Jan WATROS v Poland - 13384/10 [2012] ECHR 279 (31 January 2012)

judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, 6 May 2003; WAZA Spółka z o. o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007). The Court has established in a number of cases brought against Poland its practice concerning complaints about the violation of detainees’ right to respect for private and family life on account of the refusal of compassionate leave from prison (see, for example, Płoski v. Poland , no. 26761/95, §§ 32-39, 12 November 2002; Czarnowski v. Poland , no. 28586/03, §§ 25-33, 20 January 2009; Krym v. Poland (dec.) , no. 26938/05, 7 October 2008; Wadielac v. Poland (dec.), no. 14260/09, 25 May 2010; Jurga v. Poland (dec.), no. 30540/09, 22 June 2010; and Giszczak v. Poland , no. 40195/08 , §§ 36-41, 29 November 2011 (not yet final) ). Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)). Moreover, given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to do so (Article 37 § in fine ). Accordingly, this part of the application should be struck out of the list. B. Remaining complaints under Article 3 of the Convention The applicant complained that the manner in which the prison escort officers had treated him during his father’s funeral had been incompatible with human dignity, in breach of Article 3 of the Convention. In particular, he complained that he had been handcuffed, not allowed to wear his own clothes during his father’s funeral, that the prison escort officers had publicly scorned him, hindered him in using the toilet before the funeral and prevented him from approaching his father’s coffin. Article 3 of the Convention provides: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government submitted that the applicant should have lodged a civil action under Article 24 read in conjunction with Article 448 of the Civil Code, seeking compensation from the State Treasury for a breach of his personal rights. Moreover, they pointed out that the applicant had not requested the director of the remand centre for authorisation to wear his own clothes during the funeral ceremony. Consequently, they invited the Court to declare this part of the application inadmissible for non-exhaustion of domestic remedies. Lastly, they submitted that the applicant’s complaints were in any event manifestly ill-founded, as the restrictions complained of had been dictated by considerations of security and crime prevention and by the applicant’s aggressive behaviour. They considered that, in any event, the impugned restrictions had not exceeded what was reasonably considered necessary in the circumstances of the case. The applicant did not comment on the Government’s submissions. The Court recalls that the fact alone of being handcuffed does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful arrest or detention and does not entail use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or abscond, cause injury or damage or suppress evidence (see Raninen v. Finland , no. 20972/92, § 56, 16 December 1997; Garriguenc v. France (dec.), no. 21148/02, 15 November 2007; Paradysz v. France , no. 17020/05, § 88, 29 October 2009; Kashavelov v. Bulgaria , no. 891/05 , § 38, 20 January 2011; Mirosław Garlicki v. Poland , no. 36921/07 , § 74, 14 June 2011 ). The Court observes that the applicant in the present case did not complain about the use of force but rather about the allegedly degrading treatment inflicted upon him by the prison escort officers during his father’s funeral. In particular, he complained about being handcuffed and publicly exposed to his family members and other persons who attended the ceremony, as well as about other restrictive measures and the behaviour of the escort officers which, in his view, had infringed his dignity and had been aimed at humiliating him. The Court considers that the coincidence of the above-mentioned measures, if it revealed the existence of a pattern of behaviour aimed at debasing or humiliating the applicant, might reach a degree of intensity which exceeds the level inherent in every arrest and detention and bring such a situation within the ambit of degrading treatment prohibited by Article 3 of the Convention ( Mirosław Garlicki v. Poland , cited above, § 75). The public nature of the treatment or the mere fact that the victim is humiliated in his own eyes may be a relevant consideration ( Raninen , cited above, § 55; Archip v. Romania , no. 49608/08 , § 53, 27 September 2011). However, the Court cannot examine the merits of the complaint under Article 3, as it considers that the applicant did not make use of any domestic remedies. In particular, having regard to the circumstances of the case and to the scope of the applicant’s complaint, the Court is not convinced that the penitentiary complaint which he had filed on 20 August 2009 with the Director of Chełm Remand Centre was a remedy capable of providing adequate redress for the alleged breach of his rights under Article 3 of the Convention. In this respect, the Court reiterates, having regard to the principle of subsidiarity, that where the alleged violation of Article 3 no longer continues and cannot be eliminated with retrospective effect, the only means of redress for the applicant is pecuniary compensation (see Orchowski v. Poland , no. 17885/04, § 109, 22 October 2009). Given the specific nature of the Convention claim at hand, the Court considers in the circumstances of the present case that the most appropriate remedy which the applicant should have availed himself of was a civil action for compensation for the infringement of his personal rights, under Article 24 read in conjunction with Article 448 of the Civil Code. Article 23 of the Civil Code contains a non-exhaustive list of personal rights which include, inter alia , health, liberty and honour, and which are interpreted by established domestic jurisprudence as also including a person’s dignity (see paragraph 22 above). In this regard, the Court refers by way of example to some of its prior cases where it has already found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention in respect of complaints relating to violations of personal rights on account of inadequate conditions of detention ( Łatak v. Poland (dec.), no. 52070/08, 12 October 2010, § 80), medical care in detention ( Nocha v. Poland (dec.), no. 21116/09, 27 September 2011), degrading treatment in the course of a person’s arrest ( Mirosław Garlicki v. Poland , cited above, § 77), or in connection with censorship of detainee’s correspondence ( Biśta v. Poland , no. 22807/07, §§ 48-9, 12 January 2010). Having regard to the above considerations, the Court is of the opinion that the applicant in the present case should have made use of the aforementioned civil action to claim compensation from the State for having been subjected to the alleged violation of his dignity. Furthermore, as regards the specific issue of authorisation to wear his own clothes during the funeral, the Court observes that on 10 August 2009 the applicant requested the penitentiary judge to allow him to attend the funeral which was to take place on the following day. The Court considers that nothing prevented the applicant from requesting the Director of Chełm Remand Centre, on the same day, to grant him leave to wear his own clothes during the funeral ceremony. The applicant failed to explain why, in his view, he had not availed himself of this opportunity, explicitly foreseen by the relevant provision of the Code of Execution of Criminal Sentences. In conclusion, the Court finds that by failing to have recourse to any of the above-mentioned domestic remedies, in particular a civil action for compensation for the infringement of personal rights and a request for leave to wear his own clothes during the funeral, the applicant failed to exhaust the available remedies provided for by Polish law. It follows that the complaint under Article 3 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein; Decides to strike the application out of its list of cases in so far as it relates to the above complaint, in accordance with Article 37 § 1 (c) of the Convention; Declares the remainder of the application inadmissible. 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