Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27507/95

by M. Cz.

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 January 1995

by M. Cz. against Poland and registered on 2 June 1995 under

file No. 27507/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen, born in 1962, is currently

detained in Wadowice prison.

The facts of the case, as submitted by the applicant, may be

summarised as follows:

Particular circumstances of the case

Since 1972 the applicant has been suffering from epilepsy. On

an unspecified date he was granted the so-called "second degree of

disability" due to his state of health.

a) Events which took place in 1993 in Strzelce Opolskie prison

On 23 June 1993 an incident took place between the applicant and

ten prison officers. As a consequence, the applicant was stripped and

forcibly placed by the officers in solitary confinement for an

unspecified period.

On 28 June 1993 the applicant complained to the Strzelce Opolskie

District Prosecutor (Prokurator Rejonowy) that he had been assaulted

by prison officers and that the unlawful use of force against him had

resulted in actual bodily harm. On 3 July 1993 the prosecutor heard

evidence from the applicant and, apparently, a medical statement

concerning the applicant's injuries was made on the same day. On an

unspecified date the prosecutor instituted investigations into the

applicant's complaint.

On 13 July 1993 the prison authorities requested the Strzelce

Opolskie District Prosecutor to institute criminal proceedings against

the applicant on suspicion that he had attacked four prison officers,

thereby obstructing them in the course of their duties, that he had

assaulted two other prison officers and had insulted five of them. On

an unspecified date investigations commenced into the allegations

against the applicant. On 18 October 1993 the prosecutor ordered that

the material contained in the case-file be separated and that two

parallel investigations be conducted in relation to the incident of 23

June 1993.

On 25 October 1993 the Strzelce Opolskie District Prosecutor

discontinued the investigations instituted at the applicant's request.

On an unspecified date this decision was quashed by the Opole Regional

Prosecutor (Prokurator Wojewódzki) and further investigations were

ordered. On 31 January 1994 the Strzelce Opolskie District Prosecutor

again discontinued the proceedings. This decision was upheld by the

Opole Regional Prosecutor on 7 March 1994.

In the meantime, on 29 October 1993, the Strzelce Opolskie

District Prosecutor lodged a bill of indictment against the applicant

with the Strzelce Opolskie District Court. By a judgment of 16

December 1994 the court of first instance sentenced the applicant to

one year and four months' imprisonment for assaulting and insulting the

prison officers. On 10 March 1995 the Opole Regional Court (S*d

Wojewódzki), upon the applicant's appeal, upheld the judgment of the

court of first instance.

b) Events which took place in 1996 in Wadowice prison

On an unspecified date at the beginning of 1996, the applicant

was transferred to Wadowice prison.

On 29 February 1996 the applicant complained to the Wadowice

District Prosecutor that the prison authorities had disseminated

pornography by means of cable television. He requested the prosecutor

to institute criminal proceedings against the Governor of Wadowice

Prison on suspicion that the latter had committed the offence of

dissemination of pornography. It appears that on an unspecified date

the prosecutor instituted investigations in respect of the matter

complained of.

On 19 or 20 March 1996 the prison officers took a television set

and video-cassette player belonging to the applicant away from him.

They informed him that he would soon be transferred to another cell in

which there was a television set and that therefore he would not need

his own.

On 23 March 1996 the applicant was transferred to the cell of an

inmate, J.B. In the meantime the prison guards had allegedly spread

information that he had been convicted of sexual offences against

children and that his complaint to the Wadowice District Prosecutor

about dissemination of pornography had resulted in limitations on the

other prisoners' access to films and television programmes. This

resulted in a hostile attitude of prison inmates to the applicant. As

from 23 March 1996 the applicant's inmate beat, kicked and insulted

him. On 8 April 1996 a fight broke out between the two of them. As

a result, the applicant was injured, i.e. he had injuries to his head,

a broken nose and bruises on his body. During the incident three or

four prison guards opened the cell door and laughed; however, they did

not intervene. On 9 April 1996 the applicant was examined by a prison

doctor.

In the meantime the applicant was subjected to regular body

searches, i.e. the so-called "nude check" before and after all of his

frequent visits to the prison infirmary, any exercise in the open air

and any contact with his family.

On 23 April 1996 two prison officers, i.e. lieutenants Cz. and

M.B., searched the applicant's cell in the presence of the applicant

and his next inmate, W.L. The officers seized three of the applicant's

letters containing his complaints addressed to the Wadowice District

Prosecutor, the Helsinki Committee of Human Rights and the Bielsko-

Biala Regional Court. They also took photos of the applicant's family

and his agenda.

On 24 April 1996 the Governor of Wadowice Prison punished the

applicant under the disciplinary rules, i.e. he ordered that the

applicant be deprived of contact with his family for a period of three

months.

On 26 June 1996 the applicant, during the prison roll-call, was

beaten up, then kicked and dragged by the prison officers W.J. and S.B.

to a cell where he was kept in solitary confinement. On an unspecified

date he was examined by a prison doctor and an X-ray examination was

done on three occasions since the applicant was suffering from head

injuries.

Subsequently, on an unspecified date the applicant requested the

Wadowice District Prosecutor to institute criminal proceedings against

the persons who had beaten him up on 26 June 1996. The proceedings

were discontinued by a decision of the Wadowice District Prosecutor

of 27 September 1996. On 25 November 1996 the Bielsko-Biala Regional

Prosecutor, upon the applicant's appeal, upheld the above-mentioned

decision.

In the meantime, on an unspecified date in August 1996, the

prison officers searched the applicant's cell in the night and took

copies of his numerous complaints about the treatment in prison and his

various letters away from him.

Relevant domestic law and practice

1. The medical records concerning the treatment of a convict in the

course of his detention are kept in the prison archives. In case of

any injury sustained by a convict in prison, a medical report must be

included in his files. In principle, such documents are not in a

convict's possession.

2. According to Rule 10 of the Polish Prison Rules of 1989 (as

amended) convicted persons shall be subjected to a search if necessary.

Such search may include an inspection of clothing, underwear, shoes or

the prison cell as well as of objects delivered to or transferred from

convicts to other persons. The search may take place at any time. The

objects found during the search may be seized if their possession is

forbidden. Notes and other written matter may be submitted to the

prosecutor if their content suggests that an offence has been

committed.

3. Under Rule 31 the censorship of convicted persons' correspondence

is permitted, except for correspondence with public organs, including

courts and prosecutors, the Ombudsman and the international

institutions for the protection of human rights established by virtue

of the treaties to which Poland is a contracting party.

COMPLAINTS

1. In respect of events which took place in Strzelce Opolskie prison

on 23 June 1993 the applicant complains that he was subjected to

inhuman and degrading treatment in view of the brutal and excessive use

of force against him by several prison officers. He submits that his

subsequent placement in solitary confinement amounted to inhuman

treatment in view of the fact that he has been suffering from epilepsy.

The applicant does not invoke any specific provision of the Convention

in support of these complaints.

2. Further, the applicant raises various complaints relating to his

detention in Wadowice prison in 1996:

a) that on 26 June 1996 the prison guards brutally assaulted him and

placed him in solitary confinement, which amounts to inhuman

treatment;

b) that the prison authorities spread information about his

conviction and his complaints about the dissemination of pornography

in prison in order to subject him to a hostile attitude of the prison

community;

c) that the authorities failed to protect him sufficiently against

the assault by a fellow cell inmate on 8 April 1996;

d) that he was repeatedly subjected to degrading body searches, i.e.

the so-called "nude checks";

e) that the authorities on various occasions seized his personal

belongings and refused to give them back to him;

f) that the deprivation of contact with his family for a period of

three months was inhuman and disproportionate, in particular in view

of the fact that the prisoner who had assaulted him was not subjected

to any severe measures;

g) that on 23 April and in August 1996 the prison authorities seized

his correspondence, including that with the courts, his family photos

and the copies of his various complaints;

The applicant does not invoke any specific provision of the

Convention in respect of these complaints.

THE LAW

1. The applicant complains that on 23 June 1993 he was subjected to

inhuman and degrading treatment in view of the brutal and excessive use

of force against him by several officers of Strzelce Opolskie prison.

In this connection he submits that his subsequent detention in

solitary confinement also amounted to inhuman treatment in view of the

fact that he has been suffering from epilepsy.

The Commission notes that by their nature the applicant's above

complaints would fall within the scope of Article 3 (Art. 3) of the

Convention, which provides:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

However, the Commission is not required to decide whether or not

the facts submitted by the applicant in support of these complaints

disclose any appearance of a violation of the Convention as, according

to Article 26 (Art. 26) of the Convention, it may only deal with the

matter "within a period of six months from the date on which the final

decision was taken".

As in the present case the final decision discontinuing the

investigations instituted at the applicant's request was taken on

7 March 1994 by the Opole Regional Prosecutor, whereas the applicant

introduced his complaint on 19 January 1995, he did not comply with the

six-month time-limit referred to in Article 26 (Art. 26) of the

Convention.

It follows that this part of the application has been lodged out

of time and must be rejected in accordance with Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant also raises various complaints relating to his

detention in Wadowice prison in 1996. In particular, he complains that

on 26 June 1996 the prison guards assaulted him and placed him in

solitary confinement, that the prison authorities failed to protect him

sufficiently against the assault by a fellow cell inmate on 8 April

1996, that he was repeatedly subjected to degrading body searches, that

the authorities on various occasions seized his personal belongings,

that he was deprived of contact with his family for a period of three

months and that on 23 April and in August 1996 the prison authorities

seized his correspondence.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of these complaints and that it is

therefore necessary in accordance with Rule 48 para. 2 (b) of the

Commission's Rules of Procedure, to give notice of the complaints to

the respondent Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaints

concerning ill-treatment by prison officers and their failure to

protect him from assault as well as the seizure of the

applicant's correspondence and belongings, and the restrictions

on the applicant's contacts with his family, relating to the

facts which occurred in 1996 in Wadowice prison.

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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M. Cz. v. POLAND

M. Cz. v. POLAND

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