Right to Adequate Health Care in Detention and the Obligation of the State to Conduct an Effective Investigation

Dzieciak v Poland [2008] ECHR 77761/01 (9 December 2008)

The case concerns the applicant’s complaint about the excessive length of his pre-trial detention and inadequacy of the medical care he had received during that time.  After the applicant’s death, the applicant’s wife alleged that the authorities contributed to her husband’s death by failing to take the appropriate measures to protect his health and life.

The applicant’s wife relied on arts 2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 5 (right to liberty and security) of the European Convention.  This case is informative to the interpretation of corresponding provisions in the Charter, being ss 9, 10 and 21 respectively.


The applicant, now deceased, was arrested and placed in pre-trial detention on suspicion of recruiting persons used for international drug trafficking.  Despite the applicant’s numerous requests for release on grounds of ill-health, the domestic courts repeatedly extended his detention, relying on the reasonable suspicion against him and the complexity of the investigation, which involved organised crime.

Prior to his four years of pre-trial detention, the applicant had suffered from a serious heart disease and had had heart attacks.  His state of health continued to deteriorate while in custody.  The Government did not deny that the authorities had been aware of the applicant’s condition, which required periodic hospitalisation and medical treatment.  The applicant’s condition deteriorated to the point where it was eventually recommended by a medical panel which examined him that he undergo a heart bypass operation.

Despite this, during his pre-trial detention, the applicant was transferred to a detention centre without a hospital wing, did not receive adequate medical treatment and his detention was arbitrarily extended by local courts on a number of occasions as they did not consider the applicant’s state of health.  Further, while several appointments were made for the applicant’s heart surgery, the domestic authorities had not transferred him to hospital to have his operation, nor did they provide a satisfactory explanation as to why the applicant had not been transferred for his operation.  The applicant died while in pre-trial detention; the post mortem concluding that he died of acute coronary insufficiency.


The alleged failure to protect the applicant’s life

The Court reiterated that art 2(1) enjoins the State not only to refrain from intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.  Persons in custody, are particularly vulnerable and, as such, authorities are under a duty to protect them.  In this case, the obligation on the authorities ‘to account for the treatment of an individual in custody is particularly stringent where that individual dies’.

The Court concluded that the conduct of the domestic authorities was particularly unsatisfactory given the serious state of the applicant’s health and could not justify the overall period of the applicant’s detention.  In particular, the Court drew attention to:

  • the lack of cooperation and coordination between the various state authorities;
  • the failure to transport the applicant to hospital for two scheduled operations;
  • the lack of adequate and prompt information to the trial court on the applicant’s state of health; and
  • the failure to secure him access to doctors during the final days of his life.

The Court considered that the failure to take into account his health in the automatic extensions of his detention amounted to inadequate medical treatment and constituted a violation of the State’s obligation to protect the lives of persons in custody.

The alleged inadequacy of the investigation

The applicant’s representative argued that the investigation into the applicant’s death had not been properly carried out.  In particular, the investigation had lasted more than two years and had been discontinued without having considered doubts expressed by experts about the postponing of the applicant’s surgery on three occasions.  Further, the course of events leading up to the applicant’s death had not been established, the breadth of witness statements were limited and the accuracy of those obtainedwas not assessed.

The Court concluded that the authorities failed to carry out a thorough and effective investigation into the allegations that the applicant’s death was caused by ineffective medical care during his four years in pre-trial detention, in further violation of art 2.

Relevance to the Victorian Charter

While complaints were raised under arts 2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 5 (right to liberty and security), the court considered that it was not necessary to separately examine the complaints under arts 3 and 5, after making its determination under art 2.

Accordingly, while the facts of this case engage rights under ss 10 (protection from torture and cruel, inhuman or degrading treatment) and 21(5) of the Charter (right to liberty and security – promptness of being brought before a court), the decision in this case is more informative for the interpretation of s 9 (right to life) of the Charter.

Section 9 of the Charter provides that ‘everyone has the right to life and has the right not to be arbitrarily deprived of life’.

The fact that the court in this case decided that it was not necessary to consider the other complaints, substantiates that the right to life is in and of itself, a crucial and therefore absolute, right..  This case also reiterates the obligations of public authorities who hold people in custody.

Carolina Riveros Soto is a criminal lawyer with the Legal Aid Commission of NSW and Vice Chair of the NSW Young Lawyers Human Rights Committee