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HORYCH v. POLAND - 13621/08 [2012] ECHR 699 (17 April 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/699.html
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[2012] ECHR 699
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FOURTH
SECTION
CASE OF
HORYCH v. POLAND
(Application
no. 13621/08)
JUDGMENT
STRASBOURG
17 April
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 Horych 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 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 13621/08)
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 Andrzej Horych (“the applicant”), on
25 February 2008.
2. The
applicant was represented by Mr J. Znamiec, a lawyer practising in
Kraków. The Polish Government (“the
Government”) were represented by their Agent, Mr J.
Wołąsiewicz, of the Ministry of Foreign Affairs.
3. The
applicant alleged, in particular, that the prolonged imposition of
the so-called “dangerous detainee” regime on him had been
in breach of Article 3 of the Convention and that restrictions on his
contact with his family amounted to a violation of Article 8 of the
Convention.
On
31 August 2009 the President of the Fourth Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1957 and lives in
Warszawa. He is currently detained in the Warsaw
Mokotów Remand Centre.
A. Criminal proceedings against the applicant (case no.
IV K 200/05)
On
14 July 2004 the applicant was arrested on suspicion of drug
smuggling. On 15 July 2004 the Gdańsk District Court (Sąd
Rejonowy) remanded him in custody for 3 months, relying on the
reasonable suspicion – supported by evidence taken from
witnesses – that he had committed the offence in question and
the need to secure the proper course of the proceedings. The court
also attached importance to the likelihood of a severe sentence of
imprisonment being imposed on the applicant and the risk that he
would attempt to induce witnesses to give false testimony or would
otherwise obstruct the proceedings. That risk was justified by the
fact that the case involved a large number of accomplices who had not
yet been apprehended.
An
appeal by the applicant against the detention order, likewise his
further appeals against subsequent decisions extending his detention
and all his subsequent applications for release and appeals against
refusals to release him were unsuccessful. In his applications
and appeals, he argued that his lengthy detention violated the
provisions of the Code of Criminal Procedure relating to the
imposition of this measure.
In
the course of the investigation, the applicant’s detention was
extended on several occasions, namely on 21 September 2004 (to
31 December 2004), 21 December 2004 (to 31 March 2005) and 22
March 2005 (to 30 June 2005). In all their decisions the authorities
relied on the original grounds given for the applicant’s
detention. The courts also stressed the fact that, owing to the
complexity of the case, the investigation had still not been
completed.
On
16 June 2005 a bill of indictment was lodged with the Gdańsk
Regional Court (Sąd
Okręgowy). The
applicant, together with 3 other co accused, was indicted on
charges of drug smuggling and conspiracy to import drugs committed in
an organised criminal group aiming at importing into Poland
considerable amounts of drugs.
During
the court proceedings the courts further extended the applicant’s
detention on several occasions, namely on 23 June 2005 (to
30 September 2005), on an unspecified subsequent date, on 28
June 2006 (to 30 October 2006), 3 October 2006 (to 31 December 2006),
28 December 2006 (to 30 April 2007), 25 April 2007 (31 August 2007),
22 August 2007 (to 31 December 2007), 11 December 2007 (to 31 March
2008), 18 March 2008 (until 30 June 2008), 25 June 2008 (until 30
September 2008) and 18 September 2008 (until 31 December 2008).
The
courts repeated the grounds previously given for keeping the
applicant in custody. They attached importance to the likelihood of a
severe sentence of imprisonment being imposed on him and the risk
that he would obstruct the proceedings.
On
19 October 2005 the Regional Court held the first hearing. The trial
continued until 30 December 2008.
Throughout
that time 98 hearings were scheduled. The hearings took place at last
once a month but at certain periods the court held up to 5 hearings
per month. On average, they were held at 2 week-intervals and there
was no interruption of the trial longer than 5 weeks.
On
30 December 2008 the court convicted the applicant of drug smuggling
and conspiracy to import drugs but acquitted him of acting in an
organised criminal group. He was sentenced to a cumulative penalty of
12 years’ imprisonment. The Court deducted the period of
his detention from 14 July 2004 to 12 June 2005 from his sentence.
The applicant appealed.
The
applicant did not specify when the proceedings had terminated but it
appears that they most likely ended between the end of 2009 and the
beginning of 2010.
B. Other criminal proceedings against the applicant
1. Case no. III K 120/06 before the Kraków
Regional Court
On
an unspecified date in 2005 the Kraków Regional Court
convicted the applicant of drug-related offences committed in an
armed organised criminal group and sentenced him to 15 years’
imprisonment. The applicant started to serve the sentence on 13 June
2005.
2. Case no. XVIII K 311/07 before the Warsaw Regional
Court
On
an unspecified date, apparently on 18 January 2006, the Ostrołęka
Regional Prosecutor charged the applicant with, among other things,
leading an organised criminal group called “mokotowska”
involved in trafficking large amounts of drugs, arms and ammunition,
money laundering, bribery of public officials, kidnapping, extortion,
armed robbery and other theft-related offences.
On
19 January 2006 the Ostrołęka Distrcit Court remanded the
applicant in custody relying on the reasonable suspicion that he had
committed the offences with which he had been charged. The court
underlined that the suspicion was fully supported by evidence
obtained from a crown witness (świadek koronny) and
confirmed by other evidence, such as searches, inspections of crime
scenes and testimonies of other witnesses. It also referred to the
risk that the applicant would try to bring pressure to bear on
witnesses, the need to secure the proper course of the investigation
and the likelihood that a severe penalty – minimum 8 years’
imprisonment would be imposed on him.
On
an unspecified date, apparently in 2009, the Warsaw Regional Court
convicted the applicant as charged and sentenced him to 14 years’
imprisonment.
The
applicant did not inform the Court of the further course of the
proceedings.
C. Proceedings under the 2004 Act (case no. II S 22/07)
On
18 July 2007 the applicant lodged with the Gdańsk Court
of Appeal (Sąd Apelacyjny) a complaint under section
5 of the Law of 17 June 2004 on complaints about a breach of the
right to a trial within a reasonable time (Ustawa o skardze na
naruszenie prawa strony do rozpoznania sprawy w postępowaniu
sądowym bez nieuzasadnionej zwłoki) (“the 2004
Act”).
The
applicant sought a ruling that the length of the proceedings in case
no. IV K 200/05 (see paragraphs 6-13 above) had been excessive and an
award of just satisfaction in the amount of 10,000 Polish zlotys
(PLN) (approx. 2,500 euros (EUR)).
On
25 September 2007 the Gdańsk Court of Appeal dismissed his
complaint as unfounded. It held that since the beginning of the
trial 61 hearings had been scheduled in the case until 24 August
2007 and only 11 of them had been adjourned due to the absence of
counsel or co suspects and because of a lay judge’s
illness. The court concluded that the proceedings had been conducted
with the requisite speed and without undue delay.
D. The “dangerous detainee” regime
1. Detention facilities in which the applicant was held
After
his arrest on 14 July 2004 (see paragraph 6 above) the applicant was
detained in the Sztum Prison (Zakład Karny). Shortly
afterwards, on an unspecified date, he was transferred to the Gdańsk
Remand Centre (Areszt Śledczy). He remained there until
22 January 2009 but in 2008 he was transferred to the
Warszawa-Mokotów Remand Centre for a few months. From 22
January 2009 to 9 June 2009 he was detained in the Kraków
Remand Centre. Later he was held in the Radom Prison and then
transferred to the Warsaw Mokotów Remand Centre.
2. Imposition of the regime and its continuation
On
22 July 2004 the Sztum Prison Penitentiary Commission (Komisja
Penitencjarna) classified the applicant as a “dangerous
detainee” (a so-called ”tymczasowo aresztowany
niebezpieczny”; in the relevant legal provisions referred
to as ”tymczasowo aresztowany stwarzający poważne
zagrożenie społeczne albo poważne zagrożenie dla
bezpieczeństwa aresztu”). It considered that it was
necessary to place the applicant in a solitary cell designated for
such detainees at a special high-security prison ward because he had
been charged with serious offences committed in an organised criminal
group. Pursuant to Article 212a § 3 of the Code of Execution of
Criminal Sentences (Kodeks karny wykonawczy), this
circumstance by itself justified the classification of a detainee as
“dangerous”. The commission also referred to the
applicant’s serious lack of moral character (wysoki stopień
demoralizacji).
Every
three months the Gdańsk Remand Centre’s Penitentiary
Commission (Komisja Penitencjarna Aresztu Śledczego)
reviewed its decision on the classification of the applicant as a
“dangerous detainee”. The applicant appealed against many
of those decisions. He submitted that the offences with which he had
been charged, in particular drug-smuggling, did not justify the
imposition of the special regime. He argued that the measure had been
extended automatically without any consideration for his health and
mental well-being, that it had in fact been imposed for an unlimited
duration and was putting an exceptionally severe strain on him and
his family. He also complained about being subjected to a strip
search every time he left and entered the cell.
All
the appeals were dismissed.
On
3 September 2007 the Gdańsk Regional Court – Penitentiary
Division examined the applicant’s appeal against the Gdańsk
Remand Centre’s Penitentiary Commission’s decision of 10
July 2007 prolonging the application of the “dangerous
detainee” regime and continuing to hold him in a solitary cell.
In
his appeal, the applicant underlined that the special regime had
already been imposed on him for some 3 years and that its
continuation had been based solely on the charges laid against him,
without any court conviction. In his view, this was in breach of the
principle of the presumption of innocence.
The
court rejected the applicant’s argument that the nature of the
offences with which he had been charged did not justify the continued
application of that regime in his case. In that regard, it stressed
that the applicant had been charged in three separate sets of
criminal proceedings conducted by different courts or prosecutors and
those other charges included, among other things, the leading of an
organised and armed criminal group, kidnapping, armed robbery and
arms trafficking. The nature of the charges and the applicant’s
personal circumstances, such as his previous criminal record,
leadership qualities and tendency to dominate the others fully
supported the view that there existed the “danger [to society
and the security of a remand centre]” referred to in Article
212a of the Code of Execution of Criminal Sentences. In sum, there
was no indication that the contested decision was contrary to the
law, which was the sole ground on which it could be challenged and
possibly quashed. As regards the applicant’s argument that his
contacts with his family were severely restricted as a result of his
“dangerous detainee” status, the court held that those
restrictions were lawful as being applied under the relevant
provisions of the Code of Execution of Criminal Sentences and did not
make it impossible for him to maintain such contacts.
On
11 December 2007, 15 February 2008 and 3 June 2008 the Gdańsk
Regional Court – Penitentiary Division, relying on the same
grounds, rejected further appeals against the Penitentiary
Commission’s decisions prolonging the imposition of the
“dangerous detainee” regime on the applicant. In his
appeals, the applicant submitted that his prolonged solitary
confinement was putting an exceptionally severe emotional strain on
him, which was compounded by his lack of sufficient contact with the
family. He also complained that the routine strip-searches, to which
he had been subjected, sometimes several times a day, were intrusive,
unnecessary and humiliating.
Further
decisions on the prolongation of the “dangerous detainee”
regime were based on similar grounds or repeated the initial reasons.
On 19
August 2009 the Radom Regional Court upheld the Penitentiary
Commission’s decision to continue the imposition of the regime,
given on 23 June 2009, in view of the serious nature of the
charges brought against the applicant and his personal circumstances,
such as his leadership qualities and tendency to dominate the others
and his serious lack of moral character.
On 23
October 2009 the Warsaw Regional Court upheld a similar decision,
stressing that since 13 June 2005 the applicant had been serving a
sentence of 15 years’ imprisonment, following his conviction
for drug related offences committed in an organised criminal
group. He had also been convicted at first instance by the Gdańsk
District Court for other drug related offences and sentenced to
12 years’ imprisonment. In these circumstances, the special
regime had to be continued.
On 14
July 2010 the Warsaw Regional Court upheld another decision of the
Penitentiary Commission, relying on the applicant’s criminal
convictions and stressing that under the applicable legal provisions
no time limit was set for the imposition of the regime.
On 30
August 2011 the Warsaw Regional Court upheld the Penitentiary
Commission’s decision of 2 August 2011. Noting that the
decision was based on the fact that the applicant, in view of his
personal circumstances and serious lack of moral character, posed a
serious danger to prison security and order, as well as to prison
officers’ safety, the court found that this assessment had been
objective and fully justified the continuation of the regime.
Throughout his detention the applicant repeatedly
requested the authorities to place him with another inmate,
complaining that his excessively long solitary confinement had
severely affected his emotional and mental well-being.
The
regime is still being applied to the applicant and he is still held
in a solitary cell.
In
all likelihood, pursuant to Article 212a § 3 of the Code of
Execution of Criminal Sentences (see paragraph 44 below), the regime
will continue until he has finished serving his three consecutive
sentences of imprisonment, or at least the sentence following the
conviction for leading an organised and armed criminal group,
kidnapping, arms and drug trafficking. At present it is estimated
that the applicant’s imprisonment would come to an end at the
end of 2031.
3. Particular aspects of the regime
Since
22 July 2004, when the applicant was placed in a solitary cell for
dangerous detainees at the high-security prison ward until present,
he has remained under increased supervision. The cells in which he
has been held, including their sanitary facilities, have been
constantly monitored via close-circuit television. They have
also been searched frequently, sometimes on a daily basis.
He
has been subjected to a so called “personal check”
(kontrola osobista), i.e. a thorough body search every time he
has left and entered the cell. The applicant has explained that this
means that each time he enters or leaves the cell he must strip naked
in front of prison guards and carry out deep knee-bends from 6 to 10
times to enable an examination of his anus.
Whenever
he is outside his cell and the high-security ward, including his
appearances at court hearings, the applicant must be handcuffed or
required to wear so-called “joined shackles” (kajdanki
zespolone) on his hands and feet (see paragraph 47 below). Those
shackles consist of handcuffs and fetters joined together with
chains.
The
applicant has many times unsuccessfully complained to the authorities
that outside his cell his hands were handcuffed behind his back,
which caused him considerable pain and difficulty in moving,
especially during a daily walk.
The
applicant’s movements outside his cell and the special ward
must be supervised by 2 prison guards. He is allowed to have a 1-hour
long solitary walk per day in a segregated area.
E. Restrictions on the applicant’s contact with
his family
The applicant was entitled to 1 one-hour visit from
the family per month.
He supplied a document issued by the Governor of the
Gdańsk Remand Centre on 13 February 2008, setting out a list of
visits received by him up to that date.
From
23 August 2004 to 20 January 2008, i.e. for 3 years and some
5 months, he was granted permission to have 11 “open
visits” (widzenie przy stoliku). He was also granted
21“closed visits” (widzenie przez telefon)
(see also paragraph 58 below).
On
most occasions only the applicant’s wife visited him. The
applicant has 3 daughters M.H., K.H. and S.H. born, respectively, in
1988, 1993 and 1998. Throughout the above period he received visits
from his oldest daughter on 2 occasions and from each of the two
younger daughters once.
In
2004 the applicant was granted 6 visits, 2 of which were open and
4 closed. They took place on 23 August (this was an open visit
from the applicant’s wife), 17 September (this was a closed
visit from his wife, E.H., and M.H., his oldest daughter), 15
October, 29 October (on this occasion he received an open visit from
his daughter M.H.), 19 November and 17 December respectively.
In
2005 the applicant was granted 10 visits, only 1 of which was open.
They took place on 11 February, 11 March, 15 April, 12 May, 5 July,
28 July, 16 August, 30 September (this was a closed visit
from his wife and K.H., one of his daughters), 28 October and 9
December 2005.
In
2006 the applicant received 7 visits (including 1 “open”)
from his wife only. They took place on 28 February, 5 April, 13 June,
23 August, 20 October, 30 November and 29 December.
In
2007 the applicant was granted 7 visits from his wife, 4 of which
were open visits. They took place on 9 February, 29 March, 1 June (on
this open visit the applicant could also see S.H., his youngest
daughter), 24 July, 6 September, 24 October and 27 November.
In
2008, as of the date of the issuance of the document, the applicant
received one “open visit” from his wife – on 20
January 2008. He submitted that throughout the whole of 2008 he had
received 5 family visits.
The
applicant stated that his very limited contact with his daughters had
been caused by the fact that the Gdańsk Remand Centre and the
Kraków Remand Centre did not provide satisfactory conditions
for visits by children or minor persons. A visit took place in a room
where visitors were separated from a detainee by a Perspex window
partition and bars, making it impossible for them to have any direct
contact. A visitor, including a child, in order to reach the visiting
area in the ward for dangerous detainees had to walk through the
entire prison, past prison cells situated on both sides of the
corridor. This exposed his daughters to the gaze of inmates and their
reaction to the girls’ presence constituted an exceptionally
traumatic experience for them. During the meeting, they were
separated by a window and bars from their father, which was very
stressful for them and made it impossible for them to have any normal
contact. For that reason, considering that the conditions in which he
was allowed to see his family in prison caused too much distress and
suffering for his daughters, the applicant had to give up receiving
visits from his daughters.
In
the Kraków Remand Centre the visits to “dangerous
detainees” could take place only on Tuesdays. For that reason,
the applicant’s wife was unable to visit him on every occasion
he was entitled to have a monthly visit because she worked from
Monday to Friday.
The
applicant made numerous complaints about poor visiting conditions and
the practical impossibility of having contact with his daughters, but
they were to no avail.
F. Censorship of the applicant’s correspondence
The
applicant’s correspondence with his family was censored. He
supplied three envelopes bearing stamps that read respectively:
“censored on 12 November 2007”, “censored on 8
January 2008”, “censored on 30 January 2008”
and illegible signatures. The first letter was from his daughter,
K.H., and two others from a family member, a certain K[a]. H.
The
applicant did not inform the Court about the contents of the letters
and whether any parts of them had been expunged or otherwise
censored.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
The
relevant domestic law and practice concerning the imposition
of detention on remand (aresztowanie tymczasowe), the
grounds for its extension, release from detention and rules governing
others, so-called “preventive measures” (środki
zapobiegawcze) are set out in the Court’s judgments in the
cases of Gołek v. Poland (no. 31330/02, §§
27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04,
§§ 22-23, 4 May 2006).
B. “Dangerous
detainee” regime
1. General rules
Article
212a of the Code of Execution of Criminal Sentences reads, in so
far as relevant, as follows:
“1. The penitentiary commission shall
classify a detainee as posing a serious danger to society or to the
security of a remand centre. It shall review its decisions on that
matter at least once every three months. The authority at whose
disposal a detainee remains and a penitentiary judge shall be
informed of decisions taken.
2. A detainee, referred to in subparagraph 1,
shall be placed in a designated remand centre’s ward or in a
cell in conditions ensuring increased protection of society and the
security of the remand centre. A penitentiary judge shall be informed
about this placement.
3. A detainee who is suspected of committing
an offence in an organised criminal group or organisation aimed at
committing offences shall be placed in a remand centre in conditions
ensuring increased protection of society and the security of the
remand centre, unless particular circumstances militate against such
placement.
...”
The
penitentiary commission referred to in the above provision 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. Other persons
such as representatives of associations, foundations and
institutions involved in the rehabilitation of prisoners as well as
church or religious organisations – may participate in the work
of the commission in an advisory capacity. 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).
2. Functioning of wards for dangerous detainees in
practice
Article
212b of the Code of Execution of Criminal Sentences lays down
specific arrangements for the detention of a “dangerous
detainee”. It reads, in so far as relevant, as follows:
“1. In a remand centre a detainee
referred to in Article 212a shall be held in the following
conditions:
1) 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, shall be equipped with adequate
technical and protective security systems;
2) cells shall be controlled more often than
those in which detainees [not classified as “dangerous”]
are held;
3) a detainee 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 detainee’s movement around a
remand centre shall be under increased supervision and shall be
restricted to what is strictly necessary;
5) a detainee shall be subjected to a
personal check (kontrola osobista) each time he leaves
and enters his cell;
6) a detainee’s walk shall take place
in designated areas and under increased supervision;
...
8) visits shall take place in designated
areas and under increased supervision ...;
9) a detainee may not use his own clothes or
footwear.
Rules
on the use of handcuffs, fetters and other restraint measures are
laid down in the Cabinet’s Ordinance of 17 September 1990 on
conditions and manner of using direct restraint measures by policemen
(as amended on 19 July 2005) (Rozporządzenie Rady Ministrów
z dnia 17 września 1990 r. w sprawie określenia przypadków
oraz warunków i sposobów użycia przez policjantów
środków przymusu bezpośredniego) (“the
1990 Ordinance”). Paragraph 6 of the 1990 Ordinance reads, in
so far as relevant, as follows:
“1b Handcuffs shall be put on hands
kept on the front. If a person is aggressive or dangerous, handcuffs
may be put on hands kept behind the back.
2b In respect of persons detained or
sentenced to imprisonment, in particularly justified cases joined
shackles designed to be worn on hands and legs may be used.”
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.
A security door remains closed at all times and the entire ward is
continually monitored via close-circuit television. Regular
daily routines (provision of meals, clothes, etc.) are organised with
the use of remote controlled devices, reducing to the minimum
any direct contact between the detainees and the prison guards. The
prison guards wear bullet proof jackets.
Routine
searches of cells are often carried out.
The detainees, whenever outside cells, even within the
“N” ward, wear “joined shackles” or are
handcuffed at all times. They are subjected to a personal check
before leaving cells and on return. They all wear special red
uniforms. They 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. They are not necessarily
subjected to solitary confinement and may share the cell with an
inmate or inmates but, pursuant to paragraph 90 of the 2003
Ordinance, the number of detainees in the cell is limited to 3
persons at the same time.
According
to paragraph 91(1) of the Ordinance of the Minister of Justice of 31
October 2003 on means of protection of organisational units of the
Prison Service (Rozporządzenie Ministra Sprawiedliwości
z dn. 31 października 2003 r. w sprawie sposobów
ochrony jednostek organizacyjnych Służby Więziennej)
(“the 2003 Ordinance”), a dangerous detainee can move
about within the detention facility only singly. In justified cases
such detainees may move in a group of three but under the increased
supervision by the prison guards.
Paragraph
91(4) 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 only
exceptionally and in justified cases be lifted by the Prison
Governor.
A
dangerous detainee cannot perform any work using dangerous tools,
handle devices designed to make dangerous or illegal objects, take up
any work enabling him to set fire, cause an explosion or any danger
to the prison security or work in any place enabling an escape or
uncontrolled contact with other persons (paragraph 92). He is not
allowed to make purchases in the prison shop but must submit his
shopping list to a designated prison guard. The goods are delivered
directly to his cell (paragraph 93).
As
of 2008 there were 16 “N” wards in Polish prisons, which
had the capacity to hold from 17 to 45 detainees.
As of
February 2010 there were 340 “dangerous detainees”
(convicted or detained on remand) in “N” wards.
3. Personal check
Article
116 § 2 of the Code of Execution of Criminal Sentences 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 [prisoner’s] possession. The inspection of
the body, checking of clothes and footwear shall be carried out in a
room, in the absence of third parties and persons of the opposite sex
and shall be effected by persons of the same sex.”
Pursuant
to paragraph 94 § 1 of the 2003 Ordinance:
“1. A [dangerous] detainee shall be
subjected to a personal or cursory check, in particular:
1) before leaving the ward or the workplace
and after his return there;
2) before individual conversations or
meetings with the representatives of the prison administration or
other persons that take place in the ward;
3) immediately after the use of a direct
coercive measure – if it is possible given the nature of the
measure;
4) directly before the beginning of the
escort.”
4. Monitoring of dangerous detainees
By
virtue of the law of 18 June 2009 on amendments to the Code of
Execution of Criminal Sentences (ustawa o zmianie ustawy –
Kodeks karny wykonawczy) (“the 2009 Amendment”)
Article 212b was rephrased and new rules on monitoring detention
facilities by means of close-circuit television were added. The 2009
Amendment entered into force on 22 October 2009.
The
former text of Article 212b (see paragraph 45 above) became paragraph
1 of this provision and a new paragraph 2 was introduced. This new
provision is formulated as follows:
“2. The behaviour of a person in
pre-trial detention referred to in Article 212a § 1 and 4 in a
prison cell, including its part designated for sanitary and hygienic
purposes and in places referred to in paragraph 1 (1) [of this
provision] shall be monitored permanently. The images and sound
[obtained through monitoring] shall be recorded.”
The
above provision belongs to the set of new rules that introduced
monitoring in prisons by means of close-circuit television as a
necessary security measure.
The
new Article 73a reads, in so far as relevant, as follows:
“1. Detention facilities may be
monitored through an internal system of devices recording images or
sound, including close-circuit television.
2. Monitoring, ensuring the observation of a
prisoner’s behaviour, may be used in particular in prison cells
including parts designated for sanitary and hygienic purposes, in
baths, in premises designated for visits, in places of employment of
detainees, in traffic routes, in prison yards, as well as to ensure
observation of the prison grounds outside buildings, including the
lines of external walls.
3. Monitored images or sound may be recorded
with the help of appropriate devices.
4. Monitoring and recording of sound may not
include information subject to the seal of confession or secret
protected by law.
5. Images from close-circuit television
installed in the part of the prison cell designated for sanitary and
hygienic purposes and in baths shall be transmitted to monitors or
other devices referred to in paragraph 3 in a manner making it
impossible to show [detainees’] private parts or their intimate
physiological functions.
...”
Pursuant
to Article 73 (a) §§ 6 and 7, if the recorded material is
not relevant for the prison security or security of an individual
prisoner it shall be immediately destroyed. The Prison Governor
decides for how long the relevant recorded material should be stored
and how it is to be used.
However,
all recorded material concerning a dangerous detainee is stored in
accordance with Article 88c, which reads as follows:
“The behaviour of a [detainee classified as
dangerous] in a prison cell, including its part designated for
sanitary and hygienic purposes and in places referred to in
Article 88b (1) [places and premises designated for work,
education, walking exercise, receiving visits, religious service,
religious meetings and teaching, as well as cultural, educational and
sports activity] shall be monitored permanently. The images and sound
[obtained through monitoring] shall be recorded.”
Before
that amendment, the rules on monitoring detainees were as included in
paragraph 81 § 2 of the 2003 Ordinance, according to which a
prison cell could be additionally equipped with video cameras and
devices enabling listening.
C. Right to visits in detention
1. Situation until 8 June 2010
Pursuant
to Article 217 § 1 of the Code of Execution of Criminal
Sentences, as applicable until 8 June 2010, a detainee was allowed to
receive visitors, provided that he had obtained a visit permission
(“zezwolenie na widzenie”) from the authority at
whose disposal he remained, i.e. an investigating prosecutor (at the
investigative stage) or from the trial court (once the trial had
begun) or from the appellate court (in appeal proceedings). A
detainee was entitled to 1 one hour long visit per month.
According
to paragraphs 2 and 3, a visit should take place in the presence of a
prison guard in a manner making it impossible for a detainee to have
direct contact with a visitor but the authority which issued the
permission may set other conditions. In practice, there are 3 types
of visits: an “open visit”, a “supervised visit”
(widzenie w obecności funkcjonariusza Służby
Więziennej) and a “closed visit”.
An
open visit takes place in a common room designated for visits. Each
detainee and his visitors have at their disposal a table at which
they may sit together and can have an unrestricted conversation and
direct physical contact. Several detainees receive visits at the same
time and in the same room.
A
supervised visit takes place in the same common room but the prison
guard is present at the table, controls the course of the visit, may
restrict physical contact if so ordered under the visit permission,
although his principal role usually is to ensure that the visit is
not used for the purposes of obstructing the proceedings or achieving
any unlawful aims and to prevent the transferring of any
forbidden objects from or to prison.
A
closed visit takes place in a special room. A detainee is separated
from his visitor by a Perspex partition and they communicate through
an internal phone.
Article
217 § 5 lays down specific conditions for receiving visits
by dangerous detainees in the following way:
“In the case of a [dangerous detainee], the
governor of the remand centre shall inform the authority at whose
disposal a detainee 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] direct contact with a detainee
impossible.”
2. Situation as from 8 June 2010
(a) Constitutional Court’s judgment
of 2 July 2009 (no. K. 1/07)
The judgment was given following an application,
lodged by the Ombudsman on 2 January 2007, alleging that Article 217
§ 1 of the Code of Execution of Criminal Sentences was
incompatible with a number of constitutional provisions, including
the principle of protection of private and family life (Article 47 of
the Constitution), the principle of proportionality (Article 31 §
3 of the Constitution), Article 8 of the Convention and Article 37 of
the United Nations Convention on the Rights of the Child. The
Constitutional Court’s judgment became effective on 8 July
2009, the date of its publication in the Journal of Laws (Dziennik
Ustaw).
The Constitutional Court ruled that Article 217 §
1, in so far as it did not specify the reasons for refusing family
visits to those in pre-trial detention, was incompatible with the
above provisions. The court held that this provision did not indicate
with sufficient clarity the limitations on a detainee’s
constitutional right to protection of private and family life. The
court also considered that Article 217 § 1 was incompatible with
the Constitution in so far as it did not provide for a possibility to
appeal against a prosecutor’s decision to refuse a family visit
to those in pre-trial detention.
(b) Amendments to the Code of Execution of
Criminal Sentences
On
5 November 2009 Parliament adopted amendments to Article 217 of the
Code of Execution of Criminal Sentences. In particular, subparagraphs
1a-1f were added. These provisions stipulate that a detainee is
entitled to at least one family visit per month. In addition, they
indicate specific conditions for refusing a family visit to a
detainee and provide an appeal procedure against such a refusal. The
amendments entered into force on 8 June 2010.
D. Monitoring of detainees’ correspondence
The
relevant domestic law and practice concerning the censorship
of prisoners’ correspondence are set out in the Court’s
judgment in the case of Kliza v. Poland, no. 8363/04, §§
29-34, 6 September 2007.
E. Claim for damages for the infringement of personal
rights
1. Liability for infringement of personal rights under
the Civil Code
Article 23 of the Civil Code contains a non-exhaustive
list of so called “personal rights” (dobra
osobiste). This provision states:
“The personal rights of an individual, such as, in
particular, health, liberty, honour, freedom of conscience, name or
pseudonym, image, secrecy of correspondence, inviolability of the
home, scientific or artistic work, [as well as] inventions and
improvements, shall be protected by the civil law regardless of the
protection laid down in other legal provisions.”
Article
24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of
infringement] by a third party may seek an injunction, unless the
activity [complained of] is not unlawful. In the event of
infringement [the person concerned] may also require the party who
caused the infringement to take the necessary steps to remove the
consequences of the infringement ... In compliance with the
principles of this Code [the person concerned] may also seek
pecuniary compensation or may ask the court to award an adequate sum
for the benefit of a specific public interest.”
Under
Article 448 of the Civil Code, a person whose personal rights have
been infringed may seek compensation. That provision, in its relevant
part, reads:
“The court may grant an adequate sum as pecuniary
compensation for non-material damage (krzywda) suffered to
anyone whose personal rights have been infringed. Alternatively, the
person concerned, regardless of seeking any other relief that may be
necessary for removing the consequences of the infringement
sustained, may ask the court to award an adequate sum for the benefit
of a specific public interest ...”
Articles
417 et seq. of the Polish Civil Code provide for the State’s
liability in tort.
Article
417 § 1 of the Civil Code (as amended) provides:
“The State Treasury, or [as the case may be] a
self-government entity or other legal person responsible for
exercising public authority, shall be liable for any damage (szkoda)
caused by an unlawful act or omission [committed] in connection with
the exercise of public authority.”
2. Limitation periods for civil claims based on tort
Article
4421 of the Civil Code sets out limitation periods for
civil claims based on tort, including claims under Article 23 read in
conjunction with Articles 24 and 448 of the Civil Code. This
provision, in the version applicable as from 10 August 2007, reads,
in so far as relevant, as follows:
“1. A claim for compensation for damage
caused by a tort shall lapse after the expiration of three years from
the date on which the claimant learned of the damage and of a person
liable for it. However, this time-limit may not be longer than ten
years following the date on which the event causing the damage
occurred.”
F. Remedies against unreasonable length of proceedings
The
relevant domestic law and practice concerning remedies for the
excessive length of judicial and enforcement proceedings, in
particular the applicable provisions of the 2004 Act, are stated in
the Court’s decisions in the cases of Charzyński
v. Poland,
no. 15212/03 (dec.), §§
12-23, ECHR 2005-V, and Ratajczyk
v. Poland no. 11215/02 (dec.),
ECHR 2005 VIII, and in its the
judgment in the case of Krasuski
v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
III. INTERNATIONAL DOCUMENTS
A. Recommendation Rec(2006)2 of the Committee of
Ministers of the Council of Europe to Member States on the European
Prison Rules (adopted by the Committee of Ministers on 11 January
2006 at the 952nd meeting of the Ministers’
Deputies)
The
recommendation, in its part relating to the application of security
measures reads, in so far as relevant, as follows:
“Security
“51.1 The security measures applied to individual
prisoners shall be the minimum necessary to achieve their secure
custody.
51.2 The security which is provided by physical barriers
and other technical means shall be complemented by the dynamic
security provided by an alert staff who know the prisoners who are
under their control.
51.3 As soon as possible after admission, prisoners
shall be assessed to determine:
a. the risk that they would present to the
community if they were to escape;
b. the risk that they will try to escape either
on their own or with external assistance.
51.4 Each prisoner shall then be held in security
conditions appropriate to these levels of risk.
51.5 The level of security necessary shall be reviewed
at regular intervals throughout a person’s imprisonment.”
Safety
“52.1 As soon as possible after admission,
prisoners shall be assessed to determine whether they pose a safety
risk to other prisoners, prison staff or other persons working in or
visiting prison or whether they are likely to harm themselves.
52.2 Procedures shall be in place to ensure the safety
of prisoners, prison staff and all visitors and to reduce to a
minimum the risk of violence and other events that might threaten
safety.
52.3 Every possible effort shall be made to allow all
prisoners to take a full part in daily activities in safety.
52.4 It shall be possible for prisoners to contact staff
at all times, including during the night.
52.5 National health and safety laws shall be observed
in prisons.”
Special high security or safety measures
“53.1 Special high security or safety measures
shall only be applied in exceptional circumstances.
53.2 There shall be clear procedures to be followed when
such measures are to be applied to any prisoner.
53.3 The nature of any such measures, their duration and
the grounds on which they may be applied shall be determined by
national law.
53.4 The application of the measures in each case shall
be approved by the competent authority for a specified period of
time.
53.5 Any decision to extend the approved period of time
shall be subject to a new approval by the competent authority.
53.6 Such measures shall be applied to individuals and
not to groups of prisoners.”
B. The 2009 Report of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment
From
26 November to 8 December 2009 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 the Poznań
Remand Centre, the Racibórz Prison and the Rawicz Prison. The
CPT report contains a general description of the “N”
regime and a number of specific recommendations aimed at ameliorating
conditions of detention of inmates with “N” category
status 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 91 of the report in
respect of the application of the regime:
“The regime applied to ‘N’ category
prisoners remained very restrictive, similar to the one described in
the report on the 2004 visit. Out-of-cell time consisted essentially
of one hour of outdoor exercise per day (taken either alone or in the
company of a cellmate) and access to a recreation room twice weekly
at Poznań Remand Prison and Racibórz Prison. Inmates
could have their own TV in the cell. They were entitled to a weekly
shower, two visits a month, and two phone calls per month for
sentenced prisoners (at the prosecutor’s discretion for remand
prisoners) at Rawicz and Racibórz prisons, and a
five-minute-daily phone call for sentenced prisoners at Poznań
Remand Prison. Contact with staff was limited to occasional visits by
educators, psychologists and a chaplain.
The CPT remains of the opinion that the regime for ‘N’
status prisoners should be fundamentally reviewed. Solitary
confinement or small-group isolation for extended periods is more
likely to de-socialise than re-socialise people. There should instead
be a structured programme of constructive and preferably out-of-cell
activities, and educators and psychologists should be proactive in
working with "N" status prisoners to encourage them to take
part in that programme and attempt to engage them safely with other
prisoners for at least a part of each day. As stressed in the report
on the visit in 2004, 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.”
In
paragraph 92 of the report the CPT referred to the procedure for the
classification as a “dangerous detainee” and the usually
lengthy application of the “dangerous detainee” status in
the following terms:
“The procedure for allocation and review of ‘N’
status remained unchanged. Despite the presence of regular quarterly
reviews, most prisoners remained in ‘N’ status for
lengthy periods of time. ...
The Committee must stress that placement in an ‘N’
unit should not be a purely passive response to the prisoner’s
attitude and behaviour. Instead, reviews of placement should be
objective and meaningful, and form part of a positive process
designed to address the prisoner’s problems and permit his
(re-)integration into the mainstream prison population. In the CPT’s
opinion, the procedure for allocating a prisoner to ‘N’
status should be refined to ensure that only those who pose an
ongoing high risk if accommodated in the mainstream of the prison
population are accorded this status. Reviews of ‘N’
status should specify clearly what is to be done to assist the
prisoner concerned to move away from the ‘N’ status and
provide clear criteria for assessing development. Prisoners should be
fully involved in all review processes. The Committee reiterates its
recommendation 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
paragraph 94, the CPT expressed the following opinion regarding the
practice of routine strip-searches:
“The CPT also has serious misgivings about the
systematic practice of obliging ‘N’ status prisoners to
undergo routine strip-searches whenever entering or leaving their
cells. The prisoners concerned had to undress completely, and squat
fully naked in view of the guards and any prisoner(s) sharing the
cell while all their clothes were examined.
In the CPT’s opinion, such a practice could be
considered as amounting to degrading treatment. The Committee
recommends that strip-searches only be conducted on the basis of a
concrete suspicion and in an appropriate setting and be carried out
in a manner respectful of human dignity.”
The CPT gave the following general recommendations to
the Polish Government in respect to prisoners classified as
“dangerous” (“N” status):
“- the Polish authorities to review the
regime applied to ‘N’ status prisoners and to develop
individual plans aimed at providing appropriate mental and physical
stimulation to prisoners (paragraph 91);
- 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 92);
- strip-searches to be conducted only on the
basis of a concrete suspicion and in an appropriate setting, and to
be carried out in a manner respectful of human dignity (paragraph
94).
C. The Polish Government’s response to the CPT’s
report
The
Polish Government’s response to the CPT report was published on
12 July 2011.
In
respect of the recommendation that the Polish authorities should
revise the regime applied to “N” status prisoners and
develop individual plans aimed at providing inmates with appropriate
psychological and physical stimulation (paragraph 91), they stated:
“Adult[s] ... classified in the category of
so-called dangerous offenders have a possibility of selecting a
system in which they serve their sentence of imprisonment, i.e.
programmed impact or an ordinary system. The above does not apply to
sentenced juvenile offenders who are classified as dangerous and who
obligatorily serve their sentence in the system of programmed impact.
In an ordinary system, a convict may use employment available at the
penitentiary institution, as well as education and
cultural-educational and sports classes. As far as such convicts are
concerned, no plans are made for application of the individual
programme of impact. The individual programme of impact is prepared
in co-operation with the convict who declared that he wishes to serve
his sentence in the system of programmed impact, which anticipates
active participation of the convict in the process of
re-socialization by means of fulfilment of tasks imposed upon him as
part of the programme which are aimed at solving the problems
constituting the grounds for the offences he committed.
Dangerous convicts qualified in a therapeutic system
requiring specialized impact are presented with individual
therapeutic programmes preceded by diagnosis, which encompasses:
1) a description of the causes of the event;
2) a description of irregularities in the
area of cognitive, emotional and behavioural processes;
3) characteristics of the actual state of
their psychological and physical condition;
4) a description of the problem constituting
the grounds justifying delegation for the therapeutic system;
5) description of individual problems of the
convict;
6) evaluation of motivation to participate in
implementation of the individual therapeutic programme;
7) indication of positive features if
personality and behaviour of the convict.
When developing an individual therapeutic programme, the
following should be specified:
1) the scope of the conducted activities;
2) purpose of impact, possible to be
undertaken in the conditions of a therapeutic ward or outside such
ward, taking into account the properties of the convict;
3) methods of specialized impact;
4) criteria for implementation of an
individual therapeutic programme.
Convicts qualified in the category of so-called
dangerous are subjected to penitentiary impact with limitations
deriving from the fact of causing by them of serious social threat or
a serious threat to security of the institution. Moreover, they are
subjected to impact whose purpose is to, in particular, decrease
emotional tensions, as well as limitation of tendencies for
aggressive or self-aggressive behaviours. In the individual programme
of impact and the individual therapeutic programme conducted for him,
methods and measures are specified which are aimed at mental and
physical stimulation of the convict. It should also be emphasised
that each inmate, including dangerous offender, exhibiting symptoms
of worsening of his mental conditions is covered by psychological and
psychiatric help. Moreover, dangerous inmates are also covered by
intensive psychological supervision for the purpose of elimination of
tensions resulting from an increased isolation.
The Polish prison system developed rules of organization
and conditions of conduct of penitentiary impact against convicts,
persons under detention on remand and punished persons who pose
serious social danger or serious danger for security of the
penitentiary institution or a detention on remand centre, kept in
conditions ensuring increased security of the community and the
security of the penitentiary institution. Such solutions are aimed at
intensification and unification of impact against dangerous inmates,
and in particular:
- directing the penitentiary work on
preventing of negative consequences of limitation of social contacts
by organization and initiation of desirable activity as part of
cultural-educational and sports activities, re-adaptation programmes;
- undertaking measures connected with
maintenance of mental hygiene, including the reduction of the level
of stress and aggression;
- a need of allowing the inmate to commence
or continue education (in particular in case of juvenile offenders);
- undertaking of employment in the division;
- impact based on educational and
prophylactic programmes.
Recommendations of the Committee concerning development
of individual programmes for dangerous convicts have been taken into
account and are implemented according to the provisions binding in
this regard.”
Referring
to the recommendation that the Polish 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 do, in fact, require to be qualified in such category (paragraph
92), the Government responded:
“In the Polish penal law, the basic legal act
specifying criteria of qualifying inmates creating serious social
danger or serious danger to security of the institution is the [Code
of Execution of Criminal Sentences].
The aforementioned inmates are placed in a designated
division or cell of a penitentiary institution or an investigation
detention centre in conditions ensuring increased protection of the
community and the security of the penitentiary unit. An authority
authorized to verify a necessity of further stay of the inmate in a
designated division or cell is a penitentiary commission. The
penitentiary commission is obliged to verify its decisions in this
regard at least once every three months. Decisions taken by the
penitentiary commission shall be each time notified to the
penitentiary judge, and in the event of detention on remand, also to
the authority at whose disposal the inmate is. The penitentiary
commission performed an inquisitive and, in every case, individual
analysis of justification of the request for qualification, as well
as verifies a necessity of continued stay of the inmates in delegated
division or cell.
Moreover, attention should be drawn to the fact that
each decision of the authority executing the judgement according to
Art. 7 of the [Code of Execution of Criminal Sentences] is subject to
an appeal by the inmate.
Summing up the above, we can state that such frequent
verification of this category of inmates, an analysis of behaviours
and a legal situation gives a guarantee of real evaluation of the
situation of the inmate and possible benefits deriving from continued
application against him of an extended system of protection.”
Lastly,
in regard to the recommendation that a strip-search should be
conducted only on the basis of a concrete suspicion and under
appropriate conditions, as well as with respect for human dignity
(paragraph 94 of the Report), the Government stated:
“The principles and procedures of performing a
personal search of the inmate and other persons in penitentiary
institutions and investigation detention centres are regulated in the
[Code of Execution of Criminal Sentences] and the [Ordinance of the
Minister of Justice of 31 October 2003 on means of protection of
organisational units of the Prison Service]. According to these
provisions, personal check-up consists of examination of the body and
checking clothes, underwear and shoes, including any objects in
possession of the convict. Inspection of the body and checking-up
clothes and shoes is each time performed by officers of the Prison
Service in a separate room, in absence of any third parties and
persons of a different sex, and is performed by persons of the same
sex. The conducted control must, on many occasions have a prevention
character, but it is always performed with respect for human dignity,
applying the principle of humanitarianism and legality. The control
is conducted for the purpose of finding dangerous and forbidden
products and preventing an escape or in other justified cases.
Departure from these rules would entail a realistic threat to
security of the penitentiary unit and inmates kept therein.”
THE LAW
I. THE COURT’S ASSESSMENT OF FACTS
The
account of the facts in the present case was provided by the
applicant, who also supplied various documents in support of his
complaints.
The
Government did not submit observations on the admissibility and
merits of the application. Nor did they make any comments on the
applicant’s claims for just satisfaction. In that regard, the
Court would also note that the Government asked, and were granted by
the President of the Chamber, extensions of the time-limits set for
submission of their observations and, subsequently, their comments on
the applicant’s claims for just satisfaction.
In
the circumstances, the Court will examine the admissibility and
merits of the application solely on the basis of the applicant’s
submissions and the documentary evidence produced by him (see
Fedotov v. Russia, no. 5140/02, § 61, 25 October 2005;
Kostadinov v. Bulgaria, no. 55712/00, § 50, 7
February 2008; and Wasilewska and Kałucka v. Poland,
nos. 28975/04 and 33406/04, § 34, 23 February 2010).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE IMPOSITION OF THE “DANGEROUS DETAINEE”
REGIME
The
applicant complained that the prolonged
imposition of the “dangerous detainee” regime was in
breach of Article 3 of the Convention. He referred, in particular, to
his excessively long confinement in a solitary cell and humiliating
strip searches with deep knee bends, to which he had been, and
still was, subjected daily.
Article
3 of the Convention reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
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 arguments
The
applicant maintained that his prolonged solitary
confinement and complete segregation from other detainees, as
well as his excessive isolation from his family and the outside world
put an exceptionally severe emotional and mental strain on him. For
many years he had to undergo daily, on occasions several times a day,
humiliating strip-searches whenever he left or entered his cell,
despite the fact that all his movements within the cell were
monitored by means of close-circuit television. Outside the ward he
was always supervised by prison guards.
In
the applicant’s opinion, the prolongation of the regime had
been a purely automatic exercise, which had not been based on any
genuine review of his personal circumstances and behaviour in
detention. The fact that he had been suspected of offences involving
organised crime had sufficed for the authorities to extend the
imposition of the “N” status indefinitely and his
subsequent conduct in prison had not been considered at all. In that
regard, he stressed that he had never had any record of bad or
problem behaviour in prison. Nor had he ever been subjected to a
disciplinary penalty for a breach of the prison rules or prison
order.
The
applicant concluded that the treatment to which he was subjected
under the “dangerous detainee” regime” amounted to
treatment contrary to Article 3 of the Convention and asked the
Court to find a breach of that provision.
2. The Court’s assessment
(a) General principles deriving from the
Court’s case-law
Article
3 of the Convention enshrines one of the most fundamental values of
democratic societies. Even in the most difficult of circumstances,
such as the fight against terrorism or crime, the Convention
prohibits in absolute terms torture or inhuman or degrading treatment
or punishment, irrespective of the conduct of the person concerned.
The nature of the offence allegedly committed by the applicant is
therefore irrelevant for the purposes of Article 3 (see Labita v.
Italy [GC], no. 26772/95, § 119, ECHR 2000-IV;
Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001;
Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005- ..., §
179; and Ramirez Sanchez v. France [GC], no. 59450/00,
ECHR-2006-..., § 115 et seq., with further references).
Ill-treatment
must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this minimum depends on all the
circumstances of the case, such as the duration of the treatment, its
physical or mental effects and, in some cases, the sex, age and state
of health of the victim (see, for instance, Kudła v. Poland
[GC], no. 30210/96, ECHR 2000-IX, § 91).
The
Court has considered treatment to be “inhuman” because,
inter alia, it was premeditated, was applied for hours at a
stretch and caused either actual bodily injury or intense physical or
mental suffering. It has deemed treatment to be “degrading”
because it was such as to arouse in the victims feelings of fear,
anguish and inferiority capable of humiliating and debasing them. On
the other hand, the Court has consistently stressed that the
suffering and humiliation involved must in any event go beyond that
inevitable element of suffering or humiliation connected with a given
form of legitimate treatment or punishment (see, among other
authorities, Kudła cited above, § 92, with further
references). The question whether the purpose of the treatment was to
humiliate or to debase the victim is a further factor to be taken
into account, but the absence of any such purpose cannot conclusively
rule out a violation of Article 3 (see Van der Ven v. the
Netherlands, no. 50901/99, ECHR 2003-II, § 48).
Measures
depriving a person of his liberty often involve an element of
suffering or humiliation. However, it cannot be said that detention
in a high-security prison facility, be it on remand or following a
criminal conviction, in itself raises an issue under Article 3 of the
Convention. Public-order considerations may lead the State to
introduce high security prison regimes for particular categories
of detainees and, indeed, in many State Parties to the Convention
more stringent security rules apply to dangerous detainees. These
arrangements, intended to prevent the risk of escape, attack or
disturbance of the prison community, are based on separation of such
detainees from the prison community together with tighter controls
(see, for instance, Ramirez Sanchez, cited above, §§
80-82 and 138; Messina (no. 2) v. Italy, no. 25498/94, ECHR
2000-X, §§ 42-54; Labita, cited above, §§
103-109; Rohde v. Denmark, no. 69332/01, 21 July 2005, §
78; Van der Ven, cited above, §§ 26-31 and 50; and
Csüllög v. Hungary, no. 30042/08, 7 June
2011, §§ 13-16).
While,
as stated above, those special prison regimes are not per se
contrary to Article 3, under that provision the State must ensure
that a person is detained in conditions which are compatible with
respect for his human dignity, that the manner and method of the
execution of the measure do not subject him to distress or hardship
of an intensity exceeding that unavoidable level of suffering
inherent in detention and that, given the practical demands of
imprisonment, his health and well-being are adequately secured (see
Kudła, cited above, §§ 92-94; and Van
der Ven, cited above, § 50).
The
Court, making its assessment of conditions of detention under Article
3, will take account of the cumulative effects of those conditions,
as well as the specific allegations made by the applicant (see Dougoz
v. Greece, no. 40907/98, ECHR 2001-II, § 46). In that
context, it will have regard to the stringency of the measure, its
duration, its objective and consequences for the persons concerned
(see Van der Ven, cited above, § 51 and paragraph
159 above).
Although
the prohibition of contacts with other prisoners for security,
disciplinary or protective reasons can in certain circumstances be
justified, solitary confinement, even in cases entailing only
relative isolation, cannot be imposed on a prisoner indefinitely. It
would also be desirable for alternative solutions to solitary
confinement to be sought for persons considered dangerous and for
whom detention in an ordinary prison under the ordinary regime is
considered inappropriate (see Ramirez Sanchez, cited above, §§
145-146).
Furthermore,
in order to avoid any risk of arbitrariness, substantive reasons must
be given when a protracted period of solitary confinement is
extended. The decision on the continuation of the measure should thus
make it possible to establish that the authorities have carried out a
reassessment that takes into account any changes in the prisoner’s
circumstances, situation or behaviour. The statement of reasons will
need to be increasingly detailed and compelling the more time goes
by. Indeed, solitary confinement, which is a form of “imprisonment
within the prison”, should be resorted to only exceptionally
and after every precaution has been taken, as specified in paragraph
53.1 of the European Prison Rules adopted by the Committee of
Ministers on 11 January 2006 (see Öcalan, cited above,
§ 191; Ramirez Sanchez, cited above, §§
139 and 145-146; Messina (no.2) v. Italy (dec), no. 25498/94,
ECHR 1999-V, with further references; and Csüllög v.
Hungary, cited above, § 31).
(b) Application of the above principles in
the present case
The
Court would first refer to the law governing the special regime.
Pursuant
to Article 212a § 3, if a detainee is suspected of an
organised crime offence, the authorities have to apply the
regime and, consequently, all the security measures enumerated in
Article 212b, unless particular circumstances militate against this
(see paragraphs 44-45 above). The legal formulation of the rule and
exceptions to it could, in the Court’s view, generally result
in an over-inclusive regime. This conclusion goes hand in hand with
the findings of the 2009 CPT report, which underlined that the
procedure for allocating a prisoner “N” status fails to
ensure that only those who pose an ongoing high risk if accommodated
in the mainstream prison population are accorded this status (see
paragraph 72 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.
However,
it is not the Court’s role to assess the application of the
restrictions under the regime in the abstract but to ascertain
whether their cumulative effects on the applicant were incompatible
with Article 3 of the Convention.
Turning
to the facts of the present case, the Court notes that the decision
of 22 July 2004 imposing the “dangerous detainee” regime
on the applicant was a legitimate measure, warranted by the fact that
in one of two parallel criminal proceedings conducted against him at
that time, namely in case no. III K 120/06 before the Kraków
Regional Court, he had been charged with drug-related offences
committed in an armed organised criminal group (see paragraphs 14 and
23 above). It was not, therefore, unreasonable on the part of the
authorities to consider that, for the sake of ensuring prison
security, he should be subjected to tighter security controls,
involving increased and constant supervision of his movements within
and outside his cell, limitations on his contact and communication
with the outside world and some form of segregation from the prison
community.
As
the Court has already held in similar cases concerning organised
crime, in particular those lodged by persons linked to Mafia-type
organisations, the existing, continuing danger that an applicant may
re establish contact with criminal organisations is an element
that may justify applying even harsh isolation measures in order to
exclude such a possibility (see, for instance, Messina (no.2) (dec.),
cited above). In the applicant’s case that risk had to be taken
into account and further increased in 2005, following his conviction
in case no. III K 120/06 and, subsequently, in January 2006, when the
charges of leading an armed organised criminal group involved in,
among other things, drug-trafficking, bribery of public officials,
extortion, kidnapping and arms and ammunition trafficking were laid
against him . He was convicted of these offences by the
first-instance court apparently in 2009 (see paragraphs 15-17 above).
Also,
the monitoring of a detainee’s behaviour via close-circuit
television at all times, as in the present case, although certainly
intrusive, is not per se incompatible with Article 3. This
measure serves the purposes of both ensuring prison security and
protecting the detainee from the risk of pressure or even physical
attack from the criminal community which, in the context of organised
crime, cannot be excluded.
However,
for the reasons stated below, the Court cannot accept that the
continued, routine and indiscriminate application of the full range
of measures that were available to the authorities under the “N”
regime for – as on the date of the adoption of this judgment –
7 years and 9 months was necessary for maintaining prison security
and compatible with Article 3 of the Convention.
To
begin with, since 22 July 2004 to date the applicant has continually
been held in a solitary cell at a special high-security ward
separated from the rest of the prison. Throughout this time he has
been completely segregated from other inmates. All his repeated,
numerous requests for placing another person in his cell were to no
avail (see paragraphs 23 and 28-29 above). While he must have
maintained a degree of daily contact with the prison staff, even if
only for the sake of a daily walk (see paragraphs 30 and 45-47
above), his opportunities of communication, if only superficial, with
other people in prison was very seriously reduced, nearly
non-existent.
It is
true that he received family visits. Nonetheless, at least between
July 2004 and the end of 2008 they only took place 5 to 10 times a
year and most 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 (see
paragraphs 31-38 and 58-59 above). The Court does not overlook the
ever present need to prevent any flow of illicit information between
a gang leader and the outside world. Nevertheless, in the Court’s
view, this – again 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 and emotional well being.
As
the CPT pointed out in its 2009 report, not only was the regime
itself very restrictive but also the Polish authorities in general
failed to provide “N” ward inmates with appropriate
stimulation and, in particular, with adequate human contact (see
paragraphs 71-74 above). In that report the authorities were
explicitly criticised for not having developed “a structured
programme of constructive and preferably out-of-cell activities”.
It was recommended that “educators and psychologists should be
proactive in working with “N” status prisoners to
encourage them to take part in that programme and attempt to engage
them safely with other prisoners for at least a part of each day”
(see paragraph 71 above). The CPT also pointed out that “placement
in an “N” unit should not be a purely passive response to
the prisoner’s attitude and behaviour” (see paragraph 72
above).
In
the Court’s view, the circumstances of the present case 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,
solitary walk in the segregated area. As noted above (see paragraph
96 above), the applicant repeatedly brought the issue of his
excessively long solitary confinement to the authorities’
attention. For reasons which were never explained in the relevant
decisions, they did not consider it fit to place another inmate with
him – be it for a short or trial term – even though this
solution was explicitly provided under the 2003 Ordinance (see
paragraphs 24-28 and 47 above).
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, cited above, § 30, with further references).
Considering the duration of the regime imposed on the applicant and
the very limited possibilities available to him for physical movement
and human contact, the Court has no doubt that his prolonged solitude
must have caused him serious distress and mental suffering.
The
negative psychological and emotional effects of his increased social
isolation were aggravated by the routine application of other special
security measures, namely the handcuffing and strip searches.
The
Court is not convinced that handcuffing the applicant with his hands
kept behind his back 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 are expressly obliged to carry out
pursuant to Article 212b § 1(5), handcuffing a detainee with his
hands behind the back should only take place if “a person is
aggressive or dangerous” (see paragraph 45 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
and other means of direct and indirect control of his behaviour were
at the same time applied.
The Court also has misgivings in respect to the
personal check to which the applicant was likewise subjected daily,
or even several times a day, whenever he left or entered his cell.
The Court is aware of the necessity to prevent a gangster from
smuggling objects and/or communications out of his cell.
Nevertheless, 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 he could move around
the remand centre only by himself under a permanent and direct
supervision of at least 2 prison guards and that his mobility was
restricted due to his being handcuffed – in a stressful
position with hands behind his back – all the time. In
addition, his behaviour in the cell, including his use of sanitary
facilities, was constantly monitored via close circuit
television (see paragraphs 24, 26, 30, 47, 49 and 51-56 above).
In
this connection, the Court would again refer to the 2009 CPT report
in which it expressed its considerable concern about the practice of
strip searches applied to persons classified as dangerous
detainees, in the following way: “[t]he CPT also has serious
misgivings about the systematic practice of obliging “N”
status prisoners to undergo routine strip-searches whenever entering
or leaving their cells. The prisoners concerned had to undress
completely, and squat fully naked in view of the guards and any
prisoner(s) sharing the cell while their clothes were examined. In
the CPT’s opinion, such a practice could be considered
amounting to degrading treatment.” (see paragraph 73 above).
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 that systematic, intrusive and
exceptionally embarrassing checks performed on the applicant daily,
or even several times a day, were necessary to ensure safety in
prison. 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, despite the serious charges against him, he
apparently did not display any disruptive, violent or otherwise
dangerous behaviour in prison, the Court considers that the practice
of daily strip-searches applied to him for 7 years and some 9 months,
combined with his nearly complete social isolation, 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 de Ven, cited above, § 62 and paragraph
86 above).
Lastly, the Court would add that due to the strict,
rigid rules for the imposition of the special regime and the vaguely
defined “exceptional circumstances” justifying its
discontinuation laid down in Article 212a § 3 of
the Code of Execution of Criminal Sentences, the authorities, in
extending that regime, were not in fact obliged to consider any
changes in the applicant’s personal situation and, in
particular, the combined effects of the continued application of the
impugned measures (see paragraphs 44 and 93 above). Those rules –
and this was also noted by the CPT – do not provide for
adequate solutions enabling the authorities, if necessary, to adjust
the regime to individual conduct or to reduce the negative impact of
social isolation (see paragraphs 44-47 and 71-72 above).
In
the present case the authorities did not ever refer to any likelihood
of the applicant’s escaping in the event of his being detained
under a less strict regime. However, neither the apparent absence of
such risk, nor the adverse emotional and mental effects of isolation
as alleged by the applicant, were considered circumstances sufficient
to justify lifting any of the strict measures applied under the
regime (see paragraphs 24-29 above). In that context, the Court would
again recall that, as stated above (see paragraph 92 above), in cases
involving solitary confinement the authorities should act with
special caution in imposing that measure and should examine carefully
all the specific circumstances militating for or against its
continuation.
In
contrast, it emerges from the relevant decisions that, apart from the
original grounds based essentially on the admittedly very serious
nature of the charges against the applicant, which included the
leading of an armed organised criminal group involved in violent
offences and on his “leadership qualities and tendency to
dominate the others”, as well as his “serious lack of
moral character”, subsequently the authorities did not find any
other reasons for classifying him as a “dangerous detainee”
(see paragraphs 23-27 above). While those circumstances could justify
the imposition of the “N” regime on the applicant for a
certain, even relatively long, period (see paragraph 93 above), they
could not suffice as a sole justification for its prolonged
continuation. As pointed out by the applicant (see paragraph 84
above), with the passage of time the procedure for review of his
“dangerous detainee” status became a pure formality
limited to a repetition of the same grounds in each successive
decision.
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 in their entirety
necessary to attain the legitimate aim pursued by the authorities.
There
has accordingly been a violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE APPLICANT’S
DETENTION IN CASE No. IV K 200/05
Under
Article 5 § 3 of the Convention the applicant complained that
the length of his pre-trial detention was excessive.
Article
5 § 3, in so far as relevant, reads as follows:
“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.”
A. Period to be taken into consideration
On
14 July 2004 the applicant was arrested on suspicion of drug
smuggling (see paragraph 6 above). On 13 June 2005, when he was still
held in pre-trial detention in case no. IVK 200/05, he started to
serve the sentence of 15 years’ imprisonment following his
conviction for drug related offences committed in an organised
criminal group (see paragraphs 8 and 14 above). Accordingly, his
detention for the purposes of Article 5 § 3 of the Convention
lasted 11 months.
B. The applicant’s submissions
The
applicant maintained that the length of his pre-trial detention had
been excessive and unreasonable. He stressed that the national courts
had failed to give valid reasons for keeping him in custody for the
relevant period.
C. The Court’s assessment
1. General principles deriving from the Court’s
case-law
The
Court recalls that the general principles regarding the right “to
trial within a reasonable time or to release pending trial, as
guaranteed by Article 5 § 3 of the Convention were stated in a
number of its previous judgments (see, among many other authorities,
Kudła v. Poland, cited above, § 110 et seq.;
and McKay v. the United Kingdom [GC], no. 543/03, §§
41-44, ECHR 2006-..., with further references).
2. Application of the above principles in the present
case
In
their detention decisions the authorities, in addition to the
reasonable suspicion – supported by evidence taken from
witnesses – that the applicant had committed the offences with
which he had been charged, relied on the need to secure the course of
the proceedings. In that context, they attached importance to the
justified risk that the applicant would attempt to obstruct the
process of obtaining evidence, in particular as the case involved a
large number of accomplices who had not yet been apprehended, and the
anticipated, severe penalty (see paragraphs 6 8 above).
The
Court accepts that, regard being had to the nature of the offence
with which the applicant was charged and apparently considerable
number of other persons involved but not yet heard, the authorities
rightly assumed that holding him in custody was necessary to ensure
that the investigation followed its proper course. While during the
period to be examined under Article 5 § 3 the charges against
the applicant did not yet include organised crime (see paragraphs 6
and 9 above), the prosecution certainly faced a difficult task of
obtaining and securing voluminous evidence from many sources and
determining the respective roles played by each suspect. In the
nature of things, in cases where, as in the present one, numerous
persons are involved, the risk that a detainee, if released, might
bring pressure to bear on witnesses or accomplices or otherwise
obstruct the proceedings must be considered a valid argument
militating in favour of imposing detention, rather than other
measures. This ground, even taken together with other reasons
advanced by the authorities, might not by itself have been enough to
justify a prolonged continuation of detention on remand. However,
having regard to the fact that the period in question amounted to 11
months, the Court is satisfied that there were relevant and
sufficient grounds for keeping the applicant in custody.
Furthermore,
it is apparent that despite the obvious complexity of the case, the
authorities displayed due diligence in the conduct of the
proceedings. The investigation lasted some 11 months only and there
is no indication of any delay or lack of procedural activity on their
part (see paragraphs 6-9 above).
It follows that this part of the application is
inadmissible as being manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS IN CASE No. IV
K 200/05
The
applicant further complained under
Article 6 § 1 of the Convention, that the length of the criminal
proceedings against him had been excessive.
Article
6, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. The applicant’s arguments
The
applicant maintained that the proceedings had been unreasonably
lengthy and asked the Court to find a violation of Article 6 § 1
of the Convention.
B. The Court’s assessment
1. General principles deriving from the Court’s
case-law
The
Court will assess the reasonableness of the length of the proceedings
in the light of the particular circumstances of the case and having
regard to the criteria laid down in its case-law, in particular the
complexity of the case and the conduct of the applicant and of the
relevant authorities. On the latter point, what is at stake for the
applicant has also to be taken into account (see, among many other
authorities, Kudła, cited above, § 124).
2. Application of the above principles in the present
case
(a) Period to be taken into consideration
The
proceedings began on 14 July 2004, when the applicant was arrested
(see paragraph 6 above). The applicant described the course of the
trial until his first-instance conviction, which was pronounced on
30 December 2008 (see paragraphs 6-12 above) but failed to
inform the Court whether, and if so when, the proceedings had
terminated (see paragraph 13 above). In that context, it is
recalled that, pursuant to Rule 44C of the Rules of Court, where
a party fails to divulge relevant information of its own motion or
otherwise fails to participate effectively in the proceedings, the
Court may draw such inferences as it deems appropriate.
In
the present case, having regard to all the material in its
possession, the Court finds it appropriate to assume that the
proceedings terminated around the end of 2009 or the beginning of
2010 at the latest. In consequence, their length is deemed to have
amounted to some 5 years and 6 months at two court instances.
(b) The Court’s conclusion
As
already noted above, the case was complex. It involved charges of
organised crime, which inevitably made the task of trying the accused
considerably more difficult than in an ordinary criminal case (see
paragraphs 9 and 107-108 above). Assessing the authorities’
conduct from the point of view of Article 5 § 3, the Court has
already found that, despite the nature of the case, the investigation
was terminated without undue delay (see paragraph 109 above). It
comes to the same conclusion in respect of the court proceedings. The
trial at first instance lasted from 16 June 2005 to 30 December
2008, that is to say, for 3 years and some 6 months (see paragraphs 9
and 12 above). Given that during that time the Regional Court listed
98 hearings, of which only a few were adjourned for valid reasons,
that the hearings were held at regular intervals and that there were
no periods of inactivity (see paragraphs 11 and 21 above), the Court
finds that the first-instance proceedings were terminated within a
“reasonable time”. The same is true in regard to the
appellate proceedings which, as assumed above, ended within some 1
year, which cannot be considered an excessive period.
It
follows that this part of the application is inadmissible as being
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON
ACCOUNT OF RESTRICTIONS ON CONTACT WITH THE FAMILY DURING THE
APPLICANT’S DETENTION
The
applicant further complained that the
visiting regime resulting from his “dangerous detainee”
status and the conditions in which visits from his family, in
particular his daughters, took place practically deprived him of his
family life in detention and amounted to a violation of Article 8 of
the Convention.
Article
8, in its relevant part, 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.”
...
A. Admissibility
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 arguments
The
applicant maintained that for many years following his arrest on 14
July 2004 he had been practically unable to maintain basic contact
with his family, in particular with his daughters. He in essence
referred to his detention in the Gdańsk Remand Centre and the
Kraków Remand Centre, stressing that his very limited contact
with the daughters had been caused by the fact that those detention
facilities had not provided satisfactory conditions for visits by
children or minor persons. Those conditions, in his view, had been
utterly unacceptable.
A
visitor, including a child, in order to reach the visiting area in
the ward for dangerous detainees had to walk through the entire
prison, past prison cells situated on both sides of the corridor.
This exposed his daughters to the close – and especially
unwelcome and disagreeable for females of their age – view of
prison life and to the possible harassing, if only verbal, by
inmates. It had been shocking even for an adult person and had
constituted an exceptionally traumatic experience for young girls.
Moreover,
visits took place in a room where visitors had been separated from a
detainee by a Perspex window partition and bars, making it impossible
for them to have any direct contact. During the meeting, the
daughters were separated by a window and bars from the applicant,
which had been very stressful for them and made it impossible for
them to have any normal contact. For that reason, seeing that the
conditions in which he had been allowed to meet the daughters had
caused too much distress and emotional suffering for them, the
applicant had to give up receiving visits from them.
In
addition, he could not take advantage of all the visits from his wife
to which he had been entitled because the authorities had imposed a
very inflexible timing on them. For instance, in the Kraków
Remand Centre the visits to “dangerous detainees” could
take place only on Tuesdays. This made it impossible for his wife to
visit him on every occasion because she worked from Monday to Friday.
2. The Court’s assessment
(a) General principles deriving from the
Court’s case-law
Detention,
likewise any other measure depriving a person of his liberty, entails
inherent limitations on his private and family life. However, it is
an essential part of a detainee’s right to respect for family
life that the authorities enable him or, if need be, assist him in
maintaining contact with his close family (see Messina (no. 2),
cited above, § 61). There is no question that a prisoner, or a
detainee, forfeits his Convention rights merely because of his
status; a person retains his or her Convention rights in detention so
that any restrictions on those rights must be justified in each
individual case. This justification can flow, inter alia, from
the necessary and inevitable consequences of imprisonment or from an
adequate link between the restriction and the circumstances of the
prisoner in question. (see, muatis mutandis, Hirst (no. 2)
v. the United Kingdom [GC], no. 74025/01, ECHR
2005-IX, § 69; and Dickson v. the United Kingdom [GC],
no. 44362/04, ECHR 2007-..., §§ 67-68).
Such
restrictions as limitations put on the number of family visits,
supervision of those visits and, if so justified by the nature of the
offence, subjection – as happened in the present case –
of a detainee to a special prison regime or special visit
arrangements constitute an interference with his rights under Article
8 but are not, by themselves, in breach of that provision (see
Messina (no.2), cited above,§§ 71-74)
Nevertheless,
any restriction of that kind must be applied “in accordance
with the law”, must pursue one or more legitimate aims listed
in paragraph 2 and, in addition, must be justified as being
“necessary in a democratic society” (ibid. §§
62-63; and Klamecki (no. 2) v. Poland, no 31583/96, 3
April 2003, § 144, with further references).
The
notion of “necessity” for the purposes of Article 8 means
that the interference must correspond to a pressing social need, and,
in particular, must remain proportionate to the legitimate aim
pursued. Assessing whether an interference was “necessary”
the Court will take into account the margin of appreciation left to
the State authorities but it is a duty of the respondent State to
demonstrate the existence of the pressing social need behind the
interference (see, among other examples, McLeod v. the United
Kingdom, judgment of 23 September 1998, Reports of Judgments
and Decisions 1998 VII, p. 2791, § 52; and Bagiński
v. Poland no. 37444/97, 11 October 2005, § 89, with further
references).
Furthermore,
although the object of Article 8 is essentially that of protecting
the individual against arbitrary interference by the public
authorities, it does not merely compel the State to abstain from such
interference. In addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect
for private and family life. These obligations may involve the
adoption of measures designed to secure respect for private and
family life even in the sphere of the relations of individuals
between themselves. The boundaries between the State’s positive
and negative obligations under Article 8 do not lend themselves to
precise definition. The applicable principles are nonetheless
similar. In particular, in both instances regard must be had to the
fair balance to be struck between the competing interests (see
Dickson, cited above, § 70, with further references).
(b) Application of the above principles in
the present case
(i) Nature of the alleged violation
The
applicant did not allege that at any stage of his detention he had
been arbitrarily refused a family visit. This makes it unnecessary
for the Court to analyse whether the restrictions complained of were
imposed “in accordance with the law” in the light of its
previous judgments finding that unreasoned refusals of family visits
had not met that requirement, based on the Constitutional Court’s
case-law (see paragraphs 60-62 above and, among other examples,
Wegera v. Poland, no. 141/07, 19 January 2010, §§ 74-75).
The
gist of the applicant’s Convention claim is not mainly the
imposition of limitations per se on his contact with the
family but, rather, his inability to take full advantage of visits
already granted or available to him each month because of, first, the
authorities’ failure to secure satisfactory conditions for
meetings with his daughters and, second, the specific arrangements
for visits, which on most occasions excluded his direct physical
contact with the visitors and, lastly, the prison schedule for visits
(see paragraphs 116 and 118-120 above).
Having
regard to the foregoing, the Court does not consider it necessary to
categorise strictly its examination of the complaint as being under
the head of the State’s positive obligations or the head of the
State’s negative duty to refrain from an unjustified
interference with the applicant’s right to respect for his
family life. The Court takes the view that the core issue before it
is whether a fair balance was struck between the competing public and
private interests involved (see Dickson, cited above, § 71).
(ii) Whether a fair balance was struck
between the requirements of the applicant’s detention under the
“dangerous detainee” regime and his right to respect for
his family life
The
applicant’s complaint about the hindrance to his right to
visits concerns events in two detention facilities: the Gdańsk
Remand Centre, where he was held from an unspecified date shortly
after his arrest on 14 July 2004 to 22 January 2009, with a few
months’ break, and the Kraków Remand Centre where he was
held from 22 January to 9 June 2009. Accordingly, the period under
the Court’s consideration amounts to nearly 5 years, less
those few months in 2008 that he spent in the Warszawa Mokotów
Remand Centre (see paragraphs 22 and 119 above).
The
Court notes that, despite the fact that the applicant was entitled to
1 visit per month, he in reality received regularly monthly visits
only during the first six months following his arrest in 2004, when
they took place every month (see paragraph 33 above). He was also
able to have 10 visits in 2005, but in the next years the number
of visits was reduced to 7 visits in 2006 and 2007 and only 5 in
2008. On most occasions he was only allowed to have the so-called
“closed visits”, without the possibility of direct
contact as he was separated from the visitors by a Perspex partition
and they could communicate verbally only by internal phone
(see paragraphs 32-38 and 58 above).
The
Court accepts that, in the circumstances of the case, certain
restrictions on the applicant’s contact with the family were
inevitable. As stated above, detention entails inherent limitations
on the detainee’s private and family life, including
restrictions on family visits or, if so justified by the nature of
the offence and detainee’s circumstances, special arrangements
for such visits (see paragraphs 122-123 above). In particular, in
cases involving high-security prison regimes where the applicants are
charged with, or convicted of, a serious offence representing a
considerable social danger – for instance, violent or organised
Mafia-type crime – the application of such measures as a
physical separation of a detainee from his visitors through a special
transparent partition can be justified by the prison security needs
or the danger that a detainee would communicate with criminal
organisations through the family channels (see, for instance, Van der
Ven, cited above, §§ 16 and 54; and Messina no. 2,
cited above, §§ 27 and 72). However, the extended
prohibition on direct contact with family members is accepted under
Article 8 only in so far as the authorities have not failed to fulfil
their duty under this provision to enable, and assist, the applicant
in maintaining contact with his close family and secured a fair
balance between his rights and the aims of the special regime (see
Messina no. 2, cited above, §§ 72-73 and paragraphs
123-124 above).
In
the present case, for the reasons stated below, the Court does not
find convincing justification for the continued, prolonged
prohibition on the applicant’s direct contact with his wife and
daughters.
It is
true and has already been noted that, given the nature of the charges
against the applicant, the general risk that he might attempt to
re-establish links with the criminal world had to be taken into
account (see paragraph 94 above). Nevertheless, to justify long-term
restrictions, there must exist a genuine and continuing danger of
that kind (see paragraphs 94, 129 above and Messina (no. 2),
cited above §§ 66-73). In that regard, the Court notes that
the first visit from the applicant’s wife was an open visit
enabling them direct contact and unrestricted conversation (see
paragraphs 34 and 58 above). In the light of the material in the
Court’s possession, it appears that neither this first visit,
nor any further events or the applicant’s own behaviour during
his detention (see paragraphs 84 and 101-102 above) revealed any
grounds to believe that he intended to use his wife or daughters as
intermediaries to restore contacts with the criminal community or
that open family visits from them would jeopardise the prison
security. Indeed, subsequently, open visits were granted to the
applicant each year, although rarely, at different intervals and on
an irregular basis (see paragraphs 33 38 above). In the Court’s
view, this shows not merely the lack of a consistent pattern in the
authorities’ decisions but also, indirectly, that in reality
the measures taken were not apparently related to any tangible fear
or risk that could possibly legitimise the impugned restrictions
under Article 8 § 2 of the Convention (cf. Messina (no.2),
cited above, ibid.).
The
applicant further maintained that the unacceptable conditions in
which he had received visits from his daughters, who had all three
been minors at the beginning of his detention (see paragraph 33
above), had prevented him from having contact with them at all (see
paragraph 119 above).
The
Court would note that, by the nature of things, visits from children
or, more generally, minors in prison require special arrangements and
may be subjected to specific conditions depending on their age,
possible effects on their emotional state or well-being and on the
personal circumstances of the person visited. However, positive
obligations of the State under Article 8, in particular an
obligation to enable and assist a detainee in maintaining contact
with his close family (see paragraphs 123-124 and 129 above),
includes a duty to secure the appropriate, as stress-free for
visitors as possible, conditions for receiving visits from his
children, regard being had to the practical consequences of
imprisonment. That duty is not discharged properly in situations
where, as in the present case, the visits from children are organised
in a manner exposing them to the view of prison cells and inmates
and, as a result, to an inevitably traumatic, exceptionally stressful
experience. The Court agrees that, as the applicant said, the
exposure to prison life can be shocking even for an adult and,
indeed, it must have caused inordinate distress and emotional
suffering for his daughters (see paragraphs 39 and 119 above). It
further notes that, owing to the authorities’ failure to make
adequate visiting arrangements, the applicant, having seen the deeply
adverse effects on his daughters, had to desist from seeing them in
prison. Throughout his detention from 14 July 2004 to the end of 2008
he saw his oldest daughter twice and each of the two younger ones
once. In effect, he was deprived of any personal contact with them
for several years (see paragraphs 33-34 and 37 above).
In
view of the foregoing, the Court concludes that the restrictions
imposed by the authorities on the applicant’s visiting rights,
taken together with their continued and prolonged failure to ensure
proper conditions for visits from his daughters, did not strike a
fair balance between the requirements of the “dangerous
detainee” regime on the one hand, and the applicant’s
Convention right to respect for his family life on the other.
Accordingly,
there has been a violation of Article 8 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON
ACCOUNT OF THE CENSORSHIP OF THE APPLICANT’S CORRESPONDENCE
The
applicant further complained about routine
censorship of his correspondence with his family.
Article
8, in its relevant part, reads as follows:
“1. Everyone has the right to respect
for ... his correspondence.
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. The applicant’s arguments
The
applicant, apart from producing three envelopes of letters from his
family members stamped “censored” on different dates (see
paragraph 42 above), did not adduce any specific arguments or
information supporting his allegations of a breach of his right to
respect for his correspondence.
B. The Court’s assessment
The
Court would recall that in its judgment in the case of Biśta
v. Poland and other rulings that followed, it held that
applicants with complaints based on similar interferences with
detainees’ correspondence which – as in the applicant’s
case – occurred after 28 June 2007 were, in order to comply
with Article 35 § 1, required to avail themselves of an action
for the infringement of personal rights under Article 24 read in
conjunction with Article 448 of the Civil Code (see Biśta v.
Poland, no. 22807/07, 12 January 2010, § 49).
However,
in the present case the Court does not deem it appropriate to decide
on the exhaustion issue, in particular on the relevance of the fact
that the limitation period of 3 years for lodging the above action
had expired already on 8 January 2011 (see paragraphs 42 and 67
above), because it finds that the complaint is in any event
manifestly ill-founded.
The
practice of marking detainees’ correspondence with the
“censored” stamp in similar cases leads the Court to
presume that the letters were opened and their contents read (see,
among many other examples, Friedensberg v. Poland, no.
44025/08, 27 April 2010, § 36, with further references). There
was accordingly an interference with the applicant’s right to
respect for his correspondence. The measure, likewise as in other
cases (ibid., § 43), was applied “in accordance with the
law”, pursuant to Article 217a § 1 of the Code of
Execution of Criminal Sentences, stipulating that a detainee’s
correspondence shall be stopped, censored or monitored by the
authority at whose disposal he remains, unless otherwise decided.
That
said, the applicant, through his failure to substantiate the
complaint and to provide any information, such as for example the
nature or subject matter of the letters (see paragraph 42
above), capable of showing that the impugned interference was not
“necessary in a democratic society”, has not proved
before the Court that the censorship of his correspondence lacked
justification under Article 8 of the Convention.
It
follows that this part of the application is inadmissible as being
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON
ACCOUNT OF THE IMPOSITION OF THE “DANGEROUS DETAINEE”
REGIME
In
respect of the imposition of the “dangerous detainee”
regime on him, the applicant also alleged that, irrespective of the
fact that it constituted treatment contrary to Article 3 of the
Convention, it also amounted to a violation of his right to 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 81-103 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, in particular on account
of intrusive, constant surveillance of his cell, including sanitary
facilities, and grossly humiliating strip-searches, which had been
performed on him several times a day without any plausible security
considerations.
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 103 above). In the circumstances, the Court
considers that no separate issue arises under Article 8 of the
Convention and makes no separate finding.
VIII. 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 EUR 10,000 in respect of
non-pecuniary damage.
The
Court, having regard to its case-law and assessing the claim on an
equitable basis, awards the applicant EUR 5,000 in respect of
non pecuniary damage. It rejects the remainder of the claim.
B. Costs and expenses
Since
the applicant made no claim for the
reimbursement of costs and expenses incurred before the domestic
courts or in the proceedings before the Court, there is no reason to
make any award under this head.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaints under Articles 3 and 8
concerning the imposition of the “dangerous detainee”
regime on the applicant and under Article 8 concerning the
restrictions on contact with his family during detention admissible
and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
3 of the Convention;
Holds that there has been a violation of Article
8 of the Convention on account of the restrictions on the applicant’s
contact with his family during detention;
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;
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 5,000 (five thousand euros), to be
converted into Polish zlotys 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór
Björgvinsson
Registrar President
