CASE OF DEJNEK v. POLAND
(Application no. 9635/13)
1 June 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Dejnek v. Poland,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 9 May 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 9635/13) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Artur Dejnek (“the applicant”), on 14 January 2013.
2. The applicant, who had been granted legal aid, was represented by Mr T. Rowiński, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
3. The applicant alleged, in particular, that the strip searches to which he had been subjected while in detention at Lublin Remand Centre had been in breach of Articles 3 and 8 of the Convention.
4. On 4 March 2014 the complaints concerning the strip searches were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1976 and is detained in Lublin.
A. The applicant’s arrest and criminal proceedings against him
6. On 10 October 2008 the applicant was arrested on suspicion of the attempted murder of his brother, K.D.
7. On 25 March 2009 a bill of indictment against the applicant was lodged with the Lublin Regional Court.
8. On 12 December 2011 the Lublin Regional Court convicted the applicant and sentenced him to 10 years’ imprisonment.
9. The applicant appealed.
10. On 21 August 2012 the Lublin Court of Appeal upheld the conviction.
11. On 7 December 2012 the applicant’s lawyer lodged a cassation appeal with the Supreme Court.
12. On 10 June 2013 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.
B. The applicant’s detention and strip searches
13. Following his arrest, on 11 October 2008 the applicant was remanded in custody in the Lublin Remand Centre.
14. On 22 August 2009 the prison authorities discovered 132 pills of psychoactive drugs hidden in the applicant’s clothes.
15. On 26 August 2009 the applicant encouraged other prisoners to start a hunger strike. On the same day, the Penitentiary Commission, viewing the applicant as someone who posed a severe danger to the safety of the facility, classified him as a “dangerous detainee”. The applicant then went on a hunger strike which lasted until 7 September 2009. He was punished by being placed in solitary confinement for fourteen days.
16. In November 2009 the applicant refused to continue to take part in his rehabilitation programme and was therefore excluded from it.
18. Between 17 November 2009 and 31 March 2010 the applicant was detained in the Rzeszów Remand Centre. On the latter date he was transported back to Lublin.
19. The applicant’s behaviour during 2011 varied: he was sometimes rewarded for good behaviour and sometimes faced disciplinary measures. Such measures were imposed in particular for illegal contact with other inmates, for commencing hunger strikes and for being active in the prison subculture.
21. On 30 January 2012 the applicant attempted to go for a walk in the prison yard without permission from the supervising officer and was reprimanded on 1 February.
23. On 6 February 2012 the applicant complained about the strip search to the Lublin Remand Centre.
24. On 17 April 2012 the director of the Lublin Remand Centre examined his complaint and found that the search had been performed in accordance with the law and that the applicant had not been debased or humiliated. The director also found that on 4 February 2012 the applicant had given a visiting member of his family a piece of paper with some notes on it. The director found that that “constituted a violation of discipline and order”.
25. On 29 April 2012 the applicant complained about another strip search, which had taken place on 28 April 2012. His complaint was examined on 29 June 2012 by the director of the Lublin Remand Centre, who found that the search had been carried out in accordance with the law.
26. On 5 June 2012 the applicant underwent a strip search which was accompanied by a search of his cell. The inspection of the cell was part of an action plan introduced at the Lublin Remand Centre in 2012 to increase security. The plan included the inspection of all the cells.
27. In his observations before this Court, the applicant’s lawyer submitted that the applicant had been ordered to undergo a strip search on 5 June 2012, even though he had had severe back pain and had barely been able to walk. He had also had difficulties getting undressed.
28. The applicant complained to the director of the remand centre. He submitted that after the search of his cell his personal belonging had been thrown on the floor, mixed in with other inmates’ possessions and that the cell had “looked like after a hurricane”. In the complaint he neither mentioned any irregularities as regards the strip search nor complained about back problems.
29. On 9 August 2012 the remand centre director dismissed the complaint. He found that the search had been performed in accordance with the law and had respected the applicant’s rights and personal dignity. The relevant part of the director’s decision read as follows:
“The strip search and cell inspection were conducted in accordance with Article 116 §§ 2, 3, 4 and 5 of the Code of Execution of Criminal Sentences. The guards did not use offensive language and did not debase you. Nobody hit you. The objects which were inspected were not thrown around. Nothing was damaged during the search.”
30. In 2012 the applicant was seen by a neurologist seventeen times and on two occasions by a neurosurgeon. On 16 October 2012 an operation, apparently for back pain, was scheduled for the applicant for 17 September 2013. The doctors did not advise against body checks of the applicant.
31. On 25 August 2012 the applicant had a visit from his sister and brother-in-law and was afterwards ordered to undergo another strip search. He again complained to the director of the Lublin Remand Centre, submitting that the strip search had not been justified and had lacked legal grounds.
The relevant part of the decision read:
“The strip search you were subjected to was carried out in accordance with the relevant provisions and with respect for your personal dignity.”
33. On 3 November 2012 the applicant received a visit from members of his family and was allowed to have direct contact with them. Afterwards, he was again ordered to undergo a strip search. The applicant stated that he had intense pain in his spine on that day and could barely stand and had therefore refused to undergo the search. The chief duty officer was then called. He arrived with three other guards and subjected the applicant to a strip search. He was ordered to strip naked, bend at the knees, show his penis and open his mouth. However, as he was deemed to have performed the guards’ orders “in a dilatory manner” he was punished on 6 November 2012 with a two-month ban on having direct contact with his family during visits, only being able to see them from behind a glass screen.
34. On 3 November 2012 the applicant complained to the Central Board of the Prison Service about the way the strip search of 3 November 2012 had been conducted. He submitted, among other things, that he had had severe back pain after the family visit, had barely been able to move and had therefore refused to undress. The prison officers had apparently ignored his complaints and had “forced him to undergo the strip search”. He also submitted in the complaint that he had been unable to get dressed after the strip search because of the severe pain in his back and that he had been left standing in only his underpants for about fifty minutes. One of the officers had then opened the window to let in freezing air to make him get dressed quickly.
35. On 7 November 2012 the applicant also complained about the imposition of the disciplinary penalty on him after the strip search of 3 November 2012.
36. On 20 November 2012 the director of Lublin Remand Centre informed the applicant that his complaint of 3 November needed further investigation, which would last until 7 December 2012. The applicant did not provide any further information about the outcome of those proceedings.
37. The complaint of 7 November 2012 was dismissed on 20 November 2012. The decision, issued by the deputy director of the Lublin Remand Centre, said that the “applicant refused to undergo a strip search and only agreed to comply when the chief duty officer was called”. The decision does not refer to the applicant’s submissions that the alleged reason for his refusal to undergo the strip search had been severe back pain. It also made no reference to his allegations that he had been left for about fifty minutes in a state of being unable to get dressed and that he had been forced to put his clothes on by someone letting freezing air into the room. The applicant then lodged a further complaint with the Lublin Regional Court, which, on 17 December 2012 upheld the decision given by the deputy director of the Lublin Remand Centre. The court found that the decision had been issued in accordance with the relevant provisions of the law and that it had no competence to examine whether the decision had been well-founded or not.
38. On 12 September 2013 the Lublin Regional Court, in view of the applicant’s state of health and his neurological and orthopaedic problems, granted him leave to undergo the operation outside prison. The applicant was scheduled to return to prison on 12 January 2014.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Strip searches
“In cases justified for reasons of order or security, a convicted person is under an obligation to undergo a body search.”
“A body search means an inspection of the body and the checking of clothes, underwear and footwear as well as [other] objects in a [prisoner’s] possession. The inspection of the body and the checking of clothes and footwear shall be carried out in a separate room, without the presence of third parties or people of the opposite sex, and shall be performed by people of the same sex.”
B. Protection of personal rights
41. Article 23 of the Civil Code sets out a non-exhaustive list of “personal rights” (dobra osobiste) in the following way:
“An individual’s personal rights, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, the inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
42. Article 24 § 1 of the Civil Code reads:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of an infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to eliminate the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask a court to award an appropriate sum for the benefit of a specific public interest.”
43. Article 448 of the Civil Code provides:
“The court may grant anyone whose personal rights have been infringed an appropriate sum as pecuniary compensation for any non-material damage (krzywda) suffered. Alternatively, the person concerned, irrespective of a claim for any other relief that may be necessary to eliminate the consequences of the infringement, may ask the court to award an appropriate sum for the benefit of a specific public interest ...”
C. Ombudsman’s recommendation
44. On 23 December 2014 the Ombudsman sent an official letter to the Minister of Justice, raising the question of body searches and strip searches in prisons. The Ombudsman pointed out that a lack of detailed provisions specifying the kinds of check which could take place, the scope of the checks and the powers of the people performing them was liable to create room for arbitrary acts and a danger that the standards embodied in the European Convention on Human Rights might be violated. The Ombudsman further recommended that a person who had been notified that he was to undergo a body search should have the right to contest that decision before a court.
I. SCOPE OF THE APPLICATION
45. The Court first notes that in the period complained of the applicant was not classified as a dangerous detainee and the strip searches he underwent were not part of a particular prison regime: the applicant was not searched as a matter of course every time he left or entered his cell (contrast with Piechowicz v. Poland, no. 20071/07, § 75, 17 April 2012). The obligation to undergo inspections of his person or strip searches was ordered as and when the prison authorities considered it necessary. For those reasons, the Court considers that the six-month time-limit should be calculated separately for each strip search.
46. The applicant was subjected to strip searches on five occasions: on 4 February, 28 April, 5 June, 25 August and 3 November 2012. His complaints about those searches were examined on 17 April, 29 June, 9 August, 30 October and 20 November 2012 respectively. The present application was lodged with the Court on 14 January 2013. It follows that the applicant’s complaints concerning the strip searches of 4 February and 28 April 2012 were lodged after the expiry of the six-month time-limit and must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
47. The Court further notes that it is not clear from the documents submitted by the parties whether the authorities looked into the applicant’s submissions about alleged ill-treatment by the prison guards on 3 November 2012 at the time of the incident or immediately afterwards. The applicant’s observations to the Court failed to provide information on the alleged irregularities and as to whether or how his allegations about such alleged irregularities during that strip search had been dealt with by the authorities.
48. In these circumstances, the Court concludes that the complaint concerning the strip search of 3 November 2012 must be declared manifestly ill-founded as unsubstantiated.
49. It follows that the Court is only competent to examine the complaint about the strip searches on 5 June 2012 and 25 August 2012.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
50. The applicant complained that the strip searches to which he had been subjected had amounted to a violation of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
51. The Court also communicated the applicant’s complaints under Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
52. The Government submitted that the applicant had not exhausted all the domestic remedies available under Polish law. They argued that the applicant should have brought a claim under Articles 23 and 24 of the Polish Civil Code, which dealt with the protection of personal rights.
53. The applicant’s lawyer submitted in general terms that the applicant had exhausted all the relevant and available domestic remedies.
54. In a number of cases against Poland concerning imposition of the dangerous detainee regime the Court rejected the Government’s argument that the applicants should have had recourse to a claim for the protection of personal rights (see, for example, Głowacki v. Poland, no. 1608/08, §§ 60-63, 30 October 2012, Chyła v. Poland, no. 8384/08, § 69, 3 November 2015 and Klibisz v. Poland, no. 2235/02, §§ 301-302, 4 October 2016). In the present case the Government failed to submit the examples of the domestic practice which would demonstrate the effectiveness of that remedy for the purposes of Article 35 § 1 of the Convention in relation to complaints against the conduct of strip searches in prison.
55. It follows that the Government’s plea of inadmissibility on the grounds of non-exhaustion of domestic remedies must be dismissed.
56. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Likewise, it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. As regards Article 3 of the Convention
(a) The parties’ submissions
57. The applicant submitted that the strip searches to which he had been subjected had been debasing and humiliating. He had been ordered to strip naked despite severe pain in his back. He had then been subjected to a search, including an inspection of his penis and anus. In his view, the prison guards had acted with the intention to humiliate and debase him and had not shown any respect for his human dignity. The applicant argued therefore that the situation complained of had amounted to inhuman and degrading treatment, in breach of Article 3 of the Convention.
58. The Government contested that argument. They submitted that the strip searches had been performed in accordance with the law and with respect for the applicant’s personal dignity. The applicant had not been verbally abused or humiliated. The body searches and strip searches had been caused by the applicant’s own behaviour, in particular by his refusal to follow the prison’s internal regulations.
(b) The Court’s assessment
59. As the Court has stated on many occasions, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a time and caused either actual bodily injury or intense physical and mental suffering. It has been found to be “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or 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 question of whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV). Allegations of ill-treatment must be supported by appropriate evidence. To assess that evidence, the Court adopts the standard of proof of “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibidem, § 121).
60. The Court has found that strip searches may be necessary on occasion to ensure prison security or to prevent disorder or crime (see Iwańczuk v. Poland, no. 25196/94, § 59, 15 November 2001, and Van de Ven v. the Netherlands, no. 50901/99, § 60, ECHR 2003-II). They should be carried out in an appropriate manner with due respect for human dignity and for a legitimate purpose (see Wainwright v. the United Kingdom, no. 12350/04, § 42, ECHR 2006-X). Even single instances of strip searching have been found to amount to degrading treatment in view of the manner in which the strip search was carried out, the possibility that its aim was to humiliate and debase and where there was no justification for it (see Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII).
61. Turning to the instant case, the Court notes that the applicant submitted in his observations that the strip search of 5 June 2012 had been ordered despite him having severe back pain (see paragraph 27 above). However, it appears from the documents submitted by the applicant, in particular the copy of his complaint lodged after the search and the decision by the director of the Lublin Remand Centre on 9 August 2012 in reply, that the strip search was conducted in accordance with the relevant provisions of the law and that it respected the applicant’s rights and personal dignity (see paragraph 29 above). The applicant failed to raise his health problems in his complaint (see paragraph 28 above).
62. Likewise, no irregularities have been shown as regards the strip search of 25 August 2012, about which the applicant again did not raise any particular objections (see paragraph 31 above). In his decision of 30 October 2012 the director of the Lublin Remand Centre submitted that the strip search had been carried out in accordance with the relevant provisions and had respected the applicant’s personal dignity (see paragraph 32 above).
63. The Government confirmed that the applicant had been seen by doctors on several occasions in 2012. However, the doctors found no reason to stop strip searches of the applicant on health grounds (see paragraph 30 above).
64. The Court considers that there is no basis for finding that the strip searches of 5 June and 25 August 2012 included any element of debasing or humiliating treatment which might give rise to a violation of Article 3 of the Convention (contrast Iwańczuk, cited above, § 57). Furthermore, as noted above, the applicant’s allegations as regards severe back pain during the searches have not been confirmed. The applicant himself failed to raise that issue in his complaints to the domestic authorities.
65. On the basis of the above findings the Court considers that it has not been shown that the authorities’ treatment of the applicant during the strip searches of 5 June and 25 August 2012 attained the minimum level of severity necessary to bring Article 3 of the Convention into play.
66. It follows that there has been no violation of Article 3 of the Convention.
2. As regards Article 8 of the Convention
(a) The parties’ submissions
67. The applicant did not make any comment as regards the alleged violation of Article 8 of the Convention on account of strip searches. He only submitted that they had had a negative impact on his relationship with his family because they had avoided prison visits after being subjected to searches.
68. The Government submitted that there had been an interference with the applicant’s right to respect for his private life, but that that interference had been justified by at least two legitimate aims: the prevention of disorder or crime and the protection of the rights and freedoms of others. According to the Government, the interference complained of had been proportionate in the light of the requirements set forth in Article 8 § 2 of the Convention. Furthermore, the strip searches had been performed in the presence of two officers of the same sex with no third persons present. The applicant had not been treated in a humiliating way and nobody had used abusive or offensive language towards him.
69. In the Government’s view, the strip searches had also been justified by a suspicion that the applicant had been engaged in some kind of illegal trade as money from an unknown source and some psychoactive drugs had been found hidden in his clothes. On 4 February 2012 he had tried to pass an illegal message to a member of his family during a visit. In addition, the applicant had been active in the prison subculture and had previously been classified as a dangerous detainee.
(b) The Court’s assessment
70. The Court has already found that where a measure falls short of Article 3 treatment, it may fall foul of Article 8 of the Convention which, inter alia, provides for the protection of physical and moral integrity under the head of respect for the individual’s private life. There is no doubt that the requirement to undergo a strip search will generally constitute an interference under the first paragraph of Article 8 and must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to the settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Wainwright, cited above, § 43).
71. Turning to the present case, the Court notes that the orders for the strip searches had a basis in the provisions of domestic law, namely the Code of Execution of Criminal Sentences (see paragraphs 39 and 40 above). The Court is also satisfied that the interference complained of pursued the legitimate aim of “the prevention of disorder or crime” and “the protection of the rights and freedoms of others”.
72. It remains to be examined whether the body searches and strip searches to which the applicant was subjected were proportionate in the circumstances of the present case.
73. The Government submitted that they had been justified by a suspicion that the applicant had been engaged in illegal trade because money from an unknown source and some psychoactive drugs had been found in his clothes. They also relied on the fact that on 4 February 2012 he had tried to pass an illegal message to a member of his family; that he had been active in the prison subculture; and had previously been classified as a dangerous detainee. The Court considers that all those factors are indeed of considerable significance for the overall assessment of the applicant’s attitude. However, they do not justify the strip searches on the particular dates referred to in the application. In that regard, the Court notes that the money had been found on the applicant in 2011 (see paragraph 20 above). It also notes that the attempt to hand over an illegal message might have justified the search on 4 February 2012, which cannot be examined by the Court (see paragraphs 22 and 46 above), and that the dangerous detainee regime had been lifted in respect of the applicant on 18 February 2010 (see paragraph 17 above).
74. The Government further submitted that the inspection of the applicant’s cell on 5 June 2012 had been part of a plan to implement security measures. However, they did not explain whether the applicant’s strip search had also been part of that plan and for what particular reasons it had been decided to make the applicant undergo a strip search (see paragraph 26 above). Furthermore, the Government submitted no reason at all for the strip search on 25 August 2012.
75. The Court is aware of the need to ensure security in institutions where people are deprived of their liberty. It considers, however, that highly invasive and potentially debasing measures like body searches or strip searches require a plausible justification. It does not appear that such a justification was given to the applicant by the prison authorities in the instant case. The Court also notes that the Ombudsman recommended on 23 December 2014 that a person who had been notified that he was to undergo a body search should have the right to contest that decision in court (see paragraph 44 above). In the absence of such an effective remedy, it is difficult to enforce the requirement of a sufficient justification for body searches or strip searches at the domestic level.
76. The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to provide sufficient and relevant reasons justifying the strip searches of the applicant on 5 June 2012 and 25 August 2012.
77. There has accordingly been a violation of Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
78. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
79. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
80. The Government submitted that the claim was exorbitant.
81. The Court, ruling on an equitable basis, awards the applicant EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
82. The applicant’s lawyer also claimed “costs and expenses”. However, he failed to specify the amount claimed or to submit any documents to justify his claim.
83. The Government submitted that the applicant’s lawyer had failed to indicate the precise amount of costs and expenses or to submit any invoices in support of his claim.
84. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the fact that no amount has been specified and no documents submitted the Court rejects the claim for costs and expenses.
C. Default interest
85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning the strip searches of 5 June 2012 and 25 August 2012 admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 3 of the Convention;
3. Holds that there has been a violation of Article 8 of the Convention;
(a) that 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 EUR 3,000 (three thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 1 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Abel Campos Linos-Alexandre Sicilianos