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FOURTH
SECTION
DECISION
Application no.
13384/10
by Jan WATROS
against Poland
The
European Court of Human Rights (Fourth Section), sitting on
31 January 2012 as a Chamber composed of:
David
Thór Björgvinsson, President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
regard to the above application lodged on 24 February 2010,
Having
regard to the unilateral declaration submitted
by the respondent Government on 28 July 2011, requesting the
Court to strike the application out of the list of cases,
and the applicant’s reply to the Government’s
declaration,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Jan Watros, is a Polish national who was born in 1962
and lives in Nałęczów. The Polish Government (“the
Government”) were represented by their Agent, Mr
J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
1. First request for compassionate leave
- On
31 July 2009 the applicant, who, at the time, was detained in Chełm
Remand Centre, requested the penitentiary judge of the Lublin
Regional Court (Sąd Okręgowy) to grant him
compassionate leave from prison to see his terminally ill father. In
support of his request, the applicant submitted two medical
certificates issued on 23 July 2009 by the chief surgeon of the
public hospital in Puławy. The first certificate stated that the
applicant’s father suffered from “a cancerous stomach
disease, in a very advanced stage” and that “radical
treatment was not possible”. According to the other
certificate – a “medical treatment information card”
– the applicant’s father had undergone treatment and had
been prescribed further analgesic treatment and supervision by the
local general practitioner, following which he had been released from
the hospital.
- On
7 August 2009 the penitentiary judge refused to grant the applicant’s
request. The refusal was couched in the following terms:
“The convict requested authorisation for temporary
release from prison in order to see his seriously ill father.
Pursuant to section 141a § 1 of the Code of
Execution of Criminal Sentences, a convict’s temporary release
from prison may be authorised in situations of particular importance
for the convict, for a period of no longer than 5 days.
It should be observed that situations of particular
importance for the convict, as provided for by the provision cited
above, are most importantly unforeseen events as well as other events
which arise in connection with the convict’s family or personal
situation, which require his indispensable presence outside prison.
Therefore, such events must be sudden and exceptional.
The convict’s argument that he would like to see
his ill father is subjectively important, but it does not fit within
the category of “situations of particular importance”
foreseen by section 141a § 1 of the Code of Execution of
Criminal Sentences. It is not a sudden event, as the father has been
ill for a long time and – as can be gathered from the contents
of the request – the convict keeps contact with him in a
legally permissible manner.
The main and natural consequence of imprisonment is the
actual isolation of the convict from his family and the deprivation
of the possibility to live together with the family, family contacts
being limited to those maintained by way of family visits in prison.
The provision quoted above does not allow for changing that state of
affairs and may only be applied in very particular situations.
Furthermore, a decision to grant temporary release from
prison must also take into account the aims sought to be achieved by
the penalty imposed.
The convict cannot be given a positive
socio-criminological forecast with a view to his release from
prison, regard being had to his previous criminal record, the date of
completion of his sentence (28 February 2011) and the fact that he
does not participate in any social rehabilitation programme.
It is true that there exists a possibility to authorise
temporary release from prison under a prison escort or in another
person’s company, foreseen for convicts whose personal conduct
warrants a conclusion that, if released unaccompanied, they would
disobey the law. Nonetheless, it is first of all necessary to
conclude that there exists a “situation of particular
importance”. As it has been already indicated above, the
situation indicated by the convict does not constitute such a
situation.”
- On
an unknown date, the applicant appealed against that decision.
- On
9 August 2009 the applicant’s father died.
- On
28 September 2009 the Lublin Regional Court upheld the impugned
decision. It stressed that it was only competent to review the
lawfulness of the penitentiary judge’s decision. It further
observed that, in his appeal, the applicant had merely expressed
a point of view different from that of the penitentiary judge and had
not argued that the refusal had been unlawful. The Regional Court
held that the impugned decision had been well-reasoned and correct.
It went on to underscore that “situations of particular
importance”, within the meaning of section 141a § 1 of the
Code of Execution of Criminal Sentences, were to be understood as
extraordinary, exceptional situations of such nature that the
convict’s failure to attend would have had irremediable
consequences.
- The
Regional Court concluded that the penitentiary judge’s decision
had been lawful both as to the merits and from the procedural angle.
In its view, it had been given by the competent authority in the form
provided for by the law and was intra vires.
2. Second request for compassionate leave and the
attendance at the funeral
- On
10 August 2009 the applicant requested the penitentiary judge
to grant him temporary leave from prison to attend his father’s
funeral.
- On
the same day the penitentiary judge granted the applicant’s
request, authorising him to leave the prison under a prison escort.
The judge’s decision was justified as follows:
“... The indicated event is
a situation of particular importance for the convict and
warrants an authorisation under section 141a § 1 of the Code of
Execution of Criminal Sentences.
However, having regard to: the
nature of the offences committed by the convict in conditions
described by section 64 of the Criminal Code [he being a habitual
offender]; his unpredictable conduct when serving his sentence; his
participation in the illegal inmate subculture and the fact that he
was serving his sentence under the ordinary scheme [not involved in
any social rehabilitation programme], the penitentiary judge
concludes that the leave from prison should be carried out under the
escort of Prison Service officers”.
- On
11 August 2009 the applicant attended the funeral under the escort of
prison service officers.
- On
20 August 2009 he filed a complaint with the Director of Chełm
Remand Centre, complaining about the treatment to which he had been
allegedly subjected during the funeral. He complained that the prison
officers had made it difficult for him to use the toilet before the
funeral, had not allowed him to approach his father’s coffin
and maliciously scorned him in the presence of his family. He
moreover complained that he had been handcuffed and had to wear
prison clothes throughout the funeral ceremony.
- In
his reply of 8 September 2009, the Director of Chełm Remand
Centre explained that the applicant had been allowed to use the
toilet before the funeral but that this had been delayed by the need
to first locate the toilet and then to secure the surrounding area.
He further asserted that the applicant had been kept in the escort
car until the arrival of the funeral procession. He was then allowed
to approach the coffin and later escorted inside the church. Lastly,
the Director explained that the handcuffs had been necessary due to
security concerns and the applicant’s aggressive behaviour
during the funeral ceremony.
- On
16 September 2009 the applicant appealed against that decision.
- On
16 November 2009 the Regional Director of the Prison Service
(Dyrektor Okręgowy Służby Więziennej)
endorsed the reply given to the applicant’s complaint by the
Director of Chełm Remand Centre. He reiterated that the
handcuffs had been used in accordance with the relevant provision of
the 1996 Prison Service Act and that this had been dictated by
security concerns. He also addressed the issue of prison clothes,
finding on the basis of the relevant provision of the Code of
Execution of Criminal Sentences that the applicant was not
allowed to wear his own clothes unless he obtained prior
authorisation. Further, the Regional Director of the Prison Service
found that the prison escort had not hindered the applicant in using
the toilet. He finally observed that the escort had been carried out
in a lawful manner and that the applied security measures had not
compromised the solemn character of the funeral ceremony.
B. Relevant domestic law and practice
1. Compassionate leave from prison
- Article
141a of the Code of Execution of Criminal Sentences reads, in so far
as relevant, as follows:
“1. In cases which are of particular
importance for a convicted person, he or she may be granted
permission to leave prison for a period not exceeding five days, if
necessary under the escort of a prison officer or in the company of
another trustworthy person (osoba godna zaufania).
2. Use of a prisoner’s own clothes during the
funeral
- Pursuant
to Article 90 § 5 of the Code of Execution of Criminal
Sentences, prisoners in a remand centre with a closed regime (typu
zamkniętego) are allowed to use their own undergarments and
shoes. Subject to prior authorisation by the director of the remand
centre, they may also be allowed to use their own clothes.
3. Use of handcuffs
- Article
19 § 1 (4) of the Prison Service Act of 26 April 1996,
applicable at the relevant time, provides that prison service
officers are authorised to apply, in the line of duty, means of
physical coercion such as handcuffs to persons deprived of liberty.
By paragraph 2 of the same provision, means of physical coercion
could generally only be used, if necessary, in order to counteract
attempts at taking the life of a person or committing suicide,
damaging another person’s or own health, inciting mutiny,
manifesting disobedience, committing serious violations of public
order, damaging property or absconding.
- Article
19 § 5 provides that, in justified cases, during escort
or convoy of a detainee, handcuffs, a restraining belt or
shackles may be used in order to prevent absconding or to
counteract visible aggressiveness. By paragraph 6, means of physical
coercion shall not be used for a period longer than necessary.
- Article
21 of the 1996 Prison Service Act provides that the use of means
of physical coercion should be proportionate to the level of danger
and that it should result in minimal harm to the person to which it
is applied.
- Practical
details of the use of handcuffs by the officers of the Prison Service
was at the relevant time governed by the Ordinance of the Council of
Ministers of 20 November 1996 on specific conditions of use of means
of physical coercion, firearms or public order enforcement dogs
by prison service officers and on the applicable procedures
(rozporządzenie Rady Ministrów w sprawie szczegółowych
warunków stosowania środków przymusu
bezpośredniego oraz użycia broni palnej lub psa służbowego
przez funkcjonariuszy Służby Więziennej oraz sposobu
postępowania w tym zakresie).
4. Civil law remedies
- Article 23 of the Civil Code contains a non-exhaustive
list of so called “personal rights” (dobra
osobiste). This provision states:
“The personal rights of an individual, such as, in
particular, health, liberty, honour, freedom of conscience, name or
pseudonym, image, secrecy of correspondence, 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.”
- Article
24, paragraph 1, of the Civil Code provides:
“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 infringement [the person concerned] may also require the
party who caused the infringement to take the necessary steps to
remove the consequences of the infringement ... In compliance with
the principles of this Code [the person concerned] may also seek
pecuniary compensation or may ask the court to award an adequate sum
for the benefit of a specific public interest.”
- Article
445 § 1 of the Civil Code, applicable in the event that a person
suffers a bodily injury or a health disorder as a result
of an unlawful act or omission of a State agent, reads as
follows:
“...The court may award to the injured person an
adequate sum in pecuniary compensation for the damage suffered.”
- Under
Article 448 of the Civil Code, a person whose personal rights have
been infringed may seek compensation. That provision, in its relevant
part, reads:
“The court may grant an adequate sum as pecuniary
compensation for non-material damage (krzywda) suffered to
anyone whose personal rights have been infringed. Alternatively, the
person concerned, regardless of whether he or she seeks any other
relief that may be necessary for removing the consequences of the
infringement sustained, may ask the court to award an adequate sum
for the benefit of a specific public interest.”
COMPLAINTS
- The
applicant complained that the refusal to allow him to leave
the prison in order to see his incurably ill father had violated
Article 8 of the Convention.
- The
applicant moreover complained that the manner in which the prison
escort officers had treated him during his father’s funeral had
been incompatible with human dignity, in breach of Article 3 of the
Convention. In particular, he complained that he had been handcuffed
and had not been allowed to wear his own clothes during the funeral;
that the prison escort had made it difficult for him to use the
toilet before the funeral; and that they had publicly scorned him and
had not allowed him to approach his father’s coffin.
THE LAW
A. Refusal of leave from prison
- The
applicant complained about a violation of his right to respect
for his private and family life on account of the
authorities’ refusal to allow him to leave the prison in order
to see his incurably ill father.
- Article
8 of the Convention provides as follows:
“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.”
- By
letter dated 28 July 2011 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 this part of the
application in accordance with Article 37 of the Convention.
- The
declaration provided as follows:
“The Government hereby wish
to express – by way of a unilateral declaration – their
acknowledgment of the fact that the decision of 7 August 2009 of the
penitentiary judge of the Lublin Regional Court, refusing to allow
the applicant to see his terminally ill father, violated the
applicant’s right to respect for his family life, as guaranteed
by Article 8 § 2 [sic] of the Convention.
In these circumstances, and having particular regard to
the violation of Article 8 § 2 of the Convention, the Government
declare that they offer to pay the applicant the amount of PLN 8,000
(eight thousand Polish zlotys), 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 period 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 3 October 2011 the applicant submitted that he was not
interested in the Government’s proposal. Instead, he requested
them to reconsider his own friendly settlement proposal, the
terms of which he had set out in a previous letter to the Court.
- 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,
6 May 2003; WAZA Spółka z o. o. v. Poland (dec.),
no. 11602/02, 26 June 2007; and Sulwińska v. Poland
(dec.), no. 28953/03, 18 September 2007).
- The
Court has established in a number of cases brought against Poland its
practice concerning complaints about the violation of detainees’
right to respect for private and family life on account of the
refusal of compassionate leave from prison (see, for example, Płoski
v. Poland, no. 26761/95, §§
32-39, 12 November 2002; Czarnowski v. Poland,
no. 28586/03, §§ 25-33, 20 January 2009; Krym
v. Poland (dec.),
no. 26938/05, 7 October 2008; Wadielac v. Poland
(dec.), no. 14260/09, 25 May 2010; Jurga
v. Poland (dec.), no. 30540/09, 22
June 2010; and Giszczak v. Poland, no. 40195/08,
§§ 36-41, 29 November 2011 (not
yet final)).
- 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)).
- Moreover,
given the clear and extensive case-law on the topic, the Court is
satisfied that respect for human rights as defined in the Convention
and the Protocols thereto does not require it to do so (Article 37 §
1 in fine).
- Accordingly,
this part of the application should be struck out of the list.
B. Remaining complaints under Article 3 of the
Convention
- The
applicant complained that the manner in which the prison escort
officers had treated him during his father’s funeral had been
incompatible with human dignity, in breach of Article 3 of the
Convention. In particular, he complained that he had been handcuffed,
not allowed to wear his own clothes during his father’s
funeral, that the prison escort officers had publicly scorned him,
hindered him in using the toilet before the funeral and prevented him
from approaching his father’s coffin.
- Article
3 of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government submitted that the applicant should have lodged a civil
action under Article 24 read in conjunction with Article 448 of the
Civil Code, seeking compensation from the State Treasury for a breach
of his personal rights. Moreover, they pointed out that the applicant
had not requested the director of the remand centre for authorisation
to wear his own clothes during the funeral ceremony. Consequently,
they invited the Court to declare this part of the application
inadmissible for non-exhaustion of domestic remedies. Lastly, they
submitted that the applicant’s complaints were in any event
manifestly ill-founded, as the restrictions complained of had been
dictated by considerations of security and crime prevention and by
the applicant’s aggressive behaviour. They considered that, in
any event, the impugned restrictions had not exceeded what was
reasonably considered necessary in the circumstances of the case.
- The
applicant did not comment on the Government’s submissions.
- The Court recalls that the fact alone of being
handcuffed does not normally give rise to an issue under Article 3 of
the Convention where the measure has been imposed in connection with
lawful arrest or detention and does not entail use of force, or
public exposure, exceeding what is reasonably considered necessary in
the circumstances. In this regard, it is of importance for instance
whether there is reason to believe that the person concerned would
resist arrest or abscond, cause injury or damage or suppress evidence
(see Raninen v. Finland, no. 20972/92, § 56,
16 December 1997; Garriguenc v. France (dec.), no.
21148/02, 15 November 2007; Paradysz v. France, no.
17020/05, § 88, 29 October 2009; Kashavelov v. Bulgaria,
no. 891/05, § 38, 20 January 2011; Mirosław
Garlicki v. Poland, no. 36921/07, §
74, 14 June 2011).
- The
Court observes that the applicant in the present case did not
complain about the use of force but rather about the allegedly
degrading treatment inflicted upon him by the prison escort officers
during his father’s funeral. In particular, he complained about
being handcuffed and publicly exposed to his family members and other
persons who attended the ceremony, as well as about other restrictive
measures and the behaviour of the escort officers which, in his view,
had infringed his dignity and had been aimed at humiliating him.
- The
Court considers that the coincidence of the above-mentioned measures,
if it revealed the existence of a pattern of behaviour aimed
at debasing or humiliating the applicant, might reach a degree
of intensity which exceeds the level inherent in every arrest and
detention and bring such a situation within the ambit of degrading
treatment prohibited by Article 3 of the Convention (Mirosław
Garlicki v. Poland, cited above, § 75). The
public nature of the treatment or the mere fact that the victim
is humiliated in his own eyes may be a relevant consideration
(Raninen, cited above, § 55; Archip v. Romania,
no. 49608/08, § 53, 27 September 2011).
- However,
the Court cannot examine the merits of the complaint under Article 3,
as it considers that the applicant did not make use of any domestic
remedies. In particular, having regard to the circumstances of the
case and to the scope of the applicant’s complaint, the Court
is not convinced that the penitentiary complaint which he had filed
on 20 August 2009 with the Director of Chełm Remand Centre was a
remedy capable of providing adequate redress for the alleged breach
of his rights under Article 3 of the Convention. In this
respect, the Court reiterates, having regard to the principle of
subsidiarity, that where the alleged violation of Article 3 no
longer continues and cannot be eliminated with retrospective effect,
the only means of redress for the applicant is pecuniary compensation
(see Orchowski v. Poland, no. 17885/04, § 109, 22 October
2009).
- Given
the specific nature of the Convention claim at hand, the Court
considers in the circumstances of the present case that the most
appropriate remedy which the applicant should have availed himself of
was a civil action for compensation for the infringement of his
personal rights, under Article 24 read in conjunction with Article
448 of the Civil Code. Article 23 of the Civil Code contains a
non-exhaustive list of personal rights which include, inter alia,
health, liberty and honour, and which are interpreted by established
domestic jurisprudence as also including a person’s dignity
(see paragraph 22 above).
- In
this regard, the Court refers by way of example to some of its prior
cases where it has already found that a civil action under Article 24
taken in conjunction with Article 448 of the Civil Code could be
considered an “effective remedy” for the purposes of
Article 35 § 1 of the Convention in respect of complaints
relating to violations of personal rights on account of inadequate
conditions of detention (Łatak v. Poland (dec.), no.
52070/08, 12 October 2010, § 80), medical care in detention
(Nocha v. Poland (dec.), no. 21116/09, 27 September 2011),
degrading treatment in the course of a person’s arrest
(Mirosław Garlicki v. Poland, cited above, §
77), or in connection with censorship of detainee’s
correspondence (Biśta v. Poland, no. 22807/07, §§
48-9, 12 January 2010).
- Having
regard to the above considerations, the Court is of the opinion that
the applicant in the present case should have made use
of the aforementioned civil action to claim compensation
from the State for having been subjected to the alleged violation of
his dignity.
- Furthermore,
as regards the specific issue of authorisation to wear his own
clothes during the funeral, the Court observes that on 10 August 2009
the applicant requested the penitentiary judge to allow him to attend
the funeral which was to take place on the following day. The Court
considers that nothing prevented the applicant from requesting the
Director of Chełm Remand Centre, on the same day, to grant him
leave to wear his own clothes during the funeral ceremony. The
applicant failed to explain why, in his view, he had not availed
himself of this opportunity, explicitly foreseen by the relevant
provision of the Code of Execution of Criminal Sentences.
- In
conclusion, the Court finds that by failing to have recourse to any
of the above-mentioned domestic remedies, in particular a civil
action for compensation for the infringement of personal rights and a
request for leave to wear his own clothes during the funeral, the
applicant failed to exhaust the available remedies provided for by
Polish law.
- It
follows that the complaint under Article 3 must be rejected under
Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s
declaration in respect of the complaint under Article 8 of the
Convention 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.
Lawrence Early David Thor Björgvinsson
Registrar President
