CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 22 juin 2010

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The Polish Government were represented by their Agent, Mr   J.   Wołąsiewicz, of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The applicant's detention It appears that from 25 June 1990 to 17 April 2004 the applicant was detained and served various prison sentences for, inter alia , rape. In 1996 the Lubliniec District Court gave a cumulative sentence and sentenced him to ten years' imprisonment of which he apparently served eight years. In January 2002 the applicant's mother brought the applicant, who was in a detention centre, video tapes allegedly belonging to his late father. They were seized by the prison authorities as they turned out to contain pornography involving minors. On 23 April 2002 the Zabrze District Prosecutor decided to treat the tapes as evidence in a criminal investigation into the production and distribution of pornographic materials featuring scenes involving minors. An appeal by the applicant against this decision was dismissed on 28 November 2002. The applicant was notified of this decision on 16   December 2002 at the latest. On 15 May 2003 the applicant applied to the prison authorities for special prison leave to participate in administrative proceedings pending before the City Council concerning his official registration at a flat he had occupied before his detention. Subsequently, he applied for special prison leave in order to visit his stepfather in hospital. His requests were dismissed by the penitentiary judge. His appeals were dismissed by the Gliwice Penitentiary Court on 9   July and 24   September 2003. 2.     The alleged ill-treatment in the Cieszyn Detention Centre On 25 June 2002 the applicant was transferred to Cieszyn Prison, where he remained until 9 August 2002. On that date he was transported to Rzeszow Prison. According to the Government at that time the applicant was serving a sentence of ten years' imprisonment. In Cieszyn Prison the applicant was qualified as a “detainee requiring reinforced protection” ( osadzony wymagajacy wzmocnionej ochrony ). He was placed in a “protected cell” ( cella chroniona ) normally intended for persons detained pending trial. On an unspecified date he requested the Cieszyn district prosecutor to initiate an investigation into his allegations that he had been ill-treated in Cieszyn Prison between 25 June and 9 August 2002. The applicant submitted that the prison officers had been illegally monitoring and eavesdropping on phone calls he had made using a telephone booth installed in the prison. He further alleged that the prison officer M.S. had ordered him to strip naked and do knee bends each time he wanted to use the phone. He complained about the manner in which those searches had been conducted by prison officer M.S., alleging that the latter had tormented and humiliated him. On 16 October 2002 the Cieszyn District Prosecutor ( Prokurator Rejonowy ) discontinued the investigation into the allegations made by the applicant, finding that the prison officer had not breached his duties. The prosecutor established that the applicant had been transferred from Brzeg Prison because of his conflictual relations with other detainees. In Cieszyn Prison he had been placed in a special cell normally intended for persons detained pending trial, which offered him protection and isolated him from convicted prisoners. The prosecutor stated as follows: “In accordance with section 144 of the [2001 Ordinance of the Head of the Prison Service] [the applicant], as was the case for other detainees, was subjected to a personal check ( kontrola osobista ) when leaving the sleeping unit and after returning to it, as well as before individual meetings in the sleeping unit with the representatives of the prison authorities or other bodies. Moreover, [the applicant] was subjected to personal checks for security reasons each time he left or returned to his cell on the basis of a security instruction given to all prison officers working in the unit, namely, the “WWO Card” [ Wymagający Wzmocnionej Ochrony – detainee requiring reinforced protection]. In such cases the officers working in Unit 1A were obliged to perform, in a separate room, a meticulous check of Mr Czechowski and of his clothes and belongings. The control of Mr Czechowski consisted of checking the inside of his mouth, armpits and anus. For this purpose Mr Czechowski, after undressing, was required to open his mouth, hold up his hands and do a knee bend ( przysiad ).” The prosecutor confirmed that detainees were authorised to make one phone call per day for up to a maximum duration of six minutes and that the applicant had often used the phone. Thus, on each occasion, as well as each time he left the unit, he had been subjected to a personal check. The applicant appealed against the decision. On 9 May 2003 the Cieszyn District Court ( Sąd Rejonowy ) dismissed his appeal. The court established that the applicant's complaints about being hindered when using the phone had already been examined and had been found to be manifestly ill-founded. The court did not find any shortcomings in the procedure allowing the applicant to use the phone and considered that the internal prison rules had been complied with. Further, the court stated that the applicant's further allegation that an offence had been committed “had not been confirmed in the course of the investigation.” The court did not make any direct reference to the applicant's complaints about being subjected to personal checks before using the phone. 3.     The criminal proceedings On 4 September 2004, after the applicant was released from prison, the police conducted a search of the applicant's flat and seized, inter alia , several video tapes, CDs and DVDs and a personal computer. On 4 September 2004 the applicant was arrested by the police in connection with this set of criminal proceedings against him. On 7   September 2004 the Dąbrowa Górnicza District Court decided to remand the applicant in custody in view of the reasonable suspicion that he owned films containing child pornography and had shown such films to a minor. He was also charged with having threatened, in the presence of a police officer, to blow up an apartment block. On 1 December 2004 the District Court extended the applicant's detention finding that there was a risk that he would interfere with the proceedings and that the investigation was ongoing. An appeal by the applicant against that decision was dismissed on 5 January 2005. On 2 March 2005 the applicant's detention was further extended. The court reiterated the grounds given previously and relied on the likelihood that a severe sentence would be imposed on the applicant and on the complexity of the case. The court further considered that there was a risk of the applicant interfering with the proper course of the proceedings given the nature of the offences he had been charged with. On 20   April 2005 the Katowice Regional Court ( Sąd Okręgowy ) dismissed an appeal lodged by the applicant. On 20 May 2005 the applicant was indicted before the Dabrowa Gornicza District Court on three charges: owning pornographic films featuring scenes involving minors, showing them to a minor and uttering threats. On 24 May and 5 September 2005 the trial court extended the applicant's detention in almost identically reasoned decisions. The court considered that there had been no exceptional personal or health reason to release the applicant from detention or to change the preventive measure imposed on him. On the latter date the first hearing was held. Subsequently, the applicant's detention was extended on 9   December 2005, 21 February and 13 June 2006. In addition to the existence of a reasonable suspicion against the applicant that he had committed the offences the court relied on the risk that he would interfere with the course of the proceedings, in particular by influencing witnesses. The court also underlined that the probability that a severe sentence would be imposed on the applicant was high as he had been a recidivist offender. Appeals by the applicant against those decisions were dismissed. On 7 June 2006 the Katowice Regional Court dismissed a complaint lodged by the applicant on 28 February 2006 alleging a breach of the right to have his case heard within a reasonable time under the Law of 17   June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ). The court found that since the indictment the trial court had been diligent and had acted speedily. In particular the first hearing was held as soon as it had been practicable and the trial court held hearings once a month. On 31 August 2006 the District Court convicted the applicant of possession of pornographic films featuring scenes involving children under the age of 15, showing such films to a minor under the age of 15 and uttering threats. The court sentenced him to two   years and six months' imprisonment and ordered the seizure of the pornographic video tapes, CDs and DVDs as well as of his computer. Both the applicant and the prosecutor appealed against the judgment. On 17 November 2006 the Katowice Regional Court granted the applicant's request to attend the appeal hearing scheduled for 15   December 2006. On 30 March 2007 the Katowice Regional Court dismissed the appeals as manifestly ill-founded. The court also decided to release the applicant from detention. On 13 February 2008 the Supreme Court examined a cassation appeal lodged by the applicant. It acquitted the applicant of the charge of having uttered threats and remitted the remaining part of the judgment regarding the charges of possession of pornographic films and showing them to a minor to the lower court. The criminal proceedings regarding the last two charges are pending. B.     Relevant domestic law Under section 116 of the 1997 Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy) and rule 7 of the 1998 Rules on Serving Sentences ( Regulamin wykonywania kary pozbawienia wolności ), in force at the material time, a personal check of prisoners could be ordered if such a need arose. Their clothes, underwear and shoes, as well as their cells, could be searched. A personal check was permissible in particular when convicts or detainees left or returned to their cell. The Government submitted that the issue of personal search in the present case was also governed by the provisions of the unpublished Ordinance of the Head of the Prison Service. Section 143 stipulated that a strip search could be ordered in order to search for dangerous and prohibited items or in other justified circumstances. Section 144 provided that a strip search could be ordered, in particular, before leaving and after returning to the sleeping unit or work place. The relevant domestic law and practice concerning the imposition of   detention during judicial proceedings ( aresztowanie tymczasowe ), the   grounds for its extension, release from detention and rules governing other “preventive measures” ( środki zapobiegawcze ) are stated in the Court's judgments in the cases of Gołek v. Poland , no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v.   Poland , no. 17584/04, §§ 22-23, 4   August   2006. COMPLAINTS 1.     The applicant complained, without invoking any Article of the Convention, about his stay in the Cieszyn Prison in June and August 2002 and his unsuccessful attempt to institute the criminal proceedings against the prison authorities. 2.     The applicant complained under Article 5 of the Convention about the length of his detention on remand. 3.     The applicant further complained that in January 2002 the prison authorities seized video tapes that his mother had brought him while he was in the detention centre and which belonged to his late father. 4.     He also complained under Article 3 of the Convention that in June 2003 the prison authorities dismissed his requests for an extraordinary leave from prison for the purpose of visiting his stepfather in hospital and participating in administrative proceedings regarding his registration concerning a flat. The applicant also complained that the authorities had been eavesdropping on his phone calls and recording them. 5.     Finally, he complained about unfairness of the criminal proceedings which had been pending following the remittal by the Supreme Court 13   February 2008. THE LAW 1.     The applicant in general complained, without invoking any Article of the Convention, about his stay in Cieszyn Prison between 25 June and 9   August 2002 and that the criminal proceedings into his allegations of ill ‑ treatment had been discontinued. The Court considers that the complaint falls to be examined under Article   3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government submitted that the security measures to which the applicant had been subjected, in particular personal checks, had been necessary and had not amounted to treatment contrary to Article 3 of the Convention. The applicant was a dangerous convict and had been placed in a “protected cell” as he had been considered to require reinforced protection. One of the measures applied in respect of such category of detainees were personal checks for security reasons each time the detainee left or returned to his cell. The detainees were authorised to make one phone call per day from a coin telephone booth located in Subunit B; thus every time a detainee went to use a phone he had to be subjected to a strip search. The strip searches were carried out in a separate room and consisted of checking inside the applicant's mouth, armpits and anus. For this purpose the detainee, after undressing, was required to open his mouth, hold up his hands and do a knee bend. The Government also maintained that it had not been possible to establish whether the applicant had actually used the phone when detained in Cieszyn Prison and, if so, on how many occasions he had been subjected to strip searches. The applicant did not comment on the Government's submissions and failed to address the issue of security measures in the Cieszyn Prison in any of his numerous pleadings. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim. In considering whether particular treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, it may be noted that the absence of such a purpose does not conclusively rule out a finding of a violation (see Peers v. Greece , no. 28524/95, §§ 67-68, 74). Furthermore, the suffering and humiliation must in any event go beyond that inevitably connected with a given form of legitimate treatment or punishment, as in, for example, measures depriving persons of their liberty (see Kudła v. Poland [GC], no. 30210/96, §§93-94, ECHR 2000-XI; Valašinas v. Lithuania , no. 44558/98, §   102, ECHR 2001-VIII; and Jalloh v. Germany [GC], no. 54810/00, §   68, 11 July 2006). The Court has already had occasion to apply these principles in the context of strip and intimate personal checks (see Wainwright v. the United Kingdom , no.   12350/04, §   42, ECHR 2006-... and Wieser v. Austria , no. 2293/03, § 36, 22 February 2007). The Court reiterates that strip searches may be necessary on occasion to ensure prison security or prevent disorder or crime. Nevertheless, they must be conducted in an appropriate manner and where the manner in which a search is carried out has debasing elements which significantly aggravate the humiliation inevitably caused by such a procedure, the protection of Article 3 comes into play (see Iwańczuk v. Poland , no. 25196/94, § 59, 15   November 2001). Turning to the circumstances of the instant case, the Court firstly notes that the applicant made a complaint to the domestic authorities invoking the fact that he had been subjected to strip searches when using a phone. This complaint was finally dismissed by the District Court on 9 May 2003. However, in the proceedings before the Court the applicant failed to substantiate that the treatment exceeded the threshold of Article 3 of the Convention. In particular, the applicant did not specify on how many occasions he had been subjected to such personal checks. He did not claim before the Court that strip searches had been carried out in an inappropriate manner or that for any other reason they had not been compatible with Article   3 of the Convention (compare and contrast Iwańczuk , cited above, §§ 45-48). Finally, the applicant did not advance any arguments that the strip searches had not been necessary or had not been based on concrete security needs or his behaviour. Moreover, although it appears that the personal checks were one of the consequences of qualifying the applicant as “requiring reinforced protection” there is no evidence that he challenged such qualification. Regard being had to the above, the Court does not find it established that the treatment to which the applicant was actually subjected reached the minimum level of severity to fall within the ambit of Article 3 of the Convention. In the light of all the material in its possession, and taking into account the fact that the applicant remained in the Cieszyn Prison for the relatively short period of time of one month and 14 days, the Court considers that there is no appearance of a breach of Article 3 of the Convention. Finally, the Court notes that the applicant raised a general complaint that the investigation into his allegations of ill-treatment in Cieszyn Prison had been discontinued. However, he failed to submit any prima facie evidence pointing to the ineffectiveness or other shortcomings of this investigation. Consequently, the Court does not find it necessary to examine separately compliance with the procedural limb of Article 3 of the Convention in the present case. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article   5 §   3 of the Convention, which, in so far as relevant, reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The applicant's detention started on 4 September 2004, when he was arrested, and ended on 31 August 2006 when he was convicted at first instance. Accordingly, the applicant's detention lasted one year, eleven months and 16 days. The Government considered that the applicant's pre-trial detention satisfied the requirements of Article 5 § 3. It was justified by “relevant” and “sufficient” grounds. Those grounds were, in particular, the gravity of the charges against the applicant, who had been accused of possession of pornographic films and showing them to a minor. They also pointed out the risk of the applicant interfering with the proper course of the proceedings. The Government argued that the domestic authorities had shown due diligence, as required in cases against detained persons. The Court reiterates that the general principles regarding the right “to trial within a reasonable time or to release pending trial” guaranteed by Article 5 § 3 of the Convention, have been set out in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no.   30210/96, §   110 et seq., ECHR 2000 ‑ XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references). Turning to the circumstances of the instant case, the Court notes that in their detention decisions the authorities, in addition to reasonable suspicion concerning the applicant, relied principally on the severity of the penalty to which he was liable and the need to secure the proper conduct of the proceedings, given the risk that the applicant might tamper with evidence or otherwise obstruct the proceedings. The authorities also relied on the complexity of the case and on the fact that the applicant was a recidivist offender. The applicant was charged with owning pornographic films featuring scenes involving minors, showing them to a minor and uttering threats. It is to be noted that the judicial authorities had presumed the risk of pressure being exerted on witnesses or obstruction of the proceedings, basing themselves on the serious nature of the offences and that the victim had been a minor. The Court acknowledges that in view of the seriousness and the nature of the accusations against the applicant, the authorities could justifiably have considered that such an initial risk was established. Regard being had to the fact that the applicant had been charged with offences relating to child pornography and involving a minor the particular vulnerability of the victim must be seen as relevant (see Nowak v. Poland , no. 18390/02, § 36, 18 September 2007). The Court also notes that the applicant was a recidivist offender (see Wawrzelski v. Poland (dec.), no. 33444/02, 20   February 2007). Furthermore, according to the authorities, the likelihood of a severe sentence being imposed on the applicant created a presumption that the applicant would obstruct the proceedings. However, the Court would reiterate that, while the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the gravity of the charges cannot by itself justify long periods of pre-trial detention (see Michta v.   Poland , no. 13425/02, § 49, 4 May 2006). While all the above factors could justify even a relatively long period of detention, they did not give the domestic courts unlimited power to extend the measure (see Kopij v. Poland (dec.), no. 7676/06, 1 July 2008). Nevertheless, in the particular circumstances of the case, and in view of the fact that the applicant's detention lasted less then two years the Court considers that the grounds given for the applicant's pre-trial detention were “relevant” and “sufficient” to justify holding him in custody for the entire relevant period. It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings. The Court notes that there were no significant periods of inactivity on the part of the prosecution authorities and the trial court during the period to be taken into consideration. The investigation was completed by the Regional Prosecutor within a relatively short period of time and the trial court held many hearings. The Court observes that the same assessment of the speediness and effectiveness of the domestic courts was reached by the Katowice Regional Court which on 7 June 2006 dismissed the applicant's complaint under the 2004 Act. For these reasons, the Court considers that the domestic authorities displayed “special diligence” in the handling of the applicant's case. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 3.     The applicant further complained that in January 2002 the prison authorities seized video tapes that his mother had brought him while he was in the detention centre and which belonged to his late father. However, the Court observes that the events complained of took place in January 2002, thus more than six months before 26 June 2003, the date on which the application was submitted to the Court. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. 4.     The applicant further complained that in June 2003 the prison authorities rejected his requests for special prison leave for the purposes of visiting his stepfather in hospital and participating in administrative proceedings regarding his registration in respect of a flat. The applicant also complained that the authorities had been eavesdropping on his phone calls and recording them. Finally, he complained of the unfairness of the criminal proceedings. However, the Court notes that the complaints are totally unsubstantiated. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. In addition, in so far as the applicant complains about the unfairness of the criminal proceedings, the Court notes that they are pending following the remittal by the Supreme Court. It will thus be open to the applicant to appeal against the judgment and, subsequently, to lodge a cassation appeal with the Supreme Court. Accordingly, the applicant still can, and should, put the substance of the complaint before the domestic authorities and ask for appropriate relief. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar   President