FOURTH SECTION

DECISION

Application no. 37729/02 
by Bogusław KAMYSZEK 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 6 July 2010 as a Chamber composed of:

Nicolas Bratza, President, 
 Lech Garlicki, 
 Giovanni Bonello, 
 Ljiljana Mijović, 
 Ján Šikuta, 
 Mihai Poalelungi, 
 Nebojša Vučinić, judges,

and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 3 October 2002,

Having deliberated, decides as follows:

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

1.  The applicant was born in 1960 and lived in Bytom.

2.  He suffered from kidney failure and required regular dialysis. He used a catheter for dialysis. In addition, the applicant had been diagnosed with liver cirrhosis, spinal discal hernia, venous insufficiency, diabetes, epilepsy and many related ailments.

3.  Prior to his detention he had been hospitalised on numerous occasions. On 29 April 2002 the applicant was admitted to the Bytom Regional Hospital No. 4 (“Hospital no. 4”) in severe condition caused by acute kidney failure, severe ulceration of the lower leg and advanced anaemia. He was hospitalised there until 12 July 2002, when he was released.

A.  Criminal proceedings against the applicant and his pre-trial detention

4.  On 31 July 2002 the applicant was arrested on suspicion that he had committed murder with two accomplices. Later that day the Bytom District Court (Sąd Rejonowy) remanded him in custody. The domestic court justified the applicant's pre-trial detention by the gravity of the offence, the existence of strong evidence against him, the likelihood that a severe penalty would be imposed and by the need to secure the proper course of justice. The court also noted that the chief doctor of the Bytom Remand Centre's hospital had assessed the applicant as fit for detention (see paragraph 33 below).

5.  On 25 September 2002 the above detention decision was upheld by the Katowice Regional Court (Sąd Okręgowy).

6.  The applicant's pre-trial detention was subsequently extended by decisions of the Katowice Regional Court of, inter alia, 21 October 2002 (upheld by the Katowice Court of Appeal (Sąd Apelacyjny) on 27 November 2002), 2 December 2002 (upheld on 15 January 2003), 28 July 2003 and 16 June 2004.

7.  Once the length of the applicant's detention reached the statutory two-year time-limit laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the first-instance court was no longer competent to extend it. Consequently, the preventive measure in question was further extended by decisions of the Katowice Court of Appeal of, inter alia, 14 July 2004, 8 December 2004 (upheld by the same court on 12 January 2005) and 6 April 2005 (upheld on 11 May 2005).

8.  In the meantime, the applicant's requests for release on health grounds were dismissed by decisions of the Bytom District Prosecutor of 7 October 2002, 14 February 2003 and 5 May 2003, and by decisions of the Katowice Regional Court of 1 September 2003 and 25 April 2005. The authorities found that, despite his numerous health problems, the applicant was fit for detention and could receive adequate medical treatment within the penitentiary system.

9.  The domestic courts gave as reasons for the applicant's pre-trial detention in its initial phase the existence of strong evidence against him, the likelihood that a severe penalty would be imposed and also a reasonable risk that the applicant would attempt to induce witnesses to give false testimony or to obstruct the proper course of justice by other unlawful means. The authorities stressed that it was necessary to hear evidence from a large number of witnesses and to obtain expert reports. Although it was acknowledged that the applicant was in poor health, the medical care provided within the penitentiary system was found to be sufficient. During the relevant period eight hearings were held by the court and nine out of twenty witnesses gave statements.

10.  At the later stage of the applicant's detention, the authorities invoked the complexity of the case and the fact that there was strong evidence against him and the other defendants. It was also emphasised that, according to four consecutive medical reports, the applicant was fit for detention. On the other hand, in order not to worsen his already fragile condition it had been decided to hold the hearings once a month in the Bytom District Court's building, located near the applicant's remand centre. That, however, inevitably led to delays in the proceedings.

In addition to the above grounds, in its decisions of 14 July and 8 December 2004 the Katowice Court of Appeal stated that in holding only one hearing per month the trial court had followed the instructions of experts, who in turn, had had to accommodate the applicant's special needs given his health. The Court of Appeal also referred to the need to hear three more witnesses, one of whom was then hospitalised.

11.  Meanwhile, on 16 April 2003 the applicant was indicted on a charge of murder allegedly committed with two accomplices, who were also on trial. The applicant was also indicted on a charge of soliciting three men to assault a certain H.R. by spraying him with hydrochloric acid. The applicant's wife was one of the witnesses in the case.

12.  On 16 October 2003 the trial court scheduled the first hearing for 7 January 2004. The subsequent court's sessions took place at regular monthly intervals in the buildings of the Bytom District Court.

13.  On 5 December 2003 and 12 January 2004 the court obtained two reports on the applicant's health from the experts of the Silesian Medical Academy (see paragraphs 36-37 below).

As regards the criminal proceedings, the earlier report stated that the applicant's health condition was an obstacle to his participation in the court's hearings, in particular, in hearings which would last long hours and be held on the second or third day after the dialysis session. The later report specified that the applicant could eventually participate in the court's hearings on the following conditions: he was to be accompanied by a medical doctor at the court and examined before each trial, the hearings were to be shortened to three hours and they were to be scheduled only twice a month, each time for a minimum of two days after the applicant's dialysis.

14.  By letter of 21 January 2004 (see paragraph 38 below) the Katowice Regional Court was informed that, because of the shortage of staff, the Bytom Remand Centre's hospital could not delegate a medical doctor to accompany the applicant during the trial.

15.  On 4 July 2005 the Katowice Regional Court convicted the applicant and his co-defendants as charged. The applicant was sentenced to 25 years' imprisonment.

16.  On 25 January 2006 the Katowice Court of Appeal upheld the first-instance judgment in the main part concerning the charges and the sentence. The court emphasised the aggravating circumstances of the case.

17.  On 8 November 2006 the Supreme Court dismissed a cassation appeal lodged by the applicant.

18.  It appears that throughout the proceedings the applicant was represented by a legal-aid lawyer, except for six months at an unspecified stage when he was not legally represented.

19.  Between 14 and 29 April 2005 and between 29 April 2005 and 25 August 2006 the applicant was serving two terms of prison sentences imposed in other criminal proceedings, namely by the Bytom District Court in a judgment of 14 February 2005 and by the Katowice Regional Court's judgment of an unspecified date.

B.  The applicant's health condition and his medical treatment in detention

1.  From 31 July 2002 until 3 April 2006

20.  The parties' statements relating to the conditions of the applicant's detention are, to a large extent, contradictory.

(a)  Uncontested facts

21.  From 31 July 2002 until 3 April 2006 the applicant was detained in Bytom Remand Centre. During that time, he was assigned to cells in the hospital wing, with the exception of two periods, from 6 until 13 April 2005 (7 days) and from 1 until 17 February 2006 (17 days), when he was detained in a general wing (see paragraphs 57 and 58 below).

22.  During his detention in Bytom Remand Centre the applicant was initially taken to municipal hospital no. 4 for dialysis three times per week. The number of dialysis sessions was subsequently reduced to two per week from July 2003. Each dialysis lasted five hours. On 5 February 2005 the applicant's dialysis sessions were discontinued.

(b)  Facts in dispute

(i)  The Government

23.  In the Government's submission, the applicant was provided with round-the-clock supervision by the medical staff. In addition, he was regularly examined by various specialist doctors at municipal hospital no. 4. Through the treatment provided within the penitentiary system, the applicant's health condition improved in February 2004.

24.  The Government also submitted that the applicant had had unrestricted access to his medical records.

(ii)  The applicant

25.  The applicant maintained that he had not been examined by a doctor before the detention order of 31 July 2002.

26.  He also claimed that the medical care offered to him in Bytom Remand Centre had been inadequate. He had been infected three times with staphylococcus aureus (gronkowiec). He had suffered twice from pneumonia, three times from bronchitis and once from sepsis. In addition, he had developed neurosis and lost a lot of weight.

27.  In the applicant's submission, despite his objections, he had been driven to his dialysis sessions in pyjamas and only from 25 September 2002 onwards was he allowed to wear his own clothes during the journey.

28.  Lastly, the applicant claimed that he had not been given access to his medical file and that the penitentiary authorities had refused to make copies of the medical reports, even though he had been prepared to bear the photocopying costs.

(c)  Medical reports

29.  In a letter of 31 July 2002 the Bytom District Prosecutor (Prokurator Rejonowy) asked the Governor of Bytom Remand Centre (Dyrektor) whether the applicant could be admitted to the Bytom Remand Centre's hospital and whether, during his pre-trial detention, he could be transported to another location for dialysis.

A handwritten note on the bottom of that letter stated that the applicant could be treated in the conditions of Bytom Remand Centre and could be taken to specialised hospital no. 4 for dialysis. The letter bears two signatures and stamps, legible only in part, of the Governor of Bytom Remand Centre and the “Chief Doctor of the Internal Medicine Ward” (Ordynator Oddziału Wewnętrznego).

30.  On 6 August and 4 October 2002 experts from the Silesian Medical Academy (Śląska Akademia Medyczna) submitted two reports on whether the applicant was fit for continued detention.

It emerged from the applicant's medical records that he suffered from serious and chronic disorders, such as hypertension, obesity, liver cirrhosis, diabetes and kidney failure, and that there were no prospects that his health condition would improve. That, in principle, was considered to be an obstacle to the applicant's detention and to his participation in the proceedings. It was concluded, nevertheless, that since there was no life-endangering threat, the applicant could be detained on condition that he received adequate medical care and was not subjected to stress or physical strain.

31.  In a letter of 12 September 2002 a doctor of the Bytom Remand Centre's hospital and the Deputy Governor of Bytom Remand Centre stated that the applicant had been under constant medical supervision and that his health had stabilised. He was regularly taken to the nephrology ward of hospital no. 4 for dialysis. There were no obstacles to his continued detention in that facility.

32.  By letter of 30 December 2002 the Chief Doctor of the Internal Medicine Ward of Bytom Remand Centre and the Governor of Bytom Remand Centre informed the prosecutor that the applicant could continue to be detained and treated in the Bytom Remand Centre hospital. It was suggested, however, that the authorities also inquire with the Chief Doctor of Bytom Regional Hospital no. 4.

33.  On 14 March 2003 a medical report concerning the applicant's health was prepared by the Chief Doctor of the Nephrology Ward of Bytom Regional Hospital no. 4. The report was based on the results of the applicant's medical examination of 7 March 2003 and his medical records.

As stated in the report, the applicant suffered from chronic kidney failure. As a result, dialysis would be required throughout the applicant's life (three times per week for five hours). The doctor also confirmed that the applicant suffered from chronic liver cirrhosis and related ailments and from diabetes and related obesity. Because of the applicant's weight loss and reduction in insulin levels, which had been caused by kidney failure, the applicant could not, at the time of the report, receive any hypoglycaemic treatment. Lastly, it was confirmed that the applicant suffered from a number of ailments related to venous insufficiency and other chronic conditions.

The doctor concluded that unless the applicant developed new health disorders or complications he could receive adequate medical treatment in the remand centre's hospital. He would only have to be taken for regular dialysis at the specialised municipal hospital. He added that the applicant's stay at the remand centre hospital did not pose any threat to his life or health. Except for a certain psychological discomfort related to detention, the applicant's condition would not be any different if he were to receive his treatment at home.

34.  In a letter of 15 April 2003 a doctor practising in the Bytom Remand Centre hospital and the Deputy Governor of Bytom Remand Centre informed the prosecution services that on 24 March 2003 the applicant had been diagnosed with pneumonia by a doctor performing the dialysis. The applicant had been treated for several weeks with different antibiotics and his condition had ultimately improved.

35.  On 21 August 2003 the Chief Doctor of the Internal Medicine Ward of Bytom Remand Centre issued a medical certificate stating the following facts. The applicant had been diagnosed with kidney failure, liver cirrhosis, spinal discal hernia, venous insufficiency, diabetes, obesity, epilepsy and related ailments. At the relevant time he was also suffering from frequent headaches, pains and aches in his right leg and from overall weakness. He was being treated for acute venous insufficiency. In addition he had recently been cured of a long-lasting pneumonia which he had developed in March 2003. It was concluded that the applicant's detention in a prison hospital did not in itself pose any risk to his limb or health. On the other hand his chronic and serious health disorders could pose such a threat. It was noted in the report that the applicant, who was 190 cm tall, weighed 115 kg.

36.  On 5 December 2003 another medical report was drafted by court-appointed experts from the Silesian Medical Academy. The twelve-page report was based on the results of numerous tests, including an EMG scan of 28 March 2003 and detailed blood tests, and on the results of the applicant's medical check-up of 28 November 2003. It was noted in the report that the applicant weighed 113 kg.

The report confirmed the previous diagnoses. The doctors noted that the applicant's condition was only relatively stable. It had recently deteriorated because of an infection of his dialysis catheter with staphylococcus aureus bacteria, symptoms pointing to heart disease and increased depression. It was ordered that the applicant continue systematic dialysis, pharmacological treatment and a diet, and that he his lifestyle be adapted. The doctors also ordered that the applicant start a psychological treatment and have further cardiac tests. If the bacteriological infection of the applicant's catheter persisted, the device would have to be removed without undue delay.

It was concluded that the applicant's multiple and serious disorders did not pose a direct threat to his life. In the natural course of things, however, the applicant's health was likely to deteriorate, either gradually or rapidly, for example under stress. Consequently, it was of great importance that the applicant did not experience any stress or physical strain, especially shortly after each dialysis session. That medical requirement posed an obstacle to the applicant's participation in the court proceedings.

Moreover, the experts considered that the applicant was not fit for detention in a remand centre. It could eventually be accepted that he was detained in a remand centre's hospital but only provided that he were held under a very stringent regime of hygiene (in order to avoid infection of the catheter) and that his cardiological condition was further examined. It was recommended that the authorities consider whether the applicant should be treated at a specialised hospital at liberty.

37.  An additional medical opinion was obtained from the same court-appointed experts on 12 January 2004. The doctors noted that, in the applicant's current condition, the provision of specialised treatment outside the penitentiary system was not indispensible. However, considering that the applicant's bacteriological infection had not been cured, his infected catheter was certainly to be removed. Moreover, a new treatment approach involving antibiotics, post-treatment tests and a rigid hygiene regime were required. It was absolutely necessary that the applicant have access to hygiene products and daily baths. In addition, he was to be examined by a doctor a day after each dialysis session.

The report also contained recommendations as to the applicant's participation in court hearings (see paragraph 13 above).

38.  On 21 January 2004 the heads of Bytom Remand Centre and its hospital replied to a query made by the Katowice Regional Court about the progress of the applicant's treatment after his bacteriological infection.

As stated in the letter, the applicant was under the regular medical care of nephrology specialists. Initially he had three dialysis sessions per week. Once a month he was subjected to a biochemical test, monitoring the effectiveness of the dialysis. Because the applicant's results had improved, it had been decided that as of the end of July and the beginning of August 2002, he would have two dialysis sessions per week. The reduction in the number of dialysis sessions had not had any negative impact on the applicant's nephrological condition. Further tests were being carried out in order to determine whether the dialysis could be ceased.

Moreover, the following information was furnished in reply to the court's specific questions.

The removal of the applicant's infected catheter was not recommended until it was determined whether dialysis was still necessary in the applicant's current condition.

The applicant was subjected to regular bacteriological tests. The most recent test dated from 14 December 2003 and the results of the tests which had been carried out after the antibiotic treatment were awaited.

The applicant was provided with hygiene products and could have frequent baths. In this connection, it was also noted that the applicant had a long-duration catheter, which was dressed with bandages after each dialysis session. The catheter was not to be washed with water or manipulated by anyone but qualified stuff of the dialysis centre.

The applicant was detained at the internal disease ward in the Bytom Remand Centre's hospital. He had medical check-ups every day.

The applicant, as a patient in a remand centre's hospital, was transported for dialysis in his pyjamas. He often put additional clothes underneath and a bathrobe on top. He got out of the car beside the entrance to the hospital. The risk of the applicant's catching a cold was very small.

39.  A similar update was sent to the Katowice Regional Court on 18 February 2004.

It was noted that the applicant had recently reported frequent headaches and overall weakness. He had not complained of any other disorders. Because of the improvement in the applicant's kidney condition, confirmed by the results of the recent biochemical tests, the dialysis sessions had been discontinued as of 5 February 2004. The applicant had been scheduled for further monitoring tests four to six weeks later.

The applicant's overall health condition had improved, despite his numerous chronic disorders. The applicant's further stay in the remand centre's hospital was no longer strictly necessary.

Lastly, it was noted that hygiene products were regularly supplied to the applicant. The latter had never complained about their shortage. He took three baths per week and had daily access to a washbasin with hot water. The applicant was on a diet for diabetics with increased protein, according to the recommendations of nephrology specialists. He had a routine medical check-up almost every day. In addition he had had eight electrocardiograms. Bacteriological tests of the applicant's catheter had been carried out by the staff of the dialysis centre in accordance with the required procedure.

40.  A hospital release report (karta wypisowa) prepared by a doctor of the Bytom Remand Centre's hospital on 30 March 2004 stated that the applicant was to have routine check-ups at a nephrology clinic every four to six weeks.

It was noted in the report that the applicant weighed 116 kg.

41.  A medical certificate issued on 30 November 2004 by a doctor practising in the Bytom Remand Centre's hospital stated that the applicant was under the regular supervision of a nephrology specialist and received pharmacological treatment. As of the date of the examination, “no significant symptoms of a deterioration in the applicant's health had been noted”.

42.  Another hospital release report was prepared on 6 April 2005, that is, the day of the applicant's transfer to the general wing of the Bytom Remand Centre.

Check-ups in the nephrology hospital were recommended every three months. It was noted that the applicant weighed 102 kg.

43.  On 11 April 2005 the Chief Doctor of the Internal Medicine Ward of the Bytom Remand Centre's hospital issued a medical certificate at the request of the Katowice Regional Court. The certificate confirmed that the applicant suffered from chronic kidney failure, liver cirrhosis (in the stabilisation phase), type II diabetes (treated with a diet), chronic venous insufficiency and thrombocytopenia (małopłytkowość krwi). It was stated that the applicant could receive adequate treatment in prison.

2.  From 3 to 25 April 2006

44.  From 3 to 25 April 2006 the applicant was held in Katowice Remand Centre for a psychological-psychiatric check, a routine examination after a criminal conviction.

3.  From 25 April to 26 August 2006

(a)  Uncontested facts

45.  From 25 April to 26 August 2006 the applicant was detained in a general wing of Strzelce Opolskie Prison (see paragraph 65 below).

46.  On 22 August 2006 at 5 p.m. the applicant was taken to Opole Hospital in a critical condition, requiring immediate dialysis. He had been vomiting in the preceding days and suffered from acute kidney failure.

The applicant was not admitted to the hospital's emergency ward since the specialised nephrology treatment which he required could not be provided there. Instead, he was immediately transferred to the nephrology ward of the same hospital.

47.  He remained at the Opole Hospital's nephrology ward for further treatment until 26 August 2006. His dialysis sessions were resumed on 22 August 2006.

(b)  Facts in dispute

(i)  The Government

48.  The Government submitted that the applicant had remained under strict medical supervision in Strzelce Opolskie Prison.

Moreover, he had unrestricted access to his medical records.

49.  On an unspecified date the prison authorities rejected the applicant's request to be transferred to the hospital of Bytom or Cracow Remand Centres. The authorities considered that the medical care offered in Strzelce Opolskie was sufficient and that the applicant's health condition was stable. A similar decision was issued by the Deputy Director of the Opole Regional Inspectorate of Prison Services on 1 August 2006.

(ii)  The applicant

50.  The applicant submitted that for the first two days after his transfer to Strzelce Opolskie Prison he had not received any medication. Afterwards, he had been given only some of many medicines prescribed. Moreover, he had had no opportunity to follow his diabetes diet and he had not been examined by a nephrologist as ordered by the medical experts.

4.  After 26 August 2006

(a)  Uncontested facts

51.  On 25 August 2006 the Opole Regional Court decided to grant the applicant a short break in the execution of the sentence (przerwa w odbywaniu kary) until 26 November 2006.

The break was granted on health grounds, on the basis of Article 153 of the Code of the Execution of Criminal Sentences. The court considered that the applicant's life was in danger as he was being hospitalised with symptoms of cardiovascular insufficiency in addition to the chronic kidney failure.

It appears that during his temporary release from prison the applicant was hospitalised for six weeks.

52.  It appears that the applicant's temporary release was extended by subsequent decisions of the Opole Regional Court until eventually, on an unspecified date, he was released from prison altogether.

(b)  Medical reports

53.  A few days after his release from prison the applicant was admitted to hospital no. 4. He was treated in its nephrology ward from 28 August to 13 October 2006 and then from 16 November to 4 December 2006.

54.  It appears from the hospital report (karta informacyjna) of 13 October 2006 that the applicant had developed another acute kidney condition (dekompensacja niewydolności nerek). In addition, the report contained a series of results of various laboratory and medical tests carried out during the applicant's stay at the hospital.

A hospital report of 4 December 2006 contained information that the applicant was being hospitalised because of an elevated calcium level in the blood (hypercalcaemia).

55.  On 29 January 2007 three court-appointed experts from the Silesian Medical Academy submitted a report on whether the applicant was fit to resume serving his sentence. Having examined the applicant's medical records, as well as the applicant in person, the experts concluded that he could resume serving his sentence as long as he was held in the Bytom Remand Centre's hospital and received adequate medical treatment and dialysis. It was recommended, however, that the applicant have kidney transplant surgery and be examined in connection with his recent and hitherto unexplained consciousness disorders. It was noted in the report that the applicant weighed 100 kg.

C.  Conditions of the applicant's detention

56.  The parties' statements relating to the conditions of the applicant's detention are, to a large extent, contradictory.

1.  Bytom Remand Centre

(a)  Uncontested facts

57.  The applicant was detained in Bytom Remand Centre from 31 July 2002 until 3 April 2006.

58.  During that time, he was assigned to cells in the hospital wing, with the exception of two periods, from 6 until 13 April 2005 and from 1 until 17 February 2006, when he was detained in a general wing.

(b)  Facts in dispute

(i)  The Government

59.  The Government submitted the following information concerning the size and the occupancy rate of the applicant's cells in the Bytom Remand Centre's hospital and general wings.

From 1 until 2 August 2002 the applicant was assigned to cell no. 63, which measured 39 square metres (m²) and was shared by nine persons including the applicant (over 4 m² per person).

From 2 August 2002 until 30 December 2004 he was detained in cell no. 62, which measured 18 m² and was shared by four persons including the applicant (4.5 m² per person).

From 30 December 2004 until 6 January 2005 the applicant was detained in cell no. 60, which measured over 18 m² and was shared by five inmates including the applicant (3.7 m² per person).

From 6 January until 25 March 2005 he was assigned again to cell no. 62, which he shared with three other persons (4.5 m² per person).

From 25 March until 6 April 2005 the applicant was again detained in cell no. 60, which he shared with four other persons (3.7 m² per person).

From 6 until 13 April 2005 the applicant was detained in a general wing of Bytom Remand Centre. He was assigned to cell no. 34 of wing II, in which the statutory minimum standard of 3 m² of space per person was not respected.

On 13 April 2005 he was transferred back to the remand centre's hospital wing. He was detained in cell no. 17, which measured almost 17 m² and was shared by four persons including the applicant (4.25 m² per person).

On 1 February 2006 the applicant was moved back to the general wing of the remand centre. His cell no. 85/III measured 6 m² and was shared by the applicant and another person (3 m² per person).

On 17 February 2006 the applicant was transferred once more to the hospital wing.

From 17 until 20 February 2006 he was assigned to cell no. 47, which measured a little over 15 m² and was shared by four people including the applicant (3.75 m² per person).

From 20 February until 3 March 2006 he was detained in cell no. 45, which measured a little over 17 m² and was shared by the applicant and three other inmates (4.25 m² per person).

From 3 March until 3 April 2006 the applicant was assigned again to cell no. 47, which he shared with three other inmates (3.75 m² per person).

60.  Moreover, the Government submitted that the overall living and sanitary conditions in Bytom Remand Centre were good. The applicant's cells had been renovated six times in the period when the applicant was detained there, namely from 2000 until 2006. The cells were clean and well-ventilated. Each of the applicant's cells had a toilet annex with a lavatory seat and a washbasin. Detainees had access to hot water inside the cell.

The applicant, due to his special needs, was allowed to have a hot bath whenever it was indicated by a doctor, at least once a week. Detainees' underwear, towels and pyjamas were changed once a week and bed linen was changed once every two weeks.

Thirteen sanitary inspections were carried out during the applicant's detention in Bytom Remand Centre's hospital wing. They confirmed that the sanitary conditions in the remand centre were within the required standards.

The applicant could have one hour of outdoor exercise per day. In the event of bad weather or poor health the applicant's outdoor time was either cancelled or limited, to suit the applicant's needs.

(ii)  The applicant

61.  The applicant did not make any submission concerning the size and the occupancy rate of his cells in the hospital wing of Bytom Remand Centre. He agreed with the Government's statement that the minimum statutory standard of 3 m² of floor space in a cell had not been respected during the total of twenty-four days when he had been detained in a general wing of the remand centre.

62.  He also claimed that the hygienic and sanitary conditions in the Bytom Remand Centre were very bad. The cells were infested with bugs and bacteria. He was allowed to take a maximum of three baths per week, which was not enough in view of his special needs. As a result of those poor conditions, by the end of 2003 the applicant's dialysis catheter had become infected with staphylococcus aureus bacteria (see paragraphs 26 and 36 above).

63.  The applicant also noted that because he was transported to the dialysis sessions in an unheated vehicle wearing only pyjamas, he had been exposed to further health risks.

64. Lastly, the applicant also submitted that on the days of dialysis he had been unable to have lunch at a regular hour and had had to warm up his food upon his return to the remand centre. At times he had been deprived of a meal altogether. Moreover, contrary to internal rules, which provided that detainees could have an hour's walk outside every day, he had often been deprived of that opportunity.

2.  Strzelce Opolskie Prison from 25 April to 25 August 2006

(a)  Uncontested facts

65.  From 25 April to 25 August 2006 the applicant was detained in Strzelce Opolskie Prison's general wing.

(b)  Facts in dispute

(i)  The Government

66.  The Government provided the Court with the following information concerning the size and the occupancy rate of the applicant's cells.

From 25 until 28 April 2006 the applicant was assigned to cell no. 66, which measured a little over 15 m² and was shared by five to six persons including the applicant (3 to 2.5 m² per person).

From 28 April until 26 August 2006 the applicant was detained in cell no. 65 in exactly the same conditions as in cell no. 66.

The Government acknowledged that the Strzelce Opolskie Prison was overcrowded at the time the applicant was detained there.

67.  They further submitted that the sanitary conditions in Strzelce Opolskie Prison were satisfactory. The applicant's cells were in good technical condition and they were clean and ventilated.

Prisoners' underwear, towels and pyjamas were changed once a week and bed linen was changed once every two weeks.

Sanitary inspections were carried out regularly to ensure that the required standards were met. The applicant could take a hot shower once a week and could boil water inside the cell.

68.  The applicant could have one hour of outdoor exercise per day in a spacious courtyard together with a group of 110 prisoners. The applicant had also access to a large recreation room.

(ii)  The applicant

69.  The applicant, without giving any details, submitted that Strzelce Opolskie Prison had been overcrowded.

70.  He further submitted that sanitary and hygienic conditions had been very bad. He only had access to cold water inside the cell.

D.  Complaints about medical care and the conditions of the applicant's detention lodged with the domestic authorities

71.  The applicant lodged numerous complaints with the penitentiary authorities. On 10 April 2003 the applicant's lawyer applied for the applicant's release on health grounds. In addition, the applicant himself asked to be transferred from Strzelce Opolskie Prison to the Bytom or Cracow Remand Centre's hospital.

72.  By a letter of 1 August 2006 the Deputy Director of the Opole Regional Inspectorate of Prison Services (Okręgowy Inspektorat Służby Więziennej) informed the applicant that his complaints were found to have been unsubstantiated. It was noted that the applicant's disorders were of a chronic nature and that he could receive adequate treatment in detention. It was also emphasised that the applicant was under the systematic supervision of the in-house doctors in Strzelce Opolskie Prison.

E.  Family visits during the applicant's pre-trial detention

73.  The applicant maintained that his wife had not been allowed to visit him in Bytom Remand Centre as she had had witness status throughout the criminal proceedings. He also submitted that his two daughters were not prohibited from seeing him; however, since one of them was a minor and the other was in a wheelchair, they had been unable to come to the remand centre unaccompanied. In the applicant's submission, the authorities had refused to grant visiting rights to the applicant's neighbour, who had intended to bring the applicant's daughters.

74.  The documents submitted by the Government reveal that on 2 December 2004, 17 November, 2 and 19 December 2005 and on 9 January 2006 the Katowice Court of Appeal issued orders to allow the applicant's wife to visit the applicant in Bytom Remand Centre. The visits were to take place at the table (przy stoliku) in the presence of a remand centre's officer.

Moreover, in the Government's submission, the applicant received regular visits from his family in Bytom Remand Centre. The visits were often extended to reward the applicant's good behaviour.

75.  During the applicant's detention in Strzelce Opolskie the authorities, following a medical recommendation, granted the applicant the right to extended family visits. His wife visited him without any restrictions.

F.  Monitoring of the applicant's correspondence

76.  The envelopes of the applicant's letters sent to the Registry of the Court bear stamps “Without censorship” (bez cenzury).

However, the letter of 20 May 2003 sent to the applicant by the Registry appears to have been monitored. The letter bears a stamp in red ink which reads: “Prosecutor of the District Prosecution Service ... A[...] O[...]” (“Prokurator Prokuratury Rejonowej ...”). An empty space in the stamp is filled with an illegible signature. Directly above the stamp there is a handwritten date “29.05.03” and an abbreviation “cenz.” which stands for “cens.” - an abbreviation of “censorship” (“cenzura”). Additionally, on the envelope there is a handwritten note which reads: “Attachment with the acknowledgement of censorship of the correspondence” (“Załącznik z potwierdzeniem cenzury korespondencji”). The note is signed illegibly.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Preventive measures, including pre-trial detention

77.  The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.

B.  Medical care and living conditions in detention facilities

78.  The provisions pertaining to medical care in detention facilities and to the general conditions of detention, and the relevant domestic law and practice are set out in the Court's judgments in the cases of Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61 ECHR 2009-... (extracts) and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009.

C.  Monitoring of detainees' correspondence

79.  The legal provisions concerning the monitoring of detainees' correspondence applicable at the material time and questions of practice are set out in paragraphs 65-66 of the judgment delivered by the Court on 2 December 2003 in the case of Matwiejczuk v. Poland, no. 37641/97.

THE LAW

By letter dated 9 January 2008 the applicant's representative submitted on behalf of his client his observations on the case together with his claims for just satisfaction.

On 20 January 2008 the Government submitted their comments concerning the applicant's claims for just satisfaction and their further observations on the case.

On 19 June 2008 the Registry received the last letter from the applicant dated 12 June 2008.

By letter dated 6 November 2009 the applicant's representative informed the Registry that the applicant had probably died.

By letters of 17 November 2009 sent by registered post the Registry attempted to contact the applicant at all of his known addresses. Both letters were returned to the Registry on 24 November 2009 bearing a stamp “addressee deceased”.

By letter of 4 December 2009 the Registry informed the Government about the applicant's death and invited the Government to comment on that new development if they wished to do so by 15 December 2009. The Government did not respond.

By letter of 15 December 2009 the applicant's representative confirmed that the applicant had died and informed the Court that they had no means to contact the late applicant's family, namely his wife and daughter.

The Court considers that, in these circumstances, none of the late applicant's heirs wishes to pursue the application in his stead, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Nicolas Bratza Registrar President

KAMYSZEK v. POLAND DECISION


KAMYSZEK v. POLAND DECISION