European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF PAWEŁ PAWLAK v. POLAND

 

(Application no. 13421/03)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

30 October 2012

 

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 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