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FOURTH
SECTION
DECISION
Application no.
61254/09
Andrzej TURZYŃSKI
against Poland
The
European Court of Human Rights (Fourth Section), sitting on 17 April
2012 as a Chamber composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Fatoş Aracı,
Deputy
Section Registrar,
Having
regard to the above application lodged on 5 November 2009,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Andrzej Turzyński, is a Polish national who was
born in 1959 and lives in Gdańsk. He was represented before the
Court by Ms B. Słupska-Uczkiewicz and Ms M. Gąsiorowska,
lawyers practising in Wrocław and Warsaw respectively. The
Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz of
the Ministry of Foreign Affairs.
A. The circumstances of the case
The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The applicant’s medical condition
- In
1998 the applicant was diagnosed with multiple sclerosis
(stwardnienie rozsiane). He is in a wheelchair; both of his
legs and his left arm are paralysed. The applicant also suffers from
urinary incontinence and wears incontinence pads. He is slowly losing
his eyesight, is affected with palsy and also experiences cramps.
2. The applicant’s detention and medical
assistance provided in the remand centre
(a) The applicant’s submissions
- On
unspecified dates in 2002 the applicant was convicted of fraud in two
separate sets of criminal proceedings. He was sentenced to two prison
terms of two years each. His actual detention, however, was postponed
because of his poor health.
- On
5 November 2008 the applicant was arrested by the police. On the same
day he was transported to Gdańsk Remand Centre where he started
serving his combined four year prison sentence.
- He
was committed to Gdańsk Remand Centre, where he alternated
between the neurology ward of the remand centre’s hospital wing
and a general prison wing. From 5 November 2008 until 15 January 2009
and from 30 April until 10 September 2009 the applicant was detained
in the hospital wing. In the remaining time he was imprisoned in the
remand centre’s general wing. He shared his cell with three
healthy inmates. The cell in question was adapted to special needs
detainees in that it had a wider door and a special handle had been
installed on the wall next to the toilet. The representatives of the
Ombudsman inspected the applicant’s cell and confirmed that it
was adapted to the needs of disabled persons.
- The
applicant was usually scheduled to see the remand centre’s
in house general practitioner once every fortnight. In his
opinion, the medical check-ups should have been more frequent and run
by a neurologist.
- The
remand centre’s nurse administered the applicant’s
medicine once or twice a day. The applicant claimed that the
pharmacological treatment prescribed was insufficient to stop his
health from deteriorating. In his opinion, the only way to slow down
the development of his disease and to avoid complete body paralysis
was to have regular and specialised physiotherapy.
- The
applicant received a daily supply of incontinence pads from the
prison nurse. He changed them with the assistance of his fellow
inmates. He had to pay for this help with cigarettes and other goods.
The applicant submitted that he was in an inferior position vis-à-vis
his cellmates because he depended on their assistance for his hygiene
and daily routines. He also felt humiliated in front of them because
he had no privacy when having his incontinence pads changed and he
often smelt of urine. The latter led to his being mocked, and caused
increased tension and disputes among his cellmates.
- The
applicant also submitted that, in order to attend his physiotherapy
sessions, he had had to be carried in his wheelchair across the
external yard by fellow prisoners. On those occasions he had only
worn his pyjamas and had often been cold. In addition, on several
occasions, he had been dropped and his wheelchair had been badly
damaged. For those reasons the applicant decided not to continue his
physiotherapy.
- On
12 October 2010 the applicant was conditionally released from
detention.
(b) the Government’s submissions
- On
an unspecified date in 2008 the applicant filed an application for
adjournment of the execution of his prison sentence with the
Kościerzyna District Court. On 20 November 2008 the court
dismissed his application. It found that the applicant could serve
his sentence and be treated in prison hospital. The court relied on
the supplementary expert opinion of 20 October 2008 (see
paragraph 20 below) and the information submitted by the Chief
Medical Officer of the Gdańsk Regional Inspectorate of the
Prison Service. According to the latter, the neurological ward of the
Gdańsk Remand Centre ensured constant medical care to prisoners
suffering from chronic neurological conditions. It disposed of
well-equipped physiotherapy room and each disabled prisoner was
provided with specialised assistance in his daily routine.
- The
Government submitted that the applicant had had regular neurological
consultations (on 23 December 2009, 23 March and 4 May 2010). The
applicant had been signed up for regular physiotherapy sessions which
he had frequently refused to attend, and for that reason his
allegations that he had his fingers and toes massaged only on a few
occasions were groundless. The applicant’s fellow inmates, who
had been carefully chosen, assisted him voluntarily in his daily
routine. This was not the result of the lack of personnel but of the
applicant’s refusal to cooperate with the nurses. The applicant
was of the opinion that they were able to satisfy his needs. In
Gdańsk Remand Centre there was also a prisoner whose job was to
help the disabled inmates in the presence of the medical staff.
However, the applicant rejected the assistance of this person. The
Government maintained that the applicant had never complained about
his inmates. On the contrary, on 12 March 2009 he said that “the
inmates help willingly”. Further, on 11 June 2010 the
applicant refused to be transferred to the neurological ward where he
was to be provided with constant medical care and nursing. The
applicant stated that the conditions in his cell were good and that
he had cooperative inmates.
- In
spite of the applicant’s allegations that he needed constant
assistance, he managed to keep his cell tidy and was twice rewarded
for that. His incontinence pads, sheets and underwear were changed
adequately according to his needs.
- The medical wards of the remand centres in Poland were
well equipped for treating patients with multiple sclerosis. They
offered the same level of treatment as received by patients in public
hospitals. As indicated by the Chief Medical Officer of the Gdańsk
Regional Inspectorate of the Prison Service, patients treated outside
the prison system did not receive the same high level of constant
medical care as patients with MS in Polish prisons. For this reason,
the applicant’s claim that the pharmacological treatment had
been insufficient to stop his health from deteriorating was
groundless.
3. Medical reports
(a) The applicant’s submissions
- In
a report dated 29 May 2005 court-appointed experts in neurology and
forensic medicine at the Gdańsk Medical Academy categorically
stated that the applicant was not, at the time of the report, or in
the future, fit to be held in detention.
- In
a report of 18 September 2006 the same medical experts submitted that
the applicant’s advanced multiple sclerosis posed an absolute
obstacle to his detention. The experts noted that it was inevitable
that the applicant’s health would get worse, although they
would expect him to experience short periods in which his illness
could be expected to be more stable. The experts concluded that the
applicant’s detention in a prison hospital could be taken into
consideration but only under the condition that the prison
authorities would provide him with specialist neurological care,
regular physiotherapy and nursing adequate to the degree of his
illness.
- On
28 May 2007 the same medical experts drafted a supplementary report
in which they stressed that the applicant’s detention should be
considered only if he were assigned to the hospital wing, received
specialised neurological care, constant physiotherapeutic care,
nursing and almost permanent assistance by a person who would be able
to help him with his daily routine (prior to his imprisonment, the
applicant was assisted by his wife). The above-mentioned conditions
had to be strictly complied with to avoid a risk to the applicant’s
health.
(b) The Government’s submissions
- The
Government submitted that in December 2005 a criminal case against
the applicant was filed with the Kościerzyna District Court. The
victims in this case informed the authorities that in September 2005
the applicant had arrived alone in a car at their plot of land.
- The
Government maintained that the medical experts who had prepared the
reports in 2006 and 2007 had not been provided with the witnesses’
accounts who had seen the applicant walking in September 2005.
- On
20 October 2008 the same medical experts concluded in their
supplementary report that the applicant could serve his sentence in
Gdańsk Remand Centre. The conditions ensured by the neurological
ward of that remand centre were compatible with the applicant’s
needs. The supplementary report was drafted to clarify the 2007
opinion. The experts stated that the applicant’s condition was
characterised by periods of deterioration (lasting a few days) and of
remissions (lasting a few months or even years). If the applicant
were to be detained in Gdańsk Remand Centre, he needed to be
provided with some help in his daily routine (bath), neurological
consultations, hospitalisation in the neurological ward of the Remand
Centre if necessary and one-hour physiotherapy five times a week. It
was no longer required that the applicant be provided with permanent
assistance in all basic daily routines. The experts also stated that
there was a risk that the applicant had exaggerated the seriousness
of his condition which could not be excluded by means of medical
examination. They noticed the improvement in his condition, which
probably enabled the applicant to move in and out of his wheelchair
independently and observed that the degree of paralysis of his legs
and left arm was less pronounced than claimed by the applicant
previously. The experts took into consideration the facts established
in the proceedings before the Kościerzyna District Court that
the applicant could move on his own and drive a car.
4. The applicant’s complaints to the domestic
authorities
- On
unspecified dates the applicant and his wife applied for temporary
release (przerwa w karze). Those requests were dismissed
because the relevant penitentiary court considered, on the basis of
the medical reports, that the medical care which was being provided
to the applicant in the Gdańsk Remand Centre was adequate and
sufficient.
- In
addition, the applicant and his wife submitted numerous complaints to
the Ombudsman, the Helsinki Foundation of Human Rights, the Regional
Inspectorate of the Prison Service (Okręgowy Inspektorat
Służby Więziennej) and other domestic authorities.
In his letter of 28 April 2009 and numerous subsequent
communications the Ombudsman informed the applicant’s wife that
her allegations concerning inadequate medical care provided to her
husband had been ill-founded.
- By
a letter dated 9 June 2009 the Head of the Gdańsk Regional
Inspectorate of the Prison Service informed the applicant’s
wife that her numerous complaints that her husband was receiving
inadequate medical care in prison had been considered ill-founded. It
was noted that the applicant had twice been detained in the remand
centre’s hospital where he had received adequate medical care.
The applicant was signed up for regular physiotherapy sessions, which
he had frequently refused to attend. It was acknowledged that the
applicant required another person’s assistance with his daily
routine. It was noted, however, that such assistance was being
provided voluntarily by the applicant’s fellow inmates. Lastly,
the applicant’s incontinence pads, sheets and underwear were
changed adequately according to his needs.
- By
a letter dated 12 August 2009 the same authority once more informed
the applicant’s wife that her complaints had been considered
ill founded. It was noted that the applicant’s health had
been stable for three years and that he was being detained in the
hospital wing where he was receiving adequate medical care. It was
submitted that, following the recommendations of the physiotherapy
specialist, the applicant was exercising five times per week.
- By
a letter dated 30 October 2009 the Head of the Gdańsk Regional
Inspectorate of the Prison Service dismissed the complaints of the
applicant’s wife. It was noted that the applicant was being
detained in a cell adapted to his special needs and that he had
refused to attend his physiotherapy sessions, which had been
taking place away from his cell. Further, he was assisted in his
daily routine by his inmates and prison nurses.
- By
a letter dated 8 January 2010 the same authority informed the
applicant that he was being regularly assisted by a nurse.
B. Relevant domestic law and practice
- The
provisions pertaining to medical care in detention facilities and
general conditions of detention, and the relevant domestic law and
practice are set out in the Court’s judgments in the cases of
Kaprykowski v. Poland, no. 23052/05, §§ 36-39,
3 February 2009; Sławomir Musiał v. Poland,
no. 28300/06, §§ 48-61, 20 January 2009; and Orchowski
v. Poland, no. 17885/04, §§ 74-85, 13 October
2009.
COMPLAINT
- The
applicant complained under Article 3 of the Convention that he had
been detained in breach of medical requirements for the particular
conditions of his health, without specialised neurological care,
constant physiotherapy, adequate nursing and permanent assistance by
another person. The lack of those particular arrangements resulted in
the applicant’s increased mental and physical suffering,
humiliation and the rapid deterioration of his health.
THE LAW
A. The Government’s submissions
- The
Government argued that the applicant had not exhausted domestic
remedies with regard to his complaint under Article 3 of the
Convention. He failed to bring a civil action for compensation under
Articles 23 and 24 read in conjunction with Article 448 of the Civil
Code whereby persons deprived of their liberty who had suffered a
violation of their personal rights as a result of the conditions of
their detention may bring a civil action against the State Treasury.
- The
Government maintained that the possibility to have recourse to the
above-mentioned remedy was well-established in the practice of the
Polish courts. They referred to a judgment delivered by the Warsaw
Court of Appeal on 18 March 2008 in the case of MM (no. I ACa
587/07). The Court of Appeal reversed the lower court’s
judgment and awarded the plaintiff, a mentally ill detainee, 50,000
Polish zlotys on account of a failure to diagnose his mental illness
(schizophrenia) by doctors of three detention centres and the
resulting lack of adequate psychiatric treatment in detention.
- With
regard to the merits, the Government observed that the applicant
suffered from a serious illness. However, there were strong
indications that he had exaggerated the seriousness of his condition.
The Government argued that the authorities had ensured adequate
medical care and nursing to the applicant and that he had been
detained in suitable conditions. The hospital wings of the remand
centres in Poland were well equipped for treating patients with MS
and offered the same level of care and treatment as received by
patients in public hospitals. For that reason the applicant’s
claim that his pharmacological treatment had been insufficient was
groundless. The applicant’s cell was adapted to the special
needs of disabled prisoners. In conclusion, the applicant’s
complaint under Article 3 of the Convention was inadmissible as
manifestly ill-founded.
B. The applicant’s submissions
- The
applicant rejected the Government’s objection and averred that
he had exhausted domestic remedies by having filed numerous
complaints with the Ombudsman and the Regional Inspector of the
Prison Service. In those circumstances and having regard to the
subject of his application, a civil action for compensation referred
to by the Government could not be considered as an effective remedy.
- As
regards the merits, the applicant argued that he had been detained in
conditions which had been incompatible with his state of health.
The specific medical recommendations in respect of the
applicant’s treatment and care had not been respected during
his incarceration. During that period the applicant had spent eight
and a half months in the hospital wing. He benefited from twenty
sessions of physiotherapy lasting each fifteen minutes. In respect of
the period spent in the general prison wing, the applicant averred
that he had received no assistance from the prison staff and had had
to pay his fellow inmates for their assistance in his daily routines.
The medical care provided in detention had been superficial and
limited to distribution of medication.
- The
applicant’s numerous complaints had not been followed by any
control of the conditions of his detention and were thus unduly
examined. The applicant contested the medical opinion of 2008 and
maintained that it had been prepared without him having been
interviewed or examined.
C. The Court’s assessment
- The
Court notes that in the Government’s submission the applicant
failed to bring a civil action in order to seek compensation for the
alleged infringement of his personal rights. However, even assuming
that the applicant exhausted relevant domestic remedies, it finds
that the application is in any event inadmissible for the reasons set
out below.
- The Court recalls that Article 3 of the Convention
cannot be interpreted as laying down a general obligation to release
a detainee on health grounds or to transfer him to a civil
hospital, even if he is suffering from an illness that is
particularly difficult to treat (see, Mouisel v. France, no.
67263/01, § 40, ECHR 2002 IX). However, this provision does
require the State to ensure that prisoners are detained in
conditions which are compatible with respect for human dignity,
that the manner and method of the execution of the measure do not
subject them to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention and that,
given the practical demands of imprisonment, their health and
well-being are adequately secured by, among other things, providing
them with the requisite medical assistance (see Kudła v.
Poland [GC], no. 30210/96, § 94, ECHR 2000 XI; Sławomir
Musiał v. Poland, no. 28300/06, § 86, 20
January 2009; and Kaprykowski v. Poland, no. 23052/05, §
69, 3 February 2009). There are three particular elements to be
considered in relation to the compatibility of the applicant’s
health with his stay in detention: (a) the medical condition of the
prisoner, (b) the adequacy of the medical assistance and care
provided in detention and (c) the advisability of maintaining the
detention measure in view of the state of health of the applicant
(see Mouisel v. France, cited above, §§ 40-42;
Melnik v. Ukraine, no. 72286/01, § 94, 28 March 2006).
- The
Court notes that it is undisputed that the applicant suffers from
multiple sclerosis and on that account he is in need of specialised
medical treatment and nursing.
- The
Court will next examine whether the applicant was provided with
adequate medical assistance and care in detention. It notes first
that according to the medical opinions of 2006 and 2007 his detention
was considered possible under the specific conditions and only if he
were to be assigned to the hospital wing. The medical opinion of 20
October 2008, which appears to be the most relevant as it was
prepared just days before his actual incarceration, stated that the
applicant could serve his sentence in Gdańsk Remand Centre. This
opinion noted certain improvement in the applicant’s health and
listed the conditions which had to be satisfied in the case of the
applicant’s detention (see paragraphs 20 above). It also
stated, by contrast to earlier opinions, that the applicant needed
assistance only in some of his everyday activities. Accordingly, the
Court finds that there were no grounds to consider that the
applicant’s detention was excluded on medical grounds (compare
and contrast, Rokosz v. Poland, no. 15952/09, §§ 39-40,
27 July 2010).
- With
regard to the adequacy of medical assistance, the Court notes that of
the overall period of his incarceration which amounted to just over
twenty-three months, the applicant was detained for eight and a half
months in the neurology ward of the prison hospital. There he was
ensured constant and specialist medical care as well as the necessary
assistance. Further, it transpires from the documents produced by the
Government, which were not contested by the applicant, that on 11
June 2010 he refused to be transferred to the neurology wing (see
paragraph 12 in fine above). During the period of the
applicant’s detention in the general wing of the prison, he was
regularly consulted by a general practitioner and occasionally by a
neurologist. He also received pharmacological treatment. It further
appears that the applicant was provided with a possibility to attend
physiotherapy sessions. On a number of occasions he refused to
participate in them, claiming that he had to be carried to another
building across a yard by his fellow prisoners. However, the Court
notes that the applicant appears not to have raised this issue in his
complaints to the prison authorities and, secondly, it does not seem
to be an insurmountable obstacle in terms of access to physiotherapy.
On the evidence before it, the Court does not find any indication
that the medical care provided to the applicant was deficient or
below the standard level of health care available to the population
generally (see, Nitecki v. Poland (dec.), no. 65653/01, 21
March 2002; Kaprykowski, cited above, § 75; and Michajlov
v. Austria (dec.), no. 13796/09, 27 March 2012, § 35).
- As
regards the issue of nursing and assistance of another person to the
applicant, the Court observes that his cell in the general prison
wing was adapted to the needs of disabled persons as confirmed by the
representatives of the Ombudsman (see paragraph 5 above).
Furthermore, the prison provided the applicant with the assistance of
a nurse and when he refused to cooperate with the nurses he was
voluntarily assisted in his daily routine by his inmates who were
specifically chosen for that role (compare and contrast, Kaprykowski,
cited above, § 74 in fine). In addition, the applicant’s
hygienic materials and sheets were regularly changed. In view of the
foregoing, the Court is satisfied that the applicant’s specific
nursing needs were duly taken care of.
- Furthermore,
the Court considers that the applicant has not substantiated, in
particular by medical reports, his assertion that the alleged
deficiencies in his medical care and nursing resulted in his
increased mental and physical suffering as well as led to the
deterioration of his health. The Court lastly notes that the
applicant filed numerous complaints with the Ombudsman and the
Regional Inspectorate of the Prison Service about the alleged
shortcomings in his medical care. However, all those grievances were
examined and found to be without merit.
- In
conclusion, the Court finds that the applicant was provided with
adequate medical care in detention which took into account the
specific demands of his illness. It follows that the complaint under
Article 3 of the Convention is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş
Aracı David Thór Björgvinsson
Deputy
Registrar President
