FIRST SECTION

DECISION

Application no. 34461/16 Kamil JUSIAK against Poland

The European Court of Human Rights (First Section), sitting on 16 December 2020 as a Committee composed of:

Alena Poláčková , President, Gilberto Felici , Raffaele Sabato, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 30 May 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Kamil Jusiak , is a Polish national, who was born in 1992 and is detained in Goleniów Prison. He was represented before the Court by Ms M. Witkowska , a lawyer practising in Sopot.

2 . The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant started serving a prison sentence on 25 October 2014 in a semi-open prison ( zakład karny typu półotwartego ).

5 . On 4 February 2015 the Goleniów Prison Commission ( komisja penitencjarna ) assigned the applicant to a closed-type prison ( zakład karny typu zamkniętego ). One of the grounds for this classification was that the applicant had tested positive for illegal substances and had refused anti-drug therapy. The applicant did not appeal against this decision.

6 . Every six months a prison commission extended the applicant ’ s categorisation for a closed-type prison. On each occasion the applicant was summoned before the prison commission and informed about the decision and the right to appeal.

7 . The applicant appealed against one decision confirming his categorisation for a closed-type prison given on 2 March 2016 by the Prison Commission of Nysa Prison. On 15 April 2016 the Opole Regional Court ( Sąd Okręgowy ) upheld the challenged decision.

8 . The Government submitted that in Goleniów Prison in 2016 the applicant had been employed for a period of one week and participated in a hairdressing course. He received in total fourteen family visits.

9 . The applicant was transferred regularly to different prisons. However, according to the Government each detention facility offered a wide range of vocational training as well as cultural, educational and sports activities to which the applicant had access. In each facility the applicant received adequate clothing and was allowed to wear his own shoes and some other garments.

10 . According to the Government, in Czarne Prison, in which he has been detained since 8 February 2018, the applicant took part in three different vocational training courses and completed a therapeutic programme of 68 hours for former drug addicts. He also worked for about four weeks but then resigned.

11 . On 20 September 2017 the applicant made a request to receive visits from a friend. The request was refused by the authorities as the relationship with the applicant had not been specified. After the applicant ’ s clarifications the request was granted on 19 October 2017. On 4 December 2017 that person received a permanent authorisation to visit the applicant. In total some thirteen persons had a permanent authorisation to visit the applicant.

12 . The Government submitted that in Rawicz , Wroclaw, and Czarne Prisons the applicant had been subjected to a cursory check, with the use of technical equipment, every time he entered and left the cell. Strip searches were ordered only on occasions which were justified by security reasons. On each occasion the search was conducted in a manner which respected the applicant ’ s privacy and complied with the domestic law provisions.

13 . The relevant provisions are set out in the Court ’ s judgment in Klibisz v. Poland (no. 2235/02, §§ 262-267 and 271, 4 October 2016).

COMPLAINTS

14 . The applicant complained under Article 3 of the Convention that the imposition of the closed-type prison regime amounted to inhuman and degrading treatment. He complained that the conditions of detention involved strip searches, limitations on family visits, monitoring of telephone calls and censorship of correspondence.

15 . The applicant also complained under Articles 6 and 13 of the Convention about the decisions of the prison commissions imposing the closed-type prison regime on him.

THE LAW

16 . The applicant submitted that his detention in a closed-type prison, in which he has been serving a sentence of imprisonment since 4 February 2015, was in breach of Article 3 of the Convention.

This provision reads as follows:

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

17 . The Government raised a preliminary objection, claiming that the applicant had failed to exhaust domestic remedies. In particular, he had not lodged an appeal against the decision of the Goleniów Prison Commission of 4 February 2015 imposing the closed-prison categorisation for the first time and against all other decisions extending the regime, except for one occasion in 2015. Moreover, if he considered that his personal rights had been violated, it had been open to him to claim compensation from the State Treasury.

18 . The Government further submitted that the application was manifestly ill-founded. The applicant was subjected to standard measures associated to serving a sentence in a closed-type prison. In particular, the monitoring of telephone conversations, correspondence and limitations on visits belonged to standard measures and did not amount to ill-treatment. The Government presented a long list of vocational courses and therapeutic programmes in which the applicant had taken part during his incarceration. For a short period of time the applicant was employed in prison but he decided not to continue. When detained in Goleniów Prison the applicant received numerous visits and his request for a permanent authorisation for visits with a girlfriend was granted. They submitted that the applicant had access to clothing provided by the prison and on several occasions he made requests for new items or for permission to wear his own clothing. His requests were granted.

19 . The Government stated that the applicant had been subjected to cursory checks every time he had left and entered his cell. However, they did not amount to strip searches. The latter were ordered only in exceptional situations when justified by and necessary for prison security reasons.

20 . The applicant submitted that the conditions at the closed-type prison were worse than those in the semi-open one. He stated that his correspondence had been censored and he had fewer contacts with family and the outside world. The applicant argued that he had often been subject to unjustified strip searches. He complained about the obligation to wear clothes provided by the prison, confinement to a cell for twenty-three hours per day, and restrictions on the number of visits. In respect to the latter the applicant submitted that in September 2017 the authorities of the Czarne Prison refused his request for a visit by a friend. The request was granted some weeks later.

21 . The Court finds it unnecessary to rule on the Government ’ s preliminary objection in respect of exhaustion of domestic remedies since it considers the applicant ’ s complaints to be in any event manifestly ill ‑ founded for the following reasons.

22 . The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Bouyid v. Belgium [GC], no. 23380/09, § 86, ECHR 2015, with further references).

23 . The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that deprivation of liberty in itself raises an issue under Article 3 of the Convention. Nevertheless, under that Article the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (see KudÅ‚a v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI).

24 . Allegations of ill-treatment contrary to Article 3 must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000 ‑ IV).

25 . Turning to the allegations made by the applicant, the Court considers that they are of a general nature as the gist of his complaints was his assignment to a closed-type prison.

26 . For instance, the applicant alleged that his family visits were limited, invoking one refusal of a visit in 2017 which was finally granted after some clarification. The applicant admitted that his girlfriend had received a “permanent authorisation” to visit him whenever she had liked; such authorisation had been also given to other persons. Furthermore, the applicant had not contested the documents provided by the Government listing numerous visits he had received in Goleniów and Czarne Prison (see paragraph 11 above). The applicant did not make any allegation concerning the manner in which family visits had taken place. The Court does not find it established, therefore, that the authorities unduly limited the applicant ’ s right to receive visits from relatives and friends.

27 . As regards the physical conditions of the applicant ’ s detention, the Court notes that it has not been contested that the applicant was never held in solitary confinement, had the right to a daily walk, received visits, participated in vocational training, and had access to standard cultural and sports activities in the prison. Moreover, during some periods he had taken up employment (see paragraph 10 above). Therefore the Court accepts the Government ’ s contention that the applicant ’ s statement of being kept in his cell for twenty-three hours a day has not been supported by evidence.

28 . The applicant complained that he was subject to unnecessary strip searches without specifying their frequency or the dates on which they had taken place. He did not specify the manner in which they had been carried out. Finally, he presented no evidence that he complained to the domestic authorities about the strip searches. The Government pointed out that the regime of closed-type prison did not entail frequent or unjustified strip searches (see paragraphs 12 and 19 above). In this connection, the Court reiterates that whilst strip searches may be necessary on occasions to ensure prison security or prevent disorder in prisons, they must be conducted in an appropriate manner (see IwaÅ„czuk v. Poland, no. 25196/94, 15 November 2001, § 59, and Van der Ven v. the Netherlands , no. 50901/99, § 60, ECHR 2003 ‑ II). In view of the above and in the absence of any evidence and sufficient explanations provided by the applicant, the Court does not find it established that the applicant was subjected to frequent or systematic strip searches which could give rise to an issue under Article 3 of the Convention (compare and contrast with Piechowicz v. Poland , no. 20071/07, § 176, 17 April 2012, where strip searches had been systematic, intrusive, exceptionally embarrassing, and performed daily, or even several times a day).

29 . In the circumstances of the case the Court considers that the applicant failed to sufficiently justify his allegation that the cumulative effects of the conditions of his detention in a closed-type facility had amounted to treatment contrary to Article 3 of the Convention.

30 . It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

31 . In so far as it can be understood that the applicant complained about censorship of his correspondence, under Article 8 of the Convention, the Court notes that in the period under consideration he had at his disposal an effective remedy in respect of the alleged breach (see Biśta v. Poland , no. 22807/07, § 44, 12 January 2010).

32 . The applicant furthermore complained under Articles 6 and 13 of the Convention about the decisions of the prison commissions. However, it should be noted that he had once made a complaint about a decision of the prison commission which was examined by a court (see paragraph 7 above).

33 . Accordingly, the remainder of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 January 2021 .

Renata Degener Alena Poláčková Deputy Registrar President