Last Updated on May 14, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 59460/12
Andrzej PAWEŁKOWICZ
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,
Armen Harutyunyan, judges,
and AbelCampos, Section Registrar,
Having regard to the above application lodged on 3 September 2012,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Andrzej Pawełkowicz, is a Polish national who was born in 1958 and is currently detained in Płock. He was represented before the Court by Mr P. Rał, a lawyer practising in Warsaw.
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.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant has been detained since an unspecified date. At the material time he was serving a sentence in Płock Prison, a closed-type facility for repeat offenders.
1. Strip-search of 22 March 2012
5. On 22 March 2012 the applicant was to be transferred to a court for a hearing. After leaving his cell the prison guards took him to a recreation room (świetlica), where they ordered him to undress in order to carry out a strip-search. He refused because the door and window were wide open and the room was cold.
6. The applicant was taken to the prison guards’ office and a superior officer was informed of his refusal to undergo the strip-search.
7. According to the applicant, four prison guards put on protective gloves and threatened him that coercive measures might be used against him.
8. The Government submitted that the guards had put the gloves on in order to avoid touching the applicant with their bare hands. The search was carried out in a separate room by two male guards. The applicant complied with the order and agreed to undress. No coercive measures were used against him.
2. Complaints to the prison authorities
9. The applicant complained about the incident to the prison authorities. He claimed that the strip-search had caused him psychological discomfort and anguish.
10. On 27 April 2012 the governor of Płock Prison dismissed his complaint, deciding that the strip-search had been conducted in accordance with domestic law.
11. In the meantime, on 26 March 2012 the governor imposed a disciplinary punishment on the applicant for non-compliance with the prison officers’ orders on 22 March 2012. His right to have direct contact with visitors was suspended for one month. On 16 May 2012 the Płock Regional Court upheld that decision.
12. On 31 May 2012 the Director of the Łódź Regional Inspectorate of the Prison Service dismissed a further complaint by the applicant regarding the strip-search. He stressed that, under law, personal searches had to be conducted by a person of the same sex and in a manner respecting the dignity of the person concerned. All those conditions had been fulfilled in the applicant’s case. The search had been conducted in a separate room. Moreover, given his initial refusal to undergo the strip-search, the prison guards had been correct in assessing that means of direct coercion might be necessary.
3. Criminal complaint
13. The applicant informed the Płock District Prosecutor’s office about the incident, requesting that criminal proceedings be instituted. He also submitted that two strip-searches had been carried out on the day in question, one before he had left the prison and the other on his return from court. He claimed that during the first search he had felt threatened by the officers.
14. On 30 April 2012 the prosecutor’s office refused to institute proceedings on the grounds that there was nothing to show that the strip‑search had been conducted in violation of the law.
15. On 15 June 2012 the Płock District Court upheld that decision, finding that the strip-search had been conducted in accordance with domestic law and had been necessary in the circumstances of the case.
16. The Government submitted that on 9 February 2012 the Płock District Prosecutor had reopened the investigation and heard the prison guards in question. On 20 March 2017 the prosecutor discontinued the investigation, finding that the search of the applicant had been legal and conducted respectfully, and that the prison guards had not displayed any threatening behaviour towards him.
B. Relevant domestic law
17. The relevant domestic law concerning strip-searches is set out in the Court’s judgment in the case of Piechowicz v. Poland (no. 20071/07, § 110, 17 April 2012).
COMPLAINT
18. The applicant complained under Article 3 of the Convention about the strip-search carried out on 22 March 2012.
THE LAW
19. The applicant’s complaint relates to a strip-search performed on him by prison guards prior to him being transported to court for a hearing. The complaint falls to be examined under Article 3 of the Convention which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
20. The Government raised a preliminary objection, claiming that the applicant had failed to exhaust domestic remedies. In particular, he had not lodged an appeal against the decision of the Płock District Prosecutor of 20 March 2017 discontinuing the investigation. Moreover, if he had considered that his personal rights had been violated, it had been open to him to claim compensation from the State Treasury. The applicant had already instituted several civil actions for compensation in respect to various aspects of the conditions of his detention in different prisons in which he had been detained. Those sets of civil proceedings were pending before the domestic courts but did not concern the event complained of in the present application.
21. Moreover, the Government submitted that the application was manifestly ill-founded. The search had been carried out in accordance with the law and in a manner respecting human dignity. Płock Prison, where the search had taken place, was a closed-type facility for repeat offenders. The strip-search had had a legitimate purpose as the applicant was being transported outside the prison. The applicant had been searched in a separate room and by two prison guards who had been wearing gloves so as to avoid touching him with their bare hands. The Government submitted that although the prison guards had ordered him to undress, that could not be understood as threatening or verbally abusive behaviour towards him. Since the applicant had complied with the order, no physical force had been used.
22. The applicant, who was represented before the Court, failed to comment on the admissibility or merits of his application. He also failed to address the submissions of the Government on the admissibility and merits of the application. The applicant stated in general terms that he maintained his application to the Court.
23. The Court notes that the applicant failed to inform it that the criminal investigation into his allegations against the prison guards had been reopened. According to the Government, those proceedings ended with the decision of the Płock District Prosecutor of 20 March 2017, against which the applicant did not appeal. The applicant did not comment on those facts nor explain why he had not lodged an appeal.
24. The Court however finds it unnecessary to rule on the Government’s preliminary objections in respect of exhaustion of domestic remedies since it considers the applicant’s complaint to be in any event manifestly ill‑founded for the following reasons.
25. 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, among other authorities,Bouyid v. Belgium[GC], no.23380/09, § 86, ECHR 2015, with further references).
26. 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,Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV).
27. In the present case, the Court observes that the applicant’s allegations under Article 3 refer to the allegedly threatening manner in which the prison guards carried out a strip-search. The Court reiterates that whilst strip-searches may be necessary on occasions to ensure prison security or prevent disorder in prisons, they must be conducted in an appropriate manner (see Iwańczuk v. Poland, no. 25196/94, 15 November 2001, § 59, andVan der Ven v. the Netherlands,no. 50901/99, § 60, ECHR 2003‑II). In this connection, the Court notes that the applicant was a repeat offender detained in a closed-type prison, and therefore personal checks could have been justified to ensure safety in the prison. Moreover the strip‑search in the present case was considered necessary as the applicant was to be transported outside the prison, to court (compare and contrast Piechowicz v.Poland, no. 20071/07, § 176, 17 April 2012, where strip‑searches had been systematic, intrusive, exceptionally embarrassing, and performed daily, or even several times a day).
28. The Court notes that the strip-search complained of was carried out in a separate room by two male prison guards, and there was no allegation that they had touched the applicant with their bare hands (compare and contrast Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001‑VIII). His allegation that he had been threatened by the guards was investigated but not confirmed by the domestic authorities. The applicant has not responded to the Government’s arguments regarding that matter.
29. In the circumstances of the case, and in the absence of submissions by the applicant on the admissibility and the merits of the application, the Court considers that the applicant failed to sufficiently justify his original allegation that the strip-search of 22 March 2012 had amounted to treatment contrary to Article 3 of the Convention.
30. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 29 November 2018.
Abel Campos Ksenija Turković
Registrar President
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