Wiktorko v Poland  ECHR 14612/02 (31 March 2009) The European Court of Human Rights has held that the treatment of a Polish national, whilst detained at a government-run 'sobering-up centre', constituted degrading treatment in violation of the substantive protection of art 3 of the European Convention on Human Rights. The applicant in this case was forcibly undressed by two male employees and was immobilised by restraining belts for a period of ten hours. Further, the Court held that subsequent investigations and proceedings carried out by Polish authorities were inadequate, in violation of the procedural limb of art 3 of the Convention.
Ms Wiktorko is a Polish national who was detained in a sobering-up centre in her home town of Olsztyn in December 1999, after refusing to pay a taxi fare.
At the sobering-up centre, Ms Wiktorko was placed in restraining belts, tied to a bed and locked in a cell for approximately ten hours, after which she was released from the centre. Ms Wiktorko also claimed that she was brutally manhandled and beaten, insulted, forcibly stripped naked by two men and a woman and forcibly put into a disposable gown. The Polish Government submitted that the applicant had been aggressive towards and had verbally insulted the centre's staff, leaving the staff with no choice but to undress her and put her into a disposable gown by force.
Ms Wiktorko submitted a formal complaint to the district police, in which she alleged that she had not been intoxicated at the time of detention and that the detention had infringed her personal rights. In October 2000, after numerous investigations and appeals, the Olsztyn Regional Court upheld the decision of the district prosecutor to discontinue the proceedings. The Olsztyn Regional Court found that the applicant had been intoxicated and therefore her detention in the sobering-up centre and the use of force had been justified.
The European Court of Human Rights found that there had been both a substantive and procedural violation of art 3 of the Convention. Article 3 provides that no person shall be subjected to torture or to inhuman or degrading treatment or punishment.
Substantive violation of Article 3
The Court reiterated the following general principles in relation to art 3:
- the article enshrines one of the most fundamental values of a democratic society and contains an absolute prohibition, irrespective of the circumstances or the victim's behaviour;
- to fall under art 3, ill-treatment must be of a minimum level of severity, determined in light of the circumstances of the case. Such circumstances include the duration of the ill-treatment, its physical and mental effects and, in some cases, the gender, age and state of health of the victim;
- where the ill-treatment occurs in a situation amounting to a 'deprivation of liberty' within the meaning of art 5 of the Convention, any recourse to physical force will, in principle, infringe art 3 where the force has not been made strictly necessary by the victim's own conduct; and
- the mere fact that domestic courts have found that the use of force did not amount to a criminal offence does not, in itself, absolve the government from its responsibility under the Convention.
The Court found that in this case, the conduct of the staff of the sobering-up centre amounted to degrading treatment, contrary to art 3, for the following reasons:
- the fact that the applicant was stripped naked by three employees, including two men, showed a clear lack of respect for the applicant and, in effect, diminished her human dignity. This was especially so given that the two male members of the staff undressed the applicant forcibly, as opposed to merely ordering her to undress; and
- the fact that the applicant was placed in restraining belts for a period of ten hours, which, in the Court's opinion, amounted to an excessive period of time.
Procedural violation of Article 3
The Court stated that art 3 also contains a procedural requirement, being an obligation on national authorities to carry out 'an effective official investigation' when an individual makes a credible assertion that they have suffered treatment infringing art 3 at the hands of agents of the State. The investigation must be capable of establishing the relevant facts and identifying and punishing those responsible. The Court noted that this procedural requirement was essential for maintaining the public's confidence in the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts by government authorities.
The Court found that there had been a violation of the procedural requirement contained in art 3 in this case, as the Polish authorities had investigated the applicant's allegations 'in too narrow a framework'. The investigations and proceedings by the Polish government focussed on the justification for the applicant's deprivation of liberty and for the use of force against her, namely the applicant's intoxication. Because of this, the Court found that the Polish authorities had deprived themselves of the possibility of assessing the proportionality of the force applied to the applicant, as required by art 3 standards. These standards included consideration of the justification for the forced removal of the applicant's clothing by two male employees, and the use of restraining belts to immobilise the applicant for ten hours.
Relevance to the Victorian Charter
The Court's decision has implications for the interpretation of s 10(b) of the Charter, which provides that a person must not be treated or punished in a cruel, inhuman or degrading way. The decision suggests that this section should be interpreted broadly, particularly where the alleged ill-treatment occurs at the hands of employees of the State and in the context of the deprivation of the victim's liberty.
The decision is also of interest for its consideration of the procedural aspect of the prohibition on inhuman or degrading treatment or punishment. Although the Victorian Courts do not appear to have considered whether s 10(b) of the Charter contains a similar procedural requirement, the decision of Wiktorko suggests that, where the alleged ill-treatment occurs by government officials, the nature of any investigation or proceedings carried out by government authorities may be a relevant consideration.
Edwina Chin, Human Rights Law Group, Mallesons Stephen Jaques