CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 juillet 2024

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POLAND (Application no. 31842/20)   JUDGMENT   Art 8 • Private life • Refusal to allow transgender person to continue hormone therapy in prison • Impugned decision touched on applicant’s freedom to define her gender identity, one of the most basic essentials of self-determination • Strong elements before the domestic authorities indicating hormone therapy was an appropriate medical treatment for the applicant’s state of health with a beneficial effect on her • Disproportionate burden placed on applicant to prove the necessity of the prescribed medical treatment by undergoing an additional medical consultation • Failure to strike a fair balance between the competing interests at stake • Applicant particularly vulnerable as an imprisoned transgender person undergoing a gender reassignment procedure, thus requiring enhanced protection from the authorities Prepared by the Registry. Does not bind the Court.   STRASBOURG 11 July 2024   FINAL   11/10/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of W.W. v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Alena Poláčková,   Krzysztof Wojtyczek,   Lətif Hüseynov,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   31842/20) 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, W.W. (“the applicant”), on 29 July 2020; the decision to give notice of the application to the Polish Government (“the Government”); the decision not to disclose the applicant’s name; the decision to indicate an interim measure to the Government under Rule   39 of the Rules of Court; the observations submitted by the Government and the observations in reply submitted by the applicant; the comments submitted by Transgender Europe, Helsinki Foundation for Human Rights and the Polish Commissioner for Human Rights, which had been granted leave by the President of the Section to intervene as third parties;   Having deliberated in private on 9 April and 11 June 2024, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The applicant is a transgender prisoner. The case raises an issue under Article   8 of the Convention regarding the refusal to allow the applicant to continue hormone therapy in prison. THE FACTS 2.     The applicant was born in 1992. When lodging the present application she was detained in Siedlce Prison. She is a transgender person who, at the time the application was lodged, was legally recognised as male. Her request for legal gender recognition was granted on 19 March 2023 (see paragraph   21 below). She was granted legal aid and was represented by Ms   A.   Bzdyń, a   lawyer practising in Warsaw. 3.     The Government were represented by their Agent, Mr J.   Sobczak of the Ministry for Foreign Affairs. 4.     The facts of the case may be summarised as follows.         BACKGROUND TO THE CASE 5 .     The applicant was assigned male at birth. She submitted that she had continuously identified herself as female since early childhood. 6.     Since 25 November 2013 she has served several terms of imprisonment in male prisons (in connection with, among other offences, theft, robbery and burglary). The applicant’s prison term ended on 5 May 2024. 7 .     The applicant submitted that since 2018 she had demonstrated self ‑ harming behaviour. On 26 June 2018 she had performed a bilateral orchiectomy on herself, following which she was hospitalised. She submitted that the act had been motivated by psychological discomfort and distress arising from an incongruence between her gender identity and her sex characteristics. Subsequently, she had become aggressive, had attacked a   prison guard and had been classified as a dangerous detainee. 8.     The governor of Piotrków Trybunalski Prison (where the applicant was detained at the relevant time) requested an expert opinion on the applicant’s condition. On 28 November 2018 the expert, M.M., a sexologist, stated that it was not possible to diagnose the applicant as a transgender person on the basis of one medical consultation. The expert further stated that the applicant had to consult with various specialists, for example, a sexologist, a psychiatrist, an endocrinologist, a gynaecologist or a urologist. 9 .     On 21 December 2018 a psychiatrist-sexologist, Dr D., issued an opinion on the basis of the applicant’s hospital records and her consultation with the expert M.M. and recommended that she pursue hormone replacement therapy associated with gender reassignment. Dr D. prescribed her the medication and stated that the applicant required immediate and urgent hormone therapy. The lack of immediate provision of this treatment posed a serious health risk resulting in the significant deterioration of its effectiveness. The expert stated that such treatment would have positive effects on her life and health and it would help with the applicant’s rehabilitation. 10.     The applicant consulted with Dr D. on 23 January 2019. 11 .     In January 2019 the Piotrków Trybunalski Prison governor allowed the applicant to undergo the hormone treatment. The applicant bore the cost of the therapy herself. As a result of the therapy the applicant’s appearance changed and her physical and emotional health improved. She continued the therapy in Radom Prison, where she was subsequently transferred.       SIEDLCE PRISON 12.     On 12 May 2020 the applicant was transferred to Siedlce Prison. Initially, as she had a sufficient supply of the medication, she continued the hormone treatment. 13 .     On 28 May 2020 the applicant applied to the governor of Siedlce Prison for permission to be sent medication from outside the prison. The head of the medical unit in Siedlce Prison did not support her application. In a note of 28   May 2020 to the prison governor, the head of the prison’s medical unit stated that the administration of female hormones to a man in a prison setting without a thorough psychological-psychiatric expert opinion and endocrinological tests recommended by a consultant endocrinologist was very risky. On 2 June 2020 the deputy governor noted on her application “I leave the request without examination pending an opinion of an endocrinologist”. 14.     The Government submitted that the authorities of Siedlce Prison had taken measures which had been aimed at ensuring necessary medical consultations for the applicant. The prison governor had requested Professors Z.M. and J.H. from the Institute of Psychiatry and Neurology in Warsaw to issue an opinion on the applicant’s condition. Allegedly, a consultation with an endocrinologist had also been scheduled. The applicant disputed those submissions, asserting that they were not corroborated by any documents. She stated that she had been informed that she needed to have a consultation with an endocrinologist, however such an appointment could not take place in the prison on account of COVID-19 restrictions. 15 .     On 2 July 2020 the applicant’s lawyer asked the Siedlce Prison governor to allow the applicant to continue hormone therapy in prison. In support of the request, medical opinions and the applicant’s medical files were provided.   In particular, in an opinion dated 30 June 2020, prepared by Dr   D., the psychiatrist-sexologist, it was noted that the applicant had been undergoing a gender reassignment procedure. She had been undergoing hormone therapy since 23   January 2019 and the treatment was necessary for her. In the event that the therapy was interrupted, the applicant might suffer significant deterioration of her physical and mental health (including depression and self-harm). 16 .     On 6 July 2020 an expert opinion was issued by an endocrinologist-sexologist, Dr K.-N. It had been prepared on the basis of Dr D.’s opinions, at the request of a person close to the applicant. The endocrinologist prescribed the applicant hormone therapy, stressing that the treatment was essential for the applicant’s physical and mental health. Furthermore, the hormone substitute therapy was necessary in view of the fact that the applicant had performed genital self-mutilation. 17.     On 8 July 2020 the applicant’s lawyer submitted the above ‑ mentioned opinion to the Siedlce Prison governor. He also stated that Dr   K. ‑ N. was available for an online consultation with the applicant. 18.     The applicant ran out of medication on 18 July 2020 and her hormone treatment was interrupted as of that date. 19 .     On 24 July 2020 the applicant asked to be allowed to have a private medical consultation with an endocrinologist. The consultation took place on 5   August 2020, after an interim measure had been issued by the Court (see paragraph   23 below) and the applicant was prescribed hormone therapy. 20.     By a letter of 28 August 2020, the Regional Director of the Prison Service informed the applicant that her representatives’ complaints were ill ‑ founded. 21 .     In separate proceedings, on 2 March 2023 the Olsztyn Regional Court gave a judgment based on Article 189 of the Code of Civil Procedure, granting the applicant’s request for legal gender recognition.     INTERIM MEASURE INDICATED BY THE COURT 22 .     Meanwhile, on 29 July 2020 the applicant’s representative lodged a request for an interim measure under Rule 39 of the Rules of Court, requesting that the Court order the provision of hormones prescribed by her endocrinologist to the applicant. 23 .     On 30 July 2020 the Court applied the interim measure in accordance with Rule 39, indicating to the respondent Government: “to administer the applicant ... with hormones prescribed by her endocrinologist (Lutein and Estrofem) in doses prescribed, at her own expense, until otherwise decided by an endocrinologist”. 24 .     According to the information provided by the parties, the applicant received the medication on 31 July 2020. RELEVANT LEGAL FRAMEWORK AND PRACTICE         DOMESTIC LAW AND PRACTICE    Code of Execution of Criminal Sentences 25.     Under Article 6 of the Code of Execution of Criminal Sentences ( Kodeks Karny Wykonawczy ), a convicted person is entitled to lodge applications, complaints and requests with the authorities enforcing that person’s sentence. 26 .     Article 7 §§ 1 and 2 provides that a convicted person may challenge before a court any decision given by a judge, a prison judge, the governor of a prison or a remand centre, a regional director or the Director General of the Prison Service, or a court probation officer. Article   7 § 1 of the Code states that such a decision may be challenged on grounds of its “non ‑ compliance with the law” unless otherwise provided for by law. 27 .     The remainder of Article 7 reads as follows: “3.     Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the delivery or the service of the decision; the decision [in question] shall be delivered or served with a reasoned opinion and instructions regarding the right [to lodge an appeal and] the deadline and procedure for [doing so]. An appeal shall be lodged with the authority that delivered the contested decision. If [that] authority does not [allow] the appeal, it shall refer it, together with the case file and without undue delay, to the relevant court. 4.     The court that has jurisdiction to examine the appeal may suspend the enforcement of the contested decision ... 5.     Having examined the appeal, the court shall decide either to uphold the contested decision or to quash or vary it; the court’s decision may not be subject to an interlocutory appeal.” 28.     Article 102 § 10 guarantees a convicted person the right to lodge applications, complaints and requests with other relevant authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, prison judges, prosecutors and the Ombudsman. 29 .     Article 115 concerns medical care in detention facilities and provides, in so far as relevant, as follows: “1.     A sentenced person shall receive medical care, medication and sanitary items free of charge. ... 4.     Medical care shall be provided primarily by healthcare establishments for persons serving prison sentences. ... 6.     In particularly justified cases, the governor of the prison may allow the prisoner, at his or her own expense, to be treated by a doctor of his or her choice, by a provider other than that referred to in paragraph 4, and to receive additional medication and other medical equipment.”    Civil Code 30 .     Article 23 of the Civil Code contains a non-exhaustive list of “personal rights” ( dobra osobiste ) and states as follows: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of   correspondence, inviolability of the home, scientific or artistic work, [as well as], inventions and improvements shall be protected by civil law regardless of the protection laid down in other legal provisions.” 31 .     Article 24 provides means of redressing infringements of personal rights. In accordance with that provision, a person whose rights are at risk of being infringed by a third party may seek an injunction, unless the activity is not unlawful. In the event of infringement, the person concerned may, inter alia , require the party who caused the infringement to take the necessary steps to eliminate the consequences of the infringement, for example by making a relevant statement in an appropriate form or asking the court to award an appropriate sum for the benefit of a specific public interest. If an infringement of a personal right caused financial loss, the person concerned may seek damages under Article 448.    Code of Civil Procedure 32 .     Under Article 730 of the Code of Civil Procedure, a party may apply to a court for an interim order for the purpose of securing a claim. This provision states, in so far as relevant, as follows: “1.     The granting of an interim order may be requested by any party or participant in the proceedings if he or she substantiates the claim and the legal interest in granting the measure.”    Patients’ Rights Act 33 .     Section 31 of the Law of 6 November 2008 on patients’ rights and the Patients’ Rights Ombudsman ( ustawa o prawach pacjenta i Rzeczniku Praw Pacjenta – “the Patients’ Rights Act”) provides, in so far as relevant, as follows: “1.     The patient or his or her statutory representative may raise an objection to an opinion or decision ( orzeczenie ) referred to in section 2(1) of the [the Medical Profession Act] if the opinion or decision affects the patient’s rights or obligations under the law. 2.     The objection shall be submitted to the Medical Commission attached to the Patients’ Rights Ombudsman through the Patients’ Rights Ombudsman within thirty days from the date of issuance of the opinion or decision by the doctor who [has] evaluate[d] the patient’s condition. 3.     The objection shall require a justification, including an indication of the provision of law from which the rights or obligations referred to in subsection 1 derive. 4.     If the requirements set out in subsection 3 are not met, the objection shall be returned to the person who submitted it. 5.     The Medical Commission shall, on the basis of medical records and, where necessary, after examining the patient, issue a ruling without delay, but no later than within thirty days from the date on which the objection was submitted. 6.     The Medical Commission shall issue a ruling by an absolute majority of votes, in the presence of all its members. 7.     There shall be no appeal against the decision of the Medical Commission. 8.     The provisions of the Code of Administrative Procedure shall not apply to proceedings before the Medical Commission...”     Medical Profession Act 34 .     Section 41(1) of the Law of 5 December 1996 on the Medical Profession ( ustawa o zawodach lekarza i lekarza dentysty – “the Medical Profession Act”) provided at the material time, in so far as relevant, as follows: “A physician shall decide on the state of health of a particular person after first examining him or her in person or ... by means of telecommunication systems or after analysing the available medical records of that person.”       RELEVANT INTERNATIONAL Material    United Nations   35 .     The UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment addressed the healthcare needs of transgender people in its eighth annual report of 26   March   2015 (CAT/C/54/2), which stated as follows: “68.     In particular, the Subcommittee notes with concern the situation of complete abandonment of transgender women and men in detention ... ... 71.     Ill ‑ treatment also occurs on the part of health professionals and in health care settings, and it includes denial of gender-appropriate medical treatment, verbal abuse and public humiliation, psychiatric evaluations, sterilization, and hormone therapy and genital normalizing surgeries under the guise of so called ‘reparative therapies’... 72.     The Subcommittee encourages States parties to develop and implement public health policies aimed at providing gender-appropriate care, an obligation that extends, particularly, to the satisfaction of the highly particular needs of transgender women and men and of intersex persons.” 36 .     Subsequently, in its ninth annual report of 22   March   2016 (CAT/C/57/4), the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stated as follows: “72.     Strengthening the protection of people deprived of their liberty requires the adoption of legislative, administrative and judicial measures. To be adequate, such measures require diligent risk assessment, including the identification of causes, forms and consequences of violence and discrimination ...” 37.     The United Nations Standard Minimum Rules for the Treatment of Prisoners (“the Nelson Mandela Rules”), A/RES/70/175, as the global key standards for the treatment of prisoners adopted by the United Nations General Assembly on 17 December 2015, in so far as relevant, as follows: “Rule 7 No person shall be received in a prison without a valid commitment order. The following information shall be entered in the prisoner file management system upon admission of every prisoner: (a) Precise information enabling determination of his or her unique identity, respecting his or her self-perceived gender. ...”    Council of Europe      Committee of Ministers 38 .     The Recommendation adopted by the Committee of Ministers on 31   March 2010 (CM/Rec(2010)5) on measures to combat discrimination on grounds of sexual orientation or gender identity, provides, in so far as relevant: “4.     Member states should take appropriate measures to ensure the safety and dignity of all persons in prison or in other ways deprived of their liberty, including lesbian, gay, bisexual and transgender persons, and in particular take protective measures against physical assault, rape and other forms of sexual abuse, whether committed by other inmates or staff; measures should be taken so as to adequately protect and respect the gender identity of transgender persons.” 39.     The European Prison Rules (Recommendation Rec(2006)2 of the Committee of Ministers to member States, adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies), as applicable at the relevant time and in so far as relevant, read as follows: “15.1 At admission, the following details shall be recorded immediately concerning each prisoner: a.     information concerning identity; ...” 40.     In its revised and updated Commentary to the European Prison Rules, the Council of Europe Committee on Crime Problems addressed the issue of gender identification of prisoners. The relevant part of the Commentary reads as follows: “Note that, for Rule 15.1.a to fulfil its purpose sufficient information should be collected to establish the unique identity of the prisoner, including his or her self ‑ perceived gender (see Rule 7.a of the Mandela Rules). The general approach to this issue is spelt out in Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity.”      Council of Europe Commissioner for Human Rights 41 .     In October 2009 the Council of Europe Commissioner for Human Rights published an Issue Paper entitled “Human rights and gender identity” in which he stated the following with respect to access to hormone therapy for transgender prisoners (p. 16 note 60): “Similar problems are faced by transgender people in prison who may face periods of time without hormone therapy. This may result in a long time without treatment and may cause serious health problems, such as the development of osteoporosis in transsexual men, and irreversible physiological changes to take place such as the development of baldness in transsexual women. Transsexual people will frequently face difficulties in accessing assessment, hormone therapies, or surgery as many prisons or prison systems feel they do not have the facilities to manage transsexual prisoners, or in some cases they are seen as [forgoing] their right to such treatments because of their conviction.”      European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 42.     The CPT standards concerning healthcare services in prisons, the 3rd General Report (CPT/Inf (93) 12), published on 4 June 1993, provide as follows: “38.     A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).” 43 .     The CPT has also made a number of findings specifically concerning access to hormone treatment in prison, following visits to prisons in the Council of Europe’s member States. In particular, the relevant part of the Report to the Austrian Government on the visit to Austria carried out from 22   September to 1 October 2014 (CPT/Inf (2015) 34), published on 6   November 2015, reads as follows: “116.     Thirdly, the delegation met one inmate who indicated that she was transgender. She stated that she was allowed to wear women’s clothes inside her cell when the door was closed, although when she was in the company of others, she had to wear men’s clothes. She said that she had come out as a woman two years before and had not had any trouble with other inmates. She had now stopped therapy as her therapist had allegedly refused to discuss her gender identity issue. She said that she wanted to have a legal gender reassignment, hormone therapy and gender reassignment surgery, but had been told that she could not start cyproterone acetate and oestrogen treatment in prison, and that surgical and legal reassignment would be completely out of the question. This statement was confirmed by staff. The CPT notes that gender reassignment procedures such as hormone treatment, surgery and psychological support are available to transgender persons in Austria. In addition, there are procedures in place for changing the name and sex of a transgender person on identity cards and other official documents. In the CPT’s view, persons deprived of their liberty should not be excluded from benefiting from these treatments and legal procedures provided for by law for transgender persons in Austria. The Committee recommends that the Austrian authorities take the necessary steps to ensure that transgender persons in prisons (and, where appropriate, in other closed institutions) have access to assessment and treatment of their gender identity issue and, if they so wish, to the existing legal procedures of gender reassignment. Further, policies to combat discrimination and exclusion faced by transgender persons in closed institutions should be drawn up and implemented.” 44.     In addition, the relevant parts of the Report to the Greek Government on the visit to Greece carried out from 8 to 11 November 2022 (CPT/Inf (2023) 24), published on 31 August 2023, read as follows: “42.     The Prison Law (2776/1999), as amended by Law no.   4895/2022 of 28   October 2022, now prohibits discrimination based on gender or gender identity and sexual orientation, and advocates special treatment for prisoners for reasons of gender where required (see Article 3). This is a welcome step forward in recognising that prisoners may have different needs and that there should be an equality in the treatment of persons in prison. However, there remains a need to develop a clear framework for the treatment of transgender persons who are detained in prison, in accordance with Principle 9 of the 2017 Yogyakarta Principles plus 10 [footnote omitted]. Such a framework should address both the policies towards the placement and management of transgender persons in prison and should include clear protocols with regard to such issues as searches, use of force, staffing, healthcare and treatment (hormone or gender affirming surgery) and association and access to activities together with cisgender prisoners. Further, prison staff should be offered programmes of training and awareness raising on working with transgender persons in prison. ... 47     ... In particular, the CPT recommends that the Greek authorities: – develop a clear policy framework for transgender persons in prison in accordance with the Yogyakarta Principles, which should include protocols on such issues as searches, use of force, staffing, healthcare and treatment (hormone and/or gender affirming surgery) and association and access to activities together with cisgender prisoners; ...” 45.     Most recently, in its report published on 13   December   2023 (CPT/Inf (2023)   35) following a periodic visit to Portugal carried out from 23   May to 3   June 2022, the CPT noted the following: “101.     Regarding access to specialised healthcare, women were able to continue or start any hormonal treatment while in prison, but surgical interventions had to be deferred until after release. Two of the women said that they met with the prison psychologist, at least occasionally. One had allegedly not yet met a psychologist in the prison since her admission two months ago. The Committee recommends that the Portuguese authorities take the necessary steps to ensure that transgender persons in prisons (and, where appropriate, in other closed institutions) have access to assessment and treatment in the same conditions as in the community. Access to counselling and psychological support should also be systematically offered to transgender persons in prisons.” THE LAW         THE GOVERNMENT’s PRELIMINARY OBJECTIONS 46.     The Government raised several preliminary objections. They argued that the applicant could not be considered a victim of the alleged violations and that she had not exhausted domestic remedies.    Alleged lack of victim status of the applicant      The parties’ submissions 47.     The Government submitted that the duration of the period during which the applicant had been denied the hormone therapy had been very short, from 18 to 31 July 2020, that is, fourteen days. Before 18   July 2020 and after 31 July 2020 the applicant had undergone the therapy in question. In the Government’s view, there were no acts or omissions attributable to the State which would have entitled the applicant to claim to be a victim of a breach of the Convention. 48.     The applicant submitted that she had been directly affected by the interruption of the hormone treatment. She stated that it had only been because of the Court’s interim measure of 30 July 2020 that she had been able to receive the medication.      The Court’s assessment 49.     The Court finds that the question whether the applicant can be regarded as a “victim” relates to the substance of her complaints. It therefore considers that this particular objection raised by the Government should be joined to the merits of the case.    Non-exhaustion of domestic remedies      The parties’ submissions 50.     The Government submitted, firstly, that the applicant had failed to make use of the remedy provided in Article 7 of the Code of Execution of Criminal Sentences (see paragraph 26 above). She should have lodged an interlocutory appeal with the post-sentencing court against the prison governor’s decision of 28 May 2020. In the Government’s view, had the applicant lodged such an appeal she could have been granted access to hormone therapy without the Court’s intervention. 51.     Secondly, the Government argued that since the head of the medical unit in Siedlce Prison had not supported the applicant’s request to be sent medication from outside prison, she could have appealed against the doctor’s decision to the Medical Commission under section   31(1) of the Patients’ Rights Act (see paragraph 33 above). 52.     Lastly, the Government argued that the applicant could have brought an action under Articles 23 and 24 of the Civil Code, seeking compensation for infringement of her personal rights (see paragraphs 30 and 31 above). They also submitted that it had been possible for her to apply for an interim measure under Article   730 of the Code of Civil Procedure in order to secure her claim. She could have also brought a civil claim against Siedlce Prison under Article   448 of the Civil Code (see paragraph 31 above), seeking compensation in respect of non-pecuniary damage sustained on account of an infringement of her personal rights. 53.     The applicant disagreed with the Government. She submitted, firstly, that they had failed to provide any examples of a successful use of an appeal under Article 7 of the Code of Execution of Criminal Sentences in circumstances similar to those in her case. She stressed that the annotation made on her request to receive medications on 28 May 2020 had expressly stated that the request would be left unexamined until an endocrinologist had given an opinion (see paragraph 13 above). Since the deputy governor of Siedlce Prison had explicitly written that he would not decide on the applicant’s request, in the applicant’s view, such annotation could not have been regarded as a decision which was subject to appeal under Article   7 of the Code of Execution of Criminal Sentences. Furthermore, the annotation had not been reasoned, the applicant had never been informed that it constituted a decision amenable to appeal and she had not been instructed on any appeal rights. In her view, it could not be stated that she had failed to use a remedy under domestic law since there had been no decision against which she could have appealed. In any event such an appeal would have been ineffective in her case, as an appeal under Article   7 could only be lodged on grounds of unlawfulness and not with reference to the facts of the case. It was thus doubtful whether the post-sentencing court would have examined her appeal since the issue in the present case was whether it had been necessary to provide her with prescribed medication from outside of prison in order to secure her life, health and well-being. 54.     As regards the civil remedies provided under Articles   23, 24 and 448 of the Civil Code, the applicant submitted that since these were purely compensatory remedies, they would not have provided her with necessary relief, since her grievances had essentially concerned the speedy administration of hormone medication. A civil action for compensation and infringement of personal rights would not have prevented the deterioration of her mental and physical health caused by the sudden interruption of the hormone therapy. Furthermore, the request for an interim measure under Article   730 of the Code of Civil Procedure would not have constituted an effective remedy in her case. She submitted that the Government had failed to provide current statistics indicating the average length of the proceedings for securing a claim. According to the statistics from 2006 to 2010 it had taken at least one month and, in some cases, almost one year to deliver a decision on an interim measure.      Third party’s submissions 55 .     The Commissioner for Human Rights of the Republic of Poland (“the Commissioner”), third-party intervener, expressed doubts as to the availability and effectiveness of the remedy under Article 7 of the Code of Execution of Criminal Sentences. The Commissioner submitted that decisions made by the governor of a penal institution relating to prisoners’ healthcare were based on an opinion from the prison’s medical unit and subject to control by the post-sentencing court pursuant to Article   7 of the Code of Execution of Criminal Sentences. However, since such decisions were based on medical opinions, they were rarely overturned. 56 .     The Commissioner stated that prison judges only examined the lawfulness of such decisions and did not verify the factual basis on which the decision had been issued, nor did they appoint experts. Thus, in the Commissioner’s view, the appeal procedure at the relevant time did not constitute an effective remedy for prisoners denied certain medical treatments and the possibility of an inmate’s successfully appealing against a governor’s decision which had been issued on the basis of a prison doctor’s opinion was illusory.      The Court’s assessment 57.     The Court notes that the general principles on the exhaustion of domestic remedies were reiterated in Vučković and Others v.   Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§   69 ‑ 77, 25   March   2014). 58.     It further notes that in terms of the burden of proof, it is up to the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, among many other authorities, Scoppola v.   Italy (no.2)   [GC], no.   10249/03, § 71, 17 September 2009). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others , cited above, §   77). 59.     In the present case, the Government pleaded, in general terms, that an appeal under Article 7 of the Code of Execution of Criminal Sentences constituted an effective remedy. The Court observes that under that provision any decision issued by a prison governor may be challenged on grounds of its “non-compliance with the law” (see paragraph 26 above). It further notes that the applicant disputed whether the annotation on her request could have been considered a “decision” for the purposes of Article   7 of the Code of Execution of Criminal Sentences (see paragraph 27 above). She argued that the annotation had expressly stated that the request would be left unexamined pending an opinion of an endocrinologist, it had not been reasoned and she had not received any instructions regarding the right to lodge an appeal (see paragraphs   13 and 47 above). 60.     The Court accepts the applicant’s argument that the annotation to her written request cannot be regarded as a “decision” amenable to appeal and for that reason considers that an appeal under Article 7 of the Code on Execution of Criminal Sentences would not have been effective in the present case. It notes that while in the specific circumstances of a previous case against Poland ( see Lesław Wójcik v. Poland , no. 66424/09, §§   85 ‑ 87, 1   July 2021) the remedy in question was found to be effective, in that case the governor’s decisions, even though made by means of handwritten notes added to the applicant’s requests, included a clear “refused” ruling (ibid., §§   26 ‑ 28). Conversely, in the present case, there was no ruling as such and the request was left unexamined. The Court also points out that the Government failed to produce any examples of domestic practice indicating that in similar circumstances – where a prisoner’s request for a certain medical treatment was left unexamined – an appeal to the post ‑ sentencing court had been successful. Thus, the effectiveness of that remedy for the purposes of Article   35 § 1 of the Convention has not been demonstrated. Consequently, in view of the considerations above and given the absence of any examples in domestic practice, the Court is unable to accept the Government’s objection and considers that the applicant was not required to avail herself of this legal avenue. 61.     The Government further asserted, in general terms, that a complaint under section 31 of the Patients’ Rights Act was an effective remedy that could have put right the alleged violation. However, they failed to explain how it could have specifically remedied the applicant’s grievances, in the sense of remedying the state of affairs directly and providing her with the requisite redress for the purposes of Article   35 §   1 of the Convention (see Vučković and Others , cited above, §   77, and Juszczyszyn v.   Poland , no.   35599/20, §   241, 6   October 2022). 62.     As regards civil remedies, the Court observes that they were exclusively of a compensatory nature and could only lead to an a posteriori award of monetary compensation. In that context, the Court reiterates that no civil action against a prison or a prison doctor can offer a detainee reasonable and timely prospects of securing more adequate medical care or his or her release from detention (see Normantowicz v.   Poland , no.   65196/16, §   71, 17   March   2022, and the cases cited therein). As regards medical care in prison, the Court has already held that remedies of a purely compensatory nature can be regarded as effective only in respect of applicants who have either been released or placed in conditions that meet Convention standards (see Orchowski v.   Poland , no. 17885/04, §§   108 and   109, 22   October   2009). In view of these considerations, the Court fails to see how the civil remedies mentioned by the Government could have been effective in the specific circumstances of the present case. 63.     The Government’s objection of non-exhaustion of domestic remedies must therefore be dismissed.    Overall conclusion on admissibility 64.     The Court notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible.       ALLEGED VIOLATION OF ARTICLEs 3 and 8 OF THE CONVENTION 65.     The applicant complained under Article 3 of the Convention that the refusal to allow her to continue hormone therapy in Siedlce Prison had amounted to inhuman and degrading treatment. She further alleged that the refusal in question also constituted a violation of Article 8 as it had breached her right to respect for her private life and to self-determination. The relevant provisions read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”    Legal characterisation of the complaints 66.     The Court finds that the refusal to allow the applicant to continue hormone therapy in Siedlce Prison may raise issues under both Articles of the Convention relied upon, n