FOURTH SECTION

DECISION

Application no . 21782/15 Zbigniew JAGIEŁŁO against Poland

The European Court of Human Rights (Fourth Section), sitting on 24 January 2017 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 27 April 2015,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Zbigniew Jagiełło, is a Polish national who was born in 1967 and lives in Legionowo.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 26 September 2009 the applicant ’ s son, M.J., who at that time was 19 years old, was arrested by the police. On 29 September 2009 the Grójec District Court decided to detain him on remand for a period of three months on charges of robbery.

4. M.J. was detained in the Radom Remand Centre. For the first three days he was placed in a cell with two other juvenile detainees. Afterwards, he shared a cell with one detainee.

5. On 2 October 2009 M.J. had his breakfast at 7 a.m. and gave the prison officer a few letters he wished to have sent out. His co ‑ detainee then took a nap and when he woke up he found M.J. hanging from a belt suspended from the bunk bed. He raised the alarm and during the subsequent resuscitation operation, involving a nurse and a doctor from the remand centre, M.J. was placed on the floor and then removed to the adjacent room. At 8.35 a.m. the doctor confirmed M.J. ’ s death; the ambulance arrived two minutes later and its team therefore did not take any action.

6. Following the incident, an investigation was opened by the Radom District Prosecutor. The prosecutor ordered a post-mortem examination of M.J. ’ s body. She also heard evidence from witnesses, in particular other detainees who had shared the applicant ’ s cell. The prosecutor established that upon his arrival at the Radom Centre M.J. had had a conversation with his rehabilitation supervisor ( wychowawca ). On 1 October he had been examined by a psychologist, who conducted a lengthy interview with him. During those meetings M.J. did not make any complaints about his co ‑ detainees, nor did he voice any other problems. He did not display any symptoms that could have pointed to suicidal tendencies. The psychologist noted that the mental state of M.J. was within the norm and without negative thoughts.

When questioned by the prosecutor, M.J. ’ s co-detainees reported conversations in which they had allegedly discussed whether a suicide attempt might warrant his transfer out of the remand centre. However, they did not believe that he was seriously planning such an attempt. One co ‑ detainee stated that M.J. had seemed sad about his arrest and the possibility of being sentenced to imprisonment. The prosecutor concluded that the first information that M.J. had been having difficulties adapting came from the letters written to his family and the trial court which he had given to the prison guard on the morning of 2 September 2009. In those letters he indicated that he had thoughts about harming himself, but the authorities could not have known the content of those letters prior to his death.

7. The prosecutor took into account the forensic medical opinion prepared by a forensic expert from Cracow University which concluded, on the basis of the post-mortem examination, that the cause of death had been suicide. The opinion established that M.J. had not been abused in any way prior to his death and excluded the involvement of a third person in his death. At the same time the prosecutor dismissed the findings of a private report submitted by the applicant which voiced doubts as to the conclusions of the court-appointed experts. The prosecutor concluded that this document had been prepared by a person who was not a forensic expert and was based on photographic evidence obtained by the family.

8. The prosecutor also noted that a trouser belt was considered as an element of clothing and as such was not listed among dangerous objects that detainees were prohibited from keeping in their cells in the Radom Remand Centre.

9. On 30 September 2011 the prosecutor decided to discontinue the investigation since no offence had been committed. The prosecutor found that the authorities had fulfilled all their duties and obligations during M.J. ’ s stay in the remand centre and the subsequent resuscitation attempt.

10. The applicant appealed against the decision.

11. On 8 February 2012 the Radom Regional Court upheld the prosecutor ’ s decision. The prosecutor established that M.J. had committed suicide using his own trouser belt. The belt had been confiscated from him by the police upon his arrest on 26 September 2009, but two days later, when he was transferred to the court for a hearing concerning the pre-trial detention order, the belt had been returned to him by the police. Upon his admission to the Radom Remand Centre, M.J. had been allowed to keep his belt. The court also examined the applicant ’ s allegations that his son had been encouraged by his co ‑ detainees to commit suicide or to attempt a fake suicide. All those allegations were found to be unsubstantiated by evidence. It was stressed that M.J. did not make any complaint about conflicts with other detainees, or receiving threats or being abused in any way by them.

12. On 17 July 2011 the applicant brought a civil action for compensation from the State Treasury against the Radom Remand Centre. He sought 2,000,000 Polish zlotys (PLN) for lack of supervision and care of his young son, who had been able to commit suicide whilst in detention.

13. On 29 May 2013 the Grójec Regional Court dismissed the action. The court discerned no failure for which the authorities could be held responsible and considered that they could not have prevented the suicide of the applicant ’ s son. The court found that the applicant ’ s son had been correctly treated in the remand centre. He had had lengthy interviews with both the rehabilitation supervisor and a psychologist, during which he had been active and had put questions. M.J. ’ s behaviour was no different from that of any other detainee. The psychologist had not noticed any worrying or pathological signs. M.J. had appeared sad but displayed no pathological symptoms and had thus not warranted closer supervision.

14. On 30 January 2014 the Lublin Court of Appeal dismissed the applicant ’ s appeal. The appellate court agreed with the lower court ’ s findings that the authorities could not have foreseen that M.J. would try to commit suicide and thus have prevented it. As regards the issue of allowing M.J. to keep his trouser belt, the court established that the authorities had been obliged to remove all dangerous objects from detainees, but a belt had not been listed as such an object. The answer to the question whether the detention centre should have taken an additional preventive step by removing the belt was dependent on their knowledge that M.J. might pose a danger to his own life. The court established that at the time of the events there were no circumstances known to the authorities which could have enabled them to foresee the suicide risk. The court relied on a ruling by the Supreme Court which held that the obligation to remove a belt from a detainee arises from the circumstances of the case seen in conjunction with the detainee ’ s behaviour and not from any legal provision banning the retention of a belt. In the instant case there was no basis for keeping M.J. under closer supervision, which would have included taking his trouser belt from him.

15. On 20 November 2014 the Supreme Court refused to entertain the applicant ’ s cassation appeal.

B. Relevant domestic law and practice

16. Article 110a of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) (“the Code”) listed items that a detainee may keep in his cell. It stated that dangerous items were prohibited.

17. The Ordinance of the Minister of Justice of 31 October 2003 on means of protection of facilities of the Prison Service ( Rozporządzenie Ministra Sprawiedliwości w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej ) set out a definition of dangerous objects (paragraph 2.30), namely objects that may cause danger to the security and order of the facility, in particular firearms and cold steel weapons, iron-cutting tools, items that might be used for overpowering others, and psychotropic and intoxicating substances.

18. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) has developed standards relating to suicide prevention, which provide as follows:

“A person identified as a suicide risk should, for as long as necessary, be kept under a special observation scheme. Further, such persons should not have easy access to means of killing themselves (cell window bars, broken glass, belts or ties, etc.).”

COMPLAINTS

19. The applicant complained under Articles 2 and 6 of the Convention that the authorities had failed to take adequate measures to protect his son ’ s life and to prevent him from committing suicide whilst in detention. Moreover, the investigation and judicial proceedings had failed to clarify all the circumstances of the case and had been unfair.

THE LAW

20. The applicant complained that the authorities had failed to take basic precautions by removing from M.J. the belt that he subsequently used to hang himself in his cell. He argued that his son had written two letters on the morning of his death suggesting that he might harm himself. Moreover, the authorities should have been alerted by what the psychologist described as his being in a low mood. The applicant also complained that the domestic proceedings had not been diligent and had failed to investigate all the elements of the case. Article 2 of the Convention provides:

“1. Everyone ’ s right to life shall be protected by law. (...)” .

21. The Court reiterates that the first sentence of Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III, and Osman v. the United Kingdom , 28 October 1998, § 115, Reports 1998 ‑ VIII). In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them (see Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 56, ECHR 2002–III).

22. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise regarding a prisoner with suicidal tendencies, it must be established that the authorities knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see and Trubnikov v. Russia , no. 49790/99, § 69, 5 July 2005, and Volk v. Slovenia , no. 62120/09 , § 83, 13 December 2012 ).

23. The Court has recognised that the prison authorities must discharge their duties in a manner compatible with the rights and freedoms of the individual prisoner concerned. There are general measures and precautions which ought to be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case (see Castro and Lavenia v. Italy (dec.), no. 46190/13, § 56, 31 May 2016).

24. The Court observes that the applicant ’ s son was 19 years old when he was arrested on suspicion of having committed robberies. On the fourth day of his detention in the Radom Remand Centre he hanged himself using his own leather trouser belt.

25. The Court firstly notes that it has not been submitted by the applicant that his son had a known history of mental health problems (compare and contrast Keenan v. the United Kingdom , no. 27229/95, §§ 94-95, ECHR 2001 - III). The Court is also of the opinion that the present case should be distinguished from the case of Ketreb v. France (no. 38447/09 , §§ 75-99, 19 July 2012), where it found a violation of the State ’ s positive obligations to protect life under Article 2 of the Convention. According to official records, Mr Ketreb was suffering from a personality disorder known as “borderline status” and from anxiety dysphasia, had twice tried to kill himself and had openly and unequivocally t hreatened to commit suicide. Mr Ketreb was therefore in need of strict surveillance in order to protect him from suicidal attempts; however, the psychiatric service had not been consulted before placing him in a disciplinary cell and the latter had not been searched in order to confiscate his trouser belt which he had used to commit suicide (see also, mutatis mutandis , Castro and Lavenia , decision cited above, §§ 60-61).

26. In the present case, u pon his arrival at the Radom Remand Centre, M.J. – as a juvenile detainee – had a conversation with the rehabilitation supervisor allocated to him and had been examined by a psychologist the day before his death. The domestic authorities established that during the lengthy interview with the psychologist, M.J. had asked questions, had not raised any complaints and had not shown any signs of distress. M.J. seemed sad but behaved normally and did not show any pathological symptoms that would qualify him for closer monitoring (see paragraphs 6 and 13 above). He was detained in a ward for juvenile detainees and shared his cell with initially two and later one other juvenile detainee. After his death the authorities established that the detainees had discussed among themselves whether a suicide attempt would force the authorities to transfer a detainee to a different location (see paragraph 6 above). However, that information was not brought to the authorities ’ attention until the investigation into M.J. ’ s suicide. Similarly, the two letters in which he had displayed some suicidal thoughts were handed over to the prison guard on the morning of 2 October 2009. The content of those letters could not have been known to the authorities before his successful suicide attempt on the latter date (see paragraphs 5 and 6 above).

27. In these circumstances the Court does not find that the prison authorities knew or could have known at the time that M.J. posed a risk to his own life. Moreover, the Court finds that in the instant case no need can be found for stricter surveillance since the first indication of M.J. ’ s suicidal thoughts became known only after his death (see, mutatis mutandis Volk , cited above, §§ 86-93).

28. The Court finally notes that the CPT has recommended that persons identified as a suicide risk should be subject to special precautions. In particular, they should not be placed alone in a cell with easy access to means of killing themselves, such as cell windows with bars, broken glass, belts or ties (see the CPT Standards, cited in paragraph 18 above). However, as established above, it is clear from the circumstances of the present case that M.J. ’ s mental state had never suggested that such special protective measures were necessary (see, mutatis mutandis , Mitić v. Serbia , no. 31963/08, § 49, 22 January 2013, and Castro and Lavenia , decision cited above, § 60).

29. The Court also reiterates that the obligation to protect the right to life under Article 2 of the Convention requires by implication that there should be some form of adequate and effective official investigation when individuals have died in circumstances potentially engaging the responsibility of the State (see YaÅŸa v. Turkey , 2 September 1998, §§ 98 and 100, Reports 1998 ‑ VI, and Volk , cited above, § 97).

30. The Court observes that the prosecutor opened an investigation immediately following the incident. During the proceedings a post-mortem examination was carried out, witnesses were heard and an expert opinion was sought (see paragraphs 6 and 7 above). The Court considers the prosecutor ’ s decision to have been thorough and based on the expert evidence and witnesses statements. The prosecutor ’ s findings were upheld on appeal by the Radom Regional Court. The court also examined the issue of allowing M.J. to keep his trouser belt while in the Remand Centre. On the basis of the domestic law, which has been complied with, and other elements of the case, the court found no omission on the part of prison authorities. It concluded that they could not have foreseen the suicide attempt of M.J. and could not have prevented his death (see paragraph 11 above). The Court does not discern any clear shortcomings or omissions on the part of the investigating authorities, who conducted a though investigation which was terminated without any delays (see paragraphs 13 and 14 above).

31. Furthermore, following the applicant ’ s civil claim against the State Treasury, the case was examined at two instances by civil courts. In those proceedings, too, the courts reached identical conclusions regarding their assessment (see paragraphs 13 and 14 above). The Court thus finds no evidence that the authorities failed in their obligation to conduct an effective and thorough investigation into the death of the applicant ’ s son.

32. The Court reiterates that the State ’ s positive obligation to protect the life of an individual should not mean that an unbearable or excessive burden is imposed on the authorities.

33. The Court finds therefore that the applicant ’ s complaints under Article 2 are manifestly ill-founded and should be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

34. Finally, in so far as the applicant complains about the unfairness of the civil proceedings for compensation instituted by him, the matter should be examined under Article 6 § 1 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

35. Accordingly, also this part of th e application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 February 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President