FOURTH SECTION
DECISION
Application no. 15593/07
Janusz KAWIECKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 23 October 2012 as a Chamber composed of
Päivi Hirvelä, President,
Lech Garlicki,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 23 March 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Janusz Kawiecki, is a Polish national, who was born in 1953 and lives in Warszawa. His application was lodged on 23 March 2007. He was represented before the Court by Mr J. Ratajczak and Ms S. Kermiche, lawyers practising in Warszawa.
The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of criminal proceedings against the applicant and his pre‑trial detention
3. On 31 January 2001 the applicant was arrested on suspicion of leading an armed organised criminal gang and of committing a number of serious offences including murder, extortion, kidnapping and soliciting prostitution.
4. On 1 February 2001 the Katowice District Court remanded him in custody. The court gave as reasons for the applicant’s pre‑trial detention the existence of strong evidence against him, the gravity of the offences with which he had been charged, and the severity of the penalty which could be imposed if he was convicted. Moreover, the authorities stressed the need to ensure the proper conduct of proceedings given the risk that the applicant might attempt to induce witnesses to give false testimony. The risk was considered especially high since the proceedings involved a great number of co-suspects, witnesses and alleged victims, and because the applicant was suspected of having committed certain offences with particular cruelty.
5. On 15 July 2002 the applicant was indicted, together with ten alleged accomplices, of numerous offences, including membership of an armed organised criminal group, several counts of kidnapping, extortion and robbery, and of rape (no. VI Ds 72/00/S).
6. The trial against the applicant and seven co-defendants began on 11 December 2002. The court held forty-six hearings in total. Throughout the proceedings the applicant was represented by a lawyer appointed under a legal‑aid scheme.
7. Meanwhile, the applicant’s detention was extended by decisions of the Katowice District and Regional Courts. The domestic courts relied on the original grounds for the applicant’s detention, stressing, in addition, the complexity of the case.
8. On 14 July 2004 the Gliwice Regional Court convicted the applicant of several offences, including several counts of kidnapping, extortion and robbery, all of which had been committed within an organised criminal gang headed by the applicant. The court acquitted the applicant of the rape of a certain J.K and of fraud. The court further established that the organised criminal gang which the applicant headed could not be considered an armed group. The applicant was sentenced to seven years’ imprisonment and a fine (no. IV K 100/02).
9. On an unspecified date the Prosecutor and the applicant’s lawyers appealed against that judgment. Throughout the appellate proceedings the applicant was represented by two lawyers of his choice. The defence argued that the first-instance court had erred in the assessment of the evidence against the applicant.
10. On 23 February 2005 the Katowice Court of Appeal rejected the applicant’s application to attend the appellate trial while in prison. The court considered that the applicant’s presence at the trial would be pointless in view of the limited scope of the appeal.
11. On 8 December 2005 the Katowice Court of Appeal quashed the first-instance judgment in the part concerning the applicant’s acquittal of rape and fraud. In this connection the case was remitted to the first-instance court. The court also decided to reclassify several other charges against the applicant while upholding the conviction and the original prison sentence (no. II Aka 68/05).
12. On 10 January 2007 the Supreme Court dismissed a cassation appeal against the judgment of 8 December 2005 (no. IV KK 389/06).
13. As a result of review proceedings, on 24 April 2006 the Gliwice Regional Court convicted the applicant of rape and acquitted him of fraud. The court sentenced the applicant to two years’ imprisonment (no. IV K 1/06).
14. The applicant’s lawyer and the prosecutor appealed on points of law.
15. On 19 July 2006 the Katowice Court of Appeal rejected the applicant’s application to attend the appellate hearing while in prison. The trial court held that since the parties had not appealed on points of fact, the applicant’s appearance before the court would be pointless. The court considered it sufficient for the applicant to be represented by his lawyer.
16. On 7 September 2006 the Katowice Court of Appeal quashed the judgment of 24 April 2006 in the part concerning the applicant’s acquittal of fraud, and remitted the case in this part to the Warsaw District Court as the first-instance court. The court upheld the applicant’s conviction of rape.
17. On 14 March 2007 the Supreme Court dismissed the applicant’s cassation appeal against the above judgment (no. IV KK 484/06).
18. The applicant did not furnish any information on the subsequent review proceedings concerning the offence of fraud.
19. On 17 May 2007 the Gliwice Regional Court decided to combine the applicant’s prison sentences and, ultimately, to sentence him to 8 years’ imprisonment and a fine. On 9 August 2007 that judgment was upheld by the Katowice Court of Appeal. The applicant’s legal-aid lawyer lodged a cassation appeal against the latter judgment with the Supreme Court.
20. On 18 July 2007 the Gliwice Regional Court sentenced the applicant to 90 days’ imprisonment, which was to replace the unexecuted fine imposed by the judgment of the same court on 14 July 2004.
21. Irrespective of the above convictions and prison sentences, the domestic courts have continued to extend the applicant’s detention in connection with the still ongoing proceedings.
2. Second set of criminal proceedings against the applicant and his pre-trial detention
22. On 6 February 2002 the Białystok District Court remanded the applicant in custody in connection with a new criminal case (case no. XVIII K 227/03).
23. On 24 January 2003 the Białystok Regional Prosecutor lifted the preventive measure imposed in connection with these proceedings on account of the fact that the applicant was concurrently detained in connection with another criminal case pending against him.
24. On 16 June 2003 the applicant was indicted, together with eleven alleged accomplices, of numerous offences, including membership of an armed organised criminal group, three counts of being an accessory to murder, soliciting prostitution, the rape of K.P. in October 2000, illegal possession of weapons, and drugs trafficking (no. VI Ds 62/01/S).
25. On 5 October 2004 the Warsaw Regional Court acquitted the applicant (no. XVIII K 227/03).
26. On 8 June 2005 the Warsaw Court of Appeal upheld the first‑instance judgment in the part concerning the applicant (no. II AKa 149/05).
3. Third set of criminal proceedings against the applicant and his pre-trial detention
27. On 21 October 2004 the Katowice District Court remanded the applicant in custody in connection with new criminal proceedings against him. The court justified the applicant’s pre‑trial detention by the existence of strong evidence against him, the gravity of the offences with which he had been charged and the severity of the penalty which could be imposed on him if he was convicted. Moreover, the court stressed that the applicant was suspected of acting in an armed organised criminal gang.
28. On 17 September 2004 the applicant was charged, and on 20 December 2004 he was indicted of acting within an armed organised criminal gang and accepting large sums of money which derived from the criminal activities of S.S., A.K. and A.M. The bill of indictment also concerned twelve other alleged members of the applicant’s alleged criminal gang (no. Ap II Ds. 11/01/S).
29. On 28 December 2004 the Katowice District Court decided to extend the applicant’s pre-trial detention because of the severe penalty which could be imposed for the offences charged and the risk that he would tamper with evidence.
30. On 23 May 2005 the Katowice District Court relinquished jurisdiction of the case to the Katowice Regional Court.
31. On the same date the Katowice District Court dismissed the applicant’s appeal against the decision to extend his detention.
32. On 12 December 2005 the Katowice Regional Court severed the case of the applicant and eight co-defendants to separate proceedings.
33. It appears that the applicant continued to be remanded in connection with these proceedings until 31 January 2009 when, since he had by that time finished serving his prison sentences, he was released. It has not been submitted to the Court whether the proceedings are still pending before the domestic court.
4. The applicant’s detention
(a) The chronology of the applicant’s detention
34. The applicant was in continuous detention from 31 January 2001 until 31 January 2009. Throughout that time he was committed to the penitentiary facilities listed below.
35. From 31 January 2001 until presumably 4 February 2002, 25 February until 11 October 2002, 9 December 2002 until 25 April 2003 and from 13 May 2003 until 28 July 2004 the applicant was detained in Gliwice Remand Centre.
36. From 28 July until 18 October 2004 and from 2 July until 13 August 2008, he was committed to Białołęka Remand Centre.
37. From 18 October 2004 until 1 February 2005 he was detained in Katowice Remand Centre.
38. From 1 February 2005 until 18 January 2006, 19 May 2006 until 2 July 2008 and from 13 August until 31 January 2009 the applicant was committed to Mysłowice Remand Centre.
39. From 18 January 2006 to 19 May 2006 he was detained in Racibórz Prison.
40. Since his release on 31 January 2009 the applicant has been at liberty.
(b) The detention regimes
41. For the most part of his detention the applicant was assigned to an ordinary security regime.
On two separate occasions, from 6 February 2001 until 22 July 2004 and from 12 October 2005 until 18 May 2006 he was placed under a high-security regime for the so-called dangerous detainees.
42. From 6 February 2001 until 22 July 2004 the applicant was classified by the remand centre’s penitentiary commission (komisja penitencjarna) as a “dangerous detainee” because of the gravity of the offences with which he had been charged in the first set of criminal proceedings against him and the threat which he was considered to pose to society and the prison community.
43. The first classification decision was issued by the Penitentiary Commission of Gliwice Remand Centre on 6 February 2001 and the applicant did not appeal against it. Subsequent, review decisions, upholding the applicant’s status of a “dangerous detainee” were taken on 2 May, 2 August and 31 October 2001, 29 January, 29 April and 23 July 2002, 21 January, 15 April, 15 July, 16 September and 16 December 2003, 16 April, 16 June and 22 July 2004. The applicant did not lodge formal interlocutory appeals against these decisions. On 20 January 2004, however, he filed an application with the penitentiary court, asking that his special detention status be lifted.
44. On 18 October 2004 his “dangerous detainee” status was lifted.
45. Later, on 22 September 2005, during his detention in Mysłowice Remand Centre, a cellular phone was discovered in the applicant’s cell, which he shared with other prisoners. The authorities attributed ownership of the phone to the applicant and imposed on him a disciplinary measure of 14 days’ solitary confinement.
46. On 12 October 2005 Mysłowice Remand Centre’s Penitentiary Commission classified the applicant as a “dangerous detainee”.
47. The applicant appealed against this decision, arguing that his classification as a “dangerous detainee” constituted a second punishment for the same disciplinary offence since he had already been punished for the possession of the phone by fourteen days of solitary confinement.
48. On 25 November 2005 the Katowice Regional Court dismissed the applicant’s appeal. The penitentiary judge observed that the 14‑day solitary confinement had been ordered as a punishment for the applicant’s breach of the rules of detention, whereas his reclassification from an “ordinary” to a “dangerous” detainee had resulted from the periodic evaluation of his behaviour and the nature of his offences, of which he had by that time been convicted.
49. The applicant’s special status was maintained throughout his subsequent detention in Racibórz Prison and was eventually lifted on 18 May 2006.
(c) Features of the applicant’s detention regimes
50. The applicant submitted that his detention under the “dangerous detainee” regime had been particularly difficult to bear.
51. He submitted that he had been held in solitary confinement, without any contact with his fellow inmates and without access to a proper day room (świetlica). He claimed that only a small room, which had been converted from a single cell and equipped with an exercise bicycle and a telephone, was put at his disposal. He admitted that he had not wished to use this room as he preferred the better equipped day room for detainees under the ordinary regime.
52. The applicant also claimed that as a “dangerous detainee” he had been strip-searched each time he had left or returned to his cell. In addition, he was shackled each time he went for exercise outdoors or to a meeting with his family.
53. To that effect the applicant submitted copies of two memoranda (notatka służbowa) issued by the administration of Mysłowice Remand Centre which provided a detailed description of his cell, the procedure for subjecting him to strip searches, and the rules on the use of handcuffs and shackles.
54. According to the document of 6 August 2007, the applicant’s cell had double doors with a vestibule between them. The outer door was made of solid iron and the inner door was made of steel bars with a hatch for passing food through.
The applicant, because of his status of a “dangerous detainee”, was subjected to regular strip searches each time he left and returned to his cell. During the procedure in question he remained inside his cell while a remand centre guard stood in the vestibule, the barred door between them remaining locked. The applicant had to remove his clothes and give them to the guard through the hatch. The guard would search the clothes and then, it appears, perform a body search through the bars.
Lastly, the document stated that, when necessary, a person who was classified as a “dangerous detainee” could be conveyed to or from a remand centre or moved around within the facility wearing different kinds of shackles and handcuffs. Since the applicant had the status in question and, in addition, he was aggressive towards guards, he was shackled when moved from his cell.
55. A similar document of 3 August 2007 reveals that during his detention in Mysłowice Remand Centre between 12 October 2005 and 18 January 2006 the applicant had been scheduled to take part in activities in a day room on Wednesdays, and to have access to the remand centre’s library on Thursdays.
56. The applicant also submitted that under the high-security regime, his meetings with his family and his lawyer had been monitored by remand centre staff.
57. To that effect, the applicant presented the Court with the copies of eighteen decisions issued by the Katowice Regional Prosecutor between 9 March 2001 and 8 January 2002 granting his partner the right to visit him in the remand centre while being monitored by a prison guard (w asyście funkcjonariusza służby więziennej). According to the applicant, his partner had been killed in a car accident shortly after the latter date. For many years after that no family members sought to visit the applicant in detention.
58. Lastly, the applicant submitted that as a “dangerous detainee” he had not been allowed to attend mass in the remand centre’s chapel.
59. In the light of the memorandum issued by the administration of Mysłowice Remand Centre on 3 August 2007, between 12 October 2005 and 18 January 2006 Mysłowice Remand Centre had provided the applicant with the opportunity to have private meetings with the remand centre’s catholic priest. The applicant, however, had never expressed an interest in having such a meeting.
60. The applicant further claimed, although without submitting any documents, that in 2007, when he had been detained under an ordinary detention regime, his cousin had expressed a wish to make regular visits to him in Mysłowice Remand Centre. It appears that the remand centre’s governor refused to authorise regular visits from the cousin. That decision was justified with reference to safety reasons because the visitor in question had recently been detained in the same remand centre as the applicant. On the other hand, the governor did authorise one visit from the cousin in May and another one in August 2007. However, it appears that the governor did not agree to change the latter date to September 2007 as requested by the applicant after his cousin had changed his plans.
5. Civil actions concerning the regime of the applicant’s detention
61. On 26 February 2007 the applicant brought a civil action for compensation for infringement of his personal rights on account of the allegedly unjustified and lengthy pre-trial detention and his classification as a “dangerous detainee” from 2001 until 2004 and form 2005 until 2006.
62. On 31 October 2007 the Gliwice Regional Court dismissed the applicant’s action. In so far as he had sought compensation for his detention under the regime for “dangerous detainees”, the domestic court held that the applicant’s claim had lacked any merit. It was noted that the relevant penitentiary commissions had twice classified the applicant as a person posing a serious threat to society or to the security of a remand centre within the meaning of Article 212 (a) §§ 2 and 3 of the Code. The conditions of the applicant’s detention under that regime, including the special security measures it entailed, were regulated by Article 212 (b) of the Code. It was also stressed that the applicant had had a possibility to lodge appeals against the decisions about his status and complaints about elements of his detention under the regime. In view of the above, the Gliwice Regional Court did not find any substantive basis to give consideration to the applicant’s action for compensation.
63. On 17 January 2008 the Katowice Court of Appeal upheld the first‑instance judgment after the applicant’s unsuccessful appeal.
64. On an unspecified date, presumably in 2006 or early-2007 the applicant brought another action for compensation on account of his unreasonably long detention pending trial from 2004 until 2006, his disciplinary punishment in Mysłowice Remand Centre in 2005, his classification as a “dangerous detainee” in 2005 and 2006 and the conditions of his detention under the special regime, implying among other things restrictions on his religion practice.
65. On 28 September 2007 the Katowice District Court dismissed the applicant’s action. On 28 February 2008 the Katowice Regional Court quashed that judgment because of a procedural shortcoming, namely the fact that the applicant had not been allowed to take part in the hearing before the first-instance court. Subsequently, on 29 May 2008 the Katowice District Court dismissed the applicant’s action in the review proceedings and on 11 December 2008 the Katowice Regional Court dismissed an appeal lodged against that judgment by the applicant.
66. The domestic courts held that the applicant’s disciplinary punishment in 2005 and the imposition of the special detention regime from 2005 until 2006 had been in accordance with the law and fully justified in the light of the applicant’s behaviour and the nature of the charges against him. Moreover, the conditions of the applicant’s detention at the material time, in particular his solitary confinement and personal checks had been a consequence of his classification as a “dangerous detainee” and did not constitute tort on the part of the State authorities.
B. Relevant domestic law and practice
1. General rules concerning conditions of detention
67. Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice.
Article 40 of the Constitution reads:
“No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.”
Article 41 of the Constitution, in its relevant part, provides:
“4. Anyone deprived of liberty shall be treated in a humane manner.”
68. Article 212 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”), which entered into force on 1 September 1998, provides:
“1. Persons in pre-trial detention shall be quartered in the remand centre in such a way as to prevent their mutual demoralisation. In particular, detainees [without] convictions shall be separated from those with previous convictions (...). The following [elements] in particular shall be taken into consideration [when assigning] detainees to wards and cells:
2) the need to provide order and security in a remand centre,
3) ...
4) the need to create a proper atmosphere among detainees,
5) the necessity to prevent acts of self-aggression and crimes during detention.
2. When quartering detainees the remand centre’s administration shall take into consideration the recommendations of the [supervising] authority in charge of a detainee, which aim to ensure the proper administration of justice and security in a remand centre.
3. Should it be necessary to isolate detainees from each other, the authority at whose disposal they are detained shall inform the remand centre’s governor."
2. Provisions pertaining to the organisation of penitentiary commissions, the classification of detainees and the special regime for “dangerous detainees”
69. A remand centre penitentiary commission operates on the basis of Article 75 of the Code and the Ordinance of the Minister of Justice of 25 August 2003 on the rules concerning the execution of detention on remand (Rozporządzenie w sprawie regulaminu organizacyjno-porządkowego wykonywania tymczasowego aresztowania). According to the relevant provisions of this Ordinance (Sections 41-44) the penitentiary commission is established and headed by the governor of a remand centre who also decides on the composition of the commission and the mode of examination of cases. A penitentiary commission comprises at least three members chosen, in particular, among staff from the penitentiary and security sectors. The detainee’s supervisor (wychowawca) takes part in the penitentiary commission’s meeting concerning him. The penitentiary commission delivers its decision and gives its opinion after hearing the detainee concerned and in his presence. The decisions and opinions are in writing and reasoned. They are filed in the detainee’s personal records. According to Article 76 of the Code if the commission’s decision on the classification of a detainee is contrary to the law, the relevant penitentiary court may quash or alter that decision.
70. The classification of detainees as “dangerous” is regulated by Article 212a of the Code, which in its relevant part states the following:
1. A penitentiary commission shall classify a detainee as posing a serious threat to society or to the security of a remand centre and [the penitentiary commission] shall review its decision in that matter at least once every three months,. Information on the decisions made shall be conveyed to the authority in charge of a detainee and the penitentiary judge.
2. A detainee, as mentioned in paragraph 1[of the cited provision], shall be placed in a designated wing or cell in the remand centre in conditions providing increased protection to society and the security of the remand centre, and the penitentiary judge shall be informed.
3. A detainee who is suspected of committing a crime in an organised criminal group or union whose aim is to commit crimes shall be placed in a remand centre in conditions providing increased protection to society and the security of the remand centre unless particular circumstances dictate otherwise.
71. Article 212b of the Code regulates the conditions of detention of “dangerous detainees”. In particular it provides:
“1. In a remand centre a [“dangerous detainee”] is held in the following conditions:
1) cells and places designed 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 security systems];
2) cells shall be checked more often than those in which detainees [not classified as “dangerous”] are held;
3) a detainee is allowed to study, work, participate directly in religious services, religious meetings and classes, and participate in cultural and educational activities, exercise and sports only in the wing where he is held;
4) a detainee’s movement around a remand centre shall be subject to closer supervision and limited to the strictly necessary;
5) a detainee shall be strip-searched each time he leaves and returns to his cell;
6) a detainee’s walk shall take place in designated areas and under increased supervision;
7) ...
8) visits shall take place in designated areas and under increased supervision ...;
9) a detainee cannot make use of personal clothes and footwear.
3. Provisions pertaining to the use of measures of physical restraint in detention
72. The procedure on security measures while escorting a detainee within or outside his detention facility is regulated primarily by the Law of 26 April 1996 on the Prison Service (Ustawa o Służbie Więziennej).
Section 19 of that law provides the following:
“1. Officers in service are entitled to apply with regard to persons deprived of liberty the following measures of direct restraint:
(...)
2) placement in a security cell;
3) ...
4) use of shackles (kajdany) or manacles led by a guard (prowadnice);
(...)
2. The measures of direct restraint enumerated in paragraph 1 shall be used, if necessary, only in order to counteract: an attempt against the life or health of [the detainee himself] or of a third person, incitement to rebellion, flagrant disobedience, dangerous disturbance of the peace and order, damaging of property, or the escape of a person deprived of liberty.
(...)
5. In justified circumstances it is permitted to use, while escorting a person deprived of liberty, shackles, a restraining belt or manacles led by a guard, in order to prevent the person in question from escaping or behaving aggressively.
6. Measures of direct restraint shall not be used for longer than is necessary.”
73. Moreover, detailed rules on the use of measures of physical restraint in detention are laid down in the Cabinet Ordinance of 20 November 1996 on detailed rules on the use by officers of the Prison Service of measures of direct restraint, firearms or police dogs (Rozporządzenie Rady Ministrów w sprawie szczegółowych warunków stosowania środków przymusu bezpośredniego oraz użycia broni palnej lub psa służbowego przez funkcjonariuszy Służby Więziennej oraz sposobu postępowania w tym zakresie), which entered into force on 12 December 1996.
Section 12 of the above ordinance reads, in so far as relevant, as follows:
“1. Shackles or manacles led by a guard shall be used in order to restrain the movement of a detainee’s limbs ...
2. Shackles or manacles led by a guard shall be put on [the detainee’s] arms in front of his body. In the event that a detainee (...) is aggressive or dangerous, shackles may be put on [the detainee’s] arms behind his body and also on [his] legs ...”
4. Selected provisions regulating the contact of detained persons with the outside world
74. Pursuant to Article 217 of the Code, as applicable at the relevant time, a detainee was allowed to receive visits provided that he obtained permission from the investigating prosecutor (at the investigative stage) or from the trial court (once the trial has begun). The visits took place in the presence of a prison guard.
5. Provisions pertaining to the practice of religion in detention
75. Article 106 of the Code provides:
“1. A convicted person shall have the right to practise religion and to benefit from religious services, and to attend [in person] services taking place in prison on holidays and to listen to services broadcast by the mass media, as well as to have the necessary [religious] books, magazines and items.
2. A convicted person shall have the right to ... meet, on an individual basis, with a clergyman of a church or of another religious denomination to which [a convicted person] belongs; such a clergyman may visit convicted persons on the premises where [the convicted persons] are held.
3. Benefiting from religious freedom shall not breach the principles of religious tolerance or interfere with the established prison order.”
76. On the basis of Article 160 of the Code, the Minister of Justice issued the Ordinance of 2 September 2003 on detailed rules on engaging in religious practices and benefiting from religious services in prisons and remand centres (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad wykonywania praktyk religijnych i korzystania z posług religijnych w zakładach karnych i aresztach śledczych) (“the September 2003 Ordinance”). It entered into force on 27 September 2003.
Section 1of the September 2003 Ordinance provides:
“1. Convicted persons shall have the right to attend services and meetings of a religious nature, including on an individual basis, which take place in a chapel or another suitable place ... on the premises of the prison or remand centre, further referred to as the “establishment”, in accordance with the establishment’s settled internal order.
(...)
4. Religious practices and services of a solitary nature may also take place inside the cells ... if they do not disturb the establishment’s [order and security] and if it is secured that they take place in conditions of privacy.”
According to Article 2, paragraph 1 of the September 2003 Ordinance:
“Convicted persons serving a sentence in a high-security establishment shall be accompanied to the places described in article 1, paragraph 1, by the prison service’s officers.”
Article 5 of the September 2003 Ordinance provides:
“The Governor of an establishment shall undertake the necessary measures in order to secure the appropriate conditions for religious practices and services ... [the Governor] shall also take advice from the [prison] chaplain concerning the organisation of religious services.”
The above mentioned provisions of the Code and the September 2003 Ordinance also apply to persons in pre-trial detention.
6. Judicial review and complaints to administrative authorities
77. Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice.
Under Article 6 of the Code a detained person is entitled to make applications, complaints and requests to the authorities enforcing the sentence.
Article 7, paragraphs 1 and 2, of the Code provides that a detained person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a governor of a prison or a remand centre, a regional director or the Director General of the Prison Service or a court probation officer. Applications relating to the execution of prison sentences are examined by a competent penitentiary court.
The remainder of Article 7 of the Code reads as follows:
“3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the pronouncement or the service of the decision; the decision [in question] shall be pronounced or served with a reasoned opinion and an instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority which issued the contested decision. If [that] authority does not consider the appeal favourably, it shall refer it, together with the case file and without undue delay, to the competent court.
4. The Court competent for examining the appeal may suspend the enforcement of the contested decision ...
5. Having examined the appeal, the court shall decide either to uphold the contested decision, or to quash or vary it; the court’s decision shall not be subject to an interlocutory appeal.”
In addition, under Article 33 of the Code, a penitentiary judge is entitled to make unrestricted visits to detention facilities, to acquaint himself with documents and to be provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of their liberty without the presence of third persons and to examine their applications and complaints.
Article 34 of the Code in its relevant part reads as follows:
“1. A penitentiary judge shall quash an unlawful decision [issued by, inter alia, the governor of a prison or remand centre, the Regional Director or the Director General of the Prison Service] concerning a person deprived of his liberty.
2. An appeal to the penitentiary court lies against the decision of a penitentiary judge...
4. In the event of finding that the deprivation of liberty is not in accordance with the law, a penitentiary judge shall, without undue delay, inform the authority [in charge of the person concerned] of that fact, and, if necessary, shall order the release of the person concerned.”
Article 35 of the Code in its relevant part provides:
“1. If in the opinion of the penitentiary judge it is necessary to issue a decision which would exceed his competence, in particular an administrative decision, [the penitentiary judge] shall transfer his observations and conclusions concerning the matter to the competent authority.
2. The competent authority shall inform the penitentiary judge, within 14 days or within another time-limit determined by the latter, about their position. Should the penitentiary judge consider this position unsatisfactory, he shall transfer the matter to the [superior] authority; the superior authority shall inform the penitentiary judge about the outcome of the case.
3. In the event of the repetition of flagrant omissions in the functioning of a prison, remand centre or another establishment, in which persons deprived of liberty [are quartered], or if the conditions existing [there] do not secure the respect of the rights of persons who are held there, a penitentiary judge shall appeal to the competent superior authority to [remedy the situation] within a set deadline. Should the [situation be not resolved] within the deadline, a penitentiary judge shall appeal to a competent minister to suspend the activity or to close down entirely or partly the prison, remand centre or establishment concerned.”
Lastly, Article 102, paragraph 10, of the Code guarantees a convicted person or a person detained on remand a right to lodge applications, complaints and requests with other competent authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. Detailed rules on the procedure are laid down in the Ordinance of the Minister of Justice issued on 13 August 2003 on dealing with applications, complaints and requests by persons detained in prisons and remand centres (Rozporządzenie w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych – “the August 2003 Ordinance”).
7. Liability for infringement of personal rights under the Civil Code
78. Article 23 of the Civil Code contains a non-exhaustive list of so‑called “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
79. 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 ...”
80. 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.”
8. Length of proceedings
81. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005‑V, and Ratajczyk v. Poland, no. 11215/02 (dec.), ECHR 2005-VIII and in its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005‑V.
COMPLAINTS
82. The applicant complained that his detention under the “dangerous detainee” regime had been in breach of Article 3 of the Convention. In particular, he complained of lengthy solitary confinement, allegedly unjustified disciplinary measures, the use of shackles, routine strip-searches and persecution by prison staff.
83. The applicant also complained under Articles 5 § 3 and 6 § 1 of the Convention that the length of his detention pending the outcome of the criminal proceedings against him and the length of those proceedings had been unreasonable.
84. He also complained under Article 6 §§ 3 (b)-(d) that he had been prevented from attending the hearings before the appellate court, that his meetings with his lawyer in the remand centre had been monitored by guards and that the trial court had refused to examine witnesses for the defence.
85. Furthermore, the applicant complained under Article 8 of the Convention that his meetings with his partner and his correspondence had been monitored by the remand centre staff.
86. Lastly, the applicant complained under Article 9 of the Convention that he had not been able to manifest his catholic religion in worship because as a “dangerous detainee” he had not been authorised to attend weekly religious services.
THE LAW
A. The alleged violation of Article 3 of the Convention
87. The applicant complained under Article 3 of the Convention about his detention under the regime for “dangerous detainees”, in particular his solitary confinement, regular strip searches and the use of shackles.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 35 § 1 of the Convention provides:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
88. The Government submitted that this part of the application was inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention. To that effect, it was noted that a “dangerous detainee” regime had been imposed on the applicant from 6 February 2001 until 22 July 2004 and from 12 October 2005 until 19 May 2006.
89. The applicant argued that his complaint about the imposition and the features of the regime for “dangerous detainees” was admissible because, even though his special status had been lifted the last time on 18 May 2006, he had continued to be detained until 2009. The applicant feared that lodging an application with the Court before his release would result in another arbitrary decision to classify him as a “dangerous detainee”. He submitted that for this reason the six-month period within the meaning of Article 35 § 1 of the Convention should run from the date of his release on 31 January 2009.
90. The Court reiterates that the object of the six‑month time-limit under Article 35 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. In cases where there is a continuing situation, the six-month period runs from the cessation of the situation. The concept of a "continuing situation" refers to a state of affairs which operates by continuous activities by or on the part of the State to render the applicant a victim. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see Koval v. Ukraine, no. 65550/01, (dec.) 30 March 2004 with further references).
91. The present case concerns the applicant’s detention under the special regime for “dangerous detainees” which was imposed on him on identifiable dates from 2001 until 2004 and from 2005 until 2006. It follows that the applicant’s detention as a “dangerous detainee” cannot be construed as a “continuing situation” (see G.R. v. the United Kingdom (dec.), no. 24860/94, 30 November 1994). The six-month period envisaged by Article 35 § 1 of the Convention should therefore be counted from the date on which the situation in question ended unless the applicant availed himself later from an effective domestic remedy.
92. As far as the domestic remedies are concerned, it must be noted that according to numerous provisions of the Code of Execution of Criminal Sentences detainees can make applications, complaints and requests to the penitentiary authorities and courts in connection with any aspect of their detention, (for example Article 6 of the Code). These provisions also allow detainees to challenge the lawfulness of the relevant penitentiary commission’s decisions on their classification as “dangerous detainees” (for example Articles 7 and 76) (see paragraph 77 above).
93. During his first detention under the regime for “dangerous detainees” (from 2001 until 2004), the applicant did not lodge any formal appeals under Article 76 of the Code against the relevant decisions of the penitentiary commission. On 20 January 2004, however, he filed an application with the penitentiary court, asking that his special detention status be lifted (see paragraph 43 above). The regime was lifted on 18 October 2004. During his second detention under the special regime, the applicant appealed against the commission’s decision on his classification as a “dangerous detainee”. His appeal was dismissed by the Katowice Regional Court on 25 November 2005 (see paragraph 47 and 48 above). Eventually, the applicant’s dangerous detainee’s status was lifted on 18 May 2006 (see paragraph 49 above).
94. Later on, the applicant complained about the imposition and the features of his detention under the special regime by means of two civil actions for infringement of personal rights. The relevant proceedings were terminated by judgments of 17 January 2008 and 11 December 2008 respectively (see paragraphs 61- 66 above).
95. The Court reiterates that although Article 35 § 1 of the Convention requires that the 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. Turkey, no. 30873/96, ECHR 2000-XII, §§ 65 et seq). Nor can it be said that in cases where the national law provides for several parallel remedies in the sphere of both civil and criminal law, the person concerned, after a sustained but eventually unsuccessful attempt to obtain redress through one such remedy, must necessarily try all other means (H.D. v. Poland (dec.), no. 33310/96, 7 June 2001).
96. In the present case the applicant appealed to the penitentiary court in relation to his first and his second detention under the special regime (see paragraphs 43, 47, 48 and 92 above). Consequently, the Court does not consider that, after these appeals were dismissed, he should, in order to fulfil his obligation under Article 35 § 1 of the Convention, also seek to use the remedies provided by the Civil Code.
97. Lastly, in view of the circumstances in which the State authorities classified the applicant as a “dangerous detainee”, the Court does not give any credit to his argument that he had feared that lodging an application with the Court before his release would result in another arbitrary decision to place him under the special security regime.
98. In view of the above considerations and the fact that the applicant’s detention as a “dangerous detainee” lasted from 6 February 2001 until 22 July 2004 and from 12 October 2005 until 18 May 2006, and that the related appeals with the penitentiary court were dismissed in 2004 and 2005 respectively, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
B. The alleged violation of Article 9 of the Convention
99. The applicant also complained under Article 9 of the Convention of an infringement of his right to manifest his religion in worship because as a “dangerous detainee” he had not been authorised to attend weekly religious services open to other detainees. The relevant parts of this provision read as follows:
“1. Everyone has the right to freedom of ... religion; this right includes freedom to ... manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
100. The Government submitted that this complaint was manifestly ill founded. It was argued that the restrictions on the applicant’s freedom to participate in general Sunday services were justified under paragraph 2 of the invoked provision. To that effect, they submitted that the applicant had been considered a detainee posing a serious threat to society and the security of the remand centre and had had to be separated from his fellow inmates. Moreover, the applicant had been provided with alternative opportunities to practice his religion, namely, individual meetings with a remand centre’s priest. The applicant renounced those opportunities.
101. The applicant submitted that an occasional conversation with a priest, through the bars was not a real alternative to a full mass offering an opportunity of worshiping, praying and seeking pardon from God.
102. The Court points out that it is not open to it to set aside the application of the six-month rule solely because a respondent Government have not made a preliminary objection based on that rule. It reiterates that the six-month rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals both to individuals and to State authorities the period beyond which such supervision is no longer possible (see Marchowski v. Poland, no. 10273/02, §§ 48 and 49, 8 July 2008 and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).
103. In the present case, the restrictions on the applicant’s right to manifest his religion in worship occurred during his detention under the regime for “dangerous detainees”, namely from 2001 until 2004 and from 2005 until 18 May 2006 (see paragraphs 41-49 above).
104. It appears that the applicant complained about this aspect of his detention by means of the same appeals as described under Article 3 above. They were dismissed by the penitentiary court in 2004 and 2005 respectively (see paragraphs 43, 47, 48 and 97 above).
105. In so far as the applicant pursued without any success the remedies of a compensatory nature under Articles 23 and 24 of the Civil Code, in conjunction with Article 445 or Article 448 of the Civil Code, the Court already held in a similar context of an Article 9 complaint of a Buddhist prisoner who did not receive meals in compliance with his religious convictions, that such a civil action was bound to fail and, in any event, would not have afforded the relief sought (see Jakóbski v. Poland, no. 18429/06, § 32, 7 December 2010). In particular, it was observed that under the relevant civil law provisions no claim for damages could arise unless the infringement alleged had resulted from an unlawful act or omission (Jakóbski, ibid).
106. In the present case the decision to isolate the applicant from other detainees and therefore, not to authorise him to participate in a group Sunday mass, was at all times lawful having regard to the terms of Article 212 of the Code of Execution of Criminal Sentences (see paragraphs 62 and 66 above; compare with Jakóbski, cited above, § 24).
107. The above considerations prompt the Court to hold that since the present application was introduced on 23 March 2007, it was submitted more than six months after the date on which the relevant period to be considered under Article 9 came to an end.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Remaining complaints
108. The applicant also complained under Article 5 § 3 of the Convention that the length of his detention pending the outcome of the criminal proceedings against him had been unreasonable.
109. It must be noted that the applicant’s pre-trial detention within the meaning of Article 5 § 1 (c) lasted from 31 January 2001 until 14 July 2004, when the applicant was convicted by a first-instance court and sentenced to a term of imprisonment (see paragraph 8 above). As a result of different subsequent proceedings (see paragraphs 9-32 above), the applicant’s final prison sentence was determined at 8 years, to finish on 31 January 2009 (see paragraph 33 above). Consequently, the applicant’s detention between 14 July 2004 and 31 January 2009 fell under Article 5 § 1 (a).
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
110. The applicant also complained under Article 6 §§ 1 and 3 (b)-(d) that: the length of the criminal proceedings against him had been unreasonably lengthy; he had been prevented from attending the hearings before the appellate court; his meetings with his lawyer in the remand centre had been monitored by guards and that the trial court refused to examine witnesses for the defence.
111. Regarding the length complaint, the Court notes that the applicant failed to lodge the necessary appeal with the domestic courts under the 2004 Act (see paragraph 81 above). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
112. Regarding the complaint that the applicant’s meetings with his lawyer in the remand centre were monitored by the guards (see paragraph 56 above), it must be noted that the applicant failed to substantiate his complaint. Moreover, the material in the Court’s possession does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
113. Regarding the complaint that the applicant was absent from the appeal trials (see paragraph 10 and 15 above), the Court observes that the principle of equality of arms, being one feature of the wider notion of a fair hearing, implies that each party shall have a reasonable opportunity to present a case to the court under conditions which do not place that party at a substantial disadvantage vis-à-vis the opposing party (see, mutatis mutandis, Dombo Deheer v. Netherlands, no. 14448/88, 27 October 1993, § 33).
114. In the present case, it is evident that at all levels of jurisdiction the applicant enjoyed the right to adversarial proceedings with the participation of the interested parties. Within the framework of the proceedings the applicant was able, in person or through his lawyers, to introduce all necessary arguments in defence of his interests, and the judicial authorities gave these due consideration (see paragraphs 9 and 14 above). Bearing in mind that the jurisdiction of the appellate courts was, in the circumstances of the case, limited to examining appeals on points of law only (see paragraphs 10 and 15 above) and that the defendant’s presence at the appeal hearing does not necessarily take on the same significance as for the first‑instance trial, the Court considers that this complaint is manifestly ill‑founded (see Belziuk v. Poland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998‑II, § 37) and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
115. Regarding the complaint that the trial court had refused to examine witnesses for the defence, the Court notes that the applicant failed to substantiate his complaint, even prima facie, i.e. by providing information on which criminal court had allegedly erred. It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
116. Furthermore, the applicant submitted a number of complaints under Article 8 of the Convention.
117. In so far as he complained that his partner had been authorised to visit him in the remand centre only in the presence of a guard, the Court notes that this complaint concerns the period between March 2001 and 8 January 2002. Shortly after the latter date the applicant’s partner died (see paragraph 57 above). It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
118. Another complaint, that in 2007 the governor of Mysłowice Remand Centre had refused the applicant the right to a visit from his cousin, is unsupported by any documents.
What appears from the case file is only that: the remand centre’s governor refused to authorise regular visits from the cousin invoking safety reasons because the visitor in question had recently been detained in the same remand centre as the applicant; he, nevertheless, authorised one visit from the cousin in May and another one in August 2007; the governor did not agree to change the latter date to September 2007 as requested by the applicant after his cousin had changed his plans.
119. In these circumstances and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
120. Lastly, the Court observes that the applicant’s complaint about the alleged monitoring of his private correspondence by the authorities is unsubstantiated. The applicant failed to provide any details which would allow it to be established, even prima facie, which letters were allegedly opened and read by the authorities. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyPäivi Hirvelä
RegistrarPresident
Full & Egal Universal Law Academy