CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 23029/93                       by Piotr GRZESZCZUK                       against Poland         The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 19 July 1993 by Piotr GRZESZCZUK against Poland and registered on 1 December 1993 under file No. 23029/93;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government       on 9 November 1994 and the observations in reply submitted by the       applicant on 9 January 1996;         Having deliberated;         Decides as follows:     THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows:         The applicant, a Polish citizen born in 1966, is a construction worker who is detained in Myslowice prison.   Particular circumstances of the case         On 18 October 1991 the applicant was arrested on suspicion of robbery and remanded in custody.   At the same time he was serving a sentence for a previous conviction.   During detention he injured himself by introducing a piece of metal into his lung whereupon his health deteriorated.   The court hearings were adjourned several times as the applicant was unable to participate on grounds of ill-health. On 15 January 1993 a medical panel of the Bytom prison decided that an operation in a civil hospital specialised in chest surgery was necessary.         On 15 February 1993 the Katowice Regional Court (S*d Wojewódzki) released the applicant from detention on remand to enable him to undergo a surgical intervention in a specialised civil hospital.   On 19 February 1993 the Penitentiary Division at the Katowice Regional Court granted him a temporary suspension of the execution of his sentence until 31 May 1993 on the same grounds.         The applicant reported to the appropriate civil hospital and, after certain medical examinations, the date for the operation was fixed for 24 March 1993.   On 18 March 1993 the applicant was again arrested.   On 19 March 1993 the Sucha Beskidzka District Prosecutor remanded him in custody on suspicion of theft committed after his release.   He was allegedly beaten by the police upon his arrest.   On 19 March 1993 the applicant was examined by two physicians who declared that he was fit for detention.         The applicant then filed two appeals, in which he complained about his detention.   These appeals were dismissed on 7 and 22 April 1993 by the Sucha Beskidzka District Court (S*d Rejonowy).         On 13 April 1993 the Sucha Beskidzka District Prosecutor prolonged detention on remand until 18 May 1993 and again dismissed the applicant's request for release.   Upon a further request of the applicant, the Sucha Beskidzka District Prosecutor, on 29 April 1993, refused to enter into an examination thereof.   On 10 May 1993 the Public Prosecutor prolonged detention on remand until 18 June 1993. On 27 May 1993 the Sucha Beskidzka District Court upheld this decision. On 17 May 1993 and 31 May 1993 the Sucha Beskidzka District Prosecutor refused to consider requests by the applicant for his release.         The Sucha Beskidzka District Prosecutor instituted criminal proceedings in respect of the alleged ill-treatment by the police upon the applicant's request.   The physicians, who had examined the applicant on the day of his arrest and were heard as witnesses, declared that the traces of beating noted on the applicant's body had been several days old and that they could therefore not have originated from the occurrences on the date of the arrest.   On 22 June 1993 the Sucha Beskidzka Prosecutor decided to discontinue the criminal proceedings as it was established that no crime had been committed.         While in detention on remand in Wadowice prison the applicant repeatedly reported pains in his lungs.   Entries in his prison medical records show that throughout his detention from 19 March 1993 to 18 September 1993 the applicant was   examined by physicians thirty- three times.         On 18 September 1993 the applicant suffered a haemorrhage.   On the same day he was admitted to the Kraków prison hospital, where a physician stated that his condition did not necessitate immediate treatment.   A medical consultation of a surgeon from the Kraków Medical Academy of 18 September 1993 confirmed that an immediate operation was not necessary.         On 22 September 1993, during a hearing in the Sucha Beskidzka District Court, the applicant lost consciousness.   On the same day he was admitted to the Kraków prison hospital where he remained until 28 September 1993.   On 6 October 1993 the applicant complained to the Central Prison Administration about insufficient medical care afforded to him in prison, in particular about not having been operated on.         It transpires from the applicant's medical records that in the period between 10 October 1993 and 7 December 1993 he was examined by prison physicians on seven occasions.         On 7 December 1993 the applicant again injured himself by swallowing a "cross" made of two needles.         On 6 January 1994, the applicant's condition having deteriorated, he was transferred to the Bytom prison hospital and was placed at the surgical ward.   In view of an immediate threat to the applicant's life caused by the perforation of his gullet by the "cross" and a beginning inflammatory process in his chest, the operation was made on 28 January 1994 in Bytom prison hospital by surgeons who simultaneously were employees of the Silesian Medical University.   The foreign object was removed from his gullet.         On 21 March 1994, while still in the hospital, the applicant reported another self-injury by swallowing another "cross".   He did not participate in the court hearing scheduled on 22 March 1993.         In June 1994 the applicant reported another self-injury by swallowing a "cross" and on 13 July 1994 he was again transferred to prison hospital at Bytom prison.   As a result, he did not attend a court hearing on 12 July 1994 in criminal proceedings against him.   On 12 August 1994 an X-ray of his chest has not shown any foreign objects in his body.   The applicant acknowledged that he had swallowed the "cross" on a thread and then had removed it.   He remained in the hospital until 17 August 1994.   Throughout his stay in the hospital he refused consent for the operation.         Throughout his detention, the applicant complained to various authorities about the medical care afforded to him in prison. Relevant domestic law         Article 23 of the Rules of Execution of Prison Sentences reads:         < Translation >         "A prisoner shall receive free medical treatment as well as       free drugs (...) from prison medical services or, if need       be, from public medical services."         < Original >         "Skazanemu zapewnia si* bezplatn* opiek* lekarsk*       swiadczon* przez sluzb* zdrowia zakladów karnych, a w razie       potrzeby takze przez zaklady spoleczne sluzby zdrowia, oraz       bezplatne leki (...)."         Article 27 of the Rules of Execution of the Detention on Remand reads:         < Translation >         "A detainee on remand shall receive free medical care as well as       free drugs (...) from the medical service of a detention centre       or, if need be, from public medical services."         < Original >         " Tymczasowo aresztowanym zapewnia si* bezplatn* opiek*       lekarsk* swiadczon* przez sluzb* zdrowia aresztów       sledczych, a w razie potrzeby takze przez zaklady spoleczne       sluzby zdrowia, oraz bezplatne zaopatrzenie w leki (...)."         According to Section 217 para. 1 of the Polish Code of Criminal Procedure, a person may be held in detention on remand if there is a risk of his absconding or collusion; if he is a recidivist or if he is suspected of having committed a dangerous offence.   COMPLAINTS         The applicant complains under Article 8 about his detention on remand, claiming that he is innocent, and that he was ill-treated by the police on 19 March 1993.         He further complains about not receiving proper medical care in prison, in particular about being refused a surgical intervention in a specialised civil hospital as recommended by the medical panel in January 1993.   He submits that his health rapidly deteriorates.   He states that he refused to undergo an operation in the prison hospital as he did not trust the physicians working here.         The applicant complains under Article 5 para. 4 of the Convention that he was not brought before a judge in the proceedings in review of his detention on remand which commenced on 19 March 1993.         The applicant finally complains under Article 8 of the Convention that the operation carried out in January 1994 without his consent amounted to an interference with his private life.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 19 July 1993 and registered on 1 December 1993.         On 29 June 1994 the Commission decided to communicate the applicant's complaint concerning medical care in prison to the respondent Government.         The Government's written observations were submitted on 9 November 1994, after an extension of the time-limit fixed for that purpose.   The applicant replied on 9 January 1996.         On 13 September 1995 the Commission granted the applicant legal aid.   THE LAW   1.     The applicant complains under Article 8 (Art. 8) about his detention on remand, claiming that he is innocent, and that he was ill- treated by the police on 19 March 1993.   He further complains that the medical care which he was given in prison was entirely insufficient in view of the severity of his condition.   The Commission has examined this complaint under Article 3 (Art. 3) of the Convention.         Article 3 (Art. 3) of the Convention provides:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."   a)     The Government first submit that it does not clearly transpire from the applicant's submissions which decision he considers to be a final one in his case. However, it seems that his complaints relate mostly to the fact that detention on remand was imposed on him in March 1993 despite the previous decisions of February 1993 to release him on health grounds.   The decision to remand the applicant in custody was taken on 19 March 1993.   The applicant's appeal against this decision was dismissed by the District Court on 7 April 1993.   On 13 April 1993 the District Prosecutor prolonged the applicant's detention and on 22 April 1993 the   District Court upheld this decision. These dates precede 1 May 1993, the date on which the Commission's competence to examine individual applications against Poland became effective.   The Government conclude that the application should be declared inadmissible as being incompatible ratione temporis with the Convention.         The applicant submits that the Government disregard the fact that certain decisions maintaining the applicant in custody were   issued on 10 and 27 May 1993. Moreover, even assuming that the situation complained of as regards the applicant's medical treatment in prison had originated from decisions taken before 1 May 1993, it continued after that date. The applicant concludes that the application cannot be regarded as being incompatible ratione temporis with the Convention.         The Commission observes that the applicant's complaints relate principally to the situation created by the decisions imposing and maintaining his custody, which continued after 1 May 1993.   It follows that the Commission is competent ratione temporis to examine the applicant's complaints insofar as they relate to the period after 1 May 1993.   b)     The Government submit that the applicant failed to exhaust available domestic remedies.   It is true that he used relevant remedies in respect of his detention on remand under Polish law as he appealed against the decision to remand him in custody.   He further appealed to the Court against the Public Prosecutor's decisions to prolong his custody. Under Polish law, and in particular Articles 218 and 219 of the Code of Criminal Procedure, the competent authorities are under an obligation to examine health aspects of the case when taking a decision as to detention on remand.   However, it was open to the applicant to submit a request to be released to the Public Prosecutor. He did so on numerous occasions invoking, inter alia, his bad health.   Nevertheless, he failed to appeal against ensuing refusals of the Public Prosecutor to a hierarchically superior Prosecutor.         The applicant submits that the remedy referred to by the Government cannot be regarded as effective.   It is a known practice that higher Prosecutors practically always uphold the decisions of lower Prosecutors.   Moreover, this remedy can be used at any time as often as a detainee wishes to do so.   A requirement to use this remedy would result in deferring ad infinitum the moment in which an application to the Commission could be lodged.   The applicant availed himself of other remedies in relation to his detention and it should therefore be considered that he complied with the requirements of Article 26 (Art. 26) of the Convention.         The Commission recalls that the applicant must make normal use of those domestic remedies which are likely to be effective and sufficient. When a remedy has been attempted, use of another remedy which has essentially the same objective is not required (No. 11471/85, Dec. 19.1.89, D.R. 59, p. 67).         The Commission observes that the applicant lodged two appeals in which he complained about his detention.   Those appeals were dismissed on 7 and 22 April 1993 by the Sucha Beskidzka District Court. On 27 May 1993 the same Court dismissed the applicant's appeal against the Public Prosecutor's decision of 10 May 1993 prolonging his detention. The Commission considers that the purpose of the remedies tried by the applicant was to obtain a review of his detention on remand and to obtain release on account of bad health.   In the circumstances of the case these remedies constitute adequate and effective remedies within the meaning of Article 26 (Art. 26) of the Convention as their purpose was to obtain release in view of the applicant's condition.   They have the same purpose as the remedy relied on by the Government.   Thus, the applicant was not required to avail himself additionally of the latter remedy.         It follows that this complaint cannot be rejected for non- exhaustion of domestic remedies.   c)     As to the substance of the complaint, the Government first draw the Commission's attention to the manipulative character of the applicant's conduct.   They submit that he inflicted injuries upon himself in order to obtain certain decisions in respect of his detention and acknowledged that this was the case.   This, in the Government's opinion, is shown by the fact that these injuries often preceded the dates for which court hearings in various criminal proceedings against the applicant had been fixed.   In particular, it should be inferred from the applicant's requests for release that he tended to use the argument of his condition in order to obtain release. The Government further submit that the applicant's health problems were also to a large extent caused and aggravated by his persistent refusal to cooperate with the medical services.   This is shown by medical records in which it was frequently stated that the applicant categorically refused to undergo an operation in a prison hospital. The Government emphasise that the authorities in no case refused him medical care and did not lower the standard of health care offered to him despite the fact that he contributed himself to his health problems.   On the contrary, his complaints were scrupulously followed by relevant medical examinations and, if necessary, treatment.         The Government further submit that in the period preceding his release in February 1993, the applicant refused his consent to undergo the operation in the prison hospital.   This refusal was certainly of significance for the recommendation of the medical panel that the applicant should be released and undergo the operation in a civil hospital.   It should be noted that after his release he did not follow the recommended treatment.   It is true that he maintains that he reported to the hospital and that the date for the operation was set. However, he does not submit any documents in this respect.   Even assuming that this was the case, it should be further noted that when he was arrested he was in a state of intoxication, having apparently consumed a considerable amount of alcohol.   Thus, serious doubts arise as to whether he had followed the routinely recommended preparations for a surgical intervention by abandoning intake of alcohol.         The Government maintain that after the applicant's arrest in March 1993, before taking the decision on his detention on remand, the Public Prosecutor ordered the applicant's medical examination.   This was meant to ensure that his detention would be in accordance with the provisions of the Code of Criminal Procedure which require the competent authorities to consider whether detention is compatible with the detainee's health.   It should also be emphasised that the applicant was further transferred for additional examinations to a specialised ward of Kraków prison hospital.   The opinion that the applicant's detention was not incompatible with his health condition was later confirmed by the consultation of a specialist of the Kraków Medical University.   The applicant was later transferred to the surgical ward of Bytom prison hospital and remained there   despite his further refusal to undergo an operation at this ward.   The Government conclude that the applicant's detention did not cause a deterioration of his health as he was under constant and specialised medical care.   Despite his frequent self-injuries and his persistent refusal to undergo a surgical intervention, the relevant authorities reacted appropriately to the applicant's health needs.   The case-law of the Convention organs does not contain as such a right to be detained in a particular prison or under particular   conditions of detention.   The Government conclude that this part of the application should be declared manifestly ill- founded.         The applicant submits that the decision of 19 March 1993 on his detention on remand   ran counter to the previous decisions to release him in view of his condition and thus amounted to inhuman treatment as it made it impossible for him to undergo the operation.   The subsequent medical opinions to the effect that the   detention was compatible with his condition were in fact dictated by the circumstances and disregarded the applicant's actual condition.   Insofar as the Government emphasise the applicant's alleged lack of compliance with the medical recommendations after his release in February 1993, this is irrelevant and does not discharge the public authorities of their obligation to ensure proper medical care to persons in detention. There are no elements which indicate that at the time of the applicant's arrest in March 1993 and later the considerations relied on in the decisions taken in February 1993 to release him ceased to apply.   The applicant's condition subsequently worsened in the course of his detention.   The fact that the operation was delayed significantly deteriorated his health.   Regard must be had to the fact that the operation carried out in January 1994 resulted in a very unsightly long scar which necessitates to be removed.   The medical reports relied on by the Government appear to be erroneous as shown by the fact that the applicant had a haemorrhage on 18 September 1993 and lost consciousness during the court hearing on 22 September 1993.   They are further contradicted by the unequivocal medical opinion of 15 January 1993.         The Commission recalls that according to the case-law of the Convention organs, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention (Eur. Court HR. Ireland v. United Kingdom judgment of 18 January 1979, Series A No. 25, p. 65, para. 162).   The Commission further recalls that lack of medical treatment in prison may raise an issue under Article 3 (Art. 3) of the Convention.   The factors to be considered are the seriousness of the applicant's condition, the quality of the medical care he received in prison and whether the applicant's state of health is compatible with detention.   The State has no obligation under Article 3 (Art. 3) of the Convention to release a detainee or to transfer him to the civil hospital, even when he has a disease which is particularly hard to treat (Chartier v. Italy, Comm. Dec. 8.12.82, D.R. 33   p. 41).   However, the Rapporteur recalls the State's obligation to maintain a continuous review of the detention arrangements employed with a view to ensuring the health and well-being of all prisoners, having due regard to the ordinary and reasonable requirements of imprisonment (Bonnechaux v. Switzerland, Comm. Report 5.12.79, D.R. 18 p. 100).         The Commission considers that it does not appear that the severity of the applicant's condition was such as to be incompatible with his detention.   It transpires from the documents submitted that the authorities did not refuse medical care to the applicant.   It also appears that the applicant often resorted to self-injuries and subsequently tried to use the argument of his bad health in order to obtain certain decisions of the prison or prosecuting authorities. This does not discharge the domestic authorities of the responsibility for ensuring health and well-being of persons in detention.   However, the applicant's numerous complaints about his bad health were followed by frequent medical examinations and consultations, as shown by his medical records. Thus, upon his arrest on 19 March 1993 he was examined by two physicians, whose findings were later confirmed by a consultant specialist from the Medical Academy.   The treatment available in the prison medical services, i.e. the operation in the prison hospital, was offered to the applicant on numerous occasions and he repeatedly refused to give his consent to the operation.   Regard must be had to the fact that the applicant's lack of cooperation has probably worsened his condition.   It further transpires from relevant documents that the applicant in fact could be treated in the prison hospital, as shown in particular by the fact that on 28 January 1994 he underwent the operation in the hospital of Bytom prison and that this operation, performed in view of the immediate danger to his life, was successful. The Commission further considers that the applicant cannot legitimately rely in support of his complaint under Article 3 (Art. 3) of the Convention on the argument that the outcome of the operation was unsatisfactory in that it left a large scar.   The applicant could have realised that delaying the operation would in all probability lead to the worsening of his condition and diminish the possibilities of the operation being successful.   Thus, the Commission concludes that it has not been established that the applicant's condition deteriorated as the relevant authorities failed to afford him adequate medical care.         The Commission therefore considers that the treatment complained of did not reach the threshold of severity required to fall within the ambit of Article 3 (Art. 3) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Insofar as the applicant complains about his alleged ill- treatment upon his arrest on 18 March 1993, the Commission is not required to decide whether or not the facts alleged by the applicant in support of this complaint disclose any appearance of a violation of the Convention as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with a matter after all domestic remedies have been exhausted".   In the present case, the applicant requested the institution of criminal Proceedings.   On 22 June 1993 the Prosecutor refused this request, finding no basis for criminal charges.   The applicant could have appealed against this refusal to a hierarchically superior Prosecutor, but he failed to do so.         It follows that this part of the application must be rejected for non-exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicant further complains that his detention on remand was unjustified.         The Commission has examined this complaint under Article 5 para. 1 (Art. 5-1) of the Convention.   The Commission observes that both the Public Prosecutor and the Court to which the applicant appealed against the decision to remand him in custody considered that there were serious grounds for suspecting the applicant of having committed a serious offence, i.e. aggravated theft, as well as a risk of absconding and collusion.   The Commission considers that there is no indication of arbitrariness in their decisions.   The Commission also finds that the decisions complained of were lawful as they complied with the applicable provisions of Article 217 of the Code of Criminal Procedure.         It follows that this complaint must be declared manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant finally complains under Article 8 (Art. 8) of the Convention about the operation which he underwent in January 1994 allegedly without his consent and under Article 5 para. 4 (Art. 5-4) of the Convention that he was not brought before a judge in the proceedings in review of the lawfulness of his detention which were held before the Sucha Beskidzka District Court.   a)     As regards the complaint under Article 5 para. 4 (Art. 5-4) of the Convention, the Commission observes that it relates to the proceedings which were held before the Sucha Beskidzka District Court on 7 and 22 April 1993.   These dates preceded 1 May 1993, i.e. the date on which the Commission's competence to examine individual applications against Poland became effective.         It follows that this complaint is outside the Commission's competence ratione temporis and therefore incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)     In respect of the complaint under Article 5 para. 4 (Art. 5-4) concerning the proceedings held before the Sucha Beskidzka District Court on 27 May 1993 and the complaint under Article 8 (Art. 8) of the Convention concerning the operation carried out on 28 January 1994, the Commission observes that the relevant complaints were submitted to the Commission in the applicant's reply to the Government's observations on 9 January 1996.   The Commission is therefore not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Convention as the events complained of had occurred more than six months before the date on which those complaints were introduced.         It follows that this part of the application is inadmissible within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, unanimously,           DECLARES THE APPLICATION INADMISSIBLE.             M.-T. SCHOEPFER                               G.H. THUNE         Secretary                                   President   to the Second Chamber                       of the Second Chamber