Treatment of disabled prisoners
THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 109. The applicant complained that, contrary to Article 3 of the Convention, the care and conditions of his detention from 7 January 2001 to 28 February 2001, from 1 September 2003 to 26 May 2004 and from 2 September 2005 to 18 June 2008 had been incompatible with his special needs, in view of his paraplegia. That provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. Government ’ s preliminary objections 110. The Government raised two preliminary objections, arguing that the applicant had not exhausted the domestic remedies available to him and that the part of his application which concerned his detention before September 2005 was inadmissible for non-compliance with the six-month rule within the meaning of Article 35 § 1 of the Convention. (a) Exhaustion of domestic remedies (i ) The Government 111. The Government acknowledged that before lodging an application with the Court, the applicant had lodged a number of complaints with various State authorities about the quality of medical care provided to him in prison. They argued, however, that the applicant should also have brought a related civil action seeking compensation for the infringement of his personal rights, namely his dignity and health, under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code. 112. Referring to the Court ’ s inadmissibility decisions in the cases of Łatak v. Poland (dec., no. 52070/08, 12 October 2010 ), and Nocha v. Poland (dec., no. 21116/09, 27 September 2011 ), the Government noted that after the applicant ’ s release from prison on 18 June 2008 – when the situation giving rise to the alleged breach of Article 3 of the Convention had no longer existed – the above - mentioned civil action would have constituted an effective remedy so long as it had been lodged within the three -year statute of limitation. 113. Consequently, the Government invited the Court to reject the application for non ‑ exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention. (ii ) The applicant 114. The applicant did not comment on the Government ’ s preliminary objection. ( iii ) The Court 115. The rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. In addition, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see, among other authorities, Akdivar and Others v. Turkey, cited above, §§ 66-69; Orchowski, cited above, §§ 105-106; and Norbert Sikorski, cited above, § 110). 116. The Court observes that, in principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Orchowski, cited above, § 109, and Demopoulos and Others v. Turkey [GC], (dec.) no. 46113/99, ECHR 2010-..., § 87). However, as the Court has held on many occasions, that rule is subject to exceptions which may be justified by the particular circumstances of each case (see Demopoulos and Others, ibid., with further references). Among such exceptions there are certainly situations where, following a pilot judgment on the merits in which the Court has found a systemic violation of the Convention, the respondent State makes available a remedy to redress at domestic level grievances of similarly situated persons (see Demopoulos and Others, cited above, §§ 87-88; Broniowski v. Poland (merits) [GC], no. 31443/96, §§ 191 ‑ 93, ECHR 2004-V; and Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 25 ‑ 26 and 33 ‑ 44, 23 September 2010). 117. Two pilot judgments on the merits concerning the issue of the living conditions in Polish detention facilities were adopted on 13 October 2009 in the cases of Orchowski (cited above) and Norbert Sikorski ( Norbert Sikorski v. Poland, no. 17599/05, 2 2 October 2009 ). The Court held in these judgments that overcrowding in Polish detention facilities had been, at the relevant time, of a structural nature what undermined the effectiveness of any domestic remedies available, making them theoretical and illusory and incapable of providing redress in respect of the applicant ’ s complaint ( ibid. § 111). The Court, nevertheless, indicated that where the alleged violation no longer continued and could not, therefore, be eliminated with retrospective effect, the only means of redress was pecuniary compensation. In such situations, regard being had to the principle of subsidiarity, it could not be excluded that applicants who complained of degrading treatment because of the conditions of their detention, might be required to first avail themselves of the civil action relied on by the Government (ibid. § 109 ). 118. More recently, in its inadmissibility decisions in the cases of Łatak (cited above) and Nocha (cited above), which were relied on by the Government, the Court has expressly confirmed that in the subsequent applications concerning conditions of detention filed with the Court which have not yet been declared admissible it is appropriate to assess the adequacy of the remedy relied on by the Government in the light of the current situation, namely at the time of the Court ’ s examination of the case. In so doing, the Court had regard to the fact that, on the date of the adoption of its decision in the Łatak case, there were 271 cases pending before it where the applicants had raised complaints that were similar in substance, alleging a violation of Article 3 because at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells ( see Łatak, cited above, § 84 ). 119. Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010, and having regard to the three ‑ year limitation period for bringing such an action, the Court held that essentially in all cases in which, in June 2008, the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned were required to bring a civil action for the infringement of their personal rights and for compensation (ibid. § 85 ). 120. The Court affirms that in the specific context of applications following the Orchowski pilot judgment and arising from the problem of overcrowding in Polish prisons and remand centres, considered by the Court to have been of a structural nature from 2000 until at least mid-2008 (see Orchowski, cited above, § 147), an applicant who lodged his application with the Court at the time when a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could not be considered an “effective remedy” for the purpose of Article 35 of the Convention, that is prior to 17 March 2010 (see Łatak, cited above, § 85 and paragraph 118 above), cannot, in principle, be required to avail himself of this remedy if, at the time when the Court was deciding his case, the civil action in question is time ‑ barred (see Grzywaczewski v. Poland, no. 18364/06, § 66, 31 May 2012; Musiałek and Baczyński v. Poland, no. 32798/02, §§ 113 -14, 2 6 July 2011; and Mirosław Zieliński v. Poland, no. 3390/05, § 46, 20 September 2011; and, conversely, Nocha inadmissibility decision, cited above and Pustelnik v. Poland (dec.), no. 37775/09, 23 October 2012 ). 121. In addition, the Court has also ruled on the merits in two cases against Poland in which the applicants were prisoners diagnosed with serious health disorders who, like the applicant in the instant case, complained that the inadequate medical care combined with prison overcrowding and poor living conditions had caused them pain and suffering during their detention (see Grzywaczewski, cited above, and Musiałek, cited above, § 111 ‑ 12). It was held in those judgments that only a remedy capable of redressing the applicant ’ s complaint in its entirety, and not merely its selected aspects, could realistically redress his situation (see Grzywaczewski, cited above, § § 63-69, and Musiałek, cited above, § 111 ‑ 12; compare with Sławomir Musiał v. Poland, no. 28300/06, § 80, 20 January 2009 ). 122. Against this background, the Court will address the preliminary objection in the present case as formulated by the Government and will examine whether the applicant, in addition to the remedies he had used, should have also availed himself of the civil remedy in question before lodging his application with the Court, or at a later stage. 123. It must be observed at the outset that the Article 3 complaint in the present case is twofold. The applicant, who is a paraplegic confined to a wheelchair and suffering from serious malfunctions of the urethral and annals sphincters, complained that the medical and nursing care which had been provided to him during his detention had been inadequate. In parallel, he complained about overcrowding and the resultant poor living and sanitary conditions in prison, which failed in particular to meet the standard required for persons in his state of health. The applicant claimed that this situation had caused him pain and suffering during his detention. 124. The applicant was deprived of liberty on three separate occasions, namely from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004 and from 2 September 2005 to 18 June 2008 (see paragraphs 8-11, 15 ‑ 29 and 33-68 above). He lodged his application with the Court on 20 September 2007, having already spent two years serving the third period of his detention, and nearly a year before he was eventually released. 125. It follows that the facts of his case differ in two important details from the facts of the application which was relied on by the Government in support of their non-exhaustion objection (see Nocha, cited above). In the Nocha case, the applicant, an epileptic detainee, based his Article 3 complaint not only on the allegation that the overall detention conditions and the inadequate treatment of his illness had caused him suffering during his detention, but also on his assertion that those factors had resulted in material and long-lasting damage to his health. The Court considered that it was neither mandated nor in a position to obtain and examine evidence necessary to rule on the existence of a causal link between the applicant ’ s treatment in prison and his state of health after his release. In addition, it was also significant that the applicant had lodged his application with the Court in early 2009, seven months after his detention had begun and less than three months after it ended. Most importantly, at the time when the case was being decided by the Court, the applicant had still had time to bring a civil action under Article 23, taken in conjunction with Article 417 or Article 448 of the Civil Code, in order to seek compensation for the alleged violation. In those particular circumstances, the Court considered that the civil-law remedies indeed appeared suitable in the applicant ’ s case (see Nocha, cited above). 126. Conversely, the Court considers that the conclusion which it reached in its pilot judgments in the cases of Orchowski and Norbert Sikorski (see paragraph 117 above) that the structural nature of overcrowding undermined the effectiveness of any domestic remedy available at that time, equally applies to the present case in so far as it concerns the applicant ’ s detention, which lasted intermittently from January 2001 until June 2008, especially given that the Government and the prison authorities explicitly acknowledged the existence and systemic nature of the problem of overcrowding in Polish detention facilities at the relevant time ( see, Orchowski, cited above, § 146 and Norbert Sikorski, cited above, § 148). 127. It must be stressed that the applicant in the present case lodged a number of complaints with the prison authorities, the Ombudsman and the prosecutor in connection with the conditions of his imprisonment and the medical care provided. He also applied many times to be released from prison on health grounds (see paragraphs 32, 35, 42, 43, 44, 47, 49, 52, 56, 61 and 83 ‑ 88 above). The Court considers that by taking those actions, the applicant had sufficiently drawn the attention of the prison authorities to the question of the compatibility of his living conditions and medical care in prison with the state of his health. 128. Lastly, in the present case, the situation giving rise to the alleged violation of Article 3 ended on 18 June 2008 when the applicant was released from Siedlce Prison. The Court considers that, since the relevant civil action under Articles 24 and 448 of the Civil Code by which, as the Government claimed, the applicant could seek compensation for the infringement of his personal rights, including his dignity and health, is barred by a three-year statute of limitation, the applicant cannot presently be required to avail himself of that remedy ( see paragraph 120 above with further references ). 129. Accordingly, the Court dismisses the Government ’ s preliminary objection of non-exhaustion of domestic remedies. (b) Non- compliance with the six-month rule (i) The Government 130. The Government also submitted that the applicant had been detained on three separate occasions, with long periods in between which he had spent at liberty (from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004, and 2 September 2005 to 18 June 2008). The conditions of his detention should not, therefore, be treated as a continuous situation. 131. Consequently, the Government asked the Court to consider as inadmissible the part of the application relating to the first and second periods of the applicant ’ s detention (from 7 January to 28 February 2001 and 1 September 2003 to 26 May 2004) as it was lodged out of time, and to reject it in accordance with Article 35 §§ 1 and 4 of the Convention. (ii ) The applicant 132. The applicant did not comment on the Government ’ s preliminary objection. (iii ) The Court 133. The Court reiterates that the object of the six ‑ month time-limit under Article 35 is to promote legal certainty by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. In cases where there is a continuing situation, the six-month period runs from the cessation of the situation. The concept of a “ continuing situation ” refers to a state of affairs which operates by continuous activities or omissions by or on the part of the State to render the applicant a victim. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see I.D. v. Moldova, no. 47203/06, § 27, 30 November 2010, and Koval v. Ukraine, no. 65550/01, (dec.) 30 March 2004, with further references). 134. The present case concerns the detention which was imposed on the applicant on identifiable dates : from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004 and 2 September 2005 to 18 June 2008. It follows that the applicant ’ s detention cannot be construed as a “continuing situation” (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § § 71-79, 10 January 2012 and G.R. v. the United Kingdom (dec.), no. 24860/94, 30 November 1994). Having regard to the date on which the present application was lodged, namely 20 September 2007, the complaint in so far as it refers to the events during the first and the second periods of the applicant ’ s detention was lodged more than six months after the alleged breach took place and must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention, and can be taken into consideration only as factual background to the case (see Kulikowski v. Poland (no. 2), no. 16831/07, § 55, 9 October 2012 ). 2. Conclusion on admissibility 135. The Court notes that the complaint, in so far as it relates to the third period of the applicant ’ s detention (from 2 September 2005 to 18 June 2008) is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 136. The applicant complained that the care and conditions which had been afforded to him during the three terms of his detention had been incompatible with his special needs, in view of his paraplegia, serious malfunctions of the urethral and anal sphincters, and other ailments. In connection with his detention from 2 September 2005 to 18 June 2008, the applicant submitted that: the prison facilities had not been adapted to the use of a wheelchair, which had resulted in constant problems with accessing and using the toilet annex in his cell; he had not received a sufficient supply of incontinence pads and catheters, nor any worthwhile and regular physiotherapy adapted to his disability; and he had developed serious health problems, such as bedsores, repeated inflammations of the urethra, acute bacterial infections, and bladder stones. He also alleged that those problems had not met with an adequate medical response and that he had been detained in generally deplorable material conditions. In particular, his cells had been overcrowded and dirty and he had had to share them with smokers. Lastly, the applicant complained that, despite his disability and frail health, he had been regularly transported between prisons and hospitals by prison bus, without being properly fastened to his seat, and only rarely by ambulance. (b) The Government 137. The Government refrained from taking a position in respect of the merits of the application. (c) The third -party interveners 138. The written comments submitted on 2 July 2012 jointly by the Helsinki Foundation for Human Rights ( Helsińska Fundacja Praw Człowieka ) (“the Foundation”), the European Disability Forum and the International Disability Alliance contain an extensive overview of the domestic law and practice concerning the detention of persons with disabilities and of the international standards for the protection of the rights of the disabled, in particular the standards of “accessibility” and “reasonable accommodation”. 139. The third -party interveners argued that in Poland, prisoners with disabilities were notoriously subjected to greater distress and hardship than those which arose in the natural course of imprisonment. It was common that prisoners with disabilities had serious difficulties in accessing basic facilities, such as toilets and showers. They were also unable to move around the premises of their detention facilities without the aid of third persons. Lastly, the medical care within the prison system, in particular, physiotherapy, if provided to disabled prisoners at all, was of such a low standard that it often failed to prevent the further deterioration of prisoners ’ health or to relieve their pain and mental suffering. 140. It was concluded that in Poland, the treatment of prisoners with disabilities failed to meet the basic international standards and raised a serious issue under Article 3 of the Convention. In the view of the third -party interveners, the source of the problem did not lie so much in inadequate legal regulations as in the lack of budgetary resources and political will to implement the law, as well as in the general constraints of the prison infrastructure. 2. The Court ’ s assessment 141. A summary of the general principles concerning the examination of medical care and conditions of detention under Article 3 may be found in the Court ’ s recent judgments in Sławomir Musiał v. Poland (no. 28300/06, §§ 85 ‑ 88, ECHR 2009-...(extracts)) and Orchowski (cited above, §§ 119 ‑ 229). 142. The present case raises the issue of the compatibility of the applicant ’ s state of health with the conditions of his detention in Siedlce and Łódź Prisons and in the Warsaw -Mokotów Remand Centre between 2 September 2005 and 18 June 2008, and the adequacy of the medical care provided to him during that period. The Court must also decide whether the applicant ’ s situation attained the required minimum level of severity to fall within the ambit of Article 3 of the Convention. 143. The applicant ’ s medical condition is undisputed. He is a paraplegic who is confined to a wheelchair and suffers from serious malfunctions of the urethral and anal sphincters (see paragraph 6 above). 144. It is also clear that for a total of over eighteen months, the applicant was detained in Siedlce Prison, which is a regular detention facility not adapted for persons in wheelchairs (see paragraphs 35 and 98 above). The only time when it could not be disputed that the material conditions of the applicant ’ s detention complied with his special needs was during his three months ’ detention in Łódź Prison (see paragraph 64 above). 145. The Court observes that a variety of conditions in Siedlce Prison interfered with the applicant ’ s ability to be independent, at least in some of his daily routines, placing him in a position of absolute dependence on his fellow inmates and causing him both mental and physical suffering. 146. It is clear that no special arrangements were made to alleviate the hardships of the applicant ’ s detention in that facility. His complaints included the inappropriate sanitary conditions, especially for a person in his state of health, the inaccessibility of the toilet and shower room, the hazardous access to his bunk bed, and his periodic exposure to cigarette smoke (see paragraphs 42-47 above). 147. For an unspecified period after his placement in Siedlce Prison, the applicant, who suffers from incontinence, was not authorised to have daily baths or showers (see paragraphs 44 and 4 5 above), although some time later an authorisation to that effect was issued. That adjustment, however, had adverse consequences because the shower room was situated on a different floor from the applicant ’ s cell and he could access it only if carried up and down the stairs by his fellow inmates (see paragraph 45 above). Whether because of their personal characteristics, as described by the applicant (see paragraph 4 5 above) or simply, because they were not trained to care for people with disabilities, the applicant ’ s cellmates did not provide him with suitable and sufficient assistance. The Court has already criticised schemes whereby a prisoner with a physical disability is provided routine assistance by his fellow inmates, and considered that that must have given rise to considerable anxiety on the applicant ’ s part and placed him in a position of inferiority vis-à-vis the other prisoners (see, among many other authorities, Farbtuhs v. Latvia, no. 4672/02, § 60, 2 December 2004). 148. The Court also takes note of the fact that the shower cabin was not equipped with any hand rails which the applicant could hold on to in order to lift himself up or make other necessary movements (see paragraph 45 above). 149. Moreover, the cells in which the applicant was placed during his entire detention in Siedlce Prison had not been adapted for special - needs prisoners (see paragraphs 35, 47 and 91 above). 150. As the passageway was too narrow for his wheelchair, the applicant, who needed to change his incontinence pads and catheters regularly, could not access the toilet annex to his cell without asking for help from his cellmates (see paragraphs 43, 4 7 and 82 above). 151. The applicant also had to undertake a dangerous manoeuvre in order to access his bunk, heaving himself up from his wheelchair. On one such occasion in November 2 005, he fell painfully and an ambulance had to be called (see paragraphs 47 and 49 above). 152. It is even more striking, that the applicant was detained in these conditions contrary to the doctors ’ explicit recommendations that he be placed in a single-occupancy cell, have unrestricted access to a shower, the opportunity to do a range of rehabilitation exercises on his own, and the ability to move around in his wheelchair and lie on his stomach for long periods ( see paragraph 55 above ). As to the former requirement, the Court notes that the applicant was detained in multi-occupancy cells, although it is not clear whether the cells were overcrowded, as claimed by the applicant in general terms. It is not contested, however, that the cells (with the exception of Łódź Prison) were too small or cramped for a detainee in a wheelchair (see paragraphs 35, 43, 47, 49, 82 and 91 above) or that the applicant did not have unrestricted access to a shower (see paragraphs 44 and 45 above). 153. Moreover, it is clear, in the light of the facts described above, that the existence of ordinary architectural or technical barriers in Siedlce Prison greatly affected the applicant and caused him physical and psychological pain and suffering (see Arutyunyan v. Russia, no. 48977/09, § § 77 and 81, 10 January 2012, and Cara-Damiani v. Italy, no. 2447/05, § 70, 7 February 2012 ). 154. Lastly, it cannot be overlooked that during the first and a part of the third period of his detention in Siedlce Prison, the applicant had to share cells with smokers (see paragraphs 42, 46 and 91 above). 155. The Court has already held that detaining persons suffering from a serious physical disability in conditions inappropriate to their state of health, or leaving such persons in the hands of their cellmates for help with relieving themselves, bathing and getting dressed or undressed, amounted to degrading treatment (see Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001 ‑ VII; Engel v. Hungary, no. 46857/06, §§ 27-30, 20 May 2010; and Vincent v. France, no. 6253/03, §§ 94-103, 24 October 2006). 156. The applicant also submitted in the wider context of his living conditions that he had not received a sufficient supply of incontinence pads and catheters (or drainage bags), which had resulted in a further deterioration of his health and new ailments, such as bedsores, repeated inflammations of the urethra and acute bacterial infections. 157. The Court observes that the facts of the case reveal that out of the two years and ten months of his detention, the applicant was placed in a special infirmary or hospital cell, or was otherwise under the supervision and care of a nurse, for only an unspecified but very short period of time in Siedlce Prison (see paragraph 36 and 41 above) and for a total of three months during both of his stays in Łódź Prison (see paragraphs 64, 65, 77 and 78 above). 158. It is most important in the Court ’ s view, however, that throughout his detention, the applicant was supplied with a limited number of incontinence pads (either two or four every twenty-four hours) and catheters or drainage bags (see paragraphs 37, 39 and 75 above), and that at times he was not supplied with those items at all. It is obvious that the applicant, who is completely incontinent, was heavily reliant on those articles and achieved nothing by complaining to the medical staff and the authorities. 159. It was not established that the health problems which the applicant had started developing some months into his detention were a direct result of poor hygiene and the infrequent changing of his catheters. However, the Court finds it significant that the applicant who regularly complained of an insufficient supply of pads and catheters and a rash in the genitals area, had to receive emergency treatment on 15 January 2006 for a massive infection of the urethra and the presence of faecal bacteria (see paragraphs 53 above). 160. Moreover, the Court notes that the applicant ’ s statements about the conditions of his transport by prison bus were not refuted by the Government (see paragraphs 64 and 73 above). The Court finds particularly regrettable the practice of leaving the applicant unfastened in a moving vehicle, even if his wheelchair was immobilised, as happened on 28 August 2006 (see Engel v. Hungary, no. 46857/06, § 28, 20 May 2010 ). 161. Lastly, in so far as the present Article 3 complaint concerns the applicant ’ s general fitness for detention and the adequacy of the medical care offered to him between 2 September 2005 and 18 June 2008 the Court makes the following observations. 162. The applicant submitted that he had not been offered worthwhile and regular physiotherapy adapted to his disability and adequate medical treatment of his bladder stones and other, successively developing, ailments. 163. The case file reveals that at the relevant time, the applicant was examined by various medical specialists on many occasions, either in relation to his requests for release or when he was taken to hospital with urgent health problems (see paragraphs 38, 49, 50, 52, 53, 55, 59, 61, 62, 63, 66, 67, 69, 72, 74, 86, 87 and 96 above). 164. During his previous term of detention – in 2003 – the applicant developed a bedsore measuring 2 by 3 cm (see paragraphs 20 and 30 above), which was causing increased problems in the period which is the subject of the Court ’ s examination (see paragraph 62 above). This medical condition had been considered incurable and therefore, the treatment offered to the applicant in Siedlce and later, in Łódź Prison, was only of a supportive nature and providing only for superficial relief ( see paragraphs 40 and 66 above). In March 2007, however, the applicant had an opportunity to undergo reconstructive surgery for his bedsore at the hospital of Warszawa-Mokotów Remand Centre but he did not agree for the procedure. In view of the lack of the applicant ’ s consent the authorities continued with supportive treatment to the wound ( see paragraph 73 above). It appears from the case file that the dressing was changed every day and the wound was kept clean (see paragraph 98 above). 165. Eventually, on 24 April 2007 a laser procedure was performed on the bedsore at the hospital of Łódź Prison (see paragraph 77 above). 166. In the meantime, for the whole month of January 2006 the applicant received an intravenous antibiotic treatment for his urinary infection (see paragraph 53 and 54 above). 167. On 15 May 2006 he was diagnosed for the first time with blockage of the urethra and gallbladder stones (see paragraph 59 above). On 2 June 2006 he was prescribed surgery to remove the bladder stones and further urgent urological treatment (see paragraph 61 above). It was indicated, however, that surgery could not be performed before the bedsore had healed (see the report of 5 October 2006, paragraph 66 above). The actual surgery took place on 30 April 2007, that is, as late as eleven months after it had been prescribed but only six days after the applicant became eventually fit for it because of his bedsore condition (see paragraph 77 above). 168. Lastly, in October 2007 the applicant was diagnosed for the first time with an unspecified spinal disorder, for which surgery was prescribed in January 2008 (see paragraphs 83, 85, 86 and 87 above). 169. It was in relation to this medical condition that, on 18 June 2008 the domestic court decided that the applicant should be granted a licence for temporary release in order to undergo surgery and subsequent rehabilitation, as well as further urological treatment (see paragraph 92 above). 170. It is true that prior to that date, the domestic courts had repeatedly rejected the applicant ’ s requests for release on health grounds, holding that he had been fit for detention because adequate care and treatment could and indeed had been offered to him within the prison system (decisions of 8 and 23 February 2006, 10 May 2006 and 27 June 2007 (see paragraphs 55 ‑ 57 and 83 above)). 171. The Court, however, cannot on the basis of the case materials, contest these conclusions of the domestic courts because it is clear that in reaching their initial decisions, they had regard to the opinions of the medical experts that the applicant had not been fit to be detained as long as his urological infection and bedsore had not been cured (see paragraph 56 above) but preferred the reports of other medical experts and the remaining evidence (see paragraphs 56, 57, 83 above). 172. When, in June 2006, it became clear that the applicant ’ s general health had been deteriorating, that his bedsore had reached a diameter of 3 cm and that he had been unable to obtain advanced physiotherapy in prison (see paragraphs 62 and 63 above), the authorities took measures to transfer the applicant to Łódź Prison, which was equipped for prisoners with disabilities. The applicant received round-the-clock care from nurses and paramedics, and some treatment for his bedsore and some basic physiotherapy in that establishment (see paragraphs 65 and 66 above). 173. On 23 October 2006 the Łódź Regional Court rejected a request for the applicant ’ s release, which had been made four months earlier by the governor of Siedlce Prison, on the ground that adequate treatment was being provided to the applicant in Łódź Prison (see paragraph 67 above). 174. It is true that, when, on 20 December 2006, the Łódź Court of Appeal upheld the above decision, the applicant ’ s treatment had already ceased because he had been transferred back to Siedlce Prison (see paragraph 68 above). The available medical reports, however, do not imply that at that point the applicant faced major health risks. Moreover, it cannot be overlooked that, in the meantime, the authorities went to some lengths to provide the applicant with treatment for his developing ailments. On 28 November 2006 he even had a short medical check-up in the hospital in Konstancin (see paragraph 69). 175. In view of the above, the Court does not consider that it is in a position to establish whether or not the development of the applicant ’ s multiple ailments could have been arrested or slowed down had he been at liberty and free to seek medical care with the professionals of his choice. It is apparent in this case, however, that the applicant ’ s condition was regularly monitored by various specialists and that the authorities followed up the doctors ’ recommendations about the medical treatment of the applicant ’ s successively developing disorders to the greatest extent possible. In the absence of any medical certificates in support of the applicant ’ s claim that medical care secured to him in prison, had been inadequate or insufficient, the Court cannot reach the conclusion that in this context the authorities had acted in a way contrary to the requirements of the Convention. 176. Mindful of all the above considerations, the Court finds that while keeping the detention measure in place was not, in itself, incompatible with the applicant ’ s state of health, detaining him for eighteen months in a prison that was unsuitable for the incarceration of persons with physical disabilities and not making sufficient efforts to reasonably accommodate his special needs raises a serious issue under the Convention. 177. There is no evidence in this case of any positive intention to humiliate or debase the applicant. The Court holds, nevertheless, that to detain a person who is confined to a wheelchair and suffering from paraplegia and serious malfunctions of the urethral and anal sphincters in conditions where he does not have an unlimited and continuous supply of incontinence pads and catheters and unrestricted access to a shower, where he is left in the hands of his cellmates for the necessary assistance, and where he is unable to keep clean without the greatest of difficulty, reaches the threshold of severity required under Article 3 of the Convention and constitutes degrading and inhuman treatment contrary to that provision. The Court therefore finds a violation of this provision in the present case. II. ALLEDGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ILL-TREATMENT BY A PRISON GUARD 178. The applicant also complained under Article 3 of the Convention that, on an unspecified date, he had been beaten up by a prison guard in Siedlce Prison. 179. However, pursuant to Article 35 of the Convention: “ ... 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is ... manifestly ill-founded ... 4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.” 180. The applicant failed to provide any details or any prima facie evidence to substantiate the above complaint. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 181. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 182. The applicant claimed 2 3, 6 00 euros (EUR) in respect of pecuniary damage on account of overdue child support fees, lost income, unpaid rent and medical expenses. He also claimed 50,000 EUR in respect of non ‑ pecuniary damage. 183. The Government submitted that the above claim in respect of pecuniary damage should be rejected as entirely irrelevant to the circumstances of the case. They also contested the applicant ’ s claim in respect of non-pecuniary damage as exorbitant. 184. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant suffered damage of a non-pecuniary nature as a result of his detention in inhuman and degrading conditions, inappropriate to his state of health (see paragraphs 173 and 174 above), which is not sufficiently redressed by the finding of a violation of his rights under the Convention. 185. For the above-mentioned reasons, having regard to the specific circumstances of the present case and its case-law in similar cases (see, mutatis mutandis, Kupczak v. Poland, no. 2627/09, § 83, 25 January 2011, and Sławomir Musiał v. Poland, no. 28300/06, § § 111-12, 20 January 2009 ) and deciding on an equitable basis, the Court awards EUR 8 ,000 under this head, plus any tax that may be chargeable on that amount. B. Costs and expenses 186. The applicant claimed no costs and expenses, either for the Convention proceedings or for the proceedings before the domestic courts. C. Default interest 187. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the material conditions of the applicant’s detention in view of his special needs.