CASE OF JANUSZ WOJCIECHOWSKI v. POLAND
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1950 and lives in Warsaw. 6. The applicant was detained from 15 June 2007 until 21 January 2009 after a conviction. It appears that he was at first committed to a semiopen facility, Dobrowo Remand Centre, and following his reclassification as a habitual offender, to a closed-type facility, Koszalin Remand Centre. 7. The following findings were made by the domestic courts in the course of the civil proceedings described below (see paragraphs 2433 below). Neither the applicant nor the Government contested them. 8. For 309 days of his total period of detention in Koszalin Remand Centre, the applicant was held in cells which did not conform with the statutory minimum size of 3 sq. m per person. More particularly, the applicant had between 1.9 to 2.6 sq. m of personal floor space in his cells. 9. Initially, the toilet facilities in Koszalin Remand Centre were not separated from the living area of the cells in question. In 2008 or 2009, however, construction work started and the toilets were gradually enclosed by concrete walls with a door. 10. All of the applicant’s cells were well-lit, ventilated and, when necessary, heated. They were equipped with enough bunk beds for each detainee to have a separate place to sleep, as well as a table, stools and cupboards. 11. In 2009 the Koszalin Remand Centre’s day-room was turned into cells. However, detainees continued to have access to a library and various forms of leisure and cultural activities. 12. It appears that in Koszalin Remand Centre the applicant had one hour of outdoor exercise per day. Initially, the applicant had one hot shower per week. From 18 October 2007 that number was increased to five per month. 13. The applicant was assigned a top bed. He submitted that that was contrary to medical recommendations because he had health problems (see paragraphs 17-20 below). He did not submit any documents to that effect. 14. The applicant submitted that for the whole of 2008 he had not been able to attend Sunday Mass at the remand centre. 15. As established by the domestic courts (see paragraphs 24-33 below), at the material time, three Catholic services had been organised on Sundays and one on religious holidays. Prisoners wishing to attend had to sign up with their supervisors (wychowawca). Subsequently, a list of persons approved for a particular Mass had been prepared by remand centre staff, with the help of a special computer program. The system had been designed to select prisoners on a rotation basis, according to their classification groups and in a way so as not to mix prisoners classed as dangerous detainees with those who did not require any special security measures. At times, however, individual prisoners were rejected because they did not belong to the group authorised to attend Mass on a particular day. 16. The remand centre register showed that the applicant had been authorised to attend Sunday Mass four times, twice in September and twice in November 2008. 17. The domestic courts established that three years before his detention the applicant had been admitted to hospital because of inflammation of the testicles, prostatic hyperplasia, pneumonia and an unspecified skin condition, for which he had received treatment similar to that usually prescribed for dermatitis (zapalenie skóry). 18. During his detention in Koszalin Remand Centre, the applicant often made appointments with the in-house doctor because of colds, back ache and prostate problems. On 15 November 2007 a drug called Prostamol was prescribed for the applicant, in compliance with his wish. Another medicine which the applicant had previously taken for his prostate condition, Doxar, was not in the remand centre’s stock. A generic medicine was offered to the applicant instead. Eventually, Doxar was sent to the prison by the applicant’s relatives. 19. The applicant also received treatment for a scalp condition, tinea versicolor (łupież pstry). In addition to that treatment, from 18 October 2007 onwards, he was entitled to an additional monthly shower. On 20 June 2008 the applicant was examined by a dermatologist and his skin condition was diagnosed as seborrhoeic dermatitis (łojotokowe zapalenie skóry), a chronic inflammatory scalp disorder. Consequently, the applicant’s treatment was changed slightly. It was also established that the first symptoms of that disorder had appeared prior to the applicant’s detention, in 2004. An expert in dermatology, appointed by the domestic court, excluded the possibility that the applicant had developed the illness because of contact with an allegedly dirty and mouldy mattress. The expert also concluded that the applicant had received the treatment which was usually prescribed in such cases by dermatologists. In the 18 months following diagnosis of the illness, the applicant was seen by a doctor on thirty occasions. Subsequently, throughout 2008, he made twelve medical appointments. 20. In 2008 the applicant also obtained dentures. 21. In 2007 and 2009 the applicant lodged a number of complaints with the Ombudsman, the Ministry of Justice and the relevant penitentiary court, informing them of the allegedly deplorable conditions of his detention, his inadequate medical care and of unreasonable restrictions on the practice of his religion during his detention in Koszalin Remand Centre. 22. On an unspecified date the Central Inspectorate of the Prison Service (Centralny Inspektorat Służby Więziennej) informed the applicant that his complaints had been considered ill-founded. It was established that the applicant had received adequate medical care. In particular, the remand centre had administered Prostamol and the other drug, Doxar, had been obtained with the authorities’ permission from the applicant’s relatives. The remand facility in Dobrowo had not registered any overcrowding. The applicant’s cells had been adequately furnished and there had been place for each detainee at the cell’s communal table. 23. In letters of 11 May and 15 June 2009, the authorities informed the applicant that he had had unrestricted access to religious services in Koszalin Remand Centre, in accordance with the special schedule. Moreover, the applicant’s placement in overcrowded cells had been in compliance with the law, namely Article 248 of the Code of the Execution of Criminal Sentences. 24. The applicant, who was represented by a lawyer, also brought a civil action for infringement of his personal rights on account of overcrowding, inadequate medical care and unreasonable restrictions on the practice of his religion in Koszalin Remand Centre by means of attendance of Sunday Mass. He claimed 50,000 Polish zlotys (PLN) (approximately 12,000 euros (EUR)) in compensation. The domestic courts examined the claim under Articles 23, 24, 417 and 448 of the Civil Code (Kodeks Cywilny). 25. On 14 December 2010 the Koszalin District Court (Sąd Rejonowy) held that the applicant’s placement in overcrowded cells for a period of 309 days during his detention constituted degrading and inhuman treatment within the meaning of domestic law and the Convention. 26. The rest of the applicant’s complaints were considered ill-founded. 27. The evidence which was obtained by the civil court, inter alia, the applicant’s medical history, witness testimony and the report of an expert in dermatology, had disproved the applicant’s allegations that he had contracted his skin condition in the remand centre because his mattress had been dirty and damp and that his illness had been inadequately treated. 28. The domestic court considered that in view of the fact that the applicant had been authorised to attend Sunday Mass a total of four times in September and November 2008 and in the light of the testimony of the prison chaplain that the applicant had been free to request attendance in Sunday Mass, it could not be said that his access to religious services had been unreasonably restricted. It was also noted that detainees had been free to make individual appointments with the remand centre’s priest. The applicant had not wished to do so at the material time. 29. Lastly, the applicant’s submission that he had obtained a doctor’s recommendation to have a bottom bunk had not been supported by any documents. 30. In view of the above, the Koszalin District Court awarded the applicant PLN 5,000 (approximately EUR 1,200) in non-pecuniary compensation on account of the suffering caused by his detention in overcrowded cells. The domestic court also ordered the applicant to pay PLN 1,200 (EUR 300) towards the costs of the proceedings. 31. The applicant submitted a hand-written appeal against the above-mentioned judgment, dated 24 January 2011. The document does not bear any stamps but is accompanied by an official note, confirming that on 24 January 2011 the applicant wished to send his appeal to the Koszalin District Court from Żytkowice Prison. 32. On 5 April 2011 the Koszalin Regional Court (Sąd Okręgowy) dismissed an appeal brought by the respondent and, apparently, the applicant’s appeal. The first-instance judgment was upheld. 33. An appeal by the applicant against the judgment of the appellate court was rejected as no such appeal was available under the applicable law.