The charges are so serious that they should motivate the Prison Service and the Ministry of Justice to undertake immediate discovery process.
From 21 February 2006 to 5 October 2007 Józef Jędruch was remanded in custody in Mysłowice Detention House in connection with his lawsuit. As he claims, he was then repeatedly subjected to humiliating, inhumane and discriminatory treatment during body searches. Each time after leaving his cell in order to attend a trial or a meeting with his family, attorney or prosecutor, he had to subject to above-mentioned searches. There were 290 of them in total. And what is more, in his opinion, the body searches violated the principles prescribed by law. Although they took place in a specially assigned room, according to Józef Jędruch up to six officers took part in every examination, including officers of opposite sex, which is contrary to article 116 § 3 of the Executive Penal Code.
In the opinion of the applicant, excessive and improperly conducted body searches were directly related to his Jewish origin. He heard there many anti-Semitic jokes and insults. Due to this fact, on 10 November 2007 Józef Jędruch lodged a complaint to the European Court of Human Rights on the activities of the custody officers in Mysłowice Detention House, which included humiliating and discriminatory treatment during body searches.
Of course, at this stage it is difficult to verify the truthfulness of all the charges levelled by Józef Jędruch in this complaint. However, they seem very serious and cannot be ignored. According to the procedure before the European Court of Human Rights, the Polish government has now time for submitting the observation concerning this complaint and address the case. The actions of the polish government should not, however, be limited to fulfilling procedural requirements.
It is common practice for the Polish government to clarify a case or take up remedial action only after the European Court of Human Rights in Strasbourg pronounces its sentence. A question arises whether it is actually a good practice. After all, the text of a complaint and presented charges, especially those justified, may serve as a an adequate tool for considering country’s regulations or practices as well as determining which government functionary is responsible for violations. Delaying such inspections leads to the risk of violation of other people’s rights and thereby not obeying the obligation included in the Convention.
This should happen in the case of Józef Jędruch. On this stage, appropriate authorities can comprehensively analyse the manner in which body searches were conducted in Mysłowice Detention House, regarding their accordance with the law and human rights standards. It is justified especially in the context of article 3 of the convention, which imposes the so called positive obligation of clarifying all circumstances of violations on the state.
It should also be considered on the basis of this case, if the procedures of body searches (article 116 of the Executive Penal Code) do not leave any space for violations, including arbitrariness of the manner in which they are conducted by custody or prison officers. It may especially concern the range of control, level of intensiveness and respect for intimacy. The practices should also be verified with respect to complaints lodged to various institutions (including the ombudsman) by other convicts.
Author – Adam Bodnar is a Doctor of Law, Head of the Legal Department and Secretary of the Board of the Helsinki Foundation for Human Rights.
Author – Irmina Pachois a lawyer in the Strategic Litigation Program of Helsinki Foundation for Human Rights
