WENERSKI proti Polsku

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44369/02
by Ernest WENERSKI
against Poland

The European Court of Human Rights (Fourth Section), sitting on 17 October 2006 as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 29 November 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ernest Wenerski, is a Polish national who was born in 1970 and lives in Łódź.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Facts relating to the complaint under Article 3 of the Convention about lack of proper medical care in a detention centre

The applicant was charged with robbery and detained on remand in the Wołomin Detention Centre and later in the Łódź Detention Centre at least from 18 December 2001 to an unknown date. It may be inferred from the case file that he was also serving during this period prison sentences in respect of various convictions.

The applicant suffers from severe ophthalmologic problems. In 1996, before being detained, his right eye had been removed as a result of which he is one-eyed. His problem concerns mainly the socket of his extracted eye.

On 14 February 2002, while he was detained on remand, the necessity of another ophthalmologic operation (reconstruction of his eye socket) was discovered by a medical expert. Several hospitals refused to operate on the applicant as special medical conditions had to be in place. On 18 September 2002 one of the hospitals agreed to perform the operation. However, as stated in the applicant’s health certificate of 29 April 2002, that hospital refused to perform it “under escort” which implied that he would be transported back to a detention centre hospital immediately after the operation. The applicant’s operation was scheduled for 27 May 2002, but it was not performed since he was granted neither a release from detention nor a stay in serving his prison sentence.

On 31 July 2002 a letter was sent by the Wołomin District Court to the detention centre hospital requesting information about the possible consequences of the postponement of the operation for a couple of months.

In the meantime, the operation was scheduled for 22 September 2002, but once again it was not performed.

By a letter of 8 October 2002 the hospital, which had agreed to perform the operation, eventually agreed to the operation being performed “under escort” and scheduled the operation for 19 November 2002. By a letter of 29 October 2002 another hospital confirmed that an operation on the applicant could be carried out “under escort”. For reasons unknown, the operation was not performed.

In the applicant’s medical documentation dated 19 November 2002 it was stated that the operation should be performed immediately.

On 31 December 2002 the Łódź Detention Centre, in reply to a letter of 26 August 2002, informed the Wołomin District Court that an operation was scheduled for 4 February 2003 and any postponement of the planned treatment of the applicant might harm his health and endanger his life. Nevertheless, as transpires from the case file, the operation was not performed on that date.

On 10 November 2004 another specialist gave an opinion on the applicant’s health in which he stated that the operation had merely an aesthetic purpose and that it could be performed “under escort” in January 2005.

By a letter of 12 April 2005 another hospital, which had been asked to perform the operation, refused to do so.

In the applicant’s medical documentation covering the period from July until October 2005 it was repeatedly stated that the operation should be performed immediately.

On 17 January 2006 the applicant was transported to a hospital to see a doctor.

By a letter of 15 March 2006 the applicant informed the Court that the operation had not yet been performed. He stressed that his state of health had seriously deteriorated and that he was suffering from inflammation of his eye socket.

The applicant used various means in order to draw the attention of the authorities to his health problems.

On numerous occasions he requested to be released from detention on remand on account of his health problems. His requests were repeatedly refused (the decision of the Wołomin District Prosecutor of 4 March 2002 and the decisions of the Wołomin District Court of 30 July 2002 and 12 November 2002). His appeal against the decision of 4 March 2002 was dismissed (the Warsaw Regional Prosecutor’s decision of 5 April 2002).

The applicant also tried to challenge his detention by lodging an appeal against a detention order of 20 November 2002 prolonging his detention on remand. By the decision of the Warsaw Regional Court of 13 December 2002 his appeal against the detention order of 20 November 2002 was dismissed.

The applicant also lodged requests for a stay in serving his prison sentence for the period of his treatment in hospital. His requests were refused by the Łódź Regional Court decisions of 2 December 2002, 29 November 2004 and 27 February 2006.

The courts repeatedly stated in their reasons for their decisions that the requested operation could be performed “under escort” and that the delay in performing the operation would not result in any deterioration of the applicant’s health. In its refusal of 27 February 2006 the court also relied on the fact that the inflammation of the applicant’s eye socket was a medical contra-indication which argued against the immediate performance of the operation. It considered that the operation should be delayed until the inflammation had healed.

The applicant also lodged numerous complaints with the authorities responsible for the detention centres as well as with supervisory institutions about the lack of proper medical care, but all his complaints were found to be unsubstantiated. The authorities repeatedly stated that the applicant had been seen by doctors on numerous occasions, that he had been given all medicines prescribed for him and that there were no medical arguments against the operation being carried out “under escort” (letters of the Warszawa-Białołęka Detention Centre of 10 January 2003 and the Warsaw Regional Inspectorate of 27 January 2003). It was also emphasised that the applicant had not proved that he had used the stays in serving his prison sentence, which he had been previously granted, in compliance with their purpose (undergoing medical treatment) as he had not submitted any medical documentation in respect of these periods. It was further emphasised that he had been arrested on suspicion of having committed criminal offences on several occasions during these stays. It was not stated whether these suspicions had resulted in any convictions. The applicant contested the finding that he had not undergone any medical treatment during the periods when he had been granted stays in serving his prison sentence. He instituted criminal proceedings against the health care institution of the detention centre on a charge of making a false statement, as described below. In the course of these proceedings it was established that the applicant had undergone some medical treatment during the contested periods (he had his eye removed).

2. Facts relating to the complaint under Article 8 and Article 34 of the Convention

The applicant submitted an envelope sent to him from the Court, bearing the logo of the Council of Europe. It bears a stamp “censored” and also a stamp of the Warszawa-Białołęka Detention Centre with the date 9 April 2003 and an illegible signature. It also bears a stamp of the Council of Europe with the date 25 March 2003. It transpires from the case file that the applicant was not present when the correspondence was censored. Furthermore, the applicant claims that his correspondence was stopped for about a month.

3. Facts relating to other complaints

a) criminal proceedings against the applicant and proceedings instituted by the applicant against police officers

On 21 December 1999 the applicant was charged with robbery.

On 30 August 2002 the applicant was escorted by police officers to a hearing.

On an unknown date he instituted criminal proceedings against the police officers who had escorted him, charging them with having threatened him.

On 11 March 2003 the District Prosecutor discontinued the proceedings as no offence had been found. The applicant did not appeal against this decision, although an appeal was available.

On 23 December 2002 the Łódź Regional Court sentenced him to ten years’ imprisonment. On 7 February 2003 he appealed.

On 5 June 2003 the Lodz Court of Appeal upheld the judgment. The applicant did not lodge a cassation appeal against this judgment, although an appeal was available.

b) criminal proceedings against a third party

On an unknown date the applicant instituted criminal proceedings against the health care institution of the detention centre on a charge of falsification of statements in the applicant’s health certificate. According to this certificate, the applicant had not used the stays in serving his prison sentence in compliance with their purpose (undergoing medical treatment). The applicant contested this fact, claiming that he underwent medical treatment during the stays and he indicated the health care institutions where he had been treated.

On 9 December 2002 the District Prosecutor discontinued the proceedings as no offence had been found. It was conceded that the applicant had undergone some medical treatment during one of his stays (he had his eye removed). The question whether the applicant had undergone any other medical treatment during the stays was left unanswered. The applicant did not lodge an appeal, although an appeal was available.

On an unknown date the applicant again instituted criminal proceedings against the health care institution of the detention centre on the same charge as mentioned above.

On 24 February 2002 the District Prosecutor discontinued the proceedings as no offence had been found. The reasoning of the decision was the same as that used in the decision of 9 December 2002. The prosecutor focused on the fact that the health certificate had been issued on the basis of documentation in the possession of the detention centre and that the prison authorities had no documents proving that the applicant, during the stays in his sentence, had undergone any medical treatment other than to have his eye removed. The question whether any other treatment had been received by the applicant was again left unanswered. The applicant did not lodge an appeal, although an appeal was available.

B. Relevant domestic law

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 6 June 1997 (in force from 1 September 1998).

Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:

“Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”

Article 105 § 4 provides:

“The prison governor shall make decisions concerning the stopping or censorship of correspondence if it is required by prison security considerations [and] shall inform the penitentiary judge and the convict about such.”

Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.

Article 209

“The provisions concerning the execution of sentences shall apply accordingly to the execution of detention on remand, subject to changes resulting from this chapter.”

Article 214 § 1

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 217 § 1 reads, in so far as relevant, as follows:

“(...) detainee’s correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.”

Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:

“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the contents of a letter.”

At the material time the Rules of Detention on Remand of 12 August 1998 were in force.

Paragraph 36 of the Rules provides:

“The detainee’s correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.”

Paragraph 37 provides:

“1. If the organ at whose disposal [a detainee] remains ceases to censor correspondence, it shall be subject to the supervision or censorship by the prison administration, except for cases referred to in Article 73 of the Code of Criminal Procedure and Articles 102 (11) and 103 of the Code [of Execution of Criminal Sentences].

2. The correspondence of a detainee shall be supervised by the prison administration when necessary in the interest of protecting social interest, the security of a detention centre or requirements of personal re-education.

3. The supervision referred to in paragraph 2 shall be executed by controlling the content of the correspondence and acquainting oneself with its wording.

4. The correspondence referred to in Articles 8 § 3, 102 (11) and 103 § 1 of the Code [of Execution of Criminal Sentences] may be only subjected to the control of its content, which shall take place in the presence of a detainee.”

Paragraph 38 provides:

“1. Detainee’s correspondence shall be censored or seized by the prison administration in the case referred to in Article 105 § 4 of the Code [of Execution of Criminal Sentences].

2. Censorship shall mean deleting a part of text or making it illegible, whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file.

3. The decision to censor or to seize correspondence shall be taken by a Governor, who shall inform a detainee about the reasons for censorship or for seizure.

4. For controlling purposes a copy of the correspondence before it was censored shall be placed in the detainee’s personal file; if the detainee consults the file, copies of the correspondence before it was censored and the seized correspondence shall not be made available [to him].”

COMPLAINTS

The applicant complains under Article 3 of the Convention that he did not have proper medical care while detained. He complains that the date for his operation was repeatedly postponed and that the authorities were responsible for this. He claims that the delay in performing his operation resulted in the deterioration of his health and other forms of suffering.

He further complains under Article 8 he seems to complain under Article 34 that his correspondence had been stopped for a month and censored while he was detained on remand.

He also complains under Article 3 that his food rations were reduced and that police officers uttered threats against him while he was being escorted to the court-room.

He further complains under Article 6 about the outcome of two sets of proceedings which he had instituted against a third party.

Finally he complains under Article 6 about the outcome of proceedings instituted against him on a charge of robbery.

THE LAW

1. The applicant complains under Article 3 of the Convention that he did not have proper medical care while in detention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with the Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

2. He also complains under Article 8 and Article 34 that his correspondence was stopped and censored while he was detained on remand.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with the Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.

3. He further complains that police officers uttered threats against him when he was being escorted to the court room.

The Court notes that the applicant did not lodge an appeal against the District Prosecutor’s decision of 11 March 2003 to discontinue these proceedings, although this remedy was available to him. The Court finds that this part of the application is inadmissible for non-exhaustion of domestic remedies and as such must be rejected in accordance with Article 35 §§1 and 4 of the Convention.

4. The applicant complains under Article 3 that his food rations were reduced. However, the Court observes that the applicant stated in his letter of 15 March 2006 that his food rations were no longer being reduced. It appears that the applicant was merely dissatisfied with the amount of food he received and nothing in the case file suggests that these reductions were substantial. In particular, he did not claim that he had suffered from hunger as a result.

The Court considers that the complaint is manifestly ill-founded and as such must be rejected in accordance with Article 35 §§3 and 4 of the Convention.

5. The applicant complains under Article 6 about the outcome of two sets of criminal proceedings which he had instituted against a third party (the health care institution on a charge of falsifying statements in the applicant’s health certificate).

By decisions of 9 December 2002 and 24 February 2003 the District Prosecutor discontinued the proceedings as he found that no offence had been committed. The applicant did not appeal against these decisions, although an appeal was available to him. Even assuming that this part of the application is within the ambit of Article 6, the Court finds it inadmissible for non-exhaustion of domestic remedies and as such must be rejected in accordance with Article 35 §§1 and 4 of the Convention.

6. The applicant finally complains under Article 6 about the outcome of criminal proceedings instituted against him on a charge of robbery.

In so far as the complaint can be considered as related to the fairness of the proceedings, which issue alone can be examined under Article 6, the Court observes that the applicant did not lodge a cassation appeal against the Łódź Court of Appeal’s judgment of 5 June 2003, although an appeal was available. Therefore, this part of the application is inadmissible for non-exhaustion of domestic remedies and as such must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the alleged improper medical care in the detention centre and censorship of his correspondence with the Court;

Declares the remainder of the application inadmissible.

T.L. Early Nicolas Bratza
Registrar President