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FOURTH
SECTION
CASE OF KUPCZAK v. POLAND
(Application
no. 2627/09)
JUDGMENT
STRASBOURG
25
January 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kupczak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ledi Bianku,
Mihai
Poalelungi,
Vincent A. de Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2627/09) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Edward Kupczak (“the
applicant”), on 22 December 2008.
- The
applicant was represented by Mr J. Znamiec, a lawyer practising in
Kraków. The Polish Government were represented by their Agent,
Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that he had not been offered
adequate medical care while in custody.
- On
9 March 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
The President also gave priority to the application, pursuant to Rule
41 of the Rules of the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Kraków.
A. The criminal proceedings
- In
1998 the applicant was in a car accident which left him disabled. He
suffered a fracture of the spine which resulted in paraplegia. He was
also diagnosed with paralysis of the urethral and anal sphincters.
Since then the applicant has suffered from severe back pain and
sudden pain in the legs. From 2000 until 29 October 2006 the
applicant had been using a special morphine pump made for him in
Germany which had been implanted in his body and infused morphine
directly into his spinal fluid.
- On
26 October 2006 the applicant was arrested by the police.
- On
27 October 2006 the Kielce District Court decided to remand him in
custody in view of the reasonable suspicion that he had been leading
an organised criminal gang, the “Kantor Wielopole” group,
specialising mainly in money laundering and usury. The applicant's
lawyer argued before the court that the applicant's state of health
was incompatible with detention. However the court considered that
the applicant could be detained and that the morphine pump he had
been using could be managed in the detention centre. In particular,
the doctors from the detention centre would be able to operate the
pump and refill it with morphine.
- The
applicant appealed against the decision.
- On
23 November 2006 the Kielce Regional Court dismissed his appeal. The
court considered that if the applicant continued to receive treatment
for his pain he could stay in detention.
- After
the applicant's arrest the morphine in his pump ran out, but the
detention centre authorities filled it with sodium chloride (saline
solution) as a substitute to keep the pump working.
- The
applicant's lawyer requested an expert opinion to evaluate his
client's state of health. He submitted that the court, when deciding
on his detention, had been misled by the detention authorities as
regards the functioning of his pump, and the expert opinion could
clarify the importance of the latter in the treatment of the
applicant's chronic pain.
- On
24 January 2007 the applicant's detention was extended by the Kraków
Regional Court. The court also dismissed the applicant's lawyer's
request for an expert opinion. As regards the applicant's state of
health, the court expressed, in one sentence, the opinion that it was
not incompatible with detention. An appeal by the applicant against
this decision was dismissed on an unspecified date.
- On
16 April 2007 the applicant's detention was further extended. The
court relied on the risk that a severe sentence would be imposed and
on the possibility that the applicant would interfere with the proper
course of the proceedings. As regards the applicant's state of
health, the court reiterated that he had available to him a
specialised machine to administer the painkiller – the morphine
pump – and that it was thus possible to treat him in the
detention centre. Specialist cleaning of the pump would take place in
the near future in the civil hospital in Radom or in the Warsaw
Prison hospital. The court made no reference to the fact that the
pump had not been working properly for at least four months.
- The
applicant appealed against this decision. He argued that the pump had
not been functioning properly since the beginning of his detention,
as it had not been possible for the detention centre to refill the
pump with the special mixture of morphine and other drugs put
together individually for the applicant in a clinic in Germany. In
place of the morphine the pump had been refilled with an ordinary
saline solution, which had no painkilling properties. Instead, the
applicant had been receiving strong painkillers (opiates) orally and
as injections, which were addictive and had not been properly adapted
to his needs. This treatment did not provide sufficient relief from
pain; moreover, it caused narcotic stupor and possible dependence.
- The
applicant's appeal against this decision was dismissed on 11 May
2007 by the Kraków Court of Appeal. It found that the
applicant's lawyer had not substantiated his argument that the
applicant's medical care was inadequate.
- On
17 April 2007 the Kielce Regional Prosecutor dismissed the
applicant's request for a comprehensive examination by specialists in
several medical fields and a medical opinion on his state of health.
- On
23 July 2007 Kraków Regional Court further extended the
applicant's pre-trial detention. The court repeated previously raised
arguments almost word for word, namely that the applicant possessed
a morphine pump which made his treatment in the detention centre
possible.
- The
applicant appealed against the decision, but on 8 August 2007 the
Kraków Court of Appeal dismissed the appeal without making any
reference to the applicant's state of health.
- On
11 October 2007 the Kielce Regional Prosecutor dismissed the
applicant's application to have the investigation stayed because of
his state of health.
- The
applicant's pre-trial detention was further extended in October 2007
and on 21 April 2008 by the Kraków Regional Court. In the
latter decision the court stated as follows:
“As regards the state of health of [the applicant]
the Detention Centre had not yet submitted their position on whether
there had been circumstances posing a threat to the applicant's life
or health. Such a threat could not be credibly invoked by reference
to his [morphine pump] breakdown as it had happened a long time ago
and the Detention Centre had not informed [the court] of any negative
consequence for the applicant's life and health (except for stating
that he was suffering pain). It should also be added that the court
ordered an expert opinion on neurology to assess whether continued
stay of [the applicant] in detention posed a threat to his life or
health...”
- On
2 September 2008 the same court dismissed the applicant's request for
release.
- On
an unspecified date the applicant was indicted before the Kraków
Regional Court.
- On
8 October 2008 the Kraków Regional Court requested the Kraków
Court of Appeal to extend the applicant's detention beyond the
statutory time limit of two years laid down in Article 263
§ 3 of the Code of Criminal Procedure (Kodeks postępowania
karnego).
- On
24 October 2008 the Kraków Court of Appeal allowed the request
and extended the applicant's pre-trial detention until 30 May 2009.
The court relied on a reasonable suspicion against the applicant, the
severity of the penalty that might be imposed and a risk that he
would interfere with the proper course of the proceedings. As regards
the applicant's state of health the court held as follows:
“Pre-trial detention does not pose a threat to the
life or health of any of the co-accused, including [the applicant].
[The applicant] has been suffering severe pain since a fracture of
the spine ten years ago, for which there is no treatment other than
palliative care consisting of painkillers. Although efforts to
implant a morphine pump have taken some time, [the applicant] is
under the care of the prison health service, he takes opiates orally
and the court always checks whether [the applicant] is able to
participate in the trial. It cannot thus be said that [the
applicant's] detention poses a threat to his life or health, and this
has been confirmed by the expert opinions. It would not be correct to
assume that [the applicant] has been subjected to inhuman or
degrading treatment, because the authorities have displayed due care
in protecting [the applicant's] health and in preventing his
suffering, as they have created special conditions for his outdoor
exercise, allowed him to buy food during his hunger strike, examined
him (unless he opposed it, claiming that it was pointless), treated
him by administering painkillers and taken steps to implant a new
morphine pump.
However, since the suffering of [the applicant] is real
and he has raised the possibility of having a procedure outside
Poland which would bring it to an end, the situation should be
resolved decisively so that justice is not achieved by [tolerating]
the suffering of a human being. From the correspondence relating to
the Detention Centre's efforts it is not clear whether it is actually
possible to carry out the medical intervention needed by [the
applicant] and whether the drugs administered orally cause harmful
side effects. Therefore the Court of Appeal instructs the Regional
Court, which is supervising the applicant's pre-trial detention, to
urgently confirm with the Central Administration of Prisons
(Centralny Zarząd Zakładów Karnych) whether
the Polish prisons are able to continue [the applicant's] detention
without allowing his health to deteriorate, by organising a medical
intervention that would allow the proper functioning of the morphine
pump so that the pain suffered by [the applicant] would be at least
substantially diminished. If the prison authorities are not able to
secure the above and [the applicant] continues to suffer, the
pre-trial detention should not be continued because it would become
non-humanitarian. Even if [the applicant] were guilty of the crimes
he is charged with, were to receive a severe punishment, or, if
released, were to avoid justice, it would not be correct to achieve
an act justified in the interests of justice by tolerating suffering
which (allegedly) could have been prevented...”
- An
appeal by the applicant against the decision was dismissed by the
Kraków Court of Appeal on 13 November 2008.
- At
the hearing on 14 May 2009 the Kraków Regional Court decided
to lift the applicant's pre-trial detention. The court decided that
the detention of the applicant and his two co-accused was no longer
necessary, particularly since eleven other co-accused had already
been released. The court also found that the argument of severity of
the possible sentence lost its importance with the lapse of time,
relying on the case-law of the Court, and that detention should not
amount to anticipation of the penalty of imprisonment. Similarly, it
did not consider the risk of the applicant and other co-accused
interfering with the course of proceedings decisive for extending the
measure against them. As regards the state of health of the
applicant, the court indicated that surgery was imminent and that
this justified release. The court acknowledged that for a long time
the prison authorities had been attempting to find a solution for the
applicant, who at the same time had been telling them he was
suffering pain. As a result, the situation could justify the Court of
Appeal's conclusion on 24 October 2008 that his pre-trial detention
amounted to an inhumane measure and that “it would not be
correct to achieve an outcome justified in the interests of justice
by tolerating his suffering”.
- The
applicant was released and travelled to a hospital in Germany, but
given the high cost of the intervention he decided to have the new
pump implanted in Poland.
- On
13 August 2009 the applicant had a new morphine pump implanted in the
Kraków University Hospital.
- On
23 September 2009 the Kraków District Court decided to impose
a preventive measure on the applicant, prohibiting him from leaving
the country and ordering the seizure of his passport. The applicant's
trial is pending.
B. The medical certificates
- A
medical expert opinion of 31 May 2004, issued by the Jagiellonian
University Chair of Forensic Medicine, sets out, in so far as
relevant:
“[Since the applicant's accident, despite having
undergone numerous operations, he still suffers severe pain] and as a
result has had a pump implanted which administers morphine
twenty-four hours a day. However, as he submits, there are days when
the pain is more severe and he injects additional doses of morphine
himself. It should be made clear that a person suffering from chronic
pain, no matter what the cause, who is treated with morphine in a
stable dose administered by a pump, is able to function normally in
society and would be able to take part in a trial. However, in the
present case, when his pain worsens [the applicant] takes additional
doses of morphine, which can change his perception of reality and in
particular can influence the statements he makes. Also, according to
[a medical certificate the applicant] is due to undergo another
operation on his spine ... Taking the above into account it is
established that [the applicant] is unable to participate in criminal
proceedings for a period of six months (niezdolny do czynności
procesowych).”
- The
certificate issued on 15 December 2005 by the same Chair of Forensic
Medicine confirmed that the applicant was unable to participate in
the criminal proceedings for a period of twelve months.
- A
medical opinion of 26 October 2006 confirmed that the applicant, who
had been treated with the morphine pump, could participate in the
proceedings but might need a break during questioning in the event of
severe pain. The expert considered that a detention centre could not
provide the necessary medical care and that the appropriate place to
detain him would be a prison hospital.
- An
information card from the Warsaw Detention Centre Hospital of
8 November 2006 confirmed that there were difficulties in
obtaining the morphine needed to fill up the pump; therefore, the
pump was filled up with sodium chloride to
keep it functioning. The applicant was treated with the painkiller
Tramal.
- An
information card of 27 January 2007 from Radom Hospital confirmed
that the applicant's pump, during a period of three months, had been
filled up with saline solution.
- It
appears from a medical certificate of 16 November 2007 that the
applicant's morphine pump was filled up with morphine on 25 September
2007. From the documents invoked below, it is clear that there had
been some irregularities in the functioning of the pump and it broke
down either in October or November 2007.
- On
31 January 2008 the head of the surgical unit of the Kraków
Detention Centre Hospital wrote to the Kraków Regional Court
in reply to that court's questions. He informed the court that the
applicant was not a patient in the unit but that he had been placed
there due to the fact that there was no suitable cell for a disabled
person in the detention centre.
“4. The present state of health of the
applicant allows his stay in a prison, to be indicated by a court,
which has a cell for disabled persons and on condition that his
morphine pump is replaced. The chronic pain which the applicant has
been suffering from for over ten years can be controlled only by the
constant administration of a painkiller twenty-four hours a day.
5. Other methods of treating the applicant's
pain tried by the hospital have been ineffective. This fact indicates
that a surgical intervention is urgently required implantation
of a morphine pump. Otherwise, the [applicant's] chronic pain may
constitute a ground for applying for release from detention.”
- According
to a letter sent to the head of the hospital at the Kraków
Detention Centre by the Palliative Medicine Institute in Warsaw on
6 February 2008 the applicant's morphine pump had not been
functioning correctly. It suggested enlisting the services of a
clinic that specialised in treating pain and a diagnosis the
deficiency in the functioning of the pump.
- According
to the forensic medical opinion of 7 February 2008 the applicant, who
had been using a wheelchair, could testify and take part in the
trial, although transporting him to the Kielce Regional Court could
increase his pain. The expert stated that “sudden pain attacks
do not limit the [applicant's] mental capacity, provided that in the
event of severe pain [the court] would interrupt the hearing for a
moment.”
- On
3 March 2008 the Kraków Detention Centre Hospital informed the
court that the applicant's morphine pump had been broken since
29 November 2007.
- On
12 March 2008 the director of the hospital at the Kraków
Detention Centre informed the Kraków Regional Court that the
applicant was receiving orally five different painkillers, including
Tramal, which was also injected in case of need.
- In
2008 the Kraków Detention Centre asked several hospitals in
Poland whether they could implant the morphine pump. After several
negative replies, on 13 March 2008, the head of the neurosurgical
department of Mielec Hospital informed the Kraków Detention
Centre that they would be able to replace the applicant's morphine
pump. A hospital in Gdańsk also agreed to carry out that
intervention but later refused for technical reasons.
- On
18 July 2008 the Jagiellonian University Pain and Palliative Care
Clinic issued an expert opinion. The experts established that the
applicant was suffering from attacks of severe pain, approximately
once an hour, lasting from a few to a dozen minutes. The morphine
pump had been implanted about eight years previously, but in October
2007 it had stopped functioning. The applicant had thus been
receiving several types of painkillers administered orally and had
injections of morphine and Tramal in case of severe pain.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice concerning the imposition
of detention during judicial proceedings (aresztowanie
tymczasowe), the grounds for its extension, release from
detention and rules governing other “preventive measures”
(środki zapobiegawcze) are stated in the Court's
judgments in the cases of Gołek v. Poland, no. 31330/02,
§§ 27-33, 25 April 2006, and Celejewski v. Poland,
no. 17584/04, §§ 22-23, 4 August 2006.
- The
relevant domestic law and practice as well as international documents
regarding conditions of detention are stated in Sławomir
Musiał v.
Poland, no. 28300/06, §§48-63,
ECHR 2009 ... (extracts).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been subjected to inhuman and
degrading treatment in breach of Article 3 of the Convention in that
throughout his entire pre-trial detention his morphine pump had not
been functioning. This Article reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The
Government raised a preliminary objection as to the non exhaustion
of domestic remedies by the applicant. They argued that the applicant
could have, but had not, made use of the remedies of a compensatory
nature governed by the provisions of Articles 23 and 24 of the Civil
Code, in conjunction with Article 448 of the Civil Code, in order to
bring an action for compensation for his allegedly unsatisfactory
medical care during his detention.
Secondly,
the Government averred that the applicant could have lodged a
constitutional complaint with the Constitutional Court alleging that
Article 263 of the Code of
Criminal Procedure, which allowed the extension of detention without
any time-limits, was contrary to the Constitution.
- The
Court however notes that the arguments raised by the Government are
similar to those already examined and rejected in previous cases
against Poland (see, among other authorities, Sławomir
Musiał, cited above, §§
65-81) and that the Government have not submitted any new
circumstances which would lead the Court to depart from that finding.
- Finally the Government argued that the applicant
should have resorted to yet another remedy, namely an action for
compensation under Article 552 § 4 of the Code of Criminal
Procedure. However the Court reiterates that a request for
compensation for manifestly unjustified detention under Article 552
of the Code of Criminal Procedure of 1997 enables a detainee to seek
a retrospective ruling as to whether his detention in criminal
proceedings which have already been terminated was justified, and to
obtain compensation when it was not. The proceedings relating to such
a request are essentially designed to secure financial reparation for
damage arising from the execution of unjustified detention (see Włoch
v. Poland, no. 27785/95, judgment of 19 October 2000, §
91). Moreover, an action for compensation is not a remedy which has
to be made use of, because the right not to be subjected to inhuman
and degrading treatment and the right to obtain compensation for any
deprivation of liberty incompatible with Article 5 are two separate
rights (see, mutatis mutandis, Feliński v.
Poland, no. 31116/03, § 41,
7 July 2009, and Zdebski, Zdebska and Zdebska v. Poland
(dec.), no. 27748/95, 6 April 2000).
- The
Court notes that the applicant raised his health problems and in
particular the necessity to have the morphine pump replaced in all
his appeals against the decisions extending his pre-trial detention.
He also requested expert opinions which could further clarify his
medical needs. It is clear from the case file, and the Government do
not seem to contest it, that the prison authorities and courts were
aware of the applicant's medical condition.
- The
Court observes that, in the circumstances of the present case, the
remedies referred to by the Government were not capable of providing
redress in respect of the applicant's complaint. Having regard
to the above considerations, the Court dismisses the Government's
preliminary objection as to the non-exhaustion of domestic remedies.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention; nor is
it inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted in general that he had not been provided with
appropriate medical care in detention, in that the authorities had
caused his morphine pump to break down and had not allowed him to
replace it. The medical staff in the detention centre hospital were
not properly trained to operate such equipment and were not able to
refill the pump or to keep it maintained. The applicant acknowledged
that the authorities had been providing him with strong painkillers
but that, given his state of health, the morphine pump, which
administered the drugs directly to his spine, was the only efficient
method of reducing his pain. He also alleged that he had been forced
to take orally or by injection increasing doses of very potent
narcotic drugs of which he was quickly becoming tolerant. As a
consequence they not only did not offer relief from pain but
adversely affected his perception and ability to concentrate which
was necessary for him to be able to participate in his own trial.
- In
sum, the applicant submitted that during his two-and-a-half-year
detention he had suffered pain which amounted to inhuman and
degrading treatment.
- The
Government submitted that the applicant had been correctly treated
and had not suffered any treatment contrary to Article 3 of the
Convention. They submitted that throughout his detention he was
placed in a Detention Centre Hospital, in a room customised to the
needs of people with health problems, in particular to the use of a
wheelchair.
According
to the Government the applicant received the medical attention he
required and had received various painkillers (opiates), such as
Tramal and morphine. He complained about his pain but on the
other hand refused to take a higher dosage of these painkillers.
- The
Government maintained that the authorities did everything to enable
the replacement of the applicant's morphine pump; they indicated the
exchange of correspondence between the Detention Centre and various
medical centres in Poland between 31 January 2008 and his release in
May 2009. The Government maintained that the applicant's pump could
be expected to function for about seven years, and thus its failure
had been a normal consequence of time and rundown of batteries.
2. The Court's assessment
- The
Court reiterates that according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3 of the Convention. The assessment of this minimum
level is, in the nature of things, relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and
state of health of the victim (see Vilvarajah and Others v. the
United Kingdom, 30 October 1991, Series A no. 215, p. 36, § 107;
Kudła v. Poland [GC], no. 30210/96, § 91, ECHR
2000-XI; and Peers v. Greece, no. 28524/95, § 67,
ECHR 2001-III).
- The
Court has consistently stressed that the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment. As regards prisoners or detainees, the Court
has repeatedly noted that measures depriving a person of his liberty
may often involve such an element. However, under Article 3 of the
Convention the State must ensure that a person is detained in
conditions which are compatible with respect for his human dignity,
that the manner and method of the execution of the measure do not
subject him to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention and that, given
the practical demands of imprisonment, his health and well-being are
adequately secured (see Kudła, cited above, §§
91-94, and Wenerski v. Poland,
no. 44369/02, § 55, 20 January 2009).
- Turning
to the facts of the instant case, the Court observes that the
applicant is suffering from a serious medical condition and his
treatment is limited to relieving him from chronic pain. Since 2000
he has been using a pump which administers a mixture of painkillers
specially designed for him directly into his spinal fluid (see
paragraphs 6 and 29 above).
It is
not disputed before the Court that the applicant's morphine pump
stopped delivering painkiller shortly after his arrest in October
2006, as it was refilled with a saline solution, and that a new pump
was implanted in August 2009. During this time the applicant was
treated with a series of powerful painkillers, taken either orally or
intravenously.
- It
also appears from the medical documents in the file that before it
broke down in October or November 2007, the applicant's pump had been
refilled with morphine at least once, in September 2007 (see
paragraphs 36, 40 and 43 above). However, although specifically asked
by the Court, the Government failed to clarify whether the
applicant's pump had been working properly and administering him
morphine from his arrest in October 2006 until it broke down in 2007
and, if it was, for how long. Consequently the Court considers that
it had not been established that during the applicant's detention his
morphine pump had worked properly for any significant period of time.
- The
Government appeared to dispute that the morphine pump was essential
to the applicant, and submitted that his pain had been correctly
treated with painkillers.
- However,
the Court notes that the domestic courts clearly considered the fact
that the applicant had a morphine pump implanted an important ground
for finding his state compatible with detention. For the first two
years the authorities relied on the above, without taking any note of
the fact that his pump had in reality not been working since the
beginning of his detention. In particular, in its decisions of 16
April and 23 July 2007, the court repeated the same justification
that the applicant “had available to him a specialised machine
to administer the painkiller – the morphine pump – and
that it was thus possible to treat him in the detention centre”
(see paragraphs 14 and 18 above). The courts failed to take into
consideration objections raised by the applicant's lawyer, that the
pump had been useless to the applicant since October 2006, which had
been confirmed by medical certificates of 8 November 2006 and 27
January 2007 (see paragraphs 34 and 35 above). It was only on 21
April 2008 that the court acknowledged for the first time that his
pump had not been working for a long time but was satisfied that the
Detention Centre had not considered this to be of excessively severe
detriment to the applicant (see paragraph 21 above).
The
Court further observes that the detention authorities also
considered, from the beginning of 2008, that the applicant needed to
have a new pump implanted and contacted several hospitals in Poland.
The Court acknowledges the difficulty encountered by the authorities
in finding a medical centre prepared to carry out this kind of
intervention. However it does not appear that the detention centre's
attempts produced any concrete and prompt improvement for the
applicant and cannot be considered a diligent reaction to his
suffering.
- In
this connection the Court underlines that this case is not concerned
with the issue of whether a detainee has a right to be provided
with a free morphine pump and it is not suggested that the
State was required to pay for one (see Wenerski v. Poland, no.
44369/02, §§ 62 and 66, 20 January 2009 and Nitecki
v. Poland (dec.), no. 65653/01, 21 March
2002). The essential issue raised by the case at hand is whether the
applicant had had the possibility to have a morphine pump implanted.
Such a possibility was not given to the applicant during the entire
period of his two-and-a-half-year detention. It also notes that the
applicant managed to have a new pump implanted in the Kraków
University Hospital three months after his release (see paragraph 29
above).
- The
Court also notes that there is no indication in the case file that
during the applicant's detention the courts ordered an expert medical
opinion, which could have assessed the adequacy of the current
treatment of the applicant's pain, given the fact that his pump had
been filled with a saline solution and not morphine. Requests for
such an assessment had been repeatedly made by the applicant's lawyer
and dismissed by the courts.
In
his letter of 31 January 2008 the head of the surgical unit of the
Kraków Detention Centre Hospital, addressed to the court,
clearly indicated that a working morphine pump was essential to treat
the applicant's pain (see paragraph 37 above). The Government did not
submit that during the applicant's detention there had been any other
medical assessment that would contradict these findings.
- The
Court considers that the first time the trial court diligently
examined the compatibility of the applicant's state of health with
detention was exactly two years after his arrest, on 24 October 2008,
when the court recommended that the possibility of providing him with
a functioning morphine pump should be investigated, so that his
detention did not become inhumane (see paragraph 25 above).
Nevertheless, the applicant remained in detention for the next six
months without any improvement in his situation.
- The
Court is satisfied with the reasons for the decision to release him
from detention given on 14 May 2009. This took place after two years,
six months and eighteen days of the applicant's pre-trial detention
(see paragraph 27 above).
The
Court reiterates that the applicant was detained on the orders of the
Regional Court, which had been obliged to display diligence in the
examination of the prosecutor's requests for extension of his
detention. The authorities conducting criminal proceedings against
the applicant continued to extend his detention, relying repeatedly
on the reasonable suspicion against him and on the complexity of the
investigation as justifying his continued detention. Regard being had
to the finding above, the Court concludes that the domestic courts
failed to give serious consideration to the applicant's state of
health, except for general statements (see decision of 24 January
2007 in paragraph 13 above) or repeatedly justifying his allegedly
appropriate medical care by the existence of the morphine pump, which
was in fact not working (see paragraph 63 above). Accordingly, the
grounds given by the domestic authorities were particularly
unsatisfactory, given the serious state of the applicant's health,
and could not justify the overall period of the applicant's
detention.
- The
foregoing considerations are sufficient to enable the Court to
conclude that by tolerating the failure of the applicant's morphine
pump from the beginning of his detention and for the next two and a
half years, given the particular state of health of the applicant,
who was suffering chronic pain, the authorities responsible for his
detention had acted in breach of their obligations to provide
effective medical treatment and that the applicant was subjected to
inhuman and degrading treatment in violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLES 5§3 AND 8 OF THE
CONVENTION
A. Article 5§ 3
- The
applicant complained that his pre-trial detention had been too
lengthy, in violation of Article 5 § 3 of the Convention.
- The
Government contested that argument.
- The
Government raised a preliminary objection as to the non exhaustion
of domestic remedies by the applicant. They maintained that the
applicant could have lodged a constitutional complaint with the
Constitutional Court, that Article
263 of the Code of Criminal Procedure, which allowed the
extension of detention without any time-limits, was contrary to the
Constitution. The Court however notes that the arguments raised by
the Government are similar to those already examined and rejected in
previous cases against Poland (see, among other authorities,
Bruczyński v. Poland, no. 19206/03, §§ 38-45, 4
November 2008, and Biśta v. Poland,
no. 22807/07, §§ 26-30, 12 January 2010) and that
the Government have not submitted any new evidence which would lead
the Court to depart from that finding.
- The
Court notes that these complaints are linked to the one examined
above and must therefore likewise be declared admissible.
- Having
regard to the finding relating to Article 3 (see paragraph 68 above),
the Court considers that it is not necessary to examine whether, in
this case, there has been a violation of Article 5 § 3 (see,
among other authorities, Dzieciak v. Poland, no.
77766/01, § 115, 9 December 2008).
B. Article 8
- With regard to the issue of the authorities' positive
obligations to protect the applicant's right to respect for his
physical and mental integrity, and to the fact that his morphine pump
had not been working, the Court considered it appropriate to raise of
its own motion the issue of Poland's compliance with the requirements
of Article 8 of the Convention.
- The
Court notes that this complaint is linked to the one examined above
under Article 3 of the Convention and must therefore likewise be
declared admissible.
- However,
having found a violation of Article 3 above, the Court considers that
it is not necessary to examine the issues arising under Article 8 of
the Convention with regard to the conditions of the applicant's
detention and the medical treatment he received (see
Sławomir Musiał, cited above,
§ 101).
III. REMAINDER OF THE APPLICATION
- Finally,
the applicant complained that his trial had been unfair in that he
had been forced to participate in it either in a state of severe pain
or in a narcotic stupor. Moreover, he alleged a breach of the
presumption of innocence, in that the authorities had intentionally
deprived him of properly administered morphine to treat his pain,
because they were trying to force him to cooperate with the
prosecution authorities and confess.
- However,
the applicant's trial is still pending, and it will be open to the
applicant, if convicted, to raise his complaints on appeal and,
further, in a cassation appeal.
- It
follows that this part of his application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of pecuniary damage
for the reimbursement of the costs of the surgery he underwent in
Germany in connection with replacing the pump. The applicant also
claimed EUR 50,000 for non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged, in particular since the applicant
had finally had his new morphine pump implanted in Poland. It
therefore rejects this claim. On the other hand, it awards the
applicant EUR 10,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant, who was represented by a lawyer, did not claim any sum in
respect of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints concerning
the length of the applicant's pre-trial detention under Article 5 §
3 and his conditions of detention under Articles 3 and 8 admissible
and the remainder of the application inadmissible;
- Holds by 6 votes to 1 that there has been a
violation of Article 3 of the Convention;
- Holds by 6 votes to 1 that it is not necessary
to examine the complaint under Article 5 § 3 of the Convention;
- Holds unanimously that it is not necessary to
examine the complaint under Article 8 of the Convention;
- Holds by 6 votes to 1
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Polish zlotys at the rate
applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge V.A.
de Gaetano is annexed to this judgment.
N.
B.
F. A.
DISSENTING OPINION OF JUDGE DE GAETANO
- I
regret that I cannot share the majority view in this case.
- 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.
- 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 paragraph
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.
- 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, Mouisel
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 to the
population generally (see Kaprykowski 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 (see 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
implantation 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).
- 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.
