Communicated on 11 July 2017

FIRST SECTION

Application no. 60906/16 Sebastian NOWAK against Poland lodged on 22 December 2016

STATEMENT OF FACTS

The applicant, Mr Sebastian Nowak, is a Polish national who was born in 1985 and is currently detained in Sieradz Prison.

A. The circumstances of the case

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

1. Personal checks

From 9 February 2010 until 16 June 2010 and from 28 April 2011 until 6 December 2011 the applicant served his prison sentence in Kamińsk Prison under an ordinary detention regime. He submitted that, during those periods of time, he was routinely subjected to unjustified body searches and cursory checks.

The applicant did not specify how many body searches had taken place but he stated that he had been subjected to one on each admission to, and each discharge from, Kamińsk Prison, whenever he had moved cells, whenever he had walked to another wing and back, and during daily routine cell inspections.

The applicant also submitted that his body searches had not been justified because he had never received a serious disciplinary punishment, he had never been caught trying to traffic illicit objects, and the prison authorities could have used metal detectors instead.

The applicant submitted that the cursory checks had been performed in front of other inmates and his body searches had taken place in the office of the duty officer ( dyżurka ) because Kamińsk Prison had no designated room for that purpose. According to the applicant ’ s submissions, during the body searches he had had to strip naked in the presence of a warden and another prison officer. His body had been inspected and touched by the officer who performed the procedure. The documents in the case-file contain information that the applicant ’ s body searches had been performed in a “separate room” in the presence of male officers who performed the body search. The officers had not touched or otherwise humiliated the applicant.

2. Civil action

On 4 November 2015 the Bartoszyce District Court ( Sąd Rejonowy ) dismissed the applicant ’ s action claiming compensation for breach of the secrecy of his communications and for infringement of his dignity on account of, among other things, strip searches in Kamińsk Prison. The domestic court established, without further legal analysis, that the monitoring of the applicant ’ s telephone conversations had been in accordance with the law. The domestic court also observed that the applicant ’ s body searches had been performed in accordance with the law as they had taken place in a separate room, in the presence of only male prison staff who performed the search, and that the applicant had not been debased or humiliated.

On 8 June 2016 the Olsztyn Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal.

That judgment was served on the applicant on 29 June 2016 and no further cassation appeal was available.

B. Relevant domestic law and practice

1. Provisions pertaining to body search of prisoners

The so ‑ called body search ( kontrola osobista ) of convicted persons is authorised and defined by Article 116 of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy , “the Code”), which entered into force on 1 September 1998 and which in its relevant part reads as follows:

Ҥ 1. A convicted person must obey the regulations concerning ... prison order and execute the orders of supervisors and other authorised persons, in particular:

...

§ 2. In cases justified for reasons of order or security, a convicted person is under an obligation to undergo a body search.

§ 3. 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.”

Paragraph 6 of this provision requires that a cell inspection be authorised by a prison governor ’ s decision. This paragraph is silent as to the authorisation of body searches.

Moreover, section 72 (1) of the Ordinance of the Minister of Justice of 31 October 2003 on the security of the establishments of the Prison Service ( Rozporządzenie Ministra Sprawiedliwości w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej , the “2003 Ordinance” ), which was in force at the relevant time (repealed on 2 January 2017), authorised a body search or cursory check ( kontrola pobieżna ) of a convicted person in a detention facility in order to find dangerous or illicit objects or to foil an escape, or in any other justified cases. Section 2, point 15, of the 2003 Ordinance defined a cursory check as superficial checking of clothes, shoes and objects in the prisoner ’ s possession

2. Provisions pertaining to the monitoring of telephone conversations of prisoners

The Code also sets out rules relating to the means of controlling telephone conversations of convicted persons. The relevant parts of Article 90 of the Code provide as follows:

“In a closed-type prison:

...

(9) telephone conversations of convicted persons shall be controlled ( podlegają kontroli ) by the prison administration.”

Under Article 105 of the Code, the monitoring of telephone conversations shall depend on the type of prison in which a convicted person is serving his or her sentence, and on the requirements of individual regime (Article 105 § 3). The prison governor is authorised to make decisions concerning the monitoring of conversations if required by considerations of prison security. The governor is under a duty to inform the penitentiary judge and the prisoner concerned about such decisions (Article 105 § 4).

Article 242 § 10 of the Code defines the term “monitoring of a conversation” ( kontrola rozmowy ) over the telephone as “acquainting oneself with the content of the conversation with the possibility of interrupting it....”

3. Protection of personal rights

Article 23 of the Civil Code sets out a non-exhaustive list of “personal rights” (dobra osobiste ) in the following way:

“An individual ’ s personal rights such as, in particular, health, liberty, honour , freedom of conscience, name or pseudonym, image, secrecy of correspondence, the 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.”

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 an 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 a court to award an appropriate sum for the benefit of a specific public interest.”

Article 448 of the Civil Code provides:

“The court may grant anyone whose personal rights have been infringed an appropriate sum as pecuniary compensation for any non-material damage ( krzywda ) suffered. Alternatively, the person concerned, irrespective of a claim for any other relief that may be necessary to eliminate the consequences of the infringement, may ask the court to award an appropriate sum for the benefit of a specific public interest ...”

4. Ombudsman ’ s recommendation and constitutional application

On 23 December 2014 the Ombudsman ( Rzecznik Praw Obywatelskich ) sent an official letter to the Minister of Justice, raising the question of body searches, including 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 people performing them were liable to give rise to arbitrary acts and a danger that the standards embodied in the European Convention on Human Rights might be violated. The Ombudsman recommended that a person who had been notified that he or she was to undergo a body search should have the right to contest that decision before a court.

On 22 January 2016 the Ombudsman lodged an application with the Constitutional Court ( Trybuna Å‚ Konstytucyjny ) under Article 191, read in conjunction with Article 188 of the Constitution (case no. K5/16), asking for Article 116, paragraph 6, of the Code to be declared unconstitutional in so far as it did not set out an obligation to issue a decision on body searches.

COMPLAINT

The applicant complains under Article 3 of the Convention that during two periods of his detention in Kamińsk Prison he had been subjected to routine and unjustified strip searches, which he found debasing and humiliating. Relying on the same provision, he also claims that his telephone calls from prison were monitored.

QUESTIONS TO THE PARTIES

1. In so far as the applicant complains of being subjected to body searches in Kamińsk Prison in 2010 and 2011:

( a ) . Did that practice amount to inhuman and/or degrading treatment in violation of Article 3 of the Convention?

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

2. In so far as the applicant complains of the monitoring of his telephone calls:

(a) . The Parties are requested to provide a copy of Kamińsk Prison ’ s register of the applicant ’ s incoming and outgoing telephone calls and copies of the relevant decisions issued by the Prison Governor and of his official communications with a penitentiary judge, required under Article 105 of the Code of the Execution of Criminal Sentences.

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