Communicated on 20 January 2014

FOURTH SECTION

Application no. 19149/11 Jacek KASPRZAK against Poland lodged on 14 October 2008

STATEMENT OF FACTS

The applicant, Mr Jacek Kasprzak , is a Polish national, who was born in 1966. He is currently serving his prison sentence in Zgierz Prison .

A. The circumstances of the case

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

The applicant complained about the conditions of his detention in Łódź Remand Centre, where he was detained from 10 November 2006 to 30 November 2009. Subsequently, he was transferred to Opole Lubelskie Prison. On 16 September 2010 the Warsaw Regional Court granted the applicant a short leave in serving his prison sentence to undergo a medical treatment in Zgierz Hospital. The applicant remained in the hospital until 16 March 2011 and subsequently returned to Łódź Remand Centre. On an unspecified day in 2011 he was transferred to Sieradz Prison.

On 7 May 2008 the applicant brought a civil action against the State Treasury and Łódź Remand Centre. He sought 400,000 Polish zlotys (PLN) (approximately EUR 100,000) in compensation for suffering he claimed to have experienced in Łódź Remand Centre due to overcrowding, poor sanitary conditions and inadequate medical care.

In his pleadings of 26 July 2008 the applicant complained about strip searches conducted by the prison staff after his family came to see him in prison and after being taken to the court. He submitted that he was systematically ordered to strip naked which was humiliating to him. He argued that this practice was based only on a circular issued by the prison governor ( zarządzenie wewnętrzne ).

On 9 November 2009 the Łódź Regional Court dismissed the applicant ’ s action. The court examined his claims under Articles 23 and 24 of the Civil Code in conjun ction with Article 448 of that Code. It found that, for approximately two months in total, the applicant had been detained in cells in which the statutory minimum standard of 3m² of floor space per person had not been secured. The court held , however , that the practice of detaining prisoners in overcrowded cells had not been unlawful , as it had been based on a legal provision valid at that time , namely on Article 248 of the Code of Execution of Criminal Sentences. The applicant had had appropriate medical care and the sanitary conditions in prison were correct.

The applicant appealed. He argued, inter alia , that the strip searches to which he had been subjected had been monitored by CCTV without any legal basis. He referred to the letter of the Ombudsman of 15 September 2009.

In that letter, in reply to a complaint made by the applicant, the Ombudsman stated that strip searches in prison were allowed and regulated by sections 72 and 94 para. 1 of the 2003 Ordinance on security in organisational entities of prison service ( rozporządzenie w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej ). However, there was no doubt that under section 81 of that Ordinance CCTV monitoring in prisons was only allowed in cells of dangerous detainees. Hence, interpretation of these provisions to the effect that other spaces or rooms in prison could be also monitored by CCTV was not lawful. The Ombudsman referred to a letter of the Director General of the Prison Service ( Dyrektor Generalny Służby Więziennej ) of 28 August 2008 in which the Director had expressed a view that the widespread practice of CCTV monitoring of other rooms in prison was not in accordance with the law as it stood at that time. The Director had also suggested to the Minister of Justice that appropriate changes be made to the relevant legislation with a view to harmonizing discrepant monitoring practices adopted in prisons throughout the country.

On 26 February 2010 the Łódź Court of Appeal dismissed the applicant ’ s appeal. In the written grounds of its judgment it did not address the question of either strip searches or their being monitored by CCTV.

On 29 March 2011 the Supreme Court refused to entertain the applicant ’ s cassation appeal.

B. Relevant domestic law

A detailed description of the relevant domestic law and practice concerning general rules governing the 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) ado pted on 22 October 2009 (see §§ 75-85 and §§ 45 ‑ 88 respectively). More recent developments are described in the Court ’ s decision in the case of Łatak v. Poland (no. 52070/08) adopted on 12 October 2010 (see §§ 25-54).

Article 116 § 2 of the Code of Execution of Criminal Sentences defines the “personal check” as follows:

“A personal check means an inspection of the body and checking of clothes, underwear and footwear as well as [other] objects in a [prisoner ’ s] possession. The inspection of the body, checking of clothes and footwear shall be carried out in a room, in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex.”

By virtue of the law of 18 June 2009 on amendments to the Code of Execution of Criminal Sentences ( ustawa o zmianie ustawy – Kodeks karny wykonawczy ) (“the 2009 Amendment”) Article 212b on monitoring was rephrased and new rules on monitoring detention facilities by means of close d -circuit television were added.

The 2009 Amendment entered into force on 22 October 2009.

The amended Article 73a reads, in so far as relevant, as follows:

“1. Detention facilities may be monitored through an internal system of devices registering images or sound, including close d -circuit television.

2. Monitoring, ensuring the observation of a prisoner ’ s behaviour , may be used in particular in prison cells including parts designated for sanitary and hygienic purposes, in baths, in premises designated for visits, in places of employment of detainees, in traffic routes, in prison yards, as well as to ensure observation of the prison grounds outside buildings, including the lines of external walls.

3. Monitored images or sound may be registered with the help of appropriate devices.

4. Monitoring and registering of sound may not include information subject to the seal of confession or secret protected by law.

5. Images from close d -circuit television installed in the part of the prison cell designated for sanitary and hygienic purposes and in baths shall be transmitted to monitors or other devices referred to in paragraph 3 in a manner making it impossible to show [detainees ’ ] private parts or their intimate physiological functions. »

COMPLAINT

The applicant complains that during his detention in Łódź P rison he was systematically strip-searched after visits with his family at the prison and after being taken to the court and that these searches were monitored via CCTV.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?

2. If so, was that interfer ence in accordance with the law ?

3. If so, was i t necessary in terms of Article 8 § 2?