Kupczak v Poland  ECHR 127 (25 January 2011) Summary
Mr Edward Kupczak (the ‘applicant’) was held in detention in Poland awaiting trial for offences related to organised crime. The Applicant was severely disabled in a car accident six years prior to his detention, and suffered severe pain daily. He had been living with a morphine pump installed in his body to help manage his pain. His pump failed shortly after he was detained. The Applicant remained in detention despite making appeals for two and a half years. The Applicant was released from pre-trial detention in 2008 and was then able to have the morphine pump replaced.
The European Court of Human Rights found that through his detention, his lack of access to appropriate pain relief, and the Polish courts’ failure to acknowledge the break-down of his morphine pump, the Applicant had been subjected to inhuman and degrading treatment in violation of Article 3 of the European Convention on Human Rights ( ‘ECHR’).
In 2000, the applicant suffered serious injuries in a car accident and was partially paralysed. Since the accident, the applicant suffered severe pain on a daily basis. From 2000, the applicant had been using a special morphine pump from Germany implanted in his body to manage pain. The pump infused painkiller directly into his spinal fluid.
In 2006, the applicant was arrested and remanded in prison in Poland pending trial on the basis of suspected involvement in organised crime. When the applicant was detained, the Court considered his injuries, and decided that as the applicant’s morphine pump could be operated by prison doctors, his injuries were not a reason to render detention inappropriate. The applicant appealed this initial decision unsuccessfully.
Shortly after commencing detention, the applicant’s morphine pump failed, and the applicant was treated with conventional pain relief including oral and injectable medication. The applicant alleged he suffered significant pain without the morphine pump, and the levels of conventional medication required to control the pain impaired his mental functioning.
The applicant’s pre-trial detention was extended several times, despite the applicant’s appeals. In the applicant’s final appeal in October 2008, after two and a half years of detention, the Polish Court of Appeal ruled that the applicant should be released from detention and be allowed to travel to Germany to have a new pump installed. In September 2009, the applicant was still awaiting trial, although not in detention.
The applicant’s key submission to the European Court of Human Rights was that during his two and a half years of detention he suffered such pain, and was denied access to appropriate treatment to such an extent that he been subjected to inhuman and degrading treatment in breach of Article 3 of the ECHR. The applicant also alleged that his pre-trial detention was too lengthy in violation of Article 5 of the ECHR.
The Court raised of its own motion allegations of Poland’s failure to comply with Article 8 of the ECHR (no arbitrary interference by a public authority with the exercise of the right to private and family life, home and correspondence).
The Court considered that according to case-law, “ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention.” The Court stressed that “the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.”
The Court found several inadequacies in the treatment of the applicant. The decision highlighted that despite evidence the pump was not functional, the courts which heard the applicant’s appeals against his detention considered the fact that the applicant had a morphine pump implanted to be an important ground for finding his state compatible with detention. The Court noted that it was not disputed that the applicant’s morphine pump and stopped working shortly after the commencement of his detention.
Further, the Court acknowledged that the attempts by Polish authorities to find a hospital in Poland able to install a replacement morphine pump for the applicant, were not sufficient. After the applicant was released it took him only three months to organise a replacement pump for himself. Ultimately, the Court held that the Polish authorities had breached their obligations to provide effective medical treatment and the applicant had been subjected to inhuman and degrading treatment in violation of Article 3 of the ECHR as a result. The applicant was awarded damages.
Relevance to the Victorian Charter
This decision may be relevant to interpreting sections 10 (protection from torture and cruel, inhuman or degrading treatment) and 22 (humane treatment when deprived of liberty) of the Charter.
The recent decision of Castles v Secretary to the Department of Justice  VSC 310 accords with the approach demonstrated in this case. In Castles, Emerton J ruled that Ms Castles had a right to undergo IVF treatment while in prison. The rights protected by section 22 of the Charter formed the basis on which Emerton J reached her decision.
It should be noted that currently the Victorian Parole Board is exempt from complying with the Charter, hence any consideration of medical fitness for incarceration, or leniency based on medical condition in the parole context will not be include a consideration of rights protected by the Charter.
The decision is at: www.bailii.org/eu/cases/ECHR/2011/127.html
Kate Fazio is a Solicitor in the Human Rights Law Group at Mallesons Stephen Jaques