FOURTH SECTION

CASE OF MILKA v. POLAND

(Application no. 14322/12)

JUDGMENT

STRASBOURG

15 September 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Milka v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Päivi Hirvelä,
	George Nicolaou,
	Ledi Bianku,
	Krzysztof Wojtyczek,
	Faris Vehabović,
	Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 25 August 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 14322/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Sławomir Milka (“the applicant”), on 10 February 2012.
2.  The applicant, who had been granted legal aid, was represented by Mr J. Köhler, a lawyer practising in Katowice. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
3.  The applicant alleged that he had been subjected to disciplinary punishment while in detention for his refusal on numerous occasions to undergo body searches, which amounted to a violation of Article 3 of the Convention.
4.  On 1 September 2014 these complaints were communicated to the Government under Articles 3 and 8 of the Convention and the remainder of the application was declared inadmissible.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1957 and is detained in Dąbrowa Górnicza.
The applicant’s refusal to undergo body searches and the disciplinary punishments imposed on him
6.  The applicant was detained on remand in 2007 and 2008. He was subsequently convicted and served his sentence in various detention centres and prisons.
7.  From 24 May 2011 the applicant was imprisoned in the Sosnowiec Remand Centre and from 17 May 2012 until 10 June 2013 in Wojkowice Prison.
8.  On 20 October 2011 the applicant was transported to another location for the purpose of executing some procedural measures (doprowadzenie na czynności proceduralne) and was therefore asked to undergo a body search, however he refused to undress. He addressed the public officers in a vulgar fashion and displayed an unrepentant manner. His rehabilitation supervisor (wychowawca) therefore lodged a request for disciplinary punishment.
9.  On 26 October 2011 the applicant went to the doctor to have his nails cut and behaved offensively towards the doctor, whereupon another request for disciplinary punishment was lodged against him. According to the reasoning supporting the request, the applicant admitted committing an act warranting disciplinary punishment but his attitude was unrepentant.
10.  On 27 October 2011 the Director of the Sosnowiec Detention Centre examined both requests simultaneously and issued a reprimand (nagana) to the applicant by way of disciplinary penalty.
11.  The applicant appealed.
12.  On 17 January 2012 the Katowice Regional Court dismissed the appeal and upheld the challenged decision, finding that it had been issued in accordance with the relevant legal provisions.
13.  On 18 May 2012 the applicant again refused to undergo a body search in Wojkowice prison.
14.  On 23 May 2012 the Director of Wojkowice Prison imposed a disciplinary penalty on the applicant for his refusal to undergo a body search. The applicant was forbidden to receive food parcels for two months.
15.  On 28 May 2012 the applicant appealed against this decision to the court.
16.  On 18 July 2012 the Katowice Regional Court dismissed the appeal and upheld the challenged decision. The court did not examine the reasons for which the applicant had been required to undergo body searches. It found that the decision in question had been given in accordance with the relevant provisions of the Code of Execution of Criminal Sentences.
17.  On 26 June 2012 the applicant again refused to undergo a body search in Wojkowice prison. From the written request for imposition of a disciplinary punishment on the applicant, it appears that he refused to take off his underwear. The rehabilitation supervisor requested that the applicant be placed in solitary confinement for a period of 7 days by way of punishment.
18.  On 27 June 2012 the Director of Wojkowice Prison imposed on the applicant a disciplinary penalty of solitary confinement for a period of 7 days. The applicant served this penalty between 27 June and 4 July 2012.
19.  The applicant appealed against this decision.
20.  On 3 September 2012 the Katowice Regional Court dismissed the appeal and upheld the challenged decision, finding that it had been issued in accordance with the law and had been justified in the circumstances of the case, namely that the applicant had refused to undergo a body search, which constituted a disciplinary offence.
21.  On 27 June 2012 the applicant refused to undergo a body search when being admitted to a hospital ward, and again on 30 June 2012 after coming back from a walk. From the written request for imposition of the disciplinary penalty it appears that the applicant had tolerated the search “to the extent which he found appropriate”.
22.  On 4 July 2012 the Director of Wojkowice Prison imposed on the applicant the disciplinary penalty of solitary confinement for a period of 7 days. The applicant served the penalty between 4 and 10 July 2012. The decision of 4 July 2012 stated that it could be challenged within seven days by lodging an appeal with the penitentiary court. The applicant failed to appeal against this decision.
23.  The reasoning supporting the written requests of 20 October and 26 December 2011 and of 27 and 30 June 2012 for imposition of disciplinary penalties also states that the applicant was unrepentant in his attitude.
24.  On 10 June 2013 the applicant finished serving his sentence and was released from prison.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  Personal checks
25.  Article 116 § 2 of the Code of Execution of Criminal Sentences, 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 personal check.”
26.  Article 116 § 3 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.”
B.  Protection of personal rights
27.  Article 23 of the Civil Code sets out a non-exhaustive list of the so‑called “personal rights” (dobra osobiste) in the following way:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, 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.”
28.  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 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 the court to award an appropriate sum for the benefit of a specific public interest.”
29.  Article 448 of the Civil Code provides:
“The court may grant an appropriate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for eliminating the consequences of the infringement sustained, may ask the court to award an appropriate sum for the benefit of a specific public interest ...”
C.  The recommendation of the Ombudsman
30.  On 23 December 2014 the Ombudsman addressed the Minister of Justice in an official letter in which the question of personal checks and strip searches of prisoners was raised. The Ombudsman pointed to the fact that lack of detailed provisions specifying kinds of control and the extent of their scope as well as lack of provisions specifying rights of persons performing the checks may create space for arbitrariness and danger of violation of standards arising from the European Convention on Human Rights. The Ombudsman further recommended that a person in respect of whom a decision to perform a personal check was given should have the right to contest that decision before the court.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
31.  The applicant complained that the strip searches to which he had been subjected and the imposition of disciplinary penalties on him had amounted to a violation of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
32.  The Government contested that argument. They considered that the body searches complained of had been performed in accordance with the relevant legal provisions and had not been arbitrary or excessive.
33.  The applicant did not contest the “procedure of body searches” as such. However, he considered such searches groundless since he had never given the prison authorities any grounds for suspecting that he might represent any danger in prison.
Admissibility
1.  The Government’s objection as regards non-exhaustion of domestic remedies
34.  The Government submitted that the applicant had not exhausted all the domestic remedies available under Polish law; they argued that the applicant should have made use of the possibility of lodging a claim under Articles 23 and 24 of the Polish Civil Code for the protection of personal rights.
35.  The applicant’s lawyer submitted that the applicant had appealed against most of the decisions imposing disciplinary penalties on him and that these were the normal remedies which he had to use. He submitted that the remedies referred to by the Government in their observations were not relevant to the regulations contained in the Code of Execution of Criminal Proceedings which had served as basis for the applicant’s disciplinary punishment.
36.  The Court notes that according to the documents and information provided by the parties, the applicant appealed against the decisions to impose disciplinary penalties on him dated 27 October 2011, 23 May and 27 June 2012. He did not appeal against the most recent decision of 4 July 2012, even though he had been informed in writing of that possibility (see paragraphs 11, 15, 19 and 22 above).
37.  It follows that the part of the application which concerns the refusal to undergo strip searches on 27 and 30 June 2012 and the disciplinary penalty imposed on the applicant on 4 July 2012 must be declared inadmissible for the applicant’s failure to exhaust domestic remedies.
38.  As regards the Government’s submission that the applicant should have made use of a further remedy, namely that of a civil claim for the protection of his personal rights, the Court notes that the Government failed to produce any evidence showing that this might be an effective remedy in the context of the strip search of a prisoner, in particular in circumstances in which the prisoner refuses to undergo such a strip search and is subjected to a disciplinary punishment (compare Biśta v. Poland, no. 22807/07, § 42, 12 January 2010). The Court further notes that, according to the relevant provisions of the Polish Civil Code, a claim for the protection of one’s personal rights can succeed only if the alleged violation is unlawful (see paragraph 28 above) whereas the question that arises in the present case is whether the means employed by the authorities were arbitrary or excessive in the circumstances of the case.
39.  It follows that the remedies relied on by the Government cannot be considered relevant in the present case and that, by lodging appeals with the penitentiary court, the applicant had exhausted the available domestic remedies. The Government’s plea of inadmissibility on the grounds of non‑exhaustion of domestic remedies as regards the decisions against which the applicant lodged appeals must therefore be dismissed.
2.  Other grounds of admissibility
40.  The Court notes that the strip searches originally complained of by the applicant were in fact never performed completely. Each time the applicant was ordered to undress he refused to do so and was therefore subjected to a disciplinary punishment. In his observations the applicant expressly confirmed that he had not complained about the manner in which the prison officers behaved when they ordered him to undergo the strip searches (see paragraph 33 above). It follows that in the present case there was no element of debasement or humiliation which might give raise to a violation of Article 3 of the Convention (see and compare Iwańczuk v. Poland, no. 25196/94, § 57, 15 November 2001).
It follows from the foregoing that the complaint under Article 3 of the Convention is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 § 3 (a) of the Convention.
The Court will further examine whether the applicant’s complaints give raise to an issue under Article 8 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
41.   Relying on the case of Wainwright v. the United Kingdom, no. 12350/04, § 43, ECHR 2006‑X, in which it found that when a measure falls short of Article 3 treatment, it may fall foul of Article 8 of the Convention, the Court also communicated the applicant’s complaints under this provision, which provides:
“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
42.  The Government submitted that there had been an interference with the applicant’s right to private life, but that this interference had been justified and proportionate in the light of the requirements set forth in Article 8 § 2 of the Convention. In particular, they submitted that the body searches were ordered either when the applicant was leaving prison or when he was brought back to prison from outside and that there was a risk that he might bring with him some dangerous objects.
A.  Admissibility
43.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
44.  The Court will examine only those instances of the applicant’s refusal to undergo body searches and his disciplinary punishments in relation to which he appealed against the respective decisions. The complaint as regards the disciplinary punishment of 4 July 2012 is to be declared inadmissible and thus falls outside the Court’s examination on the merits (see paragraph 37 above).
B.  Merits
1.  Existence of an interference
45.  As noted above, in the case of Wainwright v. the United Kingdom the Court found that where a measure falls short of Article 3 treatment, it may fall foul of Article 8 of the Convention which, inter alia, provides for the protection of physical and moral integrity under the head of respect for the individual’s private life (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247‑C, and Bensaid v. the United Kingdom, no. 44599/98, § 46, ECHR 2001‑I). There is no doubt that the requirement to undergo a strip search will generally constitute an interference under the first paragraph of Article 8 and must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, for example, Olsson v. Sweden (no. 1), 24 March 1988, § 67, Series A no. 130). Whilst strip searches may be necessary on occasions to ensure prison security or prevent disorder in prisons, they must be conducted in an appropriate manner (see Iwańczuk, cited above, § 59).
2.  Whether the interference was in accordance with the law
46.   The orders to undergo body searches and the punishments for the refusal to do so had a sound basis in the provisions of the domestic law, namely in the Code of Execution of Criminal Sentences. The Court is also satisfied that the interference complained of pursued the legitimate aim of “the prevention of disorder or crime”.
3.  Whether the interference was proportionate to the legitimate aim pursued
47.  The Court notes that throughout his imprisonment in two prisons from 24 May 2011 until 10 June 2013 the applicant was ordered to undergo body search on five occasions, three of which fall to be examined by the Court (see paragraphs 36, 37 and 44 above).
48.  The Court accepts the Government’s explanation that the orders to perform a body search of the applicant were issued in the context of the applicant’s leaving prison premises or while being admitted to another prison. However their further submission that there was a risk that the applicant might bring some dangerous objects in with him is unsupported by any evidence. The applicant was not classified as a dangerous prisoner. Likewise, it has not been shown that in the past he had given the prison authorities any reason for thinking that he might behave in a dangerous manner or bring any dangerous objects onto the prison premises. Whilst he did behave in a vulgar and offensive manner, from the documents submitted by the parties it appears that his behaviour never overstepped the limits of verbal abuse. The Court is aware of the need to assure security in institutions where people are deprived of their liberty, it considers however that highly invasive and potentially debasing measures like personal checks or strip searches require a plausible justification. It does not appear that such a justification was given by the prison authorities to the applicant in the instant case. The Court also notes in this respect that the Ombudsman in his recommendation of 23 December 2014 drew the attention to the fact that the domestic law as applied in practice did not guarantee to prisoners effective remedies to contest the decision to perform personal checks (see paragraph 30 above). In the absence of such an effective remedy, it is difficult to enforce at the domestic level the requirement of a sufficient justification for personal checks or strip searches.
49.  As regards the disciplinary punishments imposed on the applicant, the Court notes that at first the applicant was punished with a reprimand, then with a prohibition on receiving parcels and finally, when he refused to undergo a body search for the third time, with a more severe restriction, namely placement in a solitary cell for a period of seven days (see paragraph 18 above). The Court considers that the punishments imposed on the applicant were of a serious nature, in particular the placement of the applicant in a solitary cell, taking into account the fact that the reasons for their imposition have not been clarified. It was asserted by the domestic courts to which the applicant appealed that the disciplinary measures were rightly imposed for the applicant’s refusal to undergo the body searches. However, the question whether there had existed genuine and valid reasons for which the applicant was requested to undergo such searches has never been examined in any procedure before the domestic courts (see paragraphs 16 and 20 above).
50.  It follows from the above considerations that it has not been shown that the interference complained of was justified by a pressing social need and that it was proportionate in the circumstances of the case.
The Court concludes therefore that there was a violation of Article 8 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
51.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
52.  The applicant claimed 147,010.00 euros (EUR) in respect of non‑pecuniary damage.
53.  The Government considered the amount claimed by the applicant exorbitant and groundless. They further submitted that the applicant had failed to support his claim by any document. Consequently they invited the Court to reject the applicant’s claim.
54.  Having regard to its finding of a violation of Article 8 in the present case and making its assessment on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage.
B.  Costs and expenses
55.  The applicant did not make any claim for costs and expenses involved in the proceedings.
C.  Default interest
56.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 8 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 September 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Françoise Elens-Passos	Guido Raimondi
	Registrar	President