CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 octobre 2009

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text-align:justify } .s1695E492 { margin-top:0pt; margin-left:42.75pt; margin-bottom:0pt; text-align:justify } .s136DAA9 { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s60E795C8 { width:198.96pt; display:inline-block }       FOURTH SECTION             CASE OF ORCHOWSKI v.   POLAND   (Application no.   17885/04)               JUDGMENT       STRASBOURG   22 October 2009   FINAL   22/01/2010   This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Orchowski v.   Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Giovanni Bonello,   Ljiljana Mijović,   David Thór Björgvinsson,   Ledi Bianku,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 13 October 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 17885/04) 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 Krzysztof Orchowski (“the   applicant”), on 11 May 2004. 2.     The applicant was represented by Ms K. Burska, a lawyer practising in Kobierzyce. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that the conditions of his detention had given rise to inhuman and degrading treatment contrary to Article 3 of the Convention. The Court also considered it appropriate to raise of its own motion the issue of Poland’s compliance with the requirements of Article 8 of the Convention with regard to the issue of overcrowding vis-à-vis the applicant’s right to respect for his physical and mental integrity or his right to privacy and the protection of his private space. 4.     On 30 March 2007 the President of the Fourth Section of the Court decided to give notice of the application. Under the provisions of Article   29   §   3 of the Convention, it was also decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant, Mr   Krzysztof   Orchowski, is a Polish national who was born in 1971 and is currently serving a prison sentence in Wrocław Remand Centre in Poland. A.     Conditions of the applicant’s detention 6.     By the time the instant case was communicated to the Polish Government, the applicant had been detained subsequently in four detention facilities (see paragraphs 8 – 45 below). On 26   April 2007, however, he was transferred to Kamińsk Prison and from there, on 3 July 2007, to Gdańsk Remand Centre. Subsequently, on 13 February 2008 the applicant was taken to Goleniów Prison. On an unspecified date, as it appears, in late-2008 he was transferred to Warszawa Mokotów Remand Centre. Finally, as it appears, on 13 February 2009 the applicant was committed to Wrocław Prison, where he remained. 7.     The parties’ statements relating to the conditions of the applicant’s detention prior to April 2007 are, to a large extent, contradictory. The Government did not make any comments with regard to the applicant’s detention after that date, except for the period when the applicant was detained in Goleniów Prison. 1.     Słupsk Remand Centre (a)     Uncontested facts 8.     From 5 September until 11 December 2003, from 30 December 2004 until 11 February 2005, from 19 July until 2 December 2005 and from 20   December 2005 until 6 March 2006 the applicant was detained in Słupsk Remand Centre. 9.     Detainees in Słupsk Remand Centre had a right to a one-hour long outdoor exercise in one of the two yards, measuring 276 and 141 square metres (“m²”) respectively. Groups of thirty and fifteen inmates respectively shared the yards at a time. The applicant had access to the TV and entertainment room in the remand centre twice a week for two hours at a time. He could watch television or play table tennis. (b)     Facts in dispute (i)     The Government 10.     The Government submitted that during the first term of his detention in Słupsk Remand Centre (from 5 September until 11 December 2003) the applicant was held in six different cells. The size of those cells varied between 8 and 27 m² and the occupancy rate fluctuated between one and six persons. In either case, the space per person ranged between 3 and 13 m². 11.     As regards the other periods of the applicant’s detention, the Government submitted that Słupsk Remand Centre had not kept any records of the applicant’s accommodation or of the number of prisoners assigned to each cell. They noted that it had not been possible to keep records because the number of detainees assigned to a particular cell changed very often, even several times per day. 12.     The Government acknowledged the existence of overcrowding in Słupsk Remand Centre at the time when the applicant was detained there. They submitted that the remand centre’s governor had been obliged to regularly inform the competent penitentiary judges about the fact that the detainees had less than the statutory 3 m² of space per person. 13.     The Government also submitted that the prisoners were entitled to one hot shower at least once per week. The shower-room in Słupsk Remand Centre was, at the relevant time, equipped with twelve shower-heads. Prisoners showered in groups of twelve. 14.     Between July 2003 and February 2006 the Słupsk State Sanitary Inspectorate ( Państwowy Inspektorat Sanitarny ) carried out five inspections at Słupsk Remand Centre. The Government did not provide any information as to the results of those inspections. They noted that cells in Słupsk Remand Centre were disinfected once a week. In addition, a sufficient amount of hygiene and sanitary products was distributed among detainees every month. Prisoners had their underwear changed once a week and their clothes and shoes, as often as necessary. The bed linen was washed every two weeks. Detainees had their meals inside their cells. 15.     The applicant’s cells were well-lit and ventilated. They were in a good condition as they had been renovated only a few years previously. (ii)     The applicant 16.     The applicant submitted that his cell during his first detention in the Słupsk Remand Centre measured 17 m² and was shared by ten detainees, including the applicant (1.7 m² per person). 17.     The official statistics obtained by the applicant’s lawyer from the Head of the Press and Communication Unit in the Office of the General Director of the Prison Service ( Kierownik Zespołu Prasowego i Komunikacji Społecznej w Biurze Dyrektora Generalnego Służby Więziennej) reveal the following data. The overcrowding (the degree by which the number of prisoners exceeds the maximum allowed capacity of a particular detention facility) at Słupsk Remand Centre during the applicant’s first detention was nearly 11 %, during his second detention – 3%, during his third detention – 14 % and during his fourth detention – nearly 4 %. 2.     Sztum Prison (a)     Uncontested facts 18.     From 12 December 2003 until 28 January 2004, from 23 until 29   March 2006, from 22 June until 2 August 2006, and from 30   August   2006 until 18 October 2006, the applicant was detained in Sztum Prison. (b)     Facts in dispute (i)     The Government 19.     The Government submitted that throughout his detention in Sztum Prison the applicant was held in eight different cells. The size of each of those cells was over 6.5 m² and the occupancy rate ranged from one to three persons, including the applicant. Most of the time the space was between 3.2 and 3.5 m² per person. However, from 30   August until 18   October 2006 the applicant was assigned to cell no. 295 which measured 6.6 m² and was shared by three detainees, including the applicant. In that particular cell, the space per person did not exceed 2.2 m². On the other hand, the Government stressed that between 12   December   2003 and 28 January 2004, 23 and 29 March 2006 and 22   June and 2 August 2006 the living conditions provided to the applicant in Sztum Prison had been in compliance with domestic standards. 20.     At the relevant time, four sanitary inspections took place in the prison (9   December 2003 and 9 March, 9 June and 11 November 2006). The inspections did not reveal any irregularities. The cells in Sztum Prison were clean, sufficiently ventilated and lit, and in an overall good condition. 21.     Prisoners had at least one hot shower per week and they entered the bathhouse in groups of a maximum of twenty-five people. 22.     The applicant had access to the prison’s “day-room” where he could watch television or play games and to a 476 square metre-large fitness room, where he could play volleyball and practise other sports. In addition, prisoners were entitled to an hour long outdoor exercise in one of four yards. Two of the yards in question measured 1,800 and 1,200 m² respectively. The strolling paths within these yards were 136 and 108   metres long respectively and two metres wide. The other two yards measured 500 m² each. The strolling paths within these yards were fifty ‑ six   metres long and two metres wide. The outdoor exercise took place in groups of a maximum of forty prisoners. 23.     Meals in Sztum Prison were served three times a day inside the cells. At lunchtime prisoners received a hot meal. The food served in prison was tasty and of a good nutritional value. (ii)     The applicant 24.     The applicant submitted that his cell during his first detention in the Sztum Prison measured 24 m² and was shared by nine   persons, including the applicant (2.6 m² per person). During his second detention in the Sztum Prison, the applicant was held in cell no.   394 ward   IV, which measured 9 m² and was shared by four   persons, including the applicant (2.25 m² per person). 25.     According to the official data obtained by the applicant’s lawyer from the Office of the General Director of the Prison Service the rate of overcrowding in Sztum Prison was nearly 10% during the applicant’s first detention, 20% during his second and third periods of detention and nearly 25 % during his fourth detention in this facility. 3.     Gdańsk Remand Centre (a)     Uncontested facts 26.     From 28 January until 15 April 2004, from 10 March until 19   July   2005, from 2 until 20 December 2005, from 10 May until 6   June   2006, from 2 until 30 August 2006, from 18 October 2006 until 13   February 2007, and from 3 July 2007 until 13 February 2008 the applicant was detained in Gdańsk Remand Centre. (b)     Facts in dispute (i)     The Government 27.     The Government submitted that throughout his detention in Gdańsk Remand Centre the applicant was held in twenty-three different cells. The size of those cells ranged from 5.5 to 24.5 m². They submitted that the occupancy rate (the number of prisoners in a cell and the living space per prisoner) during the first two of the applicant’s detention terms in Gdańsk Remand Centre had not been recorded. During the applicant’s third, fourth, fifth and sixth periods of detention the number of the applicant’s cellmates ranged from two to six. The space per person during that time was usually a little over 3 m². However, for twenty days in May 2006 and twenty days in August   2006 the applicant shared his cells with four other inmates and the surface available was 2.8 m² per person. In addition, the number of the applicant’s cellmates during one week between May and June 2006 had not been recorded. 28.     The Government acknowledged the fact that, at the relevant time, the remand centre was facing a problem of overcrowding. On 19 June and 13   September 2006 the governor decided to reduce the available space per person to less than the statutory standard of 3 m². On each occasion a competent penitentiary judge was duly informed about the situation. On the other hand, the Government submitted a letter from the administration of Gdansk Remand Centre dated 19   December 2007, which stated that during an unspecified period the applicant was assigned to a cell measuring nearly 6.5 m². He had shared that cell with only one inmate. 29.     The Government did not submit any other information as to the occupancy rate in Gdańsk Remand Centre during the applicant’s detention from 3 July 2007 until 13   February   2008. 30.     At the relevant time fifteen sanitary inspections were carried out by the Gdańsk District or Regional Sanitary Inspectorate ( Stacja Sanitarno ‑ Epidemiologiczna ): one in 2004, four in 2005, five in 2006 and five by May 2007. The cells were clean and sufficiently ventilated and lit. 31.     The applicant could take a minimum of one hot shower per week. Detainees accessed the shower room in a number equal to the number of shower heads in a particular unit. The bed linen was usually changed once every two weeks, more often if it was considered necessary. 32.     The applicant had a right to an hour-long outdoor exercise in a group of thirty in one of four outdoor yards. The size of the yards ranged from 36   to 101 m². 33.     Meals were served three times per day inside cells. They were tasty and of a good nutritional value. A hot meal was always served at lunchtime. (ii)     The applicant 34.     The applicant submitted that Gdańsk Remand Centre had been overcrowded. 35.     To that effect he furnished a copy of a document, which had been issued by the administration of Gdańsk Remand Centre, containing the list of the applicant’s cells. The history of the applicant’s transfers within the remand centre, namely the cells’ numbers and the dates of the applicant’s placement, is concordant with the data submitted by the Government. The document submitted by the applicant, however, also shows the information which was missing from the records submitted by the Government, namely the occupancy rate of the applicant’s cells during the first two periods of his detention. 36.     According to that information, from 11 until 25 February 2004 the applicant was placed in cell no. 31 of ward II (PC2), which measured 12.6   m² and was occupied by six people, including the applicant (2.1   m²   per   person). From 25   February until 25 March 2004 he was held in cells no.   27 and 19 of ward V (PC5). Both cells measured approximately 12.5 m² and they were occupied by five detainees (2.5 m² per person). From 25   March until 5   April   2004 the applicant was assigned to cell no. 18 in ward II (PC2), which measured 5.5 m² and was shared by two people including the applicant (2.7 m² per person). From 5 until 7 April 2004 he was in cell no.   41 of ward II (PC2). This cell measured 6.7 m² and was occupied by two persons including the applicant (3.3 m² per person). From 7 until 15   April   2004 the applicant was detained in cell no. 9 of ward   V   (PW5), which measured 7.1 m² and was occupied by two people, including the applicant (3.5 m² per person). 37.     In the second period of his detention in Gdańsk Remand Centre, the applicant was assigned to the following cells: from 10 until 21 March 2005 – to cell no. 4 of ward III (PW3), which measured 12.2 m² and was occupied by four people, including the applicant (3 m² per person); from 25   March until 3 June 2005 – to cell no. 8 in ward V (PZ5), which measured 15.2 m² and was shared by a total number of seven detainees (2.1 m² per person); and from 3 June until 19 July 2005 – to cell no. 7 in ward V (PZ5), which measured 20.3 m² and was occupied by a total number of eight   people (2.5 m² per person). 38.     Lastly, the document submitted by the applicant contains a detailed list of the applicant’s cells during the last period of his detention in Gdańsk Remand Centre, namely from 3 July 2007 until 13 February 2008. In the relevant period of seven months the applicant was moved twenty times between different cells. The size of the cells in question ranged from 5.5 to 13.6 m² and their occupancy rate, from one to six persons. In most of the cells the space per person oscillated around 2.5 m². In addition, for a total number of approximately thirty-five days the applicant was detained in cells in which the space per person was 2 m². His detention in cells, in which the space per person was slightly over 3 m², amounted to approximately 120 days. The document also reveals that from 16 until 19 November 2007 the applicant was detained alone in a cell, measuring nearly 7 m². 39.     According to the official data obtained by the applicant’s lawyer from the Office of the General Director of the Prison Service the rate of overcrowding in Gdańsk Remand Centre was nearly 15% during the applicant’s first detention, 4% during his second detention, 17% during his third detention, 14% during his fourth detention and nearly 9% during his fifth detention in this facility. 4.     Wejherowo Remand Centre (a)     Uncontested facts Finally, from 15 April until 30 December 2004, from 11 February until 10 March 2005, from 6 until 23 March 2006, from 29 March until 10   May   2006, from 6 until 22 June 2006, and, from 13   February until 26   April 2007, the applicant was detained in Wejherowo Remand Centre. (b)     Facts in dispute (i)     The Government 40.     The Government submitted that throughout his detention in Wejherowo Remand Centre the applicant was moved seventeen times between different cells. The size of those cells varied between 5 and 20 m². The occupancy rate had not been recorded, although the applicant was twice kept in solitary confinement. 41.     The Government submitted that the problem of overcrowding had been recorded for the first time in August 2000. It persisted until 24   January 2007, with the exception of two periods of downslide, namely from 24   March until 14 April 2005 and from 20 February until 8   March 2006. Between April 2005 and November 2006, the remand centre’s governor issued four decisions on reducing the statutory standard of 3 m² per detainee and informed the competent penitentiary judge accordingly. 42.     In the absence of the necessary data, the Government could not rule out that during a certain time, the applicant was detained in cells in which the space per person was below 3 m². In particular, at the relevant time there was a practice of placing eight detainees in six-person cells. On the other hand, the Government stressed that during the applicant’s last period of detention in Wejherowo Remand Centre (from 13 February until 26 April 2007), he shared his cells only with one person, thus having nearly 4 m² of individual space. 43.     At the relevant time, regular sanitary inspections were carried out in the remand centre by the Wejherowo Sanitary Inspectorate ( Stacja Sanitarno-Epidemiologiczna ): two in 2004, one in 2005, two in 2006 and one in 2007. The inspections did not reveal any irregularities. The cells were clean and well-equipped. They were sufficiently lit and ventilated. 44.     The applicant could take a minimum of one hot shower per week. Detainees accessed the shower room in a number equal to the number of shower heads in a particular unit. 45.   The applicant had a right to an hour-long outdoor exercise in a spacious yard together with a group of ten to twenty fellow inmates. In addition, he had a right to spend two hours in the remand centre’s “TV ‑ room” four times per week. Bed linen was changed once every two weeks. Prisoners’ underwear, towels and dishcloths were washed twice a week. 46.     Meals, which conformed to the standard quality requirements, were served inside the cells. (ii)     The applicant 47.     The applicant submitted that his cell during his first detention in the Wejherowo Remand Centre measured 18 m² and was shared by a total number of eight   people (2.2 m² per person). During the applicant’s second detention in the Wejherowo Remand Centre he was held in cell no. 12   ward   V, which measured 13 m² and was shared by six persons (2.1 m² per person). The applicant stressed that the problem of overcrowding in that facility persisted from 2000 until 24 January 2007. The only periods when Wejherowo Remand Centre was not overcrowded were from 24 March until 14   April   2005 and 20 February until 8 March 2006. 48.     The applicant furnished a copy of a letter from the governor of Wejherowo Remand Centre dated 19 June 2008. It was stated in it that the applicant had been detained in cells in which the statutory space of 3 m² per person had been reduced due to the general problem of overcrowding persisting in the country. At the relevant time, and with the exception of the period from 13 February until 26 April 2007, the maximum allowed population rate in the remand centre was exceeded by 4 to 15%, depending on the specific moment. 49.     Moreover, the official statistics from the Office of the General Director of the Prison Service revealed that the rate of the overcrowding in Wejherowo Remand Centre was at 8.5% during the applicant’s first detention, nearly 9.5 or 12.5% (the document reveals contradictory figures) during his second detention, 2 or 3% (contradictory figures) during his third detention, nearly 11% during his fourth detention, and 14.5% during his fifth detention in this facility. During the sixth and last period of the applicant’s detention in Wejherowo Remand Centre, the occupancy rate was 16% below the maximum allowed capacity of this establishment. 5.     Kamińsk Prison (a)     Uncontested facts 50.     It appears that from 26   April until 3 July 2007 the applicant was detained in Kamińsk Prison. (b)     Facts in dispute (i)     The Government 51.     The Government did not make any submissions with reference to Kamińsk Prison. (ii)     The applicant 52.     The applicant submitted that he had been assigned to cell no. 19 in ward III. The cell in question measured 13 m² and was occupied by six inmates, including the applicant (2.1 m² per person). The toilet annex took up 130 cm of the cell’s space. There were also three bunk beds, two tables and six stools. The applicant submitted that his cell was cramped and overcrowded. 53.     The applicant submitted a copy of a letter of 31 May 2007 sent by the Kamińsk Prison administration to the Ministry of Justice. It was stated in the letter that from 26 April 2007 until 31 May 2007 the applicant had been detained in cell no. 50, which measured 16.4 m² and was shared by six people, including the applicant (2.7 m² per person). It was also noted that on 2 February 2007 a competent penitentiary judge had again been informed of the fact that Kamińsk Prison was overcrowded and that that problem would persist for at least another six months. 54.     In addition, according to the official statistics from the Office of the General Director of the Prison Service the overcrowding in Kamińsk Prison at the time of the applicant’s incarceration there reached almost 15%. 6.     Goleniów Prison (a)     Uncontested facts 55.     It appears that from 3 July 2007 until an unspecified date in late ‑ 2008 the applicant was detained in Goleniów Prison. (b)     Facts in dispute (i)     The Government 56.     The Government submitted that as of 20 February 2008 the applicant had been detained in a cell in which the minimum statutory standard of 3 m² of space per person had been respected. (ii)     The applicant 57.     The applicant submitted the official statistics from the Office of the General Director of the Prison Service which showed that the overcrowding in Goleniów Prison at the time of his incarceration there reached almost 7%. 58.     Moreover, the applicant specified that he was at first detained in cell no.100 in wing E. The cell in question measured 10 m² and was shared by four prisoners including the applicant (2.5 m² per person). He was then transferred to cell no. 103 in wing E. That cell measured 18 m² and was shared by seven people including the applicant (2.57 m² per person). 59.     Lastly, the applicant confirmed that from 20 February 2008 until an unspecified date he had been assigned to a cell in which the space of 3 m² was available for each prisoner. 7.     Warszawa Mokotów Remand Centre (a)     Uncontested facts 60. From an unspecified date in late-2008 until 13 February 2009 the applicant was detained in Warszawa Mokotów Remand Centre. (b)     Facts in dispute (i)     The Government 61.     The Government did not make any submissions with reference to this detention facility. (ii)     The applicant 62.     The applicant submitted that in Warszawa Mokotów Remand Centre he had been detained subsequently in: cell no. 10 in wing B1, cell no. 1 in wing A1 and cell no. 23 in wing C1. The first cell measured 7 m² and was shared by three people including the applicant (2.3 m² per person). The second of the mentioned cells measured 21 m² and was shared by twelve prisoners including the applicant (1.75 m² per person). Lastly, the third cell measured 10 m² and was shared by four people including the applicant (2.5   m² per person). 8.     Wrocław Prison 63.     Finally, as it appears, on 13 February 2009 the applicant was committed to Wrocław Prison, where he remained. 64.     The parties did not make any submissions with regard to this detention facility. B.     The applicant’s complaints to domestic courts and authorities 65.     The applicant lodged numerous complaints about the conditions of his detention with the domestic authorities. He also applied on numerous occasions for a break in serving the sentence on account of the poor conditions of detention, as well as his difficult family situation. All of the applicant’s complaints and requests were to no avail. 66.     The Government in their submissions to the Court, acknowledged the fact that the applicant had lodged numerous complaints about the various aspects of his detention. The complaints lodged on 3, 5 and 7 May and 28 May 2004, 18 April, 12 May and 28 December 2005, and 18 May and 29 June 2006 related, among other issues, to the problem of overcrowding and inadequate living conditions in Wejherowo, Gdańsk and Słupsk Remand Centres. The relevant authorities, including the competent Regional Inspectorates of the Prison Service, considered them all manifestly ill-founded. 67.     The applicant, for his part, submitted a copy of a letter of 30   June   2004 of the Deputy Director of the Gdańsk Regional Inspection of Prison Services ( Okręgowy Inspektorat Służby Więziennej ) who had acknowledged the existence of overcrowding in Gdańsk Remand Centre at a level of 10% above the norm. 68.     Likewise, the problem of overcrowding was acknowledged by the Director of the Gdańsk Remand Centre in his letter of 31   March 2005, which had been issued in reply to the applicant’s complaint of 14   March   2005. However, the complaint that the applicant had diminished contact with the warden due to overcrowding was found to be unsubstantiated. It was indicated that the applicant had three meetings with the warden in less than one month. 69.     The applicant’s requests to be granted a break in serving the sentence were dismissed as manifestly ill ‑ founded. The most recent decision was delivered by the Słupsk Regional Court on 6   February 2006. C.     The applicant’s civil action against the State Treasury 70.     In his additional submissions of 25 November 2008 the applicant stated that on 19 February 2008 he had lodged with the Warsaw Regional Court (Sąd Okręgowy) an action for compensation under Articles 23 and 24 of the Civil Code in conjunction with Article 448 of the Civil Code. The applicant sued the State Treasury for the alleged damage resulting from overcrowding and inadequate living conditions in all the detention facilities in which he had so far been detained. 71.     It appears that the case is currently pending before the court of first ‑ instance. D.     Criminal proceedings against the applicant 72.     On 9 March 2006 the applicant submitted new complaints related to the criminal proceedings against him. However, despite the Registry’s request he failed to provide copies of the relevant domestic courts’ decisions delivered in the course of the impugned proceedings. 73.     It appears that on 11   December 2002 the Gdynia District Court convicted the applicant of unspecified offences and sentenced him to four years’ imprisonment (no.   II K   1200/01). It also appears that on 3   November 2003 the Gdańsk Regional Court dismissed an appeal against that judgment (no.   Ka   469/03). The applicant submitted that he had not been present at the appeal hearing. He was, however, represented by a legal ‑ aid lawyer and, ultimately, he was informed about the outcome of the case. The applicant’s conviction became final as he failed to lodge a cassation appeal. It appears that the applicant subsequently asked the Ombudsman ( Rzecznik Praw Obywatelskich ) to lodge an extraordinary cassation appeal against the second ‑ instance judgment, but his request was to no avail. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant constitutional provisions 74.     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 75.     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 76.     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.     Judicial review and complaints to administrative authorities 77.     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.” Article 35 of the Code in its relevant part provides: “1.     If in the opinion of the penitentiary judge it is necessary to issue a decision which would exceed his competence, in particular an administrative decision, [the penitentiary judge] shall transfer his observations and conclusions concerning the matter to the competent authority. 2.     The competent authority shall inform the penitentiary judge, within 14 days or within another time-limit determined by the latter, about their position. Should the penitentiary judge consider this position unsatisfactory, he shall transfer the matter to the [superior] authority; the superior authority shall inform the penitentiary judge about the outcome of the case. 3.     In the event of the repetition of flagrant omissions in the functioning of a prison, remand centre or another establishment, in which persons deprived of liberty [are quartered], or if the conditions existing [there] do not secure the respect of the rights of persons who are held there, a penitentiary judge shall appeal to the competent superior authority to [remedy the situation] within a set deadline. Should the [situation be not resolved] within the deadline, a penitentiary judge shall appeal to a competent minister to suspend the activity or to close down entirely or partly the prison, remand centre or establishment 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”). D.     Civil remedies 1.     Relevant legal provisions 78.     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 infrin