AVETISYAN v. POLAND

FIRST SECTION

DECISION

Application no. 73964/17
Boris AVETISYAN
against Poland

The European Court of Human Rights (First Section), sitting on 4 June 2024 as a Committee composed of:

 Ivana Jelić, President,
 Krzysztof Wojtyczek,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 73964/17) 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”) on 10 October 2017 by an Armenian national, Mr Boris Avetisyan (“the applicant”), who was born in 1976, is detained in Iława and was represented by Ms A. Krysiak‑Schechinger, a lawyer practising in Pabianice;

the decision to give notice of the complaints concerning the strip searches to which the applicant had been subjected to the Polish Government (“the Government”), represented by their Agent, first Mr J. Sobczak and, subsequently, Ms A. Kozińska-Makowska, both of the Ministry of Foreign Affairs and to declare the remainder of the application inadmissible;

the observations submitted by the respondent Government and the observations submitted by the applicant in reply;

the comments submitted by the Armenian Government, who had exercised their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court);

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The application concerns the alleged 130 strip searches to which the applicant claimed having been subjected, while imprisoned, between 5 March 2012 and 7 January 2018, upon his return from each visit he received during that time.

2.  The applicant has been serving a sentence of twenty-five years’ imprisonment since 30 October 2004, inter alia, in Sieradz Prison, between 31 March 2010 and 11 April 2017; and in Strzelce Opolskie Prison No. 1, between 11 April 2017 and 6 November 2018. He was not under a special regime for dangerous prisoners.

3.  On 2 July 2017 the applicant sent a letter to the Opole Regional Inspectorate of the Prison Service, complaining of the strip searches carried out after visits received in Strzelce Opolskie Prison No. 1 (without, however, referring to any concrete instances thereof). He claimed that, even though the meeting room was monitored by several guards, after every received visit he had to strip naked in the presence of a randomly appointed prison guard and allow the latter to visually inspect intimate parts of his body.

4.  The Opole Regional Inspectorate of the Prison Service dismissed the complaint on 11 September 2017. The Inspectorate explicitly referred to the searches performed on 16 April and 12 May 2017 and found them in compliance with the applicable provisions.

5.  The applicant did not lodge any further complaints with the domestic authorities afterwards.

6.  The applicant complained, under Article 3 of the Convention, that the strip searches constituted degrading treatment.

THE COURT’S ASSESSMENT

7.  On 26 September 2023 the Government submitted a unilateral declaration with a view to resolving the issues raised by the applicant’s complaint in respect of the strip searches carried out on 16 April and 12 May 2017.

8.  The Government acknowledged the violation of the applicant’s rights under Articles 3 and 8 of the Convention. They offered to pay the applicant 5,500 euros (EUR) in respect of non-pecuniary damage and costs and expenses and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of settlement and would be payable within three months from the date of notification of the final ruling taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

9.  The applicant rejected the terms of the unilateral declaration, requesting the Court to continue examining his application.

10.  The Court reiterates that Article 37 § 1 (c) enables it to strike a case out of its list if:

 “for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

11.  Thus, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government, even if the applicant wishes the examination of the case to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).

12.  The Court has established clear case-law concerning complaints relating to the strip searches of prisoners (see, among others, Milka v. Poland, no. 14322/12, §§ 41-50, 15 September 2015; Dejnek v. Poland, no. 9635/13, §§ 70-77, 1 June 2017; and Roth v. Germany, nos. 6780/18 and 30776/18, §§ 64‑72, 22 October 2020).

13.  Noting the admission contained in the Government’s declaration and the amount of compensation proposed – which is consistent with the amounts awarded in recent similar cases (see, for example, Bojar v. Poland [Committee], no. 11148/18, 11 May 2023) – the Court considers that it is no longer justified to continue its examination of this part of the application (Article 37 § 1 (c) of the Convention). Moreover, it is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue examining this part of the case (Article 37 § 1 in fine).

14.  Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

15.  In view of the above, it is appropriate to strike this part of the application out of the list.

16.  The Government have raised several preliminary objections as regards the remainder of the application. Notably, they argued that the applicant had failed to take any domestic legal action in respect of all other alleged instances of strip searches than those referred to in the unilateral declaration. The applicant disagreed with that view.

17.  Based on the elements before it, notably the applicant’s complaint of 2 July 2017 and the authorities’ response of 11 September 2017, as well as the absence of any indication that the applicant lodged any further complaints with the domestic authorities, the Court accepts the Government’s assertion that the applicant failed to take any legal action in respect of all the remaining instances of strip searches, that is those allegedly effected in Sieradz Prison and those carried out in Strzelce Opolskie Prison No. 1 after 2 July 2017.

18.  The Government’s objection must therefore be allowed, and this part of the application 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 concerning the strip searches carried out on 16 April 2017 and 12 May 2017 and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 27 June 2024.

 Liv Tigerstedt Ivana Jelić
 Deputy Registrar President