ITEMID: 001-90783
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SŁAWOMIR MUSIAŁ v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1978 and is currently detained in Herby Stare Prison, Poland.
6. The applicant has been suffering from epilepsy since his early childhood. More recently he has been diagnosed with schizophrenia and other serious mental disorders. Prior to his detention, he had attempted to commit suicide and had received in-patient treatment in a psychiatric hospital.
7. On 19 April 2005 the Będzin District Court (Sąd Rejonowy) remanded the applicant in custody on suspicion of committing robbery and battery. Subsequently, the applicant's pretrial detention was extended by the Będzin District Court in decisions of 14 October 2005 and 11 January 2006, and by the Myszków District Court in decisions of 5 June and 28 September 2006.
8. On being taken into detention, the applicant was committed to an unspecified remand centre, presumably Sosnowiec Remand Centre.
9. On 20 April 2005 he was taken to a State psychiatric hospital in Czeladź experiencing intensive auditory hallucinations of a psychotic nature. He remained there for two days.
10. On 22 April 2005 the applicant was committed to Zabrze Remand Centre but on the same day he was transferred to Rybnik Psychiatric Hospital for observation. On 17 or 18 July 2005 the applicant was transferred back to Zabrze Remand Centre and he remained there until 4 January 2006.
11. During his detention in Zabrze Remand Centre the applicant was taking psychotropic medicines and he was examined by a psychiatrist on 19 July, 23 August, 6, 21 and 27 September, 8 and 22 November, and 20 and 30 December 2005. In addition, the applicant was under the constant supervision of a psychologist who examined him on 19 July, 23 August, 15 November and 15 December 2005. Finally, the applicant was examined by a prison general practitioner in connection with dermatological problems, coughs, backaches and gastrological disorders.
12. From 4 January until 5 April 2006 the applicant was detained in Sosnowiec Remand Centre.
13. On 15 January 2006 he was again taken to Czeladź Psychiatric Hospital experiencing auditory hallucinations and suicidal thoughts. On the following day the applicant's condition stabilised. He was prescribed medicines and returned to Sosnowiec Remand Centre. It was suggested that he should remain under psychiatric supervision.
14. On 23 January 2006 at about 11 p.m. the applicant attempted to hang himself in Sosnowiec Remand Centre. He was rescued by his fellow cellmates. Immediately afterwards he was examined by the in-house doctor, who did not find any injuries.
15. On 24 January 2006 the applicant was taken to Czeladź Psychiatric Hospital. Because of the lack of places, he was transported to Opole Psychiatric Hospital, where he was examined by doctors. The applicant was diagnosed with schizophrenia and it was suggested that he remain under psychiatric supervision. Nevertheless, the applicant was not admitted to the hospital as there was no room. As a result, he was taken back to Sosnowiec Remand Centre.
16. During his remaining time in Sosnowiec Remand Centre the applicant claimed that he had experienced hallucinations. He received regular pharmacological treatment, including psychotropic medicines. Between January and April 2006 he was examined nine times by a psychiatrist or a general practitioner.
17. On 22 May 2006 the applicant was transferred to Herby Stare Prison.
18. On his admission to Herby Stare Prison the applicant was examined by a neurologist. The examination did not confirm that the applicant suffered from the disorders which he had described, such as epilepsy, hallucinations and anxiety; nevertheless, the doctor prescribed pharmacological treatment and ordered a psychiatric consultation and observation.
19. On 25 May 2006 the applicant was examined by a psychiatrist. He complained that he was suffering from insomnia and auditory hallucinations. Moreover, he claimed to have been followed and spied on by his cellmates. The doctor prescribed a drug to treat the applicant's schizophrenia and ordered that he should remain under the supervision of a psychiatrist.
20. On 1 June 2006 the applicant missed his appointment with a psychiatrist but he was examined one week later. On 27 June 2006 he was examined by a general practitioner and on 10 July 2006 once more by a psychiatrist. During the latter visit, the applicant declared that he was well.
21. Subsequently, between July 2006 and August 2007 the applicant was examined thirty-five times by doctors with different specialities, including a psychiatrist and a neurosurgeon.
22. It appears that from 2 April until 4 June 2007 the applicant was hospitalised in a prison psychiatric ward.
23. From 4 June until 23 or 28 August 2007 he was again detained in Herby Stare Prison. On the day of his release the applicant declared that he was well and had not been experiencing any hallucinations lately.
24. On 7 September 2007 the applicant was again committed to Herby Stare Prison. He has been detained there to this day.
25. The parties' statements relating to the conditions of the applicant's detention are, to a large extent, contradictory.
26. In Zabrze Remand Centre, from 18 July until 20 October 2005, the applicant was detained in cell no. 41 and from 20 October 2005 until 4 January 2006 in cell no. 42. Both cells measured approximately 6.7 square metres.
27. The Government did not provide any information as to the number of detainees sharing cells with the applicant. They submitted, however, that Zabrze Remand Centre had faced the problem of overcrowding; indeed, its governor decided to reduce the statutory minimum standard of three square metres per person. On 14 June, 30 September and 29 November 2005 a penitentiary judge was informed about the Governor's decision.
28. The Government also submitted that in Zabrze Remand Centre each of the applicant's cells had had an annex with a toilet cubicle and a washbasin. That area was separated from the rest of the cell and offered privacy. Detainees were supplied with toiletries and bed linen was changed once every two weeks. The window surface in each of the applicant's cells was over one square metre. The applicant was allowed to take a shower once a week. The shower room had eight shower heads. Sixteen people were allowed inside and they showered in two groups on a rotation basis.
29. In the Government's submission the applicant had been allowed to have one hour of outdoor exercise in one of seven yards, two of which measured 150 and 120 square metres. The applicant could also participate in social activities two or three times per week for approximately two hours. In addition, he could stay in an entertainment room watching television, reading or playing board games. Finally, in the Government's submission the applicant had access to radio and television programmes through the prison internal broadcasting system and he could rent five books per week from a prison library.
30. The Government submitted that the applicant had not been given any disciplinary punishments while in Zabrze Remand Centre. On the contrary, he had twice been rewarded for good behaviour.
31. The applicant submitted that he shared the cells in question with two other inmates.
32. Moreover, he maintained that his cells had been dirty and infested with bedbugs, cockroaches and fungus. Detainees had smoked cigarettes all day long inside the cells. The bed linen and towels were not properly washed and there was a stench in the air. The detainees had washed in cold water. The applicant also claimed that there had been no television set or board games in the entertainment room and that he had not been informed about any social activities available in the remand centre.
33. The applicant also complained of the practice of bullying detainees by the staff of Zabrze Remand Centre. He submitted that warders had ordered disciplinary punishment under any pretext, demolished cells during frequent and unjustified searches, made detainees undress and do squats and also deprived them of sleep.
34. In Sosnowiec Remand Centre, between 4 January and 5 April 2006, the applicant was initially detained in cell no. 37, which measured almost sixteen square metres and was shared by four to five persons including the applicant. From 6 February until 30 March 2006 he was detained together with two other detainees in the medical wing's cell no. 58. That cell measured thirteen square metres. Finally, from 30 March until 5 April 2006 he was detained in cell no. 56, which measured ten square metres and a half and was shared by two people. When the number of new admissions increased as of January 2006, the governor of Sosnowiec Remand Centre decided to reduce the available cell space below the minimum statutory limit and to convey the necessary information to the competent penitentiary judge.
35. The Government submitted that the sanitary conditions in Sosnowiec Remand Centre had been decent. Each cell had a separate sanitary annex with a toilet cubicle and a washbasin. Detainees took a hot bath or shower once a week. During his detention in cell no. 58 the applicant could take one bath per day. In that cell detainees had access to hot water. In all other cells they were allowed to use a water immersion heater or a wireless kettle. All cells were sufficiently lit and ventilated. Detainees had one hour of outdoor exercise per day and they were also allowed to spend time in an entertainment room. The entertainment room in Wing IV of Sosnowiec Remand Centre, where the applicant had been detained, was equipped with board games and tables to play table football and table tennis. In addition, in the remand centre detainees had access to a library and, in the spring and summertime, to a volleyball court.
36. The applicant contested the above submissions by saying that sanitary conditions in Sosnowiec Remand Centre had been inadequate. The cells were damp and dirty, the towels and bed linen were not washed and the detainees washed in cold water.
37. The applicant was detained in Herby Stare Prison during three separate periods: from 22 May 2006 and 2 April 2007, from 4 June and 28 August 2007, and from 7 September 2007 onwards.
38. The Government supplied the list of cells which the applicant had occupied at different periods. The surface area of these cells varied between ten and eighteen square metres. Their occupancy rate, however, had not been disclosed. On the other hand, the Government submitted that the prison's governor had made a decision to reduce the available cell space below the minimum statutory limit and that between May 2006 and October 2007 he had informed a penitentiary judge about that fact on nineteen occasions.
39. They claimed that in Herby Stare Prison the sanitary conditions had been decent. Each cell had a separate sanitary annex with a toilet cubicle and a washbasin. Detainees took a hot bath or shower once a week. The bath house was equipped with nineteen shower heads and four or five persons were allowed inside at a time.
40. The applicant argued that all the cells in which he had been detained had been seriously overcrowded. For example, cell no. 32, which measured eighteen square metres, had been shared by nine or ten persons.
41. The applicant also submitted that sanitary conditions in Herby Stare Prison had been inadequate. Similarly to the other detention facilities where he had been held, the cells were damp and dirty, the towels and bed linen were not washed and the detainees washed in cold water. In addition in Herby Stare Prison the shower room was located in a separate building. In wintertime in particular, it had been difficult for detainees to walk back to the living quarters with wet hair and without proper clothing. Moreover the applicant complained of the lack of privacy because the showers had not been separated.
42. The applicant did not lodge any formal complaints with the penitentiary authorities on the basis of the Code of Execution of Criminal Sentences. He complained, however, to various State authorities, i.e. to the Ombudsman (Rzecznik Praw Obywatelskich) about the inadequate medical care he had received and the conditions of his detention. He also filed several requests for release on health grounds.
43. In a letter of 6 July 2006 the Ombudsman informed the applicant that his allegations had been considered illfounded. It was emphasised that the applicant had been under constant psychiatric supervision and that he had been hospitalised whenever necessary.
44. On 31 July 2006 the Myszków District Court refused to release the applicant from pretrial detention on health grounds as requested by his lawyer. The court referred to unspecified medical reports which stated that the applicant was not suffering from any mental illness, but merely from an antisocial personality disorder.
45. On 23 November 2006 the Częstochowa Regional Court (Sąd Okręgowy) dismissed an interlocutory appeal by the applicant against a decision of 28 September 2006 by which the Myszków District Court had extended his pretrial detention.
46. The applicant argued that, because of his mental illness, he should not be held in a detention centre but in a psychiatric hospital. He referred to a number of medical reports which had confirmed his schizophrenia diagnosis and in which it had been recommended that he should remain under psychiatric supervision.
47. The Częstochowa Regional Court held that there were no contraindications to the applicant's detention in a remand centre. The court stated that, admittedly, a number of psychiatrists from both State and prison hospitals had directed that the applicant should be placed under psychiatric supervision. The court observed, however, that the diagnosis was not credible since the doctors had not had longterm contact with the applicant and had not had full access to his medical records. Instead, the court relied on an opinion delivered by experts in psychiatry from Rybnik Hospital, who were of the view that the applicant was not suffering from any psychotic disorder. The court stressed that, unlike the others, the latter expert opinion was thorough, as it had been drawn up further to the applicant's fiveweek period under psychiatric observation at Rybnik Hospital in 2005 and based on the medical records of his psychiatric treatment prior to his detention. On the other hand, the court took note of discrepancies between the medical reports before it and recommended that the report of the experts from Rybnik Psychiatric Hospital be updated. Nevertheless, the court did not agree to release the applicant from pretrial detention in a remand centre.
“The Republic of Poland shall be a democratic State ruled by law and implementing the principles of social justice.”
Article 40 of the Constitution reads:
“No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.”
Article 41 of the Constitution, in its relevant part, provides:
“4. Anyone deprived of liberty shall be treated in a humane manner.”
49. Article 110 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy – “the Code”) provides:
“1. A sentenced person shall be placed in an individual cell or a cell shared with other inmates.
2. The area of the cell shall be no less than 3 square metres per detainee.”
Article 248 of the Code provides:
“1. In particularly justified cases a governor of a prison or remand centre may decide to place detainees, for a specified period of time, in conditions where the area of the cell is less than 3 square metres per person. Any such decision shall be promptly communicated to a penitentiary judge.
2. The Minister of Justice shall determine, by means of an ordinance, the rules which are to be followed by the relevant authorities in a situation where the number of persons detained in prisons and remand centres exceeds on a nationwide scale the overall capacity of such establishments ...”
50. On the basis of Article 248 of the Code, the Minister of Justice issued the Ordinance of 26 October 2000 on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded on a nationwide scale the overall capacity of such establishments (Rozporządzenie Ministra Sprawiedliwości w sprawie trybu postępowania właściwych organów w wypadku, gdy liczba osadzonych w zakładach karnych lub aresztach śledczych przekroczy w skali kraju ogólną pojemność tych zakładów – “the 2000 Ordinance”). On 26 August 2003 the Minister of Justice issued a new ordinance with the same title (“the 2003 Ordinance”), which replaced the previous ordinance. It entered into force on 1 September 2003.
Paragraph 1.1 of this Ordinance provided:
“In the event that the number of detainees placed in prisons and remand centres, as well as in subordinate detention facilities, hereinafter referred to as 'establishments', exceeds on a nationwide scale the overall capacity of such establishments, the Director General of the Prison Service, within seven days from the day the capacity is exceeded, shall convey the relevant information to the Minister of Justice, the regional directors of the Prison Service and the governors of the establishments ...”
Paragraph 2 of the Ordinance read:
“1. Having received the relevant information, the regional director of the prison service and the governor of the establishment are under a duty, each within their own sphere of competence, to take action in order to adapt quarters not otherwise included in the establishment's [accommodation] capacity, to comply with the conditions required for a cell.
...
3. In the event that the establishment's capacity is exceeded, detainees shall be placed in supplementary cells for a specified period of time.
4. In the event that the additional accommodation in the supplementary cells is used up, detainees may be placed in conditions where the area of a cell is less than 3 square metres per person.”
51. The general duty of the State to protect persons with mental disabilities is derived from the Mental Health Protection Act of 19 August 1994 (Ustawa o ochronie zdrowia psychicznego – “the 1994 Act”), which entered into force on 21 January 1995. The 1994 Act recognises mental health as a fundamental personal right of every person.
Specific rules regarding detention in a medical institution, as well as psychiatric care in prisons and remand centres, are provided for in the Code of Criminal Procedure and the Code of Execution of Criminal Sentences, as well as in a number of ordinances issued by the Minister of Justice.
Article 259, paragraph 1, of the Code of Criminal Procedure provides that, unless there are particular reasons to the contrary, pre-trial detention should be waived if it could result in putting a detainee's life or health at risk.
Article 260 of the Code of Criminal Procedure, on the other hand, provides:
“If required by the accused's health condition, [his] pre-trial detention may take the form of placement in a suitable medical establishment.”
Article 213 of the Code of Execution of Criminal Sentences provides:
“In cases described in the Code of Criminal Procedure, pretrial detention shall take place outside a remand centre, in a medical establishment indicated by an authority responsible for the detainee. The same authority shall also provide directions as to the conditions of the detainee's placement in the indicated medical establishment.”
On the basis of Article 115, paragraph 10, of the Code of Execution of Criminal Sentences, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons deprived of their liberty by healthcare establishments for persons deprived of their liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “the October 2003 Ordinance”). It entered into force on 17 December 2003.
Under paragraph 1.1 of the October 2003 Ordinance, healthcare establishments for persons deprived of their liberty provide, inter alia, medical and psychological examinations, medical and psychological treatment and preventive medical care to persons deprived of their liberty.
Paragraph 1 of this Ordinance further provides:
“2. In justified cases, if the medical services as enumerated in subparagraph 1 cannot be provided to persons deprived of their liberty by the healthcare establishments for persons deprived of their liberty, in particular owing to the lack of specialised medical equipment, such medical services may be provided by public healthcare establishments.
3. In cases described in subparagraph 2, the head of a health-care establishment for persons deprived of their liberty shall decide whether or not such medical services [provided by public healthcare establishments] are necessary...”
Paragraph 7 of the October 2003 Ordinance states:
“1. The decision to place a person deprived of his liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse ...
2. The decision as to whether or not it is necessary to place a person deprived of his liberty in a ... prison hospital shall be taken by the prison hospital's director or by a delegated prison doctor.”
Paragraph 11 of the October 2003 Ordinance provides:
“In the event of a suspicion that a person deprived of his liberty suffers from mental disorders, mental retardation ..., the prison doctor:
(1) shall give directions as to the placement of the person concerned in prison, the manner of observation and the mode of proceeding [with the person concerned];
(2) shall direct the person concerned to undergo a psychiatric examination.”
Paragraph 12.1 of the October 2003 Ordinance states:
“A person deprived of his liberty shall be placed in the psychiatric ward of a prison hospital:
(1) if a court has ordered the examination of such person together with psychiatric observation;
(2) [if this has been] directed – in compliance with the rules of the Mental Health Protection Act of 19 August 1994 – by a psychiatrist because of the diagnosis of mental disorders which require examination or treatment in hospital.”
Paragraph 13 of the October 2003 Ordinance further provides:
“In justified cases, if, as a result of a psychiatric examination together with psychiatric observation, a person deprived of his liberty has been diagnosed with mental illness, mental retardation or any other mental dysfunction ..., based on the decision of a chief doctor, [such person] shall remain in the psychiatric ward of a prison hospital until the relevant court's ruling.”
52. On the basis of Article 249 of the Code of Execution of Criminal Sentences, the Minister of Justice issued the Ordinance of 25 August 2003 on the code of practice for the organisation and arrangement of pretrial detention (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu organizacyjno-porządkowego wykonywania tymczasowego aresztowania “the August 2003 Ordinance”). It entered into force on 1 September 2003.
The August 2003 Ordinance states that pretrial detention takes place in remand centres. However, paragraph 28 of the Ordinance provides:
“1. With regard to detainees held in hospitals ..., as well as chronically ill [detainees], the governor [of a remand centre] may, at the request of or after consultation with a doctor, make necessary exceptions to the arrangements for pretrial detention as envisaged in the code of practice, in so far as this is justified by the health condition of the detainees concerned.
2. Subparagraph 1 shall be applied in respect of detainees who have been diagnosed with non-psychotic psychiatric disorders, mental retardation ... The governor [of a remand centre] may make [necessary] exceptions at the request of or after consultation with a doctor or a psychologist.”
53. The rules governing cooperation between prison healthcare establishments and public healthcare facilities are set out in the Ordinance of the Minister of Justice issued on 10 September 2003 on the detailed rules, scope and procedure for the cooperation of healthcare establishments with health services in prisons and remand centres in the provision of medical services to persons deprived of their liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “the September 2003 Ordinance”). It entered into force on 17 October 2003.
54. Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice.
Under Article 6 of the Code of Execution of Criminal Sentences (“the Code”) a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence.
Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a governor of a prison or a remand centre, a regional director or the Director General of the Prison Service or a court probation officer. Applications relating to the execution of prison sentences are examined by a competent penitentiary court.
The remainder of Article 7 of the Code reads as follows:
“3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the pronouncement or the service of the decision; the decision [in question] shall be pronounced or served with a reasoned opinion and an instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority which issued the contested decision. If [that] authority does not consider the appeal favourably, it shall refer it, together with the case file and without undue delay, to the competent court.
4. The Court competent for examining the appeal may suspend the enforcement of the contested decision ...
5. Having examined the appeal, the court shall decide either to uphold the contested decision, or to quash or vary it; the court's decision shall not be subject to an interlocutory appeal.”
In addition, under Article 33 of the Code, a penitentiary judge is entitled to make unrestricted visits to detention facilities, to acquaint himself with documents and to be provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of their liberty without the presence of third persons and to examine their applications and complaints.
Article 34 of the Code in its relevant part reads as follows:
“1. A penitentiary judge shall quash an unlawful decision [issued by, inter alia, the governor of a prison or remand centre, the Regional Director or the Director General of the Prison Service] concerning a person deprived of his liberty.
2. An appeal to the penitentiary court lies against the decision of a penitentiary judge...
4. In the event of finding that the deprivation of liberty is not in accordance with the law, a penitentiary judge shall, without undue delay, inform the authority [in charge of the person concerned] of that fact, and, if necessary, shall order the release of the person concerned.”
Lastly, Article 102, paragraph 10, of the Code guarantees a convicted person a right to lodge applications, complaints and requests with other competent authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. Detailed rules on the procedure are laid down in the Ordinance of the Minister of Justice issued on 13 August 2003 on dealing with applications, complaints and requests by persons detained in prisons and remand centres (Rozporządzenie w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych – “the August 2003 Ordinance”).
55. Article 23 of the Civil Code contains a non-exhaustive list of socalled “personal rights” (prawa osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
Article 445 § 1 of the Civil Code, applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“... [T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
In addition, Articles 417 et seq. of the Polish Civil Code provide for the State's liability in tort.
Article 417 § 1 of the Civil Code formerly provided:
“The State Treasury shall be liable for damage (szkoda) caused by an agent of the State in carrying out acts entrusted to him.”
After being amended in 2004, Article 417 § 1 of the Civil Code provides:
“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
56. In their submissions on the admissibility and the merits of the case the Government referred to the judgment of the Supreme Court of 28 February 2007 and to nine recent judgments in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights.
57. On 28 February 2007 the Supreme Court recognised for the first time the right of a detainee under Article 24, read in conjunction with Article 448 of the Civil Code, to lodge a civil claim against the State Treasury for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment.
That judgment originated from the civil action brought by a certain A.D., who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm. The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions.
The Supreme Court quashed the second-instance judgment in which the applicant's claim had been dismissed. The Supreme Court held that the case should have been examined under Article 24, in conjunction with Article 448 of the Civil Code, and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff's personal rights had not been infringed. The case was remitted to the appeal court.
58. On 6 December 2007 the Wrocław Court of Appeal examined the case under Article 24 in conjunction with Article 448 of the Civil Code, as interpreted by the Supreme Court. The appeal court reiterated that overcrowding coupled with inadequate living and sanitary conditions in a detention facility could give rise to degrading treatment in breach of a detainee's personal rights. The court condemned the practice of maintaining high rates of occupation in detention facilities throughout the country and stressed that the minimum standard of three square metres per person was to be reduced only in exceptional circumstances and for a short period of time. On the other hand, the Wrocław Court of Appeal observed that in the light of the Supreme Court's established case-law, a trial court did not have a duty to award compensation for each personal right's infringement. One of the main criteria in assessing whether or not to award compensation for a breach of a personal right was the degree of fault on the part of a respondent party. The court held that in relation to the overcrowding, no fault could be attributed to the management of a particular detention facility since the management were not in a position to refuse new admissions even when the average capacity of a detention facility had already been exceeded. Considering the large scale of the problem in the country and the fact that the competent authorities had not acted with a particular intent to humiliate the plaintiff or in bad faith, the appeal court found that awarding compensation for a breach of personal rights on account of overcrowding and poor conditions of detention would contradict the universal sense of justice. Ultimately, the case was dismissed.
59. In five of the other cases cited by the Government the plaintiffs, non-smokers detained with smoking inmates, had been awarded compensation because it had been found that they were at risk of suffering or had actually suffered a health disorder.
Another one of the cases referred to concerned a prisoner who had suffered food poisoning in prison and another one concerned a detainee who had been beaten up by his fellow inmate.
In another case, of a certain J.K., who had been detained for seven days in an overcrowded and unsanitary cell, the Warsaw Court of Appeal had granted partial compensation on account of the fact that the prison's governor had failed to inform a competent penitentiary judge, in compliance with the applicable procedure, about the problem of overcrowding present at the time when the plaintiff was serving his sentence there.
Finally, in the case of a certain S.G. the Cracow Court of Appeal had held that there had been no legal basis to grant compensation for detaining the plaintiff in an overcrowded cell. The court observed that the protection of personal rights offered by Article 24 § 1 of the Civil Code was conditional on two elements: firstly, there must have been an infringement or a risk of infringement of the right protected; secondly, the infringement must have resulted from an unlawful act or omission. It was reiterated that an act or omission was not unlawful, even though it might breach personal rights, as long as it was based on a valid legal provision. The court further noted that the plaintiff had the burden of proving the infringement or the risk of infringement while the respondent had the burden of proving that his acts or omissions were not unlawful. The Cracow Court of Appeal held that detaining the plaintiff in conditions below the minimum standard established by Article 110 § 2 of the Code of Execution of Criminal Sentences was not unlawful, as it was regulated by the 2003 Ordinance.
60. On 13 December 2005 the Ombudsman made an application under Article 191, read in conjunction with Article 188 of the Constitution, to the Constitutional Court, asking for the 2003 Ordinance to be declared unconstitutional. More specifically, the Ombudsman asked for it to be declared incompatible with Articles 40 and 41 of the Constitution and Article 3 of the European Convention on Human Rights. In particular, the Ombudsman challenged paragraph 2(4) of the 2003 Ordinance, which allowed the prison authorities to place a detainee in a cell where there was an area of less than 3 square metres per person, for an indefinite period of time. This, in his opinion, was contrary to the interim nature of Article 248 of the Code of Execution of Criminal Sentences and led to the legitimisation of the chronic overcrowding in detention facilities.
On 18 April 2006 the Ombudsman limited the scope of his initial application, asking the Constitutional Court (skarga konstytucyjna) to declare paragraph 2(4) of the 2003 Ordinance to be in breach of Article 41 of the Polish Constitution.
On 19 April 2006, a day before the date set for the Constitutional Court's hearing, the Minister of Justice abrogated the impugned Ordinance in its entirety and issued a new one under the same title and with immediate effect (“the 2006 Ordinance”). The provisions of the new 2006 Ordinance remain the same as in the previous instrument, except for paragraph 2(4), which currently reads as follows:
“In the event that the additional accommodation in the supplementary cells is used up, detainees may be placed, for a specified period of time, in conditions where the area of a cell is less than 3 square metres per person.”
As a consequence of these changes, on 19 April 2006 the Ombudsman withdrew his application.
61. On 22 May 2006 a certain J.G., who was at the time in prison, made a constitutional complaint (skarga konstytucyjna) under Article 191, read in conjunction with Article 79 of the Constitution, asking for Article 248 of the Code of Execution of Criminal Sentences to be declared unconstitutional. He alleged that the impugned provision infringed, inter alia, the prohibition of torture and inhuman or degrading treatment as derived from Articles 40 and 41 of the Constitution. He challenged Article 248 in particular in so far as it allowed for the placement of detainees for an indefinite period of time in cells below the statutory size.
On 26 May 2008 the Constitutional Court held, inter alia, that the impugned Article 248 of the Code of Execution of Criminal Sentences was in breach of Article 40 (prohibition of torture or cruel, inhuman, or degrading treatment or punishment), Article 41 § 4 (right of a detainee to be treated in a humane manner) and Article 2 (the principle of the rule of law) of the Constitution. The court stressed that the provision lacked clarity and precision, which allowed for a very broad interpretation.
The Constitutional Court found that, in effect, the provision in question allowed for an indefinite and arbitrary placement of detainees in cells below the statutory size of three square metres per person, thus causing chronic overcrowding in Polish prisons and exposing detainees to the risk of inhuman treatment. The court observed that the overcrowding of detention facilities had to be treated as a serious problem, posing a permanent threat to rehabilitation of prisoners. Moreover, in the court's view, the overcrowding in itself could be qualified as inhuman and degrading treatment. If combined with additional aggravating circumstances, it may even be considered as torture. In that connection the court noted that already the minimum statutory standards of three square metres per person was one of the lowest ones in Europe.
The Constitutional Court further stressed that the provision in question was meant to be applied only in particularly justified cases, for example an engineering or building disaster in prison. Such a provision should not leave any doubt as to the definition of those permissible circumstances, the minimum size of the cell and maximum time when the new standards would apply. It should also lay down clear principles on how many times a detainee could be placed in conditions below the standard requirements and the precise procedural rules to be followed in such cases. Conversely, in practice Article 248 of the Code of Execution of Criminal Sentences gave a wide discretion to prison governors to decide what constituted “particularly justified circumstances” and in consequence sanctioned the permanent state of overcrowding in detention facilities. It allowed for the placement of detainees in a cell where the area was below the statutory size for an indefinite period of time and it did not set a minimum permissible area.
The Constitutional Court, taking into consideration “the permanent overcrowding of the Polish detention facilities”, ruled that the unconstitutional Article 248 of the Code of Execution of Criminal Sentences should lose its binding force within eighteen months from the date of the publication of the judgment. The Constitutional Court justified the delayed entry into force of its judgment by the need to undertake a series of actions to reorganise the whole penitentiary system in Poland, in order to, ultimately, eliminate the problem of overcrowding. It was also noted that, in parallel, a reform of criminal policy was desired with the aim of achieving a wider implementation of preventive measures other than deprivation of liberty. The court observed that an immediate entry into force of its judgment would only aggravate the already existing pathological situation where, because of the lack of room in Polish prisons, many convicted persons could not serve their prison sentences. At the time when the judgment was being passed, the problem concerned 40,000 persons.
In addition, the Constitutional Court under the principle of the so-called “right of privilege” (przywilej korzyści) ordered an individual measure, namely that with regard to the author of the constitutional complaint the judgment should enter into force immediately after its publication. The right of privilege is relied on by the Constitutional Court in the event the proceedings instituted by an individual terminate with a judgment with a delayed entry into force. This principle aims at rewarding the individual who brought the first constitutional complaint concerning a particular matter for his or her proactive attitude.
As regards the context of the case, all the State authorities involved in the proceedings before the Constitutional Court, namely the Prosecutor General, the Ombudsman and the Speaker of the Sejm, acknowledged the existence of the overcrowding in the Polish detention facilities. The Prosecutor General, in his pleadings of 6 December 2007, submitted that the problem of overcrowding in Polish detention facilities had continually existed since 2000, arising from the flawed interpretation of the impugned provision by domestic courts and penitentiary authorities. He also pointed out that, with the rate of overcrowding peaking at 118.9% on 31 August 2007, the prison authorities estimated that 15,000 new places were needed in order to secure to detainees the statutory space of three square metres per person.
62. Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe to the member States concerning the ethical and organisational aspects of health care in prison, in its relevant parts, reads as follows:
“I. Main characteristics of the right to health care in prison
A. Access to a doctor
1. When entering prison and later on while in custody, prisoners should be able at any time to have access to a doctor or a fully qualified nurse, irrespective of their detention regime and without undue delay, if required by their state of health. All detainees should benefit from appropriate medical examinations on admission. Special emphasis should be put on the screening of mental disorders, of psychological adaptation to prison, of withdrawal symptoms resulting from use of drugs, medication or alcohol, and of contagious and chronic conditions.
...
3. A prison's health care service should at least be able to provide outpatient consultations and emergency treatment. When the state of health of the inmates requires treatment which cannot be guaranteed in prison, everything possible should be done to ensure that treatment is given, in all security, in health establishments outside the prison.
4. Prisoners should have access to a doctor, when necessary, at any time during the day and the night. Someone competent to provide first aid should always be present on the prison premises. In case of serious emergencies, the doctor, a member of the nursing staff and the prison management should be warned; active participation and commitment of the custodial staff is essential.
5. Access to psychiatric consultation and counselling should be secured. There should be a psychiatric team in larger penal institutions. If this is not available as in the smaller establishments, consultations should be assured by a psychiatrist, practising in hospital or in private.
...
III. The organisation of health care in prison with specific reference to the management of certain common problems
D. Psychiatric symptoms, mental disturbance and major personality disorders, risk of suicide
55. Prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. The decision to admit an inmate to a public hospital should be made by a psychiatrist, subject to authorisation by the competent authorities.
...
58. The risk of suicide should be constantly assessed both by medical and custodial staff. Physical methods designed to avoid self-harm, close and constant observation, dialogue and reassurance, as appropriate, should be used in moments of crisis.”
63. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, in its relevant parts, reads as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Having regard to the European Convention on Human Rights and the case law of the European Court of Human Rights, ...
Recommends that governments of member states:
- be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules;
...
Appendix to Recommendation Rec(2006)2
...
12.1 Persons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose.
12.2 If such persons are nevertheless exceptionally held in prison there shall be special regulations that take account of their status and needs.
...
39. Prison authorities shall safeguard the health of all prisoners in their care.
...
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
...
47.1 Specialised prisons or sections under medical control shall be available for the observation and treatment of prisoners suffering from mental disorder or abnormality who do not necessarily fall under the provisions of Rule 12.
47.2 The prison medical service shall provide for the psychiatric treatment of all prisoners who are in need of such treatment and pay special attention to suicide prevention.”
VIOLATED_ARTICLES: 3


ITEMID: 001-61796
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ALTUN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;No violation of Art. 5;Not necessary to examine Art. 6-1;Violation of Art. 8;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Viera Strážnická
TEXT: 9. The applicant was born in 1933 and lives in Diyarbakır. Until the end of 1993, the applicant lived in the village of Akdoruk, attached to the Kulp District in the province of Diyarbakır. The applicant left and has never returned to the village after the alleged incident.
10. The facts surrounding the destruction of the applicant’s house and property are in dispute between the parties.
11. Early in the morning of 11 November 1993 the applicant left his house and went to the fields to work. At about 7 a.m. a large number of soldiers arrived in the village of Akdoruk on foot. The soldiers had a list of names in their hands and started burning down some of the houses. From the field, the applicant saw that his house was on fire. The applicant’s wife tried to save some of their belongings and animals however she was prevented by the gendarmes who hit her with the butt of their rifles. In all, the soldiers burned down six houses in the village.
12. The applicant tried to go back to the village but was prevented by his wife, who told him that if he went back he would be arrested by the soldiers. The soldiers arrested ten villagers and sent them to the gendarmerie station. After spending the night in the village, the soldiers left Akdoruk village early in the morning of 12 November 1993.
13. The applicant spent the night at his sister’s house and then went to Diyarbakır to live with his daughter.
14. In February 1994, the applicant went to the Kulp Magistrate’s Court together with Ahmet Altun and Mustafa Aldemir to lodge a petition about the burning of his house. All three of them submitted handwritten petitions to the judge and requested him to conduct a visit to the village to establish the damage they had suffered. The judge however refused their request for security reasons. The same day, the applicant and the two other villagers were called to the public prosecutor’s office in Kulp, where they were interrogated about their complaints. The public prosecutor took their statements and typed down their complaints. The applicant, Ahmet Altun and Mustafa Aldemir, signed these petitions without understanding the content, as they were illiterate.
15. The applicant later learnt from his friends that these petitions had been transferred to the Kulp District Gendarmerie whose officers the applicant considered responsible for the destruction of his house. He was informed that the gendarmes were looking for him however he was too frightened to go to the gendarmerie headquarters, because the other two villagers, who had also lodged a petition with him, had also been summoned to the gendarmerie and had been severely beaten.
16. In the beginning of 1994 the gendarmes returned to the Akdoruk village and burned down the remaining houses.
17. The applicant is currently unemployed and occasionally works as a builder in constructions.
18. No military operation was conducted in or around the village of Akdoruk on 11 November 1993. Subsequent to the applicant’s complaint with the Kulp public prosecutor, an investigation was commenced into the allegations of the applicant. On 22 August 1994 the Kulp public prosecutor issued a decision of non-jurisdiction and transferred the case to the Kulp Administrative Council pursuant to the Law on the prosecution of civil servants.
19. On 24 June 1994 the Kulp District Governor appointed the Kulp District Gendarme Commander, Ali Ergülmez, as investigating officer. By a report dated 1 April 1995, the District Gendarme Commander submitted that no military operation had been conducted in Akdoruk village on 11 November 1993 and stated that the clashes between the security forces and the PKK had commenced after January 2004 when the village had already been evacuated. He accordingly proposed that the District Administrative Council should issue a decision of non-prosecution.
20. On 13 July 1995 the Kulp District Administrative Council delivered a decision of non-prosecution on the basis of the investigating officer’s report.
21. The parties submitted various documents to the Court. While delivering its judgment, the Court had particular regard to the following documents:
Statement of the applicant, dated 15 April 1994, made to the Diyarbakır Human Rights Association;
Petition of the applicant, Ahmet Altun and Mustafa Aldemir, dated 17 December 1993, submitted to the Kulp Chief Public Prosecutor’s office concerning the burning of their houses by security forces;
Statements of the applicant, Ahmet Altun and Mustafa Aldemir, dated 17 December 1993, taken by the Kulp public prosecutor;
Letter of Kulp Chief Public Prosecutor’s office to Kulp District Gendarme Commander, dated 28 January 1994, requesting information as to whether or not a military operation had been conducted on 13 November 1993 in the village of Akdoruk;
Statement of Ahmet Altun, dated 22 February 1994, taken by the gendarme officers;
Statement of Mustafa Aldemir, dated 3 March 1994, taken by the gendarme officers;
Report dated 23 June 1994, signed by the mayor of Akdoruk village, Mehmet Yeşil, and two gendarme officers, indicating that it had not been possible to interrogate Abdullah Altun as his address could not be established;
Letter of Kulp District Gendarme Commander to the Kulp Chief Public Prosecutor’s office, dated 24 June 1994, stating that it had not been possible to interrogate Abdullah Altun as his address could not be established;
Non-jurisdiction decision issued by the Kulp Chief Public Prosecutor’s office, dated 22 August 1994;
Letter of Kulp District Governor to Kulp District Gendarme Commander, Ali Ergülmez, dated 2 September 1994, appointing him as investigating officer;
Investigation and examination report, dated 2 May 1995, signed by Kulp District Gendarme Commander Ali Ergülmez, gendarme officer Kamil Taşçı and village mayor Mehmet Yeşil;
Report of District Gendarme Commander Ali Ergülmez, dated 1 April 1995, proposing that the District Administrative Council should issue a decision of non-prosecution;
Letter of District Gendarme Commander Ali Ergülmez, dated 2 July 1995 to Kulp District Governor, submitting the results of the investigation;
Non-prosecution decision dated 13 July 1995, delivered by the Kulp District Administrative Council;
Report dated 28 August 1995, prepared by Kulp District Gendarme Commander Ali Ergülmez, indicating that no military operation had been conducted in the Akdoruk village on 13 November 1994. The report stated that the clashes between the security forces and the PKK had commenced after January 1994 when the village had already been evacuated;
Letter of Kulp Magistrate’s Court judge to Kulp public prosecutor’s office, dated 23 January 1995, stating that Abdullah Altun had not brought any proceedings concerning the burning of his house;
Letter of Kulp public prosecutor to Diyarbakır Chief Public Prosecutor’s office, dated 25 September 1995 stating that Abdullah Altun had not applied to the Kulp Magistrate’s Court for an assessment of the damage he had suffered following the burning of his house;
Letter of Kulp Magistrate Court judge to Kulp public prosecutor, dated 2 August 1999, indicating that no hand-written petition had been submitted to the registry of the court by Abdullah Altun, Ahmet Altun and Mustafa Aldemir;
Letter of Kulp Chief Public Prosecutor to International Law and Foreign Relations Directorate of the Ministry of Justice, dated 8 October 1999, indicating that there were no records relating to the killing of 6 terrorists on 13 October 1993 in the vicinity of Akdoruk village.
22. The facts of the case being in dispute between the parties, three Delegates of the Commission took oral evidence in Ankara between 28 June and 2 July 1999 from thirteen witnesses, including the applicant. A further five witnesses had been summoned, but they failed to appear for various reasons. The evidence of those who attended the hearing may be summarised as follows:
23. Mr Altun stated that he was living in the village of Akdoruk at the time of the events. He explained that on the day of the incident, early in the morning, he had gone to the fields to work. While he was working in the fields, he saw that smoke was rising above the village. From where he was standing, he was able to see that the village was full of soldiers and that it was burning. On his way back to the village, he was stopped by his wife, who told him not to return to the village. She informed him that the soldiers had burned down six houses including theirs and that their house, animals and possessions had been completely destroyed. Mr Altun’s wife further told him that the soldiers had a list of names in their hands and that his name was also included on it.
24. Mr Altun affirmed that he had stayed at his sister’s house for a few days after the burning of his home and then had gone to Diyarbakır to stay with his daughter.
25. Concerning his application to the national authorities, he further confirmed that he had gone to the judge at the Kulp Magistrate’s Court with his brother Ahmet Altun and his fellow villager Mustafa Aldemir. They had submitted hand-written petitions to the judge and requested him to conduct a visit to the village of Akdoruk to assess the damage they had suffered. The judge however had refused their request for security reasons. On the same day, the applicant, Ahmet Altun and Mustafa Aldemir were further called before the Kulp public prosecutor, who took their statements concerning the burning of their houses. Mr Altun further testified that Ahmet Altun and Mustafa Aldemir, who had been called to the Kulp Gendarmerie Station to give further evidence, had been beaten by the gendarmes. He was therefore frightened to go to the gendarmerie station to give a statement.
26. Mr Altun further stated that the soldiers had gone back to the village of Akdoruk in January 1994 and burned down the remaining houses.
27. The witness, who is the applicant’s wife, was in the village of Akdoruk at the time of the incident. She explained that after her husband had gone to the fields early in the morning, a large number of soldiers arrived in the village on foot. The soldiers had a list in their hands and they read out the names of certain villagers, including the applicant’s. Thereafter, they threw a sort of flammable material towards their house and the stable which caught alight. She tried to save the animals but was stopped by the soldiers. She believed that the soldiers had burned down the houses because the villagers had refused to become village guards. The witness further stated that Ahmet Altun, Mustafa Aldemir and Hüseyin Aldemir had been arrested by the soldiers.
28. Mrs Yaman, who is the sister of the applicant, was living in the village of Akdoruk at the time of the events. She explained that on the day of the incident, the soldiers had arrived in the village on foot. She saw them throw some chemical substance and burn down the applicant’s house. Her sister-in-law tried to save some of the animals but was stopped by the gendarmes. Her brother was not in the village at the time of the incident. The witness affirmed that the applicant and his wife had stayed at her house after their house was burned down. The witness believed that the soldiers had burned down the village as a punishment, when the villagers refused to become village guards. She explained that her own house was also burned down in January 1994.
29. Mr Aldemir was living in the village of Akdoruk at the time of the events. On the day of the incident, a number of soldiers came to the village on foot. They first went to the applicant’s house and burned it down. Then they burned down six more houses including his house and that of the village mayor, Mehmet Yeşil. The soldiers had a list in their hands and told the villagers that they had instructions to burn down the houses of those on the list. The soldiers subsequently apprehended the witness together with some other villagers. They were all taken to Narlıca village on foot. Mr Aldemir stated before the Delegates that the villagers of Akdoruk had been asked to become village guards about a month prior to the incident. The witness moved to Diyarbakır following the burning of his house. Together with the applicant and another villager, Ahmet Altun, he went to the Kulp Magistrate’s Court judge to complain about the burning of their houses. They further gave statements to the public prosecutor on the same day. Mr Aldemir testified that Ahmet Altun and himself had been summoned to the Kulp Gendarme Statation to give further evidence. He affirmed that he had been beaten by the gendarmes and forced to sign a paper. He therefore disowned the content of the statement dated 3 March 1994.
30. Mr Yeşil was the mayor of Akdoruk village at the time of the incident. On 13 November 1993 early in the morning the witness heard intensive shooting around the village. An armed clash was taking place outside the village. He later learnt that 6 terrorists had died during this clash. Subsequently, a group of soldiers arrived in the village and told him to leave the village for his life was in danger. As a result, leaving his wife and children in the village, the witness left the village on foot with some soldiers and returned to the village three days later. When he returned, he saw that six of the houses, including his house and that of the applicant, had been burned down. The witness further affirmed that he did not see who had burned down the houses but he maintained that the houses were burned because of the clash between the PKK and the security forces. When asked about the investigation and examination report, dated 2 May 1995, the witness admitted that he had signed this report at the Kulp Gendarme Station but stated that no on-site inspection had been conducted in the village.
31. The witness was living in one of the hamlets of Akdoruk village at the time of the event. Early in the morning of the incident, the witness saw a number of soldiers arrive in the village. The soldiers asked the witness to act as their translator. The soldiers had a list of names in their hands and their captain told the witness that they were going to burn down Abdullah Altun’s house. They therefore ordered the witness to tell the applicant’s wife to evacuate the house. The witness saw that soldiers scattered chemicals around the house with a tube, put a match to it and set it alight. They burned down everything, including the animals. In all, the soldiers burned down six houses in the village, including the house of the village mayor, Mehmet Yeşil, who was also in the village during the incident. The soldiers subsequently arrested some of the villagers, including the village mayor and his three daughters. After spending the night in the village, the soldiers left the village on foot the next morning. The witness affirmed that a month before the burning of the houses, the villagers had been called to a meeting in Narlıca by the security forces and had been asked to become village guards.
32. Mr Eren was living in the village of Akdoruk at the time of the events. Early in the morning of the incident, he saw soldiers arriving in the village. He did not hear any gunshots. The witness then saw the soldiers burning down some of the houses in the village, including the house of the applicant and that of the village mayor, Mehmet Yeşil. He recalled that Abdullah was not in the village when his house was burned down but he remembered seeing Abdullah’s wife crying. His own house was not burned down that day. The soldiers subsequently arrested some villagers, including the witness. They were taken to Narlıca village on foot and then to the Kulp Gendarme Station by military vehicles. They were kept in the station for three days and three nights and were given only bread and water. The soldiers came back to the village at the beginning of 1994 and burned down the remaining houses.
33. The witness was the gendarme station commander in Kulp District in 1993. He was under the command of Ali Ergülmez. The witness confirmed that he had been involved in the investigation of the complaint concerning the burning of the applicant’s house by the security forces. He had taken statements from two of the complainants but one of the complainants had not shown up for interrogation. He admitted that it had not been possible to conduct an on-site inspection report in the village due to security reasons. The witness stated that there were no records about a military operation or an armed clash in the village of Akdoruk at the time of the incident. He further affirmed that there had been several large scale operations carried out by different military forces in the area and that not all of these operations had been recorded in the log book of the Kulp Gendarme Station. He explained that Akdoruk village had been evacuated by January 1994 and that armed clashes had been quite frequent in the area. When questioned about the possible involvement of security forces in burning down houses, the witness denied this possibility.
34. The witness was the deputy commander of the Kulp Gendarme Station in 1993. His commander was Ali Ergülmez. He stated that he had been involved in the investigation and had taken a statement from Mustafa Aldemir on 3 March 1994. He affirmed that, had a military operation been conducted in the Akdoruk village by the Kulp Gendarmerie, they would definitely have the pre- and post-operation reports. However at that time several military units had been engaged in many military operations and the witness did not know for certain whether another military troop had conducted an operation in the area or not. He admitted that they did not keep records of the operations carried out by other units. Arguing that terrorists, dressed up in military uniforms, had been burning some of the villages, the witness denied any involvement of the military forces in burning down the houses in the area.
35. The witness was the commander of Kulp District Gendarmerie in 1993 and Akdoruk village had fallen under his jurisdiction. He stated that when he was appointed as investigating officer by the District Governor to investigate the allegations into the burning of the applicant’s house, he had assigned Mr Tasçı to investigate the matter. He stated that he had signed the report that had been drafted by Mr Taşçı without verifying its content. He further admitted that another military troop could have conducted a military operation in the Akdoruk village without his knowledge. The witness further denied the allegations which suggested that the Kulp gendarmerie forces had been involved in burning villages in the area.
36. The witness was the Kulp public prosecutor in 1993 and had taken the first statements from the applicant, Ahmet Altun and Mustafa Aldemir. Mr Aslan stated that he had written down everything that the three complainants had told him and had read out their statements to them before taking their signatures. The witness further admitted that it had not been possible for him to conduct a visit to the Akdoruk village for security reasons. He also recalled that at that time, the prosecutors in the region had lacked investigative powers to investigate the allegations against the security forces.
37. The witness stated that he was living in the Kulp District at the time of the incident. He was in the Akdoruk village a few days before the incident and saw six dead bodies outside the village. He maintained that the villagers were all afraid to live in the area as a result of terrorist attacks. The witness affirmed that he was not in the village when the applicant’s house was burned down.
38. The witness stated that he had moved from Akdoruk village to the Kulp District in 1979. Indicating that he had never lost contact with his fellow villagers from Akdoruk, he stated that he was aware that most of the villagers were afraid to live in the area as a result of the frequent terrorist attacks. The witness affirmed that he was not in the village when the applicant’s house was burned down.
39. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003).
VIOLATED_ARTICLES: 13
3
8
NON_VIOLATED_ARTICLES: 14
18
5


ITEMID: 001-60884
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF LAGERBLOM v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-3
JUDGES: Nicolas Bratza
TEXT: 9. The applicant, who was born in 1942, settled in Sweden in the second half of the 1980s. His mother tongue is Finnish.
10. On 3 December 1991 the applicant was charged before the District Court (tingsrätten) of Gothenburg with aggravated drunken driving and driving without a driver’s licence. According to the record of the police investigation, he did not request the assistance of a public defence counsel. On 9 January 1992 the District Court, apparently of its own motion, appointed the lawyer H. as public defence counsel for the applicant.
11. On 22 April 1992 the applicant was charged with another incident of aggravated drunken driving and driving without a driver’s licence. According to the record of the police investigation, he stated that he wished the lawyer S. to be appointed as public defence counsel.
12. On 31 August 1992 the applicant was charged with yet another incident of aggravated drunken driving and driving without a driver’s licence. According to the record of the police investigation, he did not wish to be assisted by public defence counsel.
13. On 22 December 1992 the applicant was charged with causing a traffic accident, leaving the scene of the accident and driving without a driver’s licence. According to the record of the police investigation, he did not wish to be assisted by public defence counsel.
14. On 21 January 1993 the applicant was charged with possessing a knife in a public place. According to the record of the police investigation, he did not wish to be assisted by public defence counsel.
15. On 22 January 1993 the public prosecutor applied for a detention order regarding the applicant, who was suspected of attempted aggravated assault. According to the prosecutor’s application, the applicant wished to have S. as public defence counsel. At the subsequent hearing, the lawyer P.S. replaced, with the District Court’s permission, H. as public defence counsel. According to the minutes from the hearing, the applicant requested that S., a Swedish lawyer who had previously assisted him and who knew Finnish, should be appointed as his public defence counsel, whereupon the judge informed him that he should give reasons for his request in writing. The court rejected the application for a detention order and released the applicant. Subsequently he did not submit a written request for a replacement of defence counsel.
16. On 9 February 1993 the applicant was charged with attempted aggravated assault and possessing a knife in a public place.
17. When scheduling the main hearing, the District Court had telephone contact with the applicant who reiterated his request to have S. appointed as his public defence counsel. The court asked the applicant to contact H. in the matter.
18. Before the District Court the applicant apparently lodged some submissions independently of counsel H. It appears that these submissions were all in Finnish, the applicant invoking his right under the Nordic Language Convention (Nordiska språkkonventionen) to submit pleadings in his mother tongue. All the written submissions were translated into Swedish and entered into the case-file.
19. At the main hearing on 10 May 1994 the applicant was assisted by H. as public defence counsel. Neither the minutes of the hearing nor the judgment delivered in the case contains any indication that the applicant at that time expressed a wish to have his public defence counsel replaced. In addition to counsel’s oral submissions, the applicant defended himself orally in Finnish via a court-appointed interpreter. He denied some of the offences he was charged with, confessed some and declared that he neither confessed nor denied the remainder of the charges.
20. By a judgment of 24 May 1994 the applicant was convicted on all the above-mentioned counts and sentenced to 1 year and 2 months in prison. He was also ordered to pay 450 Swedish kronor (SEK) of the total litigation costs in the case. These included H.’s fees which amounted to SEK 10,395 for, inter alia, ten hours of work. The remainder of the costs was borne by the State.
21. The applicant appealed against the judgment in respect of the charges he had denied. The prosecution also appealed, seeking a more severe sentence. The prosecution stated that the applicant was in great need of public counsel for his defence, although he clearly did not wish to be represented by H.
22. On 23 August 1994, in the proceedings before the Court of Appeal (hovrätten) for Western Sweden, the applicant requested that counsel H. be replaced by S. The applicant reiterated that he had previously been assisted by S. and that he was able to communicate with him in Finnish. S. had declared that he was willing to assist the applicant as public defence counsel.
23. On 6 September 1994 the applicant’s request was refused, the appellate court considering that sufficient reasons for counsel to be replaced had not been presented. On 30 November 1994 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal against the Court of Appeal’s decision.
24. As in the proceedings before the District Court, the applicant apparently lodged some submissions in Finnish before the appellate court, all of which were translated into Swedish and entered into the case-file.
25. The Court of Appeal heard the case on 22 May 1995. H. attended the hearing as the applicant’s counsel. There is no indication in the minutes of the hearing that the applicant opposed H.’s presence. Having heard H.’s oral pleadings, the Court of Appeal gave the applicant the floor via a court-appointed interpreter.
26. On 6 June 1995 the Court of Appeal upheld the applicant’s conviction and sentence. It also decided that the litigation costs in the appeal proceedings – including H.’s fees of SEK 3,455 – should be paid by the State.
27. On 23 August 1995 the Supreme Court refused the applicant leave to appeal.
28. The references made in the following pertain to chapter 21 of the Code of Judicial Procedure (Rättegångsbalken; hereinafter “the Code”), if not otherwise indicated.
29. The suspect may conduct the defence on his or her own (section 1) or with the assistance of a defence counsel (section 3) who, as a main rule, is appointed by the suspect (section 3, subsection 2). A defence counsel so appointed is referred to as private defence counsel, as opposed to one appointed by a court who is referred to as public defence counsel.
30. Public defence counsel is to be appointed for a person who is arrested or in detention, if he or she so requests. Upon request, such counsel will also be appointed for a person suspected of an offence for which the statutory penalty is imprisonment for at least six months (section 3 a, subsection 1). In addition, public defence counsel must be appointed under either of the following circumstances: (1) if the suspect is in need of counsel due to the criminal investigation, (2) if there is such a need on account of it being uncertain which penalty will be imposed and there is reason to impose a penalty other than a fine or a conditional sentence or a combination of those penalties, or (3) there are other special reasons relating to the suspect’s personal situation or the subject matter of the case (section 3 a, subsection 2). However, if the suspect has already appointed defence counsel, no additional public counsel is to be appointed (section 3 a, subsection 3).
31. The court considers the question of appointing public defence counsel if such appointment has been requested or it finds cause therefor of its own motion (section 4, subsection 2). A request for the appointment of public defence counsel may be made by the suspect or the public prosecutor responsible for the pre-trial investigation. In deciding this issue, the starting-point for the court is whether there is a need for counsel considering the character of the matter at stake. According to the preparatory documents to the legislation (Government Bill 1983/84:23, p. 13), there may not be any consideration of the suspect’s economic situation in this context.
32. The suspect has a certain influence on the appointment of public defence counsel. Thus, the person suggested by the suspect is to be appointed if he or she is competent and the appointment would not cause a considerable increase in the costs or there are other special reasons against that appointment (section 5, subsection 2). According to the preparatory documents (Nytt juridiskt arkiv (NJA) II 1943, p. 285), it is important that the suspect has confidence in the person assisting him or her. Somebody else than the person suggested should be appointed only if the above-mentioned reasons are at hand. There is no right to have public defence counsel who speaks the suspect’s mother tongue, but such considerations may be taken into account. Otherwise, the matter of language is solved by using interpreters paid out of public funds.
33. The appointment of public defence counsel may be revoked if there is no longer a need for such counsel or if there is some other justifiable reason. If the suspect authorises another person than the publicly appointed counsel to conduct his or her defence, the appointment is to be revoked, unless this would cause considerable inconvenience (section 6).
34. A publicly appointed counsel may also be replaced; such a replacement, however, has to be supported by justifiable reasons (see NJA II 1943, p. 285). There are some examples in case-law of how this issue has been dealt with by the courts.
35. In one case (NJA 1980, p. 177) the Supreme Court allowed that public defence counsel be replaced on the ground that special importance had to be attached to a lack in the defendant’s confidence in his counsel when there was a risk of long-term imprisonment and there could be differing opinions as to what evidence should be presented to the court. The District Court had sentenced the defendant to six years’ imprisonment for, inter alia, an aggravated narcotics offence.
36. Another case (NJA 1981, p. 1080) concerned an accused who, pleading not guilty, had been sentenced for murder to life imprisonment. The Supreme Court stated that in such a case, where the accused had no confidence in his public defence counsel, he should be allowed to have that counsel replaced.
37. In a third case (Rättsfall från hovrätterna (RH) 17:84) a Finnish national was suspected of murder. The Court of Appeal did not allow the replacement of his public defence counsel in favour of someone who was able to speak Finnish.
38. Private defence counsel is paid for by the suspect. If the suspect is acquitted, the costs of the defence are normally reimbursed. Public defence counsel, however, is paid out of public funds (Section 3 a). Chapter 31 of the Code regulates who will eventually bear counsel’s costs in such a case. Normally, if the suspect is convicted, he or she will have to pay the costs of the defence, in whole or in part, depending on his or her economic situation. If the suspect is acquitted, the State will bear the costs, as with the costs of private defence counsel.
39. A decision by a District Court to refuse a request for the appointment of public defence counsel, or a decision to appoint another counsel than the one suggested by the suspect, may be appealed against to a Court of Appeal and further to the Supreme Court.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-102362
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ICHIN AND OTHERS v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (victim);Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 5. Ms Ichina was born in 1960, Mr Ichin was born in 1991, Ms Dmitriyeva was born in 1969 and Mr Dmitriyev was born in 1990. They live in Sevastopol.
6. On 31 December 2003 Mr Ichin, Mr Dmitriyev and another individual Mr K., all of them minors, stole food supplies and kitchen appliances from a school canteen.
7. On 5 January 2004 they were questioned by the police and confessed to the theft. They returned some of the stolen goods.
8. On 7 January 2004 the investigator instituted criminal proceedings into the theft, after having noted that, between 30 December 2003 and 2 January 2003, unknown persons had broken into a school canteen and stolen food supplies and kitchen appliances.
9. On 13 January 2004 the investigator, with the approval of the District Prosecutor, lodged requests with the Sevastopol Nakhimovskiy District Court (“the Nakhimovskiy Court”) to place Mr Ichin and Mr Dmitriyev in a juvenile holding facility in accordance with Article 7-3 of the Code of Criminal Procedure. The investigator noted that Mr Ichin and Mr Dmitriyev had committed deliberate actions that could be classified as a crime under part 3 of Article 185 of the Criminal Code, that both of them came from big families with low incomes, had contact with criminals, had poor references from school, had a tendency to take part in illegal activities and could not be influenced by their parents. The investigator noted that, in view of the above considerations, there were sufficient grounds to believe that Mr Ichin and Mr Dmitriyev could commit socially dangerous acts (суспільно небезпечні діяння) again.
10. The same day the applicants were summoned by the investigator to appear before the court on 14 January 2004 as witnesses, with their lawful representatives, for having committed socially dangerous acts foreseen by part 3 of Article 185 of the Criminal Code.
11. On 14 January 2004 the Nakhimovskiy Court examined the requests in the presence of the applicants and the prosecutor. By two decisions of the same day, the court ordered Mr Ichin and Mr Dmitriyev to be placed in a juvenile holding facility. The court noted that Mr Ichin and Mr Dmitriyev were accused of socially-dangerous acts and that criminal proceedings had been instigated against them on 7 January 2004. With regard to the reasons given in the investigator's requests (see paragraph 9 above), the court concluded that there were sufficient grounds to believe that Mr Ichin and Mr Dmitriyev could evade the investigation and the course of justice and could continue their criminal activities. The court's decision was final and not subject to appeal.
12. Mr Ichin and Mr Dmitriyev remained in the juvenile holding facility until 13 February 2004.
13. On 3 March 2004 the investigator instituted criminal proceedings against Mr Dmitriyev and Mr Ichin for stealing food supplies and kitchen appliances from the school canteen.
14. On 3 and 4 March 2004 respectively, Mrs Dmitriyeva and Mrs Ichina wrote to the President of the Nakhimovskiy Court complaining of degrading treatment of their sons by the personnel of the juvenile holding facility. In his reply of 15 March 2004 the President of that court informed them that he lacked the power to instigate criminal proceedings against the personnel of the holding facility.
15. According to Mrs Ichina, her complaints to the prosecutor alleging degrading treatment of Mr Ichin in the juvenile holding facility were answered only by a letter from the prosecutor informing her that there were no grounds for a criminal investigation regarding the personnel of the holding facility.
16. According to Mrs Dmitriyeva, her complaints to the prosecutor alleging the degrading treatment of Mr Dmitriyev in the holding facility remained unanswered.
17. On 26 April 2004 the investigator decided that the criminal proceedings against Mr Ichin and Mr Dmitriyev should be terminated as they were under the age of criminal liability and the case should be referred to a court for the application of compulsory educational measures.
18. On 14 May 2004 the Sevastopol Nakhimovskiy District Prosecutor approved the decision of 26 April 2004.
19. On 4 February 2005 the Nakhimovskiy Court examined the materials concerning the application of compulsory educational measures with respect to Mr Ichin and Mr Dmitriyev and decided to limit the punishment to a warning to both of them. There is no evidence that this decision was appealed against.
20. Relevant provisions of the Code as in force at the material time provide as follows:
Article 7-3
Procedure for consideration of cases involving socially dangerous acts committed by persons who have not yet reached the age of criminal responsibility
“Where an investigator establishes in a criminal case that the socially dangerous act in question was committed by a person between the age of eleven and the age of criminal responsibility, he or she shall give a reasoned decision for terminating the case and applying compulsory educational measures to the minor. The case shall then be sent to the prosecutor together with the decision.
...
If it has been established that a person aged between eleven and fourteen who has committed a socially dangerous act resembling an act punishable under the Criminal Code of Ukraine by more than five years' imprisonment requires urgent removal from society, then upon the decision of the investigator or the inquiry body, and with the consent of the prosecutor and by a reasoned decision of the court, he or she may be placed in a juvenile holding facility for a period of up to thirty days. The participation of the defence counsel in such a measure shall be ensured from the time of the placing of the minor in the juvenile holding facility...”
Article 447
Procedure for the application of compulsory educational measures to a minor
“When in the course of the criminal case examination the court finds that the young offender, who had committed a minor offence or an offence of medium severity, can be corrected, it may issue a decision, by resolution of the judge, terminating the case and imposing on the minor one of the compulsory educational measures mentioned in Article 105 § 2 of the Criminal Code of Ukraine.
The judge or the president of the court shall, within ten days, schedule the hearing of the case transferred by the prosecutor under the procedure prescribed by Articles 73 or 9 of this Code if he/she agrees with the decision reached by the prosecutor or investigator. In the event of disagreement, the case shall be returned to the prosecutor with the reasoned decision.
The examination of the case mentioned in paragraph 2 of this Article shall be held in public with the compulsory presence of a prosecutor and a defence counsel. In the course of examination, the minor and his/her defence counsel may argue their case and evidence substantiating or disproving the commitment of the offence by the person concerned is examined also. The court also examines other aspects of the circumstances which are essential for the purpose of making a decision as to the application of the compulsory education measures. Minutes shall be taken during the court hearing. After the court's examination is completed, the prosecutor and then the counsel for the defence may express their opinions.
If there are sufficient grounds to consider that the person, who, by the court's decision, is to be transferred to the special educational support institution, will take part in illegal activity, then as well as with the aim of ensuring the execution of its decision, the court can, for a temporary period of up to thirty days, place this person in a juvenile holding facility which may transfer him or her afterwards to a special educational support institution.”
21.The relevant provisions of the Law provided as follows:
Article 6 Courts
“The courts examine cases:
concerning minors who have committed a crime;
...
concerning detention of minor-offenders in a juvenile holding facility...
Cases referred to in the first part of this article shall be examined by the specifically authorised judges (the panel of judges) with the participation of juvenile services, unless otherwise provided by law.”
Article 7 Juvenile holding facility
“...Minors aged between 11 and 18 may be sent to the juvenile holding facilities for up to thirty days where they:
have committed an offence before reaching the age of criminal responsibility for such offence if it is considered necessary to isolate them from society (by a resolution of the body of inquiry and the investigator sanctioned by the prosecutor or by a resolution of the court);
...
are transferred to the special institutions for minors by a decision of the court;
are absent without official leave from the special educational support institution in which they were staying ...”
22. Relevant provisions of the Regulations read as follows:
“1.1. Juvenile holding facilities (hereinafter JHF) are special institutions of the bodies of the Interior for minors, which are designed for temporary detention of certain categories of minors that need to be isolated.
1.2. Juvenile holding facilities (JHF) are created for temporary detention of minors under the age of 11 to 18 ...
1.3. The main tasks of the holding facilities are:
prevention of the juvenile offenses;
conducting preventive and educational work with them;
identification of the causes and conditions which lead to delinquency among the teenagers;
ensure appropriate conditions of their detention.
...
5. Preventive and education work in the holding facilities:
5.1. Preventive and education work with minors, who are held in the holding facilities, shall be conducted taking into consideration the age, degree of pedagogical neglect, social danger of the previously committed offenses and other circumstances that are important for effective preventive measures of influence.
5.2. In order to prevent juvenile delinquency, identifying and eliminating causes and conditions that contribute to it, the officials of the holding facilities:
5.2.1. Shall identify the living conditions and education of minors in the family, their personal qualities, interests, reasons for absence without leave from the special educational institution, deficiencies in the activity of enterprises, institutions and educational institutions that contributed to the commission of offenses; reasons for committing crimes, persons participating in them, those places on the list of wanted persons, as well as those who are missing; places of selling stolen goods, the cases of involving minors in criminal and other antisocial activities.
5.2.2. Shall immediately notify the local departments of the Interior in the Crimea, Kiev, Kiev Region, Regional Departments and the City Department of Sevastopol and the departments on transport about the identification of persons who have committed crimes or other circumstances that are important for their successful investigation.
5.2.3. Shall carry out individual educational activities with minors who are held in the holding facilities, focusing on the development of positive predispositions and interests, elimination of behavioural deficiencies, involving them in education and work.
5.2.4. Shall inform the interested government agencies and NGOs on the causes of juvenile offences, make proposals for elimination of such causes and conditions, as well as on improving the organization of education and labour education of minors, who are held in the holding facilities.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1