SZWED-WÓJTOWICZ v. POLAND
Inadmissible
Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Ms Danuta Szwed-Wójtowicz, is a Polish national, who was born in 1949 and lives in Łódź. She was represented before the Court by Ms A. Podciechowska, a lawyer practising in Łódź. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 February 1995 a prosecutor of the District Prosecutor’s Office in Łódź held a press conference and informed the public that company A., of which the applicant owned 90 per cent of shares, had been issuing shortterm obligations without a necessary licence to run a bank-like operations. 5. On 6 April 1995 the prosecutor charged the applicant with offences of running bank-like operations without licence and of issuing obligations without permission by the Securities Commission (Komisja Papierów Wartościowych). 6. On 5 February 1998 a bill of indictment against the applicant was lodged with the Łódź District Court. The applicant was accused of six various offences connected with the running a company conducting banklike activities without necessary licences. Another bill of indictment, concerning further similar charges, was lodged with the same court on 26 March 1998. The Łódź District Court examined the cases jointly. 7. By a judgment of 27 June 2006 the applicant was acquitted of two charges and convicted of two other charges of fraud. She was sentenced to five years and six months’ imprisonment. The applicant appealed. 8. On 26 November 2007 the Łódź Regional Court dismissed her appeal. 9. The applicant lodged a cassation appeal with the Supreme Court. On 6 March 2009 the Supreme Court held a hearing and dismissed the applicant’s appeal, finding that it was manifestly illfounded. Having heard the parties, the court gave orally brief grounds for its decision. 10. The copy of the decision contained information that under Article 535 § 2 of the Code of Criminal Procedure no written grounds for that decision shall be prepared. 11. In 1995 the applicant had a stroke (udar niedokrwienny mózgu). Subsequently, she was diagnosed with chronic insufficiency of brain blood vessels (przewlekła niewydolność naczyń mózgowych) resulting in multiple brain strokes with successive left-side paresis (udar mózgu z niedowładem lewostronnym), narrowing of carotid arteries (zwężenie tętnic szyjnych) as a result of arteriosclerosis (miażdżyca), chronic pancreatitis (przewlekłe zapalenie trzustki), degenerative vertebral alterations of the pectoral and lumbar part (zmiany zwyrodnieniowe kręgosłupa w odcinku piersiowym i lędźwiowym), widening of abdominal aorta with mural thrombus (poszerzenie aorty brzusznej ze skrzepliną przyścienną), hypertension and depressive disorders. 12. Since 1995 the applicant has been treated in hospital several times. For the last time before her detention she was hospitalised between 22 and 28 April 2010. She was admitted to hospital because of severe abdominal pain. She was discharged with a recommendation to remain under the medical care of an internist, gastroenterologist, vascular surgeon and psychologist. She was also advised to follow a special diet and to regularly take medication. 13. On 22 June 2009 the Disability Board gave a decision, attesting that the applicant was suffering from significant disability (niepełnosprawność stopnia znacznego). This decision was granted for a period until 30 June 2012. 14. On 5 November 2010 the applicant was arrested and taken to the Łódź Prison no. 1 in order to serve her sentence of imprisonment. She was detained in that establishment until 14 December 2010. On the later date she was transferred to the Grudziądz Prison no. 1 where she remained until 15 February 2011. On 16 February 2011 the applicant was transferred to the Łódź Prison no. 1. 15. On the date of her admission to prison, the applicant was examined by a prison doctor, a psychiatrist and a cardiologist. A prison doctor recommended a course of medication and a light diet. He also advised that the applicant be provided with a lower bed in a cell. Moreover, a cardiologist stated that the applicant did not need to be detained in a prison hospital. 16. On 6 November 2010 the applicant was examined by a neurologist and subsequently on 9 and 15 November 2010 by an internist. 17. On 13, 14, 15 and 16 December 2010 the applicant had further medical consultations. On 21 December 2010 she had appointment with a psychiatrist and on 27 December 2010 she was examined by a prison doctor. On 12 January 2011 she was consulted by an internist, on 17 January by a dermatologist and on 18 January by a surgeon. On 19 January 2011 she had blood tests and abdominal ultrasonography. On 26 January 2011 she was again consulted by an internist. 18. On 3 February 2011 a prison doctor certified that the applicant could be treated in prison. 19. On 10 February 2011 she had consultation with a neurologist and on 14 February 2011 with an internist. On 23 February 2011 she underwent laboratory tests. She had further medical appointments on 28 February 2011; 7, 8, 18 and 22 March (private consultation with a vascular surgeon); 23 and 31 March; 7 April; 4, 9 and 23 May 2011. On 2 and 30 March 2011 she had blood tests. 20. On 9 May 2011 a prison doctor opined that the applicant might be treated in the conditions of detention. On the same day she underwent Doppler ultrasonography of carotid and vertebral arteries. She had further medical consultations on 7, 20 and 21 June 2011. On 1 July 2011 she underwent electroencephalography (EEG). 21. On 22 July 2011 she was consulted by a prison doctor. On 8 August 2011 the prison doctor decided to maintain the same pharmacological treatment for the applicant. 22. On 9 August 2011 the applicant had a computed tomography (CT) of the head. On 19 September 2011 she had neurological and on 5 January 2012 gastrological consultations. 23. On 21 September 2011 a prison doctor ascertained that the applicant may be treated in prison. 24. On 12 October 2011 the applicant had blood tests. On 19 October 2011 she was examined by a prison doctor. On 20 October 2011 she underwent a computed tomography of her chest. 25. On 27 October and 4 November 2011 the applicant had bacteriological tests. On 21 November she underwent abdominal ultrasonography. 26. On 6 and 22 December 2011 she was consulted by a pulmonologist and a prison doctor respectively. 27. On 10 January 2012 a prison doctor, after conducting psychiatric and gastrological consultations (on 2 and 5 January 2012 respectively), issued a medical certificate on the applicant’s condition for the purposes of the judicial proceedings concerning the applicant’s request for temporary release (see paragraphs 33-38 below). The certificate stated that the applicant could be treated in prison. 28. On 30 and 31 January 2012 the applicant was taken for one-day observation in the hospital of the Łódź Prison no. 2 after having fainted in the court. She stayed under cardiological surveillance and had neurological consultation. Moreover, she had blood tests, electrocardiography (ECG) and CT of the head. The CT of the head indicated no fresh blood incidents in the central nervous system. After those examinations doctors concluded that the applicant could remain in prison and that there was no need for further hospitalisation. They noticed that the applicant exaggerated her condition. 29. On 3 and 7 February 2012 the applicant was consulted by a psychiatrist and in internist respectively who recommend the continuation of the previous pharmacological treatment. 30. On 19 March 2012 the applicant underwent abdominal CT. On 28 March 2012 she had blood tests. Those examinations indicated the presence of gallstones in bile duct. Having regard to those results, on 11 April 2012 a prison doctor referred the applicant to a surgeon. The consultation took place on the same day. Subsequently, the applicant was consulted by an internist on 16 April, 7 May and 3 and 16 July 2012. 31. Since the beginning of her detention the applicant has been receiving light diet. 32. The Government submitted that according to the information provided by the Director of the Medical Service of the Łódź Prison no. 1, the applicant was able to move around independently. She did not need help from third parties. She never reported to the prison authorities that she needed assistance in her basic daily activities. She has been constantly receiving pharmacological treatment. 33. On 29 November 2010 the applicant requested to be granted temporary release (przerwa w karze). She referred to her numerous ailments and the need to have them treated properly which, in her submission, was impossible in prison, in particular in respect of her persistent neurological condition resulting from repeated strokes. In February 2011 the applicant repeated her request. 34. On 16 June 2011 the Łódź Regional Court refused to allow the applicant’s request. It was of the view that the grounds for allowing a temporary release, provided for by Article 153 § 2 of the Code of Execution of Sentences, did not obtain in the case. On the basis of two certificates issued by doctors working for the prison medical service, the court found that despite being of fragile state of health, the applicant had appropriate medical care in detention. In particular, she was consulted by various specialists and underwent necessary examinations. Both certificates stated that the applicant was fit for detention. The court stressed that the applicant remained under constant medical care. Importantly, the court noted that the applicant was not entirely interested in improving her state of health as on several occasions she had been disciplinary punished for storing medication and for refusing to take it in the presence of a nurse. 35. The applicant appealed. She argued, inter alia, that the Regional Court had erred in the establishment of facts. In this respect, she contested the lower court’s finding that the applicant was fit for detention despite her numerous ailments. She also complained about the Regional Court’s reliance on the opinions of prison doctors and its refusal to admit expert opinions relevant for the applicant’s condition. 36. On 31 August 2011 the Łódź Court of Appeal quashed the Regional Court’s decision and remitted the case. It concurred with the lower court that the applicant’s state of health was under constant monitoring and that she had access to specialised treatment in detention. However, given the character of the applicant’s ailments, her state of health needed to be also assessed by relevant specialists, in particular, a neurologist and a gastroenterologist. The medical opinions relied on by the Regional Court did not contain this kind of assessment. 37. In its decision of 24 February 2012 the Łódź Regional Court refused to grant the applicant a temporary release. It was of the view that the applicant’s condition could be treated in detention, having regard to a medical certificate of 10 January 2012 (see paragraph 27 above). It noted that the applicant received necessary medical care, including consultations by specialists. The applicant’s medical documentation did not substantiate a conclusion that her continued detention would seriously endanger her life or health. 38. The applicant appealed. The Łódź Court of Appeal dismissed her appeal on 24 April 2012. It shared the conclusions of the lower court as to the applicant’s state of health and her being fit for detention. The appellate court stressed that it transpired from the medical opinion of 10 January 2012 that the applicant had been examined not only by general practitioners but also by specialists in surgery, psychiatry, neurology and gastroenterology. The opinions of the specialists confirmed that the applicant could be treated in detention. The Court of Appeal also noted that further examinations and consultations had been planned which indicated that the applicant received adequate medical care. 39. It appears that the applicant was released on an unspecified date in 2014. 40. The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61 ECHR 2009... (extracts); and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009. More recent developments are described in the Court’s decision in the case of Łatak v. Poland (dec.) (no. 52070/08, §§ 25-54, 12 October 2010).