CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 mai 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s8FA62C20 { margin-top:0pt; margin-bottom:0pt; text-indent:21.3pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sAD4C9BD2 { margin-top:0pt; margin-left:50.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s9671CAED { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt } .s2D6EFD2E { margin-top:0pt; margin-left:50.2pt; margin-bottom:0pt }     Communicated on 12 May 2014   FOURTH SECTION Application no. 6068/12 A.K. against Poland lodged on 4 January 2012 STATEMENT OF FACTS The applicant, Mr A.K., is a French national, who was born in 1972 in Katowice, Poland and is currently detained in Moissy Cramayel, France. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The period of the applicant’s detention in Gliwice Remand Centre From 20 March 2008 to 11 June 2010 the applicant was detained on remand in Gliwice Remand Centre. (a)     The conditions of the applicant’s detention in Gliwice Remand Centre The applicant submitted that during his detention in the above-mentioned facility he had been held in cells in which the floor space per person had been less than the statutory minimum standard of 3 m 2 . The applicant further submitted that there had been no lighting in the cells between 8.00 am and 10.00 am and no lighting in a toilet area after 10.00 pm; that the cells had been dirty, walls had been covered in mould and there had been no access to hot water. The applicant was allowed a one-hour outdoors exercise every day. As regards the medical condition the applicant submits that he had been diagnosed with HCV in 1995 and in 2003 had been treated with interferon during his stay in France. However, he submits that medical treatment in Gliwice Remand Centre was inadequate due to the fact that he was not treated by a specialist. The applicant submitted that CCTV cameras had been installed in communal showers in violation of his privacy. The shower had been allowed once a week for five minutes and the shower area had not provided for any privacy, namely shower cabins or curtains. (b)     Civil proceedings for infringement of personal rights (case no: IC 430/09; V ACa 222/10; V CSK 510/10) On an unspecified date the applicant lodged a civil action against the State Treasury and Gliwice Remand Centre seeking 100,000   Polish zlotys (PLN) (approximately EUR 25,000) in compensation for violation of his personal rights on account of his detention in overcrowded cells, inadequate medical care and CCTV cameras being installed in shower facilities in the above-mentioned penitentiary. On 17 February 2010 the Gliwice Regional Court ( Sąd Okręgowy ) dismissed the applicant’s claim. The Regional Court examined the applicant’s claim under Articles   23 and 24 of the Civil Code ( Kodeks cywilny ) in conjunction with Article   448 of that code and further under Article 248 of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ). The court established that between May 2008 and April 2009 the applicant had been detained in five different cells in which the floor space per person had been below 3   m 2 for a   period of eight months and two weeks. The space per person ranged between 2.03 and 2.73 m 2 . The court, nonetheless, found the overcrowding lawful in the light of Article 248 of the Code of Execution of Criminal Sentences. The domestic court further noted that, by the virtue of Article   73(a) of the same Code, the penitentiaries had been permitted to install CCTV cameras on their premises. In the Regional Court’s opinion, the applicant received the necessary medical care during his detention. He had unrestricted access to prison doctor, had blood tests every three months, had been treated for hemorrhoids and received psychiatric attention. Moreover, he was ordered special diet for prisoners with liver diseases but did not receive any special medication. The fact that his medical condition did not deteriorate during his detention justified lack of further, specialist treatment. In the first-instance court’s view, the fact that the applicant was detained in overcrowding cells was not of its own sufficient to establish inhuman or degrading treatment. The presence of other elements aggravating the applicant’s detention (such as, for instance, poor sanitary conditions, lack of hygiene, deprivation of sleep, poor or strong lighting, inadequate ventilation), in addition to overcrowding, could have indicated violation of the applicant’s personal rights. According to the domestic court such elements did not occur since the applicant had not complained about them. The Regional Court concluded that neither the lack of intimacy in the shower facilities nor the alleged lack of adequate medical care violated the applicant’s personal rights under Article 23 of the Civil Code. The applicant appealed. On 29 July 2010 the Katowice Court of Appeal dismissed the applicant’s appeal and fully confirmed the findings of the first ‑ instance court. The applicant lodged a cassation appeal. On 18 August 2011 the Supreme Court ( Sąd Najwyższy ) refused to examine it. 2.     The period of the applicant’s detention in Wojkowice Prison From 11 June 2010 to 23 February 2011 and from 15   June 2011 to 25   August 2011 the applicant was detained on remand in Wojkowice Prison. The applicant filed two complaints regarding the conditions of his detention with the administration of Wojkowice Prison. Firstly, he complained about the presence of a prison guard during a medical examination. He addressed the same complaint to the Ombudsman. Secondly, he complained about the lack of hot water in the cells; about having only one shower per week; about a prison guard being present during medical examinations and about not having access to a phone. On 8 July 2010 the Ombudsman informed the applicant that the issue of the presence of a prison guard during a prisoner’s medical examination had been previously addressed to the Ministry of Justice. The issue was not fully resolved and as such it would be considered by the Ombudsman again. On 26 July 2010 the applicant was informed by the administration of the prison that a prison guard had been present during a medical examination for security reasons based on Article 115 § 7 of the Code of Execution of Criminal Sentences. On 13 October 2011 the governor of the prison informed the applicant that there had been no hot running water in the cells due to technical issues; that the prisoners had had only one shower per week in accordance with the regulations in force; that a prison guard had been present during medical check as prescribed by the prison regulations and that the applicant had had no access to a phone as he had been detained on remand. B.     Relevant domestic law and practice 1.     A detailed description of the relevant domestic law and practice governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski   v.   Poland (no.   17599/05), adopted on 22 October 2009 (see   §§   75 ‑ 85 and §§   45 ‑ 88   respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no.   52070/08) adopted on 12   October 2010 (see §§ 25-54); 2.     Article 115 §7 of the Code of Execution of Criminal Sentences reads as follows: The prisoner serving a prison sentence in a closed penitentiary facility receives medical treatment in the presence of non-medical personnel; medical treatment of the prisoner may be conducted in absence of the non-medical personnel upon request of either the non-medical officer or the employee of the medical facility. (Skazanemu odbywającemu karę pozbawienia wolności w zakładzie karnym typu zamkniętego świadczenia zdrowotne są udzielane w obecności funkcjonariusza niewykonującego zawodu medycznego; na wniosek funkcjonariusza lub pracownika podmiotu leczniczego dla osób pozbawionych wolności, świadczenia zdrowotne mogą być udzielane skazanemu bez obecności funkcjonariusza niewykonującego zawodu medycznego). 3.     The Constitutional Court’s judgment on 26   February 2014 (case   no.   K   22/10). COMPLAINTS Under Articles 3 and 8 of the Convention: 1.     The applicant complains that he was detained in overcrowded cells in Gliwice Remand Centre. 2.     He further complains that CCTV cameras were installed in the shower area. The shower was only allowed once a week for five minutes at a time and the shower area did not provide for any privacy, namely shower cabins or curtains. 3.     He further complains that a prison officer was present during his   medical examination in Wojkowice Prison.     QUESTIONS TO THE PARTIES   1.     In respect of the detention in Gliwice Remand Centre, was the applicant subjected to inhuman or degrading treatment within the meaning of Article 3 of the Convention on account of: a)     the detention in overcrowded cells?; b)     supervision by the CCTV in the communal shower area?   2.     In respect of the detention in Wojkowice Prison: a)     Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention in reference to the lack of privacy and confidentiality of the medical examination? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention? Reference is made to the Constitutional Court’s judgment of 26   February 2014 (case   no.   K   22/10). b)     Do the above facts constitute a violation of Article 3 of the Convention (inhuman and degrading treatment)? Reference is made to the case Duval v.   France , no. 19868/08, 26 May 2011.