CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 novembre 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }       FOURTH SECTION Application no. 63995/11 Wojciech GOŁASZEWSKI against Poland lodged on 15 June 2011 STATEMENT OF FACTS   The applicant, Mr Wojciech Gołaszewski, is a Polish national, who was born in 1976 and lives in Białystok. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Events on 22 March 2008 as reported by the applicant 1.     The applicant was a detainee at the Szczecin Remand Centre. 2.     On 20 March 2008 a prison guard P.K. refused the applicant an additional hot shower ordered by a doctor. The applicant wanted to see the shift commander (dowódca zmiany) but his request was ignored. 3.     On 22 March 2008 the applicant again requested P.K. to allow him to see the shift commander and P.K. said he would grant his request after lunch. 4.     After lunch P.K. took the applicant to an office in which he was to speak to the shift commander. The commander however was not there. Instead, P.K. hit the applicant in the stomach, used vulgar language and refused the applicant any rights. 5.     Afterwards the applicant was taken back to his cell where he reported the events to his inmates. 2.     Investigation into the events of 22 March 2008 6.     On 28 March 2008 the applicant complained to the prosecutor that the guard P.K. had exceeded his powers by refusing him an additional hot shower, refusing him a meeting with a prison guards’ superior and hitting him in the stomach. 7.     By a decision of 28 April 2008 the Szczecin District Prosecutor refused to open an investigation. 8.     The applicant appealed. 9.     On 23 September 2008 the Szczecin District Court quashed the prosecutor’s decision, arguing that it was premature. In particular, the prosecutor refused to open the investigation before she received the relevant documents from the detention centre. The court found many shortcomings in the prosecutor’s decision, ordered her to open an investigation and hear certain witnesses listed by name. It also ordered the prosecutor to meet the applicant and P.K. and to enquire further into the events of 22 March 2008, in particular to establish whether the applicant had indeed been taken to a separate room where he was hit in the stomach and whether there were any witnesses to this event. The court also ordered the prosecutor to examine the personal files of the applicant and P.K. because apparently after 22   March   2008 the applicant had been punished many times with disciplinary punishments only upon requests filed by P.K. 10.     The prosecutor opened an investigation as ordered by the District Court and, on 31 December 2008, discontinued the proceedings. According to the reasoning of this decision, “the scrupulous investigation, especially testimonies of prison officers who, according to the applicant, witnessed P.K.’s behavior, did not confirm the version of events as presented by the applicant, in particular as regards the blow to his stomach. The direct witness of the alleged event, [prison officer] K.S., does not confirm this version of events”. Apart from K.S., the prosecutor did not indicate the names of any other witnesses she had heard. It also appears that she did not examine the personal files of the applicant and P.K. as ordered by the District Court. 11.     The applicant appealed again. 12.     On 8 April 2009 the Szczecin District Court, having examined the applicant’s appeal, quashed the challenged decision and remitted the case. The court again indicated a number of shortcomings on the part of the prosecutor. It found, among other things, that the prosecutor had failed to follow certain orders referred to in the court’s decision of 23 September 2008. This time the prosecutor was ordered to hear the inmates who had shared the prison cell with the applicant at the relevant time and to establish who, if anybody, had been present with the applicant and P.K. in the room where the applicant had allegedly been hit. The court also pointed to the fact that K.S. who had been heard as a witness testified that he had had a day off on 22 March 2008; the court ordered the prosecutor to check whether this was true. 13.     On 6 August 2009 T.H., an inmate who at the relevant time shared the cell with the applicant was heard. He testified, among other things, that there was a video camera in front of the room where the applicant was allegedly hit. However, this information was not reflected in any decision given by the prosecutor or the court in the present case. 14.     On 30 June 2009 the District Prosecutor discontinued the proceedings as regards the charges concerning the refusal of an additional hot shower and the refusal to call the prison superior. It was also decided to continue the investigation as regards the other charges. 15.     On 18 January 2011 the Szczecin District Prosecutor again discontinued the investigation finding that the evidence collected did not allow charging P.K. with abuse of power. According to the prosecutor, the witnesses heard did not know, did not remember or refuted that the applicant had been hit by P.K. The inmate who had shared the cell with the applicant was not a direct witness to the event; he only knew of it from the applicant’s submissions. Other inmates W.P and J.R. did not confirm that on or after 22 March 2008 the applicant had complained of any pain in his stomach. The prosecutor also heard A.F., a prison officer directly responsible for the applicant, who testified that the applicant had not reported the event to him. Had the applicant informed A.F. that he had been hit by another prison officer, he would have been sent to a doctor who could have confirmed that the alleged injuries had been sustained. It is unclear from the reasoning of the prosecutor’s decision whether she checked if K.S. had had a day off on 22 March 2008 and if the applicant had indeed been taken to a separate room on that day. It also appears that she never examined the personal files of the applicant and P.K. 16.     The applicant appealed again. However, no further appeal is available if the prosecutor discontinues an investigation twice. Therefore on 8 March 2011 the District Prosecutor refused to entertain the applicant’s appeal. B.     Relevant domestic law 17.     Article 231   §   1 of the Criminal Code provides as follows: “A public official who, exceeding his authority, or not performing his duty, acts to the detriment of a public or individual interest shall be subject to the penalty of deprivation of liberty up to three years”. COMPLAINTS The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment in the detention centre on 22   March 2008 and that the investigation into his allegations was not effective.     QUESTIONS TO THE PARTIES   1.     Was the applicant subjected to inhuman or degrading treatment in breach of Article 3 of the Convention on 22 March 2008 at the Szczecin Detention Centre? 2.     As regards the procedural aspect of Article 3, was the investigation in the present case “thorough and effective” as required by this provision (see Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV, § 131)?