Communicated on 5 October 2020 Published on 26 October 2020

FIRST SECTION

Application no. 57759/19 Andrzej ZUCHNIEWICZ against Poland lodged on 28 October 2019

STATEMENT OF FACTS

The applicant, Mr Andrzej Zuchniewicz , is a Polish national, who was born in 1973 and is imprisoned in the Strzelce Opolskie prison.

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

The applicant has been detained in the Strzelce Opolskie Prison since 26 January 2018.

On 18 July 2019 when he was returning from work to prison, he was ordered to undergo a strip-search apparently without any evident reason.

On 26 August 2019 the applicant complained about the search to the Opole Regional Director of the Prison Service ( Okr ę gowy Inspektorat S ł u ż by Wi ę ziennej ). He alleged a violation of his rights guaranteed by the Polish Constitution and by the European Convention. He also relied on the Court ’ s case-law, citing the case of Dejnek v. Poland , no. 9635/13, 1 June 2017 and on the Ombudsman ’ s application to the Constitutional Court of 21 January 2016 (ref. KMP.571.83.2014.MMa), in which the Ombudsman questioned the lack of obligation to issue a decision in case of a prisoner ’ s strip-search.

On 5 August 2019 the applicant ’ s complaint was transmitted to the Director of the Strzelce Opolskie Prison who, on 14 August 2019, found the complaint ill-founded holding, among other things, that the search had been conducted in accordance with the relevant provisions, that is to say Article 116 §§ 2, 3 and 4 of the Code of Execution of Criminal Sentences ( Kodeks Karny Wykonawczy ) and § 68 of the Minister of Justice Regulation of 17 October 2016 on the means of protection of organisational units of the Prison Service ( Rozporz ądzenie Ministra Sprawiedliwości z dnia 17 października 2016 r. w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej ).

The applicant complained further to the Opole Regional Director of the Prison Service, who dismissed the complaint on 24 September 2019.

Article 116 § 2 of the Code of Execution of Criminal Sentences ( Kodeks Karny Wykonawczy ), 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 body search”

Article 116 § 3 of the Code of Execution of Criminal Sentences defines a body search as follows:

“A body search means an inspection of the body and the checking of clothes, underwear and footwear as well as [other] objects in a [prisoner ’ s] possession. The inspection of the body and the checking of clothes and footwear shall be carried out in a separate room, without the presence of third parties or people of the opposite sex, and shall be performed by people of the same sex.”

On 23 December 2014 the Ombudsman ( Rzecznik Praw Obywatelskich ) sent an official letter to the Minister of Justice, raising the question of body searches and strip-searches in prisons. The Ombudsman pointed out that a lack of detailed provisions specifying the kinds of check which could take place, the scope of the checks and the powers of the persons carrying them out was liable to create room for arbitrary acts and danger that the standards embodied in the European Convention on Human Rights might be violated. The Ombudsman further recommended that a person who had been notified that he was to undergo a body search should have the right to contest that decision before a court.

On 21 January 2016 the Ombudsman requested the Constitutional Court to find Article 116 § 6 taken in conjunction with Article 7 § 1 of the Code of Execution of Criminal Sentences inconsistent with Articles 45 (1) and 77 (2) of the Constitution in so far as these provisions of the Code do not provide for the obligation to issue a decision concerning a body search of a convicted person. The Ombudsman pointed to excessive and unjustified personal checks in the Polish prisons and detention centres, lack of formal decision in case of ordering a personal check and lack of judicial supervision.

COMPLAINTS

The applicant complains under Articles 8 and 13 of the Convention that the strip-search to which he was subjected amounted to a violation of his right to private life and that he had no effective remedy in the domestic legal system to contest the search in question.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention?

2. Did the applicant have at his disposal an effective remedy to contest the strip-search that allegedly violated his rights under Article 8, as required by Article 13 of the Convention?