In the case of Paweł Pawlak v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 9 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
13421/03) 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”) by a Polish national, Mr Paweł Pawlak (“the
applicant”), on 13 March 2003.
The Polish Government (“the Government”) were
represented by their Agent, first Mr J. Wołąsiewicz and,
subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs.
The applicant alleged, in particular, a violation
of Article 3 of the Convention on account of the imposition of the so-called
“dangerous detainee” regime on him. He further submitted that the length of his
pre-trial detention was excessive, in breach of Article 5 § 3. The applicant
also alleged a breach of Article 8 in that during his detention his contact with
his family had been severely restricted.
On 24 January 2008 the complaint under Article 5
§ 3 concerning the length of pre-trial detention was communicated to the Government.
It was also decided to rule on the admissibility and merits of the application
at the same time. On 12 January 2010 further complaints under Articles 3 and 8 regarding
the application of the “dangerous detainee” regime were communicated to the
Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1965 and lives in Lublin. He was the owner of a pawnshop.
A. Criminal
proceedings against the applicant
On 11 June 2001 the applicant was arrested on
suspicion of large-scale fraud committed while acting as a leader of an
organised criminal group. He was further suspected of extortion and threatening
witnesses. The investigation was conducted by the Department of Organised Crime
of the Lublin Regional Prosecutor’s Office.
On 12 June 2001 the Lublin District Court
remanded the applicant in detention, relying on the reasonable suspicion that
he had committed the offences in question. It invoked the likelihood of a
severe sentence of imprisonment being imposed on the applicant and the risk
that he would attempt to obstruct the proceedings by attempting to bring pressure
to bear on other members of the criminal group. The applicant appealed. On
5 July 2001 the Lublin Regional Court dismissed the appeal. It noted that
the applicant’s arguments that the allegations made against him had been false
would be examined by the court determining the charges. It also found that the
risk of obstruction of proceedings was supported by the charge of threatening
witnesses.
On 27 November 2001 the Lublin Regional
Prosecutor charged the applicant with additional offences, namely aggravated
fraud, attempted fraud, unlawful possession of a weapon (a gas gun), unlawful
possession of amphetamine and preparing the forgery of certain documents.
In the course of the investigation, the applicant’s
detention was extended by the Lublin District Court several times. In its
decisions, the court relied on the likelihood that a severe prison sentence
would be imposed on him. It also underlined the risk that the applicant would
obstruct the proceedings. That risk was exemplified by the nature of several of
the charges against him (extortion and threatening of witnesses) indicating that
the applicant could attempt to exert pressure on other persons. Further, the
court referred to the need to continue the process of obtaining evidence. The
applicant appealed unsuccessfully against the decisions.
On 8 July 2002 the applicant was additionally
charged with corrupting a police officer.
On 5 December 2002 the prosecution filed a bill
of indictment with the Lublin District Court. The applicant was charged
with the following offences: 1) leading an organised criminal group engaged in
fraud, 2) fraud to the value of 65,016 PLN to the detriment of numerous
companies, 3) aggravated fraud to the value of PLN 1,146,658.6 to the
detriment of coal mines, 4) attempted fraud to the value of 194,287.44 to the
detriment of an IT company, 5) forgery of documents, 6) fraud, 7) extortion, 8)
threatening a witness, 9) unlawful possession of a gas gun, 10) possession of amphetamines,
11) corrupting a police officer and 12) putting into circulation forged bank
notes. There were eleven other co-defendants in the case.
The detention of the applicant was subsequently
extended by the Lublin District Court and the Lublin Court of Appeal (Sąd
Apelacyjny) on 9 December 2002 (until 14 May
2003), 21 May 2003 (until 11 October 2003),
1 August 2003 (until 11 February 2004), 4
February 2004 (until 11 November 2004),
8 September 2004 (until 11 December 2004), 9 December 2004 (until 11
April 2005), 6 April 2005 (until 11 September 2005), 7 September 2005 (until 11
January 2006) and 5 January 2006 (until
11 September 2006). The courts repeated the grounds given in the
previous decisions and additionally invoked the complexity of the case. In its
decision of 28 May 2002 the Court of Appeal noted that the organised nature of
the criminal activities substantiated the risk that the applicant would interfere
with witnesses.
The applicant appealed unsuccessfully against several
of the decisions extending his detention. In his appeals he relied on the
unreasonable length of the detention and on the deterioration of his ties with
his family.
On 20 January 2006 the Lublin District Court split
the case into eight separate sets of proceedings.
On 6 February 2006 the Lublin District Court
discontinued the proceedings against the applicant with regard to the charge of
leading an organised group engaged in fraud between May 1997 and the beginning
of 1998. It held that the act imputed to the applicant did not constitute a
crime under the provisions of the old Criminal Code which were applicable at
the relevant time. That decision was upheld on appeal.
On 14 March 2006 the applicant was released.
The Government submitted that between 19 July
2004 and 14 April 2005 as well as between 15 July and 3 September 2005 the
applicant had been serving a prison term imposed on him in another set of
criminal proceedings.
On 13 April 2006 the Lublin District Court convicted
the applicant of putting into circulation forged bank notes and sentenced him
to eighteen months’ imprisonment and a fine. The judgment was upheld on appeal.
On 5 May 2006 the Lublin District Court convicted
the applicant of unlawful possession of a gas gun and ammunition and sentenced
him to seven months’ imprisonment. The judgment was upheld on appeal.
On 25 May 2006 the Lublin District Court convicted
the applicant of unlawful possession of 0.29 grams of amphetamine and sentenced
him to a fine. The judgment was upheld on appeal.
On 8 March 2007 the Lublin District Court convicted
the applicant of aggravated fraud to the detriment of several coal mines and
sentenced him to thirty months’ imprisonment and a fine. The judgment was
upheld on appeal.
On 25 October 2007 the Lublin District Court acquitted
the applicant of the charge of corrupting police officer W.S., the head of the
economic crime department of the Lublin Police. It further acquitted W.S. of
the charge of accepting bribes from the applicant. It found that the charges
had been essentially based on the statements of two witnesses, P.K. and R.P. The
evidence of the first witness was held to be unreliable, contradictory and
incompatible with other evidence in the case. The first witness, P.K., stated
that in the course of the investigation he had been urged by prosecutors to
give evidence against the applicant and the police officer; however the trial
court did not consider those assertions credible. The evidence of the second
witness was held to be equally unreliable. The trial court noted that the
second witness had first made statements incriminating the applicant and the
police officer which he had retracted following his conviction in respect of
which he received a reduced sentence on account of his co-operation with the
prosecution.
The prosecutor’s appeal against the
first-instance judgment was dismissed as manifestly ill-founded. The Lublin Regional Court observed in its judgment of 17 June 2008 that in the course of the
investigation the prosecutor had grossly violated
the principle of objective assessment of evidence. It went on to say that the
prosecutor had uncritically accepted the evidence of P.K. and R.P. - who had
been involved in criminal activities -and had failed to verify it. Moreover,
such an unfairly conducted investigation, which the appellate court described
as “appalling”, was used to ruin the career of a high-ranking police officer. The
appellate court concurred with the trial court that the evidence of those two
witnesses had to be excluded as entirely unreliable. It further noted that both
witnesses had continued to incriminate the police officer until they had been
convicted and received reduced sentences.
On 21 May 2008 the Lublin District Court
convicted the applicant of attempted aggravated fraud to the detriment of an IT
company, fraud and preparation of forgery and sentenced him to thirty months’
imprisonment and a fine. On 29 April 2009 the Lublin Regional Court quashed the
first-instance judgment in respect of the applicant and remitted the case. On
16 March 2010 the Lublin Regional Court, which in the meantime had become
competent to examine the case, acquitted the applicant of the charges. It found
that they had been based on unreliable allegations made by the same two
witnesses, P.K. and R.P. The court noted that P.K. had deliberately made false
allegations against the applicant. The prosecutor’s appeal was dismissed on
appeal.
The charges of extortion and of threatening witnesses
were examined by the Lublin-Zachód District Court. On 24 March 2011 the court
gave judgment. It reclassified the charges respectively to unlawful violence
(Article 191 § 2 of the CC) and unlawful threats (Article 190 § 1 of the CC)
and found the applicant guilty. The court sentenced the applicant to a
suspended term of fifteen months’ imprisonment and a fine. The applicant and
the prosecutor appealed. On 26 October 2001 the Lublin Regional Court quashed
the first-instance judgment. It discontinued the proceedings against the
applicant, finding that the social danger of the first act imputed to the
applicant (unlawful violence) was negligible and that the second charge had
become time-barred.
On 11 April 2011 the Lublin-Zachód District
Court acquitted the applicant of the charge of fraud to the value of 65.016 PLN
to the detriment of various companies. The judgment became final on 24 August
2011.
B. Imposition
of the “dangerous detainee” regime
1. Undisputed facts
On 12 June 2001 the applicant
was detained at the Lublin Remand Centre. Initially, he was considered to
require increased protection on account of the charges against him but was not
formally classified as a “dangerous detainee”.
On 26 October 2001
the applicant was transferred to the Radom Remand Centre.
On 31 January 2002
the Organised Crime Department of the Lublin Regional Prosecutor’s Office requested
the Radom Remand Centre (Areszt Śledczy) to classify the applicant
as a dangerous detainee. The prosecutor stated that the applicant had been
charged with leading a criminal gang and unlawful possession of a gun.
Furthermore, there was a risk that he would attempt to corrupt prison or administration
of justice officers in order to make unlawful contact with the outside world.
There was also a risk that he would attempt to escape.
On 1 February
2002 the Radom Remand Centre Penitentiary Commission (Komisja Penitencjarna)
classified the applicant as a “dangerous detainee”. It relied on the arguments
put forward by the Prosecutor’s Office. The Head of the Security at the Remand
Centre ordered that the applicant wear shackles on his hands and feet (kajdany
na ręce i nogi) when escorted outside the remand centre and if placed in
a solitary cell he should have a solitary walk.
The applicant
appealed. He argued, inter alia, that the legal classification of the
charge of leading a criminal group engaged in fraud had been incorrect and
could not justify the imposition of the regime. He maintained that the acts
imputed to him could not be considered as acting in an organised group under
the provisions of the old Criminal Code which had been applicable. His appeal was
dismissed by the Radom Regional Court on 26 March 2002. The court noted that
the applicant had been charged with a number of offences committed in an
organised group and that, for this reason, he was considered as a person
representing a serious social danger or serious danger to the security of the
Remand Centre. Accordingly, the imposition of the dangerous detainee regime on
him was justified under §§ 62(2) and 64(1) of the Ordinance of the Minister of
Justice of 12 August 1998 on the Rules on the Execution of Detention on Remand
(“the 1998 Ordinance”; see paragraphs 73-74 below under Relevant domestic law).
From 1 February
2002, when the applicant was placed in a cell for dangerous detainees, he
remained under increased supervision. He was subjected to a body search,
including an inspection of his anus every time he left and entered the cell. At
the same time his cell was searched.
The applicant was
allowed to spend one hour per day in an outdoor yard but was segregated from
other detainees.
On 29 April and
25 July 2002 the Radom Remand Centre’s Penitentiary Commission reviewed and
upheld its decision classifying the applicant as a “dangerous detainee”. The
applicant’s appeal against the first of those decisions was dismissed. His appeal
against the second of those decisions was left without examination as having
been submitted outside the time-limit.
It transpires
from a letter dated 25 February 2002 of the Deputy Governor of the Radom Remand
Centre to the Radom Regional Court - Penitentiary Division that in
that establishment the applicant was placed in a solitary cell in a special
high-security ward, as were all dangerous detainees held there. The
psychologist who consulted the applicant did not find any contraindications
against the applicant’s placement in a solitary cell.
In April 2002 the
applicant complained to the Warsaw Regional Inspector of Prison Services about
his treatment by the administration of the Radom Remand Centre. In reply, he
was informed that his complaint was unfounded. As a remand prisoner classified
as a “dangerous detainee” he was being treated in accordance with the rules laid
down in § 64 of the 1998 Ordinance. This provision imposed, inter alia,
the obligation to carry out a personal check every time a detainee was leaving
or entering his cell. Further, he was informed that he was twice seen by a
psychologist and was received by the Governor of the Remand Centre. He could benefit
from certain activities in his solitary cell, such as listening to the prison radio,
reading books and playing board games.
On 16 October 2002 the applicant was transferred
to Chełm Prison.
On 24 October 2002 the Penitentiary Commission
of Chełm Prison extended the application of the “dangerous detainee” regime
for another three months, indicating that the original grounds justifying its
imposition remained valid. It noted that the risk of corrupting prison or judicial
personnel indicated that the applicant was seriously lacking moral character.
The Commission also considered that the short duration of the applicant’s stay
in the establishment had not permitted it to assess properly his personal
circumstances. The applicant appealed, alleging that the decision had been
unlawful. He requested the court to find that in his case there were particular
circumstances militating against the continuation of the “dangerous detainee”
regime referred to in § 62(2) of the 1998 Ordinance.
On 3 December 2002 the Lublin Regional Court
quashed the decision of 24 October 2002 and remitted the case. It
found that the Commission’s findings concerning the risk of corrupting
officials and the applicant’s lack of moral character had not met the conditions
stipulated in § 62(2) of the 1998 Ordinance. Further, the Commission had failed
to hear the applicant. It appears that despite the court’s decision quashing
the Penitentiary Commission’s decision on classification of the applicant as a “dangerous
detainee” he continued to be held in a cell for dangerous detainees.
On 12 December 2002 the Penitentiary Commission
decided to continue the application of the regime for another three months. In
addition to the reasons previously given, it referred to the letter of the
Lublin Regional Prosecutor of 11 December 2002, which pointed out that the
applicant had been charged with threatening witnesses. The prosecutor also noted
that in the course of the investigation the authorities had on a few occasions seized
unlawful communications sent by the applicant. In the Commission’s view, those facts
indicated that the personal circumstances and the behaviour of the applicant constituted
a serious social danger and a danger to the security of the prison.
The applicant contested the Commission’s
decision as unlawful. He argued that he had been the only member of the group
who remained in detention and that the charges of fraud had not concerned
dangerous crimes. Furthermore, he had been charged with unlawful possession of
a gas gun but it had not been alleged that he had used it. Furthermore, he
objected to the fact that the prosecutor had made submissions to the
Penitentiary Commission without a legal basis for doing so since after the
filing of the bill of indictment he had remained at the disposal of the trial
court and not of the prosecutor.
On 3 February 2003 the Lublin Regional Court
upheld the Commission’s decision.
The applicant complained that in Chełm
Prison he was deprived of the possibility to participate in cultural and
educational activities. On 14 February 2003 the Governor of the Prison
informed him that the prison’s common room was not equipped with adequate
security systems and therefore prisoners classified as “dangerous” could not
make use of it. However, the applicant had the possibility of reading in his
cell books and newspapers provided by the prison library. Further, he could
listen to programmes broadcast by the prison radio and watch television.
On 12 March 2003 the Penitentiary Commission
extended the application of the regime for another three months, relying on the
same grounds as previously. The applicant appealed.
On 29 April 2003 the Lublin Regional Court -
Penitentiary Division held a hearing at Chełm Prison. The applicant
submitted that the Commission’s decision had been unlawful and the reasons
given for it had been too general. The charges against him did not justify the continuation
of the regime. Further, he submitted that he had not been disciplined in prison
and his only fault was sending unlawful correspondence. The court adjourned the
examination of the applicant’s appeal. The matter was further adjourned on 3
June 2003. On 18 June 2003 the court dismissed the applicant’s appeal. It held
that the decision under appeal was not contrary to the law, namely § 62(2) of
the 1998 Ordinance, since the applicant had been charged with the commission of
a crime in an organised group. The court further found no special circumstances
militating against the imposition of the regime.
It transpires from the transcript of the hearing before the Regional Court that the applicant was handcuffed at the session of the Penitentiary Commission
on 12 March 2003.
On 9 June 2003 the applicant was transferred to
the Lublin Remand Centre. On 12 June 2003 the Penitentiary Commission of that
establishment prolonged the applicant’s status for a further three months. It found
that the applicant continued to present a threat to the security of the Remand
Centre and invoked the risk that he might abscond.
The applicant appealed. He submitted that when
issuing its decision the Penitentiary Commission of the Lublin Remand Centre
had not had at its disposal his personal file. On 15 July 2003 the Lublin Regional Court upheld the Commission’s decision as it fulfilled the conditions
specified in the 1998 Ordinance. It had regard to the charges against the
applicant (leading of an organised criminal group, threatening witness,
corrupting public officials) and the fact that the applicant had attempted to
communicate unlawfully with persons outside the prison.
On 29 January and again on 16 September 2003 the
applicant complained to the Lublin Regional Prosecutor’s Office about their
submissions of 11 December 2002 to the Penitentiary Commission. In particular,
he submitted that the allegations concerning his being prone to corrupting prison
or court officials had not been supported by any evidence and had served to put
pressure on the members of the Penitentiary Commission. In its reply of 31
October 2003, the Lublin Regional Prosecutor’s Office informed the applicant
that they had never made the alleged submissions in their communications with
the remand centre.
On 1 September 2003 amendments to the Code of
Execution of Criminal Sentences (“CECS”) regulating the status of remand
prisoners classified as “dangerous” came into effect (see paragraph 82 below in
Relevant domestic law).
On 11 September 2003 the Lublin Remand Centre’s
Penitentiary Commission prolonged the application of the “dangerous detainee”
regime for a further three months. The applicant appealed. On 21 October 2003
the Lublin Regional Court quashed the decision of 11 September 2003
on the ground that it had contained no reasons and remitted the case. It
appears that from 24 to 28 October 2003 the applicant was held in an ordinary
cell.
On 29 October 2003 the Lublin Remand Centre’s
Penitentiary Commission classified the applicant under Article 212a § 1 of the
CECS as “posing a serious danger to society or to the security of a remand
centre”. On the same day the applicant was readmitted to a cell for dangerous
detainees. The Commission found, without giving any specific reasons, that he
met the conditions stipulated in Article 212a § 3 of the CECS. In the opinion
of the Head of the Security of the Remand Centre of the same date, he advised
that the applicant should be preventively shackled (kajdany) when taken
out of his cell for a walk, bath, visits, court proceedings, etc. Further,
particular precautions should be taken when the applicant was taken to a health
establishment. In that case he was to be escorted by three armed prison guards
wearing bullet-proof vests. Those recommendations were endorsed by the
Penitentiary Commission.
The applicant appealed. He argued, inter alia,
that the acts imputed to him between May 1997 and the beginning of 1998, namely
acting in an organised criminal group, to which the provisions of the old
Criminal Code were applicable, could not be classified as such. Further, the
alleged risk that he might attempt to escape was entirely unsubstantiated.
On 4 December 2003 the applicant was transferred
back to Chełm Prison.
On 11 December 2003 the Lublin Regional Court
quashed the decision of 29 October 2003. It held as follows:
“The reasons given for the decision under appeal are limited to
quoting Article 212a § 1 of the Code of Execution of Criminal Sentences. Thus,
the decision indicates only its legal basis without providing simultaneously
any factual reasons. It may only be assumed that the factual basis for the
classification of Paweł Pawlak as “posing a serious danger to society or
to the security of a remand centre” was the fact that he had been charged with
leading a criminal group which dealt in obtaining goods by deception.
The appellant is right [when claiming] that the charges against
him formulated in the bill of indictment do not warrant classifying him as [a
detainee] posing a serious danger to society. They are mostly related to acts
stipulated in Article 286 § 1 of the Criminal Code, i.e. the ordinary offence
of fraud. He was also charged with the offence specified in Article 263 § 2 of
the CC; however this charge concerns the unlawful possession of a gas gun.
Paweł Pawlak’s detention on remand, and his consequent isolation
from society rendered void any danger posed by him. His detention on remand
started on 11.06.2011. Since that moment until the present he has been considered
a “dangerous” [detainee].
The examination of his personal file indicates that throughout
this period he benefited from many rewards stipulated in the prison rules,
mostly in the form of additional visits. He was disciplined only once with a warning
for loud banging on the door of his cell, which he justified by the defect of
the bell.
In those circumstances, it would be patently contradictory to Article
212a § 4(2) of the Code of Execution of Criminal Sentences to conclude that the
appellant posed a danger to the security of the Lublin Remand Centre.
The concerns, referred to in the letter of the Governor of the
Lublin Remand Centre of 7 December 2003, that Paweł Pawlak would corrupt
prison or administration of justice officers, were not supported by any
concrete facts. Accordingly, they are merely hypothetical, and the obligation
to place him in conditions ensuring increased protection (Article 212a § 3 of
the Code) renders potential attempts of P. Pawlak in this respect more than
limited.
For all those reasons the decision under appeal should be
quashed.”
On 24 December 2003 the Penitentiary Commission
of the Chełm Prison decided to lift the measure. It referred to the
grounds invoked in the Regional Court’s decision of 11 December 2003.
On 2 January 2004 the applicant submitted a
complaint to the Lublin Regional Inspection of Prison Services (Okręgowy
Inspektorat Służby Więziennej). He firstly complained that following
the Regional Court’s decision of 11 December 2003 quashing the decision on
prolongation of the regime he had been unlawfully held in a cell for dangerous
detainees. The court’s session took place at the Chełm Prison and the
representative of the prison administration was present at the session. In his view,
the court’s decision should have been enforced with immediate effect. Secondly,
the applicant complained that he had been held in a cell for dangerous
detainees between 3 and 12 December 2002 despite the Regional Court’s decision
of 3 December 2002 quashing the earlier decision on prolongation of the regime.
In his reply of 9 August 2004 the Lublin
Regional Inspector of Prison Services acknowledged the applicant’s complaint in
respect of the period following the court’s decision of 11 December 2003. He
noted that following that decision the applicant should have been instantly
transferred to an ordinary cell and that there was no need for the Penitentiary
Commission to decide on the matter. However, he considered unfounded the
applicant’s complaint in respect of the second period.
The applicant submitted a similar complaint to
the Lublin Regional Court - Penitentiary Division. In a reply of 5 October 2004
he was informed that following the court’s decision of 11 December 2003 the
administration of Chełm Prison had erroneously applied the provisions of
the CECS. As a result of that erroneous interpretation the Penitentiary
Commission had lifted the imposition of the dangerous detainee regime only on
24 December 2003.
The applicant lodged a complaint with the Lublin Regional Court - Penitentiary Division in respect of the execution of that
court’s decision of 3 December 2002 quashing the earlier decision on
prolongation of the imposition of the regime. On 31 January 2005 the applicant
was informed that following that decision he could no longer be considered a
dangerous detainee and should have been transferred to an ordinary cell.
2. Facts in dispute
The applicant claimed that during the whole
period of the application of the “dangerous detainee” regime he had been held
in a solitary cell.
The Government submitted that on the basis of available
documents it was impossible to establish whether during his detention in the
Radom Remand Centre the applicant was placed in a solitary cell or with other
inmates. However, it transpired from the letter of the Deputy Governor of the
Radom Remand Centre to the Radom Regional Court - Penitentiary Division of 25
February 2002 that in that establishment the applicant had been placed in a
solitary cell at the moment of sending out this letter. In respect of the
subsequent period the applicant was placed in a cell designated for two or
three inmates with the exception of the period from 24 to 28 October 2003
when he was placed in a cell designated for six prisoners. However, due to
the lapse of time there were no data available to establish whether the
applicant had shared those cells with other inmates.
The applicant submitted that his cells,
including sanitary facilities, had been constantly monitored via a CCTV system.
The Government challenged those assertions. They stated that
the cells in two of the establishments where the applicant had been held,
namely the Lublin Remand Centre and Chełm Prison, had not been equipped
with a CCTV system. Only in one establishment (the Radom Remand Centre) had such
a system been in place. However, the sanitary facilities had not been
monitored.
C. Restrictions
on the applicant’s contact with his family during the application of the
“dangerous detainee” regime
1. The applicant
The applicant submitted that his mother had been
refused permission to visit him between December 2002 and 1 September 2003 because
she was to testify as a witness at his trial. His mother had requested permission
for a visit every month.
He further submitted that he had only received
closed visits from his wife, his daughter and his mother.
2. The Government
On the basis of the applicant’s personal files the
Government submitted that over the period from 1 February 2002 to 24 December
2003 he had received numerous visits from his relatives.
The applicant received three visits from his
mother, R.P., on the following dates: 22 March and 28 December 2002 and 1
September 2003.
The applicant received one visit from Ms D.G. on
22 February 2002. According to the Government her family relationship with the
applicant was not specified.
He received five visits from his daughter, E.P.,
and his wife M.P. on the following dates: 19 October 2002, 22 February, 17
April, 30 June (on that date together with a certain D.J., a third party) and
29 September 2003.
On 20 October and 6 December 2003 the applicant
received two visits from his daughter and D.J.
All visits were conducted in a manner preventing
the applicant from having direct contact with a visitor. The duration of each
visit was 60 minutes with the exception of the visit of his mother on 1
September 2003, which lasted 90 minutes.
The Government further submitted that the
applicant had received further visits on 20 March, 11 May and 12 December 2002.
However, it was not possible to establish the identity of the visitors.
3. Material in the Court’s file
On 30 July 2003 the applicant complained to the
President of the Lublin District Court that he had been deprived of the
possibility to receive visits from his wife, his daughter and his mother. By a
letter dated 2 September 2003, the President of the Lublin District Court
informed the applicant that a temporary ban on visits had been justified by the
need to secure the proper conduct of the proceedings. She referred to the risk
of putting pressure via third parties on one of the co-accused, R.P.,
who had not yet finished giving evidence before the trial court. The judge rapporteur
was entitled to take such decision under Articles 207 and 217 § 2 of the CECS,
in particular having regard to the applicant’s aggressive behaviour towards
R.P. at the hearing held on 11 July 2003. On the same day the judge rapporteur refused
to grant the applicant’s wife permission to visit him having regard to the
above circumstances.
On 18 September 2003 the applicant complained
that he had been deprived of the possibility to receive visits from his mother.
By a letter dated 3 October 2003 the President of the Lublin District Court
informed the applicant that a refusal to grant him a visit from his mother had
been justified by the fact that she was to give evidence as a witness at the
trial and thus the need to ensure the proper conduct of the proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. “Dangerous detainee” regime
1. Situation until 1 September 2003
(a) General rules
At the material time the rules concerning the
“dangerous detainee” regime for remand prisoners were set out in subordinate
legislation, namely the Ordinance of the Minister of Justice of 12 August 1998
on the Rules on the Execution of Detention on Remand (“the 1998 Ordinance”). The
1998 Ordinance was repealed on 1 September 2003.
Paragraph 62(1) of the 1998 Ordinance lists categories of
remand prisoners who shall be classified as “dangerous remand prisoners”. Those
categories concern remand prisoners charged with the most serious crimes or
those who posed a danger to the security of a remand centre. They shall be
placed in a designated remand centre’s ward or in a cell in conditions ensuring
protection of society and the security of the remand centre if they pose a
serious danger to society or to the security of the remand centre on account of
their personal characteristics, behaviour or the degree of their demoralisation.
Paragraph 62(2) reads:
“A remand prisoner who is suspected of having committed an
offence in an organised group or organisation aimed at committing offences
shall be also placed in a designated ward or cell of a remand centre in
conditions ensuring protection of society and the security of the remand
centre, unless particular circumstances militate against such placement.”
A decision on the classification of a remand prisoner as
dangerous is taken by a Penitentiary Commission of the remand centre (paragraph
66). The Penitentiary Commission delivers its decision after hearing the
detainee concerned and in his presence (paragraph 67). The decision is
communicated to a penitentiary judge and the authority at whose disposal he
remains (paragraph 63). The Penitentiary Commission reviews its decision at
least every three months. The commission is set up by the governor of the
prison or the governor of the remand centre. It is composed of prison officers
and prison employees (Article 75 of the CECS). If the
commission’s decision on the classification of a prisoner or detainee is
contrary to the law, the relevant penitentiary court may quash or alter that
decision (Article 76). A detainee may appeal against the Penitentiary Commission’s
decision but solely on the ground of its non-conformity with the law
(Article 7).
(b) Functioning of the wards for dangerous detainees
Paragraph 64 of the 1998 Ordinance lays down
specific arrangements for detention of dangerous remand prisoners. It reads, in
so far as relevant, as follows:
“1. A dangerous remand prisoner shall be held in a ward or a
cell designated for such remand prisoners.
2. Cells and places designated for work, study, walks, visits,
religious services, religious meetings and religious classes, as well as
cultural and educational activities, physical exercise and sports for dangerous
remand prisoners shall be equipped with additional security systems. Cells
shall be controlled more often than those in which remand prisoners not
classified as dangerous are held.
3. A dangerous remand prisoner may
study, work, participate directly in religious services, religious meetings and
classes, and participate in cultural and educational activities, exercise and
do sports only in the ward in which he is held.
4. A dangerous remand prisoner may
not use his own clothes or footwear.
5. A dangerous remand prisoner’s movement
around a remand centre shall be under increased supervision and shall be
restricted to what is strictly necessary.
6. A dangerous remand prisoner shall
be subjected to a personal check (kontrola osobista) each time he leaves
and enters his cell.
7. A dangerous remand prisoner’s walk
shall take place in designated areas and under increased supervision.
...
9. Visits to a dangerous remand prisoner shall take place in
designated areas and under increased supervision. ...
10. A governor [of the remand centre] shall inform the
authority at whose disposal [a dangerous remand prisoner] remains of the
existence of a serious danger for a visitor and that it is necessary to grant a
visit permission in a manner making [his or her] contact with a remand prisoner
impossible.
...”
. At
the material time further rules were specified in the Ordinance of the Minister
of Justice of 17 May 2001 on means of protection and ensuring the security of
prisons and remand centres (Rozporządzenie Ministra
Sprawiedliwości z dnia 17 maja 2001 r. w sprawie sposobów ochrony, obrony
i zapewnienia bezpieczeństwa zakładów karnych i aresztów
śledczych; “the 2001 Ordinance”) which entered into force on 7 July
2001 and was repealed on 20 February 2004.
The “N” wards (from “niebezpieczny” - “dangerous”
in Polish) designed for dangerous detainees are closed units within prisons or
remand centres, shut off from other sections of the detention facility. They
are placed in a separate building or in a specific part of the prison building
fully isolated from other sections of the prison, usually through a special
entry or corridor. Regular daily routines (provision of meals, clothes, etc.)
are organised so as to reduce to a minimum any direct contact between the detainees
and the prison guards. Routine searches of cells are often carried out.
The detainees, whenever outside cells, even
within the “N” ward, wear shackles or are handcuffed at all times. They are
subjected to a personal check before leaving cells and on return. They are not
necessarily subjected to solitary confinement and may share the cell with an
inmate or inmates but, pursuant to paragraph 26 of the 2001 Ordinance, the
number of detainees in the cell is limited to three persons at any given time.
All furniture is permanently fixed to the floor. A prison cell for dangerous
detainees could be additionally equipped with video cameras and listening
devices.
According to paragraph 27(1) of the 2001 Ordinance, a dangerous
detainee can move within the detention facility only singly. In justified cases
such detainees may move in a group of up to three but under the increased
supervision of the prison guards. Paragraph 27(3) states that, outside the cell
and facilities designated for “N” detainees, an “N” inmate must be permanently
and directly supervised by at least 2 prison guards. This restriction can be
lifted only exceptionally and in justified cases.
The detainees have a daily, solitary walk in a specially
designated and segregated area and if they are allowed to spend some time in a
day room, they usually remain alone. Places designated for work, study, visits,
legal proceedings, religious services, as well as cultural, educational and
sports activities for dangerous remand prisoners are equipped with video
cameras (paragraph 25 of the 2001 Ordinance).
(c) Personal check
According to paragraph 64(6) of the 1998
Ordinance remand prisoners classified as “dangerous” are subjected to a
personal check every time they leave or enter their cell. Paragraph 10(2) of the
1998 Ordinance defines the “personal check” in the following way:
“A personal check means an inspection of the body and checking
of clothes, underwear and footwear as well as [other] objects in a [remand prisoner’s]
possession. The inspection of the body, checking of clothes, underwear and
footwear shall be carried out in a separate room, in the absence of
third parties and persons of the opposite sex.”
(d) Use of shackles
At the material time rules on the use of
measures of physical restraint in respect of persons deprived of their liberty
were laid down in the Law of 26 April 1996 on Prison Service (ustawa z 26
kwietnia 1996 r. o Służbie Więziennej). Section 19 of
the Law stipulated, in so far as relevant:
“1. Officers in service are entitled to apply with
regard to persons deprived of liberty the following measures of direct
restraint:
1) physical force,
...
4) shackles (kajdany) ...,
...
2. The measures of direct restraint enumerated in
paragraph 1 shall be used, if necessary, only in order to counteract: an
attempt against the life or health of [the detainee himself] or of a third
person, incitement to rebellion, flagrant disobedience, dangerous disturbance
of the peace and order, damaging of property, or the escape of a person
deprived of liberty.
(...)
5. In justified cases it is permitted to use, while
escorting a person deprived of liberty, shackles, a restraining belt or ..., in
order to prevent the person in question from escaping or behaving aggressively.
6. Measures of direct restraint shall not be used
for longer than is necessary.”
On 12 November 2003 the Ombudsman sent a letter to
the Director General of the Prison Service concerning the situation of
“dangerous detainees”. On the basis of information received during visits to a
number of the relevant establishments, the Ombudsman noted that there had been
cases of excessive harshness in the treatment of that category of detainee with
regard to the use of shackles (kajdany), restrictions on contacts with
the family and a poor offer of educational and cultural activities for the
“dangerous detainees”. Frequently, prison officers applied the same
restrictions to the whole category of prisoners classified as “dangerous
detainees” without making individual assessment of danger posed by specific prisoners.
He drew particular attention in his letter to the practice adopted by prison
officers of putting shackles on detainees classified as dangerous every time
they moved around their ward. The Ombudsman pointed out that such practice had
already been disapproved by the CPT in their report on the 2000 visit. Such
practices had been observed in the Radom and Poznań Detention Centres.
In his reply of 19 December 2003, the Director
General of the Prison Service informed the Ombudsman that most of the detainees
classified as dangerous could, at any time, manifest various forms of
aggressive behaviour. In order to prevent such behaviour in the form of attacks
on prison staff or other inmates, prison officers made use of measures
specified in section 19 § 5 of the Law on Prison Service. In addition, Articles
88 § 3 and 212a § 2 of the CECS referring to the “increased protection and
security” further justified the use of shackles in respect of many of those
detainees when moving them out of their cells, including at the ward for
dangerous detainees. He went on to state that “it may be then assumed that shackling
(zakładanie kajdan) is a justified practice with regard to
the majority of the [dangerous] detainees posing a serious danger to society or
to the security of a prison.”.
2. Situation as from 1 September 2003
On 1 September 2003 provisions concerning the “dangerous
detainee” regime for remand prisoners were added to the Code of Execution of
Criminal Sentences (“CECS”). New Articles 212a and 212b of the Code regulated
henceforth the main features of the status of such detainees. They are set out
in the Court’s judgments in the cases of Piechowicz v. Poland (no.
20071/07, §§ 105-106, 17 April 2012) and Horych
v. Poland (no. 13621/08, §§ 44-45, 17 April 2012).
B. Right to visits in detention
The relevant domestic law and practice regarding
the right to visits in detention are set out in the Court’s judgments in the
cases of Piechowicz v. Poland (no. 20071/07, §§ 118-122, 17 April 2012) and Horych v. Poland (no.
13621/08, §§ 57-62, 17 April
2012).
III. COUNCIL OF EUROPE DOCUMENTS
A. The Report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment on the
2000 visit
From 8 to 19 May 2000 the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(“the CPT”) carried out a periodic visit to selected detention establishments
in Poland.
The CPT visited wards designated for dangerous detainees in
Warszawa-Białołęka Remand Centre, the Przemyśl Prison and
the Rzeszów Prison. The CPT report contains a general description of the “N” regime
and a number of specific recommendations aimed at ameliorating the conditions
of detention of inmates belonging to that category in the establishments
visited. It also lists recommendations aimed at removing perceived shortcomings
in the “dangerous detainee” regime in general.
The following observations were made in
paragraph 71 of the report in respect of the application of the regime:
“However, the CPT has serious misgivings about the regime being
applied to "dangerous" prisoners, which was characterised by a total
absence of organised activities and a paucity of human contact. Pursuant to the
relevant regulations, such prisoners were offered one hour of outdoor exercise
a day, which they took either alone or with their cellmates. Apart from that,
they spent their time confined to their cells, watching TV and reading books
being their only forms of distraction. Some "dangerous" prisoners in
the Przemyśl and Rzeszów prisons were occasionally allowed to go to a
common room.
Contacts between prisoners and prison officers were very
restricted, due to the severe security requirements imposed by the regulations.
As regards contact with other staff members, it consisted of periodic visits by
educators and, upon request, visits by psychologists. The rules applicable to
family visits were analogous to those for remand and sentenced prisoners,
except that “dangerous” prisoners were not allowed physical contact with their
visitors. However, some “dangerous” prisoners on remand met by the delegation
had been denied visits for up to two months.
Any regime which denies appropriate mental and physical
stimulation to prisoners is likely to have a detrimental effect on the health
of the person concerned and, in particular, can lead to a gradual deterioration
of mental faculties and social abilities. Consequently, regardless of the
gravity of the offences of which prisoners are accused or have been convicted
and/or their presumed dangerousness, efforts must be made to provide them with
appropriate stimulation and, in particular, with adequate human contact.
The CPT recommends that the Polish authorities review the
regime applied to prisoners classified as “dangerous” in the light of the above
remarks.”
In paragraph 72 of the report the CPT expressed
the following opinion regarding the practice of routinely handcuffing
“dangerous detainees”:
“Another characteristic of the regime applied to “dangerous”
prisoners is of concern to the CPT. Such prisoners were routinely handcuffed
when taken out of their cell as well as whenever a staff member entered the
cell. This measure was also applied during visits as well as when the prisoners
concerned used the telephone.
The practice of routinely handcuffing prisoners is highly
questionable, all the more so when it is applied over a prolonged period of
time in a secure environment. Other means can and should be found to counter
any security risks. Further, to be handcuffed when receiving a visit could
certainly be considered as degrading for both the prisoner concerned and his
visitor. The CPT considers that the current practice of routinely handcuffing
“dangerous” prisoners is disproportionate and punitive; it recommends that the
Polish authorities take immediate steps to review that practice.”
The CPT made the following general
recommendations to the Polish Government in respect of prisoners classified as
“dangerous”:
“ - the Polish authorities to review the regime applied to
prisoners classified as “dangerous” in the light of the remarks made in
paragraph 71 (paragraph 71) [total absence of organised activities and a
paucity of human contact];
- the Polish authorities to take immediate steps to review the
practice of routinely handcuffing “dangerous” prisoners (paragraph 72).”
B. The Polish Government’s response to the CPT’s
report on the 2000 visit
The Polish Government’s response to the CPT
report was published on 23 May 2002.
In respect of the recommendation that the regime
applied to prisoners classified as “dangerous” was characterised by a total
absence of organised activities and lack of human contact, the Government
stated:
“In recent years the number of especially demoralised prisoners
has been increasing. They impede seriously the Prison Service officials and
other inmates. On the grounds of the criminal executive provisions being in
force since September 1998, a part of these prisoners have been classified as
“dangerous”. Their number has been increasing and now there are 335 of them.
...
Restraints applied to the “dangerous” group of prisoners
results of the Article 88, paragraph 3 of the Code for Execution of Sentences
and executive provisions to this Code, they provide that:
- they are placed in the unit or cells for this group of
prisoners,
- accommodation cells and places for work, education,
exercises, visits, religious services, and different activities are equipped
with additional technical and security measures,
- accommodation cells are closed for the whole day and are
under strict control,
- they can move around the establishment under reinforced
surveillance and only in case of necessity,
- every time they are leaving and coming back to a cell, they
are searched, they can go outdoor only in indicated places and under reinforced
surveillance,
- they are not allowed to use their own clothes.
Furthermore, according to the paragraph 96(4) of the Ordinance
of the Minister of Justice of 12 August 1998 on rules of execution of
imprisonment sentence (...) and the paragraph 64(3) of the Ordinance of the
Minister of Justice of 12 August 1998 on rules of execution of temporary arrest
(...), “a dangerous” prisoner can study, work, attend religious service, take
part in sport activities only in the unit he is placed at. Activities are
organised and give a possibility to watch films in common rooms, to have access
to newspapers and books, to take part in physical recreation (table tennis,
body building), to attend religious service and to attend religion classes,
etc.
As regard the problem of a paucity of human contact, it should
be noted that “dangerous” prisoners can contact with other people within limits
provided by the Code for Execution of Sentences and pursuant to legal
provisions issued of the basis of the Code.
Procedures stipulated in the Ordinance of the Minister of
Justice of 12 August 1998 on rules of executing the temporary arrest and in the
Ordinance of the Minister of Justice of 12 August 1998 on rules of executing
imprisonment sentence provide that:
- in every case, the way of contact of a “dangerous” prisoner
with the organisations defined in the Article 38, paragraph 1 of the CES, i.e.
societies, foundations, organisations that realise purposes stipulated in the
Chapter 7 of the Code for Execution of Sentences, as well as with churches and
other religious organisation, is defined by a director of an establishment,
- visits to a “dangerous” prisoner have place in an indicated
room under a reinforced surveillance. At the time of a visit, a dangerous
prisoner cannot have a direct contact with a visitor, cannot eat food or drink
beverages bought by a visitor. A dangerous prisoner cannot receive visits in
presence of other prisoners who are not classified as dangerous,
- according to the paragraph 96(10) of the Rules and regulation
of executing imprisonment penalty, if a visitor could be in a serious danger,
visits can be received in a way excluding a direct contact with a visitor. This
decision is made by a director. This situation does not refer to persons
mentioned in the Article 8, paragraph 3 of the Code, i.e. a defender or a
lawyer. On demand of these persons, during a visit they need not have a direct
contact with a dangerous prisoner,
- according to the paragraph 64(11) of Rules and regulations of
executing a temporary arrest, on demand of a visitor, the way of a visit with a
temporary arrested dangerous prisoner should prevent a direct contact,
- according to the paragraph 64(10) of the Rules and
regulations of executing a temporary arrest, a director of an establishment
informs an appropriate body that a visitor could be in a serious danger and
that it is necessary to allow visits exclusively in a way preventing a direct
contact.
“Dangerous” prisoners have the rights as all sentenced persons:
- in an establishment of a closed regime, a sentenced person
can have two visits per month, with the agreement of the director accumulated
at the same time (i.e. once a month),
- according to the paragraph 42(3) of the Rules and regulation
of executing a temporary arrest, in justified cases, a director can allow for a
longer time of a visit,
- according to the paragraph 33(4) of the Rules and regulations
of executing imprisonment penalty, in justified cases, a director can allow for
a longer time of a visit, increase the number of visits per day or allow for a
visit of a more than one visitor at a time,
- according to the paragraph 35(1) of the Rules and regulations
of executing imprisonment penalty, a sentenced person has the right to a
telephone call on his own expense,
- according to the Article 105 of the Code for Execution of
Sentences, a sentenced person has the right to correspondence,
- prisoners can be awarded by increasing a number of visits and
their length.
To sum up, it should be noted that the Code and the rules and
regulations provide many possibilities for a sentenced person to contact with
the outside world, it refers also to prisoners classified as “dangerous”.
Restrictions imposed on them are aimed only at ensuring safety to other
prisoners, prison staff members and other persons.
Activities for “dangerous” prisoners include evaluation and
verification of their needs, in particular with regard to education,
employment, psychocreation, detoxication and preparing for social
reintegration.
The Central Board of Prison Service supervises the way of
execution of imprisonment penalty and temporary arrest, as well as observing
the rights of sentenced persons classified as “dangerous”.”
C. The Report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment on the
2004 visit
From 4 to 15 October 2004 the CPT carried out a
periodic visit to selected detention establishments in Poland. The CPT visited wards or cells designated for dangerous detainees in the Warsaw-Mokotów
Remand Centre, the Wołów Prison and the Cracow Remand Centre.
The CPT made the following observations in
paragraphs 77-78 of its report in respect of the application of the regime:
“The CPT retains serious misgivings about the regime applied to
“N” category prisoners, which was very restrictive.
Out-of-cell time was limited to one hour of outdoor exercise
per day (taken either alone or in the company of a cellmate, if any) and a
weekly visit of one to two hours to the recreation room (no access to a
recreation room was available to “N” status prisoners at Cracow Prison). A
weekly shower, two visits and two telephone calls of 10 minutes per month for
sentenced prisoners (at the discretion of the prosecutor in the case of remand
prisoners) were the only other activities. Contact with staff consisted of
periodic interviews with an educator and a psychologist and occasional visits by
a chaplain.
Prisoners may be subject to the above-mentioned regime for many
years (up to 5 years in the case of several prisoners at Wołów
Prison). As stressed in the report on the visit in 2000, any regime which
denies appropriate mental and physical stimulation to prisoners is likely to
have a detrimental effect on the health of the person concerned and, in
particular, can lead to a gradual deterioration of mental faculties and social
abilities. Consequently, regardless of the gravity of the offences of which
prisoners are accused or have been convicted and/or their presumed
dangerousness, efforts must be made to provide them with appropriate
stimulation and, in particular, with adequate human contact.
The CPT calls upon the Polish authorities to review the regime
applied to “N” status prisoners, in the light of the above remarks.
78. The delegation observed
that the quarterly reviews of prisoners’ “N” status were fully
documented, and psychological and psychiatric reports were obtained at regular
intervals. However, these reports generally related to the prisoner’s fitness
for continued confinement under “N” status rather than any assessment of his
dangerousness or propensity to act again in an unacceptable way. It appeared
that the dominant factors leading to retention of the “N” status were
historical ones, like the violent nature of the crime committed (often many
years before). Many prisoners interviewed by the delegation considered the
periodic review of their status a pure formality and thought that they did not
have a realistic chance of moving from the “N” status to another regime.
In the CPT’s opinion, the placement of prisoners in an “N” unit
for lengthy periods of time is highly dubious. The Committee recommends that
the Polish authorities review current practice with a view to ensuring that “N”
status is only applied and maintained in relation to prisoners who genuinely
require to be placed in such a category.”
In respect of the issue of routine handcuffing,
the CPT observed in paragraph 79 of its report:
“In the report on the 2000 visit, the CPT had strongly
criticised the routine handcuffing of prisoners classified as “dangerous” (cf.
paragraph 72 of CPT/Inf (2002) 9). The observations made during the 2004 visits
suggest that the approach concerning handcuffing had been reviewed in the right
direction. When moving within their unit, “N” status prisoners could be
handcuffed at the discretion of a senior officer. All “N” status prisoners were
handcuffed when they moved outside the unit for any purpose; however, the hand
cuffs were removed in the exercise yards and during visits.”
The CPT made the following general
recommendations to the Polish Government in respect of prisoners classified as “dangerous”:
“- the Polish authorities to review the regime applied to “N”
status prisoners, in the light of the remarks made in paragraph 77 (paragraph
77);
- the Polish authorities
to review current practice with a view to ensuring that “N” status is only
applied and maintained in relation to prisoners who genuinely require to be
placed in such a category (paragraph 78).”
D. The Polish Government’s response to the CPT’s
report on the 2004 visit
The Government’s response to the CPT report on
the 2004 visit was published on 2 March 2006.
In respect of the recommendation concerning the
restrictive nature of the regime applied to “N” status prisoners, the
Government stated:
“In the light of the Polish penitentiary law there are no
significant differences in rights of “N” status prisoners and other prisoners.
For example the period of time spent outside, times of taking shower, visits
with relatives, telephone contacts, shopping, access to health-care. For the
safety sake, certain forms of activity of “N” status prisoners are different.
The legal provisions state that they can study, work, go to a mess, take part
in religious meetings or cultural, educational meetings, sport activities only
in the ward were they stay. They move around the unit only if it is necessary.
The legal regulations concerning “N” status prisoners do not raise
special doubts, however, the efforts must be made to influence this category of
people. In 2004, having in mind this problem the Central Management of Prison
Service worked out recommendations how treat “N” status prisoners. The
many-sided stimulation of these persons prevents degradation of their
personality and at the same time keeps the proper social relations.
Wołów Prison introduced the comprehensive programme of
penitentiary-educational stimulations, including culture and sport. “N” status
prisoners take part in cultural activities or sport meetings. The social room
of the ward was adapted to recreation exercises.
Considering the remarks of the Committee, Cracow Remand Prison
also introduced programme for “N” status prisoners. The crucial point of the
programme is to transmit to “N” prisoners information about culture, science
and religion.”
Referring to the recommendation that the
authorities should verify their current practice in order to ensure that the
“N” status is accorded appropriately and maintained only in respect of prisoners
who genuinely require to be so classified, the Government responded:
“In 2004 in Polish prisons were held on average 409 “N” status
prisoners. In 2005, until the end of May, the average number was 348 persons.
Last year 170 prisoners were given “N” status, for 244 persons the “N” status
was withdrawn. In 2005 until May, 74 prisoners were given “N” status, in 84
cases the “N” status was withdrawn. Since December 2003 the number of “N”
status prisoners has decreased, although the qualification rule is unchanged.
In practice we observe how qualification changes, and also the significant
fluctuation in this group.
It cannot be sure that for a certain group the “N” status will
be kept for a prolonged time. This situation does not concern most part of
cases. Thus it can be said that the “N” status was used to certain prisoners in
an adequate way for a period of time necessary to provide safety in the
penitentiary unit.
The important element whether “N” qualification is legitimate
or well-founded is to bring the decision of the prison establishment to the Penitentiary Court. The Court has the power to annul the groundless decision. Such situations
are rare.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant complained in substance that his
pre-trial detention had been excessively long. This complaint falls to be
examined under Article 5 § 3 of the Convention which, in so far as relevant,
provides:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled
to trial within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
By letter dated 15 September 2009 the Government
informed the Court that they proposed to make a unilateral declaration with a
view to resolving the issue raised by this part of the application. They
further requested the Court to strike out
the application in accordance with Article 37 of the Convention.
The declaration
provided as follows:
“The Government hereby wish to
express - by way of the unilateral declaration - its acknowledgement of the
violation of reasonableness of the length of the applicant’s pre-trial
detention within the meaning of Article 5 § 3 of the Convention.
Consequently, the Government are prepared to pay to the
applicant the sum of PLN 7,000 (seven thousand) which they consider to be
reasonable in the light of the Court’s case-law. The sum referred to above,
which is to cover any pecuniary and non-pecuniary damage as well as costs and
expenses, will be free of any taxes that may be applicable. It will be payable
within three months from the date of notification of the decision taken by the
Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In
the event of failure to pay this sum within the said three-month period, the
Government undertake to pay simple interest on it, from 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.
The Government would respectfully
suggest that the above declaration might be accepted by the Court as ‘any
other reason’ justifying the striking out of
the case of the Court’s list of cases, as referred to in Article 37 § 1 (c)
of the Convention. ...
The Government’s unilateral declaration contains an
unconditional acknowledgment that the applicant’s pre-trial detention exceeded
a “reasonable time” requirement within the meaning of Article 5 § 3 of the
Convention. ...
As transpires from the Government’s unilateral declaration the
Government accepted paying to the applicant the sum of PLN 7,000 in the event
of the Court’s striking the case out of its list.”
In a letter of 15 October 2009 the applicant objected
to the striking out of this part of the application.
The Court recalls that Article 37 of the
Convention provides that it may at any stage of the proceedings decide to
strike an application or part of an application out of its list of cases where
the circumstances lead to one of the conclusions specified, under (a), (b) or
(c) of paragraph 1 of that Article. Article 37 § 1 (c) enables
the Court in particular to strike a case or part thereof 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”.
It also recalls that in certain circumstances, 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.
To this end, the Court will examine carefully
the declaration in the light of the
principles emerging from its case-law, in particular the Tahsin Acar
judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77,
ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no.
11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those
brought against Poland, its practice concerning complaints of a violation of
Article 5 § 3 of the Convention as regards the unreasonable length of
pre-trial detention (see Kauczor v. Poland, no. 45219/06, 3 February 2009
with further references).
Having regard to the nature of the admissions
contained in the Government’s declaration, as well as the amount of
compensation proposed - which is consistent with the amounts awarded in similar
cases at the time of the filing of the unilateral declaration - the Court
considers that it is no longer justified to continue the examination of this
part of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in
particular given the clear and extensive case-law on the topic, the Court is
satisfied that respect for human rights as defined in the Convention and the
Protocols thereto does not require it to continue the examination of this part
of the application (Article 37 § 1 in fine).
Accordingly, the part of the application
concerning the complaint under Article 5 § 3 of the Convention should be struck
out of the list.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION ON ACCOUNT OF THE IMPOSITION OF THE “DANGEROUS DETAINEE” REGIME
The applicant complained under Article 3 of the
Convention that he had been unlawfully classified as a “dangerous detainee” and
that he had been treated in an inhuman and degrading manner for a period of 692
days. He referred, in particular, to routine humiliating strip-searches to
which he was subjected three times a day and such restrictions as wearing
shackles on his hands and feet at all times whenever he was outside his cell, frequent
searches of his cell, excessive isolation from his family and the constant
monitoring of his cell, including sanitary facilities, via CCTV cameras.
He also submitted that the authorities attempted to isolate him to the maximum
and that during the application of the regime he was constantly held in a
solitary cell.
The applicant further complained under Article 5 § 1(c) of the
Convention that there was no reasonable suspicion of his having committed an offence
(leading an organised criminal group) which could have justified the imposition
of the special regime on him. Invoking Article 5 § 5 and Articles 2 and 3 of
Protocol No. 7 to the Convention, he alleged that he could not seek
compensation on account of his wrongful classification as a “dangerous
detainee”.
The Court notes that the applicant’s grievances concern
essentially the restrictions related to the imposition of the “dangerous
detainee” regime and considers that they should be examined under Article 3 of
the Convention. This provision reads:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
The Government firstly argued that the applicant
had not made use of the remedies of a compensatory nature governed by Articles
23 and 24 of the Civil Code with respect to his placement in a cell for
“dangerous detainees” between 11 and 24 December 2003. Under those provisions
of the Civil Code persons deprived of their liberty whose personal rights were
infringed as a result of inappropriate conditions of imprisonment could bring a
civil action for compensation. The applicant received the official acknowledgment
that following the court’s decision of 11 December 2003 he should have been immediately
transferred to a standard cell. It could be assumed that in the event of his filing
a claim with a civil court the applicant’s position would be relatively strong.
Therefore, the Government were of the view that the applicant should have
exhausted the above domestic remedy.
In support of their argument, the Government
referred to the Supreme Court’s judgment of 28 February 2007 which acknowledged
for the first time that a detainee could, under Article 24, read in conjunction
with Article 448 of the Civil Code, lodge a civil claim against the State Treasury
and seek compensation for infringement of his personal rights, in particular,
the right to dignity and private space (intymność), on account
of overcrowding and inadequate living and sanitary conditions in a detention
establishment. It further held that the burden of proof that conditions in a
detention establishment complied with the required standards and that there was
no infringement of personal rights lay with the defendant prison authority. Furthermore,
they cited a number of cases decided by the domestic courts in 2005-2008 in
which detainees were successful in seeking compensation for infringement of
their personal rights.
Secondly, the Government argued that the
applicant could have lodged a constitutional complaint, seeking to establish the
incompatibility of Articles 212(a) §§ 1-3, 212(b) with the Constitution.
The applicant averred that he had complied with
Article 35 § 1 of the Convention.
In respect of the imposition of the “dangerous
detainee” regime the Court notes that the applicant made use of the ordinary
remedies available to him, namely he appealed against each and every decision
of the Penitentiary Commission imposing or extending the application of the
regime to a court and by doing so he complied with the obligation to exhaust
domestic remedies. By having
used that remedy the applicant challenged the lawfulness of the imposition of
the regime on him and could have obtained adequate redress (quashing of the
decision) had the court decided that the imposition of the regime was contrary
to the law. In so far as the Government may be
understood as arguing that, in addition, the applicant should have brought a
civil action under Article 24 read in conjunction with Article 448 of the Civil
Code, the Court considers that he was not required to do so in order to fulfil
his obligation under Article 35 § 1 of the Convention. The use of the civil remedy invoked by the
Government would not have had any practical effect on the applicant’s situation
as long as he continued to be classified as a “dangerous
detainee”.
The Government further argued that the
applicant should have pursued a civil claim for infringement of his personal
rights in respect of his placement in a cell for “dangerous detainees” between
11 and 24 December 2003. However, the Court notes that they relied on the
Supreme Court’s judgment of 28 February 2007 in which it was established
that a detainee’s personal rights could be infringed on account of overcrowding
and inadequate living and sanitary conditions in a detention establishment.
Further cases cited by the Government concerned the alleged infringement of
detainees’ personal rights which derived from various situations, such as overcrowding
in prison, detention with inmates who smoked, risk of HIV infection, food
poisoning and bodily injury caused by an inmate. The Court observes that none
of the examples quoted by the Government is directly relevant to the applicant’s
situation, namely the fact that he continued to be unlawfully held in a special
cell for dangerous detainees. Furthermore, the judgments referred to were
delivered in the period subsequent to the applicant’s placement. In any event, in
cases concerning prison overcrowding the Court has established that civil-law
remedies could be considered effective only as from 17 March 2010 (see Łatak
v. Poland (dec.), § 80, no. 52070/08, 12 October 2010). For those reasons,
the Court finds that the remedy invoked by the Government cannot be considered
effective in the circumstances of the case.
In so far as the Government relied on the
possibility of lodging a constitutional complaint, the Court notes that the
imposition of the regime on the applicant up until 31 August 2003 was regulated
by the 1998 Ordinance of the Minister of Justice and not by the provisions of
the CECS which entered into force on 1 September 2003. In any event, the Court
recalls that it has already considered two important limitations of the Polish
model of constitutional complaint, namely its scope and the form of redress it
provides and held that the constitutional complaint could be recognised as an
effective remedy only where: 1) the individual decision, which allegedly
violated the Convention, had been adopted in direct application of an
unconstitutional provision of national legislation; and 2) procedural
regulations applicable to the revision of such type of individual decisions
provided for the reopening of the case or the quashing of the final decision in
consequence of the judgment of the Constitutional Court in which
unconstitutionality had been found. Consequently, the Court found that the
exhaustion of the procedure of the constitutional complaint should be required
under Article 35 § 1 of the Convention in situations in which both
above-mentioned requirements had been met (see Szott - Medyńska
v. Poland (dec.), no. 47414/99, 9 October 2003, and Łaszkiewicz
v. Poland, no. 28481/03, § 68, 15 January 2008). Even assuming that the
applicant was successful before the Constitutional Court and obtained a
judgment declaring the provisions regulating the imposition of the “dangerous
detainee” regime unconstitutional, the Government did not provide any
information about the possibility of having decisions imposing such regime
subsequently revisited. In other words, the Court considers that the Government
did not prove that by lodging a constitutional complaint the applicant would have
been able to secure adequate redress in respect of his individual situation. For
the above reasons, the Court considers that a constitutional complaint cannot
be regarded as an effective remedy in the present case.
Accordingly, the Court holds that the applicant
should not in addition have sought to pursue the other remedies relied on by
the respondent Government. It follows that the Government’s preliminary
objection must be dismissed.
Consequently, the Court notes that this
complaint is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The applicant’s submissions
The applicant maintained that he had been
classified as a “dangerous detainee” unlawfully and without any reasonable
justification and pointed in this respect to a number of judgments acquitting him
of the charges laid against him. The regime had been imposed on him in an
arbitrary manner on account of the gravity of the charges, in particular the
charge of leading an organised criminal group in respect of which the
proceedings had been discontinued and the charge of corrupting a police officer
in respect of which he had been acquitted. The treatment to which he had been
exposed under the special regime should be considered inhuman and degrading and
it had amounted to a gross violation of Article 3 of the Convention.
One of the consequences of the application of
the “dangerous detainee” regime had been the serious restrictions on contacts
with his family. The applicant underlined that finally the Lublin Regional
Court in its decision of 11 December 2003 had found that the charges laid
against him had not justified classifying him as a dangerous detainee.
2. The Government’s submissions
The Government, citing a number of the Court’s
judgments, argued that the applicant had been detained in conditions which had
been compatible with respect for his human dignity and that the manner and
method of the execution of the penalty had not subjected him to distress or
hardship of an intensity exceeding the unavoidable level of suffering inherent
in detention. In their opinion, the applicant had exaggerated the harshness of
the conditions in which he had been detained.
The Government maintained that the applicant’s
confinement in a solitary cell designated for a dangerous detainee could not be
considered solitary confinement, the latter being a form of punishment in which
a prisoner was denied contact with any other person. Despite his classification
as a dangerous detainee, the applicant could receive visits from his relatives.
In addition, he was granted rewards for good behaviour in the form of
additional visits. He had contact with prison officers, including prison wardens
and could send and receive correspondence. He was also seen by a psychologist
who did not find any indication against his confinement in a solitary cell. Therefore,
they maintained that the applicant’s conditions of detention were similar to
those of Ramirez Sanchez (see Ramirez Sanchez v. France [GC], no.
59450/00, §§ 129-130, ECHR 2006-IX). The applicant received visits, was
not placed exclusively in a one-person cell and could participate in the life
of the detention facility. He could not be considered to have been in complete
sensory or social isolation. In addition, he - unlike Ramirez Sanchez - was
later declassified as a “dangerous detainee” and moved to an ordinary prison
wing. In any case, having regard to the existence of a structural problem of overcrowding
in detention facilities at the material time, the Government submitted that the
applicant’s possibility to use the cell exclusively for himself should be seen
as an advantage in comparison with an average detainee.
As regards visits from family members and other
persons, the Government maintained that in the relevant period the applicant
had received frequent visits. In the Government’s view, the applicant’s
allegations as regards the number and nature of visits had been exaggerated. The
manner of conducting visits was regulated in Article 217 § 2 of the CECS. This
provision specified that visits were conducted in a manner excluding the
possibility of any direct contact. A detainee was separated from his visitor by
a Perspex partition and communicated through an internal phone. The application
of the general rule to the applicant could not be regarded as degrading or
inhuman.
With regard to the issue of “personal checks”,
the Government stated that Article 212(b) of the CECS which provided that a
“dangerous detainee” was to be subjected to such a check every time he left and
entered his cell, entered into force on 1 September 2003. Accordingly, the
applicant was subjected to the application of that measure only from 1
September to 24 October 2003 and from 29 October to 24 December 2003. At the
time of the applicant’s classification as a “dangerous detainee” that issue was
regulated by the 1998 Ordinance of the Minister of Justice. According to the
Government, § 10 of that Ordinance provided that a detainee could be subjected
to a personal check where this was justified by order and security
considerations. The check comprised an inspection of the body, clothes and
shoes and was carried out with due respect for the dignity of the detainee. It
took place in a separate room in the absence of third parties and persons of
the opposite sex.
The Government admitted that the applicant had been subjected
to “personal checks” on leaving and returning to his cell. In addition, the
cells in which he was held had been subjected to everyday searches. Those
measures were regarded as necessary in order to ensure safety in the detention
facilities. They were standard measures with regard to “dangerous detainees”
and they could not be considered as degrading or inhuman.
The Government challenged the applicant’s
submissions that his cells, including sanitary facilities, had been constantly
monitored via CCTV. Only one of the detention establishments (the Radom
Remand Centre) was equipped with a CCTV system. However, the manner of its use
was in line with the need to respect the applicant’s privacy since the sanitary
facilities were not monitored.
The Government further contested the applicant’s
allegations that he had to wear the so-called “joined shackles” (handcuffs and
fetters joined together with chains) whenever he had been taken outside his
cell, including appearances at court hearings and medical visits. They
submitted that under section 19 § 5 of the Prison Service Act of 26 April 1996
prison officers could use shackles (kajdany), restraining belts or
joined shackles (prowadnice) in order to prevent a detainee from escaping
or being aggressive. At the same time, the Government admitted that in
accordance with the above provisions and the internal rules whenever outside
his cell (for convoy, walk, visit, court hearing, bath or medical appointment)
the applicant had had to wear special shackles (kajdany). “Joined
shackles” had not been used.
In conclusion, the Government averred that even
the combined effect of the measures applied to the applicant had been compatible
with the requirements of Article 3 of the Convention.
3. The Court’s assessment
The relevant general principles deriving from
its case-law were recently summarised in the Court’s judgments in the cases of Piechowicz
v. Poland (no. 20071/07, §§
158-165, 17 April 2012) and Horych v. Poland (no. 13621/08, §§ 85-92, 17 April 2012).
(a) Findings of fact
The Court notes that the respondent Government
and the applicant differed in their accounts of certain aspects of the
applicant’s detention in the three relevant detention establishments, in
particular with regard to the length of the applicant’s placement in a solitary
cell, the use of shackles and the monitoring of his cell via CCTV.
With regard to the first element, the Court
notes that the applicant consistently claimed that he had been detained in a
solitary cell throughout the entire period in which he had been classified as a
“dangerous detainee”. It observes that the evidence before it clearly indicates
that the applicant was held in a solitary cell during his detention in the
Radom Remand Centre between 1 February and 16 October 2002 (see paragraph 35 above).
As regards the subsequent periods of his detention in Chełm Prison and the
Lublin Remand Centre, the Government submitted that the applicant was held in
cells designated for two or three dangerous detainees respectively. However, in
their submission, due to the lapse of time it was impossible to obtain complete
data concerning the applicant’s detention and to establish whether he had
shared those cells with other dangerous inmates. The Court is not persuaded by
the Government’s explanation, taking into account that the applicant was
detained under the special regime in respect of which the authorities’ duty to
keep detailed records would appear particularly stringent and that they should normally
be able to provide relevant prison records in order to prove their assertion. In
these circumstances, the Court gives credence to the applicant’s submission
that he was detained in a solitary cell throughout the entire relevant period.
As regards the use of shackles, the Government disputed
the applicant’s allegation that he had had to wear the so-called “joined
shackles” (handcuffs and fetters joined together with chains) whenever he had
been taken outside his cell, including appearances at court hearings and
medical visits. They nonetheless admitted that in accordance with section
19 § 5 of the Prison Act the applicant had had to wear shackles (kajdany)
whenever he was taken out of his cell (see paragraph 122 above). The Court
notes that the decision of the Penitentiary Commission of 1 February 2002
expressly authorised the wearing of shackles on the applicant’s hands and feet
whenever he was escorted outside the remand centre. As that decision
contradicts, at least partly, the Government’s assertion, the Court is of the
view that the applicant’s claim regarding the constant use of chains on his
hands and feet whenever he was outside his cell is credible. In any event, in
the light of the available material, such as the exchange between the Ombudsman
and the Director General of the Prison Service and the relevant report of the
CPT (see paragraphs 80-81 above) there could be no doubt that at the material
time there existed a practice of shackling or handcuffing dangerous detainees
whenever they were taken out of their cells.
Thirdly, the parties disagreed on the issue of the
monitoring of the applicant’s cell. The applicant claimed that his cells,
including sanitary facilities, had been constantly monitored via a CCTV
system. The Government admitted that cells in the Radom Remand Centre had been
monitored by CCTV cameras, but the sanitary facilities were excluded from their
reach. However, the two other establishments (Chełm Prison and Lublin
Remand Centre) were not equipped with a CCTV system so there was no possibility
of monitoring the applicant there. The Court finds that it is not required to
determine this factual dispute since this would not in any event alter the
Court’s assessment of the applicant’s situation.
(b) Merits of the complaint
The Court notes that there is no dispute over
the fact that from 1 February 2002 to 24 December 2003, with the
exception of the short period between 24 and 28 October 2003, that is to say
for one year, ten months and seventeen days, the applicant, a remand prisoner,
was continually classified as a so-called “dangerous detainee” and, in
consequence, subjected to high-security measures and various restrictions,
pursuant to the relevant provisions of the 1998 Ordinance and the 2001
Ordinance (see paragraphs 27-59 and 73-78 above). As from 1 September 2003 the
special regime for remand prisoners was primarily governed by Articles 212a and
212b of the CECS (see paragraph 82 above).
The measures applied in the applicant’s case
comprised confinement at a special high-security prison ward in a solitary cell,
increased supervision of his movement within and outside the remand centre,
which meant that at all times he had to be escorted by at least two prison
guards and to wear shackles. The measures involved his segregation from the
prison community and limitations on contact with his family together with special arrangements for family
visits. Also, every time he left or entered his cell he was subjected to a
routine “personal check” - a strip-search, including a thorough
inspection of his body and clothes and requiring him to strip naked and make
deep knee bends in order to enable an examination of his anus (see paragraph 32
above). During his placement in the Radom Remand Centre (from 1 February to 16
October 2002) his cell, excluding sanitary facilities, was constantly monitored
via CCTV.
The parties disagreed, however, on whether the
adverse consequences of the imposition of the above measures on the applicant
had been so serious as to attain the minimum level of severity required by
Article 3 of the Convention.
The Court notes that the applicant firmly
maintained that his classification as a “dangerous detainee” was unlawful and
arbitrary. In this respect he claimed that the charge of leading an organised
criminal group against him had been entirely
unsubstantiated; yet, it served as a justification to classify him as a
“dangerous detainee” for a considerable length of time.
Indeed, pursuant to paragraph 62(2) of the 1998 Ordinance if a
remand prisoner is suspected of an organised-crime offence, the authorities
have to apply the regime and, consequently, all the security measures
enumerated in paragraph 64 of that Ordinance, unless particular circumstances
militate against this (see paragraph 73 above). A similar formulation was later
adopted in Articles 212a and 212b of the CECS which were applied to the
applicant as from 1 September 2003. The legal formulation of the rule and
exception to it could generally result in an over-inclusive regime as already
indicated in the cases of Piechowicz and Horych (see, § 168 and §
93 respectively, both cited above). This conclusion matches the findings of the
2004 CPT report, which underlined that the procedure for allocating a prisoner
to “N” status should be reviewed with a view to ensuring that such status was
only applied and maintained in relation to prisoners who genuinely required to
be placed in such category (see paragraph 91 above). Also, given the absence of
any provisions linking that status with a person’s actual behaviour in prison,
the legal framework of the “N” regime seems to be too rigid and not
sufficiently oriented towards the individual circumstances of a particular
detainee (see Piechowicz, § 168 and Horych, § 93, both cited
above).
In the present case the applicant was
classified as a “dangerous detainee” on the basis of the fact that he had been
charged with leading an organised criminal group engaged in fraud. The
applicant argued in his appeals that the legal classification of this offence
by the prosecutor had been incorrect and that, in any event, such charge could not
justify the imposition and continuation of the special regime. Most of his
appeals were dismissed; however the Lublin Regional Court in its decision of
11 December 2003 agreed with the applicant that the charges of ordinary
fraud and possession of a gas gun did not at all warrant considering him as a
detainee posing a serious danger to society. That court found that the
applicant’s detention on remand which entailed his isolation from society was a sufficient measure to counteract any risks
posed by him (see paragraph 54 above). Furthermore, on 6 February 2006 the
Lublin District Court discontinued the criminal proceedings against the
applicant with regard to the charge of leading an organised group engaged in
fraud (see paragraph 15 above). It held that the imputed acts did not
constitute a crime at the relevant time, and thus indirectly acknowledged that
the applicant had been right when contesting the application of the regime to
him on the strength of that particular charge.
The Court further notes that the penitentiary
commissions in their decisions on the applicant’s status relied on the risk
that he might attempt to corrupt prison or court officers or to escape; however
the relevant decisions did not indicate any concrete facts to substantiate the
alleged risks. The Lublin Regional Court in its decision of 11 December 2003
came to the same conclusion. Furthermore, it established that the applicant had
benefited from many rewards in the establishments in which he had been held. The
applicant complained to the Lublin Regional Prosecutor’s Office that their
allegations, relayed to the detention establishments, that he had been inclined
to corrupt prison or administration of justice officers had not been supported
by any evidence. The Court is struck by the fact that in their reply to the
applicant’s complaint the Prosecutor’s Office denied that it had ever made any
submissions regarding his alleged inclinations to corrupt public officials (see
paragraph 48 above). Furthermore, the Court notes that out of the 12 charges
originally laid against the applicant he had been acquitted of five charges,
including corrupting a police officer (see paragraphs 22, 24, 26 above). The
proceedings in respect of the three most serious charges (leading an organised
criminal group, extortion and threatening a witness) were discontinued on
various grounds and the applicant was convicted only of four offences, namely putting
into circulation forged bank notes, unlawful possession of a gas gun,
possession of amphetamines and aggravated fraud (see paragraphs 18-21 above).
Having regard to the above elements, the Court is
not convinced that the imposition and continuation of the “N” regime in respect
of the applicant was legitimate. The charges against him concerned mostly fraud
and the organised-crime element did not withstand even a preliminary scrutiny
of the trial court. For those reasons, the present case cannot be compared to
cases of persons linked to Mafia-type organisations or other cases concerning
organised crime (compare and contrast, Piechowicz, § 169 and Horych,
§ 94, both cited above). Furthermore, the alleged risk of corrupting prison or administration
of justice officials and of escaping were not substantiated by any concrete
facts. All those factors indicate that the application of the regime to the
applicant may be considered as bordering on arbitrariness.
However, the Court is not required to determine this issue
since for the reasons which follow, it cannot accept that the continued,
routine and indiscriminate application of the full range of measures that the
authorities were obliged to apply under the “N” regime for one year, ten months
and seventeen days was necessary for maintaining prison security and compatible
with Article 3 of the Convention.
It is true, as the Government pointed out, that
although the applicant was held in a solitary cell at a special high-security
ward separated from the rest of the prison, he was not subjected to complete
sensory or social isolation. There was a short period (from 24 to 28 October
2003) during which he had been placed in an ordinary cell with other inmates.
He maintained a degree of daily contact with the prison staff, even if only
limited, for the sake of a daily walk. He also received family visits and had
access to the prison library. Accordingly, he was not subjected to total isolation
but rather to a limited social isolation (see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V; and Ramirez Sanchez,
cited above, § 135).
The list of visits received by the applicant in detention shows
that over the relevant period he had 14 family visits. However, all of them
were “closed visits” without any direct contact, during which he was separated from the visitors by a Perspex partition and
communicated with them by internal phone. Nevertheless, in the Court’s view,
this - very limited - possibility of human contact could not attenuate
sufficiently the consequences of his nearly complete, prolonged isolation and
his daily solitude for his mental well-being.
In their two reports of 2000 and 2004, the CPT
expressed serious misgivings about the regime applied to “N” prisoners, which
was characterised by a total absence of organised activities and lack of human
contact. It was recommended that regardless of the gravity of the offences of
which prisoners are accused or have been convicted and/or their presumed
dangerousness, efforts must be made to provide them with appropriate
stimulation and, in particular, with adequate human contact (see paragraph
85 above). The CPT requested the Polish authorities to review the regime in the
light of those remarks. The Ombudsman equally expressed his concern about the inadequate
offer of educational and cultural activities for this group of detainees (see
paragraph 80 above).
In the Court’s view, the circumstances of the
present case fully confirm the CPT’s observations.
It does not appear that the authorities made any effort to
counteract the effects of the applicant’s isolation by providing him with the
necessary mental or physical stimulation except for a daily, usually solitary
walk in the segregated area and access to the radio and library in his solitary
cell. Two of his complaints pointing to the lack of any cultural and
educational activities were simply dismissed by reference to his “N” status and
the fact that a common room in the Chełm Prison was not equipped with an appropriate
security system (see paragraphs 36 and 43 above).
In this regard, the Court would recall that all forms of solitary
confinement without appropriate mental and physical stimulation are likely, in
the long term, to have damaging effects, resulting in a deterioration of mental
faculties and social abilities (see Csüllög v. Hungary, no. 30042/08, § 30, with further references,
7 June 2011). Considering the duration of the regime imposed on the
applicant and the very limited possibilities available to him for physical
movement and social contact, the Court has no doubt that his solitude and
exclusion must have caused him feelings of humiliation and helplessness (see
also paragraph 82 above).
The negative psychological and emotional
effects of his social isolation were aggravated by the routine application of
other special security measures, namely the shackling and strip searches.
To begin with, the Court is not convinced that shackling the
applicant on leaving his cell - which was a matter of everyday procedure
unrelated to any specific circumstances concerning his past or current
behaviour - was indeed necessary on each and every occasion. Moreover, in
contrast to a personal check, which the authorities were expressly obliged to
carry out pursuant to paragraph 64(6) of the 1998 Ordinance and then
subsequently pursuant to Article 212b § 1(5), putting shackles on a detainee
should be applied only when necessary and under particular circumstances (see
paragraph 79 above). It does not appear that there was a permanent need to do
so in the applicant’s case, given that in the prison he remained in a secure
environment. Nonetheless, the Prison Service deemed it appropriate to adopt a
general practice to the effect that all “N” detainees should wear shackles on
account of their presumed dangerousness. This practice remained in place
despite the criticism voiced by the Ombudsman who called for individual
assessment of dangerousness posed by each detainee (see paragraph 80 above).
The Court has even more misgivings in respect
of the personal checks to which the applicant was likewise subjected daily, or
even several times a day, whenever he left or entered his cell. Notwithstanding
the Government’s position, for the Court there is no doubt that the applicant
was subjected to such checks during the entire period in which he was
classified as a “dangerous detainee”. The obligation to undergo these checks
was expressly laid down in paragraph 64 of the 1998 Ordinance and subsequently in
Article 212b of the CECS. The strip-search, involving an anal inspection, was
carried out as a matter of routine and was not linked to any concrete security
needs, nor to any specific suspicion concerning the applicant’s conduct. It was
performed despite the fact that outside his cell and the “N” ward the applicant
could move around the remand centre only by himself, his mobility was
restricted due to his wearing shackles all the time and he had to be
permanently and directly supervised by at least 2 prison guards. In
addition, as already mentioned above, during his placement in the Radom Remand
Centre, his behaviour in the cell, excluding his use of sanitary facilities,
was constantly monitored via CCTV (see paragraph 128 above).
In this connection, the Court notes that the CPT in its report
on the 2009 visit to Poland expressed its considerable concern about the
practice of strip-searches applied to persons classified as dangerous detainees
(see Piechowicz, cited above, § 175).
The Court agrees that strip-searches may be
necessary on occasion to ensure prison security or to prevent disorder or crime
(see Iwańczuk v. Poland, no 25196/94, 15 November 2001, § 59;
and Van der Ven, cited above, § 60, with further references). However,
it is not persuaded by the Government’s argument that such systematic,
intrusive and exceptionally intimate checks performed on the applicant daily,
or even several times a day, were necessary to ensure safety in prison (see
paragraph 149 above). Nor does it share
their view that the absence of an intention to humiliate the applicant on the
part of the authorities justified that treatment (see Piechowicz, cited
above, § 176).
Having regard to the fact that the applicant was already
subjected in addition to several other strict surveillance measures, that the
authorities did not rely on any concrete convincing security needs and that he
apparently did not display any disruptive, violent or otherwise dangerous
behaviour in the remand centre, the Court considers that the practice of daily
strip-searches applied to him for the period in question must have diminished
his human dignity and caused him feelings of inferiority, anguish and
accumulated distress which went beyond the unavoidable suffering and
humiliation involved in the imposition of detention on remand (see Van der
Ven, cited above, § 62; Piechowicz, § 176 and Horych¸ § 101,
both cited above).
Lastly, the Court is struck by the fact that
following the Regional Court’s decision of 11 December 2003 quashing the
earlier decision of the Penitentiary Commission the applicant was not transferred
to an ordinary cell but continued to be detained under the intrusive regime for
dangerous detainees until 24 December 2003. The court’s session took place at
the Chełm Prison and the representative of that establishment was present
at the delivery of the court’s decision. Thus, there was no impediment to a
swift implementation of the court’s decision by the prison administration which
must have been familiar with the applicable procedures. Yet, the applicant
remained for an additional thirteen days under the “N” regime. The applicant
received an acknowledgment from the Regional Court and the Regional Inspection
of the Prison Services that the administration of Chełm Prison should have
been immediately transferred him to an ordinary cell following the court’s
decision (see paragraphs 57-58 above). The applicant received a similar
acknowledgment in respect of a similar failure of the prison administration
which followed the court’s decision of 3 December 2002 (see paragraph 59 above).
In the Court’s view, those failures only exacerbated the feelings of
humiliation and helplessness suffered by the applicant on account of his
subjection to the “dangerous detainee” regime.
In conclusion, assessing the facts of the case
as a whole and considering the cumulative effects of the “dangerous detainee”
regime on the applicant, the Court finds that the duration and the severity of
the measures taken exceeded the legitimate requirements of security in prison
and that they were not necessary to attain the aim pursued by the authorities.
There has accordingly been a violation of Article 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION ON ACCOUNT OF RESTRICTIONS ON CONTACT WITH THE FAMILY DURING THE
APPLICATION OF THE “DANGEROUS DETAINEE” REGIME
The applicant further complained under Article
8 about the restrictions on contacts with his family to which he had been
subjected during the application of the “dangerous detainee” regime.
Article 8, in so far as-relevant, reads as follows:
“1. Everyone has the right to respect for his ...
family life... .
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
The Government claimed that the applicant
should have lodged a constitutional complaint in order to challenge the constitutionality
of Article 217 of the CECS with Article 47 of the Constitution. They
referred to the Constitutional Court’s judgment of 2 July 2009 (no. K 1/07),
given on an application from the Ombudsman, in which this provision was found
incompatible with the Constitution and Article 8 of the Convention in so far as
it did not specify the reasons for refusing family visits to remand prisoners. The
applicant maintained that he had exhausted the relevant domestic remedies.
The Court refers to its earlier findings
concerning the limitations of the Polish model of constitutional complaint (see
paragraph 112 above). It finds that the Government did not establish that a
constitutional complaint in respect of the present grievance would provide the
applicant with adequate redress. For this reason, the said remedy cannot be
regarded as an effective remedy.
The applicant alleged that on account of his
classification as a “dangerous detainee” his contact with his family had been
severely restricted. As a general rule, a detainee was allowed to receive a
visit once a month. However, in the applicant’s case, his mother and daughter
were frequently refused permission to visit him which resulted in his being
deprived of contact with them for months at a stretch. Such treatment caused
him and his family significant moral suffering.
The applicant admitted that a request for a visit had to be
made in writing; however in most cases there had been no written reply to such
a request and only an oral refusal transmitted to a member of his family by a
court clerk. Accordingly, he submitted that many refusals could not be
documented. He averred that members of his family (wife, daughter and mother)
regularly, at least once a month, had requested permission for a visit. The
applicant maintained that the authorities had violated his right to respect for
his family life.
The Government stated that at the material time
(between 1 February 2002 and 24 December 2003) the applicant had received
14 visits from the members of his family, including 3 visits from his
mother, 5 visits from his daughter and ex-wife, 2 visits from his daughter
and a third party, 1 visit from D.G. (the family relationship was not provided)
and 3 visits from unspecified visitors (see paragraphs 64-70 above).
All visits received by the applicant were
“closed visits”. The manner of conducting visits was set out in Article 217 of
the CECS. Such visits took place in a special room and the direct contact
between a detainee and his visitor was excluded. It transpired from the
requests attached to the file of the criminal case against the applicant that
none of the visitors had requested an open visit. It was only the applicant who
had made such a request on 10 June 2003.
The Government concluded that there had been no
violation of Article 8 on account of the visiting regime during the application
of the “dangerous detainee” regime and the conditions in which the visits had
taken place.
The relevant principles deriving from its case-law
were recently summarised in the Court’s judgments in the cases of Piechowicz
v. Poland, (no. 20071/07, § 212, 17
April 2012) and Horych v. Poland, (no. 13621/08, §§ 122-124, 17 April 2012).
. The applicant submitted that he had
been refused visits from his mother and his daughter at the relevant time.
However, he has not produced any material evidence to that effect, in
particular decisions of the authorities, and accordingly the Court finds that
his complaint is unsubstantiated up until 30 July 2003. The Court notes that in
similar cases the applicants were able to produce evidence to substantiate
their allegations (Piechowicz, Horych).
. On the other hand, the applicant
produced two replies dated 2 September and 3 October 2003 of the President
of the Lublin District Court to his complaints about refusals to allow him
visits from his wife and daughter as well as his mother (see paragraphs 71-72
above). Those decisions amounted to an “interference” with the applicant’s
rights under Article 8. It remains to be ascertained whether the interference
complied with the requirements set out in Article 8 § 2 of the Convention.
. The Court first notes that the
authorities, in their written replies to the applicant’s requests for visit
permissions, explained the circumstances which, in their view, warranted
negative decisions at the relevant time. Consequently, the restrictions
complained of can be regarded as having been applied “in accordance with the
law” within the meaning of Article 8 § 2 of the Convention (see Piechowicz,
cited above, §§ 216-218).
In their first reply of 2
September 2003, the authorities stated that their decision was motivated by the
need to secure the proper conduct of the proceedings. They referred to the risk
of putting pressure on one of the co-accused, R.P., in connection with
the applicant’s aggressive behaviour towards him at a hearing held on 11 July
2003. Having regard to the above, the judge rapporteur refused to allow a visit
from the applicant’s wife. In addition, the Court notes that shortly after,
i.e. on 29 September 2003, the applicant received a visit from his wife and
daughter. He received two further visits from his daughter on 20 October and 6
December 2003. In addition, on 1 September 2003 the applicant received a visit
from his mother. In respect of his mother, the authorities further invoked the
fact that she was a witness in the criminal proceedings against the applicant.
. The Court is of the view that the
reasons put forward by the authorities pursued a legitimate aim, namely “the
prevention of disorder or crime”. They further appear necessary in order to
achieve that aim.
It follows that this complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION ON ACCOUNT OF THE IMPOSITION OF THE “DANGEROUS DETAINEE” REGIME
The Court raised of its own motion the question
whether the imposition of the “dangerous detainee” regime on the applicant amounted
further to a violation of his right to respect for his private life protected
by Article 8 of the Convention. Article 8, in its relevant part reads as
follows:
“1. Everyone has the right to respect for his
private ... life.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Admissibility
The Court notes that this complaint is linked
to the complaint under Article 3 examined above (see paragraphs 105 and 114 above)
and must therefore likewise be declared admissible.
B. Merits
The applicant submitted that the imposition of
the “N” regime on him violated his right to private life.
The Government refrained from taking a position
as to whether the restrictions attached to the
“N” regime had given rise to a breach of Article 8.
The Court observes that the prolonged
imposition of the “dangerous detainee” regime on the applicant lies at the
heart of his complaint under Article 3 of the Convention. These issues have
been examined and resulted in the finding of a violation of that provision (see
paragraph 143 above). In the circumstances, the Court considers that no
separate issue arises under Article 8 of the Convention and makes no separate
finding.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained about the
unreasonable length of the criminal proceedings against him. In his letter of
10 February 2009 he further complained that during his detention on remand the
courts had not undertaken any measures with a view to protecting his property.
However, in the light of all the material in
its possession, and in so far as the matters complained of are within its
competence, the Court finds that those complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the Convention
or its Protocols.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 200,000 euros (EUR) in
respect of non-pecuniary damage for the violation of Articles 3 (imposition of
the “dangerous detainee” regime), 5 § 3 (excessive length of pre-trial
detention) and 8 (restrictions on contact with his family) of the Convention. He
also claimed EUR 250,000 in respect of pecuniary damage, alleging that during
his detention on remand the courts had failed to protect his property.
The Government considered that the sums claimed
in respect of non-pecuniary damage were exorbitant and inconsistent with the
Court’s awards in similar cases. As regards the claim for pecuniary damage, the
Government submitted that there was no causal link between the amount claimed
and the alleged pecuniary damage.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim.
With regard to the claim for non-pecuniary damage, the Court
notes that the part of the application regarding the complaint under Article 5
§ 3 was struck out of the list and that the complaint under Article 8
concerning restrictions on contact with his family was declared inadmissible. Having
regard to its finding of a violation of Article 3 of the Convention and making
its assessment on an equitable basis, the Court awards the applicant EUR 12,000
in respect of non-pecuniary damage.
B. Costs and expenses
The applicant made no claim for costs and
expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Takes note of the terms of the respondent
Government’s declaration in respect of the complaint under Article 5 § 3 of the
Convention and of the modalities for ensuring compliance with the undertakings
referred to therein;
2. Decides to strike the application out of
its list of cases in so far as it relates to the above complaint in accordance
with Article 37 § 1 (c) of the Convention;
3. Declares the complaints under Articles 3
and 8 concerning the imposition of the “dangerous detainee” regime on the
applicant admissible and the remainder of the application inadmissible;
4. Holds that there has been a violation of
Article 3 of the Convention;
5. Holds that there is no separate issue under
Article 8 of the Convention in respect of the imposition of the “dangerous
detainee” regime on the applicant;
6. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 12,000 (twelve thousand
euros), to be converted into the currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 30 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David
Thór Björgvinsson
Registrar President
