Communicated on 14 March 2017

FOURTH SECTION

Application no 18877/12 Zbigniew ORŁOWSKI against Poland lodged on 14 March 2012

STATEMENT OF FACTS

The applicant, Mr Zbigniew Orłowski , is a Polish national, who was born in 1959 and lives in Czerwionka .

A. The circumstances of the case

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

In 2008 the applicant started to serve his four-year prison sentence in various prisons, imposed on a basis of a joint sentencing in respect of a number of previous sentences ( wyrok Å‚Ä…czny ).

1. The first civil case – sanitary conditions in the applicant ’ s cell

On 16 February 2011 the Kielce Regional Court gave a judgment in his compensation civil case against the State Treasury. It awarded the applicant compensation in the amount of PLN 800. The applicant had complained that the toilet facilities in the cell where he served his sentence had not been properly fitted and that they had not guaranteed even a minimum of privacy.

The court found that from 3 to 29 June 2010 the applicant had been detained in Kielce prison in cell No. 346. A toilet cabin in this cell had been separated from the cell by fibreboard partition of 1 ,8 m. It had not had a ceiling or door. It was separated from the cell by cloth curtain. It had been impossible to open the window in the cell as it was essentially a cell for dangerous detainees and had double bars, internal and external ones. The applicant who did not have a status of a dangerous detainee, nor any of his cellmates had it, had had on numerous occasions complained to the prison authorities that this arrangement breached his dignity as it did not provide for a reasonable measure of intimacy. He had further complained that it was impossible to ventilate the cell and get rid of the odour caused by defecation. His requests to take the internal window bars down had remained unanswered.

The court was of the view that the circumstances complained of breached the applicant ’ s personal rights and dignity. It noted that the defendant State Treasury represented by the prison authorities had not explained why the internal window grid could not be taken down so as to make it possible to open the window and ventilate the cell. It had not been argued or shown by the defendant that it would have necessitated any particular expense or entailed difficulty. The court further noted that nuisance caused by the odour in the cell was more serious during the period covered by the claim, as the weather was warm in June.

On 21 June 2011 the Kraków Court of Appeal dismissed the appeal lodged before it by the defendant State Treasury, fully sharing the factual findings and legal conclusions drawn by the first-instance court.

2 . The second civil case – sanitary conditions in the applicant ’ s cell

On 23 September 2010 the applicant lodged another compensation claim with the Kielce Regional Court, concerning the same problem in the same cell in August and September 2010.

On 18 March 2011 that court allowed his claim and awarded him compensation in the amount of PLN 500. The court made identical findings of fact in respect of cell No. 346 of Kielce prison where the applicant had been serving his sentence from 19 August until 23 September 2010. It awarded the applicant PLN 500 in respect of breach of personal dignity resulting from these conditions.

The State Treasury, represented by the Kielce Prison, appealed.

By a judgment of 13 July 2011 , served on the applicant on 16 September 2011, the Kraków Court of Appeal allowed the appeal and dismissed the applicant ’ s claim in its entirety.

It held that the findings of fact made by the first-instance court were not open to criticism. However, it was of the view that the toilet in cell No. 346 had been installed in the manner compatible with the norms applicable when the prison had been built in the 1970s and that the sanitary arrangements corresponded to the applicable legal provisions. Hence, the State Treasury had not acted unlawfully and no intention to act in bad faith or with intention to cause harm or damage to the applicant could be established. In the absence of unlawfulness no breach of personal rights within the meaning of the provisions of the Civil Code on tortious liability could be found. The court was further in the view that in any event nuisance caused by the situation complained of did not exceed normal difficulties and nuisances caused by the very fact of serving a prison sentence.

3. The third civil case – alleged degrading treatment in solitary confinement

On 19 August 2010 the Kielce Regional Court dismissed the applicant ’ s compensa tion claim in the amount of PLN 10,000 for the alleged breach of his personal dignity.

The applicant had complained that he had twice been put in solitary isolation cell and immobilised, in March and later on in April 2009; that on the first of these occasions he had urinated on himself and was not allowed to change his clothes or wash himself; that he had been woken up by the guards every two hours which made it impossible for him to sleep and that as a result he was exhausted. He argued that this treatment amounted to intentional harassment. He had further complained that on a number of occasions his food portions served in prison were too small. He submitted that on 15 May 2009 he was ordered to strip naked and that it was in an open room where he could be seen by other inmates.

The court found that on 16 March 2009 the applicant had got irritated by the fact that one of his cell-mates did not maintain personal hygiene and started kicking the cell doors. As he had been aggressive and uttered obscenities and refused to calm down, the Penitentiary Police Officers forced him to calm down by putting a strai ghtjacket on him (for nearly 11 hrs) and placed him in an isolated protective cell (for about 20 hrs). The guards entered the cell at first every hour and during the night every two hours to check on him. At 9.50 p.m. the straitjacket was taken off but the detention in the cell was maintained as he continued to be aggressive. He was examined by the doctor upon release. No injuries or bruises were established. The court found that on 17 March the applicant had indeed urinated on himself while he was immobilised, but that he had refused to be taken to the toilet when asked by the officers when they checked on him at 4.45 p.m.

On the second occasion, on 30 April 2009 the applicant was verbally aggressive and was banging his head against the wall. He was put into restraining belts and a protection helmet was put on his head and subsequently, at 11.50 he was put in a solitary confinement cell. The police officers checked the cell every hour and every two hours during the night. Shortly before 3 p.m. one of the officers and a psychologist talked to him; to no avail. A doctor examined him at 9.30 a.m. on 1 May 2009. The helmet was taken off on 1 May 2009 at 2.45 p.m., but the confinement was maintained. He was released on the same day shortly after 6 p.m.

The court was of the view that the available evidence (the recording from the cell which the court had watched in respect of the time when the applicant argued his rights had been breached; testimony given by prison officers, minutes of use of force against the applicant) did not allow to accept that the use of force was unjustified or excessive. In particular, no evidence indicated that he had urinated on himself and had been left in that state by the prison officers. The straitjacket was removed after 11 hours. The medical evidence demonstrated that he had suffered no injuries. Nor was the period of solitary confinement unjustified as the applicant continued to utter vulgar and aggressive statements.

The court took ample evidence, including from the minutes of the use of restraining force and from the recording in the isolation cell. It questioned 8 police officers on duty on the material dates. It held that there was no indication of any excessive use of force or that the decision to put the applicant into the cell was unjustified or intended as harassment against the applicant.

The applicant appealed.

On 19 November 2011 the Kraków Court of Appeal dismissed his appeal, fully sharing the conclusions of the lower court that the conduct of the prison officers was in the circumstance of the case, justified and proportionate to the circumstances.

B. Relevant domestic law

A detailed description of the relevant domestic law and practice governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court ’ s pilot judgments in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05), adopted on 22 October 2009 (see paragraphs 75 ‑ 85 and 45 ‑ 88 respectively).

More recent developments concerning available compensatory remedy are described in the Court ’ s decision in the case of Łatak v. Poland (no. 52070/08) adopted on 12 October 2010 (see paragraphs 25 ‑ 54).

COMPLAINTS

The applicant complains under Article 3 of the Convention that during his solitary confinement in March 2009 excessive force was used against him, he was immobilised, his requests to let him go to the toilet were ignored, he urinated on himself and was let in this state for a long time afterwards.

The applicant further complains under Article 8 of the Convention that he was a victim of a degrading treatment while he had served his sentence in Kielce prison, on account of bad sanitary conditions in cell No. 346 in August and September 2010. The cell could not be properly ventilated as the window could not be opened and the toilet was not separated. This amounted to a breach of his personal rights.

QUESTIONS

1. Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention?

Reference is made to two periods of solitary confinement, in March and subsequently in April 2009.

2. Has there been lack of respect for the applicant ’ s private life, within the meaning of Article 8 § 1 of the Convention?

Reference is made to the manner in which cell No. 346 of the Kielce Prison where he has been serving his sentence from 19 August until 23 September 2010 was at the material time fitted with toilet annexes and to the resulting lack of privacy (see, mutatis mutandis , Szafrański v. Poland , no. 17249/12 , §§ 37-41, 15 December 2015) .