CASE OF FILAS v. POLAND

FIRST SECTION

CASE OF FILAS v. POLAND

(Application no. 31806/17)

JUDGMENT
 

STRASBOURG

15 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Filas v. Poland,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Alena Poláčková, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 31806/17) 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 Gniewomir Filas (“the applicant”), on 11 April 2017;

the decision to give notice to the Polish Government (“the Government”) of the application;

the parties’ observations;

Having deliberated in private on 16 March 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns lengthy imposition of a “dangerous detainee” regime on the applicant.

THE FACTS

2.  The applicant was born in 1991 and is detained in Gorzów Wielkopolski.

3.  The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  Since 26 September 2011 the applicant had been serving various prison sentences for battery and robbery, in different detention facilities.

6.  On 25 September 2014 the Prison Commission of Iława Prison (komisja penitencjarna) classified the applicant as a dangerous detainee. The commission took into consideration the opinion of the prison authorities which indicated that the applicant had assaulted a prison officer.

7.  The regime was subsequently extended every three months. For the period until 8 December 2015 the decisions of the commission were limited to a statement that the applicant should remain classified as a “dangerous detainee”. The requests for extension of the regime made by the prison authorities noted that the applicant had received numerous disciplinary punishments for his aggressive behaviour. For instance, on 16 August and 17 November 2015 the applicant had again assaulted prison officers.

8.  On 24 February 2016 the Poznań Detention Centre Prison Commission further extended the regime. The commission referred to opinions of the prison authorities requesting extension of the regime and considered that it had been necessary for the prison security to continue application of the dangerous detainee regime. Thereafter the regime was extended every three months. All subsequent decisions had identical wording.

9.  The applicant appealed against the decision of the Poznań Detention Centre Prison Commission issued on 8 February 2017.

10.  On 27 March 2017 the Poznań Regional Court (Sąd Okręgowy) upheld the challenged decision. The court stated that the applicant’s classification had been justified by his written statement threatening the prison officers “to scald them with boiling water”.

11.  The applicant served his sentence and was released on 19 November 2017.

12.  During his detention the applicant was placed in single cells, with the exception of a period of about two weeks when he had shared his cell with another inmate. The cells, including the toilet corner, were monitored by closed-circuit television. The applicant was subjected to strip searches every time he left or entered his cell. When moving outside the cell the applicant was handcuffed with so-called “joined handcuffs” (hands joined by chains with fetters).

RELEVANT LEGAL FRAMEWORK AND PRACTICE

13.  The relevant domestic law and practice concerning the imposition of dangerous detainee status are set out in the Court’s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 105-117, 17 April 2012) and Horych v. Poland (no. 13621/08, §§ 44-56, 17 April 2012).

14.  On 10 September 2015 the relevant sections of the Code of execution of Criminal Sentences were amended. They entered into force on 24 October 2015. They currently read as follows:

Section 88a

“2. When taking the decision to classify a convicted person as posing a serious danger to society or prison security, and when reviewing such decision, the prison commission takes into account:

1) the personal characteristics and circumstances of the prisoner;

2) the motives and conduct while committing the offence [for which the person had been convicted] and the type of offence...;

3) the behaviour in prison;

4) lack of moral character and progress in social rehabilitation.”

Section 88b

Ҥ 1 In a closed-type prison, convicted persons posing a serious danger to society or prison security shall serve their sentence under the following conditions:

1) cells and places designated for: work, study, walks, visits, services, religious meetings and cultural and educational and sport activities are equipped with appropriate technical safeguards;

2) the cells remain closed whole day and are more frequently controlled...;

3) within their unit, convicted persons may study, work and participate in religious teachings, meetings and services, as well as in cultural and sport activities;

4) movement of the convicted person within the prison facility shall take place under increased control and is limited to necessary needs only;

5) convicted persons shall be subject to a [strip search] each time they leave and enter their cells...;

10) convicted persons shall not be allowed to wear their own clothing and footwear.

§ 2 the Prison Commission may decide that there is no need to use all measures referred to in § 1 and suspend their application... If justified by circumstances, the measures suspended may be reinstated.

§ 3 At the request of the convicted person or his or her defence counsel, but not more than once every 3 months, the prison commission shall indicate the reasons justifying the qualification of the convicted person as posing a serious danger to society or prison security ...”

THE LAWALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

15.  The applicant complained about the lengthy imposition of the dangerous detainee regime. He relied on Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”Admissibility

16.  The Government argued that the applicant had failed to make use of the available remedies, as he had not appealed against all the decisions of the Prison Commission. Fourteen decisions were issued and the applicant appealed against only one of them (see paragraphs 9-10 above). Moreover, it was open to the applicant to lodge a civil claim for compensation.

17.  The applicant did not comment on admissibility of the case.

18.  The Court reiterates that, although Article 35 § 1 of the Convention requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that recourse should be had to remedies that are inadequate or ineffective (see Egmez v. Cyprus, no. 30873/96, § 64, ECHR 2000‑XII).

19.  The Court firstly notes that in a number of cases against Poland concerning imposition of the dangerous detainee regime the Court has rejected the Government’s argument that the applicants should have had recourse to a claim for the protection of personal rights (see, for example, Głowacki v. Poland, no. 1608/08, §§ 60‑63, 30 October 2012; Chyła v. Poland, no. 8384/08, § 69, 3 November 2015; and Klibisz v. Poland, no. 2235/02, §§ 301-302, 4 October 2016). In the present case the Government failed to submit any examples of the domestic practice which would demonstrate the effectiveness of that remedy for the purposes of Article 35 § 1 of the Convention (see Dejnek v. Poland, no. 9635/13, § 54, 1 June 2017). It follows that the Government’s plea of inadmissibility on the grounds of non‑exhaustion of domestic remedies as regards the use of civil remedy must be dismissed.

20.  As regards the Government’s objection that the applicant appealed against only one decision of the prison commission, the Court considers that the alleged non-exhaustion of domestic remedies is inseparably linked to the Court’s assessment of the reasonableness of the measures complained of, and in particular with the question of whether the lengthy imposition of the dangerous detainee regime on the applicant was properly justified by the authorities. In the Court’s view, it would therefore be more appropriate to deal with the Government’s argument at the merits stage (see Karwowski v. Poland, 29869/13, § 26, 19 April 2016, and Świderski v. Poland, no. 5532/10, § 43, 16 February 2016).

21.  The Court accordingly joins the remainder of the Government’s plea of inadmissibility on the grounds of non-exhaustion to the merits of the case.

22.  It further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

23.  The applicant in general maintained his complaint under Article 3 of the Convention.

24.  The Government submitted that the applicant had been classified as a dangerous detainee in accordance with the relevant legal provisions. The basis for the application of the regime was his assault on a prison guard. The imposition of dangerous detainee status should thus be considered as having been legitimate and necessary in order to ensure prison security.

25.  The application of dangerous detainee status to the applicant had been reviewed every three months. The reasons for the application of the regime had remained valid throughout the period concerned. The extensions of the regime were justified by his having received multiple disciplinary punishments and by further incidents of aggressive behaviour towards prison officers. In the Government’s opinion, the duration and severity of the measures imposed on the applicant did not go beyond the legitimate security requirements in the penitentiary units and in the circumstances of the present case the measures applied had been necessary for the prison authorities to achieve their legitimate aim.

26.  The Government stressed that the applicant had been provided with appropriate stimulation and adequate human contact during the relevant period. In particular, he had access to the library and participated in various sports and cultural activities.The Court’s assessment

27.  The relevant general principles deriving from the Court’s case-law were summarised in Piechowicz (cited above, §§ 158-165) and Horych (cited above, §§ 85-92).

28.  The Court notes that there is no dispute over the fact that from 25 September 2014 to 19 November 2017 that is, for three years and almost two months, the applicant had been classified as a dangerous detainee and, in consequence, subject to high‑security measures (see paragraphs 6 and 11 above). The main aspects of the regime raised by the applicant and specified below have not been contested by the Government (see paragraph 12 above).

29.  The measures applied in the applicant’s case comprised confinement in a special high-security prison wing and increased supervision of his movements within and outside the prison. The measures involved his segregation from the prison community. 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, which required him to strip naked and bend over in order to enable the examination of his anus (see Piechowicz, cited above, § 166). In addition his cell, including the sanitary facilities, was constantly monitored via closed‑circuit television. Finally, whenever outside the cell the applicant had to wear joined shackles (handcuffs and fetters joined together with chains).

30.  The Court notes that the authorities justified their decision of 25 September 2014 imposing the dangerous detainee regime on the applicant by his having assaulted a prison guard (see paragraph 6 above). It was therefore not unreasonable on the part of the authorities to consider that, for the sake of ensuring prison security, he should be subject 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 rest of the prison community.

31.  However, for the reasons stated below, the Court cannot accept that the continued, routine and indiscriminate application of the full range of measures that were available to the authorities under the dangerous detainee regime for over three years was necessary in order to maintain prison security or compatible with Article 3 of the Convention.

32.  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.

33.  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 held in Piechowicz (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, or to any specific suspicion concerning the applicant’s conduct.

34.  Having regard to the fact that the applicant was already subject to several other strict surveillance measures and that the authorities did not rely on any specific or convincing security requirements, the Court considers that the practice of daily strip searches, applied to him for over three years, must have caused him feelings of inferiority, anguish and accumulated distress which went beyond the unavoidable suffering and humiliation involved in the imposition of pre‑trial detention (see Horych, cited above, § 101, and Piechowicz, cited above, § 176).

35.  The Court finally observes that, following the amendments to the domestic law which entered into force on 24 October 2015, the new section 88b (2) made it possible for the prison commission to modify the scope of security measures applicable to the detainees (see paragraph 14 above). However, in the period between October 2015 and the applicant’s release on 19 November 2017, the commission had given no consideration to the necessity to uphold all measures applied in the case (see paragraph 8 above). Furthermore, in application of Section 88a (2) of the Code, the decisions of the prison commission were to be based on specific reasons pertaining to the applicant’s recent behaviour. Nevertheless, in the instant case all decisions of the prison commission were based on the same reasons, repeated word for word, and the authorities failed to give any specific grounds for maintaining the applicant’s classification (see paragraphs 7 and 8 above). It follows that the procedure for review of the applicant’s dangerous detainee status became a pure formality, being limited to the repetition of the same grounds in successive decisions (see Piechowicz, cited above, § 177).

36.  In conclusion, assessing the facts of the case as a whole and considering the cumulative effects of the dangerous detainee regime on the applicant, the Court finds that the authorities did not provide sufficient and relevant reasons which could justify, in the circumstances of the case, the severity of the measures taken. In particular, the authorities failed to show that the impugned measures were necessary in their entirety to attain the legitimate aim of ensuring prison security.

37.  There has accordingly been a violation of Article 3 of the Convention. In consequence, and particularly in the light of the findings in paragraph 35 above, the Government’s preliminary objection based on non‑exhaustion of domestic remedies (see paragraph 21 above) must be rejected.APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  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.”

39.  The applicant, who was not represented, asked for an award of just satisfaction without specifying the amount sought.

40.  The Government considered that no award should be granted as the applicant had failed to specify his claim.

41.  The Court considers that, in the particular circumstances of the case, the applicant sufficiently specified his claim. It therefore awards the applicant 7,000 euros (EUR) in respect of non-pecuniary damage.

42.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Joins the Government’s objection of non-exhaustion to the merits of the case and rejects it;Declares the application admissible;Holds that there has been a violation of Article 3 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months EUR 7,000 (seven thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Attila TeplánAlena Poláčková
Acting Deputy RegistrarPresident

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