CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 mars 2015

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POLAND   (Application no. 23692/09)             JUDGMENT       STRASBOURG   3 March 2015       FINAL   03/06/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of M.C. v. Poland, The European Court of Human Rights (Fourth Section), sitting as a   Chamber composed of:   Guido Raimondi, President,   Päivi Hirvelä,   George Nicolaou,   Nona Tsotsoria,   Zdravka Kalaydjieva,   Krzysztof Wojtyczek,   Faris Vehabović, judges, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 10 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 23692/09) 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 M.C. (“the applicant”), on 24   April 2009. The Chamber decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court. 2.     The applicant, who had been granted legal aid, was represented by Ms   M. Żurawska, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J.   Wołąsiewicz, succeeded by   Ms   J.   Chrzanowska, of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that he had been ill-treated by his fellow inmates in the absence of an appropriate action from the prison authorities and that no effective investigation had been carried out into his complaint of ill-treatment. 4.     On 4 July 2011 the application was communicated to the Government. 5.     Written submissions were received from the Helsinki Foundation for Human Rights in Warsaw, which had been granted leave by the President to intervene as a third party (Article 36   §   2 of the Convention and Rule   44   §   2). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1987 and currently lives in Skierniewice. A.     Criminal proceedings against the applicant 7.     On 5 January 2007 the applicant was arrested on suspicion of robbery. He was subsequently charged with three counts of similar offences. On   7   January 2007 the Warsaw District Court remanded the applicant in custody. 8.     On an unspecified later date the applicant was additionally charged with the sexual abuse of a minor and with having recorded a pornographic image of the minor (Article 200 § 1 of the Criminal Code). 9.     On 21 December 2007 the prosecution filed a bill of indictment with the Warsaw District Court comprising all the above charges. The courts gave a number of subsequent decisions prolonging the applicant’s detention on remand. 10.     On 14 August 2008 the Warsaw-Mokotów District Court convicted the applicant as charged and sentenced him to   seven years’ imprisonment. It   banned the applicant from any position, profession or activity related to the taking care of minors for a period of fifteen years. The court further imposed a   five ‑ year order preventing the applicant from frequenting any places or institutions connected with the care or education of minors. 11.     The applicant appealed. On 6 May 2009 the Warsaw Regional Court upheld the first-instance judgment. 12.     On 26 August 2009 the applicant’s legal-aid counsel informed the Regional Court that he had found no grounds to lodge a cassation appeal in the case. B.     The alleged ill-treatment of the applicant between 7 and 10   September 2007 and the prison inquiry 13.     On 24 August 2007 the applicant was admitted to the Warsaw ‑ Mokotów Detention Centre in order to undergo a psychiatric examination. He remained there until 24 October 2007. 14.     Between 31 August and 12 October 2007 the applicant was placed in the psychiatric wing of the Warsaw-Mokotów Remand Centre. 15.     According to the applicant, between 7 and 10 September 2007 (Friday afternoon until Monday morning) he was abused by two of his fellow inmates (T.G. and P.O.). They attempted to rape him with a broom stick and unsuccessfully ordered a third inmate (J.C.) to insert his penis in the applicant’s mouth. The inmates poured cold water over the applicant who was lying in bed, spat on him and scrubbed his head with a toilet brush. They further abused him verbally and threatened to kill him. 16.     The applicant attempted to alert the staff of the Remand Centre about the incident, but to no avail. In the morning of 10 September 2007 (Monday) he reported the incident to a doctor and was quickly moved to a   different cell. 17.     On 12 September 2007 the Governor of the Warsaw-Mokotów Remand Centre ordered an inquiry into the incident. On 20 September 2007 a report was presented to the Governor. The inquiry established that between 7 and 9   September 2007 the applicant had been ill-treated by two of his fellow inmates (T.G. and P.O.). The inquiry found that they had held his arms and had urged another inmate J.C. (suffering from a mental disability) to strip off in front of the applicant. The applicant had been threatened with sexual abuse. Furthermore, T.G. and P.O. had spat on the applicant, poured water over him, hit him with a broom stick and forced J.C. to touch his head with a toilet brush. They had threatened to kill the applicant if he reported the incident. 18.     The applicant was held in cell no. 6 which was equipped with a   CCTV camera and was located opposite the nurses’ room. 19.     As regards the causes of the incident, the inquiry established that the fellow inmates had probably learnt that the applicant had been suspected of the sexual abuse of a minor. Furthermore, it was established that the applicant had proposed a sexual act to inmate T.G. in exchange for food, had attempted to touch his genitals at night and to touch his bottom in the shower room. The applicant denied this. 20.     The inquiry found no shortcomings on the part of the prison guards and medical staff. Furthermore, it was established that the applicant had not reported the abuse immediately after it had occurred. Once he had reported the incident, the prison staff had taken swift action. 21.     On 12 September 2007 the applicant was seen by a doctor who established the presence of yellow-brown marks subsequent to haematomas on his legs. They caused impairment of the applicant’s health lasting not longer than seven days. 22.     The inquiry concluded that the applicant had been subjected to ill ‑ treatment. However, the ill-treatment had not been of a significant degree and had been mostly of a psychological nature. The Governor of the Remand Centre imposed on P.O. a disciplinary penalty of 1 month ban on shopping in a remand centre shop. He imposed on T.G. a disciplinary penalty of a 3 month ban on receiving food parcels. C.     Public prosecution 23.     On 10 September 2007 the applicant filed a criminal complaint with the Warsaw-Mokotów District Prosecution Office, alleging that he had been ill-treated by fellow inmates. 24.     On 28 September 2007, following the conclusions of the internal inquiry, the Governor of the Remand Centre notified the same Prosecution Office that an offence of ill-treatment had been committed. 25.     On 1 October 2007 the Warsaw ‑ Mokotów District Prosecutor transferred the case for inquiry to the Warsaw II   District Police Station (case   no. 1 Ds 907/07/V). On 31 October 2007 the police opened an inquiry into the alleged ill-treatment of a person deprived of liberty (Article 247 § 1 of the Criminal Code). The applicant was not notified about the opening of the inquiry. On 20 January 2008 he complained to a superior prosecutor about this fact. On 11 February 2008 the Warsaw Regional Prosecutor acknowledged in a decision that the applicant had not been notified about any decision taken by the District Prosecutor in respect of his criminal complaint filed on 10 September 2007. 26.     On 24 December 2007 the Warsaw ‑ Mokotów District Junior Prosecutor ( asesor prokuratury rejonowej ) decided to open an investigation into the allegation of the applicant’s ill-treatment and sexual abuse (Articles   207 § 1 and 197 § 2 of the Criminal Code respectively) in the framework of the original investigation. He transferred the case to the Warsaw II   District Police Station for further investigation and notified the applicant thereof. 27.     On 21 March 2008 the police interviewed D.D., a prison guard who was on duty on 9 September 2007. He stated that no prisoner from cell no. 6 had complained to him about ill-treatment and that he had not noticed anything on the CCTV monitoring. 28.     A.S., who was the applicant’s fellow inmate at the material time, was interviewed by the police on 27 March 2008. He stated that T.G., P.O. and J.C. had ill-treated the applicant. They had held the applicant and J.C. had moved his penis near the applicant’s head. According to A.S., P.O. had also tried to rape the applicant with a broom stick. 29.     T.G. and P.O. were interviewed by the police on 27 and 28 March 2008 respectively. They stated that they had teased the applicant because he had not washed himself, had funny ears and had been making indecent proposals to T.G. They denied that they had ill-treated the applicant. 30.     On 28 March 2008 the Warsaw II District Police Station discontinued the investigation into the allegation of physical and psychological ill-treatment of the applicant who had been deprived of liberty (Article 247 § 1 of the CC). It found that there was insufficient evidence to justify the suspicion that a criminal offence had been committed ( brak danych dostatecznie uzasadniających podejrzenie popełnienia czynu zabronionego ). The reasons for the discontinuation read as follows: “In the course of the investigation carried out in the above case concerning an offence specified in article 247 § 1 CC witnesses to the event were heard, namely A.S. and the employees of the Remand Centre in respect of the events alleged by M.C. [the   applicant]. P.O. and T.G. were also heard as witnesses and they commented on the issues alleged by M.C. [the applicant] in his complaint; however they denied that they had ill-treated the latter. A number of other acts were also undertaken; however they did not yield sufficient information to justify the suspicion that a criminal offence had been committed ...” 31.     On 31 March 2008 the Warsaw-Mokotów District Junior Prosecutor confirmed the decision to discontinue the investigation. 32.     The applicant appealed to the District Court. He claimed that the prosecutor had disregarded evidence indicating that he had been ill-treated, namely the conclusions of the inquiry carried out by the Governor of the Remand Centre, statements of the direct witness, A.S., and his injuries. He also pointed out that the prosecutor had failed to examine evidence recorded by CCTV. In a supplement to his appeal, the applicant asserted that the reason for his abuse was the fact that he had been charged with a sexual offence involving a minor. He also denied that he had made indecent proposals to T.G. 33.     On 22 October 2008 the Warsaw-Mokotów District Court upheld the decision to discontinue the investigation. It confirmed the prosecutor’s finding that there had been insufficient evidence warranting the suspicion that an offence under Article 247 § 1 of the CC had been committed. Regardless of the reasons for the discontinuation, the court noted that the alleged acts could not be classified as ill-treatment within the meaning of Article 247 § 1 of the CC since this provision required a series of repeated acts which caused significant physical pain or moral suffering to the victim. 34.     The court found that the alleged treatment between 7 and 10   September 2007 had neither been lengthy nor continuous. Moreover, no serious injuries had been detected except for bruising falling under Article 157 § 2 of the CC, and the actions of the perpetrators had been limited to acts degrading the applicant. Those acts fell within the scope of privately ‑ prosecutable offences specified in Article 217 § 1 of the CC (breach of personal inviolability) or 157 § 2 of the CC (causing light bodily injuries) but could not be classified as ill-treatment. Lastly, the court noted that the inmates had been disciplined and that the applicant could file a private bill of indictment against them. The decision was served on the applicant’s lawyer on 31 October 2008. 35.     In January 2009 the applicant filed a criminal complaint, alleging that the penitentiary officials had committed an offence of neglecting their duties under Article 231 of the Criminal Code. On 29   January 2009 the applicant was interviewed by the Warsaw-Mokotów District Prosecutor. On the same day the prosecutor refused to open an investigation in the case. 36.     Following the notification of the application to the respondent Government, on 3 October 2011 the Warsaw-Mokotów District Prosecutor resumed the criminal investigation. The prosecutor had also regard to the findings made in the civil proceedings instituted by the applicant against the State Treasury and the perpetrators of the abuse (see paragraphs 45-48 below). 37.     On 6 April 2012 the prosecutor charged P.O. and T.G. with the commission of an offence under Article 247 § 1 of the Criminal Code in that they had physically and psychologically ill-treated the applicant between 7 and 10 September 2007. 38.     On 29 June 2012 the District Prosecutor discontinued the investigation against the perpetrators of the alleged abuse on the ground of ne bis in idem , i.e. that criminal proceedings in respect of the same acts against the same persons had been finally terminated (Article 17 § 1 (7) of the Code of Criminal Procedure). He referred to the decision of the Warsaw-Mokotów District Court of 4 November 2010 which finally terminated the proceedings against P.O. and T.G. initiated by the applicant’s private bill of indictment (see paragraph 43 below). 39.     The prosecutor further found that no criminal offence had been committed by the employees of the detention centre in respect of their alleged negligence in supervising the inmates of the impugned cell. He noted that the cell had been monitored by the CCTV but no recordings had been made. Furthermore, the impugned ill-treatment consisted of a few individual acts that took place over the period of less than four days. The prosecutor noted that the applicant informed his warden about the abuse only on the fourth day (10 September 2007). Immediately after that he was transferred to another cell and provided with medical care. He concluded that at the material time the employees of the remand centre had no grounds to assume that the applicant had been subjected to physical or psychological violence because neither the applicant nor other inmates had reported such a   fact to them. The prosecutor accordingly discontinued the investigation in this part as well. The applicant’s lawyer appealed. 40.     On 17 January 2013 the Warsaw-Mokotów District Court upheld the prosecutor’s decision. No further appeal lay against that decision. D.     Private prosecution 41.     On 12 January 2009 the applicant filed a private bill of indictment against P.O. and T.G. with the Warsaw-Mokotów District Court. He alleged that they had physically and psychologically ill-treated him between 7 and 10 September 2007. The applicant accused them of having breached his personal inviolability under Article 217 § 1 of the Criminal Code and of having caused him light bodily injuries under Article 157 § 2 of the Criminal Code. The court appointed a legal-aid lawyer for the applicant. 42.     On 24 April 2009 the Warsaw-Mokotów District Court discontinued the proceedings against P.O. and T.G. on the ground of ne bis in idem (Article 17 § 1 (7) of the Code of Criminal Procedure). It held that a different legal classification of the same acts adopted by the prosecutor or by a private prosecutor had been irrelevant in the case of discontinuation based on the lack of sufficient evidence of a criminal offence. This decision was quashed on appeal. In two subsequent decisions, the Warsaw-Mokotów District Court discontinued the private prosecution proceedings on the ground of the expiry of the limitation period and on the ground of ne   bis   in   idem respectively. These two decisions were quashed on appeal. 43.     In the final and fourth decision of 4 November 2010 the Warsaw ‑ Mokotów District Court discontinued the proceedings on the basis of the expiry of the limitation period (Article 17 § 1 (6) of the Code of Criminal Procedure). On 22 February 2011 the Warsaw Regional Court upheld the District Court’s decision to discontinue the proceedings on that ground. E.     Civil proceedings related to the applicant’s allegations of abuse 44.     In relation to the alleged ill-treatment the applicant sued the State Treasury (the relevant detention centre) and the two alleged perpetrators. 45.     In May 2009 the applicant brought a civil action against the State Treasury for infringement of his personal rights (health, privacy, inviolability and dignity) under Articles 24 and 448 of the Civil Code. He   sought, inter alia, 80,000 PLN (20,000 EUR) in compensation for the infringement, claiming that the defendant had failed to ensure his safety in detention. 46.     The case was heard by the Warsaw Regional Court which established the following facts. The applicant was remanded in custody on 9   January 2007. In August 2007 he was admitted to the Warsaw ‑ Mokotów Detention Centre in order to undergo a psychiatric examination (obserwacja   psychiatryczna). After a certain delay, the applicant was placed in a   9 ‑ person cell in the psychiatric wing of the Remand Centre. It was so ‑ called “observation cell” for detainees who just arrived in the psychiatric wing and which remained under particular supervision. The cell was located opposite the nurses’ room and was equipped with a CCTV camera which enabled the warden to monitor the situation in the cell. The situation in the cell was normal until the arrival of inmate P.O. From this time, P.O. together with inmate T.G. started abusing the applicant. They poured cold water over him, hit him with a brush stick, and struck him in the face with a mop causing bruises, haematomas and abrasions. P.O. and T.G. told the applicant that a person like him had no rights and ordered him to clean the cell, sit in the corner and follow their orders. They also poured water on the applicant’s bed, his blanket and tattooed a dot on his left arm. Furthermore, P.O. and T.G. held the applicant’s arms and using the mental disability of another inmate (J.C.) persuaded the latter to show his penis just in front of the applicant’s face and tried to force the applicant to have oral sex. These events began on Friday 7 September 2007 and lasted until Monday 10   September 2007. In the course of check-ups carried during this period of time the applicant requested both a doctor on duty and a warden on duty to speak to them urgently and in private. The doctor on duty refused to speak to the applicant and advised him to see his doctor on Monday. The warden also refused to speak to the applicant. On Monday morning another inmate from the cell, A.S. reported to the doctor the events of the last weekend. The applicant was immediately called to the doctor and recounted him the events. The applicant was then quickly moved to another 3-person cell which was occupied by two detainees charged with offences similar to those of the applicant’s. 47.     On 3 March 2010 the Warsaw Regional Court gave judgment. The court held that the personal rights of the applicant had been infringed. The State Treasury did not refute this fact but argued that the internal inquiry had not showed any negligence on the part of the prison guards or medical personnel and that the applicant had allegedly not immediately reported the events. The court held that every person detained in prison or remand centre should be treated in a manner respecting his or her dignity. However, in the applicant’s case, his dignity was violated by allowing his inmates to subject him to degrading treatment over the period of three days while the wardens failed to react to these events. The events occurred notwithstanding the fact that the applicant had been placed in an “observation cell” which was designed to monitor and react to inappropriate behaviour of inmates. In these circumstances, the State Treasury was liable for the infringement of the applicant’s personal rights resulting from the negligence of the employees of the remand centre since despite the CCTV monitoring of the cell, the applicant’s requests for a private conversation, his wet bed and his external injuries none of the wardens or members of the medical personnel had reacted. The court found unproven the State Treasury’s assertion that the applicant had not informed the personnel about his abuse. The State Treasury was under a duty to ensure the applicant’s safety in the cell, in particular as it disposed of the relevant instruments to this effect such as the CCTV monitoring. 48.     With regard to the applicant’s claim for non-pecuniary damages, the court considered it excessive and disproportionate to the degree of the infringement of his personal rights. It noted that the award of non-pecuniary damage should on one hand constitute a significant hardship for a person responsible for the infringement and afford satisfaction to the claimant, but on the other hand it could not lead to a significant enrichment of the claimant. In the court’s view, the award of the full amount sought by the applicant would have led to his significant enrichment given his personal and professional achievements so far. The court awarded the applicant 3,000   PLN (EUR 750) which it considered adequate, having regard, inter   alia, to the degree of the harm, the duration of the ill-treatment, the applicant’s personal circumstances etc. It noted that the applicant had claimed to have suffered a psychological harm but did not substantiate this claim. 49.     The applicant’s lawyer appealed, seeking higher award. He argued that PLN 3,000 was not a significant amount for the defendant. On   12   December 2010 the Warsaw Court of Appeal upheld the first ‑ instance judgment. No further appeal lay against the judgment. 50.     In the civil proceedings against the first of the alleged abusers (T.G.) the parties settled the case. Under the terms of the settlement T.G. agreed to pay 1,250 PLN (about 300 EUR) to the applicant. 51.     In the civil case against the second of the alleged abusers (P.O.) the courts found for the applicant. On 17 July 2012 the Warsaw-Mokotów District Court held the P.O. had infringed the personal rights of the applicant (his dignity, health and personal inviolability) and awarded him 2,500 PLN in compensation (EUR 600). On 20 March 2013 the Warsaw Court of Appeal upheld this judgment which subsequently became final. F.     Conditions of the applicant’s detention 52.     On 8 January 2007 the applicant was placed in the Warsaw ‑ Białołęka Detention Centre. On 24 August 2007 he was admitted to the Warsaw ‑ Mokotów Detention Centre in order to undergo a psychiatric examination. On 24 October 2007 he returned to the Warsaw-Białołęka Detention Centre. Subsequently, on 21 November 2007 he was transferred to the Warsaw-Służewiec Detention Centre and on 1 October 2008 he returned to the Warsaw-Białołęka Detention Centre. 53.     In his appeal of 3 December 2007 against a prolongation of the applicant’s detention, his lawyer informed the courts that the applicant had been assaulted by a prison guard in the Warsaw-Białołęka Remand Centre on 12 August 2007. On 28 December 2007 the Warsaw District Court requested the prosecution service to provide information about the follow ‑ up to the above complaint. The applicant submitted no further information in this respect. 54.     On 25 February 2008 the Warsaw District Court refused to lift the applicant’s detention on remand. It noted that in light of the information obtained from the Warsaw-Służewiec Remand Centre the applicant’s continued detention did not entail a risk to his life or health. 55.     On 14 May 2008 the Warsaw District Court requested the Governor of the Warsaw-Służewiec Detention Centre to comment on the applicant’s complaints concerning psychological and physical ill-treatment by his fellow inmates and the prison staff, unfair imposition of disciplinary penalties, including placement in solitary confinement, refusal to allow him to consult a psychologist, and the lack of sufficient food and hygiene products. The court also requested the Governor to provide information on whether the applicant had been placed in a cell with smokers. 56.     On 6 June 2008 the Governor replied. He stated that the applicant had not been subjected to ill-treatment and that the administration of the Remand Centre had made the necessary efforts to ensure his safety. Between 22   February and 28 May 2008 the applicant had been disciplined for various breaches of the prison regulations, inter alia , refusal to comply with orders or interference with the execution of orders, refusal to eat meals, aggressive behaviour and possession of tablets. The applicant had numerous consultations with a prison psychologist and a psychiatrist. He received three meals per day in accordance with the relevant regulations as well as necessary hygiene products. The applicant was placed in a non-smoking cell; however in the past he had provided contradictory information as to whether he minded being placed in a smoking cell. 57.     On 7 April 2008 the Warsaw District Court extended the applicant’s detention until 4 June 2008. Having regard to the information obtained from the Warsaw-Służewiec Remand Centre, the court found that that establishment could ensure the applicant’s safety. The court made a similar finding in its decisions of 10 July and 8 August 2008. 58.     In its decision of 2 July 2008 the Warsaw Regional Court dismissed as unfounded the applicant’s allegations in respect of a risk of ill-treatment from other inmates in the Warsaw-Służewiec Remand Centre. In its decision of 12   August 2008 the Regional Court noted that following reported assaults on the applicant by other prisoners the administration of the remand centre had placed him in a single cell in order to ensure his safety. 59.     On 10 July 2008 the Warsaw District Court refused the applicant’s request to release him in connection with his grandfather’s death. On   12   August 2008 the Warsaw Regional Court upheld that decision. 60.     On an unspecified date the applicant complained to the Warsaw District Court that his garden house had been burgled in December 2008. On 15   January 2009 the court requested the Wawer District Police to verify the applicant’s information. 61.     The Governor of the Warsaw-Białołęka Remand Centre in his report of February 2009 concerning the applicant stated that inmates housed with the applicant had to be properly selected in view of the nature of the applicant’s offence. 62.     On 26 February 2009 the Warsaw District Court refused to release the applicant in order to take care of his ill grandmother. On 11 March 2009 the Warsaw Regional Court upheld that decision. 63.     In May 2009 the applicant complained about the conditions at the Warsaw-Białołęka Detention Centre, including the lack of education and sports activities, no possibility to attend religious services, lack of hygiene products and hot water in the cell, power cuts and shared showers. On   25   May 2009 the Governor of the Detention Centre informed the Warsaw-Praga Regional Court that the complaints were ill-founded. The applicant had regular access to various activities and religious services. The penitentiary establishments were not required to provide hot water in cells. Power cuts had been imposed by the Inspectorate of the Prison Service in order to make savings. 64.     In reply to his other four complaints, the Governor informed the applicant that the living standards in his cell were adequate and in accordance with the relevant regulations. As to his placement in a cell with smokers, the applicant himself had been inconsistent as to whether he preferred a smoking or a non-smoking cell. As regards the strip search of the applicant and his fellow inmates on 27 April 2009, the Governor informed the applicant that it had been carried out in accordance with the law and with due respect to the prisoners’ dignity. On 21 July 2009 the Warsaw Regional Inspectorate upheld the Governor’s findings. 65.     On an unspecified date the applicant requested the court to grant him leave from prison in order to take care of his ill grandmother, who was his only relative. He also invoked the need to seek treatment for his epilepsy. On 14 August 2009 the Warsaw-Praga Regional Court, having regard to a   report of the court officer, refused his request. It found that the applicant’s grandmother had been under the constant care of doctors, had access to social services and the applicant’s assistance had not been necessary. Further, the court found that the applicant’s illness could be treated in prison. On 6 October 2009 the Warsaw Court of Appeal upheld that decision. 66.     On 21 December 2009 the applicant complained to the Governor of the Warsaw-Białołęka Detention Centre about, inter alia , the quality of medical care provided in prison. On 21 January 2010 the Governor dismissed his complaints. He noted that the applicant had been regularly seen by doctors. At his request he had been tested for HIV. The applicant was treated for epilepsy and his condition was stable. He had had an electroencephalography in February 2009 and in view of his stable condition there was no need for another similar examination. II.     RELEVANT DOMESTIC LAW A.     The Code of Execution of Criminal Sentences 67.     Article 108 § 1 of the Code of Execution of Criminal Sentences provides as follows: “The administration of the penitentiary institution has an obligation to undertake adequate measures in order to ensure the personal safety of the convicts serving their sentence”. A similar obligation is applicable with regard to remand prisoners (cf.   Article 209 of the Code of Execution of Criminal Sentences). B.     The Criminal Code 68.     Article 247 § 1 of the Criminal Code provides as follows: “Anyone who ill-treats physically or psychologically a person deprived of his or her liberty shall be liable to a term of imprisonment ranging from 3 months to 5 years.” III.     RELEVANT COUNCIL OF EUROPE INSTRUMENTS A.     European Prison Rules 69.     Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules provides in its relevant part: Allocation and accommodation “17.2   Allocation shall also take into account the requirements of continuing criminal investigations, safety and security and the need to provide appropriate regimes for all prisoners. 18.6   Accommodation shall only be shared if it is suitable for this purpose and shall be occupied by prisoners suitable to associate with each other. 18.8   In deciding to accommodate prisoners in particular prisons or in particular sections of a prison due account shall be taken of the need to detain: a.   untried prisoners separately from sentenced prisoners; b.   male prisoners separately from females; and c.   young adult prisoners separately from older prisoners . Safety 52.1   As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves. 52.2   Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety . 52.4   It shall be possible for prisoners to contact staff at all times, including during the night.” B.     The European Committee for the Prevention of Torture (“CPT”) 70.     The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) in its 11 th General Report on the CPT’s activities [CPT/Inf (2001) 16] stated as follows on the issue of inter-prisoner violence: “ Inter-prisoner violence 27. The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks. (...) Prisoners suspected or convicted of sexual offences are at a particularly high risk of being assaulted by other prisoners. Preventing such acts will always pose a difficult challenge. ...” THE LAW I.     ALLEGED VIOLATION OF THE SUBSTANTIVE ASPECT OF ARTICLE 3 OF THE CONVENTION 71.     The applicant complained that between 7 and 10 September 2007 he had been physically and psychologically ill-treated by his fellow inmates at the Warsaw-Mokotów Remand Centre and that the administration had not ensured his safety. He did not rely on any provision of the Convention. The Court considers that this 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.” A.     The applicant’s victim status 1.     The Government’s submissions 72.     The Government argued that the applicant could no longer claim to be a victim of a violation of Article 3. They maintained that the relevant case-law requirements on the loss of victim status had been met in the applicant’s case and therefore his victim status was effectively removed by the outcome of the domestic civil proceedings. The applicant ceased to be a victim as a result of the decisions of the domestic courts which had acknowledged a violation of his personal rights as well as awarded him appropriate compensation. The Government referred first to the Warsaw Regional Court’s judgment of 3 March 2010 which had expressly acknowledged a violation of the applicant’s personal rights and held that the applicant’s ill-treatment had resulted from the negligence of the penitentiary personnel. They implied that the amount awarded to the applicant was adequate in the circumstances of the case. They further referred to the outcome of two civil cases against P.O. and T.G. 73.     In the Government’s view, the results of the civil proceedings constituted a sufficient redress for the applicant. Notwithstanding the discontinuation of the criminal proceedings on procedural grounds, the violation of the applicant’s rights were acknowledged by the civil courts and sufficiently remedied. With regard to the amount of compensation awarded in the proceedings against the State Treasury, the Government indicated that the award of PLN 3,000 could not be considered inadequate in comparison with the applicant’s claims against the direct offenders since the State Treasury’s liability was only indirect. The applicant assessed his claim against T.G. and P.O. at PLN 3,750 and thus claiming PLN 80,000 from the State Treasury could not be regarded as reasonable. 74.     The Government admitted that the Court’s awards in cases of a violation of Article 3 were often higher, but they emphasised that the damage sustained by the applicant had been caused by private individuals and not by the authorities. For this reason, the applicant’s case had to be distinguished from cases of Gäfgen v. Germany [GC], Shilbergs v.   Russia , and Ciorap v.   Moldova (no. 2) which concerned ill-treatment by the State agents whereas the present case concerned primarily the actions of the fellow inmates. 75.     The Government concluded that the application was inadmissible ratione personae since the applicant lost his victim status within the meaning of Article 34 of the Convention. 2.     The applicant’s submissions 76.     The applicant contested the Government’s view that he had lost his victim status in connection with the Warsaw Regional Court’s judgment. He stressed that it was impossible to answer the question of whether he had lost his initial status of a victim of a breach of Article 3 of the Convention without having first established how the applicant’s case had been treated by the authorities in the context of their positive obligations under Article 3 (cf. Gäfgen v. Germany [GC], § 116). In his view, these positive obligations were not respected. Defects of the investigation were not rectified in the course of the private prosecution proceedings or civil proceedings against the State Treasury and against P.O. and T.G. Accordingly, he could still claim to be a victim of the alleged violation. He found it incomprehensible that in the private prosecution proceedings the Warsaw Regional Court quashed the decisions of the lower court four times, yet the lower court eventually decided that the private prosecution was time-barred. 77.     The applicant argued that the compensation awarded by the Warsaw Regional Court’s judgment of 3 March 2010 did not constitute a sufficient redress. He maintained that only a prompt and effective investigation would have satisfied the requirements of Articles 3 and 13. In addition, the outcome of the criminal and civil proceedings in his case did not have a sufficient deterrent effect on the individuals concerned. 3.     The Court’s assessment 78.     In the present case the Court considers that the question whether the remedy provided by the national courts was sufficient, so that the applicant can no longer claim to be a victim of a violation of the substantive aspect of Article 3, is inextricably linked to the merits of this complaint. It therefore joins the Government’s preliminary objection to the merits and will determine, first, whether, and to what extent, the applicant’s rights under the substantive aspect of Article 3 have been violated (see Ciorap v. Moldova (no. 2) , no. 7481/06, § 19, 20 July 2010). B.     Merits 1.     The applicant’s submissions 79.     The applicant argued that he had been subjected to inhuman and degrading treatment in breach of Article 3. The medical evidence and the witness statements demonstrated that he had been subjected to treatment prohibited by Article 3. His ill-treatment was premeditated, applied for over three days, caused bodily injuries and intense moral suffering. The applicant felt suicidal and deprived of a sense of personal security. His requests and calls to help remained unanswered. The doctor on duty in reply to the applicant’s request informed him to wait until Monday. The behaviour of the inmates accepted by the prison administration was aimed at intimidating the applicant. The applicant received threats to his life from the inmates. The prison guards and doctors did not fulfil their duty of surveillance. The applicant felt helpless knowing that the cell was monitored but the guards did not react to the ill-treatment by inmates. 80.     The applicant averred that the prison authorities had not taken all reasonably expected steps to protect him, having regard to the fact that he had been charged with a sexual abuse of a minor. The authorities were required but failed to organise their penitentiary system in a manner ensuring respect for the dignity of detainees. The applicant submitted on the account of the charge against him there was a conspiracy of silence among fellow inmates and the prison administration justifying use of violence against prisoners like him. The authorities could have foreseen that the charges against the applicant would have influenced the behaviour of other inmates and made it necessary to keep the applicant under close surveillance. Instead, they placed him in a cell with eight other inmates, including dangerous prisoners like T.G. (convicted three times in the past). The guards did not check the situation in the applicant’s cell. They disregarded the applicant’s cries for help and did not come to his aid. The doctor on duty did not wish to talk to the applicant and advised him to wait until Monday. 2.     The Government’s submissions 81.     The Government refrained from stating their position on the merits of this complaint. 3.     The third-party intervener’s comments 82.     The Helsinki Foundation for Human Rights stressed that there were certain groups of prisoners, such as those convicted of causing harm to children, who were likely to be exposed to violence from other prisoners. The authorities were under a general duty to ensure humane treatment and respect for the dignity of all persons deprived of their liberty. The Foundation referred to the international standards regarding prisoners’ safety such as the European Prison Rules and the standards elaborated by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”). According to the CPT, the key component of the management of inter-prisoner relations was a careful assessment, classification and cell allocation of individual prisoners within the population. 83.     The Polish law contained regulations aimed at ensuring safety of the prisoners. The Code of Execution of Criminal Sentences provided that the prison administration should take appropriate steps to ensure personal safety of prisoners. It included, inter alia , rules on the classification of prisoners. A similar obligation to ensure security in penitentiary establishments was explicitly mentioned in the Prison Service Act. In addition, obligations related to ensuring the safety of prisoners remained under the supervision of a penitentiary judge. The Helsinki Foundation submitted that it was a long established practice to extend special measures of protection to perpetrators of crimes against sexual freedom of a minor. Such prisoners were segregated from other prisoners and subjected to frequent checks. 84.     The third-party intervener noted that protection against sexual abuse and inter-prisoner violence in penitentiary establishments was hampered by the problem of overcrowding. Another issue was the lack of reliable data concerning the cases of rape and serious ill-treatment by other prisoners. This prevented the Foundation from assessing whether there was a systemic problem with the lack of proper protection against inter-prisoner violence. The Helsinki Foundation produced the relevant statistical data for the years 2006-2010 and claimed that they did not reflect the actual scale of the inter-prisoner violence. One reason for this might be the unwillingness of prisoners to report cases of inter-prisoner violence to the penitentiary administration. Lastly, the third-party intervener underlined the importance of the procedural obligation under Article 3 of the Convention to investigate cases of violent incidents between prisoners. 4.     The Court’s assessment (a)     Assessment of the severity of the ill-treatment 85.     The applicant complained that the ill-treatment to which he had been subjected was such as to fall under the protection of Article 3 of the Convention. The Court reiterates that for the treatment to fall within the scope of Article 3 of the Convention it must attain a minimum level of severity. The assessment of this minimum is, by nature, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, amongst many other authorities, Soering v. the United Kingdom , 7 July 1989, § 100, Series   A no. 161). 86.     The facts related to the applicant’s ill-treatment by his fellow inmates were established by the Warsaw Regional Court in its judgment of 3 March 2010 (see paragraph 46 above). That court found that inmates P.O. and T.G. had ill-treated the applicant between 7 and 10 September 2007. They, inter alia , poured cold water on the applicant’s and his bedding and hit him with various objects causing the applicant’s bruises, haematomas and abrasions. They also persuaded an inmate suffering