CASE OF LEŃCZUK v. POLAND

FIRST SECTION

CASE OF LEŃCZUK v. POLAND

(Application no. 47800/17)

JUDGMENT
 

STRASBOURG

15 April 2021

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

In the case of Leńczuk v. Poland,

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

Alena Poláčková, President,
Péter Paczolay,
Gilberto Felici, judges,
and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 47800/17) 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 Michal Włodzimierz Leńczuk (“the applicant”), on 14 June 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 the lengthy imposition of a “dangerous detainee” regime on the applicant.

THE FACTS

2.  The applicant was born in 1995 and is detained in Lublin.

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.  The applicant was arrested on 30 March 2015. The applicant subsequently served various prison sentences for burglary and theft. During this period he received fourteen disciplinary punishments in total.

6.  On 3 January 2017 the Lublin Remand Centre Prison Commission (komisja penitencjarna; “the commission”) classified the applicant as a “dangerous detainee” and decided that he should be detained under this regime of detention for three months. The commission considered that the applicant had received multiple disciplinary punishments and that he had assaulted a prison officer. The applicant had been aggressive and unpredictable and had posed a real and serious risk to prison security. The commission further decided that it had been necessary to apply all the measures provided in section 88b § 1 of the Code of Execution of Criminal Sentences.

7.  This commission extended the regime on 29 March 2017. The commission considered that the behaviour of the applicant had not improved and that he still posed a real and serious risk to the security of the prison. The applicant’s appeal was dismissed on 30 May 2017.

8.  On 28 June 2017 the commission further extended the measure. The commission considered that the applicant’s behaviour in prison had not improved as he had twice been subject to disciplinary punishment. He had been confrontational towards prison staff and refused to comply with the rules. The commission considered that the applicant still posed a risk to prison security and that extending the regime might have a positive incidence on the applicant’s behaviour in prison. At the same time, in application of section 88b § 2 of the Code, the commission discontinued the automatic application of strip searches every time the applicant left or entered the cell. The strip searches were to be carried out only when the applicant left or entered the prison’s residential unit. Secondly, the applicant was allowed to wear his own clothes and shoes (suspension of measures described in section 88b § 1 points 5 and 10).

The applicant appealed against the decision.

9.  On 22 August 2017 the Lublin Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal.

10.  On 27 September 2017 the Lublin Detention Centre Prison Commission lifted the regime. The commission considered that there had been grounds to assume that the applicant no longer posed any real threat to prison security. Moreover, the continued application of the dangerous detainee regime would no longer have a positive impact on the applicant’s behaviour.

The applicant submitted that the regime involved, in particular, daily strip searches and constant monitoring of the cell, including the toilet. Moreover, he was strictly isolated from other inmates.

11.  During his detention the applicant was placed in single cells. The cells, including a 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 the so-called “joined handcuffs” (hands joined by chains with fetters).

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12.  The relevant domestic law and practice concerning the imposition of the “dangerous detainee” regime 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).

13.  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 the whole day and are more frequently checked...

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

14.  The applicant complained that the lengthy imposition of the dangerous detainee regime had amounted to a breach of 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

15.  The Government raised a preliminary objection, claiming that the applicant had failed to exhaust domestic remedies. They submitted that if he considered that his personal rights had been violated, it was open to him to claim compensation from the State Treasury.

16.  The applicant submitted in general terms that he had exhausted all the relevant and available domestic remedies.

17.  In a number of cases against Poland concerning the 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 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 must be dismissed.

18.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Likewise, it is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

19.  The applicant did not submit any arguments on the merits of the case. In general, he upheld his original application.

20.  The Government underlined that the domestic law had changed in 2015, which had led to a reduction in the number of detainees classified as dangerous and a decrease in the measures applied to them.

21.  The Government underlined that the decisions imposing and extending the regime on the applicant had been well-reasoned and upheld by a court. The decisions were based on concrete incidents in which the applicant had been involved, an assault on a prison officer, and then several disciplinary punishments imposed on him. The Government underlined that the measures applied in respect of the applicant had on each occasion been examined and, in view of a general improvement in his behaviour in prison, alleviated. For instance, after 28 June 2017 strip searches were no longer systemically carried out every time the applicant left or entered his cell. The Government further argued that, although the applicant had been the sole occupant of his cell, he had never been totally isolated, having the right to a daily walk and access to the common room and library. The Government submitted that the applicant had been confrontational towards the prison staff and had difficulty following prison rules, for which he had received disciplinary punishments.The Court’s assessment

22.  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).

23.  Turning to the present case, the Court observes that on 3 January 2017 the prison commission imposed on the applicant the “dangerous detainee” regime and indicated that it would include application of all measures provided by law. The regime was imposed on the applicant on account of his alleged assault of a prison officer (see paragraph 6 above). The main aspects of the regime raised by the applicant and specified below have not been contested by the Government (see paragraph 11 above).

24.  The Court firstly 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 detainees (see paragraph 13 above). In application of this provision, on 28 June 2017, the prison commission decided that the applicant would no longer be subject to strip searches every time he left or entered his cell (see paragraph 8 above).

25.  Furthermore, the Court notes that, in application of Section 88a (2) of the Code, the decisions of the prison commission were based on specific reasons pertaining to the applicant’s recent behaviour (compare and contrast previous cases, for instance, Prus v. Poland, no. 5136/11, § 37, 12 January 2016 and see paragraph 13 above). On each occasion the authorities examined the applicant’s personal situation, namely his behaviour, and assessed the need to continue the application of the regime depending on the fresh assessment of a risk posed by him to prison and staff security. Once this risk diminished and his behaviour in prison improved, on 27 September 2017 the commission decided to lift the regime (see paragraphs 8 and 10 above).

26.  In view of the above, the Court considers that in the application of the amended domestic law the authorities progressively alleviated the regime by lifting some measures, taking into account the applicant’s behaviour (compare and contrast Piechowicz, cited above, § 166).

27.  Nevertheless, the Court notes that during the first six months of the regime the applicant was subjected daily, or even several times a day, whenever he left or entered his cell, to a full body search. The strip searches consisted of 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). They 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.

28.  The Court has already stated in the Piechowicz case 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 safety in the prison (see Piechowicz, cited above, § 176). Given that the applicant was already being subjected 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 three months must have caused him feelings of inferiority, anguish and accumulated distress which went beyond the unavoidable suffering and humiliation involved in the execution of his prison sentence (see Horych, cited above, § 101, and Piechowicz, cited above, §§ 175 and 176).

29.  Also, the Court is not convinced that shackling the applicant was necessary on each and every occasion for the entire duration of the dangerous detainee regime imposed on the applicant (see Piechowicz, cited above, § 174).

30.  In conclusion, taking into account the cumulative effects of the “dangerous detainee” regime on the applicant, the Court finds that the authorities failed to show that the application of a wide range of measures, including routine and indiscriminate strip searches, particularly during the initial six-month period of the imposition of the regime, were necessary to attain the legitimate aim of ensuring prison security.

There has been, accordingly, a violation of Article 3 of the Convention.OTHER ALLEGED VIOLATIONS OF THE CONVENTION

31.  The applicant further complained of a violation of Articles 6 and 13 of the Convention. He complained about the manner in which the penitentiary commission had applied and extended the regime, and the alleged ineffectiveness of his appeals against the commission’s decisions.

32.  The Government contested that argument.

33.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

34.  The Court observes that at the heart of the applicant’s complaint under Article 3 of the Convention lie issues that have been examined and have resulted in the finding of a violation of that provision (see paragraph 30 above). In the circumstances, the Court considers that no separate issue arises under Articles 6 and 13 of the Convention and makes no separate finding (see Prus, cited above, § 43).APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  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.”Damage

36.  The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

37.  The Government considered the claim excessive.

38.  The Court awards the applicant EUR 3,000 in respect of non‑pecuniary damage.Costs and expenses

39.  The applicant did not make any claim for costs and expenses.Default interest

40.  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,Declares the application admissible;Holds that there has been a violation of Article 3 of the Convention;Holds that there is no need to examine the complaint under Articles 6 and 13 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into Polish zlotys 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;Dismisses the remainder of the applicant’s claim for just satisfaction.

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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