| Applicant name | w.w. |
| Applicant type | prisoner |
| Number of applicants | 1 |
| Country | Poland |
| Application no. | 31842/20 |
| Date | 11/07/2024 |
| Judges | Marko Bošnjak, President, Alena Poláčková, Krzysztof Wojtyczek, Lətif Hüseynov, Gilberto Felici, Erik Wennerström, Raffaele Sabato |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | violation |
| Reason | Positive obligation |
| Type of privacy | bodily integrity |
| Keywords | hormone therapy |
| Facts of the case | The applicant complained under Article 3 of the Convention that the refusal to allow her to continue hormone therapy in Siedlce Prison had amounted to inhuman and degrading treatment. She further alleged that the refusal in question also constituted a violation of Article 8 as it had breached her right to respect for her private life and to self-determination. The Court finds that the refusal to allow the applicant to continue hormone therapy in Siedlce Prison may raise issues under both Articles of the Convention relied upon, namely Articles 3 and 8. However, being the master of the characterisation to be given in law to the facts of the case, and in the specific circumstances of the present case, the Court considers it more appropriate to examine the case solely from the standpoint of Article 8 of the Convention. |
| Analysis | The Court cannot but note that the domestic authorities had strong elements before them indicating that hormone therapy was an appropriate medical treatment for the applicant’s state of health. This therapy was provided to the applicant in the prisons in which she was previously detained and had had a beneficial effect on her, as was noted by medical professionals. The Court notes that the prison governor justified his refusal to grant the applicant’s request solely by stating that an endocrinologist’s opinion was required. At the same time, the treatment was interrupted before the applicant could be consulted by an endocrinologist. In the Court’s view, the burden placed on the applicant to prove the necessity of the prescribed medical treatment by undergoing an additional consultation with an endocrinologist appears disproportionate in the circumstances of the present case. In any event, the applicant submitted to the prison authorities an opinion prepared by an endocrinologist confirming the necessity of the hormonal therapy. Nevertheless, this did not result in her request being granted. At the same time, the Court observes that Government did not refer to any detrimental effects which the therapy might have had on the applicant’s physical and mental health. Nor did they maintain that allowing the applicant to continue the therapy would have caused any technical and financial difficulties for the prison authorities. In that regard, the Court points out that the applicant bore the cost of the medications herself, thus imposing no additional costs on the State. It is true that the applicant’s hormone treatment was interrupted only for a relatively short period, between 18 July and 31 July 2020. However, the Court notes that the applicant submitted that since the beginning of July 2020 she had been taking half of the prescribed dose of medication. Most importantly, the applicant received the medication on 31 July 2020, not because of a sudden change of approach on the part of the authorities, but as a consequence of the Court’s indication of interim measures under Rule 39 of the Rules of Court. In the light of the foregoing considerations, the Court concludes that the authorities failed to strike a fair balance between the competing interests at stake, including the protection of the applicant’s health and her interest to continue the hormone therapy associated with gender reassignment. In so concluding, the Court bears in mind the applicant’s particular vulnerability as an imprisoned transgender person undergoing a gender reassignment procedure, which required enhanced protection from the authorities. There has accordingly been a violation of Article 8 of the Convention. Consequently, the Court dismisses the Government’s preliminary objection relating to the applicant’s victim status. JUDGE WOJTYCZEK writes a dissenting opinion in support of his home country. |
| Other Article violation? | Holds, unanimously, that there is no need to examine the complaints under Article 2, Article 13 in conjunction with Articles 3 and 8, and Article 8 in conjunction with Article 14 of the Convention; |
| Damage awarded | hat the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (ii) EUR 2,153 (two thousand one hundred and fifty‑three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; |
| Documents | Judgment |