DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I cannot share the majority view in this case.

2. To my mind the issues under Articles 3 and 5 § 3 should have been kept separate and distinct. Whereas the main issue under Article 5 § 3 is whether the judicial authorities had properly weighed all the relevant facts and circumstances in order to decide whether or not to release the applicant on bail pending the proceedings against him (or, in the instant case, to decide whether or not to prolong his detention), the issue for the purposes of Article 3 is whether the State – represented in this case by the authorities directly responsible for his detention, that is the detention or prison authorities – had done all that was reasonably possible to alleviate the applicant ’ s pain while in detention.

3. I would have found no difficulty in finding a violation of Article 5 § 3. The Polish courts cavalierly dismissed or ignored on many occasions the fact that the applicant was not only wheelchair bound but had an additional serious health problem. They repeatedly refused to properly put into the equation, for the purpose of deciding on the release or otherwise of the applicant, his overall physical condition. Even when, rather late in the day (see para graph 25), the Kraków Court of Appeal took the trouble to consider at some length the applicant ’ s general medical condition, it wrongly equated his main health problem – which was basically the condition engendering bouts of severe pain in the applicant, with the correlative decrease in his ability to act in a way capable of frustrating the proper administration of justice in the proceedings against him – with “a threat to [his] life or health”. It simply missed the wood for the trees.

4. As to Article 3, on the other hand, I am satisfied that the authorities at the places where the applicant was detained did all that was reasonably possible to alleviate his pain. The applicant, it must be remembered, arrived in the detention centres with a medical or health condition pre-existing his arrest. The Court has already had occasion to observe that Article 3 should not be construed as laying down a general obligation to release detainees on health grounds; rather it imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among others, providing them with the requisite medical assistance (see, among others, Mouise l v. France , no. 67263/01, § 40, ECHR 2002 IX). Moreover, the medical care that the applicant was entitled to receive while in detention was the standard level of health care available t o the population generally (see Kaprykowsk i v. Poland , no. 23052/05, § 75, 3 February 2009), and not some form of extraordinary medical care, particularly so when his life was not at any time at risk. First (at the Warsaw Detention Centre Hospital), difficulties were encountered to obtain the morphine to fill the pump (when this was still in working order); the pump was filled with a solution to keep it in working order and the applicant was given a particular drug to alleviate the pain (se e paragraph 34). After the pump broke down and it was evident that the best solution was to have a new one implanted rather than to administer painkillers in a different way, the detention centre authorities (this time of the Kraków Detention Centre Hospital) sought to find a hospital where the implanta tion could take place (see paragraph 42). Several replied in the negative, but two Polish hospitals stated that they were able to replace the pump (one of the two later withdrawing the offer “for technical reasons”). Why the implantation was not performed by the other hospital before the applicant ’ s release we simply do not know. When the applicant was released, he travelled to Germany to have the pump implanted there, was put off by the cost, went back to Poland , and the implantation was effected by the Kraków University Hospital on the 13 August 2009 (almost three months to the day after his release).

5. In the opinion of the majority it is stated (second part of paragraph 63): “The Court acknowledges the difficulty encountered by the authorities in finding a medical centre prepared to carry out this kind of intervention.” To say, however, that it was the detention authorities ’ (or the State ’ s) fault, or that it was due to their lack of diligence, that these attempts did not produce “any concrete and prompt improvement for the applicant” is, in my view, to jump to unwarranted conclusions – as is unwarranted the assertion in paragraph 64 that the State was at fault for not making it possible for the applicant to have a morphine pump implanted. It is quite evident that the intervention necessary for the implantation of such a pump cannot be equated to a simple tooth extraction or other run of the mill intervention.