HOŁOWNIA v. POLAND
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicant, Mr Robert Wincenty Hołownia, is a Polish national, who was born in 1958 and lives in Warszawa. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. The applicant was represented by Mr K. Domański, lawyer practising in Warsaw. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 5 November 1999 at 6.20 p.m. the applicant was stopped by the police during a routine traffic check. He was arrested, as there was an arrest warrant pending against him in the context of criminal proceedings concerning, apparently, a minor case of fraud. During the arrest he informed the officers that he suffered from rheumatoid arthritis for which he took medication. He was taken to hospital for a check-up. The results confirmed that he suffered from the condition. The doctor examining him did not find it necessary to prescribe any medication. 5. The applicant was subsequently taken to a police station, where he spent two nights in a cell. He was given no medication. On 7 November 1999 he was transferred to Warsaw-Mokotów Detention Centre. 6. His requests to be allowed to take painkillers were refused. He was told that he would be examined by the prison doctor and put in a cell. 7. On the night of 7 November 1999, at approximately at 2 a.m., the applicant fell off his bed and could not get up. The prison guard called by his cellmate did not enter the cell, but ordered him to help the applicant climb back onto the bed, which the cellmate did. Shortly afterwards the applicant fell off the bed again. He remained on the floor until morning. 8. At 8 a.m. the applicant could not get up and had difficulty moving. He was taken to see the prison doctor, who diagnosed stroke. It was established that he suffered from rheumatoid arthritis and type 2 diabetes. The applicant was then taken to a nearby hospital for treatment. 9. The applicant had partial paralysis in one of his arms and legs. On 24 July 2002 he lodged a compensation claim with the Warsaw Regional Court. He claimed 500,000 Polish zlotys (PLN) in respect of alleged pecuniary and non-pecuniary damage on account of the fact that he had been left permanently disabled as a result of the stroke, and PLN 40,000 as reimbursement of his treatment costs. The applicant argued that the conduct of the prison authorities after his arrest on 7 November 1999 had caused his health to deteriorate and left him unable to work. He referred to the refusal of the prison guards to give him anti-inflammatory drugs and painkillers for his rheumatoid arthritis. He further submitted that the prison guards had failed to provide him with any medical assistance during the night in question. Seven to eight hours had passed between the incident and him receiving medical care, which was only offered to him in the morning. He argued that this delay had contributed to the seriousness of his condition. Had he been given assistance earlier, his condition would not have become so serious. 10. On an unspecified later date the applicant was exempted from the obligation to pay court fees and granted legal aid for the purposes of proceedings before the first- and second-instance courts. 11. In the course of the proceedings before the first-instance courts, experts in neurology, rheumatology and diabetology confirmed that the applicant suffered from rheumatoid arthritis, although it was noted that he had failed to submit any medical records concerning his treatment prior to the arrest. The rheumatologist stated that, even assuming that the applicant had been treated for the condition prior to his arrest, a three-day interruption in taking the relevant medication could not have caused a stroke. The expert further stated that left untreated, diabetes might have contributed to its occurrence. The neurologist stated that an earlier diagnosis of the stroke could have limited the damage to the applicant’s health. 12. The applicant’s claim was dismissed on 10 November 2006. In issuing its judgment the Warsaw Regional Court relied on the expert opinions. It noted that the applicant had failed to submit medical records showing that he had been in some form of treatment prior to his arrest. The court found no causal link between the conduct of the prison authorities after the applicant’s arrest and the stroke he had subsequently suffered. 13. The applicant appealed. He argued, inter alia, that the court had erred by failing to examine whether there had been a causal link between the failure to assist him during the night in question and the condition he had developed as a result of the stroke. He referred to the opinion given by the neurologist (see paragraph 11 above). 14. On 15 January 2008 the Warsaw Court of Appeal quashed the contested judgment and remitted the case to the lower court. It considered that the first-instance court had failed to establish the facts of the case correctly, in particular as to the applicant’s medical history prior to his arrest. It instructed the lower court to take additional evidence regarding this aspect of the case. 15. The case was examined again by the Warsaw Regional Court. During these proceedings the court ordered the applicant to restate his claim. The applicant ultimately claimed compensation in the amount of PLN 490,000. He referred to Article 319 § 2 of the Civil Code. This amount covered PLN 450,000 in respect of loss of income and PLN 40,000 for the treatment costs he had borne after the accident. He further claimed a monthly pension of PLN 1,500, referring to Article 444 of the Civil Code. 16. On 18 November 2009 the Warsaw Regional Court dismissed the applicant’s claim. It found that he had been arrested on 5 November 1999 and placed in detention in Warsaw-Mokotów Detention Centre two days later, on 7 November 1999. He had felt unwell that night and fell out of bed twice. After the first fall his cellmate had helped him up, as directed by the prison guard. When he had fallen out of bed for a second time, he was unable to get up, even with the assistance of his cellmate. He had remained on the floor until morning. When morning came a nurse had decided that he should be taken to the doctor, who had realised that the applicant had suffered a stroke during the night. He had subsequently been taken to the neurological ward of a nearby hospital, where he had undergone treatment for the next three weeks. 17. The court referred to medical expert opinions prepared for the purposes of the case. The experts had found that it had not been established that prior to his arrest the applicant had been regularly taking medication for his rheumatoid arthritis. However, even assuming that he had, the fact that he did not receive any after his arrest during the days preceding his stroke had had no bearing on the stroke itself. It had probably been caused by his circulation problems, which could have also been caused by his previously undiagnosed and untreated diabetes. 18. The Regional Court referred to the supplementary expert opinion of a neurologist, who observed that the refusal to provide the applicant with painkillers/anti-inflammatory drugs after his arrest could not have caused the stroke, even though it might have caused him some suffering. He was of the view that the stroke would likely have occurred even if the applicant had not been arrested, as deterioration of health leading to stroke was normally a long-term process. 19. The court had regard to evidence given by R.J., the inmate who had shared a cell with the applicant on the night of 7 November 1999. He testified that when the applicant had fallen off the bed, no medical assistance had been given to him. The court observed that leaving the applicant in the cell until the morning without any help from the prison guards was inappropriate. However, it was of the view that this failure was of no relevance to the applicant’s compensation claim, as the stroke had most probably been caused by the applicant’s pre-existing condition prior to his arrest. Hence, even the fact that no medical assistance had been given to him during the night in question, could not be regarded as giving rise to the State’s liability in tort in respect of the obvious damage to his health caused by the stroke. 20. The court observed that the applicant had essentially relied on the refusal of the police officers and prison guards to give him medication during his arrest and afterwards. In the absence of a demonstrated causal link between the refusals to give the applicant medication and his stroke on 7 November 1999, the statutory conditions for the State’s liability in tort had not been met. 21. The applicant appealed. He complained, inter alia, that the firstinstance court had failed to examine the issues crucial to the case. In particular, the court had failed to address the shortcomings of the medical attention given to the applicant during the critical night. He referred again to the fact that the prison authorities did not do anything to help him and that he remained on the cell floor from 2 a.m. to 8 a.m. He submitted that that fact had had an impact on the development of his condition and that the failure to give him proper and timely medical assistance had resulted in subsequent serious damage to his health. He referred to a statement made by one of the expert witnesses who had confirmed that the lack of such prompt attention resulted in the scope of that damage. 22. On 15 October 2010 the Warsaw Court of Appeal dismissed the applicant’s appeal and upheld the judgment. It fully shared the findings of the first-instance court and its legal assessment of the case. Under the applicable law, the applicant’s legal aid expired on that date. 23. The applicant did not lodge a cassation appeal (appeal on points of law) against the appellate court’s judgment. 24. In 2005 the social insurance authorities certified the applicant was suffering from a serious and permanent disability, in need of assistance in everyday life and unable to work. He received no income apart from disability benefit. He was not entitled to receive a pension because, as he was self-employed prior to his arrest, he had not been paying social insurance contributions. 25. Article 91 of the 1997 Constitution reads: “1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute. 2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes. 3. If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.” 26. On 5 February 2005 amendments to the Code of Civil Procedure, adopted on 22 December 2004 (Ustawa o zmianie ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych), entered into force. 27. Articles 398 (1) § 1 and 395 (5) § 1 of the CCP provide that a party to civil proceedings can lodge a cassation appeal (appeal on points of law) with the Supreme Court against a final judicial decision on the merits of a case given by a second-instance court within two months of the date of service of that decision on the party together with its written grounds. 28. Pursuant to Article 87 (1) § 1 of the Code a party must be represented before the Supreme Court by an advocate or a legal adviser. Cassation appeals not lodged by an advocate or a legal adviser must be rejected. 29. Pursuant to Article 117 of the Code persons exempted from paying court fees may request legal aid. Under Article 118 § 1 of the Code legal aid expires when a second-instance judgment becomes valid in law (prawomocny). A new application for legal aid must be lodged for the purposes of subsequent proceedings before the Supreme Court. 30. Under Article 398 (2) § 2 of the CCP a cassation appeal is available in cases concerning pecuniary rights if the value of the dispute exceeds PLN 50,000. 31. Under Article 398 (3) § 1 of the CCP a cassation appeal may be based on the following grounds: (1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; (2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case. 32. Under Article 399 (9) § 1 of the CCP the Supreme Court shall agree to entertain a cassation appeal if: (a) a significant legal issue is involved in the case; (b) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in judicial practice; (c) the proceedings have been invalid in law; or (d) the cassation appeal is manifestly well-founded. 33. Pursuant to Article 398 (15) § 1 of the CCP the Supreme Court, having allowed a cassation appeal, can quash the challenged judgment in its entirety or in part and remit the case for re-examination. 34. Pursuant to Articles 19 and 21 of the CCP, in cases concerning pecuniary claims, the amount stated by the claimant shall be regarded as the value of the dispute. If a number of claims are made in the same proceedings, the value of the dispute is the total amount of all claims. Under Article 22 of the CCP, in cases concerning claims for periodical payments, the value of the dispute is equal to the cumulative annual value of those payments. 35. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. A party to pending proceedings may ask for the proceedings to be expedited and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland (no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005VIII), and in its judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 3446, ECHR 2005-V).