CEDH · CASELAW;STATEMENTOFFACTS;ENG — 25 juillet 2011

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } FOURTH SECTION Application no. 23692/09 by Michał CHROSTOWSKI against Poland lodged on 24 April 2009   STATEMENT OF FACTS THE FACTS The applicant, Mr Michał Chrostowski, is a Polish national who was born in 1987. He is currently detained in Warsaw-Białołęka Remand Centre. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Criminal proceedings against the applicant On 5 January 2007 the applicant was arrested on suspicion of robbery. Subsequently, he was charged with three counts of similar offences. On 7   January 2007 the Warsaw District Court remanded the applicant in custody. 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. 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. On 14 August 2008 the Warsaw 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. The applicant appealed. He remained in detention on remand. On 6 May 2009 the Warsaw Regional Court upheld the first-instance judgment. 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. 2.     The alleged abuse of the applicant between 7 and 10 September 2007 and the prison inquiry 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. Between 31 August and 12 October 2007 the applicant was placed in the psychiatric wing of the Warsaw-Mokotów Remand Centre. 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. 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. 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 abused 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. (who had a low I.Q.) 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 the third inmate to touch his head with a toilet brush. They had threatened to kill the applicant if he reported the incident. The applicant was held in cell no. 6 which was equipped with a CCTV camera and was located opposite the nurses’ room. 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 found that the applicant had proposed a sexual act to the 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. 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. On 12 September 2007 the applicant was seen by a doctor who established the presence of yellow-brown marks subsequent to haematomas on the applicant’s legs. They caused impairment of the applicant’s health lasting not longer than seven days. The inquiry concluded that the applicant had been subjected to abuse. However, the abuse had not been of a significant degree and had been mostly of a psychological nature. Some unspecified disciplinary penalties were imposed on the two inmates involved in the abuse of the applicant. 3.     Public prosecution On 28 September 2007, following the conclusions of the inquiry, the Governor of the Remand Centre notified the Warsaw-Mokotów District Prosecution Office that an offence of abuse had been committed and requested the Office to open an investigation. On 24 December 2007 the Warsaw ‑ Mokotów District Prosecutor opened an investigation into the allegation of the applicant’s abuse. He sent the case to the Warsaw II   District Police Station. No further information was submitted by the applicant in respect of those proceedings. On 10 September 2007 the applicant notified the Warsaw-Mokotów District Prosecution Office that he had been abused at the Warsaw ‑ Mokotów Remand Centre. On 1 October 2007 the Warsaw ‑ Mokotów District Prosecutor sent the case to the Warsaw II   District Police Station. On 31 October 2007 the police opened an investigation into the allegation that an offence of abuse of a person deprived of liberty had been committed (Article 247 § 1 of the Criminal Code). The applicant complained to a superior prosecutor that he had not been notified about whether an investigation had been opened. T.G. and P.O. were heard by the police and 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 abused the applicant. A.Sz., who was in the same cell with the applicant at the relevant time, stated that T.G., P.O. and J.C. had abused the applicant. They had held the applicant and J.C. had moved his penis near the applicant’s head. P.O. had tried to rape the applicant with a broom stick. On 28 March 2008 the Warsaw II District Police Station discontinued the investigation into the allegation of physical and psychological abuse 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.Sz. and the employees of the Remand Centre in respect of the events alleged by Michał Chrostowski [the applicant]. P.O. and T.G. were also heard as witnesses and they commented on the issues alleged by Michał Chrostowski [the applicant] in his complaint; however they denied that they had abused 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 ...” On 31 March 2008 the Warsaw-Mokotów District Prosecutor confirmed the discontinuation of the investigation. The applicant appealed to the District Court. He claimed that the prosecutor had disregarded evidence indicating that he had been abused, namely the conclusions of the inquiry carried out by the Governor of the Remand Centre, statements of the direct witness A.Sz. 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. 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 specified in 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 abuse 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. 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 abuse. Lastly, the court noted that the inmates had been disciplined and that the applicant could file a private bill of indictment against them. 4.     Private prosecution On 12 January 2009 the applicant filed a private bill of indictment against T.O. and P.O with the Warsaw-Mokotów District Court. He alleged that they had physically and psychologically abused him at the Warsaw ‑ Mokotów Remand Centre between 7 and 10 September 2007. The applicant accused them of having breached his personal inviolability under Article 217 § 1 of the CC and of having caused him light bodily injuries under Article 157 § 2 of the CC. The court appointed a legal-aid lawyer for the applicant. On 24 February 2009 T.G.’s lawyer requested the court to discontinue the proceedings. On 24 April 2009 the Warsaw-Mokotów District Court discontinued the proceedings against the accused on the basis of Article 17 § 1 (7) of the Code of Criminal Procedure (“CCP”), finding that criminal proceedings in respect of the same acts against the same persons had been finally terminated ( ne bis in idem ). 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. The applicant’s lawyer appealed, submitting that he had not been properly summoned to the hearing. The applicant also appealed, challenging the merits of the decision to discontinue. On 30 July 2009 the Warsaw Regional Court quashed the decision on the procedural grounds invoked by the applicant’s lawyer and remitted the case. In respect of the applicant’s appeal, it noted that the decision to discontinue the investigation in respect of the continuous offence ( przestępstwo trwałe ) of abuse of a person deprived of liberty under Article 247 § 1 of the CC had been based on the lack of sufficient evidence confirming the commission of such offence. However, such finding did not exclude that during the same period other individual privately-prosecutable criminal acts could have been committed. On 14 October 2009 the Warsaw-Mokotów District Court discontinued the proceedings on the basis of Article 17 § 1 (6) of the CCP. It held that the prosecution of the offences imputed to T.G. and P.O. had become time-barred on 10 September 2008. The court noted that in accordance with Article   101   §§ 2 of the CC criminal proceedings were not possible in respect of privately prosecuted offences after the expiry of a period of one year from the date on which the victim had learnt of the identity of the perpetrator. The applicant’s lawyer appealed. He challenged the finding that the prosecution of the offences in question had become time-barred. The applicant also lodged an appeal. He argued that he could not file a   private bill of indictment prior to the determination of the proceedings in respect of the charge of abuse within the meaning of Article 247 § 1 of the CC. He submitted that the case file of his private prosecution proceedings contained a note to the effect that the offences in question would become time-barred in 2013. He further argued that he had filed a private bill of indictment only in January   2009 because the court had refused to appoint a legal-aid lawyer to assist him in preparing it. In a supplement to his appeal, the applicant submitted that the Warsaw ‑ Mokotów District Court had instructed him in its decision of 22   October 2008 that he could pursue a private prosecution. On 11 February 2010 the Warsaw Regional Court quashed the District   Court’s decision and remitted the case for examination on the merits. It observed that on 12 September 2007 the applicant had filed a   criminal complaint which had led to the institution of criminal proceedings against identified persons (T.G. and P.O.). Consequently, the running of the one-year limitation period had been interrupted and the possibility of seeking the prosecution of the offences in question was extended by five years until 10   September 2013 (Article 102 of the CC). On 2 April 2010 the Warsaw-Mokotów District Court discontinued the proceedings on the basis of Article 17 § 1 (7) of the CCP ( ne bis in idem ). The applicant’s lawyer appealed. He argued that the discontinuation of the proceedings in respect of the charge under Article 247 § 1 of the CC did not exclude the prosecution of the offence specified in Article 217 § 1 of the CC. He further submitted that the District Court had disregarded the orders of the appellate court which had already quashed the discontinuation of the   private prosecution proceedings on the same ground. The applicant also lodged an appeal. On 12 August 2010 the Warsaw Regional Court quashed the lower court’s decision and remitted the case for examination on the merits. It noted that Article 17 § 1 (7) of the CCP ( ne bis in idem ) was applicable when the terminated set of proceedings in respect of the same act and the same person corresponded to the subject-matter of the subsequent set of proceedings. However, in the first set of criminal proceedings no person had been charged and therefore it could not be considered that the termination of that set of proceedings had concerned the same act of the same person. On 4 November 2010 the Warsaw-Mokotów District Court discontinued the proceedings on the basis of Article 17 § 1 (6) of the CCP (time-barred). It noted that under Article 101 § 2 of the CC criminal proceedings were not possible in respect of privately prosecuted offences after the expiry of a period of one year from the date on which the victim had learnt of the identity of a   perpetrator. If within the one-year period criminal proceedings were instituted against the alleged perpetrator, the limitation period was extended by five years (Article 102 of the CC). The District Court noted that the first investigation carried by the prosecutor had been terminated at the in rem stage, which indicated that the alleged perpetrators had not been charged. Consequently, the one-year limitation period in respect of the privately-prosecuted offences could not have been extended in accordance with Article 102 of the CC. The applicant’s lawyer appealed. He submitted that the earlier District Court’s decision of 14 October 2009 to discontinue the proceedings on the same ground (Article 17 § 1 (6) of the CCP) had been quashed by the Regional Court. The District Court had already discontinued the private prosecution proceedings on four occasions. Each of those decisions was quashed by the Regional Court, but the lower court disregarded the order to examine the case on the merits. The applicant in his appeal reiterated his earlier arguments. He also submitted that the District Court had done everything in order not to proceed with his private prosecution. On 22 February 2011 the Warsaw Regional Court upheld the District Court’s decision to discontinue the proceedings on the basis of Article 17 §   1 (6) of the CCP. 5.     Conditions of the applicant’s detention and further alleged incidents of abuse 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 moved to the Warsaw-Służewiec Detention Centre and on 1 October 2008 he returned to the Warsaw-Białołęka Detention Centre. 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 Warsaw-Ochota District Prosecution Office to provide information as to whether a criminal investigation had been opened in respect of the above complaint and what its outcome had been. The applicant submitted no further information in this respect. 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. On 14 May 2008 the Warsaw District Court requested the Governor of the Warszawa-Służewiec Detention Centre to comment on the applicant’s complaints concerning psychological and physical abuse 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. On 6 June 2008 the Governor replied. He stated that the applicant had not been exposed to any abuse 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. 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. In its decision of 2 July 2008 the Warsaw Regional Court dismissed as unfounded the applicant’s allegations in respect of a risk of abuse 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. 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. 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. 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. 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. 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. 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 not been consistent 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. 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. 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. COMPLAINTS 1.     In his application dispatched on 24 April 2009 the applicant complains about his detention on remand and its length, asserting that non-custodial measures should have been applied instead. He claims that the reasons given for his detention on remand were insufficient. 2.     The applicant complains that he was not provided with adequate medical care in detention, that he was placed in cells with smokers and that the cells were poorly equipped. He further complains that he was abused by his fellow inmates and the prison guards and that the authorities did not ensure his safety. In his letter of 28 May 2009 the applicant complains about poor sanitary conditions, inadequate health care and ventilation in the Białołęka Remand Centre and the lack of any educational activities. Further, he complains about harassment by the prison staff and that his complaints to the prison administration were ignored. 3.     He also alleges that the Warsaw District Court failed to protect his garden house which was burgled. 4.     The applicant complains about the refusal to lift his detention on remand in connection with his grandfather’s death. 5.     In his application of 27 April 2009 the applicant complains that between 7 and 10 September 2007 he was physically and psychologically abused by his fellow inmates at the Warsaw-Mokotów Remand Centre and that the administration of that institution did not ensure his safety. 6.     In his letter of 7 March 2011 the applicant contests the final Regional Court’s decision of 22 February 2011 on discontinuation of the private prosecution proceedings. He submits that he has no other legal means of pursuing his case domestically. 7.     In his letter of 7 December 2009 the applicant complains about the refusal to grant him leave from prison in order to take care of his ill grandmother. QUESTIONS TO THE PARTIES 1.     As regards the events between 7 and 10 September 2007 in the Warsaw ‑ Mokotów Remand Centre, was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?   2.     As regards the same events, did the prison authorities take all steps which could have been reasonably expected of them to protect the applicant’s physical and psychological integrity, having regard to the fact that he was charged with the sexual abuse of a minor (see Pantea v. Romania , no. 33343/96, § 195, ECHR 2003 ‑ VI (extracts))?   3.     Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention (see Beganović v. Croatia , no. 46423/06, §§ 69-87, ECHR 2009 ‑ ... (extracts))? Reference is made to the fact that the investigation which was discontinued by the Warsaw-Mokotów District Prosecutor on 31 March 2008 appears not to have taken into account the following factors: a) CCTV footage from the applicant’s cell (cell no. 6), b) results of the inquiry carried out by the Governor of the Warsaw ‑ Mokotów Remand Centre, c) evidence of A.Sz., an eyewitness to the alleged abuse.