CASE OF KAPRYKOWSKI v. POLAND
Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1966 and lives in Poznań. 6. He is a recidivist offender. He served a number prison sentences in various detention establishments in Poland. 7. Since 1996 the applicant has been suffering from epilepsy marked by frequent (daily) seizures and encephalopathy accompanied by dementia. He also suffers from ulcers and syphilis. He has been classified by the social security authorities as a person with a “first-degree disability making him completely unfit to work” (pierwszy stopień inwalidztwa całkowicie niezdolny do pracy). 8. On 7 November 2000 the Białystok District Court (Sąd Rejonowy) appointed neurology and forensic medicine experts to produce a report on the applicant’s health in connection with a criminal case pending at that time against him. The experts examined the applicant’s medical records and the preceding psychological and forensic medicine reports. The extracts from these documents revealed that since 1996 the applicant had been suffering from epilepsy accompanied by very frequent seizures and from a personality disorder. He had made several suicide attempts. During one medical interview, the applicant had stated that he could not obtain the necessary medical treatment in prison and that his cellmates ignored his epileptic fits. The doctors, who had examined the applicant in the past, agreed that he could remain in prison provided that he received specialised psychiatric treatment on a permanent basis. 9. On 11 July 2001 the Białystok District Court appointed new medical experts to draft a report on the applicant’s health. The experts found that the penitentiary medical care system could no longer offer the applicant the necessary treatment. They emphasised that his continuous incarceration might put his health and life at risk. It was further indicated that the applicant should obtain a more detailed diagnosis from a specialised clinic and, perhaps, undergo brain surgery. 10. It appears that the applicant was first remanded in custody on 30 May 1998. 11. From 13 April 1999 until 23 June 1999 and from 20 July 1999 until 4 January 2000 he was detained in Poznań Remand Centre. 12. It appears that in 2000 he was admitted for several days to an unspecified prison hospital. 13. On 10 January 2001 the applicant was committed to Gdańsk Remand Centre where he received medical treatment in the neurology ward. Doctors emphasised the need to provide the applicant with permanent specialised medical care and to ensure his constant supervision by another person. 14. On 5 April 2001 he was transferred to Białystok Remand Centre. 15. On 3 August 2001 the applicant was released home. 16. On 17 September 2001 he was again remanded in custody in connection with a new criminal case against him. From that day until 30 October 2001 he was detained in Poznań Remand Centre. 17. On 28 February 2002 he was granted conditional release from prison. 18. On 5 September 2002 the applicant was once more remanded in custody. He was committed to an unspecified detention facility. 19. From 28 April until 5 August 2003 the applicant was at liberty. 20. On 5 August 2003 the applicant was again remanded in custody. From that day until 30 November 2007 he was in continuous detention either in ordinary detention facilities or in prison hospitals. 21. During that time he was detained in Poznań Remand Centre during four separate periods: (1) from 5 until 27 August 2003; (2) from 18 May until 12 July 2005; (3) from 5 January 2006 until an unspecified date, presumably 20 March 2006; and (4) from 9 May until 30 November 2007. 22. It appears that apart from Poznań Remand Centre the applicant was detained in the following facilities: from 28 August 2003 until 21 April 2004 in Wrocław Prison; from 22 April 2004 until an unspecified date in Białystok Remand Centre; subsequently in Śrem, Białołęka, Radom and Jelenia Góra Remand Centres; from 19 September until 19 October 2004 in the Szczecin Remand Centre hospital and immediately afterwards in Stargard Szczeciński Prison; from an unspecified date in January 2005 in Bydgoszcz Remand Centre; from 10 January until 4 April 2005 in the Gdańsk Remand Centre hospital; from 12 July until 4 October 2005 in Wronki Prison; from 4 October 2005 until 5 January 2006 in the Gdańsk Remand Centre hospital; from 20 March until 19 April 2006 in the Bydgoszcz Remand Centre hospital; from 29 June 2006 until 9 May 2007 in the Czarne Prison hospital. 23. The applicant submitted that in Poznań Remand Centre he was committed to a general and not medical wing. He had shared his cells with healthy prisoners, who, as he submitted, had ignored his epileptic fits and had not offered him any help in his daily routines. The applicant also submitted that he had been humiliated in front of his fellow inmates because, as a result of his seizures, he had often lost consciousness and had wet himself. 24. On 1 December 2007 the applicant was released and he is currently at liberty. 25. From 19 September until 19 October 2004 the applicant was detained at the internal disease ward of the Szczecin Prison hospital. He was administered Gabitril as a main drug in his treatment. 26. From 10 January until 4 April 2005 he was detained in the neurology ward of the Gdańsk Remand Centre hospital. He was prescribed Gabitril and Neurotrop as the main drugs in his treatment and it was suggested that he should regularly undergo neurological examinations. 27. From 18 May until 12 July 2005, during his detention in Poznań Remand Centre, the applicant was examined twice by a neurologist and sixteen times by the remand centre’s in-house doctor. In addition, from 24 June until 12 July 2005 he was placed under medical observation in the Poznań Remand Centre hospital. At the hospital new generic drugs were administered to the applicant in place of Gabitril, which was an expensive medicine. 28. From 4 October 2005 until 5 January 2006 the applicant was once more admitted to the neurology ward of the Gdańsk Remand Centre hospital, where he resumed taking Gabitril. 29. From 20 March until 19 April 2006 he was detained in the surgery ward of the Bydgoszcz Remand Centre hospital because he had developed gallstones. 30. From 29 June 2006 until 9 May 2007 the applicant was detained in Czarne Prison hospital, where he was admitted to the ward for the chronically ill. Gabitril was administered to him during this time. On his release from the hospital, the doctors considered the applicant to be in a good overall shape and self-sufficient. It was recommended that he be assigned a bottom bunk bed, be put on a diet and continue the pharmacological treatment prescribed, comprising Gabitril. It was also stressed that the applicant be placed under 24-hour medical supervision. 31. Between 9 May and 30 November 2007, when the applicant was detained in Poznań Remand Centre, he continued taking Gabitril. It appears that he was examined eighteen times by the remand centre’s in-house doctors. 32. Copies of medical records furnished by the applicant reveal that towards the end of 2007 his epilepsy was still severe, although, his epileptic seizures were less frequent. Moreover, his personality disorder continued to manifest itself in that the applicant sometimes experienced hallucinations. Most of the time, however, he was suffering from serious dementia. The Government did not submit any medical documents or information regarding the applicant’s health condition or his treatment. 33. On 27 February 2004 a new report was drafted by experts in psychology, psychiatry and neurology, who had been appointed by the Poznań Regional Court (Sąd Okręgowy) in the course of social security proceedings for a disability benefit. The experts found that the applicant was suffering from epileptic seizures a number of times per week, sometimes even several times per day. He had also been diagnosed with encephalopathy accompanied by dementia, and also with ulcers and syphilis. The experts concluded that, even though the applicant could at that time perform basic daily activities such as washing, dressing, eating and the toilet without help, he was nevertheless too handicapped to act autonomously in making decisions or in undertaking more demanding daily routines. The experts were of the opinion that the applicant was incapable of being self-reliant and that he required, at least for the time being, direct and permanent care from another person. 34. On 31 May, 28 June and 6 July 2005 the applicant lodged with the penitentiary administration complaints about his medical treatment in prison. He claimed that he had only received information stating that his complaints had been referred to the “competent authorities” (do właściwych organów). In the Government’s submission, all three complaints had been examined by competent authorities, including the Chief Doctor of the Regional Inspectorate of the Prison Service (Naczelny Lekarz Okręgowego Inspektoratu Służby Więziennej) and considered ill-founded. 35. On 11 August 2005 the applicant complained to the Regional Inspectorate of the Prison Service that he had been prescribed Polish generic medicine in place of Gabitril, a more effective drug. That complaint was considered ill-founded because at the time when his medicines had been changed the applicant had been under close medical supervision at the prison hospital and his health had not deteriorated. 36. Article 68 of the Constitution, in its relevant part, reads: “1. Everyone shall have a right to have his health protected. 2. Equal access to health care services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their material situation...” 37. Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides: “1. A sentenced person shall receive medical care, medicines and sanitary articles free of charge. ... 4. Medical care is provided, above all, by health care establishments for persons serving a prison sentence. 5. Health care establishments outside of the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular 1) to provide immediate medical care because of a danger to the life or health of a sentenced person; 2) to carry out specialist medical examinations, treatment or rehabilitation of sentenced person; 3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence...” 38. On the basis of Article 115, paragraph 10 of the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “the October 2003 Ordinance”). It entered into force on 17 December 2003. Under paragraph 1.1 of the October 2003 Ordinance, health care establishments for persons deprived of liberty provide, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services to persons deprived of liberty. Paragraph 1 of this Ordinance further provides: “2. In a justified case, if the medical services as enumerated in subparagraph 1 cannot be provided to persons deprived of liberty by the health care establishments for persons deprived of liberty, in particular due to the lack of specialised medical equipment, such medical services may be provided by public health care establishments. 3. In a case as described in subparagraph 2, the head of a health care establishment for persons deprived of liberty shall decide whether or not such medical services [provided by the public healthcare establishments] are necessary...” Paragraph 7 of the October 2003 Ordinance states: “1. The decision to place a person deprived of liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse... 2. The decision whether or not it is necessary to place a person deprived of liberty in a ... prison hospital shall be taken by the prison hospital’s director or by a delegated prison doctor. ... 6. In case of emergency the decision whether or not it is necessary to transfer a person deprived of liberty to a hospital may be taken by a doctor other than a prison doctor...” 39. The rules of cooperation between prison health care establishments and public health care facilities are set out in the Ordinance of the Minister of Justice issued on 10 September 2003 on the detailed rules, scope and procedure for the cooperation of health care establishments with health services in prisons and remand centres in the provision of medical services to persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “the September 2003 Ordinance”). It entered into force on 17 October 2003. 40. Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice. Under Article 6 of the Code of Execution of Criminal Sentences (“the Code”) a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence. Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a Governor of a prison or a remand centre, a Regional Director or the Director General of the Prison Service or a court probation officer. Applications related to execution of prison sentences are examined by a competent penitentiary court. The remainder of Article 7 of the Code reads as follows: “3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the publication or the service of the decision; decision [in question] shall be published or served with a reasoned opinion and instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority who had issued the contested decision. If [that] authority does not consider the appeal favourably, it shall transfer it together with the case file and without undue delay to the competent court. 4. The Court competent for examining the appeal can cease the enforcement of the contested decision... 5. Having examined the appeal the court shall rule on upholding the contested decision, [its] quashing or changing; the court’s decision shall not be a subject of an interlocutory appeal.” In addition, under Article 33 of the Code of the Execution of Criminal Sentences (“the Code”) a penitentiary judge is entitled to make unrestricted visits to detention facilities, to be acquainted with documents and provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of liberty without the presence of third persons and to examine their applications and complaints. Article 34 of the Code in its relevant part reads as follows: “1. A penitentiary Judge shall quash an unlawful decision [issued by, inter alia, the Governor of a prison or remand centre, the Regional Director or the Director General of the Prison Service] concerning a person deprived of liberty. 2. An appeal to the penitentiary court lies against the decision of a penitentiary judge... 4. In the event of finding that the deprivation of liberty is not in accordance with the law, a penitentiary judge shall, without undue delay, inform the authority [in charge of a person concerned] of that fact, and, if necessary, shall order the release of the person concerned.” Finally, Article 102, paragraph 10, of the Code guarantees a convicted person a right to lodge applications, complaints and requests with other competent authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. The detailed rules on the procedure are laid down in the Ordinance of the Minister of Justice issued on 13 August 2003 on the manner of proceeding with applications, complaints and requests of persons detained in prisons and remand centres (Rozporządzenie w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych) (“the August 2003 Ordinance”). 41. Article 23 of the Civil Code contains a non-exhaustive list of the so-called “personal rights” (prawa osobiste). This provision states: “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 the civil law regardless of the protection laid down in other legal provisions.” Article 24 paragraph 1 of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take steps necessary to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” 42. Article 445 § 1 of the Civil Code, applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows: “... [T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.” Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 43. In addition, Articles 417 et seq. of the Polish Civil Code provide for the State’s liability in tort. Article 417 § 1 of the Civil Code provided: “The State Treasury shall be liable for damage (szkoda) caused by an agent of the State in carrying out acts entrusted to him.” After 2004 amendments Article 417 § 1 of the Civil Code provides: “The State Treasury or [as the case may be] a self-government entity or other legal person responsible for exercising public authority shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 44. In their submissions on the admissibility and the merits of the case the Government referred to the judgment of the Koszalin Regional Court (Sąd Okręgowy) of 30 May 2006 and the Supreme Court (Sąd Najwyższy) of 28 February 2007 in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights. 45. On 30 May 2006 the Koszalin Regional Court awarded compensation for non-pecuniary damage in a case which had been brought by a certain N.S., a non-smoker detained with smoking inmates (IC 650/04). The plaintiff alleged that by forcing him to be a passive smoker the authorities had breached his right to an environment free from cigarette smoke and had caused him mental suffering. He also alleged that as a result of passive smoking his allergies had increased and his overall immune system had been weakened. 46. The domestic court examined the case under Articles 444 and 445 of the Civil Code. It was observed that the notion of damage under those provisions was linked with the liability ex delicto based on the fault (wina) of the person who had caused the damage. The provisions relied on concerned both material and non-material damage. The former was defined as a physical injury or health disorder resulting from an unlawful act or omission. The latter could be manifested by negative mental experiences suffered by the plaintiff as a result of his physical injury or health disorder. In both cases the burden of proof rested on the plaintiff. The Koszalin Regional Court observed that according to the Ordinance of 26 November 1996 on the principles for the permitted use of tobacco in closed establishments under the Minister of Justice (Rozporządzenie w sprawie określenia zasad dopuszczalności używania wyrobów tytoniowych w obiektach zamkniętych podległych Ministrowi Sprawiedliwości) (“1996 Ordinance”) persons detained in remand centres and prisons could smoke only inside the selected cells designated for smokers. It was held that the administration of the remand centre where the applicant had been detained with smokers had acted in breach of the 1996 Ordinance and Article 68 of the Constitution. The court found that the plaintiff had not proved any material damage, namely the physical injury or health disorder. He had however suffered non-material damage resulting from an unlawful interference with his right to protect himself from passive smoking. The court awarded the plaintiff PLN 5,000. 47. On 28 February 2007 the Supreme Court recognised for the first time the right of a detainee under Article 24, read in conjunction with Article 448 of the Civil Code, to lodge a civil claim against the State Treasury for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment. That judgment originated from the civil action brought by a certain A.D., who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm. The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions. The Supreme Court dismissed the cassation appeal in so far as it related to the allegation of inadequate medical care. In this connection the Supreme Court upheld the judgments of the first and second-instance courts which had found no causal link between the deterioration of the plaintiff’s health and the quality of medical care provided to him in detention. In so far as the cassation appeal related to the allegation of overcrowding and inadequate conditions of the plaintiff’s detention the Supreme Court quashed the second-instance judgment in which the applicant’s claim had been dismissed. The Supreme Court held that the case should have been examined under Article 24, in conjunction with Article 448 of the Civil Code, and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff’s personal rights had not been infringed. The case was remitted to the appeal court. 48. On 6 December 2007 the Wrocław Court of Appeal held that overcrowding coupled with inadequate living and sanitary conditions in a detention facility could give rise to degrading treatment in breach of a detainee’s personal rights. On the other hand, the court observed that in the light of the Supreme Court’s established case-law, a trial court did not have a duty to award compensation for each personal right’s infringement. One of the main criteria in assessing whether or not to award compensation for a breach of a personal right was the degree of fault on the part of a respondent party. The Court held that in relation to the overcrowding, no fault could be attributed to the management of a particular detention facility since the management were not in a position to refuse new admissions even when the average capacity of a detention facility had already been exceeded. Ultimately, the case was dismissed.