CASE OF MICHAŁ KORGUL v. POLAND

1. The case originated in an application (no. 36140/11) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Michał Korgul (“the applicant”), on 25 May 2011.
2. The applicant, who had been granted legal aid, was represented by Mr P. Sendecki, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
3. The applicant alleged, in particular, that the “dangerous detainee” regime to which he had been subjected had breached Article 3 of the Convention. He also complained, under Article 1 of Protocol No. 1 to the Convention, about his release savings fund.
4. On 7 July 2014 the complaints concerning the lengthy imposition of the “ dangerous detainee ” regime and Article 1 of Protocol No. 1 to the Convention concerning the release savings fund were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. The applicant requested an oral hearing. The Chamber decided that it was not necessary to hold a hearing before adopting the present judgment (Rule 59 § 3).
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1987 and is detained in Lublin.
A. The criminal proceedings against the applicant
7. In 2005 the applicant was on two occasions convicted and sentenced to two terms of one year ’ s imprisonment, which were suspended on probation. On 30 September 2008 the applicant was convicted and sentenced to two years ’ imprisonment, which were again suspended. On 24 September 2009 the applicant was again sentenced to two terms of imprisonment. The latter judgments became final and enforceable on 10 October 2009. All the above convictions concerned charges of burglary, theft and robbery.
8. From 8 May 2009 the applicant was detained on remand on suspicion of having committed several armed robberies.
9. In July 2009 he was indicted before the Lublin District Court. He was charged with several counts of armed robbery.
10. On 24 February 2011 the Lublin District Court gave a judgment in the applicant ’ s case (IX K 79/11). Following an appeal by the applicant, it appears that in 2011 the Lublin Regional Court examined the decision (Vka 370/11). On 11 October 2011 the applicant received two consecutive sentences of one year and ten months ’ imprisonment and of two years and eight months ’ imprisonment.
B. Imposition of the “dangerous detainee” regime
11. On 24 February 2011 the Lublin Remand Centre Prison Commission classified the applicant as a “dangerous detainee”. The measures applied in the applicant ’ s case comprised confinement in a special high-security prison wing and increased supervision of his movements within and outside the cell, which meant that he had to wear joined shackles whenever he was taken out of his cell. The measures involved his segregation from the prison community and restrictions on contact with his family. Also, every time he left or entered his cell he was routinely subjected to a “full strip-search” – a thorough inspection of his body and clothes in which he was required to strip naked and make deep squats in order to enable an examination of his anus. In addition, his cell, including the sanitary facilities, was constantly monitored via a closed-circuit television system.
12. It its decision of 24 February 2011 the commission relied on the fact that the applicant had assaulted a prison guard (Article 88a § 2 (2 b) of the Code of Execution of Criminal Sentences). The governor of the Lublin Remand Centre, in his application to impose the regime, stated that on 21 February 2011 the applicant had refused to undergo a strip-search, had been aggressive and had attempted to hit a prison officer in the face.
13. The incident of 21 February 2011 was notified to a prosecutor who investigated whether an offence had been committed. It appears that the applicant was originally convicted of the offence but the judgment was quashed by the Lublin District Court. The outcome of this set of proceedings is not known.
14. The applicant appealed against the decision of 24 February 2011, but on 27 April 2011 the Lublin Regional Court upheld it. The court held that the applicant posed a serious danger to the security of the Lublin Remand Centre.
15. The Lublin Remand Centre in its subsequent applications to extend the measure against the applicant underlined that his behaviour had not improved and he had remained unpredictable.
16. On 18 August 2011 the Commission reviewed and upheld its decision classifying the applicant as a “dangerous detainee”.
17. The applicant appealed against that decision. On 26 October 2011 the Lublin Regional Court upheld the decision.
18. On 15 November 2011 the governor of the Lublin Remand Centre applied to the Commission to lift the measure against the applicant. The governor noted that the applicant ’ s behaviour had improved and he no longer posed a danger to the security of the remand centre. The applicant, as noted by the prison officers and a psychologist, was calm, disciplined, and following the internal regulations.
19. On 16 November 2011 the Commission, having heard evidence from the applicant, lifted the measure.
20. On 5 December 2011 the applicant was transferred to Opole Lubelskie Prison.
21. On 3 January 2012 the governor of Opole Lubelskie Prison applied to the Prison Commission to impose the “ dangerous detainee ” regime on the applicant. He submitted that since the applicant ’ s arrival at the prison he had been aggressive towards the prison officers and had been trying to gain prominence in the prison community by plotting to assault a senior officer of the service. The applicant had been aggressive and his behaviour was interfering with order in the prison. Overall, he posed a real danger to the prison officers and to the security of the prison.
22. On 3 January 2012 the Prison Commission of Opole Lubelskie Prison decided to impose the “dangerous detainee” regime on the applicant. The decision stated as follows:
“[The applicant] has threatened to assault a senior prison officer or other officers in order to re-establish himself in the criminal prison community and secure for himself a position of high esteem within its structure. There exists a real risk to the security of the prison. During his stay in the Lublin Prison [the applicant] was excluded from the prison community and is eagerly trying to enter it again. Because of his high level of demoralisation, the nature of the offences committed by him, his tendency to want to gain control over others and his personal character, he remains determined to return to the criminal structure and poses a real risk to those surrounding him. The applicant shows an aggressive attitude, directed at the prison officers. Since the beginning of his stay in the prison he has been notorious for causing difficulties of an educational nature and relating to maintaining order; his behaviour is highly reprehensible. His negative attitude is a destructive influence on the atmosphere and order in the wing and in the prison. In view of the information collected, there is a real risk of him carrying out an active assault on a prison officer, as has happened in the past.”
The applicant appealed but on 14 February 2012 the Lublin Regional Court upheld the decision.
23. The governor of Rzeszow Prison (to which the applicant had in the meantime been transferred) subsequently requested the extension of the regime imposed on the applicant. In his first request of 3 April 2012 he noted that the applicant had been given a disciplinary punishment for insulting a prison officer and had been taking his daily walks individually. The applicant remained interested in joining the prison community and remained a serious risk to the security of the prison. On the same date the Prison Commission of Rzeszow Prison extended the regime, stating that the applicant “should consolidate his positive behaviour and carry out a deeper reassessment of his previous conduct”.
In his second request of 28 June 2012 the governor of Rzeszow Prison pointed out that another disciplinary sanction had been imposed on the applicant for disobeying an order to leave his cell. The prison authorities acknowledged that the applicant had also received rewards for good behaviour and had started to take his daily walks with another inmate in order to see how he would function in a group. The governor considered that the applicant remained interested in belonging to the prison community and that his behaviour continued to pose a risk to the security of the prison. On 28 June 2012 the commission extended the regime, citing the same justification as in its previous decision of 3 April 2012.
On 27 September and 27 December 2012 the governor of Rzeszow Prison made further requests to extend the measure imposed on the applicant. The governor noted that the applicant had received some punishments and three rewards, but that it could still not be guaranteed that he would function correctly in the prison. He considered that the applicant continued to pose a serious danger to the security of the prison as he identified with the “prison subculture”, had behaved immorally and had not shown any remorse for the offences he had committed. On 27 September and 27 December 2012 the prison commission extended the application of the regime on the applicant. The decisions reiterated that the applicant “should consolidate his positive behaviour and carry out a deeper reassessment of his previous conduct”.
24. On 27 March 2013 the governor of Rzeszow Prison applied to the Prison Commission to lift the measure. The applicant ’ s behaviour had improved, he complied with internal regulations and was no longer aggressive towards the prison officers. According to the authorities he no longer posed a threat to the security of the prison. The regime was lifted on 27 March 2013.
25. Between 17 June 2009 and 9 December 2011 the applicant accumulated 372 Polish zlotys (PLN) in his release savings fund. In December 2012 he obtained further PLN 150 out of which half ( PLN 75 ) was placed in his release savings fund.
26. The applicant did not open a deposit or a savings account and it appears that he did not receive any payments afterwards.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
27. Article 88a § 2 (2) of the Code of Execution of Criminal Sentences (“the Code”) allows the imposition of the regime on a convicted person who poses a danger to the security of a prison by having:
“b) committed an assault on a prison officer or another person employed in a prison or a remand centre.”
28. The relevant domestic law and practice concerning the release savings fund are set out in the Court ’ s judgment in the case Siemaszko and Olszyński v. Poland ( nos. 60975/08 and 35410/09, § 30, 13 September 2016, not final ). In particular, Article 126 of the Code provides that 50% of the funds obtained by a convicted person, but no more than 4% of the national average monthly salary as established by the Central Statistical Office, should be deposited in his or her release savings fund to be returned to the prisoner upon his or her release. This money is intended to cover travel expenses to the place of residence and initial maintenance outside of the prison. The amount of savings in the fund was limited to one average monthly salary. Article 126 was amended with effect from 1 January 2012 so as to allow prisoners to place their savings in an interest-earning bank account of his or her choice. If a prisoner lacks sufficient funds on the day of his or her release, he or she may apply to the prison governor for a financial help in the amount of up to 30% of the average monthly salary (Article 166 § 3 of the Code).
29. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.
The latest version of those Rules adopted in 2006 (“the 2006 Rules”) provides in so far as relevant:
“ 26.11 Prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and to allocate a part of their earnings to their families.
26.12 Prisoners may be encouraged to save part of their earnings, which shall be handed over to them on release or used for other approved purposes .”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
30. The applicant complained that he had been unlawfully classified as a “dangerous detainee” and subjected to degrading treatment as prohibited by Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
31. 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.
32. The applicant submitted that the continuous and routine application of the full range of different measures under the “ dangerous detainee ” regime for the period of over two years had been unacceptable. He had never been convicted of a serious crime and had been unfairly depicted by the authorities as a violent individual in order to justify the imposition and extension of the regime.
33. The applicant submitted that he had been subjected to the full range of measures identical to those described by the Court in the Piechowicz judgment (cited above). Every time he had left or entered his cell, which had usually happened several times a day, he had been subjected to a degrading, exceptionally intrusive strip-search by two to three prison guards. His cell, including the sanitary facilities, had been monitored via a closed - circuit television system. He further referred to the excessive isolation from his family. He had been authorised one visit per month but in conditions making impossible to have direct contact; he and his visitors had been separated by a Perspex partition and had had to use a phone to communicate with one another. The applicant also complained that outside his cell he had had to wear “joined shackles” (handcuffs and fetters joined together with chains).
34. The Government argued that the applicant had been classified as a “dangerous detainee” in accordance with the relevant legal provisions and that the measures complained of had had a legal basis. They stated that the “ dangerous detainee ” regime had been lifted on 16 November 2011 as the applicant ’ s behaviour had improved. Unfortunately it had had to be applied again on 3 January 2012 as the applicant had plotted an assault on a prison officer and had been behaving aggressively. Once he had improved his behaviour in prison, the regime had been lifted again on 27 March 2013. In those circumstances the Government considered that subjecting the applicant to the regime had been legitimate and necessary for preventing the risk of disturbance and maintaining security in the prison.
35. The Government pointed out that the applicant had had the right to participate in educational and cultural activities, and to take part in sport. He had been allowed to listen to a radio and had had access to a library. The Government concluded that the treatment to which he had been subjected had not been incompatible with Article 3 of the Convention. They invited the Court to find no violation of that provision.
(a) General principles deriving from the Court ’ s case-law
36. The relevant general principles deriving from its case-law were recently summarised in the Court ’ s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 158-65, 17 April 2012) and Horych v. Poland (no. 13621/08, §§ 85-92, 17 April 2012).
(b) Application of the above principles in the present case
37. The Court notes that there is no dispute over the fact that from 24 February until 16 November 2011 and from 3 January 2012 to 27 March 2013, that is to say for almost two years, the applicant was classified as a so - called “dangerous detainee” and, in consequence, subjected to high - security measures and various restrictions (see paragraphs 11 - 2 4 above). The main aspects of the regime raised by the applicant (see paragraphs 11 and 33 above) were not contested by the Government (see paragraphs 34 ‑ 3 5 above). The details of the core aspects of the “dangerous detainee” regime were also extensively analysed in the Piechowicz judgment (cited above, § 166 with further references).
38. The Court notes that the decisions of 24 February 2011 and 3 January 2012 imposing the “dangerous detainee” regime on the applicant were legitimate measures warranted by the fact that the applicant had been aggressive to prison guards and threatened to assault a prison officer (see paragraphs 11 and 22 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, restrictions on his contact and communication with the outside world, and some form of segregation from the prison community.
39. It was not advanced by the parties that during the totality of the period in question the applicant had been held in a solitary cell or that he had been subjected to complete sensory or social isolation. He was also allowed to have family visits, albeit restricted in their number and their conditions. However, given the nature and extent of the other restrictions, the family visits alone could not have sufficiently mitigated the cumulative, adverse effects of the imposition of the “dangerous detainee” regime on the applicant.
40. 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, with the exception of a daily, solitary walk within the segregated area (see Piechowicz, cited above, §§ 172 - 73).
41. Furthermore, the Court is not convinced that shackling the applicant was necessary on each and every occasion ( ibid., § 174).
42. The Court has even more misgivings with regard to the full body search to which the applicant was likewise subjected daily, or even several times a day, whenever he left or entered his cell. The Court has already stated in the Piechowicz case (cited above, § 176) that while strip searches might be necessary to ensure prison security or to prevent disorder or crime, it was not persuaded by the Government ’ s argument that such systematic, intrusive and exceptionally embarrassing checks performed daily, or even several times a day, were necessary to ensure prison security. Strip searches were carried out as a matter of routine and were not linked to any specific security needs, nor to any specific suspicion concerning the applicant ’ s conduct.
43. Given that the applicant was already subjected to several other strict surveillance measures and that the authorities did not rely on any specific or convincing security requirements, the Court therefore considers that the practice of daily strip searches applied to him for almost two years must have caused him feelings of inferiority, anguish and accumulated distress which went beyond the unavoidable suffering and humiliation involved in detention (see Horych, cited above, § 101, and Piechowicz, cited above, §§ 175 - 76).
44. The Court has already noted that the authorities, in extending that regime, were not in fact obliged to consider any changes to the applicant ’ s personal situation and, in particular, the combined effects of the continuous application of the impugned measures (see Prus v. Poland, no. 5136/11, § 37, 12 January 2016 ). The Court considers that also in the instant case the authorities failed to sufficiently justify the extension of the regime.
45. In conclusion, the Court cannot accept that the indiscriminate application of the full range of measures that were available to the authorities under the so-called “dangerous detainee” regime for two periods, amounting nearly two years, was necessary in order to maintain prison security and was compatible with Article 3 of the Convention (see Piechowicz, cited above, § 170 and Romaniuk v. Poland, no. 59285/12, § 39, 12 January 2016 ). This conclusion cannot be altered by the fact that the applicant was released from the regime twice, on 16 November 2011 and 27 March 2013. Although the prison authorities ’ concerns for the safety of the prison were not unreasonable (see paragraph 38 above), taking into account the cumulative effects of the “dangerous detainee” regime on the applicant, the Court finds that the authorities did not provide sufficient and relevant reasons to justify the severity of the measures taken in their entirety in order to attain the legitimate aim of ensuring prison security.
46. There has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
47. The applicant complained of a violation of his right to peaceful enjoyment of possessions in that, when receiving a sum of money from his family, half of that amount had been placed in a special account to which he had had no access prior to his release. He relied on Article 1 of Protocol No. 1, which provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
48. The Government argued that the relevant legislation regulating the use of prisoners ’ money was compatible with the requirements of Article 1 of Protocol No. 1. They argued that that provision did not impair the right of States to enact such laws as they deem necessary to control the use of property in accordance with the general interest. The purpose of the relevant legislation was to ensure that prisoners have some necessary savings when released from prison having served their sentence. The applicant had been entitled to use half of his money and the second half had not been confiscated from him, merely saved for the future. As of 1 January 2012 the applicant had been authorised to place his savings in an interest-earning savings account of his choice but he had failed to do so. Even though such a regulation interfered with the right of prisoners to freely dispose of their money, it was not a disproportionate interference because prisoners were provided, free of charge, with food, clothing and other items and services. Without any funds upon release, prisoners would need financial help from the State for their trip back home and initial living expenses. Moreover, such regulations were in compliance with European Prison Rules which endorsed encouraging prisoners to save a part of their earnings (see paragraph 2 9 above). The measure of obliging the prisoners to save money should be considered proportional to the aim pursued as it was limited to 50% of the sum received by the prisoners and the amount saved could not exceed the national average monthly salary as established by the Central Statistical Office (in December 2011 it amounted to PLN 4,015 – equivalent to 950 euros (EUR )).
49. The Government further argued that the present application should be declared inadmissible on the grounds that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention as amended by Protocol No. 14.
50. The applicant stated that owing to the poor financial situation of Polish remand centres and prisons, detainees had been provided with an unsatisfactory amount of toiletries and other sanitary supplies. Prisoners had been allowed to buy necessary toiletries and cleaning products from the prison shop. The applicant had had no income while imprisoned and the only way in which he could buy them had been to ask his family members for help. However, half of the money he had received from his poor relatives had been taken away from him and placed in an account to which he did not have access while in detention. Between June 2009 and November 2011 he had received PLN 695 from his relatives but he had only been able to use only half of that money ( PLN 347 – equivalent to EUR 80 ). The applicant considered that the State should not force poor prisoners to save, leaving them with derisory sums at their disposal. Such interference did not pursue a legitimate aim and was not necessary in a democratic society.
51. The Court reiterates that Article 1 of Protocol No. 1 guarantees in substance the right of property. Any interference with that right must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (for a recapitulation of the relevant principles see, for example, Beyeler v. Italy [GC], no. 33202/96, §§ 108-114, ECHR 2000 ‑ I, and Metalco Bt. v. Hungary, no. 34976/05, § 16, 1 February 2011, with further references).
52. The Court firstly notes that the applicant complained about the obligation to save half of his money in the release savings fund. In particular, he did not complain that, prior to 31 December 2011, he had been limited in his choice of where to place his savings (compare and contrast Siemaszko and Olszyński, cited above, § 78 ).
53. The applicant was specifically allowed to use half of his money; the second half was inaccessible to him during his incarceration and placed in a special fund. There has thus been an interference with the applicant ’ s right under Article 1 of Protocol No. 1 to the peaceful enjoyment of his possessions, which amounts to a control of the use of the applicant ’ s property within the meaning of the second paragraph of that provision. The interference had a legal basis, namely Article 126 of the Code (see paragraph 28 above). The legitimate aim of such limitations was to ensure that the applicant would have a certain sum of money for his reintegration into society after his release from prison.
54. The Court reiterates that States have a wide margin of appreciation under Article 1 of Protocol No. 1 when it comes to general measures of economic or social strategy (see Stummer v. Austria [GC], no. 37452/02, § 89, ECHR 2011). The Court has recognised in the past that the obligation for prisoners to use half of their money to pay back their debt to the State was not disproportionate to the aim pursued ( see Laduna v. Slovakia, no. 31827/02, §§ 82-86, ECHR 2011 ). The Court has also held that the national authorities could not be reproached for ensuring that a limited sum of money was deposited in a savings fund to be handed over to the applicant on his release from prison (see Loog v. Estonia (dec.), no. 56419/15, 31 May 2016).
55. The Court notes that the interference at issue was limited to when the applicant could use his money, but did not deprive him of it. The money in the savings fund was not taken over by the State, but remained the property of the prisoner. As of 1 January 201 2 the applicant could have placed his savings in an interest-earning account but he had chosen not to do so (see paragraph 26 above). The sums in release savings accounts were quite moderate, with the maximum amount of savings to be deposited equal to the average monthly salary as estimated by the statistical office ( about EUR 9 5 0 at the material time ). Each transfer to the fund was also limited to 4% of the average monthly salary (see paragraph 28 above). The Court considers that a State has the right to use such schemes as it deems most appropriate for the reintegration of prisoners into society upon their release, including by securing for them a certain amount of money (see Loog, cited above).
56. In conclusion, the complaint under Article 1 of Protocol No. 1 to the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Consequently, the Court does not find it necessary to examine the Government ’ s objection that the applicant has not suffered a significant disadvantage (see paragraph 49 above).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
57. In his observations of 5 January 2015 the applicant ’ s lawyer also alleged that, irrespective of the fact that the imposition of the “dangerous detainee” regime on the applicant 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.
58. The Government noted that the applicant was classified as a “dangerous detainee” until 27 March 2013 and therefore this complaint was introduced out of time.
59. The Court considers that, in the light of its finding under Article 3 of the Convention (see paragraph 46 above) concerning the main issues raised by the applicant ’ s detention, it is not necessary to examine either the admissibility or the merits of this complaint (see Eze v. Romania, no. 80529/13, § 65, 21 June 2016 ).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. 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.”
61. The applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage.
62. The Government contested the claim as excessive.
63. The Court awards the applicant EUR 6 ,000 in respect of non ‑ pecuniary damage.
64. The applicant, who had received legal aid from the Council of Europe in connection with the presentation of his case, also claimed EUR 3,000 for the costs and expenses incurred before the Court. That amount was based on thirty hours of legal work including preparation of the case, meetings with the applicant and drafting of the written submissions on his behalf, at an hourly rate of EUR 100.
65. The Government submitted that the claims were excessive.
66. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, and taking into account the sums paid by way of legal aid from the Council of Europe, the Court awards EUR 1,000 for the proceedings before the Court (see Karácsony and Others v. Hungary [GC], no. 42461/13, § 190, ECHR 2016 (extracts)).