ITEMID: 001-110499
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PIECHOWICZ v. POLAND
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1977 and lives in Lublin.
7. The applicant and the Government gave partly different statements in respect of certain facts of the case concerning the “dangerous detainee” regime, the conditions of the applicant’s detention and his contact with his family during his detention (see paragraphs 54-71 and 87-98 below). The remaining facts were not in dispute.
8. On 21 June 2006 the applicant was arrested on suspicion of drug trafficking committed together with other identified and yet unidentified persons.
9. On 22 June 2006 the Lublin District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings by bringing to bear pressure on – unspecified – witnesses and co-suspects, in order to create favourable conditions for his defence.
10. An appeal by the applicant against the detention order and further decisions extending his detention, and his numerous applications for release and appeals against refusals to release him, were all unsuccessful.
11. In the course of the investigation, the applicant’s detention was extended on 15 September 2006 (to 20 December 2006) and 5 January 2007 (to 14 April 2007). In their decisions on the matter the authorities relied on the original grounds given for his detention. The courts also stressed that, owing to the complexity of the case, the investigation had still not been completed.
12. On 4 April 2007 a bill of indictment was lodged with the Lublin District Court. The applicant was charged with drug trafficking, attempted money laundering and obtaining a loan by deception.
A.W., the applicant’s common-law wife (konkubina), was indicted on a charge of attempted money laundering in that she had attempted to invest the proceeds of crime received by the applicant from drug trafficking in the purchase of a car and entering into a bank loan agreement in order to conceal the criminal origins of the invested money.
13. On 10 April 2007 the District Court prolonged the applicant’s detention until 14 July 2007 and then, on the latter date, until 14 October 2007. The courts repeated the original grounds for his detention.
14. On 17 July 2007 the Lublin District Court made a severance order referring part of the charges to the Lublin Regional Court (Sąd Okręgowy). Both the prosecutor and the applicant lodged interlocutory appeals against that decision.
15. On 16 August 2007 the case in its entirety was referred to the Lublin Regional Court. However, on account of the subsequent amendment to the provisions governing the jurisdiction of criminal courts, the case was eventually referred back to the District Court on 30 October 2007.
16. In the meantime, on 9 October 2007, the Lublin Regional Court had further extended the applicant’s detention until 14 January 2008, holding that evidence so far gathered sufficiently supported the suspicion that he had committed the offences with which he had been charged. It stressed the likelihood of a severe sentence of imprisonment being imposed on the applicant and the fact that he was a recidivist offender.
17. During the court proceedings the applicant’s detention pending trial was extended on several occasions, namely on 28 December 2007 (to 14 April 2008), 11 April 2008 (to 30 June 2008), 27 June 2008 (to 30 September 2008), 23 July 2008 (to 24 October 2008). The courts repeated the grounds that had previously been given for keeping him in custody.
18. The trial was to start on 28 December 2007 but it was adjourned until 22 February 2008 due to the absence of one of the witnesses.
19. On 22 February 2008 the trial was again adjourned because the presiding judge was ill.
20. The first hearing was held on 28 March 2008.
21. On 24 October 2008 the District Court decided that the applicant’s detention should no longer be continued but he remained in custody in the third set of criminal proceedings (see paragraphs 32-39 below).
22. On 12 July 2011 the Lublin District Court convicted the applicant as charged and sentenced him to a cumulative penalty of five years’ imprisonment and a fine.
A.W. was convicted as charged and sentenced to two years’ imprisonment on four-year probation.
23. The proceedings are pending the parties’ appeals.
24. On 22 June 2006 the Lublin District Court remanded the applicant in custody, relying on the reasonable suspicion of his having committed robbery, theft and unlawful detention. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings by bringing pressure to bear on witnesses and co-suspects in general – their names or any related circumstances were not specified.
25. An appeal by the applicant against the detention order, and likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful.
26. In the course of the investigation, the applicant’s detention was extended on 7 September 2006 (to 30 December 2006) and 29 December 2006. In their decisions on the matter the authorities relied on the original grounds given for holding him in custody.
27. On an unspecified date in December 2006 a bill of indictment was lodged with the Lublin District Court. The applicant was indicted on charges of robbery, theft and unlawful detention.
28. The first hearing was scheduled for 28 February 2007 but it was adjourned. The trial started on 15 March 2007.
29. During the court proceedings the applicant’s detention pending trial was further extended on 17 April, 29 June and 23 October 2007 (to 31 January 2008), 29 January (to 31 March 2008) and 18 March 2008 (to 21 June 2008). The courts repeated the grounds that had previously been given for his continued detention.
30. On 21 June 2008 the court decided that the applicant’s detention should no longer be continued in this case since the maximum statutory time-limit of two years for pre-trial detention had expired. He was still detained on remand in the first and the third set of criminal proceedings against him (see paragraphs 8 and 21 above and paragraphs 32 and 37 below).
31. On 2 July 2009 the Lublin District Court gave judgment. The applicant was acquitted of all the offences with which he had been charged.
32. On 10 October 2007 the Lublin District Court remanded the applicant in custody, relying on the suspicion that he had set up and organised a criminal group involved in drug-trafficking. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant, the serious nature of the offences of which he was suspected, the large quantities of drugs involved and the risk that he would attempt to obstruct the proceedings. That risk was based on the assumption that, having regard to the leading role played by him in the group, he might bring pressure to bear on witnesses or other suspects in general; no specific persons were named.
33. An appeal by the applicant against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful. In his submissions, the applicant first of all stressed that the evidence gathered had not supported sufficiently the suspicion that he had committed the offences in question. He maintained that the grounds given for his detention were vague and general and did not indicate any concrete circumstances justifying the risk that he would obstruct the course of the proceedings. He also stated that the prosecutor’s refusal to grant him access to the case file made it impossible for him to challenge the grounds for his continued detention.
In its decision of 25 October 2007, rejecting his appeal against the order of 10 October 2007 the Lublin Regional Court held, among other things, the following:
“It must be firmly stressed that the material gathered in the case [in the form of other accused’s testimonies and the results of searches carried out] makes it highly probable that [the applicant] had committed the offences with which he had been charged. ...
The offence in question is liable to a maximum sentence of ten years’ imprisonment which, having regard to the social danger of the offences, the fact that [the applicant] acted together with other persons in an organised criminal group and made crime his permanent source of income, as well as to the quantity of drugs distributed and [the applicant’s] criminal record, supports the [lower court’s] conclusion as to the severity of the anticipated penalty.
The District Court was also right in relying on the justified fear that [the applicant] might unlawfully influence statements of other persons. The realisation of the purposes of the investigation requires [the authorities] to make such actions impossible, in particular influencing the content of testimonies or evidence given by the accused.
It must be added that, as demonstrated by evidence so far obtained, [the applicant] set up and led an organised criminal group and had a decisive say in all matters concerning its functioning. ...
In these circumstances, the imposition of detention is entirely justified because other preventive measures would not be sufficient to ensure the proper course of the investigation.”
34. In the course of the investigation, the applicant’s detention was extended on 8 January 2008 (to 9 April 2008) and 1 April 2008 (to 9 June 2008). In their decisions the authorities relied on the original grounds given for keeping him in custody, stressing, in particular, the severity of the penalty – up to eight years’ imprisonment.
35. On 2 June 2008 a bill of indictment was lodged with the Lublin Regional Court. It comprised 36 charges brought against 17 accused. The applicant was indicted on charges of drugtrafficking committed as a leader of an organised criminal group.
36. During the court proceedings the courts further extended the applicant’s detention pending trial on several occasions, namely on 5 June 2008 (to 9 October 2008), 7 October 2008 (to 9 January 2009), 30 December 2008 (to 9 April 2009), 7 April 2009 (to 7 June 2009), 27 May 2009 (to 27 August 2009), on 25 August 2009 (to 9 October 2009), on 7 October 2009 (to 9 December 2009) and on an unspecified subsequent date. The courts essentially repeated the grounds that had previously been given for his continued detention. In some decisions, they also relied on the highly complex nature of the case, stressing that the case file comprised 20 volumes, and the need to carry out time-consuming procedural actions (such, as for instance, the need to acquaint the accused with classified material – a process that lasted for some three weeks in August-September 2009).
37. On 2 July 2010 the court released the applicant on bail and under police supervision, i.e. on condition that he would report weekly to a police station. It also imposed on the applicant a ban on leaving the country.
38. On 16 June 2011 the Lublin Regional Court convicted the applicant of setting up and leading an organised criminal group and of participating in the distribution of large amounts of drugs. It sentenced him to a cumulative penalty of five years’ imprisonment and a fine.
39. The proceedings are pending the parties’ appeals.
40. On 2 November 2007, in connection with his appeals against the detention order (see paragraphs 32-33 above) the applicant requested the Lublin Regional Prosecutor (Prokurator Okręgowy) to grant him access to the investigation file and to allow him to obtain photocopies of some documents relating to the grounds given for his detention.
41. On 8 November 2007 the prosecutor refused that request, relying on the important interests of the proceedings (ważny interes postępowania). The prosecutor observed that the investigation was still in progress and, in these circumstances, the interests of the investigation outweighed the applicant’s right to be acquainted with the evidence so far obtained by the prosecution. The applicant appealed.
42. On 10 December 2007 the Lublin Deputy Regional Prosecutor upheld the refusal of 8 November 2007. He observed, in particular, that the right to full disclosure of evidence gathered at the investigative stage of criminal proceedings was not absolute and could, in pursuit of a legitimate aim such as the protection of witnesses or secret sources of information or the interests of the investigation, be subject to limitations. It was also underlined that such limitations were even more stringent during the investigation as at that stage the principle of adversarial proceedings did not apply.
43. On 27 December 2007 the applicant again asked the investigating prosecutor to grant him access to the case file in order to enable him to make photocopies of certain parts of the file. He listed 86 relevant pages out of some 1,200 contained in the file. The applicant relied on Article 5 § 4 of the Convention and the principle of equality of arms, stressing that in anticipation of the prosecutor’s request to the trial court for his detention to be further extended, he needed to inspect at least some parts of the evidence in order to challenge properly and effectively the lawfulness of his detention. In their requests, he added, the prosecution relied on evidence, premises and circumstances that were unknown to him, which made it impossible for him to respond to the arguments adduced by them in the procedure for the extension of his detention. Lastly, the applicant invoked his constitutional right to defend himself.
44. On 8 January 2008 the District Court extended the applicant’s detention until 9 April 2008 (see also paragraph 34 above).
45. On 15 January 2008 the prosecutor, relying on Article 156 § 5 of the Code of Criminal Procedure (Kodeks postępowania karnego), refused to grant the applicant access to the case file. The prosecutor observed that it was already the second such request lodged within a short period of time. The only difference was that this time the applicant relied on the Constitution and international law. That being so, the grounds given for the previous refusal were still valid. It was stressed that the prosecutor in his actions, in particular in assessing evidence, must be guided by the principle of objectivity and must respect the suspect’s defence rights. However, the prosecutor should first of all ensure the efficient and unimpeded course of the investigation. Since several other persons had been charged together with the applicant, the interests of the investigation required the prosecution to keep secret the findings of fact so far made in order to secure an undisturbed process of obtaining evidence and to avoid any attempt to obstruct unlawfully the outcome of the investigation. As regards the constitutional and international-law arguments advanced by the applicant, the prosecutor considered that they had a marginal impact in the context of this decision since it had a legal basis in the Code of Criminal Procedure. The applicant appealed.
46. On 29 February 2008 the Lublin Deputy Regional Prosecutor upheld the refusal, repeating the previous grounds.
47. On 11 March 2008 the applicant made a subsequent request to the investigating prosecutor, asking for photocopies of certain documents contained in the case file. He listed a total of 97 relevant pages, out of some 1,500 currently contained in the file. He relied on the previous arguments, stressing that, given that his last detention order would expire on 9 April 2008, he needed to get acquainted with at least the selected documents – without being given access to the entire case file – so as to be able to challenge effectively the likely prolongation of his detention.
48. On 31 March 2008 the prosecutor rejected the request without giving any specific grounds for his refusal.
49. On 1 April 2008 the District Court extended the applicant’s detention until 9 June 2008 (see paragraph 34 above).
50. The applicant submitted that as of May 2008, i.e. the time when he had been about to be indicted before the Lublin District Court (see paragraph 35 above), he still had no access to the file.
51. The applicant submitted that during his detention his correspondence was continually censored by the authorities.
He produced seven envelopes of the censored letters.
52. Four envelopes bear a stamp that reads: “Censored, date ..., Prosecutor” (Ocenzurowano, dnia ... Prokurator), a hand written date and an illegible signature. Those envelopes contained:
1) one letter from the Main Police Headquarters (Komenda Główna Policji), censored on 2 August 2006;
2) two letters from the Central Administration of Prison Service (Centralny Zarząd Służby Więziennej), censored on 19 October and 8 December 2006 respectively;
3) one letter from the Warsaw Regional Inspectorate of Prison Service (Okręgowy Inspektorat Służby Więziennej), censored on 8 December 2006.
Three envelopes bear a stamp that reads: “Censored, the Lublin Regional Court, received date ..., sent date ...” (Cenzurowano, Sąd Okręgowy Lublin, otrzymano dnia ..., wysłano dnia ...), a stamped date and an illegible signature. The envelopes contained the following letters:
1) from the applicant’s defence counsel; censored on 25 June 2007;
2) from the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment, censored on 13 August 2007;
3) from the Office of the Committee for European Integration, censored on 16 August 2007.
53. The applicant did not lodge a civil action for compensation for the infringement of his personal rights on account of censorship of his correspondence under Article 24 read in conjunction with Article 448 of the Civil Code.
54. Between 21 June 2006 (when he was arrested in the first set of proceedings) and 12 March 2007 (when he was indicted before the Lublin District Court), the applicant, despite numerous requests to that effect, was not allowed to receive visits from his son, M.P., born in 2004.
55. Between 28 April and 10 October 2007 the applicant was granted several open visits (widzenie przy stoliku) from the child, who was brought to the remand centre by a certain N.S., a third party.
56. On several occasions the applicant requested the Governor of the Lublin Remand Centre to have the standard 60-minute long visits from the son prolonged to 90 minutes. All his requests were dismissed as the authorities considered that the applicant’s behaviour was not “more than exemplary as regards respecting the internal order in the remand centre and the prison rules” – a circumstance which justified granting visiting privileges.
57. Between 10 October 2007 (when the applicant was remanded in custody in the third set of proceedings) and 3 December 2007 he was again not allowed to see his son.
58. The Government submitted that over the period from 21 June 2006 to 12 March 2007 the applicant had not asked for permission to receive visits from the son.
59. They stated that between 10 October and 3 December 2007 the applicant did not receive visits from the son.
60. The Government produced a detailed list of visits received by the applicant between 12 July 2006 and 19 January 2010. As from 3 December 2007 he received visits from his son on the following dates: 24 December 2007, 14 January, 11 February, 31 March, 21 April, 19 May, 23 June, 7 and 28 July, 11 and 25 August, 29 September, 13 and 20 October, 3 and 17 November and 22 December 2008. In 2009 the visits took place on 12 January, 2, 16 and 23 February, 9 and 30 March, 17 and 24 April, 11 and 18 May, 1 and 15 June, 6, 20 and 30 July, 3, 17 and 31 August, 13 and 28 September, 4 and 26 October, 8 and 22 November, 6, 20 and 27 December. Further visits took place on 10 and 17 January 2010.
The child was initially accompanied by N.S and, as from 29 September 2008 by A.W., the applicant’s common-law wife and the mother of his son.
61. On 26 November 2007 W.W., the applicant’s defence counsel, made a declaration that reads, in so far as relevant, as follows:
“As [the applicant’s] defence counsel from the date on which he had been detained on remand [in the first set of the criminal proceedings against him], i.e. 22 June 2006 to 4 April 2007 I made numerous requests on his behalf to the investigating prosecutor, asking him to issue permission for my client to have a visit form his 3year old son M. ...
Despite my repeated requests, I did not obtain such permission. The grounds given for these decisions referred to [such circumstances as] the child’s interests and the possibility of obtaining additional evidence or new facts from my client. Throughout the entire investigation, the prosecutor issued only one permission in March 2007, which was about the time when [the applicant] was indicted before the court. I should add that this put a severe strain on my client and had a negative impact on his psychological state.”
62. On 7 December 2007 the Lublin Regional Prosecutor informed the applicant that he had granted N.S. a closed visit (widzenie przez telefon) and that the latter was allowed to bring the applicant’s son with him. The visit took place in a special room with a Perspex partition separating the applicant from his visitors. The applicant was informed that in the future he would be granted one such visit from the son monthly and that visits enabling them to have direct contact could not be allowed at that stage of the procedure.
63. From 21 June 2006 to 29 September 2008 the applicant was not allowed to receive visits from A.W. Initially, the investigation authorities informed him that since A.W. was to be heard as a witness in the first set of criminal proceedings against him she could not obtain permission for visits. Later, on an unspecified date in 2006, in those proceedings A.W. was charged with money laundering committed together with the applicant. She was indicted on that charge before the Lublin District Court on 4 April 2007 (see paragraph 12 above). On this basis, the authorities refused to grant her permissions for visits for some further two years.
64. On 8 January 2007 the applicant was allowed to have a 60-minute long conversation on the prison phone with A.W.
On 29 September 2008 the applicant was granted the first open visit from A.W., who was allowed to bring their son with her. Since then the applicant has been granted on average 2 visits from her and the son monthly (see also paragraphs 60 above and 70 below).
65. The applicant maintained that from 21 June 2006 until 12 March 2007 he had not been allowed to receive visits from C.K., his mother, on the ground that she was to be heard as a witness in the first set of criminal proceedings against him.
66. The Government submitted that the applicant’s mother visited the applicant in prison on 6 December 2006 and 12 March 2007. On the first date, the applicant was granted an open visit. The second visit, in which M.K., his son, also participated was closed.
The applicant was also allowed to have a 60-minute long conversation on the prison phone with his mother on 11 October 2006 and 30 January 2007.
67. A copy of the applicant’s request of 7 March 2007 for permission to have a visit from his mother and his son, addressed to the Lublin Regional Prosecutor’s Office (Prokuratura Okręgowa), shows that on the original request the prosecutor made a handwritten note: “I grant permission for a supervised visit; 08.3.2007” and that the permission document was given to the person concerned on 9 March 2007.
68. The list of visits supplied by the Government shows that between 12 July 2006 and 19 January 2010 the applicant received 147 visits, of which 78 were meetings with his defence counsel (including one together with a police officer), 2 meetings with police officers, 2 meetings with prosecutors and 1 meeting with a notary.
The meetings with the defence counsel took place once a month on average.
The remaining 64 visits involved the applicant’s family. They lasted from 30 to 60 minutes but on most occasions were 60-minute long.
69. At the initial stage of his detention the applicant was only allowed to have a 60-minute long conversation on the prison phone with his mother on 11 October 2006. He received the first family visit on 6 December 2006 – it was an open visit from his mother and lasted 60 minutes.
70. Later, he was allowed to have one 60-minute long phone conversation with his common-law wife, A.W., on 8 January 2007.
He was allowed to have a second phone conversation with his mother on 30 January 2007.
On 12 March 2007 the applicant received the first – supervised – visit from his son, M.P., who was brought to the remand centre by the applicant’s mother.
On 29 September 2008 the applicant received the first visit from A.W., who was allowed to bring their son with her. It was an open visit that lasted 60 minutes.
71. As regards the visits which took place after the applicant was classified as a “dangerous detainee” (see paragraph 74 below), i.e. from 12 October 2007 onwards, the list of visits supplied by the Government shows that the applicant received 102 visits altogether, of which 53 were meetings with his lawyers, 1 with a police officer, 1 with a notary and 2 with prosecutors. The 45 remaining visits were from his family.
72. On 21 June 2006 the applicant was placed in the Radom Remand Centre (Areszt Śledczy). On 8 December 2006 he was transferred to the Lublin Remand Centre.
73. Between 23 February and 14 June 2007 the applicant was placed in a solitary cell for dangerous detainees (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”) without having been classified as such. The authorities of the Lublin Remand Centre justified their decision by security reasons. At that time, the applicant was not subjected to the stringent regime for dangerous detainees.
74. On 14 June 2007 the applicant was transferred to a cell for regular prisoners.
75. On 12 October 2007 the Lublin Remand Centre Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee”. It considered that it was necessary to place him in a cell for dangerous detainees as he had been charged with numerous offences, including unlawful detention and violent robbery, committed as a leader of an organised criminal group. The commission also referred to the applicant’s serious lack of moral character (wysoki stopień demoralizacji). The applicant unsuccessfully appealed against this decision.
76. From 12 October 2007, when the applicant was placed in a cell for dangerous detainees, he remained under increased supervision. The cell, including its sanitary facilities, was constantly monitored via close-circuit television. He was subjected to a body search every time he left and entered the cell, which in practice meant that he had to strip naked in front of prison guards and was required to carry out deep knee-bends. The body search was performed in a separate room, which was monitored and its recording was viewable in a duty room.
77. The applicant, whenever he was outside his cell, including his appearances at court hearings or medical visits, wore the so-called “joined shackles” (kajdanki zespolone) on his hands and feet. Those shackles consisted of handcuffs and fetters joined together with chains.
78. On 9 February 2008 he was taken to the Lublin Civil Hospital, where he underwent a number of medical examinations and tests in connection with severe pains in the abdominal cavity. He remained there for several hours, being handcuffed and fettered. He was all the time accompanied and watched by 3 policemen.
79. The applicant was allowed to spend one hour per day in an outdoor yard but was segregated from other detainees.
80. Between 20 December 2007 and 6 February 2008, at the applicant’s request, another inmate, a certain L.G. was placed in his cell. Later, from 29 February to 14 April 2008 and from 6 August to 22 September 2008 he had one inmate assigned to his cell.
81. Every three months the Lublin Remand Centre Penitentiary Commission reviewed, and upheld, its decision classifying the applicant as a “dangerous detainee”. The relevant decisions were limited to a short description of the nature of the suspicions or charges laid against him which, as such, justified the maintaining of the previous decisions.
For example, the decision of 31 July 2008 read, in so far as relevant, as follows:
“Pursuant to Article 212a § 1 of the Code of Execution of Criminal Sentences, the Penitentiary Commission assigned [the applicant] to the category of detainees who should be placed in a remand centre in conditions ensuring increased protection of society and the security of the remand centre. The decision was based on the suspicion that he had a very high rank in organised crime structures and that he was a person displaying a serious lack of moral character. The detainee is suspected of committing offences of unlawful detention and robbery, which involved particular suffering for victims. On 10 October 2007 a fresh detention order was issued by the Lublin District Court, from which it transpired that he was suspected of setting up and leading an organised criminal group involved in the illegal distribution of large amounts of drugs. For this reason, the Commission upholds its decision to classify him in the category of detainees who should be placed in a remand centre in conditions ensuring increased protection of society and the security of the remand centre because the grounds for the further application of Article 212a § 1 of [the Code of Execution of Criminal Sentences] did not cease to exist.”
82. The applicant appealed against all the decisions, arguing that the authorities violated the provisions of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) relating to that matter. He also complained about being regularly subjected to a body search, constant monitoring of his cell and the generally inadequate equipment of the solitary cell. For instance, in his appeal against the Penitentiary Commission’s decision of 2 July 2009, upholding his classification as a “dangerous detainee”, he submitted, among other things, the following:
“ ... Since 12 October 2007 I have been classified as a ‘dangerous detainee’ .... This decision is arbitrary and was given without any evaluation of the circumstances that had given rise to classify me as such. I am suspected of drug trafficking in an organised criminal group ... and for this reason I was assigned the “dangerous” category. Article 212a § 1 of the Code of Execution of Criminal Sentences obliges the prison administration to evaluate the circumstances that justify the maintaining of this classification.
Regrettably, the assessment of [the need to maintain it] is illusory or non-existent and the subsequent extensions of the classification as ‘dangerous’ are, so to speak, automatic.
The very fact that I was charged with acting in an organised criminal group is not sufficient to consider me a dangerous person, and certainly not sufficient to maintain this classification for 2 years, having regard to the extent of the interference with [my] civil rights and liberties ... .
Relying on this classification, the Lublin Remand Centre subjects me to repression and interferences:
- stripping me naked (including underwear) and inspection of the anus – at least twice a day;
- isolating me from all persons (I am in a solitary cell) for more than 500 days;
- watching me during my physiological acts in the toilet;
- making it impossible for me to participate in any kind of sports activity in the prison sports field (I do not leave the cell at all);
- walking me in joined shackles all the time.
Given the degree of the interference in my life, which amounts to daily ill-treatment and which is not based on a court conviction, one should ask to what extent a mere charge of participating in a criminal group suffices to treat me in this way, especially over the lengthy period of 2 years.
For that reason, the acts of the prison administration are in breach of the law, in particular Article 3 of [the Convention]. ... This conclusion is reinforced by the fact that for my part there has never been any danger to the functioning of the remand centre – this is confirmed by the fact that there has been no single instance of the use of force against me. ...[T]he prison administration subjects me to these practices without good reason, and the status of ‘dangerous’ serves, so to speak, as a measure of prevention, whereas this status should be restricted to the necessary minimum – otherwise it becomes an arbitrary interference with the most intimate spheres of human life. ...”
83. All the applicant’s subsequent, similar appeals were dismissed. The authorities relied on the grounds given for the initial decision.
By way of example, the Regional Court’s decision of 19 August 2009, upholding the Penitentiary Commission’s decision of 2 July 2009 (the object of the appeal cited in paragraph 82 above) read, in so far as relevant, as follows:
“The detainee’s appeal is groundless and will not be allowed. ...
Pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences, 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.
According to paragraph 1 of that provision, the review of a decision on classification of a detainee in conditions ensuring increased protection of society and prison security shall take place at least once every three months.
[The applicant] still poses a serious danger to society and prison security. In addition, he is remanded by the Lublin Regional Court as a person suspected of setting up and leading an organised criminal group involved in illegal distribution of large amounts of drugs.
Accordingly, it transpires from the material gathered in the present case that the conditions of the above-cited provision have been fulfilled and, by the same token, the contested decision is lawful.”
84. In 2007-2009 the applicant made many requests to the prison authorities, asking for permission to have in his cell his own sports equipment (i.e. dumb-bells), own TV set, “Playstation” console, computer games, CDplayer and CDs with foreign language courses and music but all those requests were refused. He also asked the authorities to enable him to take part in training, workshops, courses or any sports activities organised for other inmates or to allow him to perform any unpaid work, submitting that his complete isolation from other people was putting an exceptionally severe strain on him. The authorities replied that there would be advertisements informing prisoners of the possibility of enrolling on courses or trainings or of unpaid work opportunities. They added, however, that the need to socialise with others was not a ground for being qualified for participation in such activities in prison.
85. As of 20 April 2010 the applicant was still not allowed to perform any paid or unpaid work, take part in any training course, workshop or sports activity.
86. Until his release on 2 July 2010 he was continually classified as a “dangerous detainee”.
87. The Government submitted that between 23 February and 14 June 2007 the applicant was placed in a solitary cell in accordance with 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”). They did not indicate any specific provision of that ordinance. They added that during his placement in the solitary cell the applicant could watch television.
They further stated that in the Lublin Remand Centre the cells in which the applicant was held were equipped with a television set and a radio enabling him to listen to various radio stations. Every Sunday Mass was broadcast.
88. The applicant stated that he had never had radio in his cell.
89. The applicant submitted that the living conditions in the Lublin Remand Centre and the Radom Remand Centre were inadequate. The cells were unventilated; the windows were covered by a plastic blind, which made the cell very hot during the summer. The applicant could not wear his own clothes but only a red uniform designated for dangerous detainees, which was not warm enough during the winter time. The furniture was permanently fixed to the floor.
The applicant made numerous complaints to the prison authorities and the Ombudsman but they were to no avail.
90. The applicant was detained in the Radom Remand Centre from 21 June to 8 December 2006. Until 22 November 2006 he was in a cell designated for 3 persons. Each inmate had at his disposal a cell surface of 3 m2. From 22 November to 8 December 2006 (i.e. for 18 days) the space available was 2.73 m2 per person.
The cells in which the applicant was placed were equipped with a sanitary corner with a sliding door.
91. The conditions of detention in the Radom Remand Centre were good. All detainees were provided with the appropriate clothing, linen and detergents. Personal hygiene products were distributed once a month. The bed linen was washed at least twice a month and underwear once a week. Other clothes and footwear were changed depending on a given detainee’s needs.
92. The detainees received meals in their cells. The meals were always served at the proper temperature and contained all the required nutritional values.
93. From 8 December 2006 onwards the applicant was detained in the Lublin Remand Centre. From 6 August 2008 to the beginning of 2010 he was placed in the following cells: X-114 (surface 9.23 m2), X-129 surface 9.23 m2), X-128 (surface 8.13 m2), X-125 (surface 9.62 m2), X- 127 (surface 7.97 m2) and X-117 (surface 7.96 m2). From 29 February to 14 April 2008 and from 6 August to 22 September 2008 he had one inmate assigned to his cell.
94. All the cells in which the applicant was placed were equipped with a sanitary corner, to which the applicant had permanent access.
95. The detainees were provided with appropriate clothing, linen and detergents. Personal hygiene products were given to the applicant once a month. The bed linen was washed at least twice a month and underwear once a week. Other clothes and footwear were changed according to a given detainee’s needs.
96. On 12 October 2007, at the applicant’s request, the authorities provided him with an extra pullover.
97. The detainees received meals in their cells. The meals were always served at the proper temperature and contained all the required nutritional values. The quality of meals was verified by a doctor and approved by the governor. All the cells were equipped with ventilation and heating. Detainees, including those classified as dangerous, could open the windows in their cells.
98. Throughout his detention the applicant received adequate medical treatment from prison doctors. He also consulted specialists in psychiatry, dermatology and surgery.
99. In August 2007 the applicant sued the State Treasury – station fisci the Radom Remand Centre and the Lublin Remand Centre before the Lublin Regional Court, seeking damages for the degrading conditions of his detention. On an unspecified date the particulars of claim were returned to the applicant for non-compliance with formal requirements.
100. On 15 February 2008 the applicant lodged a fresh claim for damages arising from the physical conditions of his detention (in particular, overcrowding, lack of proper light and ventilation and inadequate clothing provided by the authorities) against the same defendants. It was registered in the Lublin Regional Court under no. IC 90/08. According to the material in the Court’s possession, the proceedings are pending.
101. 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).
102. Until 28 August 2009 no provision of the Code of Criminal Procedure specifically addressed the issue of a detainee’s access to an investigation file in connection with his challenge to the imposition or to the lawfulness of his detention on remand. A general provision governing access to the case file was laid down in Article 156 § 5 of the Code of Criminal Procedure, which is still worded as at the relevant time and which reads:
“Unless otherwise provided for by law, in the course of an investigation the parties, defence counsel, legal and lay representatives shall be given access to the case file and shall be able to make copies and photocopies or to obtain against payment certified copies and photocopies only with the permission of the person conducting the investigation. With the permission of a prosecutor and in exceptional circumstances in the course of an investigation access to the case file may be given to other persons.”
103. On the above-mentioned date Article 156 was amended and a new paragraph 5(a) was inserted. The new paragraph reads:
“ In the course of an investigation a suspect and his defence counsel shall be given access to the case-file in part including evidence indicated in a [prosecutor’s] application for the imposition or extension of detention on remand and [evidence] listed in a [court] decision imposing or extending detention on remand. The prosecutor may refuse to give access to this part of the case-file only if there is a justified fear that this would jeopardise the life or health of the victim or another party to the proceedings, would entail the risk of evidence being destroyed, concealed or forged or would hinder the identification and apprehension of an accomplice to the offence with which the suspect has been charged or of perpetrators of other offences disclosed in the course of the proceedings, would reveal actions undertaken at the preinvestigative stage or would entail the risk of obstructing the investigation by any other unlawful means.”
104. 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.
105. 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 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).
106. Article 212b of the Code of Execution of Criminal Sentences lays down specific arrangements for 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.”
107. The wards “N” (from “niebezpieczny” – dangerous in Polish) designed for dangerous detainees are closed units within prisons or remand centres, shut off to 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.
108. The detainees, whenever outside cells, even within the ward “N”, 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 2003 Ordinance, a dangerous detainee can move 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).
109. 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.
110. 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.”
111. 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.”
112. 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.
113. The former text of Article 212b (see paragraph 106 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.”
114. 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 registering 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 registered with the help of appropriate devices.
4. Monitoring and registering 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.
...”
115. Pursuant to Article 73 (a) §§ 6 and 7, if the registered 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 registered material should be stored and how it is to be used.
116. However, all registered 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.”
117. 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.
118. 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 onehour 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.
119. 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.”
120. 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).
121. 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.
122. 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.
123. Article 23 of the Civil Code contains a non-exhaustive list of socalled “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.”
124. 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 ...”
125. 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.”
126. 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.”
127. The recommendation, in its part relating to the application of security measures reads, in so far as relevant, as follows:
“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.”
“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.”
“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.”
128. 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 of the “dangerous detainee” regime in general.
129. 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.”
130. 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.”
131. 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.”
132. 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).
133. The Polish Government’s response to the CPT report was published on 12 July 2011.
134. In respect of the recommendation that the Polish authorities should revise the regime applied against “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 re 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.”
135. 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 to prisoners who do, in fact, require being 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.”
136. 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.”
VIOLATED_ARTICLES: 3
5
8
VIOLATED_PARAGRAPHS: 5-3
5-4
8-1


ITEMID: 001-114966
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF D.N.W. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: No violation of Article 2 - Right to life (Article 2 - Expulsion) (Ethiopia);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Ethiopia)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: 7. The applicant was born in 1978.
8. The applicant appears to have arrived in Sweden in the summer of 2007. He applied for asylum and submitted that in his home country he had been a deacon in the Orthodox Coptic church. In 2005 he had been called upon to be an observer in the national elections. Serving in this capacity, he had witnessed many wrongdoings by officials. The personal integrity and freedom of election of voters had been violated. Due to this, the applicant had refused to sign a statement asserting that the election procedure had been carried out correctly. Subsequently he had received several death threats. In connection with a sermon on 12 June 2005 he had been severely beaten outside the church by two unknown men. He had lost a tooth and had been cut on the hand. In September 2005 he had attended a traditional Christian feast. There he had been pursued and arrested by two policemen who had taken him to a police station in Addis Ababa. He had been accused of activities against the regime and had been incarcerated for three months and eleven days, during which time he had been tortured. On 20 January 2006, after being released, he had participated in a demonstration against the election results. He had again been taken into custody by two unknown men and taken to the Kaliti prison in Addis Ababa. There, he had been kept without criminal charges or a trial and had been tortured through violence with fists and truncheons, cut with sharp objects, chained and blind-folded, forced to hear other inmates being tortured, forced to crawl on his knees on sharp rocks and have his head shaved with broken bottle glass. The detention had lasted for five months. During his time in the prison, he had preached to his fellow inmates. He had told his story to one of the military prison guards, who had then helped him to escape. He had hidden from the authorities by travelling between Christian holy places where he had preached. A group of pilgrims had helped him and had paid him to travel with them and preach to them. On 8 May 2007, the pilgrims had informed him that they had decided to help him flee the country. They had arranged for his travel to Kenya, where he had had to wait for a while. A smuggler had then helped him to reach Sweden, via an unknown European country.
9. On 27 October 2008 the Migration Board (Migrationsverket) rejected the application. It stated that, although the applicant had not submitted any identification papers, a language test had shown it probable that he was from Ethiopia. It further stated that the general situation in Ethiopia was not a sufficient ground for asylum. Regarding the applicant’s situation and individual reasons for asylum, the Board found that his story lacked credibility and that his submission about his escape from prison was not plausible. Also, the applicant had never been convicted of any crime, nor had he tried to contact the judicial authorities in Ethiopia regarding the violence to which he had been subjected. He had not shown it probable that he would be at risk if he returned to Ethiopia.
10. The applicant appealed to the Migration Court (Migrations-domstolen) in Stockholm. He maintained his earlier submissions and added the following. He had been harassed in Ethiopia due to his foreign appearance, his mother being Eritrean. He also claimed that he had been accused by the Government of being a spy. He submitted an arrest order issued by the Ethiopian authorities on 27 February 2008 and stated that some members of his church in Sweden had been visiting Ethiopia and the local police had handed them the arrest order. He also submitted a medical certificate from the Trauma Centre at Danderyd Hospital (Kris- och traumacenter vid Danderyds Sjukhus) containing a psychiatric and physical evaluation as well as a forensic evaluation.
11. The psychiatric evaluation had been carried out by F.H., a licensed physician and specialist in general and forensic psychiatry, and was based on a meeting with the applicant on 6 April 2009. The applicant had claimed to worry a lot, to have a dark outlook on life and to suffer from depression and loss of appetite. He had had thoughts of being better off dead, but had not seemed to consider suicide as an option and had claimed to leave himself in the hands of God. He had tried to cure his depression with holy water and by staying in a monastery. During the examination the applicant had been very formal and had given clear and distinct answers to all the questions. However, he had given an emotionally detached impression and had seemed to have an intellectual and distant attitude towards the story he told. There had been no signs of psychosis. He had seemed rigid in his personality and had had difficulties in adjusting his mind-set and the topics discussed to the limited time of the examination. The risk of suicide had been hard to assess. The applicant had expressed a clear will to die, but had seemed to have religious doubts about actually committing suicide and would therefore deny any such plans. The assessment was that he was probably suffering from Post-Traumatic Stress Disorder (PTSD) and that his depression was a result of this.
12. The forensic evaluation was issued by E.E., associate professor and specialist in forensic medicine, on 17 April 2009. According to the forensic findings the applicant had scar tissue on his head, right arm, both legs and also an artificial tooth. The concluding assessment was that none of the findings contradicted that the applicant’s injuries had occurred at the time he described. Furthermore, the injuries were visibly compatible with his story and could support his claims that he had been subjected to torture in the way he had submitted.
13. On 17 December 2009 the Migration Court rejected the appeal. It noted that the applicant had not proved his identity. Moreover, it stated that the arrest order submitted by the applicant was very simplistic in nature and hence had little evidential value. Regarding the medical certificate, the court found that it confirmed that the applicant was suffering from PTSD and that he had scars, but that it could not confirm how his injuries had occurred. The court further stated that the applicant’s submissions had been vague and had escalated during the proceedings. The applicant had submitted for the first time at the oral hearing, among other things, that he had been suspected of being a spy. Moreover, it found peculiar his explanations as to how he had escaped from prison and how he had received information on being wanted by the Ethiopian authorities. The court thus found that the credibility of the applicant’s submissions was weak. It also added that the incidents described by the applicant had happened several years earlier, that he had not been politically active and that he had not had any problems prior to the 2005 elections. Moreover the court stated that the political situation in Ethiopia had calmed down since then and that the applicant’s submissions did not substantiate that he would risk being subjected to persecution to such an extent that he should be perceived as a refugee. Nor did they substantiate that he would be at risk of being subjected to degrading or inhuman treatment if he were to return. He was therefore not considered to have other needs for protection.
14. On 17 March 2010 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal.
15. The applicant subsequently claimed that there were impediments to his deportation and requested that his application for a residence permit be examined anew. In support of his claim he mainly referred to his previous submissions but also stated that the general situation in Ethiopia was such that he feared, due to his background as a critic of the regime, that he would be subjected to further ill-treatment upon return. The applicant further stated that the general situation in the country had become more serious after the elections of May 2010.
16. In its decision of 1 March 2011, the Migration Board found that the applicant’s submissions did not qualify as impediments to deportation nor reasons to examine his asylum application anew. The applicant did not appeal against this decision.
17. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”).
18. An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1 of the 2005 Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a wellfounded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).
19. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia, to the alien’s health status. According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit.
20. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).
21. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these criteria, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).
22. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, section 3, and Chapter 16, section 9).
NON_VIOLATED_ARTICLES: 2
3