CASE OF DEJNEK v. POLAND
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
5. The applicant was born in 1976 and is detained in Lublin. 6. On 10 October 2008 the applicant was arrested on suspicion of the attempted murder of his brother, K.D. 7. On 25 March 2009 a bill of indictment against the applicant was lodged with the Lublin Regional Court. 8. On 12 December 2011 the Lublin Regional Court convicted the applicant and sentenced him to 10 years’ imprisonment. 9. The applicant appealed. 10. On 21 August 2012 the Lublin Court of Appeal upheld the conviction. 11. On 7 December 2012 the applicant’s lawyer lodged a cassation appeal with the Supreme Court. 12. On 10 June 2013 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. 13. Following his arrest, on 11 October 2008 the applicant was remanded in custody in the Lublin Remand Centre. 14. On 22 August 2009 the prison authorities discovered 132 pills of psychoactive drugs hidden in the applicant’s clothes. 15. On 26 August 2009 the applicant encouraged other prisoners to start a hunger strike. On the same day, the Penitentiary Commission, viewing the applicant as someone who posed a severe danger to the safety of the facility, classified him as a “dangerous detainee”. The applicant then went on a hunger strike which lasted until 7 September 2009. He was punished by being placed in solitary confinement for fourteen days. 16. In November 2009 the applicant refused to continue to take part in his rehabilitation programme and was therefore excluded from it. 17. On 18 February 2010 the special regime for dangerous detainees was lifted in respect of the applicant. 18. Between 17 November 2009 and 31 March 2010 the applicant was detained in the Rzeszów Remand Centre. On the latter date he was transported back to Lublin. 19. The applicant’s behaviour during 2011 varied: he was sometimes rewarded for good behaviour and sometimes faced disciplinary measures. Such measures were imposed in particular for illegal contact with other inmates, for commencing hunger strikes and for being active in the prison subculture. 20. On 6 December 2011 prison officers found that the applicant had 80 Polish zlotys in cash from an unknown source. The money was seized and transferred to the applicant’s bank account. 21. On 30 January 2012 the applicant attempted to go for a walk in the prison yard without permission from the supervising officer and was reprimanded on 1 February. 22. On 4 February 2012 the applicant was visited by members of his family and tried to pass them an illegal message on a piece of paper. After the visit he was ordered to undergo a strip search. 23. On 6 February 2012 the applicant complained about the strip search to the Lublin Remand Centre. 24. On 17 April 2012 the director of the Lublin Remand Centre examined his complaint and found that the search had been performed in accordance with the law and that the applicant had not been debased or humiliated. The director also found that on 4 February 2012 the applicant had given a visiting member of his family a piece of paper with some notes on it. The director found that that “constituted a violation of discipline and order”. 25. On 29 April 2012 the applicant complained about another strip search, which had taken place on 28 April 2012. His complaint was examined on 29 June 2012 by the director of the Lublin Remand Centre, who found that the search had been carried out in accordance with the law. 26. On 5 June 2012 the applicant underwent a strip search which was accompanied by a search of his cell. The inspection of the cell was part of an action plan introduced at the Lublin Remand Centre in 2012 to increase security. The plan included the inspection of all the cells. 27. In his observations before this Court, the applicant’s lawyer submitted that the applicant had been ordered to undergo a strip search on 5 June 2012, even though he had had severe back pain and had barely been able to walk. He had also had difficulties getting undressed. 28. The applicant complained to the director of the remand centre. He submitted that after the search of his cell his personal belonging had been thrown on the floor, mixed in with other inmates’ possessions and that the cell had “looked like after a hurricane”. In the complaint he neither mentioned any irregularities as regards the strip search nor complained about back problems. 29. On 9 August 2012 the remand centre director dismissed the complaint. He found that the search had been performed in accordance with the law and had respected the applicant’s rights and personal dignity. The relevant part of the director’s decision read as follows: “The strip search and cell inspection were conducted in accordance with Article 116 §§ 2, 3, 4 and 5 of the Code of Execution of Criminal Sentences. The guards did not use offensive language and did not debase you. Nobody hit you. The objects which were inspected were not thrown around. Nothing was damaged during the search.” 30. In 2012 the applicant was seen by a neurologist seventeen times and on two occasions by a neurosurgeon. On 16 October 2012 an operation, apparently for back pain, was scheduled for the applicant for 17 September 2013. The doctors did not advise against body checks of the applicant. 31. On 25 August 2012 the applicant had a visit from his sister and brother-in-law and was afterwards ordered to undergo another strip search. He again complained to the director of the Lublin Remand Centre, submitting that the strip search had not been justified and had lacked legal grounds. 32. On 30 October 2012 the director of the Lublin Remand Centre dismissed the complaint as ill-founded. The relevant part of the decision read: “The strip search you were subjected to was carried out in accordance with the relevant provisions and with respect for your personal dignity.” 33. On 3 November 2012 the applicant received a visit from members of his family and was allowed to have direct contact with them. Afterwards, he was again ordered to undergo a strip search. The applicant stated that he had intense pain in his spine on that day and could barely stand and had therefore refused to undergo the search. The chief duty officer was then called. He arrived with three other guards and subjected the applicant to a strip search. He was ordered to strip naked, bend at the knees, show his penis and open his mouth. However, as he was deemed to have performed the guards’ orders “in a dilatory manner” he was punished on 6 November 2012 with a two-month ban on having direct contact with his family during visits, only being able to see them from behind a glass screen. 34. On 3 November 2012 the applicant complained to the Central Board of the Prison Service about the way the strip search of 3 November 2012 had been conducted. He submitted, among other things, that he had had severe back pain after the family visit, had barely been able to move and had therefore refused to undress. The prison officers had apparently ignored his complaints and had “forced him to undergo the strip search”. He also submitted in the complaint that he had been unable to get dressed after the strip search because of the severe pain in his back and that he had been left standing in only his underpants for about fifty minutes. One of the officers had then opened the window to let in freezing air to make him get dressed quickly. 35. On 7 November 2012 the applicant also complained about the imposition of the disciplinary penalty on him after the strip search of 3 November 2012. 36. On 20 November 2012 the director of Lublin Remand Centre informed the applicant that his complaint of 3 November needed further investigation, which would last until 7 December 2012. The applicant did not provide any further information about the outcome of those proceedings. 37. The complaint of 7 November 2012 was dismissed on 20 November 2012. The decision, issued by the deputy director of the Lublin Remand Centre, said that the “applicant refused to undergo a strip search and only agreed to comply when the chief duty officer was called”. The decision does not refer to the applicant’s submissions that the alleged reason for his refusal to undergo the strip search had been severe back pain. It also made no reference to his allegations that he had been left for about fifty minutes in a state of being unable to get dressed and that he had been forced to put his clothes on by someone letting freezing air into the room. The applicant then lodged a further complaint with the Lublin Regional Court, which, on 17 December 2012 upheld the decision given by the deputy director of the Lublin Remand Centre. The court found that the decision had been issued in accordance with the relevant provisions of the law and that it had no competence to examine whether the decision had been well-founded or not. 38. On 12 September 2013 the Lublin Regional Court, in view of the applicant’s state of health and his neurological and orthopaedic problems, granted him leave to undergo the operation outside prison. The applicant was scheduled to return to prison on 12 January 2014.