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«FOURTH SECTION CASE OF MILKA v. POLAND (Application no. 14322/12) JUDGMENT STRASBOURG 15 September 2015 This judgment will become final in the ...»

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FOURTH SECTION

CASE OF MILKA v. POLAND

(Application no. 14322/12)

JUDGMENT

STRASBOURG

15 September 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the

Convention. It may be subject to editorial revision.

MILKA v. POLAND JUDGMENT 1

In the case of Milka v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a

Chamber composed of:

Guido Raimondi, President, Päivi Hirvelä, George Nicolaou, Ledi Bianku, Krzysztof Wojtyczek, Faris Vehabović, Yonko Grozev, judges, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 25 August 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 14322/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Sławomir Milka (“the applicant”), on 10 February 2012.

2. The applicant, who had been granted legal aid, was represented by Mr J. Köhler, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

3. The applicant alleged that he had been subjected to disciplinary punishment while in detention for his refusal on numerous occasions to undergo body searches, which amounted to a violation of Article 3 of the Convention.

4. On 1 September 2014 these complaints were communicated to the Government under Articles 3 and 8 of the Convention and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and is detained in Dąbrowa Górnicza.

2 MILKA v. POLAND JUDGMENT The applicant’s refusal to undergo body searches and the disciplinary punishments imposed on him

6. The applicant was detained on remand in 2007 and 2008. He was subsequently convicted and served his sentence in various detention centres and prisons.

7. From 24 May 2011 the applicant was imprisoned in the Sosnowiec Remand Centre and from 17 May 2012 until 10 June 2013 in Wojkowice Prison.

8. On 20 October 2011 the applicant was transported to another location for the purpose of executing some procedural measures (doprowadzenie na czynności proceduralne) and was therefore asked to undergo a body search, however he refused to undress. He addressed the public officers in a vulgar fashion and displayed an unrepentant manner. His rehabilitation supervisor (wychowawca) therefore lodged a request for disciplinary punishment.

9. On 26 October 2011 the applicant went to the doctor to have his nails cut and behaved offensively towards the doctor, whereupon another request for disciplinary punishment was lodged against him. According to the reasoning supporting the request, the applicant admitted committing an act warranting disciplinary punishment but his attitude was unrepentant.

10. On 27 October 2011 the Director of the Sosnowiec Detention Centre examined both requests simultaneously and issued a reprimand (nagana) to the applicant by way of disciplinary penalty.

11. The applicant appealed.

12. On 17 January 2012 the Katowice Regional Court dismissed the appeal and upheld the challenged decision, finding that it had been issued in accordance with the relevant legal provisions.

13. On 18 May 2012 the applicant again refused to undergo a body search in Wojkowice prison.

14. On 23 May 2012 the Director of Wojkowice Prison imposed a disciplinary penalty on the applicant for his refusal to undergo a body search. The applicant was forbidden to receive food parcels for two months.

15. On 28 May 2012 the applicant appealed against this decision to the court.

16. On 18 July 2012 the Katowice Regional Court dismissed the appeal and upheld the challenged decision. The court did not examine the reasons for which the applicant had been required to undergo body searches. It found that the decision in question had been given in accordance with the relevant provisions of the Code of Execution of Criminal Sentences.

MILKA v. POLAND JUDGMENT 3

17. On 26 June 2012 the applicant again refused to undergo a body search in Wojkowice prison. From the written request for imposition of a disciplinary punishment on the applicant, it appears that he refused to take off his underwear. The rehabilitation supervisor requested that the applicant be placed in solitary confinement for a period of 7 days by way of punishment.

18. On 27 June 2012 the Director of Wojkowice Prison imposed on the applicant a disciplinary penalty of solitary confinement for a period of 7 days. The applicant served this penalty between 27 June and 4 July 2012.

19. The applicant appealed against this decision.

20. On 3 September 2012 the Katowice Regional Court dismissed the appeal and upheld the challenged decision, finding that it had been issued in accordance with the law and had been justified in the circumstances of the case, namely that the applicant had refused to undergo a body search, which constituted a disciplinary offence.





21. On 27 June 2012 the applicant refused to undergo a body search when being admitted to a hospital ward, and again on 30 June 2012 after coming back from a walk. From the written request for imposition of the disciplinary penalty it appears that the applicant had tolerated the search “to the extent which he found appropriate”.

22. On 4 July 2012 the Director of Wojkowice Prison imposed on the applicant the disciplinary penalty of solitary confinement for a period of 7 days. The applicant served the penalty between 4 and 10 July 2012. The decision of 4 July 2012 stated that it could be challenged within seven days by lodging an appeal with the penitentiary court. The applicant failed to appeal against this decision.

23. The reasoning supporting the written requests of 20 October and 26 December 2011 and of 27 and 30 June 2012 for imposition of disciplinary penalties also states that the applicant was unrepentant in his attitude.

24. On 10 June 2013 the applicant finished serving his sentence and was released from prison.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Personal checks

25. Article 116 § 2 of the Code of Execution of Criminal Sentences, in

so far as relevant, provides:

“In cases justified for reasons of order or security a convicted person is under an obligation to undergo a personal check.”

26. Article 116 § 3 of the Code of Execution of Criminal Sentences

defines the “personal check” as follows:

4 MILKA v. POLAND JUDGMENT “A personal check means an inspection of the body and checking of clothes, underwear and footwear as well as [other] objects in a [prisoner’s] possession. The inspection of the body, checking of clothes and footwear shall be carried out in a room, in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex.”

B. Protection of personal rights

27. Article 23 of the Civil Code sets out a non-exhaustive list of the

so-called “personal rights” (dobra osobiste) in the following way:

“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.”

28. Article 24 § 1 of the Civil Code reads:

“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 eliminate 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 appropriate sum for the benefit of a specific public interest.”

29. Article 448 of the Civil Code provides:

“The court may grant an appropriate sum as pecuniary compensation for nonmaterial 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 eliminating the consequences of the infringement sustained, may ask the court to award an appropriate sum for the benefit of a specific public interest...”

C. The recommendation of the Ombudsman

30. On 23 December 2014 the Ombudsman addressed the Minister of Justice in an official letter in which the question of personal checks and strip searches of prisoners was raised. The Ombudsman pointed to the fact that lack of detailed provisions specifying kinds of control and the extent of their scope as well as lack of provisions specifying rights of persons performing the checks may create space for arbitrariness and danger of violation of standards arising from the European Convention on Human Rights. The Ombudsman further recommended that a person in respect of whom a decision to perform a personal check was given should have the right to contest that decision before the court.

MILKA v. POLAND JUDGMENT 5 THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

31. The applicant complained that the strip searches to which he had been subjected and the imposition of disciplinary penalties on him had

amounted to a violation of Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

32. The Government contested that argument. They considered that the body searches complained of had been performed in accordance with the relevant legal provisions and had not been arbitrary or excessive.

33. The applicant did not contest the “procedure of body searches” as such. However, he considered such searches groundless since he had never given the prison authorities any grounds for suspecting that he might represent any danger in prison.

Admissibility

1. The Government’s objection as regards non-exhaustion of domestic remedies

34. The Government submitted that the applicant had not exhausted all the domestic remedies available under Polish law; they argued that the applicant should have made use of the possibility of lodging a claim under Articles 23 and 24 of the Polish Civil Code for the protection of personal rights.

35. The applicant’s lawyer submitted that the applicant had appealed against most of the decisions imposing disciplinary penalties on him and that these were the normal remedies which he had to use. He submitted that the remedies referred to by the Government in their observations were not relevant to the regulations contained in the Code of Execution of Criminal Proceedings which had served as basis for the applicant’s disciplinary punishment.

36. The Court notes that according to the documents and information provided by the parties, the applicant appealed against the decisions to impose disciplinary penalties on him dated 27 October 2011, 23 May and 27 June 2012. He did not appeal against the most recent decision of 4 July 2012, even though he had been informed in writing of that possibility (see paragraphs 11, 15, 19 and 22 above).

37. It follows that the part of the application which concerns the refusal to undergo strip searches on 27 and 30 June 2012 and the disciplinary penalty imposed on the applicant on 4 July 2012 must be declared inadmissible for the applicant’s failure to exhaust domestic remedies.

6 MILKA v. POLAND JUDGMENT

38. As regards the Government’s submission that the applicant should have made use of a further remedy, namely that of a civil claim for the protection of his personal rights, the Court notes that the Government failed to produce any evidence showing that this might be an effective remedy in the context of the strip search of a prisoner, in particular in circumstances in which the prisoner refuses to undergo such a strip search and is subjected to a disciplinary punishment (compare Biśta v. Poland, no. 22807/07, § 42, 12 January 2010). The Court further notes that, according to the relevant provisions of the Polish Civil Code, a claim for the protection of one’s personal rights can succeed only if the alleged violation is unlawful (see paragraph 28 above) whereas the question that arises in the present case is whether the means employed by the authorities were arbitrary or excessive in the circumstances of the case.

39. It follows that the remedies relied on by the Government cannot be considered relevant in the present case and that, by lodging appeals with the penitentiary court, the applicant had exhausted the available domestic remedies. The Government’s plea of inadmissibility on the grounds of non-exhaustion of domestic remedies as regards the decisions against which the applicant lodged appeals must therefore be dismissed.

2. Other grounds of admissibility

40. The Court notes that the strip searches originally complained of by the applicant were in fact never performed completely. Each time the applicant was ordered to undress he refused to do so and was therefore subjected to a disciplinary punishment. In his observations the applicant expressly confirmed that he had not complained about the manner in which the prison officers behaved when they ordered him to undergo the strip searches (see paragraph 33 above). It follows that in the present case there was no element of debasement or humiliation which might give raise to a violation of Article 3 of the Convention (see and compare Iwańczuk v. Poland, no. 25196/94, § 57, 15 November 2001).



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