CASE OF BUJAK v. POLAND
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
András Sajó;Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1954 and lives in Sarbice Pierwsze. 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. 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 ’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. 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.