CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 janvier 2009

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page-break-after:avoid } .s40269D5B { width:34.93pt; display:inline-block } .sDAF16287 { width:162.63pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }       FOURTH SECTION           CASE OF SŁAWOMIR MUSIAŁ v.   POLAND   (Application no. 28300/06)                 JUDGMENT       STRASBOURG   20 January 2009   FINAL   05/06/2009   This judgment may be subject to editorial revision. In the case of Sławomir Musiał v.   Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar , Having deliberated in private on 16 December   2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   28300/06) 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   Sławomir   Musiał (“the   applicant”), on 18 June 2006. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr   J.   Wołąsiewicz of the Ministry of Foreign Affairs . 3.     The applicant alleged that the medical care and treatment offered to him during his detention in Sosnowiec and Zabrze Remand Centres and Herby Stare Prison had been inadequate in view of his epilepsy, schizophrenia and other mental disorders. He also complained of overcrowding and poor conditions in the above-mentioned detention facilities. 4.     On 30 August 2007 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention and Rule 41 of the Rules of the Court, it was decided to examine the merits of the application at the same time as its admissibility and to give priority to the case. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1978 and is currently detained in Herby Stare Prison, Poland. 6.     The applicant has been suffering from epilepsy since his early childhood. More recently he has been diagnosed with schizophrenia and other serious mental disorders. Prior to his detention, he had attempted to commit suicide and had received in-patient treatment in a psychiatric hospital. A.     The applicant's medical treatment in detention 7.     On 19 April 2005 the Będzin District Court ( Sąd Rejonowy ) remanded the applicant in custody on suspicion of committing robbery and battery. Subsequently, the applicant's pre ‑ trial detention was extended by the Będzin District Court in decisions of 14   October 2005 and 11   January 2006, and by the Myszków District Court in decisions of 5   June and 28   September 2006. 8.     On being taken into detention, the applicant was committed to an unspecified remand centre, presumably Sosnowiec Remand Centre. 9.     On 20 April 2005 he was taken to a State psychiatric hospital in Czeladź experiencing intensive auditory hallucinations of a psychotic nature. He remained there for two days. 10.     On 22 April 2005 the applicant was committed to Zabrze Remand Centre but on the same day he was transferred to Rybnik Psychiatric Hospital for observation. On 17 or 18 July 2005 the applicant was transferred back to Zabrze Remand Centre and he remained there until 4   January 2006. 11.     During his detention in Zabrze Remand Centre the applicant was taking psychotropic medicines and he was examined by a psychiatrist on 19   July, 23 August, 6, 21 and 27 September, 8 and 22 November, and 20   and 30   December 2005. In addition, the applicant was under the constant supervision of a psychologist who examined him on 19 July, 23 August, 15   November and 15 December 2005. Finally, the applicant was examined by a prison general practitioner in connection with dermatological problems, coughs, backaches and gastrological disorders. 12.     From 4 January until 5 April 2006 the applicant was detained in Sosnowiec Remand Centre. 13.     On 15 January 2006 he was again taken to Czeladź Psychiatric Hospital experiencing auditory hallucinations and suicidal thoughts. On the following day the applicant's condition stabilised. He was prescribed medicines and returned to Sosnowiec Remand Centre. It was suggested that he should remain under psychiatric supervision. 14.     On 23 January 2006 at about 11 p.m. the applicant attempted to hang himself in Sosnowiec Remand Centre. He was rescued by his fellow cellmates. Immediately afterwards he was examined by the in-house doctor, who did not find any injuries. 15.     On 24 January 2006 the applicant was taken to Czeladź Psychiatric Hospital. Because of the lack of places, he was transported to Opole Psychiatric Hospital, where he was examined by doctors. The applicant was diagnosed with schizophrenia and it was suggested that he remain under psychiatric supervision. Nevertheless, the applicant was not admitted to the hospital as there was no room. As a result, he was taken back to Sosnowiec Remand Centre. 16.     During his remaining time in Sosnowiec Remand Centre the applicant claimed that he had experienced hallucinations. He received regular pharmacological treatment, including psychotropic medicines. Between January and April 2006 he was examined nine times by a psychiatrist or a general practitioner. 17.     On 22 May 2006 the applicant was transferred to Herby Stare Prison. 18.     On his admission to Herby Stare Prison the applicant was examined by a neurologist. The examination did not confirm that the applicant suffered from the disorders which he had described, such as epilepsy, hallucinations and anxiety; nevertheless, the doctor prescribed pharmacological treatment and ordered a psychiatric consultation and observation. 19.     On 25 May 2006 the applicant was examined by a psychiatrist. He complained that he was suffering from insomnia and auditory hallucinations. Moreover, he claimed to have been followed and spied on by his cellmates. The doctor prescribed a drug to treat the applicant's schizophrenia and ordered that he should remain under the supervision of a psychiatrist. 20.     On 1 June 2006 the applicant missed his appointment with a psychiatrist but he was examined one week later. On 27 June 2006 he was examined by a general practitioner and on 10 July 2006 once more by a psychiatrist. During the latter visit, the applicant declared that he was well. 21.     Subsequently, between July 2006 and August 2007 the applicant was examined thirty-five times by doctors with different specialities, including a psychiatrist and a neurosurgeon. 22.     It appears that from 2 April until 4 June 2007 the applicant was hospitalised in a prison psychiatric ward. 23.     From 4 June until 23 or 28 August 2007 he was again detained in Herby Stare Prison. On the day of his release the applicant declared that he was well and had not been experiencing any hallucinations lately. 24.     On 7 September 2007 the applicant was again committed to Herby Stare Prison. He has been detained there to this day. B.     Conditions of the applicant's detention 25.     The parties' statements relating to the conditions of the applicant's detention are, to a large extent, contradictory. 1.     Zabrze Remand Centre (a)     Uncontested facts 26.     In Zabrze Remand Centre, from 18 July until 20 October 2005, the applicant was detained in cell no. 41 and from 20 October 2005 until 4   January 2006 in cell no. 42. Both cells measured approximately 6.7   square metres. (b)     Facts in dispute (i)     The Government 27.     The Government did not provide any information as to the number of detainees sharing cells with the applicant. They submitted, however, that Zabrze Remand Centre had faced the problem of overcrowding; indeed, its governor decided to reduce the statutory minimum standard of three square metres per person. On 14 June, 30   September and 29   November 2005 a penitentiary judge was informed about the Governor's decision. 28.     The Government also submitted that in Zabrze Remand Centre each of the applicant's cells had had an annex with a toilet cubicle and a washbasin. That area was separated from the rest of the cell and offered privacy. Detainees were supplied with toiletries and bed linen was changed once every two weeks. The window surface in each of the applicant's cells was over one square metre. The applicant was allowed to take a shower once a week. The shower room had eight shower heads. Sixteen people were allowed inside and they showered in two groups on a rotation basis. 29.     In the Government's submission the applicant had been allowed to have one hour of outdoor exercise in one of seven yards, two of which measured 150 and 120 square metres. The applicant could also participate in social activities two or three times per week for approximately two hours. In addition, he could stay in an entertainment room watching television, reading or playing board games. Finally, in the Government's submission the applicant had access to radio and television programmes through the prison internal broadcasting system and he could rent five books per week from a prison library. 30.     The Government submitted that the applicant had not been given any disciplinary punishments while in Zabrze Remand Centre. On the contrary, he had twice been rewarded for good behaviour. (ii)     The applicant 31.     The applicant submitted that he shared the cells in question with two other inmates. 32.     Moreover, he maintained that his cells had been dirty and infested with bedbugs, cockroaches and fungus. Detainees had smoked cigarettes all day long inside the cells. The bed linen and towels were not properly washed and there was a stench in the air. The detainees had washed in cold water. The applicant also claimed that there had been no television set or board games in the entertainment room and that he had not been informed about any social activities available in the remand centre. 33.     The applicant also complained of the practice of bullying detainees by the staff of Zabrze Remand Centre. He submitted that warders had ordered disciplinary punishment under any pretext, demolished cells during frequent and unjustified searches, made detainees undress and do squats and also deprived them of sleep. 2.     Sosnowiec Remand Centre (a)     Uncontested facts 34.     In Sosnowiec Remand Centre, between 4 January and 5 April 2006, the applicant was initially detained in cell no. 37, which measured almost sixteen square metres and was shared by four to five persons including the applicant. From 6 February until 30 March 2006 he was detained together with two other detainees in the medical wing's cell no. 58. That cell measured thirteen square metres. Finally, from 30 March until 5 April 2006 he was detained in cell no. 56, which measured ten square metres and a half and was shared by two people. When the number of new admissions increased as of January 2006, the governor of Sosnowiec Remand Centre decided to reduce the available cell space below the minimum statutory limit and to convey the necessary information to the competent penitentiary judge. (b)     Facts in dispute (i)     The Government 35.     The Government submitted that the sanitary conditions in Sosnowiec Remand Centre had been decent. Each cell had a separate sanitary annex with a toilet cubicle and a washbasin. Detainees took a hot bath or shower once a week. During his detention in cell no. 58 the applicant could take one bath per day. In that cell detainees had access to hot water. In all other cells they were allowed to use a water immersion heater or a wireless kettle. All cells were sufficiently lit and ventilated. Detainees had one hour of outdoor exercise per day and they were also allowed to spend time in an entertainment room. The entertainment room in Wing IV of Sosnowiec Remand Centre, where the applicant had been detained, was equipped with board games and tables to play table football and table tennis. In addition, in the remand centre detainees had access to a library and, in the spring and summertime, to a volleyball court. (ii)     The applicant 36.     The applicant contested the above submissions by saying that sanitary conditions in Sosnowiec Remand Centre had been inadequate. The   cells were damp and dirty, the towels and bed linen were not washed and the detainees washed in cold water. 3.     Herby Stare Prison (a)     Uncontested facts 37.     The applicant was detained in Herby Stare Prison during three separate periods: from 22 May 2006 and 2 April 2007, from 4 June and 28   August 2007, and from 7 September 2007 onwards. (b)     Facts in dispute (i)     The Government 38.     The Government supplied the list of cells which the applicant had occupied at different periods. The surface area of these cells varied between ten and eighteen square metres. Their occupancy rate, however, had not been disclosed. On the other hand, the Government submitted that the prison's governor had made a decision to reduce the available cell space below the minimum statutory limit and that between May   2006 and October   2007 he had informed a penitentiary judge about that fact on nineteen occasions. 39.     They claimed that in Herby Stare Prison the sanitary conditions had been decent. Each cell had a separate sanitary annex with a toilet cubicle and a washbasin. Detainees took a hot bath or shower once a week. The bath house was equipped with nineteen shower heads and four or five persons were allowed inside at a time. (ii)     The applicant 40.     The applicant argued that all the cells in which he had been detained had been seriously overcrowded. For example, cell no. 32, which measured eighteen square metres, had been shared by nine or ten persons. 41.     The applicant also submitted that sanitary conditions in Herby Stare Prison had been inadequate. Similarly to the other detention facilities where he had been held, the cells were damp and dirty, the towels and bed linen were not washed and the detainees washed in cold water. In addition in Herby Stare Prison the shower room was located in a separate building. In wintertime in particular, it had been difficult for detainees to walk back to the living quarters with wet hair and without proper clothing. Moreover the applicant complained of the lack of privacy because the showers had not been separated. C.     The applicant's complaints to domestic courts and authorities 42.     The applicant did not lodge any formal complaints with the penitentiary authorities on the basis of the Code of Execution of Criminal Sentences. He complained, however, to various State authorities, i.e. to the Ombudsman ( Rzecznik Praw Obywatelskich ) about the inadequate medical care he had received and the conditions of his detention. He also filed several requests for release on health grounds. 43.     In a letter of 6 July 2006 the Ombudsman informed the applicant that his allegations had been considered ill ‑ founded. It was emphasised that the applicant had been under constant psychiatric supervision and that he had been hospitalised whenever necessary. 44.     On 31 July 2006 the Myszków District Court refused to release the applicant from pre ‑ trial detention on health grounds as requested by his lawyer. The court referred to unspecified medical reports which stated that the applicant was not suffering from any mental illness, but merely from an antisocial personality disorder. 45.     On 23 November 2006 the Częstochowa Regional Court ( Sąd Okręgowy ) dismissed an interlocutory appeal by the applicant against a decision of 28   September 2006 by which the Myszków District Court had extended his pre ‑ trial detention. 46.     The applicant argued that, because of his mental illness, he should not be held in a detention centre but in a psychiatric hospital. He referred to a number of medical reports which had confirmed his schizophrenia diagnosis and in which it had been recommended that he should remain under psychiatric supervision. 47.     The Częstochowa Regional Court held that there were no contraindications to the applicant's detention in a remand centre. The court stated that, admittedly, a number of psychiatrists from both State and prison hospitals had directed that the applicant should be placed under psychiatric supervision. The court observed, however, that the diagnosis was not credible since the doctors had   not had long ‑ term contact with the applicant and had not had full access to his medical records. Instead, the court relied on an opinion delivered by experts in psychiatry from Rybnik Hospital, who were of the view that the applicant was not suffering from any psychotic disorder. The court stressed that, unlike the others, the latter expert opinion was thorough, as it had been drawn up further to the applicant's five ‑ week period under psychiatric observation at Rybnik Hospital in 2005 and based on the medical records of his psychiatric treatment prior to his detention. On the other hand, the court took note of discrepancies between the medical reports before it and recommended that the report of the experts from Rybnik Psychiatric Hospital be updated. Nevertheless, the court did not agree to release the applicant from pre ‑ trial detention in a remand centre. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant constitutional provisions [1] 48.     Article 2 of the Constitution reads as follows: “The Republic of Poland shall be a democratic State ruled by law and implementing the principles of social justice.” Article 40 of the Constitution reads: “No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.” Article 41 of the Constitution, in its relevant part, provides: “4.     Anyone deprived of liberty shall be treated in a humane manner.” B.     General rules on conditions of detention 1.     Code of Execution of Criminal Sentences 49.     Article 110 of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy – “the Code”) provides: “1.     A sentenced person shall be placed in an individual cell or a cell shared with other inmates. 2.     The area of the cell shall be no less than 3 square metres per detainee.” Article 248 of the Code provides: “1.     In particularly justified cases a governor of a prison or remand centre may decide to place detainees, for a specified period of time, in conditions where the area of the cell is less than 3 square metres per person. Any such decision shall be promptly communicated to a penitentiary judge. 2.     The Minister of Justice shall determine, by means of an ordinance, the rules which are to be followed by the relevant authorities in a situation where the number of persons detained in prisons and remand centres exceeds on a nationwide scale the overall capacity of such establishments ...” 2.     The 2000 and 2003 Ordinances 50.     On the basis of Article 248 of the Code, the Minister of Justice issued the Ordinance of 26 October 2000 on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded on a nationwide scale the overall capacity of such establishments ( Rozporządzenie Ministra Sprawiedliwości w sprawie trybu postępowania właściwych organów w wypadku, gdy liczba osadzonych w zakładach karnych lub aresztach śledczych przekroczy w skali kraju ogólną pojemność tych zakładów – “the 2000 Ordinance”). On 26 August 2003 the Minister of Justice issued a new ordinance with the same title (“the 2003 Ordinance”), which replaced the previous ordinance. It entered into force on 1 September 2003. Paragraph 1.1 of this Ordinance provided: “In the event that the number of detainees placed in prisons and remand centres, as well as in subordinate detention facilities, hereinafter referred to as 'establishments', exceeds on a nationwide scale the overall capacity of such establishments, the Director General of the Prison Service, within seven days from the day the capacity is exceeded, shall convey the relevant information to the Minister of Justice, the regional directors of the Prison Service and the governors of the establishments ...” Paragraph 2 of the Ordinance read: “1. Having received the relevant information, the regional director of the prison service and the governor of the establishment are under a duty, each within their own sphere of competence, to take action in order to adapt quarters not otherwise included in the establishment's [accommodation] capacity, to comply with the conditions required for a cell. ... 3.     In the event that the establishment's capacity is exceeded, detainees shall be placed in supplementary cells for a specified period of time. 4.     In the event that the additional accommodation in the supplementary cells is used up, detainees may be placed in conditions where the area of a cell is less than 3   square metres per person.” C.     Medical and psychiatric care in detention facilities 51.     The general duty of the State to protect persons with mental disabilities is derived from the Mental Health Protection Act of 19   August   1994 ( Ustawa o ochronie zdrowia psychicznego – “the 1994 Act”), which entered into force on 21 January 1995. The 1994 Act recognises mental health as a fundamental personal right of every person. Specific rules regarding detention in a medical institution, as well as psychiatric care in prisons and remand centres, are provided for in the Code of Criminal Procedure and the Code of Execution of Criminal Sentences, as well as in a number of ordinances issued by the Minister of Justice. Article 259, paragraph 1, of the Code of Criminal Procedure provides that, unless there are particular reasons to the contrary, pre-trial detention should be waived if it could result in putting a detainee's life or health at risk. Article 260 of the Code of Criminal Procedure, on the other hand, provides: “If required by the accused's health condition, [his] pre-trial detention may take the form of placement in a suitable medical establishment.” Article 213 of the Code of Execution of Criminal Sentences provides: “In cases described in the Code of Criminal Procedure, pre ‑ trial detention shall take place outside a remand centre, in a medical establishment indicated by an authority responsible for the detainee. The same authority shall also provide directions as to the conditions of the detainee's placement in the indicated medical establishment.” On the basis of Article 115, paragraph 10, of the Code of Execution of Criminal Sentences, the Minister of Justice issued the Ordinance of 31   October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons deprived of their liberty by health ‑ care establishments for persons deprived of their liberty ( Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “the October 2003 Ordinance”). It entered into force on 17   December   2003. Under paragraph 1.1 of the October 2003 Ordinance, health ‑ care establishments for persons deprived of their liberty provide, inter alia , medical and psychological examinations, medical and psychological treatment and preventive medical care to persons deprived of their liberty. Paragraph 1 of this Ordinance further provides: “2.     In justified cases, if the medical services as enumerated in sub ‑ paragraph   1 cannot be provided to persons deprived of their liberty by the health ‑ care establishments for persons deprived of their liberty, in particular owing to the lack of specialised medical equipment, such medical services may be provided by public health ‑ care establishments. 3.     In cases described in sub ‑ paragraph 2, the head of a health-care establishment for persons deprived of their liberty shall decide whether or not such medical services [provided by public health ‑ care establishments] are necessary...” Paragraph 7 of the October 2003 Ordinance states: “1.     The decision to place a person deprived of his liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse ... 2.     The decision as to whether or not it is necessary to place a person deprived of his liberty in a ... prison hospital shall be taken by the prison hospital's director or by a delegated prison doctor.” Paragraph 11 of the October 2003 Ordinance provides: “In the event of a suspicion that a person deprived of his liberty suffers from mental disorders, mental retardation ..., the prison doctor: (1)     shall give directions as to the placement of the person concerned in prison, the manner of observation and the mode of proceeding [with the person concerned]; (2)     shall direct the person concerned to undergo a psychiatric examination.” Paragraph 12.1 of the October 2003 Ordinance states: “A person deprived of his liberty shall be placed in the psychiatric ward of a prison hospital: (1)     if a court has ordered the examination of such person together with psychiatric observation; (2)     [if this has been] directed – in compliance with the rules of the Mental Health Protection Act of 19   August 1994 – by a psychiatrist because of the diagnosis of mental disorders which require examination or treatment in hospital.” Paragraph 13 of the October 2003 Ordinance further provides: “In justified cases, if, as a result of a psychiatric examination together with psychiatric observation, a person deprived of his liberty has been diagnosed with mental illness, mental retardation or any other mental dysfunction ..., based on the decision of a chief doctor, [such person] shall remain in the psychiatric ward of a prison hospital until the relevant court's ruling.” 52.     On the basis of Article 249 of the Code of Execution of Criminal Sentences, the Minister of Justice issued the Ordinance of 25   August 2003 on the code of practice for the organisation and arrangement of pre ‑ trial detention ( Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu organizacyjno-porządkowego wykonywania tymczasowego aresztowania   ‑   “the August 2003 Ordinance”). It entered into force on 1   September 2003. The August 2003 Ordinance states that pre ‑ trial detention takes place in remand centres. However, paragraph 28 of the Ordinance provides: “1.     With regard to detainees held in hospitals ..., as well as chronically ill [detainees], the governor [of a remand centre] may, at the request of or after consultation with a doctor, make necessary exceptions to the arrangements for pre ‑ trial detention as envisaged in the code of practice, in so far as this is justified by the health condition of the detainees concerned. 2.     Sub ‑ paragraph 1 shall be applied in respect of detainees who have been diagnosed with non-psychotic psychiatric disorders, mental retardation ... The governor [of a remand centre] may make [necessary] exceptions at the request of or after consultation with a doctor or a psychologist.” 53.     The rules governing cooperation between prison health ‑ care establishments and public health ‑ care facilities are set out in the Ordinance of the Minister of Justice issued on 10 September 2003 on the detailed rules, scope and procedure for the cooperation of health ‑ care establishments with health services in prisons and remand centres in the provision of medical services to persons deprived of their liberty ( Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “the September 2003 Ordinance”). It   entered into force on 17   October 2003. D.     Judicial review and complaints to administrative authorities 54.     Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice. Under Article 6 of the Code of Execution of Criminal Sentences (“the   Code”) a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence. Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a governor of a prison or a remand centre, a regional director or the Director General of the Prison Service or a court probation officer. Applications relating to the execution of prison sentences are examined by a competent penitentiary court. The remainder of Article 7 of the Code reads as follows: “3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the pronouncement or the service of the decision; the decision [in question] shall be pronounced or served with a reasoned opinion and an instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority which issued the contested decision. If [that] authority does not consider the appeal favourably, it shall refer it, together with the case file and without undue delay, to the competent court. 4. The Court competent for examining the appeal may suspend the enforcement of the contested decision ... 5. Having examined the appeal, the court shall decide either to uphold the contested decision, or to quash or vary it; the court's decision shall not be subject to an interlocutory appeal.” In addition, under Article 33 of the Code, a penitentiary judge is entitled to make unrestricted visits to detention facilities, to acquaint himself with documents and to be provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of their liberty without the presence of third persons and to examine their applications and complaints. Article 34 of the Code in its relevant part reads as follows: “1. A penitentiary judge shall quash an unlawful decision [issued by, inter alia , the governor of a prison or remand centre, the Regional Director or the Director General of the Prison Service] concerning a person deprived of his liberty. 2. An appeal to the penitentiary court lies against the decision of a penitentiary judge... 4. In the event of finding that the deprivation of liberty is not in accordance with the law, a penitentiary judge shall, without undue delay, inform the authority [in charge of the person concerned] of that fact, and, if necessary, shall order the release of the person concerned.” Lastly, Article 102, paragraph 10, of the Code guarantees a convicted person a right to lodge applications, complaints and requests with other competent authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. Detailed rules on the procedure are laid down in the Ordinance of the Minister of Justice issued on 13 August 2003 on dealing with applications, complaints and requests by persons detained in prisons and remand centres ( Rozporządzenie w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych – “the August 2003 Ordinance”). E.     Civil remedies 1.     Relevant legal provisions 55.     Article 23 of the Civil Code contains a non-exhaustive list of so ‑ called “ personal rights” ( prawa 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 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: “... [T]he 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 seeking 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 ...” In addition, Articles 417 et seq. of the Polish Civil Code provide for the State's liability in tort. Article 417 § 1 of the Civil Code formerly provided: “The State Treasury shall be liable for damage ( szkoda ) caused by an agent of the State in carrying out acts entrusted to him.” After being amended in 2004, Article 417 § 1 of the Civil Code provides: “The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 2.     Case-law of civil courts as submitted by the Government 56.     In their submissions on the admissibility and the merits of the case the Government referred to the judgment of the Supreme Court of 28   February 2007 and to nine recent judgments in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights. (a)     Supreme Court's judgment of 28 February 2007 57.     On 28 February 2007 the Supreme Court recognised for the first time the right of a detainee under Article 24, read in conjunction with Article 448 of the Civil Code, to lodge a civil claim against the State Treasury for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment. That judgment originated from the civil action brought by a certain A.D., who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm. The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions. The Supreme Court quashed the second-instance judgment in which the applicant's claim had been dismissed. The Supreme Court held that the case should have been examined under Article 24, in conjunction with Article   448 of the Civil Code, and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff's personal rights had not been infringed. The case was remitted to the appeal court. 58.     On 6 December 2007 the Wrocław Court of Appeal examined the case under Article 24 in conjunction with Article 448 of the Civil Code, as interpreted by the Supreme Court. The appeal court reiterated that overcrowding coupled with inadequate living and sanitary conditions in a detention facility could give rise to degrading treatment in breach of a detainee's personal rights. The court condemned the practice of maintaining high rates of occupation in detention facilities throughout the country and stressed that the minimum standard of three square metres per person was to be reduced only in exceptional circumstances and for a short period of time. On the other hand, the Wrocław Court of Appeal observed that in the light of the Supreme Court's established case-law, a trial court did not have a duty to award compensation for each personal right's infringement. One of the main criteria in assessing whether or not to award compensation for a breach of a personal right was the degree of fault on the part of a respondent party. The court held that in relation to the overcrowding, no fault could be attributed to the management of a particular detention facility since the management were not in a position to refuse new admissions even when the average capacity of a detention facility had already been exceeded. Considering the large scale of the problem in the country and the fact that the competent authorities had not acted with a particular intent to humiliate the plaintiff or in bad faith, the appeal court found that awarding compensation for a breach of personal rights on account of overcrowding and poor conditions of detention would contradict the universal sense of justice. Ultimately, the case was dismissed. (b)     Judgments of other civil courts 59.     In five of the other cases cited by the Government the plaintiffs, non-smokers detained with smoking inmates, had been awarded compensation because it had been found that they were at risk of suffering or had actually suffered a health disorder. Another one of the cases referred to concerned a prisoner who had suffered food poisoning in prison and another one concerned a detainee who had been beaten up by his fellow inmate. In another case, of a certain J.K., who had been detained for seven days in an overcrowded and unsanitary cell, the Warsaw Court of Appeal had granted partial compensation on account of the fact that the prison's governor had failed to inform a competent penitentiary judge, in compliance with the applicable procedure, about the problem of overcrowding present at the time when the plaintiff was serving his sentence there. Finally, in the case of a certain S.G. the Cracow Court of Appeal had held that there had been no legal basis to grant compensation for detaining the plaintiff in an overcrowded cell. The court observed that the protection of personal rights offered by Article 24 § 1 of the Civil Code was conditional on two elements: firstly, there must have been an infringement or a risk of infringement of the right protected; secondly, the infringement must have resulted from an unlawful act or omission. It was reiterated that an act or omission was not unlawful, even though it might breach personal rights, as long as it was based on a valid legal provision. The court further noted that the plaintiff had the burden of proving the infringement or the risk of infringement while the respondent had the burden of proving that his acts or omissions were not unlawful. The Cracow Court of Appeal held that detaining the plaintiff in conditions below the minimum standard established by Article 110 § 2 of the Code of Execution of Criminal Sentences was not unlawful, as it was regulated by the 2003 Ordinance. F.     Constitutional Court's practice 1.     The Ombudsman's application 60.     On 13 December 2005 the Ombudsman made an application under Article   191, read in conjunction with Article 188 of the Constitution, to the Constitutional Court, asking for the 2003 Ordin