FOURTH SECTION

Application no. 54511/11 Janusz WOJCIECHOWSKI against Poland lodged on 28 July 2011

STATEMENT OF FACTS

The applicant, Mr Janusz Wojciechowski , is a Polish national, who was born in 1950 and lives in Warszawa.

A. The circumstances of the case

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

1. The period of the applicants ’ detention

From 15 June 2007 until 21 January 2009 the applicant was detained alternately in Koszalin Remand Centre and the semi-open Dobrowo Remand Centre.

2. The conditions of the applicants ’ detention

The following findings were made by domestic courts in the course of the civil proceedings described below. The applicant did not contest them.

During a total of 309 days the applicant was committed to cells in which the statutory minimum standard of 3 square metres ( m 2 ) per person was not respected. More particularly, the applicant had from 1.9 to 2.6 m 2 of personal floor space in his cells. The overcrowding concerned Koszalin Remand Centre but not Dobrowo Remand Centre.

Initially, toilet annexes in Koszalin Remand Centre were not separated from the living area in the cells in question. In 2008 or 2009, however, construction work started and the toilets gradually became enclosed by concrete walls with a door.

All of the applicant ’ s cells were well-lit, ventilated and, when necessary, heated. They were equipped with a sufficient number of bunk beds to offer each detainee a separate place to sleep, a table, stools and cupboards.

In 2009 the Koszalin Remand Centre ’ s day room was transformed into cells. Detainees continued, nevertheless, to have access to a library and various forms of leisure and cultural activities.

It appears that in Koszalin Remand Centre the applicant had a one hour-long period of outdoor exercise per day. Initially, the applicant had one hot shower per week. From 18 October 2007 the number was increased to five per month.

The applicant was assigned a top bed. He submitted that that was contrary to medical recommendations since he had health problems (see below). He did not submit any document to that effect.

3. The applicant ’ s religious practice in prison

The applicant submitted that in 2008, for the entire year, he had not been able to attend Sunday mass in the remand centre.

As established by the domestic courts, at the material time, a catholic service had been organised three times on Sunday and once on each religious holiday. Prisoners wishing to attend had to sign up with their supervisors ( wychowawca ). Subsequently, a list of persons approved for a particular mass had been prepared by the remand centre ’ s staff with the help of a special computer programme. That system had been designed to select prisoners on a rotation basis according to their classification groups and in a way so as not to mix “dangerous detainees” with those who did not require any special security measures. At times, however, individual prisoners were rejected because they did not belong to the group which was authorised to attend the mass on a particular day.

The remand centre ’ s register revealed that the applicant had been authorised to attend Sunday mass twice in September and twice in November 2008.

4. The applicant ’ s medical treatment

The domestic courts established that, three years before his detention, the applicant had been hospitalised because of inflammation of the testicles, prostatic hyperplasia, pneumonia and an unspecified skin condition for which he had received treatment similar to what was usually prescribed for dermatitis ( zapalenie skóry ).

During his detention in Koszalin , the applicant often made appointments with the in-house doctor because of colds, back aches and prostate problems. On 15 November 2007 a drug called “ Prostamol ” was prescribed in compliance with the applicant ’ s wish. Another medicine which the applicant had previously taken for his prostate condition, “ Doxar ”, was not in the remand centre ’ s stock. A generic medicine was offered to the applicant instead. Eventually, “ Doxar ” was sent to the prison by the applicant ’ s relatives.

The applicant also received pharmacological treatment for a skin condition, t inea versicolor ( łupież pstry ). In addition to that treatment, from 18 October 2007 onwards, he was entitled to one additional monthly shower. On 20 June 2008 the applicant was examined by a dermatologist and his skin condition was diagnosed as s eborrhoeic dermatitis ( łojotokowe zapalenie skóry ), a chronic inflammatory scalp skin disorder. In consequence, the applicant ’ s pharmacological treatment was slightly changed. It was also established that the first symptoms of that disorder had already appeared prior to the applicant ’ s detention, in 2004. An expert in dermatology who was appointed by the domestic court excluded any possibility that the applicant had developed that illness because of contact with an allegedly dirty and fungus-infested mattress. The expert also concluded that the applicant had received treatment which was commonly prescribed in such cases by dermatologists. During the first 18 months of the documented illness, the applicant was seen by a doctor on 30 occasions. Subsequently, throughout 2008, he made 12 additional appointments.

In 2008 the applicant also obtained dentures.

5. The applicant ’ s actions concerning the conditions of his detention, the quality of medical care and restrictions on the practice of his religion

In 2007 and 2009 the applicant lodged a number of complaints with the Ombudsman, the Ministry of Justice and the relevant penitentiary court, informing those authorities about the deplorable conditions of his detention, inadequate medical care and unreasonable restrictions on the practice of his religion during his detention in Koszalin Remand Centre.

On an unspecified date the Central Inspectorate of the Prison Service ( Centralny Inspektorat Służby Więziennej ) informed the applicant that his complaints had been considered ill-founded. It was established that the applicant had received adequate medical care. In particular, the remand centre had administered “ Prostamol ” and the other drug, “ Doxar ”, had been obtained with the authorities ’ permission, through the applicant ’ s relatives. The remand facility in Dobrowo had not registered any overcrowding. The applicant ’ s cells had been adequately furnished. Each detainee had had his own place at the table.

In their letters of 11 May and 15 June 2009, the authorities informed the applicant that he had had unrestricted access to religious services in Koszalin Remand Centre, according to the special schedule. Moreover, the applicant ’ s placement in overcrowded cells had been in compliance with the law, namely Article 248 of the Code of the Execution of Criminal Sentences.

The applicant also brought a civil action for infringement of his personal rights on account of overcrowding, inadequate medical care and unreasonable restrictions on the practice of his religion in Koszalin Remand Centre. The domestic courts examined the claim under Articles 23, 24, 417 and 448 of the Civil Code ( Kodeks Cywilny ).

On 14 December 2010 the Koszalin District Court ( Sąd Rejonowy ) held that the applicant ’ s placement in overcrowded cells for a period of 309 days of his detention constituted degrading and inhuman treatment within the meaning of the domestic law and the Convention.

The remainder of the applicant ’ s complaints, however, was considered ill-founded.

The evidence which was obtained by the civil court, inter alia , the applicant ’ s medical history records, witness testimonies and the report of an expert in dermatology, disproved the applicant ’ s allegations that he had contracted his skin condition in the remand centre because his mattress had been dirty and damp and that his illness had been inadequately treated.

The domestic court considered that in view of the fact that the applicant had been authorised to attend Sunday mass a total of four times in September and November 2008, it could not be said that his access to religious services had been unreasonably restricted. It was also noted that detainees had been free to make individual appointments with the remand centre ’ s priest. The applicant had not wished to do so at the material time.

Lastly, the applicant ’ s submission that he had obtained a doctor ’ s recommendation to have a bottom bunk had not been supported by any documents.

In view of the above, the Koszalin District Court awarded the applicant PLN 5,000 (approximately EUR 1,200) as non-pecuniary compensation on account of the suffering caused by his detention in overcrowded cells. The domestic court also ordered the applicant to pay PLN 1,200 (EUR 300) towards the costs of the proceedings.

The applicant submitted a hand-written appeal against the above-mentioned judgment, dated 24 January 2011. The document does not bear any stamps but is accompanied by an official note, confirming that on 24 January 2011 the applicant wished to send his appeal to the Koszalin District Court from Żytkowice Prison.

On 5 April 2011 the Koszalin Regional Court ( Sąd Okręgowy ) dismissed the appeal brought by the respondent and, it appears, the applicant ’ s own appeal. The first-instance judgment was upheld.

The applicant ’ s subsequent appeal against the judgment of the appellate court was rejected as no such appeal was available under the applicable law.

B. Relevant domestic law and practice

1. Provisions pertaining to conditions of detention

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) adopted 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).

2. Provisions pertaining to the practice of religion in detention

Article 106 of the Code provides:

“1. A convicted person shall have the right to practise religion and to benefit from religious services, and to attend [in person] services taking place in prison on holidays and to listen to services broadcast by the mass media, as well as to have the necessary [religious] books, magazines and items.

2. A convicted person shall have the right to ... meet, on an individual basis, with a clergyman of a church or of another religious denomination to which [a convicted person] belongs; such a clergyman may visit convicted persons on the premises where [the convicted persons] are held.

3. Benefiting from religious freedom shall not breach the principles of religious tolerance or interfere with the established prison order.

On the basis of Article 160 of the Code, the Minister of Justice issued the Ordinance of 2 September 2003 on detailed rules on engaging in religious practices and benefiting from religious services in prisons and remand centres ( Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad wykonywania praktyk religijnych i korzystania z posług religijnych w zakładach karnych i aresztach śledczych ) (“the September 2003 Ordinance”). It entered into force on 27 September 2003.

Section 1of the September 2003 Ordinance provides:

“1. Convicted persons shall have the right to attend services and meetings of a religious nature, including on an individual basis, which take place in a chapel or another suitable place ... on the premises of the prison or remand centre, further referred to as the “establishment”, in accordance with the establishment ’ s settled internal order.

(...)

4. Religious practices and services of a solitary nature may also take place inside the cells ... if they do not disturb the establishment ’ s [order and security] and if it is secured that they take place in conditions of privacy.”

According to Article 2, paragraph 1 of the September 2003 Ordinance:

“Convicted persons serving a sentence in a high-security establishment shall be accompanied to the places described in article 1, paragraph 1, by the prison service ’ s officers.”

Article 5 of the September 2003 Ordinance provides:

“The Governor of an establishment shall take the necessary measures in order to secure the appropriate conditions for religious practices and services ... [the Governor] shall also take advice from the [prison] chaplain concerning the organisation of religious services.”

COMPLAINTS

The applicant complained under Article 3 of the Convention about overcrowding and inadequate medical care during his detention in Koszalin and Dobrowo Remand Centres from 15 June 2007 until 21 January 2009. He also complained without invoking any provision of the Convention about unreasonable restrictions on his right to manifest his religion imposed in the remand centre in 2008.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s detention amount to inhuman or degrading treatment in breach of Article 3 of the Convention on account of the alleged overcrowding and inadequate living and sanitary conditions in Koszalin Remand Centre and semi-open Dobrowo Remand Centre?

2. In so far as the applicant complained that he had been authorised to attend Sunday mass only four times in 2008, has there been an interference with his freedom to manifest his religion, within the meaning of Article 9 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?