CASE OF ŚLUSARCZYK v. POLAND

FOURTH SECTION

CASE OF ŚLUSARCZYK v. POLAND

(Application no. 23463/04)

JUDGMENT

STRASBOURG

28 October 2014

FINAL

28/01/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ślusarczyk v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 7 October 2014,

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

PROCEDURE

1. The case originated in an application (no. 23463/04) 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 Dariusz Ślusarczyk (“the applicant”), on 27 May 2004.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewcz, succeeded by Mrs J. Chrzanowska of the Ministry for Foreign Affairs.

3. The applicant alleged a breach of Article 3 of the Convention on account of the imposition of the so-called “dangerous detainee” regime on him and inadequate conditions of his detention. He further submitted that the length of his pre-trial detention was excessive, in breach of Article 5 § 3. Invoking Article 6 § 1 the applicant complained that criminal proceedings in his case lasted excessively long. The applicant also alleged a breach of Article 8 in that his correspondence had been censored.

4. On 18 January 2007 the complaints under Article 3 (conditions of detention), Article 5 § 3 and Article 8 were communicated to the Government.

5. On 21 February 2011, additionally, the complaint under Article 3 about the “dangerous detainee” regime and the complaint under Article 6 § 1 were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant is a Polish national, who was born in 1971 and lives in Będzin.

A. Partial disagreement as to certain facts of the case

7. The parties gave partly different descriptions of certain facts of the case concerning the conditions of the applicant’s detention and the “dangerous detainee” regime (see paragraphs 54-57 and 68-75 below). The remaining facts were not in dispute.

B. First set of criminal proceedings against the applicant (case no. XVI K 101/04)

8. On 27 December 2000 the applicant was arrested on suspicion of robbery.

9. On 29 December 2000 the Sosnowiec District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed robbery, theft and had caused bodily harm, acting with two other persons. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence. In that respect, it was noted that the applicant had threatened the victims in order to stop them from informing the police of the offences allegedly committed and from testifying against him. The court also stressed the severity of the anticipated sentence.

10. In the course of the investigation, the applicant’s detention was extended on 31 January and 19 March 2001. In their detention decisions, the courts repeatedly relied on the original grounds given for the applicant’s detention.

11. On 13 June 2001 the Sosnowiec District Prosecutor lodged a bill of indictment with the Sosnowiec District Court. The applicant, together with two co-accused, was charged with robbery, two counts of theft and causing bodily harm.

12. During the court proceedings the authorities further extended the applicant’s detention pending trial on 26 June and 6 December 2001, 8 March, 26 July, 22 November and 18 December 2002 and again on 29 January 2003. The courts repeated the grounds previously given for his continued detention.

13. On 28 February 2003 the Sosnowiec District Court gave judgment. The applicant was convicted as charged and sentenced to 7 years’ imprisonment.

14. The applicant appealed. He was held in detention pending appeal for the subsequent months.

15. On 23 April 2004 the Katowice Regional Court (Sąd Okręgowy) heard the applicant’s appeal. It quashed the first-instance judgment and remitted the case.

16. The courts further extended the applicant’s detention on 10 May, 23 July, 27 September and 11 October 2004, relying on the initial grounds.

17. On 22 November 2004 the District Court decided that the applicant’s detention should be replaced by police supervision (dozór policji) but he was not released and remained in custody under a detention order given in the second set of criminal proceedings against him (see paragraph 23 below).

18. On 27 January 2006 the Sosnowiec District Court again convicted the applicant as charged but mitigated the sentence to 5 years’ imprisonment. The period of the applicant’s pre-trial detention from 27 December 2000 to 23 November 2004 was deducted from the sentence.

19. On 26 October 2006 the Katowice Regional Court upheld the first‑instance judgment.

20. From 7 December 2006 to 10 January 2008 the applicant served the prison sentence following his conviction of 27 January 2006.

C. Second set of criminal proceedings against the applicant and proceedings under the 2004 Act

1. Criminal proceedings (case no. II K 167/04)

21. On 26 April 2004 the applicant was charged with robbery and battery committed in an organised criminal group.

22. On 28 April 2004 the Katowice District Court remanded the applicant in custody for three months relying on the reasonable suspicion that he had committed the offences in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence by inducing other co-accused or witnesses to give false testimony. In this context the court referred to the fact that the applicant was suspected of serious offences committed in an organised criminal group.

Later, several other members of the same criminal group were detained and charged in the investigation against the applicant.

23. The applicant’s appeal against the detention order was unsuccessful, as were his further appeals against decisions extending his detention and all his subsequent, numerous applications for release and appeals against refusals to release him.

24. On 27 September 2004 the Katowice District Court extended the applicant’s detention to 30 December 2004. It repeated the grounds that had previously been given for the applicant’s detention.

25. On 18 November 2004 the Katowice Regional Prosecutor lodged a bill of indictment with the Częstochowa Regional Court. The applicant was charged with extortion and causing bodily harm. The bill of indictment comprised numerous charges brought against 15 accused.

26. On 9 June 2005 the Częstochowa Regional Court held the first hearing. It subsequently scheduled some 60 hearings in the case.

During the court proceedings the Częstochowa Regional Court further extended the applicant’s pre-trial detention on several occasions, namely on 21 December 2004 (until 30 June 2005), on 23 June 2005 (until 31 December 2005) and on 14 December 2005 (until 27 May 2006). It repeated the grounds that had previously been given for the applicant’s continued detention. In particular, the court referred to the fact that the applicant was suspected of committing offences in an organised criminal group which involved 15 co-accused and 47 charges.

27. Because the length of the applicant’s detention was about to reach the statutory two-year time‑limit laid down in Article 263 § 3 of the Code of Criminal Procedure, the Częstochowa Regional Court applied to the Katowice Court of Appeal (Sąd Apelacyjny), asking for the applicant’s detention to be extended beyond that term. The Katowice Court of Appeal extended his detention on 19 April 2006 (until 31 October 2006), 11 October 2006 (until 28 February 2007), 22 February 2007 (until 30 June 2007), 20 June 2007 (until 30 November 2007) and 28 November 2007 (until 31 January 2008). The court referred in particular to the need to obtain evidence from several further witnesses. The Court confirmed that the hearings were held at regular intervals, however the case was very complex.

28. On 10 January 2008 the Częstochowa Regional Court gave judgment. The applicant was convicted as charged and sentenced to three years and six months’ imprisonment. The applicant appealed. He remained detained pending appellate proceedings.

29. On 15 January 2009 the Katowice Court of Appeal quashed the first‑instance judgment in respect of the applicant and the few other co‑accused and in this part remitted the case for retrial. On the same date the court also decided to lift the applicant’s detention but he still remained detained in the third set of criminal proceedings against him (see paragraph 42 below).

30. On 10 March, 14 April, 12 May and 19 May 2010 the Częstochowa Regional Court held hearings.

31. It would appear that the proceedings were terminated at a later, unknown date.

2. Proceedings under the 2004 Act (case no. XIII S 24/10)

32. On 31 March 2010 the applicant lodged a complaint with the Katowice Court of Appeal under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).

33. On 25 May 2010 the Katowice Court of Appeal dismissed the applicant’s complaint. It considered that the proceedings before the trial court had been conducted with the requisite speed. In particular, the court observed that the hearings had been held frequently, at regular intervals and only a few of them had been adjourned due to reasons not imputable to the trial court.

D. Third set of criminal proceedings against the applicant (case no. V K 140/08)

34. On 15 May 2007 the Katowice-Wschód District Court remanded the applicant in custody relying on a reasonable suspicion that he had committed several offences of extortion while acting in an organised criminal group. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence. The court also stressed the likelihood of a lengthy prison sentence being imposed on him and the complexity of the case.

35. The Katowice-Wschód District Court further extended the applicant’s pre-trial detention on several occasions, namely on 10 August 2007 (until 31 October 2007), 25 October 2007 (until 31 January 2008), 25 January 2008 (until 31 March 2008) and 26 March 2008 (until 30 June 2008). It repeated the original grounds given to justify for the applicant’s detention.

The applicant’s appeal against the detention order and his further appeals against the above decisions extending his detention were unsuccessful.

36. On 25 June 2008 the Katowice-Wschód District Court extended the applicant’s pre-trial detention to 30 September 2008. The applicant lodged an appeal against this decision.

37. On 30 June 2008 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with extortion and endangering other persons.

38. On 23 July 2008 the Katowice Regional Court quashed the decision of Katowice-Wschód District Court of 25 June 2008. It held that the decision to extend the applicant’s pre-trial detention beyond the period of one year should be taken by a regional court. The applicant remained detained in the second set of criminal proceedings (see paragraph 28 above).

39. On 26 September 2008 the Katowice Regional Court remanded the applicant in custody relying on the reasonable suspicion that he had committed the offences with which he was charged. It also considered that keeping him in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence. It further noted that the applicant was detained in another set of criminal proceedings against him in which he had been sentenced to three years and six months’ imprisonment. The applicant lodged an appeal against the detention order.

40. On 5 November 2008 the Katowice Court of Appeal quashed the order. It considered that the Katowice Regional Court had failed to give relevant reasons for the prolongation of the applicant’s detention. The applicant was still detained in the second set of criminal proceedings (see paragraph 28 above).

41. On 24 November 2008 the Katowice Regional Court again remanded the applicant in custody. It held that the evidence which had been gathered in the case, in particular the testimonies of other suspects, showed that there was a sufficient probability that the applicant had committed the offences with which he had been charged. It attached importance to the likelihood of a severe prison sentence being imposed on the applicant and the risk that he would attempt to induce witnesses to give false testimony or would otherwise obstruct the proceedings. The latter risk was considered of the utmost importance in the light of the fact that the case involved a large number of alleged accomplices.

42. On 19 February 2009 the Katowice Regional Court extended the applicant’s detention until 24 May 2009. The applicant appealed.

43. On 1 April 2009 the Katowice Court of Appeal quashed the contested decision. It held that the impugned decision was given by a single judge whereas it should have been taken by a panel composed of one judge and two lay judges.

On the same date the Katowice Regional Court extended the applicant’s detention to 24 May 2009. On 18 May 2009 it further extended the applicant’s detention to 6 August 2009. It referred to the severity of the anticipated penalty, the risk that the applicant would attempt to induce witnesses, in particular as he was charged with acting in an organised criminal group and the complexity of the case.

44. On 29 July 2009 and 4 November 2009 the Katowice Court of Appeal extended the applicant’s pre-trial detention to 15 November 2009 and 31 March 2010 respectively. In its decisions the court underlined the complexity of the case, the fact that it involved thirteen co-accused and that evidence from 48 witnesses was to be obtained. It further noted the severity of the penalty to which the applicant was liable. Having regard to the organised character of the alleged criminal activities, it also held that the applicant’s detention was necessary in order to prevent the applicant from interfering with the proceedings.

45. On 30 March 2010 the applicant was released from custody under police supervision.

E. Censorship of the applicant’s correspondence

46. The applicant submitted to the Court an envelope of the Ombudsman’s (Rzecznik Praw Obywatelskich) letter of 6 July 2004, addressed to him and bearing a stamp “censored on...”. Another stamp indicated that the letter was received at Katowice Remand Centre on 9 July 2004.

47. On 30 July 2004 the Katowice Regional Court dismissed the applicant’s complaint about the censorship of his correspondence with the Ombudsman on the grounds that this measure had been applied in accordance with law, i.e. the relevant provisions of the Code of Execution of Criminal Sentences.

48. On 9 August 2004 the Katowice Regional Prosecutor, in response to the applicant’s complaints that his letters had been delayed or intercepted, informed him that his correspondence was transmitted to him “immediately after its censorship”.

49. On 28 April 2008 the applicant submitted an envelope of the Court Registry’s letter of 11 January 2008 bearing a stamp “censored on...”. A postmark indicated that the letter was delivered to an unspecified post office in Częstochowa on 17 January 2008.

F. Imposition of the “dangerous detainee” status

1. Undisputed facts

50. On 27 May 2004 the Katowice Remand Centre Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee”. It considered that this was necessary given that he was charged with numerous offences committed as a member of an organised criminal group. The commission also referred to the high degree of demoralisation of the applicant. The applicant appealed unsuccessfully against this decision.

51. Every three months the commission reviewed, and upheld, its decision classifying the applicant as a “dangerous detainee”. The commission underlined that the initial grounds for imposing the special confinement measure were still valid. In its decision of 23 February 2005 it also pointed to the fact that the applicant used threats and intimidation to try to compel other detainees to go on hunger strike and to ignore the orders of the remand centre’s staff. The applicant’s appeals against these decisions were dismissed as ill-founded.

52. As a “dangerous detainee”, the applicant was subjected to a body search every time he entered or left his cell which meant that he had to strip naked in front of two prison guards at least twice a day. The body search was performed in a separate room, which was monitored and its recording was viewable in a duty room. Whenever the applicant was outside his cell, including his appearances at court hearings, he wore the so-called “joined shackles” (kajdany zespolone) on his hands and feet. In addition, his cell, including the sanitary corner was monitored via CCTV.

53. On 15 November 2005 the commission lifted the “dangerous detainee” status in the applicant’s respect.

2. Facts in dispute

54. The applicant submitted that on several occasions his body search was monitored by a female prison officer.

55. The Government claimed that a body search was conducted exclusively by the male prison staff and the presence of persons of the opposite sex was never permitted.

56. The applicant further claimed that whenever outside his cell he had to wear the “joined shackles” on his hands and feet.

57. The Government argued that the applicant had not been obliged to wear the joined shackles while moving around his prison ward.

G. Conditions of the applicant’s detention

1. Undisputed facts

(a) Conditions of the applicant’s detention

58. On 27 December 2000 the applicant was committed to Sosnowiec Remand Centre. He remained there until 18 March 2002. Subsequently, until his release on 30 March 2010, (see paragraph 46 above) he was held in several detention facilities, including Strzelce Opolskie Prison (from 18 March 2002 to 3 February 2004), Katowice Remand Centre (from 3 February 2004 to 1 June 2006 and then for an unspecified period from May 2009 until his release on 30 March 2010), Częstochowa Remand Centre (from 1 June 2006 to 24 January 2008), Bytom Remand Centre (24 January 2008 to January 2009) and Wojkowice Prison (unspecified dates in January 2009 until May 2009). Except for the period from 27 May 2004 to 15 November 2005, when the applicant was subjected to the “dangerous detainee” regime, he was detained under the ordinary prison regime in multi-occupancy cells.

(i) Sosnowiec Remand Centre

59. The inmates had been provided with toothpaste, soap and other basic hygiene products but their quality had been very poor.

60. The applicant acknowledged that the cells had been equipped adequately to ensure that every inmate had his own place to sleep, eat and store his food or other items.

(ii) Katowice Remand Centre

61. In each cell to which the applicant was allocated there was a separate, closed toilet and the cells had been adequately equipped with furniture. The applicant was provided with the necessary hygiene products. Hot meals were distributed directly to the cells. The bed linen was changed every 2 weeks. The applicant was entitled to a shower once a week. He had access to the prison library.

(iii) Częstochowa Remand Centre

62. The cells in which the applicant was held were adequately equipped with furniture. The applicant was provided with the necessary hygiene products. The bed linen was changed every 2 weeks. The applicant was entitled to a shower once a week. He had access to the prison library.

(b) The applicant’s complaints to penitentiary authorities and his civil actions

63. The applicant lodged several complaints about the conditions of his detention with the penitentiary authorities. All of them were dismissed as ill‑founded.

64. On 22 December 2009 the applicant lodged a civil action against the State Treasury statio fisci Sosnowiec Remand Centre for the infringement of his personal rights on account of overcrowding and the degrading conditions of his detention. The applicant did not inform the Court of the outcome of the proceedings.

65. On 23 December 2009 the applicant lodged a similar civil action against the State Treasury statio fisci Katowice Remand Centre for the infringement of his personal rights on account of overcrowding and the degrading conditions of his detention. On 31 March 2010 the Katowice Regional Court dismissed the applicant’s claim. The applicant’s appealed. On 30 September 2010 the Katowice Court of Appeal rejected his appeal on formal grounds.

66. On 5 January 2010 the applicant lodged yet another civil action against the State Treasury statio fisci Częstochowa Remand Centre for the infringement of his personal rights on account of overcrowding and degrading conditions of his detention. On 5 August 2010 the Częstochowa Regional Court dismissed the applicant’s claim. The court established that between 1 June 2006 and 22 January 2007 the applicant was assigned to cell no. 40 where the space available was 1.7 m² per person. Between 23 January 2007 and 24 January 2008 the applicant was placed in cell no. 52, where the space available was 2.1m². However, the court considered that the applicant had failed to provide the names of inmates sharing his cells. The applicant failed to inform the Court whether he had lodged an appeal against this judgment.

67. In his letter of 28 September 2011 the applicant stated generally: “all my civil actions were rejected and I was ordered to pay costs of legal representation.”

2. Facts in dispute

(a) The applicant

68. The applicant submitted that throughout the entire period of his detention he was held in overcrowded cells. Despite his numerous requests, he was not allowed to work in prison.

(b) The Government

69. As regards the general conditions of the applicant’s detention, the applicant was held in adequately equipped cells, with enough private space for every inmate. He was provided with the necessary cosmetics and other hygiene products. He had been given the possibility of a daily walk and could participate in various cultural and indoor recreation activities in prison.

70. As regards overcrowding, the Government supplied the following information concerning the applicant’s detention in Sosnowiec Remand Centre, Bytom Remand Centre, Wojkowice Prison and Katowice Remand Centre.

71. In Sosnowiec Remand Centre decisions reducing the minimum statutory space of 3 m2 in respect of the applicant were given on 8 June, 8 August, 14 September, 8 October and 19 November 2001, then on 15 January, 22 February, 3 April, 28 May, 27 June, 28 August, 17 October, 14 November 2002 and 24 January 2003. However, the Government submitted that since the authorities of Sosnowiec Remand Centre had not kept any record of persons allocated to particular cells, it was impossible to determine the exact number of inmates in the applicant’s cells during his detention.

72. In Bytom Remand Centre the applicant was detained in overcrowded cells from 24 January to 13 February 2008, on 29 February 2008 and from 21 to 25 March 2008.

73. In Wojkowice Prison the applicant was held in overcrowded cells on 5 January 2009, from 20 January to 8 February 2009, on 19 February 2009 and from 7 to 11 March 2009.

74. In Katowice Remand Centre the applicant was held in overcrowded cells from 23 October to 5 November 2009. The Government submitted that since the prison authorities had not kept any record of persons allocated to particular cells, it was impossible to determine the exact number of inmates in the applicant’s cells during his detention.

75. The applicant submitted that throughout his detention in the Czestochowa Remand Centre he had been held in overcrowded cells. The Government replied that since the prison authorities had not kept any record of persons allocated to particular cells, it was impossible to determine the exact number of inmates in the applicant’s cells during his detention.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Preventive measures, including pre-trial detention

76. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 May 2006.

B. Conditions of detention

77. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75‑85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).

C. “Dangerous detainee” status

78. The relevant domestic law and practice concerning the imposition of “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).

D. Monitoring of detainees correspondence

79. The relevant domestic law and practice concerning the censorship of prisoners’ correspondence are set out in the Court’s judgments in the cases of Kliza v. Poland no. 8363/04, §§ 29-34, 6 September 2007 and Biśta v. Poland, no. 22807/07, § 21, 12 January 2010.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE IMPOSITION OF THE “DANGEROUS DETAINEE” REGIME

80. The applicant complained that he was unlawfully classified as a “dangerous detainee” and subjected to degrading treatment as provided in Article 3 of the Convention, which reads as follows:

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

81. The Government contested that argument.

A. Admissibility

1. The parties’ submissions

82. Without specifying any details, the Government submitted that the applicant had failed to exhaust the available domestic remedies.

83. The applicant disagreed.

2. The Court’s assessment

84. In the present case the Court observes that the applicant appealed to the penitentiary court against nearly all decisions classifying him as a dangerous detainee (see paragraphs 50, 51 above). The Government did not refer to any other remedy capable of affording redress to the applicant. Consequently, the Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The applicant

85. The applicant submitted that the prolonged imposition of the “dangerous detainee” regime had been in breach of Article 3 of the Convention.

2. The Government

86. The Government stressed that in the present case the treatment complained of had not attained the minimum level of severity required under Article 3.

87. The Government maintained that the applicant had been classified as a dangerous detainee in accordance with the relevant provisions of law and with the aim of protecting others. The decision was given on the basis of the applicant’s membership in an organised criminal group and in view of the brutality of acts he allegedly committed. In addition, they maintained that during his detention in the Katowice Remand Centre the applicant had been inciting other prisoners to go on hunger strike. The Government submitted that the applicant was required to wear joined shackles only outside the prison ward. They further pointed to the fact that the applicant had never been placed in solitary confinement.

88. The Government stressed that pursuant to Article 212(b) of the Code of Execution of Criminal Sentences, the authorities had been obliged to carry out a “personal check” on the applicant every time he left or entered his cell. However, the applicant had not complained about any mistreatment in this respect.

89. Lastly, as regards the number and nature of visits from family members and others, the Government maintained that between 27 May 2004 and 15 November 2005 the applicant had been granted 26 visits from three persons close to him.

90. Considering the combined effects of the measures involved in the imposition of the “dangerous detainee” regime on the applicant and the fact that they had been necessary given the danger he posed to society, the Government concluded that the treatment to which he had been subjected had not been incompatible with Article 3 of the Convention. They invited the Court to find no violation of that provision.

3. The Court’s assessment

(a) General principles deriving from the Court’s case-law

91. The relevant general principles deriving from its case-law were recently summarised in the Court’s judgments in the cases of Piechowicz v. Poland (Piechowicz cited above, §§ 158-165) and Horych v. Poland (Horych, cited above, §§ 85-92).

(b) Findings of fact

92. The Court notes that the respondent Government and the applicant differed in their accounts of certain aspects of the applicant’s detention in the three relevant detention establishments, in particular with regard to the monitoring of his body searches and the use of shackles.

93. As regards the use of shackles, the Government disputed the applicant’s allegation that he had had to wear the so-called “joined shackles” (handcuffs and fetters joined together with chains) whenever he had been taken outside his cell. They nonetheless admitted that in accordance with section 19 § 5 of the Prison Act the applicant had had to wear shackles (kajdany) whenever he was taken out of the prison ward (see paragraph 56 above). The Court is of the view that the applicant’s claim regarding the constant use of chains on his hands and feet whenever he was outside his cell is credible. In any event, in the light of the available material, such as the relevant report of the CPT (see Piechowicz, cited above, §§ 80-81) there could be no doubt that at the material time there existed a practice of shackling or handcuffing dangerous detainees whenever they were taken out of their cells.

(c) Merits of the complaint

94. The Court notes that there is no dispute over the fact that from 27 May 2004 and 15 November 2005, that is to say for one year, five months and nineteen days, the applicant, a remand prisoner, was continually classified as a so-called “dangerous detainee” and, in consequence, subjected to high-security measures and various restrictions (see paragraphs 50-53 above).

95. The measures applied in the applicant’s case comprised confinement at a special high-security prison ward and increased supervision of his movement within and outside the remand centre, which meant that at all times he wore shackles. The measures involved his segregation from the prison community and limitations on contact with his family. Also, every time he left or entered his cell he was subjected to a routine “personal check” – a strip-search, including a thorough inspection of his body and clothes and requiring him to strip naked and make deep knee bends in order to enable an examination of his anus (see paragraph 52 above). In addition, his cell, excluding sanitary facilities, was constantly monitored via CCTV.

96. The parties disagreed, however, on whether the adverse consequences of the imposition of the above measures on the applicant had been so serious as to attain the minimum level of severity required by Article 3 of the Convention.

97. The Court notes that the decision of 27 May 2004 imposing the “dangerous detainee” regime on the applicant was a legitimate measure, warranted by the fact that the applicant had been charged with a violent crime committed as a member of an organised criminal group (see paragraph 50 above). It was not therefore unreasonable on the part of the authorities to consider that, for the sake of ensuring prison security, he should be subjected to tighter security controls, involving increased and constant supervision of his movements within and outside his cell, limitations on his contact and communication with the outside world, and some form of segregation from the prison community.

98. 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 “N” regime for one year, five months and nineteen days was necessary for maintaining prison security and compatible with Article 3 of the Convention.

99. It is true, as the Government pointed out (see paragraph 87 above) that the applicant was never placed in solitary confinement and therefore was not subjected to complete sensory or social isolation. In addition, between 27 May 2004 and 15 November 2005 he received 26 family visits (see paragraph 89 above). Nevertheless, given the nature and extent of the other restrictions, the family visits could not alone sufficiently mitigate the cumulative, adverse effects of the imposition of the “dangerous detainee” regime on the applicant.

100. Furthermore, the Court is not convinced that shackling the applicant on leaving his cell, which was a matter of everyday procedure, was indeed necessary on each and every occasion.

101. The Court has even more misgivings about the personal check to which the applicant was likewise subjected daily, or even several times a day, whenever he left or entered his cell. The strip-search was carried out as a matter of routine and was not linked to any specific security needs, nor to any specific suspicion concerning the applicant’s conduct (see paragraphs 52 and 88 above).

102. The Court has already held in the Piechowicz case (see 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 safety in prison.

103. Having regard to the fact that the applicant was already subjected to several other strict surveillance measures and that the authorities did not rely on any specific or convincing security requirements, the Court considers that the practice of daily strip-searches applied to him for one year and nearly six months must have diminished his human dignity and 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).

104. Lastly, the Court would add, as it has already held, (see Piechowicz, cited above, § 177), that due to the strict, rigid rules for the imposition of the special regime and the vaguely defined “exceptional circumstances” justifying its discontinuation laid down in Article 212a § 3 of the Code of Execution of Criminal Sentences, the authorities, in extending that regime, were not in fact obliged to consider any changes in the applicant’s personal situation and, in particular, the combined effects of the continued application of the impugned measures.

105. In the present case it emerges from the relevant decisions that, apart from the original grounds based essentially on the admittedly very serious nature of the charges against the applicant, which included a violent crime committed in an organised group, as well as his “serious lack of moral character” and alleged incitement to go on hunger strike, the authorities did not subsequently find any other reasons to classify him as a “dangerous detainee” (see paragraphs 50 and 51 above). While those circumstances could justify the imposition of the “N” regime on the applicant for a certain period, even a relatively long one, they could not suffice as the sole justification for its prolonged continuation. With the passage of time the procedure for review of the applicant’s “dangerous detainee” status became a pure formality, limited to a repetition of the same grounds in each successive decision.

106. 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 duration and severity of the measures taken exceeded the legitimate requirements of security in prison and that they were not necessary in their entirety to attain the legitimate aim pursued by the authorities.

107. There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION

108. The applicant’s second complaint under Article 3 of the Convention concerned the conditions of his detention when he was not subjected to the “dangerous detainee” regime. In particular, he complained about overcrowding and unhygienic conditions in the detention centres.

109. The Government contested that argument.

A. Admissibility

1. Withdrawal and re-introduction of the complaint

110. In his letters of 6 April, 15 May and 21 June 2010 the applicant informed the Court that he withdrew his complaint under Article 3 about overcrowding in the Sosnowiec, Katowice and Czestochowa detention facilities. He submitted that civil proceedings concerning his claims for compensation against these prisons were pending. He further confirmed that he upheld his complaints about other remand centres.

111. However, on 17 October 2010 the applicant informed the Court that he wished to resubmit his complaints about living conditions in the above prisons, since his claims for compensation in Poland had been unsuccessful.

112. In this respect 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 (see Marchowski v. Poland, no.10273/02, § 48, 8 July 2008, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

113. The present case concerns overcrowding in five different detention facilities (see paragraphs 66, 71-74 above), which took place on several identifiably separate occasions. It follows that the applicant’s detention in these prisons cannot be construed as a “continuing situation” (see Olszewski v. Poland, no. 21880/03, § 85, 2 April 2013).

114. In so far as the applicant’s complaint relates to overcrowding in the Sosnowiec Remand Centre, the Court observes that it concerns events that took place in 2001 and 2002 (see paragraph 58 above). The applicant re-introduced this complaint on 17 October 2010 (see paragraph 111 above). The Court also notes that the applicant lodged a claim for compensation against the Sosnowiec Remand Centre (see paragraph 64 above). However, despite a brief indication, without specifying any details thereof, that the claim had been unsuccessful (see paragraph 67 above) he had failed to inform the Court about the further course of the proceedings. Consequently, the Court notes that the applicant failed to substantiate this complaint and 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.

115. The Court also notes that the remainder of the complaint, in so far as it relates to the applicant’s detention in the Katowice and Czestochowa Remand Centres was reintroduced within the six-month period (see paragraphs 123-127).

2. Non-exhaustion of domestic remedies

(a) The Government’s preliminary objection

116. In their initial observations of 29 May 2007 the Government formulated this objection in the same way as they did in the cases of Sławomir Musiał v. Poland (no. 2830/06, §§ 67-69, 20 January 2009) and Orchowski v. Poland (cited above, §§ 95-98).

117. In particular, they stressed that before lodging his Article 3 application with the Court the applicant should have: (1) made an application to the Constitutional Court under Article 191, read in conjunction with Article 79 of the Constitution, asking for the 2006 Ordinance to be declared unconstitutional; (2) brought a civil action seeking compensation for the infringement of his personal rights, namely his dignity and health, under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code; and (3) used remedies provided by the Code of Execution of Criminal Sentences, such as an appeal against any unlawful decision issued by the prison administration or a complaint to the relevant penitentiary judge about being placed in a particular cell in prison, or a complaint about prison conditions to the authorities responsible for the execution of criminal sentences or to the Ombudsman.

118. In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention.

119. In their further observations, the Government did not refer to the fact that on 22 December 2009, 23 December 2009 and 24 December 2009 the applicant had lodged three civil actions for compensation, of which he had informed the Court.

(b) The applicant

120. The applicant confirmed that he had filed civil claims for compensation for the infringement of his personal rights on account of the degrading conditions of his detention and that those proceedings were unsuccessful

(c) The Court’s assessment

121. The Court has already examined a similar objection based on exhaustion of domestic remedies raised by the Government in the above‑mentioned case of Łatak v. Poland and considered their arguments not only in the context of that particular applicant but also in respect of other actual or potential applicants with similar complaints (see Łatak v. Poland, cited above, §§ 71-85).

122. In the context of Polish cases involving complaints about conditions of detention, including overcrowding, the Court has already held that, in cases where an applicant has been either released or placed in conditions compatible with the requirements of Article 3 of the Convention, a civil action under Article 24 read in conjunction with Article 448 of the Civil Code can be considered an effective remedy for the purposes of Article 35 § 1 of the Convention. However, given that the relevant practice of the Polish civil courts developed gradually over time, the Court held that this remedy could be regarded as effective only as from 17 March 2010. It also held that only those applicants in respect of whose civil claims the 3‑year limitation period as set by the Polish law had not yet expired were required to make use of the civil action relied on by the Government (see Orchowski v. Poland, cited above, § 154; Łatak v. Poland, cited above, §§ 79-81 and 85 and more recently D.G. v. Poland, no. 45705/07, §§ 119-120, 12 February 2013).

(i) Katowice Remand Centre

123. The Government admitted that the applicant had been placed in overcrowded cells at times. However, during his detention in the Katowice Remand Centre as from 5 November 2009 until 30 March 2010 (when he was released) he had been placed in cells in which the statutory minimum space of 3 m² per person had been secured (see paragraphs 58 and 74 above). The Court further notes that the applicant’s complaint was introduced on 17 October 2010 (see paragraph 111 above). Consequently, the applicant should have, before having his Convention claim examined by this Court, sought redress at domestic level and brought a civil action for compensation for the infringement of his personal rights under Article 24 taken in conjunction with Article 448 of the Civil Code (see paragraph 122 above).

124. In this respect the Court observes that the applicant had lodged a civil action for infringement of the personal rights caused by the conditions of detention in the Katowice Remand Centre. In the course of the relevant proceedings the applicant’s appeal against the Katowice Regional Court’s judgment was rejected by the Katowice Court of Appeal on formal grounds on 30 September 2010 (see paragraph 65 above).

125. In view of the above, the Court considers that the applicant failed to properly use the remedy which was available and sufficient to afford redress for the breaches alleged, namely a civil action for compensation for the infringement of his personal rights under Article 24 taken in conjunction with Article 448 of the Civil Code (Pustelnik v. Poland (dec.), no. 37775/09, 23 October 2012, § 48). Consequently, the complaint about overcrowding in the Katowice Remand Centre must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.

(ii) Częstochowa Remand Centre

126. The Court observes that the applicant was released from the Czestochowa Remand Centre on 24 January 2008 (see paragraph 58 above). The Court further notes that the applicant’s complaint about overcrowding in this detention facility was introduced on 17 October 2010 (see paragraph 111 above). Consequently, the applicant should have, before having his Convention claim examined by this Court, sought redress at domestic level and brought a civil action for compensation for the infringement of his personal rights under Article 24 taken in conjunction with Article 448 of the Civil Code (see paragraph 122 above).

127. In this respect the Court observes that that the applicant had lodged a civil action for infringement of the personal rights caused by the conditions of detention in the Czestochowa Remand Centre. However, in the course of the relevant civil proceedings the applicant failed to appeal against the Czestochowa Regional Court’s judgment of 31 March 2010 (see paragraph 66 above).

128. In view of the above, the Court considers that the applicant failed to properly use the remedy which was available and sufficient to afford redress for the breaches alleged, namely a civil action for compensation for the infringement of his personal rights under Article 24 taken in conjunction with Article 448 of the Civil Code (see Pustelnik v. Poland, cited above, § 48). Consequently, the complaint about overcrowding in the Częstochowa Remand Centre must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.

(iii) Bytom Remand Centre

129. In the above detention centre the situation giving rise to the alleged violation of Article 3 ended on 25 March 2008 when the applicant was placed in cells in which the statutory minimum space of 3 m² per person had been secured (see paragraph 72 above). The Court notes that the applicant introduced this complaint in his letter of 28 January 2008. The Court considers, therefore, that since the relevant civil action under Articles 24 and 448 of the Civil Code could be regarded as effective only from 17 March 2010 (see paragraph 122 above) and is now is barred by a three-year statute of limitation, the applicant cannot presently be required to avail himself of the civil remedy in question (see Grzywaczewski v. Poland, no. 18364/06, § 66, 31 May 2012; Musiałek and Baczyński v. Poland, no. 32798/02, §§ 113-14, 26 July 2011; and Mirosław Zieliński v. Poland, no. 3390/05, § 46, 20 September 2011).

130. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies as regards the Bytom Remand Centre.

(iv) Wojkowice Remand Centre

131. In the present case the situation giving rise to the alleged violation of Article 3 ended on 11 March 2009 when the applicant was placed in cells in which the statutory minimum space of 3 m² per person had been secured (see paragraph 73 above). The Court notes that the applicant introduced this complaint in his letter of 19 January 2009. The Court considers, therefore, that since the relevant civil action under Articles 24 and 448 of the Civil Code could be regarded as effective only from 17 March 2010 (see paragraph 122 above) and is now is barred by a three-year statute of limitation, the applicant cannot presently be required to avail himself of the civil remedy in question (see Grzywaczewski v. Poland, cited above, Musiałek and Baczyński v. Poland, cited above, and Mirosław Zieliński v. Poland, cited above).

132. Accordingly, the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies as regards the Wojkowice Remand Centre.

3. The Court’s conclusion on admissibility

133. The Court concludes that the complaint about detention in overcrowded cells in the Bytom and Wojkowice Remand Centres is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established.

B. Merits

1. The parties’ submissions

(a) The applicant

134. The applicant submitted that the conditions of his detention had fallen short of standards compatible with Article 3 of the Convention. In particular, he complained that he had been detained in overcrowded cells.

(b) The Government

135. The Government acknowledged that between 24 January and 13 February 2008, on 29 February 2008, between 21 and 25 March 2008, on 5 January 2009, between 20 January and 8 February 2009, on 19 February 2009 and between 7 and 11 March 2009 the space per person in the applicant’s cells had been inferior to 3m². They argued, however, that the time the applicant had spent in overcrowded cells had not been significant.

2. The Court’s assessment

136. The Court observes that in the present case, as acknowledged by the Government, at times (in total for 47 days) the applicant had been afforded less than 3 m² of personal space (see paragraph 135 above).

137. The Court has already found in its two pilot judgments in the cases of Orchowski v. Poland and Norbert Sikorski v. Poland that, for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres had revealed a structural problem consisting of “a practice that [was] incompatible with the Convention” (see Norbert Sikorski, cited above, §§ 155–156).

138. In its previous cases where applicants had at their disposal less than 3 m² of personal space, the Court found that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see, among many others, Lind v. Russia, no.25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, §§ 50–51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §§ 47–49, 29 March 2007; Labzov v. Russia, no. 62208/00, § 44, 16 June 2005).

139. Having regard to its case-law on the subject and the facts of the present case, the Court notes that the applicant spent some 47 days in total in cells in which he was exposed to the conditions described above, which in the Court’s view amounted to degrading treatment contrary to Article 3 of the Convention.

140. There has accordingly been a violation of Article 3 of the Convention on account of the conditions in which the applicant had been detained in the Bytom and Wojkowice Remand Centres.

III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE APPLICANT’S PRE‑TRIAL DETENTION

141. Invoking Article 5 § 3 of the Convention, the applicant complained that his pre-trial detention had been excessively lengthy and that the courts had not given relevant and sufficient reasons for keeping him in custody.

Article 5 § 3 of the Convention, in so far as relevant, reads:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

142. The Government contested that argument.

A. Admissibility

143. The Government did not contest the admissibility of this complaint.

144. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Period to be taken into consideration

145. The applicant was detained on remand in three sets of criminal proceedings against him.

146. The applicant was continually detained, without interruption, under detention orders given both in the first-instance and in the appellate proceedings for 9 years and some 4 months lasting from 27 December 2000, when he was arrested on suspicion of robbery in the first case, to 30 March 2010, when he was released under police supervision in the third case (see paragraphs 7-40 above). During that time he also served, between 7 December 2006 and 10 January 2008, a sentence of imprisonment imposed in the first case (see paragraph 19 above).

147. However, only the following period of the applicant’s detention falls within the scope of Article 5 § 3 of the Convention: between 27 December 2000 (when the applicant was arrested in the first case) and 28 February 2003 (when he was convicted by the Sosnowiec District Court in the first case), from 23 April 2004 (when the Katowice Regional Court quashed the first instance conviction in the first case) to 27 January 2006 (when the Sosnowiec District Court convicted him again in the first case) and between 15 January 2009 (when the Katowice Court of Appeal quashed his first instance conviction in the second case) until his release from detention on 30 March 2010 (see paragraphs 8, 13, 15, 18, 29, 45 above).

2. The parties’ submissions

(a) The applicant

148. The applicant maintained that the length of his pre-trial detention was excessive and unreasonable. He stressed that the Polish courts failed to give valid reasons for keeping him in custody for the entire period and that their decisions had been a repetition of the same grounds.

(b) The Government

149. The Government maintained that in the present case all the criteria for the application and extension of pre-trial detention had been met. The applicant’s detention was justified by the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences and the severity of the anticipated penalty. In their opinion the case had been very complex due to the fact that it concerned an organised criminal group. The proceedings had been conducted in different courts in Poland which had also contributed to the length of the proceedings and in consequence had an impact on the length of the applicant’s detention.

150. Lastly, in the Government’s opinion, the domestic authorities showed special diligence in the case. In their opinion, the applicant contributed to the excessive length of the proceedings, in particular by lodging numerous motions to change the preventive measure and to release him.

3. The Court’s assessment

(a) General principles

151. The Court recalls that the general principles regarding the right “to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention were stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland, cited above, § 110 et seq.; and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further references).

(b) Application of the above principles in the present case

152. In their detention decisions given in all sets of the proceedings against the applicant, the authorities, in addition to the reasonable suspicion against the applicant, relied continually on four principal grounds, namely (1) the serious nature of the offences with which he had been charged, (2) the severity of the penalty to which he was liable (3) the need to secure the proper conduct of the proceedings in view of the risk that the applicant might attempt to obstruct them by bringing pressure to bear on witnesses and (4) the complexity of the case (see paragraphs 9, 22,26, 27, 34, 41, 43, 44 above).

153. The Court notes at the outset, that contrary to the case of Idalov (Idalov v. Russia [GC], no. 5826/03, 22 May 2012) the applicant’s detention on remand did not constitute multiple periods of pre-trial detention applied in one set of criminal proceedings, but the applicant was detained on remand in three, partially overlapping, sets of criminal proceedings against him, concerning different charges. During the initial 2 years and 2 months of the applicant’s detention on remand, he was detained only in the first set of the proceedings (see paragraph 147 above). During the second period, until 22 November 2004, he was detained cumulatively in the first and the second set of the proceedings and subsequently only in the second set (see paragraph 15, 17, 18, 22 and 147 above). After 15 January 2009, the applicant remained in custody under a detention order given in the third set of the proceedings (see paragraphs 29, 41 and 147 above).

154. The applicant was charged with several offences involving, among other things, robbery, theft and causing bodily harm committed together with two other persons in the first set of criminal proceedings (see paragraph 8 above) but also robbery, battery and extortion committed in an organised criminal group (in the second and third set of the proceedings) (see paragraphs 21, 34 above).

155. In this respect the Court notes that while in the first set of the proceedings the applicant was charged with a series of offences committed together with two co-accused, he was not charged with being a member of an organised criminal group (see a contrario Bąk v. Poland, no. 7870/04, § 57, 16 January 2007) (see paragraph 9 above).

156. The Court further accepts that the reasonable suspicion against the applicant of having committed serious offences could initially warrant his detention. Also, the need to secure the proper conduct of the proceedings, in particular the process of obtaining evidence from witnesses, constituted a valid ground for the applicant’s initial detention. However, while all the above factors could warrant even a relatively long period of detention, they did not give the domestic courts an unlimited power to prolong this measure. As regards the risk that the applicant would tamper with evidence or otherwise obstruct the proceedings, the Court is not persuaded that it constituted a valid ground for the entire length of the first period of his pre‑trial detention. While such risk, might possibly be accepted as the basis for his detention at the initial stages of the proceedings, the Court is not persuaded that it can justify the entire period of the applicant’s detention in the first set of the proceedings.

157. Having regard to the foregoing, the Court concludes that the grounds given by the domestic authorities in the first set of the proceedings could not justify that period of the applicant’s detention. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.

158. With reference to the second and third set of criminal proceedings against the applicant, the Court observes that in those proceedings the applicant was charged with acting in an organised criminal group (see paragraphs 21 and 34 above). The Court considers that in such proceedings the authorities are faced with the difficult task of determining the facts and the degree of alleged responsibility of each of the defendants (see, Bak, cited above, § 60). For these reasons, the Court accepts that the need to obtain evidence from many sources, coupled with the existence of a general risk flowing from the organised nature of the applicant’s alleged criminal activities, constituted relevant and sufficient grounds for prolonging his detention. In addition, the risk of obstructing proceedings may be much higher if there is a serious suspicion that several accused acted in organised criminal group, as such group may try to resort to different unlawful means to try to prevent the prosecuting authorities from establishing the facts (see Kowrygo v. Poland, no. 6200/07, § 69, 26 February 2013).

159. The foregoing considerations are sufficient for the Court to conclude that the grounds given for the applicant’s pre-trial detention in the second and the third set of the proceedings were “relevant” and “sufficient” to justify holding him in custody.

160. It therefore remains to be ascertained whether the national authorities displayed “special diligence” in the conduct of the proceedings.

161. In this regard, the Court observes that the proceedings were of significant complexity, regard being had to the number of co-accused and the fact that they concerned numerous charges against them. The Court further does not discern any significant periods of inactivity in the investigation or the initial phase of the trial. For these reasons, the Court considers that during the relevant period the domestic authorities handled the applicant’s case with necessary diligence.

162. Having regard to the foregoing, the Court considers that there has been a violation of Article 5 § 3 of the Convention in respect of the first period of the applicant’s detention on remand (until 28 February 2003) and no violation of Article 5 § 3 of the Convention as regards the remainder of his detention.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION OF THE LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

163. The applicant further complained under Article 6 § 1 of the Convention that the length of the second set of the criminal proceedings against him had exceeded a “reasonable time” within the meaning of this provision.

Article 6 § 1, in so far as relevant, states:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” ...

164. By letter dated 5 September 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration, in so far as relevant, read as follows:

“ the Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the fact that the length of criminal proceedings against the applicant was not compatible with a “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention.

In these circumstances, and having particular regard to violation of Article 6 § 1 of the Convention, the Government declare that they offer to pay the applicant the amount of PLN 20,000 (twenty thousand Polish zlotys), which they consider to be reasonable in the light of the Court’s case-law ... .

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as the costs and expenses, will be free from any taxes that may be applicable. It will be payable within 3 months from the date of notification of the decisions taken by the Court pursuant to Article 37 § 1 of the ... Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at the rate equal to the marginal lending rate of the European central bank during the default periods plus three percentage points.”

165. The applicant did not accept the Government’s declaration and maintained that, given the considerable prejudice he had suffered, the sum offered was insufficient for the purposes of just satisfaction for the alleged violation.

166. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court examined carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75‑77, ECHR 2003‑VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).

167. The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the excessive length of proceedings. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).

168. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine). Accordingly, it should be struck

out of the list.

V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF CENSORSHIP OF THE APPLICANT’S CORRESPONDENCE

169. The applicant further alleged a breach of Article 8 of the Convention on account of the censorship of his correspondence with the Ombudsman and the Court.

Article 8, in so far as relevant, states:

“1. Everyone has the right to respect for ... his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

1. The Government’s preliminary objection on exhaustion of domestic remedies

170. The Government, as they did in previous similar cases involving complaints about routine censorship of a detainee’s correspondence, argued that the applicant failed to comply with the requirements of Article 35 § 1 because he had not lodged an action for the protection of his personal rights under Article 24 read in conjunction with Article 448 of the Civil Code. In essence, they repeated the observations that they had already made in other cases (see, for instance, Lewak v. Poland, no. 218990/03, 6 September 2007, §§ 21–22; Misiak v. Poland, no. 43837/06, 3 June 2008, §§ 15–16; Pasternak v. Poland, 42785/06, 16 July 2009, §§ 24–26; Biśta, cited above, § 26; and Piechowicz, cited above, § 224), maintaining that it had been open to the applicant to obtain redress at domestic level by means of that remedy.

2. The applicant

171. The applicant maintained that at the time of lodging his application he had not been aware of the existence and availability of the remedy advanced by the Government.

3. The Court’s assessment

172. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires an applicant first to use the remedies provided by the national legal system. It is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see Biśta, cited above, § 44, with further references).

173. The Court has held that applicants with similar complaints based on interferences which occurred after 28 June 2007 are required to avail themselves of the provisions of Articles 23 and 24 § 1 read in conjunction with Article 448 of the Civil Code, failing which they will be considered to have failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention (see Biśta v. Poland, § 49, cited above).

174. The Court further observes that the present case did not concern “continued censorship” (see in contrast Piechowicz, cited above, § 223), but rather two interferences within four years of one another.

175. The Court notes that the first alleged interference with the applicant’s correspondence occurred on around 9 July 2004 (see paragraph 46 above), that is, before 28 June 2007. Accordingly the remedy was not available to the applicant at the material time (see Hinczewski v. Poland, no. 34907/05, § 30, 5 October 2010). For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies with respect to the first letter must be dismissed.

176. The Court concludes therefore that the complaint about censorship of the applicant’s letter of 9 July 2004 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established.

177. The second alleged interference occurred on an unspecified date following 17 January 2008 (see paragraph 49 above), that is after the relevant date (28 June 2007) set out in the Biśta judgment.

178. That being so, the Court considers that the applicant should, as required by Article 35 § 1, put the substance of his Convention claim under Article 8 before the domestic courts. It follows that the complaint about censorship of the letter of 17 January 2008 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Merits

1. The parties’ arguments

179. The applicant in general maintained that the censorship of his correspondence with the Ombudsman had been unlawful and arbitrary.

180. The Government did not make any observations on the merits of the complaint.

2. The Court’s assessment

(a) General principles deriving from the Court’s case-law

181. Any “interference by a public authority” with the exercise of the applicant’s right to respect for his correspondence will contravene Article 8 § 1 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve them (see, among many other authorities, Enea v. Italy [GC], no. 74912/01, ECHR 2009-..., § 140, with further references and Jarkiewicz v. Poland, no. 23623/07, 6 July 2010, § 72, with further references).

(b) Application of the above principles in the present case

(i) Existence of interference

182. The applicant produced an envelope of a letter stamped “censored” that he had received from the Ombudsman (see paragraph 46 above).

183. The Court has already held in many previous similar cases that as long as the Polish authorities continue the practice of marking detainees’ letters with the “censored” stamp, it has no alternative but to presume that those letters have been opened and their contents read (see Matwiejczuk v. Poland, no. 37641/97, § 99, 2 December 2003; Pisk-Piskowski v. Poland, no. 92/03, § 26, 14 June 2005; Michta v. Poland, no. 13425/02, § 58, 4 May 2006; and Friedensberg v. Poland, no. 44025/08, 27 April 2010, § 36, and Piechowicz, cited above, § 234). There has accordingly been an interference with the applicant’s right to respect for his correspondence for the purposes of Article 8.

(ii) Whether the interference was “in accordance with the law”

184. Pursuant to Article 102 (11) read in conjunction with Article 214 § 1 of the Code of Execution of Criminal Sentences, a detainee has the right to conduct uncensored correspondence with the investigating authorities (e.g. the police and the prosecution), courts, other State or self‑government authorities and the Ombudsman. Under Article 103 read in conjunction with Article 214 § 1 of that Code, a detainee’s correspondence with institutions set up by international treaties ratified by Poland concerning the protection of human rights shall not be censored (see Kwiek v. Poland, no. 51895/99, 30 May 2006, §§ 23-24).

(iii) The Court’s conclusion

185. Since in respect of the above letter the authorities acted against the explicit legal prohibition, their interference was not “in accordance with the law” and therefore in breach of Article 8. Consequently, it is not necessary to examine whether the other requirements of that provision were complied with.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

186. 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.”

A. Damage

187. The applicant claimed 1,124,500 Polish zlotys [256,735 euros (EUR)] in respect of non-pecuniary damage.

188. The Government considered that the sum requested was exorbitant.

189. The Court awards the applicant EUR 10,000 in respect of non‑pecuniary damage.

B. Costs and expenses

190. Since the applicant did not ask for reimbursement of costs and expenses incurred before the domestic courts or in the proceedings before the Court, there is no reason to make any award under this head.

C. Default interest

191. 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,

1. Takes note of the terms of the respondent Government’s unilateral declaration as regards the complaint under Article 6 § 1 of the Convention concerning the excessive length of the proceedings and of the modalities for ensuring compliance with its undertakings;

2. Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

3. Declares the complaints: under Article 3 of the Convention, concerning the imposition of the “dangerous detainee” status and the overcrowding during the applicant’s detention in the Bytom and Wojkowice Remand Centres, under Articles 5 § 3, 6 § 1 and 8 (censorship of the Ombudsman’s letter) of the Convention admissible and the remainder of the application inadmissible;

4. Holds that there has been a violation of Article 3 of the Convention in respect of overcrowding in the Bytom and Wojkowice Remand Centres;

5. Holds that there has been a violation of Article 3 of the Convention concerning the imposition of the “dangerous detainee” regime on the applicant;

6. Holds that there has been a violation of Article 5 § 3 of the Convention as regards the first period of the applicant’s detention on remand;

7. Holds that there has been no violation of Article 5 § 3 of the Convention in respect of the remainder of the applicant’s detention on remand;

8. Holds that there has been a violation of Article 8 of the Convention (censorship of the Ombudsman’s letter);

9. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

10. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 October 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıIneta Ziemele
Deputy RegistrarPresident

Full & Egal Universal Law Academy