Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 18877/12
Zbigniew ORŁOWSKI
against Poland
The European Court of Human Rights (First Section), sitting on 6 November 2018 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,
and Abel Compos,Section Registrar,
Having regard to the above application lodged on 14 March 2012,
Having regard to the Government’s unilateral declaration in respect of the complaint under Article 8 of the Convention and their observations in respect of the complaint under Article 3 of the Convention,
Having regard to the applicant’s reply to that declaration and his observations in respect of the complaint beyond the scope of the declaration,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Zbigniew Orłowski, is a Polish national who was born in 1959 and lives in Czerwionka.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
3. The Government has not objected to the examination of the application by a Committee.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. In 2008 the applicant, who is a diabetic, started serving a four-year prison sentence which had been imposed on him on the basis of a cumulative sentence (wyrok łączny) resulting from a number of his convictions.
A. Prison cell
1. Description of the material conditions
6. From 3 to 29 June 2010 and from 19 August to 23 September 2010 the applicant was detained in Kielce Remand Centre in cell no. 346.
7. A toilet annex was in the corner of the cell. It was separated from the living space by, on one side, a fibreboard partition 1.8 m high, and on another side, a cloth curtain. The window in the cell could not be opened, as it was blocked by a double layer of bars, internal and external.
2. Remedies used
8. The applicant complained on numerous occasions to the prison authorities that that arrangement infringed his dignity, firstly because it did not provide for a reasonable level of privacy, and secondly because the cell could not be ventilated. His requests to have the internal window bars taken down remained unanswered.
9. The applicant also lodged two civil actions against the State Treasury, seeking compensation for infringement of his privacy on account of the prison’s failure to adequately fit toilet facilities during his detention during each of the two periods which are described above.
10. In respect of the period from 3 to 29 June 2010, on 16 February 2011 the Kielce Regional Court (Sąd Rejonowy) awarded the applicant compensation in the amount of 800 Polish zlotys (PLN – approximately 200 euros (EUR)). The court held that the applicant’s personal rights and right to dignity had been breached, and that the defendant to the action had not explained why the internal window bars could not be taken down so as to make it possible to open the window and ventilate the cell. The defendant had not argued or shown that this would have necessitated any particular expense or entailed difficulty. The court further noted that the nuisance caused by the foul odour in the cell had been aggravated by the warm weather in June. On 21 June 2011 the Cracow Court of Appeal dismissed an appeal lodged by the defendant, fully upholding the findings of fact and law made by the first-instance court.
11. In respect of the period from 19 August until 23 September 2010, on 18 March 2011 the Kielce Regional Court (Sąd Okręgowy), relying on similar reasoning as that given in the first case, awarded the applicant compensation in the amount of PLN 500 (approximately EUR 125). On 13 July 2011 the Cracow Court of Appeal dismissed an action by the applicant after the defendant’s appeal. That judgment was served on the applicant on 16 September 2011. The appellate court did not question the findings of fact of the first-instance court. It observed that the impugned sanitary arrangements were compliant with standards from the 1970s ‑ when the prison had been built – and with the applicable law. The State Treasury had thus not acted unlawfully, and no intention to act in bad faith or with the intention to cause harm or damage to the applicant could be established. It was concluded that, in the absence of unlawfulness, no breach of personal rights within the meaning of the provisions of the Civil Code on tort liability could be found. The court further observed that, in any event, the nuisance complained of had not exceeded normal difficulties inherent in serving a prison sentence.
B. Disciplinary punishment
1. Description of the relevant events
12. The following sequence of events in Kielce Remand Centre can be established from reports on the use of a measure of direct restraint (protokół z zastosowania środków przymusu bezpośredniego) dated 16March and 30 April 2009 (“the 16 March report” and “the 30 April report”); from findings made by the domestic court in the course of the proceedings described below; from the Government’s observations on the case; and from the applicant’s own submissions to the domestic court and to this Court.
(a) First period of confinement
(i) Events during the isolation measure
13. On the morning of 16 March 2009 the applicant became irritated by a cellmate’s personal hygiene habits and started kicking the cell doors. As submitted by the Government and established by the domestic court in the course of the proceedings described below, but contested by the applicant, the applicant was aggressive, was uttering obscenities and refused to calm down.
14. The prison officers put a straightjacket (kaftan bezpieczeństwa) on the applicant and at 10.50 a.m. placed him in an isolation cell.
15. At 12.30 p.m. the applicant refused to return to his cell and ignored the requests of his prison supervisor in this regard.
16. Between 11.40 a.m. and 7.55 p.m. prison guards entered the cell and checked on the applicant every hour. Each time, they considered that the restraining and isolation measures which had been implemented should remain in place, in view of the applicant’s continued inappropriate behaviour. Between 9.50 p.m. on that day and 6 a.m. on the following day the guards entered the cell to check on the applicant approximately every two hours.
17. From 6.05 p.m. on 16 April until presumably 6.04 a.m. on 17 April the applicant was provided with a mattress with bed linen. For the rest of the time, he was lying on the floor.
18. As stated in the 16 March report, and as established by the domestic court and submitted by the Government, at 9.50 p.m. (after approximately eleven hours) the straightjacket was removed because the applicant had calmed down. In the applicant’s submission, the straightjacket was removed at 10 p.m.
19. On 17 March 2009 the applicant was released from the isolation cell, as it was considered that his behaviour had improved. According to the domestic court, the Government and the 16 March report, the release took place at 8.03 a.m. (after approximately twenty-one hours). In the applicant’s submission, he was released at 10 a.m. (after approximately twenty-three hours).
20. At the time of his release the applicant had a superficial examination by an in-house doctor, having refused to undergo a more thorough physical examination. That examination did not reveal that he had any external injuries. The applicant complained to the doctor of backache.
(ii) Alleged urination incident
21. In the isolation cell the applicant did not have free access to a toilet.
22. According to the applicant, at an unspecified hour on 16March, when he was still immobilised, he pressed the button calling for a guard in order to be taken to the toilet to urinate. By the time the guard arrived, thirty minutes later, the applicant had leaked some urine. The applicant was not given a chance to wash himself and change his wet clothes until after he was released the following day.
23. The 16 March report, in so far as it is legible, does not make any reference to the applicant’s use of the toilet or to the urination incident which is described above.
24. The domestic court considered that the incident described above was unsubstantiated by evidence. In particular, according to the court, at an unspecified moment a guard had expressly offered to take the applicant to the toilet.
25. The Government reiterated the content of the 16 March report and the findings of the domestic court.
(b) Second period of confinement
26. On 30 April 2009 the applicant shouted obscenities in the prison corridor. According to the findings of the domestic court and as noted in the 30 April report on the use of a measure of direct restraint, he also banged his head against the wall and was aggressive and disobedient. The applicant contested that he had hit his head against the wall.
27. The prison officers put a restraining belt (pas obezwładniający) on the applicant and at 11.50 a.m. placed him in an isolation cell. In the cell, a protection helmet was also put on his head.
28. The applicant continued shouting, assaulting officers and reacting to any attempts to talk to him with obscenities and hostility. Attempts to reason with the applicant were made on 30 April at 2.47 p.m. by his supervisor and an in-house psychologist, and by the supervisor again on 1 May at 9.33 a.m.
29. Between 12.52 p.m. and 7.51 p.m. the prison officers entered the cell and checked on the applicant approximately every hour. During the night and the following day they entered the cell and checked on him approximately every two hours. Each time, they considered that the applicant was still acting up and should remain restrained and in isolation.
30. From 6.04 p.m. on 30 April until 6.06 a.m. on 1 May the applicant was provided with a mattress with bed linen. For the rest of the time, he was lying on the floor.
31. On 1 May 2009 at 9.30 a.m. the applicant was examined by an in‑house doctor. The applicant uttered obscenities during the examination. The doctor recorded redness around the applicant’s wrists and authorised the continued use of the measures of direct restraint.
32. At 2.45 p.m. (after approximately twenty-seven hours) the protective helmet was taken off.
33. It is unknown whether the restraining belt was taken off prior to the applicant’s release. According to the 30 April report, prison officers checked and readjusted the applicant’s restraining belt on 1 May at 1.10 p.m. and at 4.48 p.m.
34. At 6.23 p.m. (after over thirty hours) the applicant was released from the isolation cell, as it was considered that he had calmed down.
35. At 6.50 p.m. the applicant was once more examined by a doctor. That examination revealed redness around his wrists. The doctor did not recommend any treatment.
(i) Urination incident
36. According to the applicant, at an unspecified hour during his isolation on 30 April he urinated on himself while he was immobilised, as he did not have access to a toilet. In addition, for several hours he was not given a chance to wash himself or change his wet clothes.
37. According to the 30 April report, in so far as it is legible, the applicant declined to go to the toilet when given such an opportunity at 12.52 p.m. At 1.30 p.m., 2.15 p.m., 3.30 p.m. and 4.15 p.m an officer checked on him and noted that he was lying down. The next note on the report shows that at 4.37 p.m. the applicant was allowed to change his wet trousers. At 5 p.m. he declined the opportunity to use the toilet. On 1 May at approximately 7.39 a.m. the applicant was given an opportunity to use the toilet.
38. The domestic court established that the applicant had urinated on himself on 30 April, having twice refused to be taken to the toilet and having used the toilet at 12.52 p.m. The court also established that a video recording of the cell revealed the following sequence of events starting at 2.20 p.m.: before the incident the applicant did not call the guards to communicate to them that he needed to go to the toilet; prison officers arrived at 4.45 p.m.; a doctor and a psychologist were also present in the cell (see paragraph 28 above); the applicant asked them to allow him “to wash himself and change his clothes”; a guard replied that that was impossible, but if the applicant improved his behaviour then he would be able to leave the isolation cell altogether; the guards loosened the applicant’s handcuffs (referred to here as “kajdanki”); the applicant told the guards that he would “go in his pants”, he was swearing, acting aggressively and shouting that he wanted to wash himself and change his clothes; a guard reiterated that the moment the applicant improved his behaviour he would be able to leave the cell; the applicant replied that he did not want to leave; a guard asked whether the applicant needed to use the toilet; the applicant replied in the negative and repeated that he wanted to wash himself and change his clothes; a guard said that that was impossible; the applicant replied “pity, then we will talk at the prosecutor’s [office]”.
(ii) Use of handcuffs
39. According to the applicant, his handcuffs (referred to here as “kajdany”) were broken. As a result, they were so tight around his wrists that they hurt him. They were not loosened during the entire night that he was in isolation.
40. The 30 April report, in so far as it is legible, does not mention the use of handcuffs during the applicant’s isolation.
41. According to the Government, the 30 April report indicated that no handcuffs had been used during the applicant’s isolation.
2. Remedies used
42. According to the applicant, he complained to the prison judge in respect of both instances of disciplinary punishment described above. The domestic court established that he had lodged one such complaint, only in relation to the second period of confinement.
43. On 5 May 2009 the applicant complained to the prison judge that he had been tortured on 30 April 2009 in that he had been placed in an isolation cell and had not been allowed to wash himself. On 23 June 2009 the judge informed the applicant by letter that he considered his complaint ill-founded.
44. On 24 January 2011 the Kielce District Court upheld a prosecutor’s decision of 12 November 2010 to refuse to open a criminal investigation into some of the applicant’s allegations that between 16 March and 1 May 2009 prison officers had frequently woken him up and deprived him of access to the toilet, thus breaching their official duties. The court agreed with the findings of the prosecutor, which had been made on the basis of various reports and the video-recording from the isolation cell, that no wrongdoing could be attributed to the prison officers.
45. The applicant filed a civil action against the State Treasury, seeking compensation in the amount of PLN 10,000 for the alleged breach of his right to personal dignity. To this end, the applicant submitted, inter alia, that he had twice been put in a solitary isolation cell and immobilised; that on the first of these occasions he had urinated on himself and had not been allowed to change his clothes or wash himself; and that he had been woken up by the guards every two hours, which had made it impossible for him to sleep, and consequently he had been exhausted. The applicant argued that such treatment amounted to intentional harassment.
46. On 19 August 2010 the Kielce Regional Court dismissed the applicant’s action on the basis of evidence comprising: submissions which he had made at hearings on 28 September 2009 and 8 February 2010; his prison records; extracts of the video-recording from the cell; the testimony of eight prison officers who had been on duty at the material time; the 16 March and 30April reports; and a number of letters from the Kielce Remand Centre’s administration.
47. The court concluded that, in the light of the available evidence, the force used on the applicant had not been unjustified or excessive. In particular, the straightjacket used during the first period of confinement and the restraining belt used during the second period of confinement had been removed as soon as the applicant had calmed down; he had not suffered any injuries, and if he had urinated on himself on 30 April 2009, this had been despite the fact that on two occasions shortly before prison officers had offered to take him to the bathroom. The court also observed that the applicant had been given the opportunity to wash himself and change his clothes on condition that his behaviour improved. He had refused, and instead had become even more agitated.
48. The court also took note of the redness of the applicant’s wrists, as registered by prison doctors during his second period of isolation. The court did not find any evidence that the condition in question had been caused by unlawful conduct on the part of the prison officers. The court concluded that it had most likely resulted from the fact that the applicant had not stayed calm during the thirty hours when he had been wearing the restraining belt. It was also observed that, in any event, the condition could not have been anything severe, since none of the doctors had ordered any treatment or had otherwise tried to remedy the applicant’s situation.
49. Overall, the court considered that the duration of the applicant’s solitary confinement had been justified, as he had continued to utter obscene and aggressive statements, and that the measure had not been intended to be harassment against the applicant.
50. On 19 November 2011 the Cracow Court of Appeal (Sąd Apelacyjny) dismissed an appeal by the applicant, upholding the first‑instance court’s findings of fact and law in full.
COMPLAINTS
51. The applicant complained under Article 8 of the Convention that he had been a victim of degrading treatment on account of bad sanitary conditions in cell no. 346 of Kielce Remand Centre in August and September 2010. The cell had not been properly ventilated, as the window could not be opened, and the toilet had not been sufficiently separated from the rest of the cell.
52. Moreover, as expressly stated by the applicant in his observations on the case, his complaint under Article 3 of the Convention was not about the use of disciplinary measures against him as such, but related specifically to the fact that he had not been able to get any rest while detained in an isolation cell, firstly because the prison officers had woken him up at short intervals during the day and at night, and secondly because during the day he had had to lie on a hard floor without a mattress. In his observations and previous submissions, and on his application form, the applicant also implicitly complained of the following elements of his disciplinary isolation. He stated that he had not been given access to the toilet, had urinated on himself, and had been left in wet clothes for a long time. The applicant did not clearly specify whether that alleged incident had taken place during his first or second disciplinary punishment. He also expressed the view that the use of the protective helmet had been unnecessary, as he had not been hitting his head against the wall.
THE LAW
A. Alleged violation of Article 8 of the Convention
53. The applicant complained under Article 8 of the Convention of inadequate sanitary conditions in his cell, cell no. 346.
54. By a letter of 11 July 2017, 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 that the Court strike out the application in accordance with Article 37 of the Convention.
55. The declaration provided as follows:
“The Government thereby wish to express – by way of the unilateral declaration ‑ their acknowledgment of [a] violation of Article 8 § 1 of the Convention as regards the installation of toilet facilities in cell no. 346 of the Kielce Prison where the applicant [was serving] his sentence from 19 August until 23 September 2010.
… the Government declare that they are ready to pay the applicant the sum of the PLN 800 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, as a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points…”
56. By a letter dated 16 October 2017, the applicant indicated that he was not satisfied with the terms of the unilateral declaration, on account of the amount offered.
57. The Court reiterates 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. In particular, Article 37 § 1 (c) enables the Court 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”.
58. The Court also reiterates that, in certain circumstances, it may strike out an application 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.
59. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
60. 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 amount awarded in a similar leading case against Poland (see Szafrański v. Poland, no. 17249/12, 15 December 2015), the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
61. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic (see, mutatis mutandis, Belevitskiy v. Russia, no. 72967/01, §§ 73-79, 1 March 2007; Valašinas v. Lithuania, no. 44558/98, § 104, ECHR 2001‑VIII; and Khudoyorov v. Russia, no. 6847/02, §§ 63, 106-107, ECHR 2005‑X (extracts)), 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 the application (Article 37 § 1 in fine).
62. Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
63. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint.
B. Alleged violation of Article 3 of the Convention
64. The applicant also complained under Article 3 of the Convention in relation to the two occasions when he had received disciplinary punishments by being placed in an isolation cell and subjected to restraining measures. The relevant provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
65. The Government argued that the applicant’s disciplinary punishment had not been degrading, in that each time, the restraining force used and the duration of the measure had been necessary and proportionate to his conduct. More specifically, they essentially observed that the applicant had not suffered any injuries, and that the redness around his wrists, recorded on 30 April and 1 May 2009, had been a natural result of the restraining force used. They also acknowledged that the applicant had wet himself on 30 April 2009. The Government stressed, however, that the incident had occurred despite the fact that the officer who had been monitoring the applicant had offered to accompany him to the toilet, and that the applicant could have signalled his need to go to the toilet either during or in between the regular checks. In conclusion, the Government argued that this part of the application was inadmissible as manifestly ill-founded.
66. The applicant mainly complained that he had not been able to get any rest because the prison officers had made frequent checks on him and his mattress had been taken away from him during the day. He also stated that he had urinated on himself and had been left in wet clothes for a long time. His last grievance was that the use of the protective helmet during his second punishment had been unnecessary.
67. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ramirez Sanchez v. France [GC], no. 59450/00, § 117, ECHR 2006‑IX).
68. Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 67, Series A no. 280), or when it was such as to drive the victim to act against his will or conscience (see, for example, Denmark, Norway, Sweden and the Netherlands v. Greece (the “Greek case”), nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission’s report of 5 November 1969, Yearbook 12, p. 186, and Keenan v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III). Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, one of the factors which the Court will take into account is the question of whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Raninen v. Finland, 16 December 1997, § 55, Reports of Judgments and Decisions 1997‑VIII; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001-III; and Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001‑VII).
69. 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 (see Ramirez Sanchez, cited above, § 1 19 with further references).
70. Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “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 (see, among other authorities, Bouyid v. Belgium [GC], no. 23380/09, § 82, ECHR 2015).
71. Having regard to these general principles, the Court notes that, in the case at hand, it is an established fact that on both occasions when the applicant was in an isolation cell prison officers checked on him at regular one or two-hour intervals, including during the night (see paragraph 16and 29 above). The Court accepts that such a practice might have caused a degree of nuisance to the applicant, who was inevitably woken up at each check. It must nevertheless be reiterated that he was partly immobilised throughout most of his isolation (see paragraphs 14, 18, 27 and 33 above), and that he had a medical condition (see paragraph 5 above). For these reasons, the Court finds that the monitoring protocol applied in the applicant’s case was justified by the need to protect his health and life. It was also not disproportionate, since the applicant was not deprived of sleep.
72. The Court also notes that the mattress was available to the applicant for twelve hours during each occasion that he was placed in isolation (see paragraphs 17 and 30 above). Having to lie on the bare floor for the rest of the time during each period of disciplinary punishment must have necessarily caused the applicant some physical discomfort or even backache (see paragraph 20 above), especially when his arms were restrained by the straightjacket or the belt. The Court is nevertheless of the opinion that, since no injuries were caused on account of such conditions, the applicant’s suffering must be considered mild and inherent in the disciplinary measure, the legitimacy of which the applicant does not contest (see paragraph 51 above).
73. In the light of the case material, the Court also considers that the use of the protective helmet for twenty-seven hours during the applicant’s second period of detention in an isolation cell (see paragraph 32 above), albeit for a long period, was necessary in view of the continued risk of self‑harm (see paragraphs 26, 28 and 31 above). Moreover, that measure did not restrain the applicant’s movements or cause him any physical discomfort.
74. The Court will leave aside the issue of the continued use of other measures of force such as the straightjacket, the restraining belt and possibly handcuffs, because the applicant has not made any complaint in this regard.
75. On the other hand, the Court notes with concern the applicant’s grievance that, while lying immobilised, he urinated on himself and was left in such a state for some hours.
76. The findings of fact made by the domestic court, the documents in the case file, and the applicant’s own submissions, which are very confused as to the actual date of the incident, trigger the conclusion that the first alleged urination incident (on 16 or 17 March 2009) is, as found by the domestic court, unsubstantiated by evidence (see paragraphs 22-25 above).
77. Conversely, the incident of 30 April 2009 is well acknowledged and documented (see paragraphs 38 and 65 above).
78. The relevant material which has been produced before the Court consists of: the applicant’s unclear description of the incident in question (see paragraphs 36 and 51 above); the official notes in the 30 April report recording that the applicant declined to use the toilet at 12.52 p.m. and did not signal his need to go to the bathroom when a prison officer and his supervisor subsequently checked on him five times (see paragraphs 28and 37 above); and the domestic court’s finding that the applicant actually used the toilet at 12.52 p.m., having declined such an opportunity earlier that day, and did not signal any need to use the toilet between 2.20 p.m. and 4.45 p.m. (see paragraph 38 above). Despite these somewhat contradictory elements, the Court can nevertheless conclude that shortly before the incident the applicant was indeed given an opportunity to use the toilet, and if he had an urge to go to the toilet afterwards, he did not ask one of the officers monitoring him to take him. That casts serious doubt on the credibility of the applicant’s submission that he had no choice but to urinate on himself.
79. Irrespective of the applicant’s perceived motivation for doing so, the fact remains that he did indeed wet himself, following which he was allowed to change his dirty clothes.
80. There is a lack of clarity as to the crucial element of the case, namely how soon after the urination incident the authorities allowed the applicant to change his clothes.
81. According to the 30 April report, when a guard checked on the applicant at 1.30 p.m., 2.15 p.m., 3.30 p.m. and 4.15 p.m., and when the applicant had a talk with his supervisor and a prison psychologist at 2.47 p.m., he did not indicate that he had urinated on himself and was not observed to have urinated on himself (see paragraphs 28 and 37 above). Then, at 4.37 p.m he was allowed to change his wet clothes (see paragraph 37 above).
82. The report does not make any mention of the conversation described by the domestic court on the basis of the video-recording of the cell. In the domestic court’s account, at 4.45 p.m. the applicant, who had clearly asked to be allowed to wash himself and change his clothes, was given a sort of ultimatum about firstly improving his behaviour (see paragraph 38 above).
83. This Court has always condemned the practice of gratuitously imposing potentially debasing measures on applicants who, like the applicant in the instant case, find themselves in a particularly helpless situation (see, mutatis mutandis, Wieser v. Austria, no. 2293/03, §§ 39 and 40, 22 February 2007, with further references in the context of strip searches). A prisoner who is being subjected to a disciplinary punishment by means of isolation and being made to wear a restraining belt is already in a very vulnerable position. Pressuring him to improve his conduct by additionally not allowing him to change his clothes soaked with urine could not, under most circumstances, be considered justified by any compelling reason.
84. In the instant case, however, the Court does not find it established to the required standard of beyond reasonable doubt that the applicant was subjected to such treatment. To this end, the Court observes firstly that it is impossible to determine when the applicant wet himself. It is highly unlikely, however, that the incident occurred before 2.47 p.m., when the applicant talked to his supervisor and the psychologist. Secondly, if the applicant urinated on himself prior to 4.15 p.m., when he was last checked on by a prison officer, it does not appear that he immediately signalled the problem. Thirdly, the description of the tense conversation between the applicant and the prison guardrecorded at 4.45 p.m. reveals that the latter, admittedly somewhat evasively and provocatively, told the applicant that if he calmed down then he would be able to leave the isolation cell altogether. However, that does not lead to an unequivocal conclusion that the applicant’s request for clean clothes was firmly denied at that moment. Whether the applicant got to change his dirty clothes at 4.37 p.m. precisely, or only after the unfortunate conversation with the guard at 4.45 p.m., there is no evidence that the authorities disregarded his condition for a long time, and certainly not for several hours, as claimed by the applicant (see paragraph 36 above).
85. Having regard to the foregoing, the Court considers that in the particular circumstances of the present case, the complaint under the substantive limb of Article 3 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decidesto 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 complaint under Article 3 of the Convention inadmissible.
Done in English and notified in writing on 29 November 2018.
Abel Campos Ksenija Turković
Registrar President
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