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Cite as: [2010] ECHR 1388

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FOURTH SECTION

DECISION

Application no. 24200/07
by M.K.
against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 September 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 17 May 2007,

Having regard to the declaration submitted by the respondent Government on 17 June 2010 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The circumstances of the case

The applicant, Mr M.K., is a Polish national who was born in 1974 and lives at a confidential address abroad.

1. Background

The applicant is a repentant member of an organised criminal gang. He was charged, in two separate sets of criminal proceedings, with numerous offences, allegedly committed as a member of an organised criminal group, including the offence of having been an accomplice to murder. At an early stage in the proceedings he became a prosecution witness and provided testimony which incriminated many other alleged gang members.

Given the gravity of the charges against him, however, the applicant could not be formally granted the special status of a crown witness (świadek koronny), which would have allowed him to invoke mitigating circumstances before the court and to be placed under a witness protection programme during and after the trial, and on his release from prison.

The applicant was convicted by final judgments of the Siedlce Regional Court of 16 July 1996 and 9 May 2003. He was sentenced to 5 years and 6 months' and to 5 years' imprisonment, respectively.

The applicant's prison term was due to end on 26 January 2009. On 23 July 2008, however, the Lublin Court of Appeal decided to release the applicant on parole (warunkowe przedterminowe zwolnienie), for which he had applied. The court found that the applicant had undergone successful rehabilitation during his ten-year detention in Siedlce Prison and that there was no real risk that he would lapse back into crime in the future. The court ordered that the applicant be placed under the supervision of a probation officer for two years. The applicant's probation period was to end on 23 July 2010.

On 24 July 2008, the applicant was released from prison.

On an unspecified date in November 2008 the applicant left the country. He currently lives abroad.

2. The applicant's situation during his detention

On 4 August 1998 the applicant was remanded in custody. He was at first committed to Warsaw Remand Centre and on an unspecified date in April 1999 he was transferred to Radom Remand Centre.

As derived from the documents which had been produced in the course of the criminal investigation and were submitted by the applicant to the Court, the applicant was assaulted verbally and physically by his fellow inmates in both remand centres. He was beaten up during his psychiatric observation in Warsaw Remand Centre by a certain prisoner nicknamed G. In 1999 an unknown prisoner spat on the applicant and called him names.

On an unspecified date, presumably 28 April 2000, the applicant was committed to Siedlce Prison, where he remained until his release on 24 July 2008.

Pending the applicant's second trial, the Siedlce Regional Court instructed the Governor (Dyrektor) of Siedlce Prison that, given the applicant's status as a prosecution witness, special security measures should be taken to ensure his safety from other prisoners. In consequence, the applicant was detained with only one other inmate and he had a personalised schedule for outdoor exercise and visits.

Following the applicant's conviction on 30 June 2000, the authorities considered that the applicant's safety was no longer at risk because his co defendants had been transferred to other prisons. Consequently, the special security measures were lifted.

In the years which followed, the prison staff had nonetheless had to employ special measures to ensure the applicant's safety, as the harassment by other prisoners persisted.

As derived from the documents, which had been produced in the course of the criminal investigation and were submitted by the applicant to the Court, in 2000 the applicant was beaten up by a prisoner nicknamed Z. and physically assaulted by another prisoner of unknown identity. In 2001 the applicant was physically assaulted on two occasions. In 2002 he was twice beaten up and in 2006, once.

On 17 August 2006 the applicant informed the authorities that he again felt threatened. Following this notification, the original security measures were reinstated. The applicant was scheduled to receive visitors on different days than other prisoners. He was accompanied by warders during the periods for outdoor exercise and bathing. He was assigned either to a single cell or to a cell which he shared with a small number of pre-selected inmates.

Despite the security measures put in place by the staff of Siedlce Prison, the applicant was assaulted on a regular basis by other prisoners and received death threats. He was also beaten up on several occasions. The applicant asserted that, among other acts of cruelty, his fellow prisoners had knocked out his teeth, cut his arms with a metal can and attempted to force him to commit suicide.

In view of his fears for his safety, on an unspecified date, the applicant waived his right to daily outdoor exercise, to attend mass and to follow an education programme in prison. It appears that he remained confined to his cell for most of the time.

(a) The applicant's complaints to the penitentiary authorities

During his detention in Siedlce Prison the applicant lodged numerous complaints with the penitentiary authorities, submitting that he feared for his life and safety (in particular, on 22 October 2001, 19 January and 14 February 2003, 17 August, 28 September, 1 and 9 October and 19 December 2006, 11 May, 18 June, 6 and 12, 13 August 2007). He asserted that members of the prison staff had revealed information about his status as a prosecution witness and did not offer him sufficient protection from other prisoners.

By letter of 7 March 2003, the Head of the Warsaw Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that the security measures employed in Siedlce Prison to protect his physical integrity and to make him feel safe were considered sufficient.

By letter of 16 October 2007, the Head of the Warsaw Regional Inspectorate of the Prison Service informed the applicant that his multiple complaints were considered ill-founded. It was noted that the applicant was under increased supervision by the Siedlce Prison's psychologist and warders and that many security measures had been put in place to ensure his safety. It was noted that the applicant was scheduled to take outdoor exercise and showers at the same time as a small number of inmates, who had been pre-selected because of their calm natures and good behaviour. The Inspectorate admitted, however, that the applicant had indeed waived his right to daily outdoor exercise and had not expressed a wish to attend mass or to follow an education programme in prison. It was considered, however, that the applicant's decision was not related to his alleged fear for his safety. The Inspectorate stressed that, when asked, the applicant had expressed satisfaction about his prison regime and had not wished to be transferred to another prison. In addition, the applicant had applied for a job in Siedlce Prison. In the view of the authorities, this all proved that the applicant felt safe and that the security measures which had been put in place in Siedlce Prison were effective.

(b) Criminal proceedings against prison staff

On 22 November 2006 a criminal investigation was opened into the applicant's allegations that the local police, the Siedlce District Prosecutor (Prokurator Rejonowy) and the staff of Siedlce Prison had breached their rights and duties in that they had revealed confidential information about the applicant's status and had failed to protect him from acts of aggression and harassment by his fellow prisoners.

On 19 January 2007 the investigation was discontinued. It was reopened, however, on 21 August 2007.

On 24 October 2007 the Lublin Regional Prosecutor (Prokurator Okregowy) discontinued the investigation in part and severed one complaint for further investigation by another jurisdiction.

The allegation that between 2000 and 7 August 2007 the Siedlce District Prosecutor and the local police had not taken sufficient security measures to protect the applicant from reprisals was found not to have a basis in fact.

The allegation that between 2000 and 16 October 2007 the staff of Siedlce Prison had not taken sufficient security measures to protect the applicant from reprisals was rejected because of the absence of elements of a criminal offence (brak znamion czynu zabronionego).

The allegation that between 2000 and 16 October 2007 the applicant had been subjected to physical violence and harassment in Siedlce Prison was rejected, partly on procedural grounds and partly because no societal interest would be served by investigating the offences (brak interesu społecznego).

The allegation that between August 1998 and March 1999 the applicant had been beaten up during his detention in Warsaw Remand Centre was rejected on the ground of negative prescription.

The allegation that on an unspecified date in September 2001 the applicant had been robbed in prison was rejected on the ground of negative prescription.

In its decision to discontinue the investigation, the prosecution service relied on testimonies obtained from the applicant and several staff members of Siedlce Prison, and documents issued in connection with the applicant's criminal trials and detention, that is, the prison incident records.

The prosecutor established that prior to the applicant's conviction on 30 June 2000 he had not expressed any dissatisfaction with the quality of the security measures put in place by the authorities and prison staff. It was observed that the applicant started complaining to the authorities, including with reference to the past, only when he realised that he would not be placed under a witness protection programme on his release. It was considered that, overall, the security measures employed by the staff of Siedlce Prison had been effective. Although they failed occasionally, no fault could be attributed to the prison staff or the authorities. The prosecutor noted that the isolated incidents of assault and the uttering of threats against the applicant could be prosecuted separately if the applicant filed an application for prosecution of the alleged culprits (wniosek o ściganie) or a private indictment (prywatny akt oskarżenia). The applicant had not wished to do so because he planned to go into hiding after his release from prison.

Irrespective of the decision to discontinue the investigation into the above allegations, the prosecutor took note of the testimonies of several prison guards who submitted that the applicant had suffered different forms of harassment in prison and that his fears for his life had been legitimate, in particular with regard to the immediate post-release period.

Lastly, the prosecutor decided that the allegation that in April 2006 the applicant had been beaten up by five inmates in the Siedlce Prison's visiting room should be investigated further. The case was referred to the Siedlce District Prosecutor.

On 29 January 2008 that investigation was discontinued because of the lack of sufficient evidence to justify the suspicion of a criminal offence (brak danych dostatecznie uzasadniających podejrzenie popełnienia przestępstwa). It was revealed that the applicant had failed to inform the authorities of the alleged incident in due time and that he had not sought any medical attention after the alleged events.

3. The applicant's situation after his release

On 24 July 2008, the applicant was released from prison.

On an unspecified date in November 2008 he left the country. He currently lives abroad.

Prior to the applicant's release, on 10 October 2007 the Lublin Regional Prosecutor applied to the Mazowiecki Regional Police Commander (Komendant Wojewódzki Policji) for police protection for the applicant after his release.

The prosecutor submitted that the applicant had been a prosecution witness at two trials concerning organised criminal groups. As a result, he had received death threats and had been assaulted on numerous occasions by his fellow inmates in Siedlce Prison. His safety in prison had been ensured by special security measures. The prosecutor considered however, that following his release the applicant would face a real risk of reprisals at the hands of criminals at liberty.

The applicant submitted to the Court that, after his release, he lived in a police station for one month. He claimed that he had received a sum of money from a special police fund and that the authorities had helped him to find paid employment in a secure place. Despite those measures, the applicant had to flee from each place in which he stayed for any length of time because, sooner or later, he was identified by local criminals.

The applicant did not give an account of any specific incident which had taken place after his release from prison. He asserted, however, that only his placement under the appropriate witness protection programme for special crown witnesses could have ensured his safety.

THE LAW

A. Complaint under Article 3 of the Convention related to the applicant's detention in Siedlce prison

The applicant complained that, because of his status as a prosecution witness, he had suffered harassment and physical violence at the hands of his fellow inmates in Siedlce Prison. In that connection, he submitted that the prosecution authorities and prison staff had failed in their obligation to ensure his safety from other prisoners.

The applicant relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

By letter dated 17 June 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“(...) the Government hereby wish to express – by way of unilateral declaration – its acknowledgement of the violation of Article 3 of the Convention on account of the authorities' failure to comply with their positive obligation stemming from this provision by not securing adequate protection for the applicant from the violence and risk of threats of his inmates during his detention.

Consequently, the Government are prepared to pay to the applicant the sum of EUR 7,000 which they consider to be reasonable in the light of the Court's case-law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.

The Government would respectfully suggest that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention.

...”

In a letter of 12 July 2010 the applicant expressed the view that the sum mentioned in the Government's declaration was unacceptably low.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

It has been well-established in the Court's case-law that Article 3 of the Convention extends in appropriate circumstances to a positive obligation on the authorities to take preventive measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, § 115). In the context of prisoners, the Court has emphasised on a number of occasions that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them from acts of aggression and harassment by their fellow prisoners. The Court's practice in this matter can be derived, among others, from the judgments in the cases of Rodić and Others v. Bosnia and Herzegovina, no. 22893/05, §§ 64-73 and 88, 27 May 2008 and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 57-64 and 106, ECHR 2002 II.

Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c).

The Court further notes that this decision constitutes a final resolution of this part of the application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the length of the impugned proceedings.

Moreover, in light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, this part of the application should be struck out of the list.

B. Complaint under Article 3 of the Convention related to the period after the applicant's release

The applicant also complained that, since his release, he had been at constant and genuine risk of suffering reprisals at the hands of unspecified individuals involved in the criminal world. He maintained that he lived in constant fear for his life and physical integrity and that the State authorities had failed to ensure his safety in exchange for his testimony, as they had promised.

The Government did not make any comments.

Firstly, it must be noted that the applicant's complaint is of a general character. He claimed that he lived in fear for his life and physical integrity but did not give an account of any particular incident either in Poland or abroad. The applicant did not provide any details in order to substantiate the above complaint, nor did he support it with any documents.

Secondly, the Court considers illegitimate the applicant's claim that only his placement under the appropriate witness protection programme for special crown witnesses could have ensured his safety. The applicant indeed collaborated with the prosecutor at his criminal trial and could have expected special treatment in exchange. It must be noted, however, that the applicable law has at all times been clear on the point of the formal requirements for the granting of the crown witness's status and for assigning a repentant criminal to the witness protection programme. Moreover, the domestic authorities had expressly refused to grant the applicant the status in question already at the early stage of his first-instance trial.

Thirdly, the Court observes that the applicant did not complain to any domestic authority in Poland with regard to his situation after his release from prison on 24 July 2008. A few months later he left the country and therefore, is no longer under a direct responsibility of Poland.

It follows that this complaint must be rejected as inadmissible under Article 35 §§ 1 3 (a) and 4 of the Convention.

C. Remaining complaints

The applicant also complained, invoking Articles 9 and 14 of the Convention and Article 2 of Protocol No. 1 to the Convention, that during his detention he had been deprived of the opportunity to attend mass in the prison chapel and to follow education courses offered in Siedlce Prison.

As far as it can be derived from the applicant's general submissions and the few documents presented to the Court, from an unspecified date in the autumn of 2007 until an unspecified date, no later than 24 July 2008, the applicant did not attend a Sunday mass or follow any education courses in Siedlce Prison. The information in the file does not substantiate, however the above complaints or warrant their examination as giving rise to issues separate from the applicant's main Article 3 complaint.

It follows that this part of the application must be rejected as manifestly ill founded in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government's declaration in respect of the complaint under Article 3 of the Convention concerning the time when the applicant was in detention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Nicolas Bratza Deputy Registrar President