CZECHOWSKI v. POLAND
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Mirosław Czechowski, is a Polish national who was born in 1962 and lives in Dąbrowa Górnicza. The Polish 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. It appears that from 25 June 1990 to 17 April 2004 the applicant was detained and served various prison sentences for, inter alia, rape. In 1996 the Lubliniec District Court gave a cumulative sentence and sentenced him to ten years' imprisonment of which he apparently served eight years. In January 2002 the applicant's mother brought the applicant, who was in a detention centre, video tapes allegedly belonging to his late father. They were seized by the prison authorities as they turned out to contain pornography involving minors. On 23 April 2002 the Zabrze District Prosecutor decided to treat the tapes as evidence in a criminal investigation into the production and distribution of pornographic materials featuring scenes involving minors. An appeal by the applicant against this decision was dismissed on 28 November 2002. The applicant was notified of this decision on 16 December 2002 at the latest. On 15 May 2003 the applicant applied to the prison authorities for special prison leave to participate in administrative proceedings pending before the City Council concerning his official registration at a flat he had occupied before his detention. Subsequently, he applied for special prison leave in order to visit his stepfather in hospital. His requests were dismissed by the penitentiary judge. His appeals were dismissed by the Gliwice Penitentiary Court on 9 July and 24 September 2003. On 25 June 2002 the applicant was transferred to Cieszyn Prison, where he remained until 9 August 2002. On that date he was transported to Rzeszow Prison. According to the Government at that time the applicant was serving a sentence of ten years' imprisonment. In Cieszyn Prison the applicant was qualified as a “detainee requiring reinforced protection” (osadzony wymagajacy wzmocnionej ochrony). He was placed in a “protected cell” (cella chroniona) normally intended for persons detained pending trial. On an unspecified date he requested the Cieszyn district prosecutor to initiate an investigation into his allegations that he had been ill-treated in Cieszyn Prison between 25 June and 9 August 2002. The applicant submitted that the prison officers had been illegally monitoring and eavesdropping on phone calls he had made using a telephone booth installed in the prison. He further alleged that the prison officer M.S. had ordered him to strip naked and do knee bends each time he wanted to use the phone. He complained about the manner in which those searches had been conducted by prison officer M.S., alleging that the latter had tormented and humiliated him. On 16 October 2002 the Cieszyn District Prosecutor (Prokurator Rejonowy) discontinued the investigation into the allegations made by the applicant, finding that the prison officer had not breached his duties. The prosecutor established that the applicant had been transferred from Brzeg Prison because of his conflictual relations with other detainees. In Cieszyn Prison he had been placed in a special cell normally intended for persons detained pending trial, which offered him protection and isolated him from convicted prisoners. The prosecutor stated as follows: “In accordance with section 144 of the [2001 Ordinance of the Head of the Prison Service] [the applicant], as was the case for other detainees, was subjected to a personal check (kontrola osobista) when leaving the sleeping unit and after returning to it, as well as before individual meetings in the sleeping unit with the representatives of the prison authorities or other bodies. Moreover, [the applicant] was subjected to personal checks for security reasons each time he left or returned to his cell on the basis of a security instruction given to all prison officers working in the unit, namely, the “WWO Card” [Wymagający Wzmocnionej Ochrony – detainee requiring reinforced protection]. In such cases the officers working in Unit 1A were obliged to perform, in a separate room, a meticulous check of Mr Czechowski and of his clothes and belongings. The control of Mr Czechowski consisted of checking the inside of his mouth, armpits and anus. For this purpose Mr Czechowski, after undressing, was required to open his mouth, hold up his hands and do a knee bend (przysiad).” The prosecutor confirmed that detainees were authorised to make one phone call per day for up to a maximum duration of six minutes and that the applicant had often used the phone. Thus, on each occasion, as well as each time he left the unit, he had been subjected to a personal check. The applicant appealed against the decision. On 9 May 2003 the Cieszyn District Court (Sąd Rejonowy) dismissed his appeal. The court established that the applicant's complaints about being hindered when using the phone had already been examined and had been found to be manifestly ill-founded. The court did not find any shortcomings in the procedure allowing the applicant to use the phone and considered that the internal prison rules had been complied with. Further, the court stated that the applicant's further allegation that an offence had been committed “had not been confirmed in the course of the investigation.” The court did not make any direct reference to the applicant's complaints about being subjected to personal checks before using the phone. On 4 September 2004, after the applicant was released from prison, the police conducted a search of the applicant's flat and seized, inter alia, several video tapes, CDs and DVDs and a personal computer. On 4 September 2004 the applicant was arrested by the police in connection with this set of criminal proceedings against him. On 7 September 2004 the Dąbrowa Górnicza District Court decided to remand the applicant in custody in view of the reasonable suspicion that he owned films containing child pornography and had shown such films to a minor. He was also charged with having threatened, in the presence of a police officer, to blow up an apartment block. On 1 December 2004 the District Court extended the applicant's detention finding that there was a risk that he would interfere with the proceedings and that the investigation was ongoing. An appeal by the applicant against that decision was dismissed on 5 January 2005. On 2 March 2005 the applicant's detention was further extended. The court reiterated the grounds given previously and relied on the likelihood that a severe sentence would be imposed on the applicant and on the complexity of the case. The court further considered that there was a risk of the applicant interfering with the proper course of the proceedings given the nature of the offences he had been charged with. On 20 April 2005 the Katowice Regional Court (Sąd Okręgowy) dismissed an appeal lodged by the applicant. On 20 May 2005 the applicant was indicted before the Dabrowa Gornicza District Court on three charges: owning pornographic films featuring scenes involving minors, showing them to a minor and uttering threats. On 24 May and 5 September 2005 the trial court extended the applicant's detention in almost identically reasoned decisions. The court considered that there had been no exceptional personal or health reason to release the applicant from detention or to change the preventive measure imposed on him. On the latter date the first hearing was held. Subsequently, the applicant's detention was extended on 9 December 2005, 21 February and 13 June 2006. In addition to the existence of a reasonable suspicion against the applicant that he had committed the offences the court relied on the risk that he would interfere with the course of the proceedings, in particular by influencing witnesses. The court also underlined that the probability that a severe sentence would be imposed on the applicant was high as he had been a recidivist offender. Appeals by the applicant against those decisions were dismissed. On 7 June 2006 the Katowice Regional Court dismissed a complaint lodged by the applicant on 28 February 2006 alleging a breach of the right to have his case heard within a reasonable time under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki). The court found that since the indictment the trial court had been diligent and had acted speedily. In particular the first hearing was held as soon as it had been practicable and the trial court held hearings once a month. On 31 August 2006 the District Court convicted the applicant of possession of pornographic films featuring scenes involving children under the age of 15, showing such films to a minor under the age of 15 and uttering threats. The court sentenced him to two years and six months' imprisonment and ordered the seizure of the pornographic video tapes, CDs and DVDs as well as of his computer. Both the applicant and the prosecutor appealed against the judgment. On 17 November 2006 the Katowice Regional Court granted the applicant's request to attend the appeal hearing scheduled for 15 December 2006. On 30 March 2007 the Katowice Regional Court dismissed the appeals as manifestly ill-founded. The court also decided to release the applicant from detention. On 13 February 2008 the Supreme Court examined a cassation appeal lodged by the applicant. It acquitted the applicant of the charge of having uttered threats and remitted the remaining part of the judgment regarding the charges of possession of pornographic films and showing them to a minor to the lower court. The criminal proceedings regarding the last two charges are pending. Under section 116 of the 1997 Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) and rule 7 of the 1998 Rules on Serving Sentences (Regulamin wykonywania kary pozbawienia wolności), in force at the material time, a personal check of prisoners could be ordered if such a need arose. Their clothes, underwear and shoes, as well as their cells, could be searched. A personal check was permissible in particular when convicts or detainees left or returned to their cell. The Government submitted that the issue of personal search in the present case was also governed by the provisions of the unpublished Ordinance of the Head of the Prison Service. Section 143 stipulated that a strip search could be ordered in order to search for dangerous and prohibited items or in other justified circumstances. Section 144 provided that a strip search could be ordered, in particular, before leaving and after returning to the sleeping unit or work place. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.