ITEMID: 001-95314
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ORCHOWSKI v. POLAND
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 3;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant, Mr Krzysztof Orchowski, is a Polish national who was born in 1971 and is currently serving a prison sentence in Wrocław Remand Centre in Poland.
6. By the time the instant case was communicated to the Polish Government, the applicant had been detained subsequently in four detention facilities (see paragraphs 8 – 45 below). On 26 April 2007, however, he was transferred to Kamińsk Prison and from there, on 3 July 2007, to Gdańsk Remand Centre. Subsequently, on 13 February 2008 the applicant was taken to Goleniów Prison. On an unspecified date, as it appears, in late-2008 he was transferred to Warszawa Mokotów Remand Centre. Finally, as it appears, on 13 February 2009 the applicant was committed to Wrocław Prison, where he remained.
7. The parties’ statements relating to the conditions of the applicant’s detention prior to April 2007 are, to a large extent, contradictory. The Government did not make any comments with regard to the applicant’s detention after that date, except for the period when the applicant was detained in Goleniów Prison.
8. From 5 September until 11 December 2003, from 30 December 2004 until 11 February 2005, from 19 July until 2 December 2005 and from 20 December 2005 until 6 March 2006 the applicant was detained in Słupsk Remand Centre.
9. Detainees in Słupsk Remand Centre had a right to a one-hour long outdoor exercise in one of the two yards, measuring 276 and 141 square metres (“m²”) respectively. Groups of thirty and fifteen inmates respectively shared the yards at a time. The applicant had access to the TV and entertainment room in the remand centre twice a week for two hours at a time. He could watch television or play table tennis.
10. The Government submitted that during the first term of his detention in Słupsk Remand Centre (from 5 September until 11 December 2003) the applicant was held in six different cells. The size of those cells varied between 8 and 27 m² and the occupancy rate fluctuated between one and six persons. In either case, the space per person ranged between 3 and 13 m².
11. As regards the other periods of the applicant’s detention, the Government submitted that Słupsk Remand Centre had not kept any records of the applicant’s accommodation or of the number of prisoners assigned to each cell. They noted that it had not been possible to keep records because the number of detainees assigned to a particular cell changed very often, even several times per day.
12. The Government acknowledged the existence of overcrowding in Słupsk Remand Centre at the time when the applicant was detained there. They submitted that the remand centre’s governor had been obliged to regularly inform the competent penitentiary judges about the fact that the detainees had less than the statutory 3 m² of space per person.
13. The Government also submitted that the prisoners were entitled to one hot shower at least once per week. The shower-room in Słupsk Remand Centre was, at the relevant time, equipped with twelve shower-heads. Prisoners showered in groups of twelve.
14. Between July 2003 and February 2006 the Słupsk State Sanitary Inspectorate (Państwowy Inspektorat Sanitarny) carried out five inspections at Słupsk Remand Centre. The Government did not provide any information as to the results of those inspections. They noted that cells in Słupsk Remand Centre were disinfected once a week. In addition, a sufficient amount of hygiene and sanitary products was distributed among detainees every month. Prisoners had their underwear changed once a week and their clothes and shoes, as often as necessary. The bed linen was washed every two weeks. Detainees had their meals inside their cells.
15. The applicant’s cells were well-lit and ventilated. They were in a good condition as they had been renovated only a few years previously.
16. The applicant submitted that his cell during his first detention in the Słupsk Remand Centre measured 17 m² and was shared by ten detainees, including the applicant (1.7 m² per person).
17. The official statistics obtained by the applicant’s lawyer from the Head of the Press and Communication Unit in the Office of the General Director of the Prison Service (Kierownik Zespołu Prasowego i Komunikacji Społecznej w Biurze Dyrektora Generalnego Służby Więziennej) reveal the following data. The overcrowding (the degree by which the number of prisoners exceeds the maximum allowed capacity of a particular detention facility) at Słupsk Remand Centre during the applicant’s first detention was nearly 11 %, during his second detention – 3%, during his third detention – 14 % and during his fourth detention – nearly 4 %.
18. From 12 December 2003 until 28 January 2004, from 23 until 29 March 2006, from 22 June until 2 August 2006, and from 30 August 2006 until 18 October 2006, the applicant was detained in Sztum Prison.
19. The Government submitted that throughout his detention in Sztum Prison the applicant was held in eight different cells. The size of each of those cells was over 6.5 m² and the occupancy rate ranged from one to three persons, including the applicant. Most of the time the space was between 3.2 and 3.5 m² per person. However, from 30 August until 18 October 2006 the applicant was assigned to cell no. 295 which measured 6.6 m² and was shared by three detainees, including the applicant. In that particular cell, the space per person did not exceed 2.2 m².
On the other hand, the Government stressed that between 12 December 2003 and 28 January 2004, 23 and 29 March 2006 and 22 June and 2 August 2006 the living conditions provided to the applicant in Sztum Prison had been in compliance with domestic standards.
20. At the relevant time, four sanitary inspections took place in the prison (9 December 2003 and 9 March, 9 June and 11 November 2006). The inspections did not reveal any irregularities. The cells in Sztum Prison were clean, sufficiently ventilated and lit, and in an overall good condition.
21. Prisoners had at least one hot shower per week and they entered the bathhouse in groups of a maximum of twenty-five people.
22. The applicant had access to the prison’s “day-room” where he could watch television or play games and to a 476 square metre-large fitness room, where he could play volleyball and practise other sports. In addition, prisoners were entitled to an hour long outdoor exercise in one of four yards. Two of the yards in question measured 1,800 and 1,200 m² respectively. The strolling paths within these yards were 136 and 108 metres long respectively and two metres wide. The other two yards measured 500 m² each. The strolling paths within these yards were fiftysix metres long and two metres wide. The outdoor exercise took place in groups of a maximum of forty prisoners.
23. Meals in Sztum Prison were served three times a day inside the cells. At lunchtime prisoners received a hot meal. The food served in prison was tasty and of a good nutritional value.
24. The applicant submitted that his cell during his first detention in the Sztum Prison measured 24 m² and was shared by nine persons, including the applicant (2.6 m² per person). During his second detention in the Sztum Prison, the applicant was held in cell no. 394 ward IV, which measured 9 m² and was shared by four persons, including the applicant (2.25 m² per person).
25. According to the official data obtained by the applicant’s lawyer from the Office of the General Director of the Prison Service the rate of overcrowding in Sztum Prison was nearly 10% during the applicant’s first detention, 20% during his second and third periods of detention and nearly 25 % during his fourth detention in this facility.
26. From 28 January until 15 April 2004, from 10 March until 19 July 2005, from 2 until 20 December 2005, from 10 May until 6 June 2006, from 2 until 30 August 2006, from 18 October 2006 until 13 February 2007, and from 3 July 2007 until 13 February 2008 the applicant was detained in Gdańsk Remand Centre.
27. The Government submitted that throughout his detention in Gdańsk Remand Centre the applicant was held in twenty-three different cells. The size of those cells ranged from 5.5 to 24.5 m². They submitted that the occupancy rate (the number of prisoners in a cell and the living space per prisoner) during the first two of the applicant’s detention terms in Gdańsk Remand Centre had not been recorded.
During the applicant’s third, fourth, fifth and sixth periods of detention the number of the applicant’s cellmates ranged from two to six. The space per person during that time was usually a little over 3 m². However, for twenty days in May 2006 and twenty days in August 2006 the applicant shared his cells with four other inmates and the surface available was 2.8 m² per person. In addition, the number of the applicant’s cellmates during one week between May and June 2006 had not been recorded.
28. The Government acknowledged the fact that, at the relevant time, the remand centre was facing a problem of overcrowding. On 19 June and 13 September 2006 the governor decided to reduce the available space per person to less than the statutory standard of 3 m². On each occasion a competent penitentiary judge was duly informed about the situation.
On the other hand, the Government submitted a letter from the administration of Gdansk Remand Centre dated 19 December 2007, which stated that during an unspecified period the applicant was assigned to a cell measuring nearly 6.5 m². He had shared that cell with only one inmate.
29. The Government did not submit any other information as to the occupancy rate in Gdańsk Remand Centre during the applicant’s detention from 3 July 2007 until 13 February 2008.
30. At the relevant time fifteen sanitary inspections were carried out by the Gdańsk District or Regional Sanitary Inspectorate (Stacja SanitarnoEpidemiologiczna): one in 2004, four in 2005, five in 2006 and five by May 2007. The cells were clean and sufficiently ventilated and lit.
31. The applicant could take a minimum of one hot shower per week. Detainees accessed the shower room in a number equal to the number of shower heads in a particular unit.
The bed linen was usually changed once every two weeks, more often if it was considered necessary.
32. The applicant had a right to an hour-long outdoor exercise in a group of thirty in one of four outdoor yards. The size of the yards ranged from 36 to 101 m².
33. Meals were served three times per day inside cells. They were tasty and of a good nutritional value. A hot meal was always served at lunchtime.
34. The applicant submitted that Gdańsk Remand Centre had been overcrowded.
35. To that effect he furnished a copy of a document, which had been issued by the administration of Gdańsk Remand Centre, containing the list of the applicant’s cells. The history of the applicant’s transfers within the remand centre, namely the cells’ numbers and the dates of the applicant’s placement, is concordant with the data submitted by the Government. The document submitted by the applicant, however, also shows the information which was missing from the records submitted by the Government, namely the occupancy rate of the applicant’s cells during the first two periods of his detention.
36. According to that information, from 11 until 25 February 2004 the applicant was placed in cell no. 31 of ward II (PC2), which measured 12.6 m² and was occupied by six people, including the applicant (2.1 m² per person). From 25 February until 25 March 2004 he was held in cells no. 27 and 19 of ward V (PC5). Both cells measured approximately 12.5 m² and they were occupied by five detainees (2.5 m² per person). From 25 March until 5 April 2004 the applicant was assigned to cell no. 18 in ward II (PC2), which measured 5.5 m² and was shared by two people including the applicant (2.7 m² per person). From 5 until 7 April 2004 he was in cell no. 41 of ward II (PC2). This cell measured 6.7 m² and was occupied by two persons including the applicant (3.3 m² per person). From 7 until 15 April 2004 the applicant was detained in cell no. 9 of ward V (PW5), which measured 7.1 m² and was occupied by two people, including the applicant (3.5 m² per person).
37. In the second period of his detention in Gdańsk Remand Centre, the applicant was assigned to the following cells: from 10 until 21 March 2005 – to cell no. 4 of ward III (PW3), which measured 12.2 m² and was occupied by four people, including the applicant (3 m² per person); from 25 March until 3 June 2005 – to cell no. 8 in ward V (PZ5), which measured 15.2 m² and was shared by a total number of seven detainees (2.1 m² per person); and from 3 June until 19 July 2005 – to cell no. 7 in ward V (PZ5), which measured 20.3 m² and was occupied by a total number of eight people (2.5 m² per person).
38. Lastly, the document submitted by the applicant contains a detailed list of the applicant’s cells during the last period of his detention in Gdańsk Remand Centre, namely from 3 July 2007 until 13 February 2008.
In the relevant period of seven months the applicant was moved twenty times between different cells. The size of the cells in question ranged from 5.5 to 13.6 m² and their occupancy rate, from one to six persons. In most of the cells the space per person oscillated around 2.5 m². In addition, for a total number of approximately thirty-five days the applicant was detained in cells in which the space per person was 2 m². His detention in cells, in which the space per person was slightly over 3 m², amounted to approximately 120 days.
The document also reveals that from 16 until 19 November 2007 the applicant was detained alone in a cell, measuring nearly 7 m².
39. According to the official data obtained by the applicant’s lawyer from the Office of the General Director of the Prison Service the rate of overcrowding in Gdańsk Remand Centre was nearly 15% during the applicant’s first detention, 4% during his second detention, 17% during his third detention, 14% during his fourth detention and nearly 9% during his fifth detention in this facility.
Finally, from 15 April until 30 December 2004, from 11 February until 10 March 2005, from 6 until 23 March 2006, from 29 March until 10 May 2006, from 6 until 22 June 2006, and, from 13 February until 26 April 2007, the applicant was detained in Wejherowo Remand Centre.
40. The Government submitted that throughout his detention in Wejherowo Remand Centre the applicant was moved seventeen times between different cells. The size of those cells varied between 5 and 20 m². The occupancy rate had not been recorded, although the applicant was twice kept in solitary confinement.
41. The Government submitted that the problem of overcrowding had been recorded for the first time in August 2000. It persisted until 24 January 2007, with the exception of two periods of downslide, namely from 24 March until 14 April 2005 and from 20 February until 8 March 2006. Between April 2005 and November 2006, the remand centre’s governor issued four decisions on reducing the statutory standard of 3 m² per detainee and informed the competent penitentiary judge accordingly.
42. In the absence of the necessary data, the Government could not rule out that during a certain time, the applicant was detained in cells in which the space per person was below 3 m². In particular, at the relevant time there was a practice of placing eight detainees in six-person cells.
On the other hand, the Government stressed that during the applicant’s last period of detention in Wejherowo Remand Centre (from 13 February until 26 April 2007), he shared his cells only with one person, thus having nearly 4 m² of individual space.
43. At the relevant time, regular sanitary inspections were carried out in the remand centre by the Wejherowo Sanitary Inspectorate (Stacja Sanitarno-Epidemiologiczna): two in 2004, one in 2005, two in 2006 and one in 2007. The inspections did not reveal any irregularities. The cells were clean and well-equipped. They were sufficiently lit and ventilated.
44. The applicant could take a minimum of one hot shower per week. Detainees accessed the shower room in a number equal to the number of shower heads in a particular unit.
45. The applicant had a right to an hour-long outdoor exercise in a spacious yard together with a group of ten to twenty fellow inmates. In addition, he had a right to spend two hours in the remand centre’s “TVroom” four times per week.
Bed linen was changed once every two weeks. Prisoners’ underwear, towels and dishcloths were washed twice a week.
46. Meals, which conformed to the standard quality requirements, were served inside the cells.
47. The applicant submitted that his cell during his first detention in the Wejherowo Remand Centre measured 18 m² and was shared by a total number of eight people (2.2 m² per person). During the applicant’s second detention in the Wejherowo Remand Centre he was held in cell no. 12 ward V, which measured 13 m² and was shared by six persons (2.1 m² per person). The applicant stressed that the problem of overcrowding in that facility persisted from 2000 until 24 January 2007. The only periods when Wejherowo Remand Centre was not overcrowded were from 24 March until 14 April 2005 and 20 February until 8 March 2006.
48. The applicant furnished a copy of a letter from the governor of Wejherowo Remand Centre dated 19 June 2008. It was stated in it that the applicant had been detained in cells in which the statutory space of 3 m² per person had been reduced due to the general problem of overcrowding persisting in the country. At the relevant time, and with the exception of the period from 13 February until 26 April 2007, the maximum allowed population rate in the remand centre was exceeded by 4 to 15%, depending on the specific moment.
49. Moreover, the official statistics from the Office of the General Director of the Prison Service revealed that the rate of the overcrowding in Wejherowo Remand Centre was at 8.5% during the applicant’s first detention, nearly 9.5 or 12.5% (the document reveals contradictory figures) during his second detention, 2 or 3% (contradictory figures) during his third detention, nearly 11% during his fourth detention, and 14.5% during his fifth detention in this facility. During the sixth and last period of the applicant’s detention in Wejherowo Remand Centre, the occupancy rate was 16% below the maximum allowed capacity of this establishment.
50. It appears that from 26 April until 3 July 2007 the applicant was detained in Kamińsk Prison.
51. The Government did not make any submissions with reference to Kamińsk Prison.
52. The applicant submitted that he had been assigned to cell no. 19 in ward III. The cell in question measured 13 m² and was occupied by six inmates, including the applicant (2.1 m² per person). The toilet annex took up 130 cm of the cell’s space. There were also three bunk beds, two tables and six stools. The applicant submitted that his cell was cramped and overcrowded.
53. The applicant submitted a copy of a letter of 31 May 2007 sent by the Kamińsk Prison administration to the Ministry of Justice. It was stated in the letter that from 26 April 2007 until 31 May 2007 the applicant had been detained in cell no. 50, which measured 16.4 m² and was shared by six people, including the applicant (2.7 m² per person). It was also noted that on 2 February 2007 a competent penitentiary judge had again been informed of the fact that Kamińsk Prison was overcrowded and that that problem would persist for at least another six months.
54. In addition, according to the official statistics from the Office of the General Director of the Prison Service the overcrowding in Kamińsk Prison at the time of the applicant’s incarceration there reached almost 15%.
55. It appears that from 3 July 2007 until an unspecified date in late2008 the applicant was detained in Goleniów Prison.
56. The Government submitted that as of 20 February 2008 the applicant had been detained in a cell in which the minimum statutory standard of 3 m² of space per person had been respected.
57. The applicant submitted the official statistics from the Office of the General Director of the Prison Service which showed that the overcrowding in Goleniów Prison at the time of his incarceration there reached almost 7%.
58. Moreover, the applicant specified that he was at first detained in cell no.100 in wing E. The cell in question measured 10 m² and was shared by four prisoners including the applicant (2.5 m² per person). He was then transferred to cell no. 103 in wing E. That cell measured 18 m² and was shared by seven people including the applicant (2.57 m² per person).
59. Lastly, the applicant confirmed that from 20 February 2008 until an unspecified date he had been assigned to a cell in which the space of 3 m² was available for each prisoner.
60. From an unspecified date in late-2008 until 13 February 2009 the applicant was detained in Warszawa Mokotów Remand Centre.
61. The Government did not make any submissions with reference to this detention facility.
62. The applicant submitted that in Warszawa Mokotów Remand Centre he had been detained subsequently in: cell no. 10 in wing B1, cell no. 1 in wing A1 and cell no. 23 in wing C1. The first cell measured 7 m² and was shared by three people including the applicant (2.3 m² per person). The second of the mentioned cells measured 21 m² and was shared by twelve prisoners including the applicant (1.75 m² per person). Lastly, the third cell measured 10 m² and was shared by four people including the applicant (2.5 m² per person).
63. Finally, as it appears, on 13 February 2009 the applicant was committed to Wrocław Prison, where he remained.
64. The parties did not make any submissions with regard to this detention facility.
65. The applicant lodged numerous complaints about the conditions of his detention with the domestic authorities. He also applied on numerous occasions for a break in serving the sentence on account of the poor conditions of detention, as well as his difficult family situation. All of the applicant’s complaints and requests were to no avail.
66. The Government in their submissions to the Court, acknowledged the fact that the applicant had lodged numerous complaints about the various aspects of his detention. The complaints lodged on 3, 5 and 7 May and 28 May 2004, 18 April, 12 May and 28 December 2005, and 18 May and 29 June 2006 related, among other issues, to the problem of overcrowding and inadequate living conditions in Wejherowo, Gdańsk and Słupsk Remand Centres. The relevant authorities, including the competent Regional Inspectorates of the Prison Service, considered them all manifestly ill-founded.
67. The applicant, for his part, submitted a copy of a letter of 30 June 2004 of the Deputy Director of the Gdańsk Regional Inspection of Prison Services (Okręgowy Inspektorat Służby Więziennej) who had acknowledged the existence of overcrowding in Gdańsk Remand Centre at a level of 10% above the norm.
68. Likewise, the problem of overcrowding was acknowledged by the Director of the Gdańsk Remand Centre in his letter of 31 March 2005, which had been issued in reply to the applicant’s complaint of 14 March 2005. However, the complaint that the applicant had diminished contact with the warden due to overcrowding was found to be unsubstantiated. It was indicated that the applicant had three meetings with the warden in less than one month.
69. The applicant’s requests to be granted a break in serving the sentence were dismissed as manifestly illfounded. The most recent decision was delivered by the Słupsk Regional Court on 6 February 2006.
70. In his additional submissions of 25 November 2008 the applicant stated that on 19 February 2008 he had lodged with the Warsaw Regional Court (Sąd Okręgowy) an action for compensation under Articles 23 and 24 of the Civil Code in conjunction with Article 448 of the Civil Code. The applicant sued the State Treasury for the alleged damage resulting from overcrowding and inadequate living conditions in all the detention facilities in which he had so far been detained.
71. It appears that the case is currently pending before the court of firstinstance.
72. On 9 March 2006 the applicant submitted new complaints related to the criminal proceedings against him. However, despite the Registry’s request he failed to provide copies of the relevant domestic courts’ decisions delivered in the course of the impugned proceedings.
73. It appears that on 11 December 2002 the Gdynia District Court convicted the applicant of unspecified offences and sentenced him to four years’ imprisonment (no. II K 1200/01). It also appears that on 3 November 2003 the Gdańsk Regional Court dismissed an appeal against that judgment (no. Ka 469/03). The applicant submitted that he had not been present at the appeal hearing. He was, however, represented by a legalaid lawyer and, ultimately, he was informed about the outcome of the case. The applicant’s conviction became final as he failed to lodge a cassation appeal. It appears that the applicant subsequently asked the Ombudsman (Rzecznik Praw Obywatelskich) to lodge an extraordinary cassation appeal against the secondinstance judgment, but his request was to no avail.
74. Article 2 of the Constitution reads as follows:
“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.”
75. 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 ...”
76. 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.”
77. 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.”
Article 35 of the Code in its relevant part provides:
“1. If in the opinion of the penitentiary judge it is necessary to issue a decision which would exceed his competence, in particular an administrative decision, [the penitentiary judge] shall transfer his observations and conclusions concerning the matter to the competent authority.
2. The competent authority shall inform the penitentiary judge, within 14 days or within another time-limit determined by the latter, about their position. Should the penitentiary judge consider this position unsatisfactory, he shall transfer the matter to the [superior] authority; the superior authority shall inform the penitentiary judge about the outcome of the case.
3. In the event of the repetition of flagrant omissions in the functioning of a prison, remand centre or another establishment, in which persons deprived of liberty [are quartered], or if the conditions existing [there] do not secure the respect of the rights of persons who are held there, a penitentiary judge shall appeal to the competent superior authority to [remedy the situation] within a set deadline. Should the [situation be not resolved] within the deadline, a penitentiary judge shall appeal to a competent minister to suspend the activity or to close down entirely or partly the prison, remand centre or establishment 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”).
78. 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.”
79. 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 (see paragraph 70 below). They further referred to two groups of civil law cases in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights. To that effect the Government submitted copies of twelve judgments which were delivered by domestic courts in 2006 and 2007 and nine final judgments which were delivered in 2008 (see paragraphs 72 and 73 below).
80. 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.
81. 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 occupancy in detention facilities throughout the country and stressed that the minimum standard of 3 m² 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 every infringement of a personal right. 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 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.
82. In four of the other cases cited by the Government, which had been examined by domestic courts in 2005, 2006 and 2007, the plaintiffs, nonsmokers detained with smoking inmates, had been awarded compensation (raging from PLN 2,000 to PLN 5,000) because it had been found that they were at risk of suffering or had actually suffered a health disorder. The first of those judgments was delivered by the Gdańsk Court of Appeal on 13 December 2005.
Another of the early cases referred to concerned a prisoner who had suffered food poisoning in prison (plaintiff, a certain S.L.; judgment of the Olsztyn Regional Court of 6 March 2007) and another concerned a detainee who had been beaten up by his fellow inmate (plaintiff, a certain M.P.; judgment of the Szczecin Court of Appeal of 29 March 2007).
In another case, brought by a certain J.K., who had been detained for seven days in an overcrowded and insanitary cell, the Warsaw Court of Appeal (judgment of 27 July 2006) granted partial compensation on account of the fact that the prison’s governor had failed to inform the competent penitentiary judge, in compliance with the applicable procedure, about the problem of overcrowding at the time the plaintiff was serving his sentence there.
In the case of a certain S.G. the Cracow Court of Appeal (judgment of 23 February 2007) 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.
In the case of a certain R.D. the Łódź Court of Appeal (judgment of 8 September 2006) awarded the applicant compensation in the amount of PLN 7,500 because the plaintiff was found to have been at a real risk of contracting a disease from his HIV positive inmates and had experienced significant psychological suffering.
Lastly, in four judgments which were delivered by the second-instance courts in late-2007 the plaintiffs (W.W., M.B, Z.Rz and H.T.) were awarded compensation (ranging from PLN 1,000 to PLN 3,600) on account of the infringement of their personal rights which they had suffered because of the overcrowding and insanitary conditions in their prison cells, and additionally in one case, of the deterioration of the plaintiff’s health.
83. In the ten final judgments delivered in 2008, the civil courts awarded compensation (ranging from PLN 1,000 to PLN 5,900) to plaintiffs who proved that they had have been detained in overcrowded and insanitary cells in certain cases, together with smokers or persons with hepatitis C.
84. 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 m² 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, the 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 remained the same as in the previous instrument, except for paragraph 2(4), which read 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.
85. 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 3 m² per person, thus causing chronic overcrowding in Polish prisons and exposing detainees to the risk of inhuman treatment. The Constitutional Court expressed its view as follows:
“In the opinion of the Constitutional Court, the text of the impugned Article 248 of the Code of Execution of Criminal Sentences and its interpretation in practice make this provision incompatible with Articles 40 and 41 paragraph 4 of the Constitution. Overcrowding in prisons, resulting from the implementation of the impugned provision, may lead to inhuman treatment of prisoners. It is difficult to imagine [that a person could be afforded] humane treatment in a cell, in which the space per person is less than 3 m² ...“
The court also observed that the overcrowding of detention facilities had to be treated as a serious problem, since it posed a permanent threat to the rehabilitation of prisoners. This view was expressed, inter alia, in the following paragraph:
“The postulate of humane treatment entails also the requirement of affording to detainees educational activities, which [would] prepare them for life after release from prison and prevent them from relapsing into crime, allowing for the achievement of the aims of a punishment.”
The Constitutional Court also made the following reference to Article 3 of the Convention:
“The Constitutional Court, while interpreting constitutional provisions resorts to, both, the substantive law of Article 3 of the Convention and acquis humanitarire which has been developed on the basis of the [Convention]. The court will not, however, consider the question of a violation of the Convention itself, since this does not lie within its competencies.”
Moreover, in the view of the Constitutional Court, the overcrowding in itself could be qualified as inhuman and degrading treatment. If combined with additional aggravating circumstances, it might even be considered as torture. In that connection the court noted that already the minimum statutory standard of 3 m² per person was one of the lowest in Europe.
The Constitutional Court further stressed that the provision in question was meant to be applied only in particularly justified cases, for example the occurrence of 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. In this connection, the court made a following remark:
“The Constitutional Court does not exclude, however, a possibility of placing convicted persons on a temporary basis in cells, in which the space per person would be below 3 m² ([derived from] Article 110 § 2 of the Code of Execution of Criminal Sentences). [Such possibility could occur] in genuinely exceptional circumstances (for example, a sudden increase of crime rate and the number of judgments imposing a prison sentence). The principles governing a temporary placement of convicted persons in such cells should, nevertheless, be clearly indicated. [The necessary] regulations cannot [be dubious] as to the exceptional character of the situation [in question], the maximum time in which a detainee can be placed in a cell with reduced space, the possibility and eventual principles and procedure regulating multiple placements in such cells.”
The court further observed that, 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 condoned 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 measures 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 cell space in Polish prisons, many convicted persons could not serve their prison sentences. At the time when the judgment was passed, the problem concerned 40,000 persons. To this end the court made the following observation:
“The Constitutional Court has decided, on the basis of Article 190 § 3 of the Constitution, to postpone the date on which the impugned Article 248 § 1 of the Code of Execution of Criminal Sentences will lose its binding force, taking into consideration the factual situation of the Polish penitentiary system, namely the permanent overcrowding in prisons and the lack of places for serving a prison sentence.
The [above] decision (...) results, not even, from the need to amend legal provisions but from the necessity to undertake numerous actions of organisational nature, in order to eliminate overcrowding in prisons. What also seems to be desired is shifting penal policy in the direction of wider use of non-isolation [preventive] measures.
An imminent loss of binding force of Article 248 § 1 of the Code of Execution of Criminal Sentences would deepen the already existing pathological situation, in which many convicted persons cannot serve their [prison] sentences because of the lack of space in prisons. This problem concerns currently over 40,000 convicted persons. Such status quo, in which final judgments of [criminal] courts are not enforced, leads to the weakening of the authority of the State.”
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 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 3 m² per person.
86. In 1996, 2000 and 2004 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) carried out three periodic visits to different detention establishments in Poland. The following recommendation has been repeatedly included in the relevant CPT’s reports concerning the visited establishments [CPT/Inf (98) 13, CPT/Inf (2002) 9 and CPT/Inf (2006) 11]:
“Strenuous efforts to be made [by the Polish authorities] to reduce the cell occupancy rates, the objective being to provide a minimum of 4 m² of living space per prisoner”
87. The relevant extracts from the General Reports prepared by the CPT read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature...
48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...
50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...”
88. The relevant extracts from the Recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec (2006)2, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies), read as follows:
“...
1. All persons deprived of their liberty shall be treated with respect for their human rights.
...
3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.
5. Life in prison shall approximate as closely as possible the positive aspects of life in the community.
6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.
...
18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2 In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards (...)
18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.
18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.
18.5 Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation.
18.6 Accommodation shall only be shared if it is suitable for this purpose and shall be occupied by prisoners suitable to associate with each other.
...
19.1 All parts of every prison shall be properly maintained and kept clean at all times.
19.2 When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean.
19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.
19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.
19.5 Prisoners shall keep their persons, clothing and sleeping accommodation clean and tidy.
19.6 The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials.”
89. The Government submitted that the problem of overcrowding in Polish detention facilities had started in September 2000. It was at its worse in November 2006 with the rate of overcrowding peaking at 24%. Since then, however, a series of robust measures had been undertaken to fight the problem of overcrowding. As a result, the rates of overcrowding, calculated for all detention facilities, dropped by September 2008 to 6.8% and calculated only for prisons and remand centres, to 8.1%. According to the statistics published by the prison service authorities, in June 2009 those rates were 3.2% and 4% respectively.
90. The Law of 7 September 2007 on the electronic surveillance of persons serving a penalty of imprisonment outside penitentiary facilities (Ustawa o wykonywaniu kary pozbawienia wolności poza zakładem karnym w systemie dozoru elektronicznego; Journal of Laws of 2007, No. 191, item 1366;) enters into force on 1 September 2009. The law introduces a possibility of serving short-term sentences under a non-incarceration system. It aims, among other things, at reducing the number of prisoners. In the Government’s submission, within the first two years after the implementation of the new law, 3,000 convicts would be taken under the programme, the ultimate target being 15,000 convicted persons per year.
In addition, the Ministry of Justice prepared a series of draft laws, amending the relevant provisions of the Code of Execution of Criminal Sentences and other relevant acts. The proposed amendments aim at eradicating the problem of overcrowding by employing different means, among others, by empowering the governors of detention facilities to stay the enforcement of a prison sentence in the event that the detention facility, to which a particular convicted person had been assigned, has no vacant places.
In addition, Article 248 of the Code of Execution of Criminal Sentences which had been declared unconstitutional and other related provisions are to be repealed or amended in enforcement of the judgment of the Constitutional Court of 26 May 2008 (see paragraph 85 above). As of the date of the Court’s judgment the draft law in question had not yet been submitted to the Parliament.
91. In the Government’s submission a special programme had been drawn up for the years 2006 to 2009, with the aim of obtaining 17,000 new places in detention facilities.
As submitted by the Government, more than 50% of the target had already been reached within the first two years of the programme’s implementation. In addition, 1,500 new places were created by the end of 2007 in former schools and army compounds in Dąbrowa, Przytuły and Przywary.
The plan also envisaged to obtain 3,900 new places by the end of 2008 and another 2,499 by the end of 2009.
VIOLATED_ARTICLES: 3


ITEMID: 001-93690
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF RACHWALSKI AND FERENC v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 8;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 6. The applicants were born in born in 1973 and 1976 respectively and live in Wągrowiec.
7. The parties do not fully agree about the facts of the case, which may be summarised as follows.
8. The second applicant lived with a group of friends, including the first applicant, mostly students, in an old and decrepit house they had rented in Wrocław. They occasionally invited their friends to spend a night or a couple of days in their house.
9. On the night of 14 June 1997 there was a group of students sleeping in the house. At 3 a.m. they were awakened by two police officers patrolling the area. The police enquired whether the inhabitants knew the owner of an unlocked car parked in front of the house.
10. The applicants and one of their friends, D. S., started a polite discussion with the police officers about the car. It was confirmed that one of the residents of their apartment was the owner of the car. However, the police announced their intention of towing the car away to the police car park. The applicants argued that it was not forbidden or illegal to keep the car unlocked. At the police’s request, they produced their identity cards and the registration card of the car, whose owner was asleep in the house.
11. The police were not satisfied with their explanation and the dispute became more intense. In reaction to the opinions expressed about the intervention, in particular by D. S., the policemen used truncheons. They hit D. S. several times and handcuffed him. The applicants tried to argue with the policemen, to no avail. The police called other police officers and shortly afterwards approximately ten other policemen arrived. They hit the first applicant with their truncheons several times and the second applicant once. Thereupon D. S. was taken to the police car where he was beaten. The applicants were ordered to stand against a fence. They were pushed and jostled and the policemen insulted them referring to them as “scum”, “slobs”, “queers” (hołota, brudasy, pedały).
12. Subsequently, a group of policemen, armed with truncheons and guarded by police dogs, entered the house, woke up the other occupants and ordered them to stand against the wall. Then the police searched the house. No information was provided about the grounds, purpose or legal basis for the search. During this time the police showered abuse on the students. They pushed and shoved them. This lasted for about half an hour. Afterwards, the police left the house and warned the students that some of them were in an illegal situation as they were not registered as inhabitants of the house, and threatened that they would be in trouble if they submitted a complaint about the events.
13. The police left, taking D. S. with them.
14. On 16 June 1997 the applicants requested to be examined by a forensic medicine specialist. It was established that the first applicant had two long bruises on his left arm, and other bruises on the palm of his hand. The second applicant had a blue mark on her bottom (13 by 9 cm). It was stated that these bruises could have been caused by the use of police truncheons.
15. The second applicant and her friend D. S. lived in the house with the owner’s permission. They often received young visitors from all over the country. On the night in question the unlocked car parked in front of the house had seemed very suspicious to the policemen A. C. and R. S., who thought it was stolen and considered that it should be towed away. They had knocked at the window and the second applicant informed them that the owner was in the house. She first objected to the police action at night, and then went to look for the owner of the car among the fourteen young people who were sleeping in the house. The applicants behaved aggressively, loudly expressing opinions about the purpose and nature of the intervention. D. S. raised his voice to the police and pushed A. C.
16. The police action was a result of the fact that the applicants did not comply with the police requests to provide necessary information. The applicants talked to the police with raised voices and took a very active part in the struggle with the policemen.
17. The police officer had misinterpreted the first applicant’s intentions when he handed him his documents and had hit him to prevent his being attacked. The applicant was most probably hit once.
18. The atmosphere was tense. The owner of the car gave the police the keys and documents to the car. As D. S. was unruly and continued to express objections, the policemen decided to arrest him. While he was being taken into custody by the police, he hit one of them in the face. Thereupon truncheons were used against him. Given the attitude of D. S. and of other persons present, the police called for assistance. Two other police patrols and an emergency team arrived. As the applicants were interfering with the arrest of D. S., they were hit with truncheons.
19. Police officers D. R. and J. G. then entered the house to check the identity of the persons present. After that, the intervention was terminated.
20. On 16 June 1997 the applicants requested the Wrocław District Prosecutor to institute criminal proceedings against the police for abuse of authority. On 23 December 1997 the prosecutor refused to do so. He found that no criminal offence had been committed.
21. The prosecutor considered that the police action had been justified. The police could have reasonably suspected that the unlocked car had been stolen, even though it had not been reported as such. The further developments had certainly come as a surprise to both the police and other persons involved in the incident. The second applicant had objected in a pretentious tone (“pretensjonalny ton głosu”) to having been woken up and to the check on the car taking place at night. She had been informed that the car would be towed away if the owner was not found. She could not locate the owner of the car, as there were many people in the house who did not know each other. The second applicant had woken all of them up in an attempt to find the owner.
22. D. S. had objected in a loud voice to the police intervention. He had insisted that the intention of the police was to harass the persons in the house. As he had not obeyed the police requests to calm down and the verbal exchange between him and the police officer A. C. had become increasingly heated, it had been decided that he should be taken to the police car. The prosecutor considered that this had been justified in the light of D. S.’s aggressive behaviour. Given that D. S. had been behaving aggressively, direct force had been used against him, including the use of truncheons and handcuffs. It was true that the applicants’ versions of the facts diverged, and these divergences could not be clarified on the basis of evidence from other witnesses, but it was clear that, in the face of his resistance, it had been necessary to use such force in order to take D. S. to the car.
23. Given the applicants’ behaviour, the police had had to call assistance. They had also felt threatened by the presence of other persons at the scene of the incident. The applicants had been hit as they had ignored the order to let D. S. go so that he could be taken to the car. In the darkness, the police had not noticed that the first applicant had in fact had his documents in his hand in order to show them to the police, and they had thought that he intended to hit them.
24. It was finally noted that the accounts of the facts given by the persons present at the scene, other than the police, were highly divergent, making it impossible to establish the facts of the case. However, the testimony given by the policemen was coherent. Therefore, the submissions of the other persons could not be considered credible and had to be assessed critically.
25. The prosecutor concluded that the measures taken by the police had been proportionate to the situation.
26. The first applicant appealed. He argued that the police brutality and aggression had been totally unjustified. Nothing in the behaviour of the persons present had justified the use of force. The police had entered private property and effected a search of the house without any sound reasons, hitting and insulting the persons sleeping in the house. He argued that he was a law-abiding citizen, a student of two university faculties and a member of the Municipal Council of his town. He had not given any reason to be beaten, verbally insulted and humiliated just at the whim of the police. The police should not intervene in private property at night and hit, insult and humiliate people just because they looked, or lived, differently. The facts as established by the prosecutor did not correspond to what had happened. All the facts had been established on the basis of the arguments of the police, who had apparently been instructed by police lawyers as to what they should say. During the questioning the prosecutor had made unpleasant remarks about the hairstyles, clothes and views of the young inhabitants of the house, which had influenced her decision to discontinue the proceedings. He submitted that the police had humiliated both himself and the others.
27. The second applicant submitted that the assessment of the evidence had been biased and that the police had clearly abused their authority, insulting and humiliating her and other participants in the incident.
28. On 20 May 1998 the Wrocław Regional Prosecutor upheld the contested decision. He considered that the intervention of the police had been justified in so far as they wanted to verify the identity of the owner of the car. D. S. had behaved aggressively, both verbally and physically. Regardless of whether he had intended to hit A. C. in the face or not, his behaviour could have been perceived as an intentional assault. It was for that reason that a decision to arrest him had been taken. The identity check of the persons present in the house had been necessary as they had insulted the policemen.
29. The social status of the young people, namely the fact that they were students, imposed certain obligations on them, in particular an obligation to cooperate with the police in the interest of law and order.
30. The findings of the inquiry had not established that the students had been insulted verbally by the police, as the policemen consistently denied this. Nothing had been found to support the first applicant’s submission that the testimony of the policemen had been suggested to them by the police lawyers.
31. The prosecutor concluded that the contested decision had to be upheld.
32. The Code of Criminal Procedure contains the following provisions on the search of premises by the police:
33. The police’s powers regarding the use of coercive measures is regulated by the Police Act of 6 April 1990 and by the Ordinance of the Council of Ministers of 17 September 1990 setting out the conditions and method of application of coercive measures.
34. Pursuant to section 14 of the Police Corps Act, within the limits of their competence, the police are required – in order to examine, prevent and detect offences and petty offences – to carry out operational and reconnaissance activity, take part in an investigation or inquiry, or carry out administrative activity and safeguard public order. In the exercise of their powers the police must respect human dignity and human rights (section 3).
35. Section 16 of the Police Corps Act provides that if a person does not comply with the lawful request of police officers they may apply such coercive measures as, for instance, using truncheons.
36. The police are bound by the principle of minimal use of coercive measures. In accordance with this principle the police must only use such measures when they are absolutely necessary in the given circumstances in order to enforce execution of orders issued by the police (section 16 § 2).
37. The ordinance setting out the conditions, circumstances and method of application of coercive measures by the police, issued on the basis of section 16 § 4 of the Police Corps Act (Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police), indicates – among other coercive measures – the use of truncheons.
Section 5 of the (“the 1990 Ordinance”) provides:
“1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order.
2. When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others. ”
Section 13 of the Ordinance, in so far as relevant, provided at the material time:
“2. It is forbidden to use police truncheons against persons displaying passive resistance unless the use of force turns out to be ineffective.
3 (1) It is forbidden to hit or push with a truncheon against a [person’s] head, neck, stomach and non-muscled and particularly delicate parts of the body...”
38. Pursuant to section 142 § 1 of the Police Corps Act a police officer who in the performance of official duties oversteps his powers and violates the personal interests and dignity of a citizen, is liable to imprisonment for up to five years.
VIOLATED_ARTICLES: 3
8


ITEMID: 001-96168
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: IWANCZUK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Krzysztof Iwańczuk, is a Polish national who was born in 1962 and lives in Konstancin-Jeziorna. He was represented before the Court by Mr J. Brydak, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 April 1993 the prosecution filed a bill of indictment against the applicant with the Wrocław Regional Court. He was charged with several financial offences.
The case was heard by the panel composed of Judge A.W. and two lay judges. A hearing scheduled for 22 December 1998 was cancelled due to the illness of one of the lay judges. On 11 August 1999 the lay judge died. In addition, Judge A.W. was due to leave the Wrocław Regional Court to take up a post at the Supreme Administrative Court on 17 January 2000.
As a result the applicant’s case had to be heard de novo by a newly composed panel.
On 13 September 1999 the Minister of Justice seconded Judge J.M. from the Oleśnica District Court to serve as a judge of the Wrocław Regional Court from 1 October 1999 to 31 March 2000.
On 13 September 1999 Judge J.M. was put on a list of judges of the 3rd Criminal Division of the Wrocław Regional Court. On the same day the President of the 3rd Criminal Division assigned Judge J.M. to the applicant’s case under Article 351 § 1 of the Code of Criminal Procedure. He noted that the judge who had been previously assigned to the case was due to take up a different judicial post. Furthermore, it was necessary to divide work evenly between judges in the division.
On 18 October 1999 Judge J.M. scheduled the first hearing in the applicant’s case for 17 November 1999. It appears that subsequently Judge J.M. was appointed a regional court judge.
On 5 May 2003 the Wrocław Regional Court, composed of Judge J.M. and two lay judges, convicted the applicant of fraud. It sentenced him to five years’ imprisonment and a fine. The applicant appealed.
On 1 April 2004 the Wrocław Court of Appeal upheld the first-instance judgment.
The applicant lodged a cassation appeal, arguing that the panel of the Wrocław Regional Court had been composed in breach of Article 351 § 1 of the Code of Criminal Procedure. He submitted that the President of the 3rd Criminal Division should have assigned his case to the next judge on the list of judges and not to Judge J.M. Since that was not the case, the composition of the court was decided in an administrative manner. The applicant further relied on Article 6 § 1 of the Convention, arguing the lack of objective impartiality of the Regional Court.
On 10 December 2004 the Supreme Court requested the President of the 3rd Criminal Section of the Wrocław Regional Court to provide a list of judges, referred to in Article 351 § 1 of the Code of Criminal Procedure, which had been valid on 13 September 1999.
On 17 December 2004 the requested list of judges together with an explanation as to the composition of the panel was received by the Supreme Court. The list of judges adjudicating in the 3rd Criminal Division of the Wrocław Regional Court valid on 13 September 1999 included Judge J.M. The list contained eleven judges listed in numerical order. Judge A.W. was fifth on the list and Judge J.M. was eleventh on the list. He was indicated as having been seconded to the Regional Court by a decision of the Minister of Justice of 13 September 1999. It was further stated that on 13 September 1999 the applicant’s case was assigned to Judge J.M. The reasons for this decision were even distribution of work between judges in the division and the necessity to provide Judge J.M., a newly-seconded judge, with cases to examine. The Supreme Court was further informed that A.W., the judge previously assigned to the case, had been due to be transferred to the Supreme Administrative Court on 17 January 2000.
On 29 April 2005 the Supreme Court held a hearing. It dismissed the applicant’s cassation appeal as manifestly ill-founded and pronounced the most relevant reasons for its decision. The Supreme Court further informed the parties that due to the manifestly ill-founded character of the cassation appeal, it was not required to provide written grounds for its decision (Article 535 § 2 of the Code of Criminal Procedure).
Article 351 § 1 of the Code of Criminal Procedure (,,CCP”) stated at the material time as follows:
“A judge (...) is assigned [to a case] in the order in which the case was filed and by reference to a list of judges of a given court or division which is accessible to the parties. A departure from this rule is permissible only by way of omitting a judge on the ground of his/her illness or on other important grounds and [that circumstance] should be specified in a decision on holding a hearing”
Article 351 § 2 of the CCP provides that in cases concerning the most serious charges the composition of a panel is decided – on request of a prosecutor or a defence counsel – by drawing lots.
In a decision of 23 November 2004 (case no. V KK 195/04) the Supreme Court held that the notion of “other important grounds” within the meaning of this provision comprised “a heavy workload of a judge which made it impossible for him/her to decide on a case before the expiry of a limitation period”. The Supreme Court noted that the rule established in Article 351 § 1 of the CCP was not absolute and could be subject to limitations which took account of practical necessities.
In a resolution of 17 November 2005 (case no. I KZP 43/05) the Supreme Court found that Article 351 § 1 of the CCP would be breached if a different judge than the judge next on the list of judges was assigned to hear a case and if no important ground had been invoked to justify the departure from the rule.
The Ordinance of the Minister of Justice of 12 August 1998 on particular rules concerning assignment and drawing of judicial panels came into force on 1 September 1998. Paragraph 2 (1) of the Ordinance required that in each division there had to be a list of judges in alphabetical order. In addition, the list should include annotations about any circumstances constituting grounds for departure from the rules of assignment of judges specified in Article 351 § 1 of the CCP.