hundred thirty drips. As a result of drips having been administered, painful inflammation of veins developed.

We further take note of the Government’s submission that the applicant’s medical records confirm that his condition was not incompatible with his continued detention. Nevertheless, the Government have not submitted documents or detailed arguments in support of this submission.  What is more, this submission is incompatible with the opinion given by the medical panel of 16 September 1994, that, given his age and bad health, the applicant was not fit for detention.  We have further noted that, in a letter to the prosecutor of 7 October 1994, the chief physician of the internal medicine department at the prison hospital stated that the applicant could remain in detention and continue his treatment in the prison hospital. The Warsaw Regional Court, in its decision of 2 November 1994 by which it dismissed the applicant's appeal against the decision to maintain his detention, referred to the applicant’s advanced age and bad health. However, the court dismissed his request for release, relying principally on the medical opinion of 7 October 1994. Our attention has in particular been drawn to the fact that the court did not explain, in the written grounds of its decision, reasons for which it was this medical opinion that prevailed, whereas that of 16 September 1994 was completely disregarded.

We also had also regard to the contents of the medical certificate of 14 December 1994, issued on the applicant’s request by the Warsaw- Mokotów prison hospital after his release. It was stated in this certificate that the applicant was not fit for detention and that he should undergo a further hospital treatment since his condition required constant medical care. In his submissions to the Commission the applicant emphasised that it was his detention which led to the deterioration of his health. He has also stated that before his detention his condition was satisfactory and did not require constant medical care. Therefore we conclude that, in the light of the medical certificate referred to above, the applicant’s argument that his detention resulted in the deterioration of his health cannot be dismissed.

It is further to be stressed that, at the time of his arrest, the applicant was recognised as being partly disabled and later, in June 1995, he acquired legally recognised status of a fully disabled person. We acknowledge that the applicant did not adduce detailed medical evidence to show the causal link between his deprivation of liberty and the subsequent acquisition by him of the status of a fully disabled person. Nonetheless, in particular in the light of our above consideration concerning the applicant’s condition at the time of his release, we are of the view that it cannot be ruled out that his detention contributed to the deterioration of his health such as led later to the official acknowledgement of his full disability,

We have, finally, had regard to the applicant’s submission that in view of his age, frailty and bad health, his detention was highly traumatic to him. We thus conclude that the invasive and long-term medical treatment in the prison hospital, in particular the protracted feeding by intravenous drips and its consequences in the form of inflammation of veins, caused him acute suffering, such as to fall within the scope of Article 3 of the Convention.

( Or. English)