March 19, 2013
In the case D.G. against Poland (application no. 45705/07), the applicant alleged that the conditions of his detention had been incompatible with his disability. In February 2013, the European Court of Human Rights decided that Poland violated Article 3 of the European Convention on Human Rights. The outcome of the D.G. case will likely have impact on how States, not only Poland, view their obligations towards person with disabilities. The judgment may be key in ensuring a harmonized approach to this issue.
Prisoners depend, in all aspects of their daily lives and well-being, on the regime of the prison, its material conditions, services, and staff. In most prisons, however, disabled prisoners are exposed to significant inconveniences. Cells and common areas lack facilities accessible to them, bathrooms and showers are unadjusted to their special needs. This leads to a higher risk of injury. Due to security risks or shortage of resources there are no assistive devices, specialised equipment and disposable supplies, such as catheters, is lacking. There is also a lack of assistance from qualified personnel, since prison staff is mostly untrained in that respect.
D.G., 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 he had been provided with during his detention, had been inadequate. At the same time, he complained about overcrowding and the resultant poor living and sanitary conditions in prison, which in particular failed to meet the standard required for persons in his condition. The applicant claimed that this situation had caused him pain and suffering during his detention.
As submitted by the applicant and expressly acknowledged by the Government, the cell had been inadequately furnished and had not been adapted for prisoners with special-needs. In particular, in order to reach his bunk, the applicant had had to heave himself up from his wheelchair onto his bed without the aid of any handles or special bars. Nor could he access the cell’s toilet annex because the passageway was too narrow.
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.
Helsinki Foundation for Human Rights, the European Disability Forum and the International Disability Alliance submitted jointly written comments. They argued that the problem with Polish prisons is not a result of inadequate legal standards, but it is linked to the lack of budgetary resources and political will to implement the law. As a consequence, standards established in the jurisprudence of the Court are not adequately implemented. Moreover, it can be argued that disabled prisoners in Poland are notoriously subjected to “greater distress or hardship than that which arose as a result of their imprisonment” on account of indirect discrimination. Due to the general infrastructural constraints affecting the Polish prison system, it is common for disabled prisoners not only to be unable to move around prison buildings autonomously, but also to lack free access to basic facilities such as toilets and showers. Such a situation may clearly amount to degrading treatment within the meaning of Article 3, as established in cases Vincent and Price. Finally, the average standard of medical assistance, in particular rehabilitation care, currently provided for disabled prisoners often fails to prevent the physical and psychological suffering of the persons concerned and the further deterioration of their health, not to mention their well-being, in violation of the Court’s standards.
In the D.G. judgment, the Court observed that a variety of conditions in penitentiary unit 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. The Court stated 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.
The Court held, that detaining 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 found a violation of Article 3 of the European Convention on Human Rights.
Katarzyna Wiśniewska, lawyer at the Helsinki Foundation for Human RightsAuthor : Europe of Human Rights