BUJAK v. POLAND - 686/12 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment Inhuman treatment) (Substantive aspect) No v...) [2017] ECHR 265 (21 March 2017)

In the case of Bujak v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ganna Yudkivska, President,
          Vincent A. De Gaetano,
          András Sajó,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer,
          Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 28 February 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 686/12) 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 Sławomir Bujak (“the applicant”), on 29 March 2011.

2. The applicant, who had been granted legal aid, was represented by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that he had not received adequate medical care in prison and that the length of his detention, in view of his state of health, had been excessive.

4. On 27 August 2014 the complaints under Articles 3 and 5 § 3 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1954 and lives in Sarbice Pierwsze.

A. Background to the case

6. On 1 January 1999 the applicant was a victim of a car accident in which he suffered several bodily injuries. He was treated in Hamburg until 27 February 1999.

7. In the year 1999 the applicant was suspected of having committed several thefts of leased movable goods of considerable value, in particular cars, during the period he spent running a company.

8. In June 1999 the applicant moved to New Zealand and the proceedings against him were stayed.

9. On 29 March 2004 the Minister of Justice requested that the applicant be extradited to Poland.

10. Following an extradition hearing in New Zealand, in 2010 the applicant was transported to Poland.

B. The applicant’s arrest and detention

11. On 9 March 2010 the applicant was arrested.

12. On 13 March 2010 the Kielce District Court (Sąd Rejonowy) decided to detain him on remand for a period of three months, until 9 June 2010. The court referred to the reasonable suspicion that the applicant had committed the offences with which he was charged and in respect of which he would face, if found guilty, deprivation of liberty for a term exceeding eight years. It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding until the charges against him became time-barred. The court pointed out that the applicant had not remained at his place of residence, had refused to accept a summons from the prosecutor and, although he was aware that an investigation was being carried out in respect of him, he had moved to New Zealand in 1999 with a view to waiting until the charges that had been brought against him became time-barred; consequently, the proceedings against him had had to be stayed for ten years.

As regards the applicant’s state of health the court found that “the problems cited by the applicant do not require any medical treatment”.

13. On 7 June 2010 the applicant’s detention was extended until 7 September 2010. The court again referred to the reasonable suspicion that the applicant had committed the offences with which he was charged and on the severity of the penalty to which he would be liable if found guilty. It further noted that there was a reasonable fear that the applicant might obstruct the proceedings or go into hiding. In this respect the court referred to the fact that the applicant had moved to New Zealand on a previous occasion and had had to be located by means of an international search.

14. The applicant appealed, referring, among other things, to his state of health. He submitted that he was suffering from serious neurological and orthopaedic problems which, if not treated properly, would pose a serious danger to his health.

15. On 29 July 2010 the Cracow Court of Appeal (Sąd Apelacyjny) upheld the challenged decision, confirming the Regional Court’s view that the detention had been justified by the severe penalty and the possibility that the applicant might obstruct the proceedings. As regards the applicant’s state of health the court referred to two medical experts’ opinions dated 15 April and 14 June 2010 respectively, according to which the applicant could be treated in the detention facilities and was able to participate in the trial.

16. On 25 August 2010 the relevant bill of indictment was submitted to the Kielce Regional Court (Sąd Okręgowy).

17. On 2 September 2010 the Kielce Regional Court extended the applicant’s detention for a further five months, until 4 February 2011. The court justified its decision by citing the high probability that the applicant had committed the offences with which he had been charged. It also found that there was a risk that the applicant might go into hiding or obstruct the proceedings; it did not, however, give any grounds for its findings. Lastly, the court stated that there were “no grounds for releasing the applicant from detention ... in particular, [there were none of the grounds listed] in Article 259 of the Code of Criminal Proceedings”.

18. On 19 October 2010 the first hearing took place. Further hearings were scheduled for 2 and 30 December 2010, 25 January, 17 February, 17 March, 5 and 28 April, 17 May, 16 June, 14 July, 4 August, 6, 27 and 29 September, 6 and 27 October, 10 and 24 November, and 8 December 2011.

19. On 25 January 2011 the Kielce Regional Court again extended the applicant’s detention for further five months. Apart from the grounds previously relied on, the court noted that the applicant had requested that several new witnesses be heard and considered that he might influence their testimony if released. The court considered that the applicant’s declarations that he would appear before the court upon each and every summons did not correspond with his previous behaviour. It noted that on 19 October 2010 the applicant had resisted being taken to the court. According to the Government’s submissions he had refused to be taken to the court without a wheelchair which had been provided by his wife. Lastly, the court determined, relying on the opinion of an expert neurologist and orthopaedist, that the applicant could be treated in detention.

20. The applicant appealed. He referred, among other things, to his state of health, the fact that he had to use a wheelchair, that he was waiting for a spine operation and that he could not undergo physiotherapy under conditions of detention.

21. On 22 February 2011 the Cracow Court of Appeal upheld the challenged decision relying, as previously, on the fact that in the past the applicant had gone into hiding. The court also found that the applicant had again obstructed the proceedings in that he had refused to be transported to the court hearing without a wheelchair. The Court of Appeal did not uphold the Regional Court’s finding that the applicant might tamper with evidence; this, however, did not influence the court’s overall assessment of the circumstances of the case. As regards the applicant’s state of health, the court referred to a medical opinion issued on 28 October 2010 by an expert neurologist and orthopaedist according to which the applicant could participate in the court hearings and could be transported to court without a wheelchair.

22. On 21 June 2011 the Kielce Regional Court extended the applicant’s detention until 21 December 2011. The court noted that the results of the applicant’s recent treatment in the Łódź Prison hospital ward had been satisfactory and that according to the experts in neurology and orthopaedics (see paragraph 21 above) he could be treated in prison facilities. The applicant appealed.

23. On 13 July 2011 the Cracow Court of Appeal examined the applicant’s appeal and upheld the challenged decision. As regards the applicant’s state of health, the court, relying on a physician expert opinion of May 2011, considered that there were no obstacles to his further detention and his treatment in the prison facilities. The court noted that if the applicant’s further detention threatened his health he could be released at any time ex officio.

24. Meanwhile, on 28 June 2011, the applicant underwent a medical examination ordered by the Kielce Regional Court. The applicant arrived for the examination in a wheelchair, from which he could not get up. The Government contested this submission. The doctor found that the applicant suffered from chronic pain of the thoracic and lumbar vertebral column on the basis of multilevel disc osteoarthritis and that he had suffered a spinal injury and left hip injury in 1999 and 2005 respectively. The doctor also ordered a further examination of the applicant, which took place on 16 August 2011. On 16 October 2011 a fresh opinion was delivered, the relevant part of which reads as follows:

“There are obstacles to [an extension of the] stay of the applicant in the Kielce Detention Centre because he cannot receive neurological treatment there ... the results of the electromyography examination (EMG) show a gradually worsening] dysfunction of the peripheral nerves ... which qualifies the applicant for neurological surgery that can only be executed in a neurological ward. After the operation and rehabilitation treatment, depending on his neurological state, the patient will be able to continue his detention in the Kielce detention centre”.

The doctor further stated that an objective assessment of the neurological state of the applicant was not possible due to his lack of cooperation.

25. On 27 October 2011 the applicant’s lawyer requested that the Kielce Regional Court lift the preventive measure applied to the applicant and to release him from detention. The lawyer referred to the applicant’s state of health. He referred, among other things, to the fact that the Kielce Regional Court had to order breaks in hearings because the applicant had to rest “in a horizontal position”. He also requested that the court order a further examination of the applicant by a specialist in neurology.

26. On 8 November 2011 the Kielce Regional Court refused the applicant’s lawyer’s requests. The court held that it had already ordered a medical opinion on 2 November 2011 and that that opinion would be delivered soon. The court furthermore found that the circumstances justifying the applicant’s detention had not ceased to exist and that they had already been listed in the court’s decision of 21 June 2011. The court did not find it necessary to repeat them.

27. On 14 November 2011 a fresh opinion was delivered by a specialist in neurology. The doctor found that:

“1. The applicant’s further stay in detention and refusal of medical (neurological) treatment may constitute a serious danger to his health or even life.

2. The post-operation rehabilitation should take place in a good rehabilitation ward ... it may also take place in detention, however I do not know in which detention centre such a ward exists.”

28. On 14 November 2011 the applicant’s lawyer lodged an appeal against the court’s decision of 8 November 2011. He requested the court, in the event that the appeal was not granted, to change the preventive measure applied to the applicant and to impose bail on him of a “reasonable amount”.

29. On 22 November 2011 the Kielce Regional Court, sitting as a panel of three judges, upheld the challenged decision. The court held that the Kielce Regional Court, which made a decision in first instance in composition of single judge, had been aware of the applicant’s state of health and that this matter had been taken into account each time his detention had been extended. Apparently, the court had not yet become aware of the medical expert opinion of 14 November 2011.

30. On 8 December 2011 the Kielce Regional Court, acting ex officio, released the applicant and imposed another preventive measure on him, namely that of police supervision. The court found that the grounds originally relied on to impose and extend the applicant’s detention, in particular the risk that he might go into hiding, still existed. However, given the applicant’s state of health, his release was necessary. The court referred to a medical opinion which was completed and issued on 14 November 2011 (see above). It was determined that the only neurological ward in which the applicant could be treated in detention was at the Gdansk Remand Centre. The applicant, however, refused to agree to be operated on there. He undertook at the same time that if he were to be released, he would undergo such an operation once he was at liberty. He also indicated the address where he could be reached and where he would collect his correspondence.

31. On 8 December 2011 the applicant was released from detention.

32. According to the last information available to the Court, the criminal proceedings against him are still pending.

33. Between 12 and 20 January 2016 he was hospitalised again in a hospital in Katowice.

C. The applicant’s treatment in the prison facilities

34. According to the applicant’s submissions, at the time of his deportation to Poland from New Zealand the whole documentation pertaining to his case - including his medical file and information about medications that he was taking - had been handed over to the Polish authorities.

35. As stated by the Government and not contested by the applicant, the applicant had undergone a preliminary examination on 11 March 2010 and at that time he had not informed the doctor of any illness. He stated that he felt well. He had informed the prison authorities of his previously incurred injuries only after he had been detained at the Kielce Remand Centre. As stated by the Government and not contested by the applicant, the applicant had an easy access to the shower.

36. On 23 March 2010 the applicant was examined by the neurologist for the first time. He was advised to continue his pharmacological treatment (he had his own medications) and to use a hard mattress.

37. On 26 April 2010 the applicant was examined by a physician. He complained of problems with walking and was therefore prescribed crutches. The applicant submitted that he had been prescribed crutches after he had collapsed on the floor in cell no. 114 at the Kielce Remand Centre.

38. On 1 June 2010 the applicant underwent a further neurological examination. The relevant note made by the doctor read:

“He claims that he does not have the proper mattress (prescribed on 23 March 2010). Declares [that he has] pain in his left leg ... during the examination [he did] not follow simple orders but afterwards stood up without any problems (sprawnie) on his own. He walks with the aid of crutches”

39. On 17 June 2010 the applicant collapsed while being questioned at the police station. He was then taken to hospital.

40. On 28 June 2010 the physician considered it necessary to conduct a CAT scan of the applicant’s spine. The examination took place on 30 June 2010.

41. On 30 July 2010 the applicant consulted a neurosurgeon who, after seeing the results of the CAT scan, found no grounds for the applicant to undergo a spine operation. He advised pharmacological treatment and physiotherapy.

42. On 25 August 2010 the applicant requested a wheelchair. According to the Government the director of the facility’s health centre found no grounds for granting his request.

43. According to the applicant’s submissions on 31 August 2010 he again collapsed on the floor in the corridor of block X of the Kielce Remand Centre. Only then was he prescribed a wheelchair. However, since the chair which he received in the detention centre was, according to his submission, in such a state that its use constituted a danger for persons using it, the applicant requested his wife to provide him with another wheelchair; this she did, on 8 October 2010, with the approval of the prison authorities. The Government submitted that the approval was granted for “social reasons” although there were no medical grounds for so doing. However, the applicant submitted copies of two medical certificates dated 31 August 2010, together with a note made by a psychiatrist, which read:

“The patient collapsed in the corridor (lost consciousness?) ... Patient in generally good condition.

- Wheelchair.

- Neurological examination”

The applicant submitted another note made by a neurologist, which read:

“Today [he] lost consciousness. He complains of pain in his left hip joint.”

44. The applicant submitted a copy of the record of the questioning of a certain S.L. for the purpose of civil proceedings for compensation which the applicant had instituted against the State Treasury. S.L., who had been placed in the same cell as the applicant between July and December 2010, testified, in so far as relevant, as follows:

“Our cell was on the [first] floor; one had to climb a long flight of stairs. The applicant used a wheelchair. I and J. (another cell inmate) would carry the applicant up these stairs. When J. was not there one of guards would come and help us out.”

45. On 19 October 2010 the applicant resisted being taken to the court hearing without a wheelchair.

46. On the same day a doctor examined the applicant at the request of the Kielce Regional Court. The relevant parts of the medical certificate issued after the examination read as follows:

“Today he claims that his left leg is weak [and that] he has pain in his lumbar spine. ... While undressing, he easily lifts his legs without manifesting pain. When he stands up he drags his left leg and claims that he cannot stand on that leg because it is weak.

In the detention he occasionally (okresowo) uses a wheelchair; however, during none of the neurological or neurosurgeon consultations was it determined that the applicant needed to use a wheelchair.

In connection with the pain reported by the applicant and the results of his medical examinations, the specialist opinion of an expert neurosurgeon or neurologist is necessary in order to determine whether the applicant may be transported to court without a wheelchair. Aggravation possible.”

47. On 18 February 2011 the applicant complained about the pain in his spine and he was transported to Łódź prison no. 2, where he underwent treatment in the prison hospital. He remained there until 21 April 2011.

48. During his stay in the prison hospital he remained in a cell which had been adapted for detainees using wheelchairs. According to the Government’s submissions not contested by the applicant he had the assistance of professional “carriers” when he wanted to go to the exercise yard (the Government did not explain what exactly should be understood under that notion, in particular whether the “carriers” referred to above were the prison guards or other prison staff). He attended various forms of kinesiotherapy, including exercises to strengthen the muscles of his legs, and various other forms of treatment. He also consulted a dermatologist, orthopaedist, neurologist and ophthalmologist.

49. After his release from the prison hospital the applicant was advised to continue performing the exercises he had been taught. From 21 April 2011 until his release on 8 December 2011 he was again detained in the Kielce Remand Centre.

50. As emerges from the decision of 10 January 2012 about the degree of the applicant’s disability, he was moderately disabled and able to work in special conditions. He did not need constant assistance of another person.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Medical care in detention facilities

51. Article 68 of the Constitution, in its relevant part, reads:

“1. Everyone shall have a right to have his health protected.

2. Equal access to health care services, financed from public funds, shall be ensured by public authorities in respect of [all] citizens, irrespective of their material situation ...”

52. Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:

“1. A sentenced person shall receive medical care, medicines and sanitary articles free of charge.

2. Prosthesis, orthopedic objects and support measures shall be provided to sentenced persons free of charge if a failure in their supply might cause a deterioration of the person’s health or prevent the person concerned from serving his sentence. In other cases the above [medical service] shall be provided against payment.

...

4. Medical care is provided, above all, by health care establishments for persons serving a prison sentence.

5. Health care establishments outside of the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular:

1) to provide immediate medical care because of a danger to the life or health of a sentenced person;

2) to carry out specialist medical examinations, treatment or rehabilitation of a sentenced person;

3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of [his or her] sentence ...”

B. Pre-trial detention

53. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “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 LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

54. The applicant complained that he had been deprived of adequate medical treatment while in Kielce Remand Centre and that his state of health had deteriorated while he had been in detention. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

56. The applicant maintained that while in detention he had not received adequate medical treatment and that his health had deteriorated to such an extent that he had been released on health grounds on 8 December 2011. He further complained that while in detention he had had to use a wheelchair and had needed assistance from his fellow inmates each time he wanted to go for a walk.

57. The applicant submitted that given his state of health he had not received sufficient medical treatment and that the Kielce Remand Centre had not been adapted to the needs of handicapped people.

58. He further maintained that his state of health must have been known to by the Polish authorities from the moment of his detention because the whole documentation pertaining to his case - including his medical file and information about medications that had been taking - had been handed over to the Polish authorities. Given that he had known that the Polish authorities had been aware of the state of his health, he had not complained of receiving insufficient medical treatment at the beginning of his detention; he had only started to complain when he had realised that his treatment would not be continued.

59. He also submitted that, contrary to the Government’s allegations, he had had a wheelchair prescribed to him by a doctor and that providing him with a wheelchair that had been in such a state as to in fact pose a danger to the person who would be using it was another example of the inadequate medical care that had been afforded to him. The applicant did not agree with the Government that it had been his choice to use the wheelchair and that it had been his decision to make use of the assistance of his fellow inmates, who had brought him up and down the stairs to and from the exercise yard (see paragraph 62 below). He had been prescribed a wheelchair because of the state of his health. For the same reason he had also been prescribed a hard mattress - he had not received this and the lack of such a mattress had contributed to the deterioration of the state of his spine.

60. The applicant concluded that all of the above circumstances - in particular the insufficient and inadequate medical care and the humiliation resulting from the fact that he had had to ask for assistance from his fellow inmates in order to be able to get to and from the exercise yard - amounted to degrading treatment contrary to Article 3 of the Convention.

(b) The Government

61. The Government suggested that the applicant’s complaints as regards his state of health could not be considered completely reliable. In this respect they pointed to his examination of 1 June 2010, when he had complained about a pain in his left leg and had not been able to follow the physician’s simple commands. Nonetheless he had been able to stand up quickly and walk with crutches.

62. As regards the wheelchair, the Government submitted that the physicians who had examined the applicant had never found that the applicant in fact needed to use a wheelchair. It had been allowed by the prison authorities despite the lack of any medical reasons justifying it. The Government conceded that between 8 October 2010 and 18 February 2011 the applicant had had to rely on his fellow inmates’ assistance. However, in their view, the period referred to above had only been of short duration and in any case the applicant had only had himself to blame because he had not had to use the wheelchair. The Government further maintained that in the period referred to above the applicant had been placed in the Kielce Remand Centre in a cell situated on the first floor and had indeed had to rely on his fellow inmates’ assistance to go to the exercise yard. They considered, however, that this situation had not amounted to degrading treatment as it had not reached the required minimum of severity under Article 3 of the Convention. During further periods of his detention in the Kielce Remand Centre the applicant had been detained in cells from which access to the exercise yard had been easy and possible without any assistance, irrespective of whether or not the applicant had had to use a wheelchair. Additionally, when the applicant had been detained in Łódź prison hospital ward - that is to say between 18 February and 21 April 2011 - he had enjoyed the assistance of qualified “carriers” in accessing the exercise yard.

63. As regards the quality of the applicant’s medical care, the Government submitted that it had been constantly tailored to his state of health. At the start of his detention he had been examined by a physician, but at that time he had neither asked for any medications nor informed the doctor of any injuries that he had sustained in the past. Only after his admission to the Kielce Remand Centre had he started to complain about his health. Then he had consulted on numerous occasions the Centre’s neurologist, ophthalmologist, orthopaedist and traumatologist, who had checked during each consultation whether the applicant needed to undergo surgery.

64. The Government further maintained that between 18 February and 21 April 2011 the applicant had been admitted to (and remained at) the Łódź prison hospital ward, where he had undergone rehabilitation that had included various physical exercises, irradiation, and laser therapy. Moreover, each time the applicant’s detention had been extended he had been examined in order to determine whether his health would stand up to further detention.

65. The Government concluded that the applicant had received proper and adequate medical care and treatment. The deterioration in his health had not been caused by detention; that had been a process independent of the prison authorities. What is more, the applicant’s health had not deteriorated irreversibly; the doctors had found that he would be able to return to the detention facility after his surgery. Taking all the above considerations into account the Government invited the Court to find no violation of Article 3 of the Convention.

2. The Court’s assessment

(a) General principles

66. 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. 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 Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (ibid., § 74).

67. Moreover, it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention (see Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX). 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. 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 Mouisel, cited above, § 40).

68. In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee is seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007). The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention (see Khudobin v. Russia, no. 59696, § 83, ECHR 2006-XII), that diagnosis and care are prompt and accurate (see Melnik v. Ukraine, no. 72286/01, §§ 104-06, 28 March 2006, and Hummatov, cited above, § 115), and that where necessitated by the nature of a medical condition supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006; Hummatov, cited above, §§ 109 and 114; Amirov v. Russia, no. 51857/13, § 93, 27 November 2014; and Blokhin v. Russia [GC] no. 47152/06, § 137, ECHR 2016).

(b) Application of these principles to the present case

69. The Court must determine whether during his detention in the Kielce Remand Centre from 13 March 2010 until 18 February 2011 and from 21 April until 8 December 2011 the applicant needed regular medical assistance, whether he was deprived of it as he claims, and, if so, whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (see Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004, and Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005).

70. The Government submitted that the applicant in fact had not needed a wheelchair and that it had been provided to him despite the lack of medical indications that it had been necessary. It is true that the only medical document mentioning the wheelchair is a note made by a psychiatrist on 31 October 2010 (see paragraph 43 above). However, taking into consideration all the available evidence, the Court considers that the applicant must have had difficulties with mobility. In this connection the Court notes that the applicant fell to the floor three times - once on an unspecified date in cell no. 114 in the Kielce Remand Centre (see paragraph 37 above), once at the police station on 17 June 2010 (see paragraph 39 above), and once on 31 August 2010 in the corridor in the detention centre (see paragraph 43 above). On 23 March 2010 (that is to say 10 days after the applicant’s arrest) the doctor recommended that a hard mattress be provided to him, and on 26 April 2010 (that is to say some six weeks after his arrest and detention in the Kielce Remand Centre) the applicant was prescribed crutches (see paragraph 37 above). Moreover, the fact that the prison authorities first provided the applicant with a wheelchair which could not be safely used and subsequently agreed that another wheelchair could be given to the applicant by his wife indicates in the Court’s view that the Government’s argument that the applicant used the wheelchair only because of his own personal wish is not convincing. In this connection the Court further notes that in their submissions the Government admitted that between 8 October 2010 and 18 February 2011 the applicant was placed in the Kielce Remand Centre in a cell situated on the first floor and that in that period he had to rely on the assistance of his fellow inmates to be able to access the exercise yard (see paragraphs 59 and 62 above). The Court has already examined a situation in which a detainee with health problems had to rely on the assistance of other inmates and expressed its disapproval of a situation in which the staff of a remand centre feels relieved of its duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance (see Kaprykowski v. Poland, no. 23052/05, § 74, 3 February 2009). The Court has also criticised schemes whereby a prisoner with a physical disability is provided routine assistance by his fellow inmates, and considered that that must have given rise to considerable anxiety on the applicant’s part and placed him in a position of inferiority vis-à-vis the other prisoners (see, Farbtuhs, cited above, § 60, 2 December 2004 and D.G. v. Poland, no. 45705/07, § 147, 12 February 2013).

71. As regards the availability of medical care, the Court reiterates that the Convention does not guarantee a right to receive medical care which would exceed the standard level of health care available to the population generally (see Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002 and Kaprykowski, cited above, § 75). The Court notes that in fact from the beginning of his detention the applicant consulted on regular basis doctors of various specialisations. It appears that the treatment recommended by the doctors was followed by prison authorities, although it is unclear when (or indeed whether) the applicant received the hard mattress prescribed him on 23 March 2010. The Court further observes that on 18 February 2011, that is to say 11 months after his arrest, the applicant was transported to Łódź prison no. 2 where he underwent treatment in the facility ward where he remained in a cell adjusted to the detainees using wheelchairs. He had the assistance of professional “carriers” when he wanted to go to the exercise yard. He attended various forms of kinesiotherapy, including exercises to strengthen the muscles of his legs and various other forms of treatment. He also consulted a dermatologist, orthopaedist, neurologist and ophthalmologist.

72. After his return to the Kielce Remand Centre on 21 April 2011 the applicant was examined in May, June and in August 2011. The Court notes that the medical opinions issued after these examinations stated that the applicant was considered eligible to be treated in detention. However, a few months later, on 16 October 2011, the doctors for the first time found that the applicant’s state of health constituted an obstacle to his further detention since he needed neurological surgery (see paragraph 24 above). That conclusion was repeated almost a month later in an opinion of a neurologist of 14 November 2011 which found that the applicant’s further detention and the refusal of treatment might pose a serious danger to his health or even life (see paragraph 27 above). In spite of these opinions, the applicant’s detention was extended on 8 November 2011, and that extension was upheld on 22 November 2011. The applicant was released from detention in order for him to be able to undergo surgery on 8 December 2011, that is to say seven weeks after the issuance of the first opinion indicating that the applicant’s further detention might be harmful to his health. As can be seen from the material at the Court’s disposal and is not contested by the Government, the applicant’s state of health deteriorated while he was in detention.

73. Taking into account all of the above considerations, in particular the lack of adequate medical treatment in the Kielce Remand Centre and the placing of the applicant in a position of dependency vis-à-vis his healthy cellmates, the situation in which the applicant was placed undermined his dignity and gave rise to particularly acute hardship that caused anxiety and suffering beyond that inevitably associated with any deprivation of liberty.

74. In conclusion, the Court considers that the applicant’s continued detention without adequate medical treatment and assistance constituted inhuman and degrading treatment amounting to a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

75. Relying on Article 5 § 3 of the Convention, the applicant complained that his pre-trial detention had been excessively lengthy.

Article 5 § 3 of the Convention, in so far as relevant, reads:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A. Admissibility

76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

77. The applicant maintained that the length of his pre-trial detention had been excessive and unreasonable, taking into particular account his deteriorating state of health.

(b) The Government

78. The Government submitted that in the present case all of the criteria for the application and extension of pre-trial detention had been met. The applicant’s detention had been justified throughout the whole period in question. The grounds relied on by the domestic courts had been “relevant” and “sufficient”. In particular, the imposition and extension of the applicant’s detention had been justified by the serious risk that the applicant might obstruct the proceedings or go into hiding, especially given that he had been hiding before which led to some of the offences with which he had been charged becoming time-barred.

79. The Government also argued that the proceedings against the applicant had been complex. The case file had comprised thirty-three volumes of gathered evidence; ninety-five witnesses and four experts had been heard; and the courts had had to examine events dating back to 1999.

80. The Government further submitted that the courts had examined the applicant’s state of health on a regular basis and once the necessity of performing surgery outside of prison had arisen, the applicant’s detention had been lifted and the applicant had been released.

2. The Court’s assessment

(a) Period to be taken into consideration

81. The applicant’s pre-trial detention in Poland started on 9 March 2010, when he was handed over to the Polish authorities. He was released from detention on 8 December 2011. Accordingly, the period to be taken into consideration amounts to one year and nine months.

(b) Reasonableness of the length of detention

82. Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its particular features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, as most recent authority, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 90, ECHR 2016).

83. The Court is prepared to accept that the applicant’s detention may have been warranted by the the serious nature of the offences with which he had been charged, the severity of the penalty for those offences; and the need to secure the proper conduct of the proceedings in view of the risk that the applicant might attempt to abscond (see paragraph 12 above). The domestic courts duly examined the particular circumstances of the applicant’s case, namely the fact that the proceedings against him had had to be stayed for about ten years, because firstly he had not remained in his place of residence and it had been impossible to serve a summons on him and subsequently because he had moved to New Zealand and extradition proceedings had had to be instituted against him (see paragraphs 9 and 10 above).

84. Similarly, the Court is satisfied that the domestic authorities furnished relevant and sufficient reasons when they relied on the need to secure the proper conduct of the proceedings - particularly given the fact that the applicant did not have a permanent place of residence in Poland and in view of the fact that he had already been hiding from the police and extradition proceedings had had to be launched against him.

85. The Court takes note of the fact that once the authorities received information from the experts that the applicant’s detention might pose a danger to the applicant’s health or even life, the detention was lifted and the applicant was released (see paragraphs 24-31 above).

86. In conclusion, the Court finds that there has been no violation of Article 5 § 3 of the Convention. It bases its finding on the above considerations and the fact that there is no indication of a lack of “special diligence” in the conduct of the proceedings (see, Roman Petrov v. Russia, no. 37311/08, § 58, 15 December 2015). In addition, the complaint under Article 5 § 3 is based essentially on the deterioration of the applicant’s health while in Kielce Remand Centre. However, the issue of him not having been released immediately after the medical opinion that he faced a threat to his health or life has already been addressed by the finding of a violation of Article 3 (see paragraph 74 above).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

87. 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

88. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

89. The Government considered that should the Court establish that there had been a violation of Article 3 or Article 5 § 3 of the Convention, such finding should be considered to constitute sufficient redress.

90. The Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

91. Lastly, the applicant claimed EUR 3,300 for the work of his lawyer before the Court, Ms B. Słupska-Uczkiewicz, for 22 hours of work, at a rate of EUR 130 per hour. In support of that claim he presented a time-sheet. He also claimed 553.50 zlotys (PLN) in respect of costs of translation. He submitted a receipt showing payment of PLN 553.50 for translation.

92. The Government considered these claims excessive and submitted that the request for costs should be rejected since it had not been supported by any document.

93. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,430 for the proceedings before the Court.

C. Default interest

94. The Court considers it appropriate that the default interest rate 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, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been no violation of Article 5 § 3 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,430 (three thousand four hundred and thirty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ganna Yudkivska
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BUJAK v. POLAND - 686/12 (Judgment : Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment Inhuman treatment) (Substantive aspect) No v...) [2017] ECHR 265 (21 March 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/265.html Cite as: [2017] ECHR 265, CE:ECHR:2017:0321JUD000068612, ECLI:CE:ECHR:2017:0321JUD000068612