The applicants Mr Krzysztof Orchowski and Mr Norbert Sikorski, are two Polish nationals. They are currently serving a prison sentence in Poland. Mr Norbert Sikorski, who was born in 1975, is currently detained at Koszalin Prison and Mr Krzysztof Orchowski, who was born in 1971, in Wrocław Remand Centre.
Between the day they were first imprisoned and the day they lodged their applications with the European Court of Human Rights the applicants were detained in four different detention centres. They complain that they had less than the statutory 3 m² of living space per person in the detention facilities.
The applicants lodged numerous complaints about this situation. They relied on statistics provided by the Prison Service showing that, on average, the prison population stood at 110 %.
In their replies to the applicants the Prison Service acknowledged that prisoners could not be given the statutory 3 m² of space per person because of chronic overcrowding nationwide which justified recourse to measures restricting the amount of space per detainee to below the statutory 3 m². This was confirmed by the penitentiary judges; under Article 248 of the Code of Execution of Criminal Sentences, the prison governor had a right to take measures to reduce the area of the cell to less than 3 m² per detainee.
The applicants’ complaints were dismissed as ill-founded. They also lodged claims for damages. Mr Orchowski’s claim is still pending and the claim lodged by Mr Sikorski for compensation for the insalubrious living conditions he had endured at Koszalin Prison and for the damage done to his mental well-being was dismissed. He was awarded 5,000 Polish zlotys PLN (approximately EUR 1,200) in respect of his claim for compensation for harm done to his health as a result of being imprisoned with smokers.
Complaints, procedure and composition of the Court
Relying on Article 3 the applicants complained about the conditions of their detention, in particular the lack of space in their cells. Mr Orchowski lodged his application with the European Court of Human Rights on 11 May 2004 and Mr Sikorski lodged his on 4 May 2005.
Judgment in each case was given by a Chamber of seven judges.
Article 3
The Court reiterated that where prison overcrowding reached a certain level, the lack of space in a prison could constitute the central factor to be taken into consideration under Article 3.
In a judgment of 26 May 2008 the Polish Constitutional Court had held that the serious and chronic nature of prison overcrowding in Poland could in itself be qualified as inhuman and degrading treatment and that Article 248 of the Code of Execution of Criminal Sentences was incompatible with Article 40 of the Constitution. The European Court observed that Article 40 of the Constitution was drafted almost identically to Article 3 of the Convention. In consequence, all situations in which a detainee was deprived of the minimum of 3 m² of personal space inside his or her cell for an extended period of time would be regarded as creating a strong indication that Article 3 of the Convention had been violated.
In proceedings before Polish Constitutional Court Helsinki Foundation for Human Rights submitted amicus curiae opinion. It was claimed in that document that the official rates of the population in Polish detention facilities were not accurate. The penitentiary authorities, in their calculations, compared the number of detainees held in each detention facility not to the actual living space but to the total surface of the relevant detention facility, including entertainment rooms, gymnasia and larger single-person cells. As a result, the official figures of overcrowding were much lower than what they should be in reality. According to the Foundation’s sources, in many Polish detention facilities, i.e. in Warsaw Służewiec, Grodków, Bielsko Biała and Racibórz Prisons, the maximum occupancy rate allowed was exceeded by as much as 50%.
In both these cases it was established beyond reasonable doubt that for substantial periods of time the applicants’ cells had been overcrowded, leaving them with less than the statutory minimum “humanitarian” amount of space.
This lack of space had been made worse by aggravating factors, such as lack of exercise, particularly outdoor exercise, lack of privacy, insalubrious conditions and frequent transfers. The Court held unanimously that the distress and hardship endured by the applicants had exceeded the unavoidable level of suffering inherent in detention, in violation of Article 3.
Article 8
With regard to the applicants’ right to respect for their physical and mental integrity or their right to privacy, the Court found that the applicants’ situation lent itself to an examination under Article 8. However, having found a violation of Article 3, the Court found it unnecessary to examine the cases under Article 8. The Court observed, nevertheless, that the Constitutional Court’s finding in its judgment of 28 May 2008 would in itself have sufficed to conclude that there had been a violation of Article 8 § 2on account of failure to comply with the requirement that any interference must be “in accordance with the law”.
Article 46
The Court proposed to examine, having regard to the circumstances, what consequences for Poland could be drawn from Article 46 (binding force and execution of judgments).
Some 160 applications against Poland – 95 of which had already been communicated – raising an issue under Article 3 of the Convention with respect to imprisonment in inadequate conditions, particularly in the case of prison overcrowding, were currently pending before the Court.
The seriousness and the structural nature of the overcrowding in Polish detention facilities had been acknowledged by the Polish Constitutional Court and by all the State authorities involved in the proceedings before the Constitutional Court and the proceedings before the Strasbourg Court concerning the applicants. That overcrowding, which had been observed from 2000 until at least mid-2008, revealed a structural problem consisting of “a practice that is incompatible with the Convention”. Restricting the personal space afforded to detainees, which was supposed to have been a temporary and exceptional measure, had given rise to chronic overcrowding.
In the present case the authorities had chosen to legitimise the problem on the basis of a domestic law which had ultimately been declared unconstitutional by the Constitutional Court. The recent steps taken by Poland to remedy the inadequate conditions of detention could not remedy past violations. A general solution was therefore required that would address the root cause of the problem.
The Court therefore encouraged the State to develop an efficient system of complaints to the Prison Service and the authorities supervising detention facilities, which were best placed to take appropriate measures speedily.
Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Orchowski 3,000 euros (EUR) and Mr Sikorski EUR 3,500 for non-pecuniary damage. It awarded Mr Orchowski EUR 12 for costs and expenses.
Source: Press release issued by the Registrar – Chamber judgments (22.10.2009) (http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=17885/04&sessionid=35113947&skin=hudoc-pr-en)
