FOURTH SECTION

CASE OF PRUS v. POLAND

(Application no. 5136/11)

JUDGMENT

STRASBOURG

12 January 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Prus v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	András Sajó, President,
	Vincent A. De Gaetano,
	Boštjan M. Zupančič,
	Paulo Pinto de Albuquerque,
	Krzysztof Wojtyczek,
	Egidijus Kūris,
	Iulia Antoanella Motoc, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 8 December 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 5136/11) 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 Kamil Prus (“the applicant”), on 6 December 2010.
2.  The applicant, who had been granted legal aid, was represented by Mr S. Kotuła, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3.  The applicant alleged, in particular, a breach of Article 3 of the Convention on account of the imposition on him of the so-called “dangerous detainee” regime.
4.  On 7 July 2014 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1987 and is detained in Lublin.
Section 1.01	A.  Criminal proceedings against the applicant
6.  On 1 December 2005 the applicant was arrested and remanded in custody. In 2006 he was convicted of three counts of battery and robbery and received prison sentences ranging from two to four years. On 28 November 2006 the Lublin Regional Court imposed a cumulative sentence for four criminal convictions.
Section 1.02	B.  Imposition of the so-called “dangerous detainee” regime
7.  On 5 November 2010 the Opole Lubelskie Prison Penitentiary Commission imposed on the applicant the so-called “dangerous detainee” regime. The commission held that the applicant had been the leader of or an active participant in a planned collective remonstrance in Opole Lubelskie Prison (Article 88a § 2 (2a) of the Code of Execution of Criminal Sentences), as the detainees refused to accept food provided by the prison authorities. The authorities learned that the detainees were planning another collective protest for 11 November 2010. The commission also considered that the applicant was particularly depraved.
8.  On 18 January 2011 the Opole Lubelskie Prison Penitentiary Commission rejected an appeal lodged by the applicant and dismissed his request for leave to examine the appeal outside the statutory time-limit.
9.  Subsequently, the applicant was transferred to the Lublin Remand Centre.
10.  On 3 February 2011 the Lublin Remand Centre Penitentiary Commission reviewed and upheld the decision to apply the regime to the applicant, considering that he posed a serious threat to the security of the detention centre. The applicant appealed.
11.  On 4 April 2011 the Lublin Regional Court dismissed the appeal. The court referred to the reasons given in the decision of 5 November 2010, holding that the decision had been lawful and justified.
12.  On 3 March 2011 the applicant lodged a complaint with the Lublin Regional Inspectorate of Prisons. He complained that he was having difficulties in accessing educational activities in the Lublin Remand Centre. The authorities dismissed the complaint, holding that educational activities were not organised for dangerous prisoners.
13.  On an unspecified date in 2011 the applicant notified the police of his allegedly unlawful classification as a “dangerous detainee” on 5 November 2010. He claimed that the Opole Lubelskie Prison authorities had exceeded their powers in imposing the regime on him. On 29 April 2011 the Opole Lubelskie District Prosecutor refused to open an investigation in the case, holding that no offence had been committed.
14.  On 28 April 2011 the Lublin Remand Centre Penitentiary Commission revoked its decision to classify the applicant as a “dangerous detainee”. It considered that the applicant’s behaviour had improved and that he no longer posed a threat to the security of the remand centre.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
15.  The relevant domestic law and practice concerning the imposition of the “dangerous detainee” regime are set out in the Court’s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 110-17, 17 April 2012), and Horych v. Poland (no. 13621/08, §§ 49-56, 17 April 2012).
16.   The provisions of the Code of Execution of Criminal Sentences concerning the imposition of the regime on convicted persons read as follows:
Article 88 § 3
“A convicted person posing a serious danger to society or to the security of a prison shall be placed in a prison with a closed regime in conditions ensuring increased protection of society and the security of the prison.”
Article 88a
“1. The convicted person referred to in Article 88 § 3 shall be placed in a designated wing or in a cell of a prison with a closed regime. A penitentiary judge shall be informed about this placement.
2.  The provisions of paragraph 1 above shall be applied to a convicted person whose characteristics, personal circumstances, motivations, behaviour when committing the offence, type of offence and its consequences, behaviour in prison, or degree of depravity pose a serious danger to society or to the security of a prison, and who:
(2a) during the prior or current term of imprisonment posed a danger to the security of a prison or a remand centre in that he was a leader or an active participant in a collective remonstrance in a prison or a remand centre ...”
17.  Article 88b of the Code of Execution of Criminal Sentences lays down specific arrangements applicable to convicted persons to whom the “dangerous detainee” regime is applied. They are identical to those specified in Article 212b of the Code applicable to persons remanded in custody (see Piechowicz, cited above, § 106).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
18. The applicant complained that he had been unlawfully classified as a “dangerous detainee” and subjected to degrading treatment prohibited by Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
19.  The Government contested that allegation.
Section 3.01	A.  Admissibility
20.  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.
Section 3.02	B.  Merits
(a)	1.  The applicant
21.  The applicant submitted that the prolonged imposition of the “dangerous detainee” regime had been in breach of Article 3 of the Convention. In his opinion, there had been no reasonable grounds for applying the regime to him. He contested the allegation that he had been the leader of a collective protest. He had never been charged with or convicted of such an act. He admitted to having refused, on one occasion, to eat his breakfast while at the Opole Lubelskie Prison.
22.  The applicant submitted that he had been held mostly in solitary confinement. He referred to the prolonged and excessive isolation from his family, the outside world and other detainees, and to other restrictions, such as wearing “joined shackles”, routine strip searches to which he had been subjected on a daily basis and, lastly, monitoring of his cell (including the sanitary facilities) via closed‑circuit television. The applicant stressed that all of his movements in the cell had been constantly monitored. The images had been recorded and stored for at least seven days. Every time he left or entered his cell, usually several times a day, he had been subjected to a degrading, exceptionally intrusive body search by at least three prison guards. Other inmates were often present during the strip search. Moreover, every time the applicant left his cell he was escorted and accompanied by guards, who were present also during medical examinations.
(b)	2.  The Government
23.  The Government stressed that in the present case the treatment complained of had not attained the minimum level of severity required for a breach of Article 3.
24.  The Government maintained that the applicant had been classified as a “dangerous detainee” in accordance with the relevant legal provisions. He had planned and led a collective protest in the Opole Lubelskie Prison – the prisoners’ hunger strike. Moreover, the domestic authority considered that the applicant had been demoralised and had had a negative influence on other detainees.
25.  The application of “dangerous detainee” status to the applicant had been reviewed after three months. As soon as the commission noticed an improvement in the applicant’s attitude – on 28 April 2011, after five months and twenty-three days – it lifted the regime. In those circumstances, the Government considered that subjecting the applicant to the regime had been legitimate and necessary for preventing a risk of disturbance in the prison and maintaining prison security.
26.  The Government stressed that the regime had been imposed on the applicant for a very short period of time during which he had been provided with adequate stimulation and human contact. In particular, twice a week he had the right to visit a library and a room equipped with a computer, a television and other means of entertainment. He was also entitled to receive visits. The Government concluded that the treatment to which he had been subjected had not been incompatible with Article 3 of the Convention. They invited the Court to find no violation of that provision.
(c)	3.  The Court’s assessment
(i)	(a)  General principles deriving from the Court’s case-law
27.  The relevant general principles deriving from its case-law were recently summarised in the Court’s judgments in the cases of Piechowicz v. Poland (see Piechowicz, cited above, §§ 158-65) and Horych v. Poland (Horych, cited above, §§ 85-92).
(ii)	(b)  Application of the above principles in the present case
28.  The Court notes that there is no dispute over the fact that from 5 November 2010 to 28 April 2011, that is, for five months and twenty-three days, the applicant was classified as a so‑called “dangerous detainee” and, in consequence, subjected to high‑security measures and various restrictions (see paragraphs 7-14 above). The main aspects of the regime raised by the applicant and specified below were not contested by the Government (see paragraphs 22 - 26 above). The details of the core aspects of the “dangerous detainee” regime were also extensively analysed in the Piechowicz judgment (cited above, § 166 with further references).
29.  The measures applied in the applicant’s case comprised confinement in a special high-security prison wing and increased supervision of his movements within and outside the cell, which meant that he had to wear so‑called “joined shackles” (handcuffs and fetters joined together with chains) whenever he was taken outside his cell. The measures involved his segregation from the prison community and restrictions on contact with his family. In addition, every time he left or entered his cell he was routinely subjected to a “full strip search” – a thorough inspection of his body and clothes in which he was required to strip naked and make deep knee bends in order to enable an examination of his anus (see paragraph 22 above). The applicant submitted that the strip searches had been conducted in the corridor outside his cell and that other inmates had been able to see him. In addition, his cell, including the sanitary facilities, was constantly monitored via closed-circuit television.
The Government did not contest those allegations. They underlined that the applicant had had access to facilities in the prison such as a library and an entertainment room. Moreover, they submitted that he had had the right to receive family visits, without specifying whether any visits had taken place during the period in question (see paragraph 26 above).
30.  The parties disagreed on whether the adverse consequences of the imposition of the above measures on the applicant had been serious enough to attain the minimum level of severity required for a breach of Article 3 of the Convention.
31.  The Court firstly notes that the facts of the instant case differ from the leading cases of Piechowicz and Horych, where the dangerous detainee regime was imposed on the basis of Article 212a § 3 of the Code of Execution of Criminal Sentences, which sets out strict, rigid rules for the imposition of the special regime in cases where the charges against the detainee are of a serious nature (see Piechowicz, cited above, §§ 105 and 177).
32.  In the present case the authorities justified their decision of 5 November 2010 imposing the “dangerous detainee” regime on the applicant on account of the applicant’s alleged participation in a planned collective remonstrance in the prison. The legal basis for the imposition of the regime was Article 88a § 2 (2a) of the Code of Execution of Criminal Sentences (see paragraphs 7 and 16 above). The applicant explained that the prisoners, including himself, had refused to eat their breakfast. He denied his alleged leadership of any disturbances in the prison. He does not appear to have been convicted of a violent offence or linked with organised crime (contrast Horych, cited above, § 94). Nor does he appear to have received any disciplinary punishment for those events or to have been charged by the prosecutor.
In those circumstances the Court is not convinced that it was reasonable on the part of the authorities to consider that, for the sake of ensuring prison security, the applicant should be indiscriminately subjected to the full range of measures that were available to them under the “dangerous detainee” regime.
33.  The Court notes that the “dangerous detainee” regime was applied to the applicant for a total of five months and twenty-three days.  Although it appears that at times the applicant was held in a solitary cell at a special high-security wing separated from the rest of the prison, he was not subjected to complete sensory and social isolation. The Government underlined that he had had the right to visit a library and other facilities in the prison and to receive family visits. There is no evidence that the applicant in reality benefited from any mental or physical stimulation, with the exception of a daily and solitary walk within the segregated area.
34.  In the Piechowicz case the Court did not accept that the continued, routine and indiscriminate application of the full range of measures that was available to the authorities under the so-called “dangerous detainee” regime had been necessary in order to maintain prison security, or that their application was compatible with Article 3 of the Convention (see Piechowicz, cited above, § 170). Also in the present case, the Court is not convinced that shackling the applicant was necessary on each and every occasion (see Piechowicz, cited above, § 174).
35.  The Court has even more misgivings with regard to the full body search to which the applicant was likewise subjected daily, or even several times a day, whenever he left or entered his cell. Strip searches were carried out as a matter of routine and were not linked to any specific security needs, or to any specific suspicion concerning the applicant’s conduct.
The Court has already stated in the Piechowicz case that while strip searches might be necessary to ensure prison security or to prevent disorder or crime, it was not persuaded by the Government’s argument that such systematic, intrusive and exceptionally embarrassing checks performed daily, or even several times a day, were necessary to ensure safety in the prison (see Piechowicz, cited above, § 176).
36.  Given that the applicant was already being subjected to several other strict surveillance measures and that the authorities did not rely on any specific or convincing security requirements, the Court considers that the practice of daily strip searches applied to him for almost six months must have caused him feelings of inferiority, anguish and accumulated distress which went beyond the unavoidable suffering and humiliation involved in the execution of his prison sentence (see Horych, cited above, § 101, and Piechowicz, cited above, §§ 175 and 176).
37.  Lastly, the Court notes that in extending the regime on 3 February 2011, the commission gave no reason apart from the original one given three months earlier. This lack of a new justification for extending the regime was criticised by the Szczecin District Court, which quashed the decision of 6 December 2011 and ordered the commission to re-examine the matter (see paragraph 14 above). The Court has already noticed that the authorities, in extending that regime, were not in fact obliged to consider any changes in the applicant’s personal situation and, in particular, the combined effects of the continued application of the impugned measures (see Piechowicz, cited above, § 177).
The Court considers that also in the instant case the authorities failed to sufficiently justify the extension of the regime and that the procedure for review of the applicant’s “dangerous detainee” status was a pure formality, limited to a repetition of the same grounds.
38.  In conclusion, taking into account the cumulative effects of the “dangerous detainee” regime on the applicant, the Court finds that the authorities did not provide sufficient and relevant reasons which could justify, in the circumstances of the case, the severity of the measures taken. In particular, the authorities failed to show that the impugned measures were necessary in their entirety to attain the legitimate aim of ensuring prison security.
39.  There has accordingly been a violation of Article 3 of the Convention.
Article IV.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
40.  The applicant complained of a violation of Articles 6 and 13 of the Convention. He complained about the manner in which the penitentiary commission had applied and extended the regime, and the alleged ineffectiveness of his appeals against the commission’s decisions.
41.  The Government contested that argument.
42.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
43.  The Court observes that at the heart of the applicant’s complaint under Article 3 of the Convention lies not only the prolonged imposition of the “dangerous detainee” regime but also the procedure for reviewing his status (see paragraph 37 above). These issues have been examined and have resulted in the finding of a violation of that provision (see paragraph 38 above). In the circumstances, the Court considers that no separate issue arises under Articles 6 and 13 of the Convention and makes no separate finding.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
44.  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.”
Section 5.01	A.  Damage
45.  The applicant claimed 9,000 euros (EUR) in respect of non‑pecuniary damage.
46.  The Government considered the claim excessive.
47.  The Court awards the applicant EUR 3,000 in respect of non‑pecuniary damage.
Section 5.02	B.  Costs and expenses
48.  The applicant, who received legal aid from the Council of Europe in connection with the presentation of his case, did not make any claim for costs and expenses.
Section 5.03	C.  Default interest
49.  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.  Declares the application admissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Holds that there is no need to examine the complaint under Articles 6 and 13 of the Convention;

4.  Holds
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Françoise Elens-Passos	András Sajó
	Registrar	President