FOURTH SECTION
Application no. 8384/08
Jan CHYŁA
against Poland
lodged on 4 February 2008
STATEMENT OF FACTS
The applicant, Mr Jan Chyła, is a Polish national who was born in 1956 and is currently detained in Lublin Remand Centre.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant and his pre-trial detention
For several years the applicant was sought pursuant to a wanted notice and a European Arrest Warrant on the reasonable suspicion that he had committed, as a member of an organised criminal group, several counts of robbery, extortion, unlawful threat, causing bodily harm and placing an explosive with intent to damage property.
On 6 May 2005 the applicant was arrested by the Italian police.
On 21 December 2006 the applicant was surrendered to the Polish authorities.
On 28 December 2006 the Lublin District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed the offences in question. It attached importance to the serious nature of those offences and the likelihood of a severe prison sentence being imposed on the applicant. The court also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might go into hiding. As regards the latter, the court relied on the fact that he did not have a permanent place of residence in Poland and that he had already been hiding from the police. Finally, the court underlined that the applicant was a member of an organised criminal group and that some other members of that group were still at large which increased the risk that a detainee, if released, might obstruct the proceedings.
The applicant’s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful.
On 19 March 2007 the Lublin District Prosecutor lodged a bill of indictment with the Lublin District Court. The applicant was charged with robbery, several counts of extortion, unlawful threat, causing bodily harm and placing an explosive with intent to damage property. The bill of indictment comprised several charges brought against five defendants.
During the court proceedings the authorities further extended the applicant’s pre-trial detention on 14 September 2007 (to 20 December 2007) and 17 December 2007 (to 20 March 2008). The courts repeated the grounds previously given for the applicant’s continued detention. They also found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code.
On 7 March 2008 the Lublin District Court convicted the applicant as charged and sentenced him to 9 years’ imprisonment and a fine.
The applicant appealed. He was kept in detention pending appellate proceedings for the subsequent months.
On 30 January 2009 the Lublin Regional Court (Sąd Okręgowy) heard the applicant’s appeal. It quashed the first-instance court judgment and remitted the case. The court also extended the applicant’s pre-trial detention to 30 April 2009 repeating the grounds previously given for his continued custody.
On 27 February 2009 the case file regarding the applicant’s case was transmitted to the Lublin District Court for re-trial.
On 7 April 2009 the Lublin District Court requested the Prosecutor to complete the bill of indictment.
On 25 June 2009 the Lublin Regional Court quashed that decision and remitted the case to the District Court.
On 30 April 2009 the Lublin District Court further extended the applicant’s detention to 30 July 2009 repeating the grounds previously given for the applicant’s continued detention.
On 9 July 2009 the Lublin District Court extended the applicant’s pre‑trial detention to 30 October 2009. The applicant lodged an interlocutory appeal against this decision.
On 23 July 2009 the Lublin Regional Court quashed the decision of the Lublin District Court of 9 July 2009. It argued that the contested decision was taken by a judge who should have been excluded ex lege from deciding in the applicant’s case.
On 24 July 2009 the Lublin District Court, in a different composition, extended the applicant’s pre-trial detention to 30 October 2009. The court further extended the applicant’s detention on 27 October 2009 (to 30 January 2010), 22 January 2010 (to 30 April 2010), 21 April 2010 (to 31 July 2010), 16 July 2010 (to 31 October 2010), 28 October 2010 (to 31 January 2011), 12 January 2011 (to 30 April 2011) and 28 April 2011 (to 31 July 2011). The courts repeated the grounds previously given for the applicant’s continued detention. They again found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code. In particular, the courts observed that it resulted from medical reports that the applicant was suffering from health problems and could be treated within a penitentiary facility.
On 5 May 2011 the Lublin District Court convicted the applicant. The applicant appealed.
Since 17 December 2010 the applicant has been serving a prison sentence imposed on him in another set of criminal proceedings.
2. Proceedings under the 2004 Act (V S 11/11)
On 4 May 2011 the applicant lodged with the Lublin Regional Court a complaint 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”).
On 26 May 2011 the Lublin Regional Court dismissed the applicant’s complaint. It considered that the proceedings before the trial court had been conducted with the requisite speed especially given the complexity of the case. 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. In its analysis the court examined only the course of the proceedings after 27 February 2009 stating that the applicant’s complaint could only refer to the current stage of the proceedings i.e. the one after the Lublin Regional Court had remitted the case to the Lublin District Court and had duly transmitted the case file.
3. Imposition of the “dangerous detainee” status
On 3 January 2007 the Lublin Remand Centre Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee”. It considered that it was necessary given that he was charged with numerous offences against human life and health. The commission also referred to the high degree of demoralisation of the applicant and the fact that he was a recidivist offender. Finally, the commission underlined that the applicant had already escaped twice from custody and had been hiding from the police for several years.
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.
The applicant’s appeals against decisions extending his status as a “dangerous detainee” have been so far unsuccessful.
As a “dangerous detainee”, the applicant is subjected to a body search every time he is entering or leaving his cell which means that he has to strip naked in front of three prison guards and is required to carry out deep knee‑bends at least twice a day. The body search is performed in a separate room, which is monitored and the recording can be viewed in a duty room. The applicant, whenever outside his cell, including his appearances at court hearings and medical visits, wears the so-called “joined shackles” (kajdany zespolone) on his hands and feet. His visiting rights are also severely restricted. The applicant may leave his cell for one hour of outdoor exercise a day in a sixteen sq.m. large cage surrounded by a wall.
On 17 July 2009 the Head of Lublin Remand Centre ordered the applicant’s solitary confinement for a period of 14 days as a disciplinary punishment after he had refused to undergo a strip search.
The applicant requested the Head of Lublin Remand Centre to reconsider his decision.
On 24 August 2009 the Head of Lublin Remand Centre upheld his original decision stating that it was well founded given the applicant’s refusal to strip naked and his aggressive behaviour towards the prison guards who were to perform a body search. The applicant appealed.
On 23 September 2009 the Lublin Regional Court dismissed the applicant’s appeal arguing that the impugned decision was lawful and as such could not be contested before the court.
4. The European Parliament elections
On 7 June 2009 the applicant requested the prison authorities to allow him to vote in the European Parliament elections, in the election room arranged for that purpose within the confines of the prison. After carrying out a basic body search with a metal detector, the prison guard took the applicant to a separate room and ordered him to strip naked. As the applicant refused to do so requesting the guard to allow him to vote without undergoing a full strip search he was taken back to his cell, without being allowed to vote.
On 8 June 2009 the applicant complained that he had not been allowed to vote to the Lublin Regional Court, which referred the complaint to the Head of Lublin Remand Centre.
On 16 July 2009 the Head of Lublin Remand Centre dismissed the applicant’s complaint. He stated that as a ‘dangerous detainee’ the applicant was subjected to a body search every time he entered or left his cell. As on 7 June 2009, while being taken to the voting room, the applicant refused to undergo a full strip search the guards had to take him back to his cell. Later that day the applicant was again asked whether he wished to participate in the elections but he refused stating that he would not strip naked.
5. Conditions of the applicant’s detention
On 21 December 2006 the applicant was committed to Warsaw Remand Centre. On an unspecified date he was transferred to Radom Remand Centre and subsequently to Lublin Remand Centre.
The applicant complained that throughout his detention he was held in conditions below the basic standard of hygiene. He also alleged that his cell in Lublin Remand Centre had no ventilation, had little natural light, poor artificial lighting and was badly furnished.
6. Monitoring of the applicant’s correspondence
The applicant submitted three envelopes of letters from his sister bearing an illegible signature and a stamp “censored on 1 July 2010”, “censored on 12 July 2010” and “censored on 6 August 2010” respectively. In respect of the letter censored on 12 July 2010 an authorisation to receive a package containing copies of the court case files and the applicant’s medical records was issued by the Head of the Penitentiary Department of Lublin Remand Centre and was attached to the envelope. A similar authorisation to receive a copy of the court case files was issued in respect of the letter censored on 6 August 2010 and was also attached to the envelope.
7. Criminal proceedings against the medical and nursing staff of the hospital ward of Lublin Remand Centre
On 6 September 2010 the Lublin District Prosecutor instituted criminal proceedings against the medical and nursing staff of the hospital ward of Lublin Remand Centre for asserting an untruth and forgery of the applicant’s signature.
On 29 April 2011 the Lublin District Prosecutor discontinued the relevant proceedings.
B. Relevant domestic law and practice
1. Preventive measures, including pre-trial detention
The relevant domestic law and practice concerning the imposition of pre‑trial detention (tymczasowe aresztowanie), the grounds for its extensionprolongation, release from detention and rules governing other, so‑called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 May 2006.
2. Length of proceedings
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and in its the judgments in the cases of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V and Krzysztofiak v. Poland, no. 38018/07, §§ 23-31, 20 April 2010.
3. “Dangerous detainee” status
(a) General rules
Article 212a of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows:
“1. The penitentiary commission shall classify a detainee as posing a serious danger to society or to the security of a remand centre. It shall review its decisions on that matter at least once every three months. The authority at whose disposal a detainee remains and a penitentiary judge shall be informed of decisions taken.
2. A detainee, referred to in subparagraph 1, shall be placed in a designated remand centre’s ward or in a cell in conditions ensuring increased protection of society and the security of the remand centre. A penitentiary judge shall be informed about this placement.
3. A detainee who is suspected of committing an offence in an organised criminal group or organisation aimed at committing offences shall be placed in a remand centre in conditions ensuring increased protection of society and the security of the remand centre, unless particular circumstances militate against such placement.
...”
The penitentiary commission referred to in the above provision is set up by the governor of the prison or the governor of the remand centre. It is composed of prison officers and prison employees. Other persons – such as representatives of associations, foundations and institutions involved in rehabilitation of prisoners as well as church or religious organisations – may participate in the work of the commission in an advisory capacity. If the commission’s decision on the classification of a prisoner or detainee is contrary to the law, the relevant penitentiary court may quash or alter that decision (Article 76). A detainee may appeal against the penitentiary commission’s decision but solely on the ground of its non-conformity with the law (Article 7).
(b) Functioning of wards for dangerous detainees in practice
Article 212b of the Code of Execution of Criminal Sentences lays down specific arrangements for detention of a “dangerous detainee”. It reads, in so far as relevant, as follows:
“1. In a remand centre a detainee referred to in Article 212a shall be held in the following conditions:
1) cells and places designated for work, study, walks, visits, religious services, religious meetings and religious classes, as well as cultural and educational activities, physical exercise and sports, shall be equipped with adequate technical and protective security systems;
2) cells shall be controlled more often than those in which detainees [not classified as “dangerous”] are held;
3) a detainee may study, work, participate directly in religious services, religious meetings and classes, and participate in cultural and educational activities, exercise and do sports only in the ward in which he is held;
4) a detainee’s movement around a remand centre shall be under increased supervision and shall be restricted to what is strictly necessary;
5) a detainee shall be subjected to a personal check (kontrola osobista) each time he leaves and enters his cell;
6) a detainee’s walk shall take place in designated areas and under increased supervision;
...
8) visits shall take place in designated areas and under increased supervision ...;
9) a detainee may not use his own clothes or footwear.
Rules on the use of handcuffs, fetters and other restraint measures are laid down in the Cabinet’s Ordinance of 17 September 1990 on conditions and manner of using direct restraint measures by policemen (as amended on 19 July 2005) (Rozporządzenie Rady Ministrów z dnia 17 września 1990 r. w sprawie określenia przypadków oraz warunków i sposobów użycia przez policjantów środków przymusu bezpośredniego) (“the 1990 Ordinance”). Paragraph 6 of the 1990 Ordinance reads, in so far as relevant, as follows:
“1b Handcuffs shall be put on hands kept on the front. If a person is aggressive or dangerous, handcuffs may be put on hands kept behind the back.
2b In respect of persons detained or sentenced to imprisonment, in particularly justified cases joined shackles designed to be worn on hands and legs may be used.”
The wards “N” (from “niebezpieczny” – dangerous in Polish) designed for dangerous detainees are closed units within prisons or remand centres, shut off to other sections of the detention facility. They are placed in a separate building or in a specific part of the prison building fully isolated from other sections of the prison, usually through a special entry or corridor. A security door remains closed at all times and the entire ward is continually monitored via close-circuit television. Regular daily routines (provision of meals, clothes, etc.) are organised with the use of remote‑controlled devices, reducing to the minimum any direct contact between the detainees and the prison guards. The prison guards wear bullet‑proof jackets.
Routine searches of cells are often carried out.
The detainees, whenever outside cells, even within the ward “N”, wear “joined shackles” or are handcuffed at all times. They are subjected to a personal check before leaving cells and on return. They all wear special red uniforms. They have a daily, solitary walk in a specially designated and segregated area and if they are allowed to spend some time in a day room, they usually remain alone. They are not necessarily subjected to solitary confinement and may share the cell with an inmate or inmates but, pursuant to paragraph 90 of the 2003 Ordinance, the number of detainees in the cell is limited to three persons at the same time.
According to paragraph 91(1) of the 2003 Ordinance, a dangerous detainee can move within the detention facility only singly. In justified cases such detainees may move in a group of three but under the increased supervision by the prison guards.
Paragraph 91(4) states that, outside the cell and facilities designated for “N” detainees, an “N” inmate must be permanently and directly supervised by at least two prison guards. This restriction can only exceptionally and in justified cases be lifted by the Prison Governor.
A dangerous detainee cannot perform any work using dangerous tools, handle devices designed to make dangerous or illegal objects, take up any work enabling him to set fire, cause an explosion or any danger to the prison security or work in any place enabling an escape or uncontrolled contact with other persons (paragraph 92). He is not allowed to make purchases in the prison shop but must submit his shopping list to a designated prison guard. The goods are delivered directly to his cell (paragraph 93).
As of 2008 there were 16 “N” wards in Polish prisons, which had the capacity to hold from 17 to 45 detainees.
As of February 2010 there were 340 “dangerous detainees” (convicted or detained on remand) in “N” wards.
(c) Personal check
Article 116 § 2 of the Code of Execution of Criminal Sentences defines the “personal check” in the following way:
“A personal check means an inspection of the body and checking of clothes, underwear and footwear as well as [other] objects in a [prisoner’s] possession. The inspection of the body, checking of clothes and footwear shall be carried out in a room, in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex.”
Pursuant to paragraph 94 § 1 of the 2003 Ordinance:
“1. A [dangerous] detainee shall be subjected to a personal or cursory check, in particular:
1) before leaving the ward or the workplace and after his return there;
2) before individual conversations or meetings with the representatives of the prison administration or other persons that take place in the ward;
3) immediately after the use of a direct coercive measure – if it is possible given the nature of the measure;
4) directly before the beginning of the escort.”
(d) Monitoring of dangerous detainees
By virtue of the law of 18 June 2009 on amendments to the Code of Execution of Criminal Sentences (ustawa o zmianie ustawy – Kodeks karny wykonawczy) (“the 2009 Amendment”) Article 212b was rephrased and new rules on monitoring detention facilities by means of close-circuit television were added. The 2009 Amendment entered into force on 22 October 2009.
The former text of Article 212b (see paragraph 106 above) became paragraph 1 of this provision and a new paragraph 2 was introduced. This new provision is formulated as follows:
“2. The behaviour of a person in pre-trial detention referred to in Article 212a § 1 and 4 in a prison cell, including its part designated for sanitary and hygienic purposes and in places referred to in paragraph 1 (1) [of this provision] shall be monitored permanently. The images and sound [obtained through monitoring] shall be recorded.”
The above provision belongs to the set of new rules that introduced monitoring in prisons by means of close-circuit television as a necessary security measure.
The new Article 73a reads, in so far as relevant, as follows:
“1. Detention facilities may be monitored through an internal system of devices registering images or sound, including close-circuit television.
2. Monitoring, ensuring the observation of a prisoner’s behaviour, may be used in particular in prison cells including parts designated for sanitary and hygienic purposes, in baths, in premises designated for visits, in places of employment of detainees, in traffic routes, in prison yards, as well as to ensure observation of the prison grounds outside buildings, including the lines of external walls.
3. Monitored images or sound may be registered with the help of appropriate devices.
4. Monitoring and registering of sound may not include information subject to the seal of confession or secret protected by law.
5. Images from close-circuit television installed in the part of the prison cell designated for sanitary and hygienic purposes and in baths shall be transmitted to monitors or other devices referred to in paragraph 3 in a manner making it impossible to show [detainees’] private parts or their intimate physiological functions.
...”
Pursuant to Article 73 (a) §§ 6 and 7, if the registered material is not relevant for the prison security or security of an individual prisoner it shall be immediately destroyed. The Prison Governor decides for how long the relevant registered material should be stored and how it is to be used.
However, all registered material concerning a dangerous detainee is stored in accordance with Article 88c, which reads as follows:
“The behaviour of a [detainee classified as dangerous] in a prison cell, including its part designated for sanitary and hygienic purposes and in places referred to in Article 88b (1) [places and premises designated for work, education, walking exercise, receiving visits, religious service, religious meetings and teaching, as well as cultural, educational and sports activity] shall be monitored permanently. The images and sound [obtained through monitoring] shall be recorded.”
Before that amendment, the rules on monitoring detainees were as included in paragraph 81 § 2 of the 2003 Ordinance, according to which a prison cell could be additionally equipped with video cameras and devices enabling listening.
4. Censorship of correspondence
The relevant domestic law and practice concerning the censorship of prisoners’ correspondence are set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007.
C. International documents
1. Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe to Member States on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies)
The recommendation, in its part relating to the application of security measures reads, in so far as relevant, as follows:
Security
“51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.
51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control.
51.3 As soon as possible after admission, prisoners shall be assessed to determine:
a. the risk that they would present to the community if they were to escape;
b. the risk that they will try to escape either on their own or with external assistance.
51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.
51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.”
Safety
“52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.
52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.
52.3 Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety.
52.4 It shall be possible for prisoners to contact staff at all times, including during the night.
52.5 National health and safety laws shall be observed in prisons.”
Special high security or safety measures
“53.1 Special high security or safety measures shall only be applied in exceptional circumstances.
53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.
53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.
53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.
53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.
53.6 Such measures shall be applied to individuals and not to groups of prisoners.”
2. The 2009 Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
From 26 November to 8 December 2009 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) carried out a periodic visit to selected detention establishments in Poland.
The CPT visited wards designated for dangerous detainees in the Poznań Remand Centre, the Racibórz Prison and the Rawicz Prison. The CPT report contains a general description of the “N” regime and a number of specific recommendations aimed at ameliorating conditions of detention of inmates with “N” category status in the establishments visited. It also lists recommendations aimed at removing perceived shortcomings of the “dangerous detainee” regime in general.
The following observations were made in paragraph 91 of the report in respect of the application of the regime:
“The regime applied to ‘N’ category prisoners remained very restrictive, similar to the one described in the report on the 2004 visit. Out-of-cell time consisted essentially of one hour of outdoor exercise per day (taken either alone or in the company of a cellmate) and access to a recreation room twice weekly at Poznań Remand Prison and Racibórz Prison. Inmates could have their own TV in the cell. They were entitled to a weekly shower, two visits a month, and two phone calls per month for sentenced prisoners (at the prosecutor’s discretion for remand prisoners) at Rawicz and Racibórz prisons, and a five-minute-daily phone call for sentenced prisoners at Poznań Remand Prison. Contact with staff was limited to occasional visits by educators, psychologists and a chaplain.
The CPT remains of the opinion that the regime for ‘N’ status prisoners should be fundamentally reviewed. Solitary confinement or small-group isolation for extended periods is more likely to de-socialise than re-socialise people. There should instead be a structured programme of constructive and preferably out-of-cell activities, and educators and psychologists should be proactive in working with "N" status prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day. As stressed in the report on the visit in 2004, regardless of the gravity of the offences of which prisoners are accused or have been convicted and/or their presumed dangerousness, efforts must be made to provide them with appropriate stimulation and, in particular, with adequate human contact.”
In paragraph 92 of the report the CPT referred to the procedure for the classification as a “dangerous detainee” and the usually lengthy application of the “dangerous detainee” status in the following terms:
“The procedure for allocation and review of ‘N’ status remained unchanged. Despite the presence of regular quarterly reviews, most prisoners remained in ‘N’ status for lengthy periods of time. ...
The Committee must stress that placement in an ‘N’ unit should not be a purely passive response to the prisoner’s attitude and behaviour. Instead, reviews of placement should be objective and meaningful, and form part of a positive process designed to address the prisoner’s problems and permit his (re-)integration into the mainstream prison population. In the CPT’s opinion, the procedure for allocating a prisoner to ‘N’ status should be refined to ensure that only those who pose an ongoing high risk if accommodated in the mainstream of the prison population are accorded this status. Reviews of ‘N’ status should specify clearly what is to be done to assist the prisoner concerned to move away from the ‘N’ status and provide clear criteria for assessing development. Prisoners should be fully involved in all review processes. The Committee reiterates its recommendation that the Polish authorities review current practice with a view to ensuring that "N" status is only applied and maintained in relation to prisoners who genuinely require to be placed in such a category.”
In paragraph 94, the CPT expressed the following opinion regarding the practice of routine strip-searches:
“The CPT also has serious misgivings about the systematic practice of obliging ‘N’ status prisoners to undergo routine strip-searches whenever entering or leaving their cells. The prisoners concerned had to undress completely, and squat fully naked in view of the guards and any prisoner(s) sharing the cell while all their clothes were examined.
In the CPT’s opinion, such a practice could be considered as amounting to degrading treatment. The Committee recommends that strip-searches only be conducted on the basis of a concrete suspicion and in an appropriate setting and be carried out in a manner respectful of human dignity.”
The CPT gave the following general recommendations to the Polish Government in respect to prisoners classified as “dangerous” (“N” status):
“- the Polish authorities to review the regime applied to ‘N’ status prisoners and to develop individual plans aimed at providing appropriate mental and physical stimulation to prisoners (paragraph 91);
- the Polish authorities to review current practice with a view to ensuring that ‘N’ status is only applied and maintained in relation to prisoners who genuinely require to be placed in such a category (paragraph 92);
- strip-searches to be conducted only on the basis of a concrete suspicion and in an appropriate setting, and to be carried out in a manner respectful of human dignity (paragraph 94).
3. The Polish Government’s response to the CPT’s report
The Polish Government’s response to the CPT report was published on 12 July 2011.
In respect of the recommendation that the Polish authorities should revise the regime applied against “N” status prisoners and develop individual plans aimed at providing inmates with appropriate psychological and physical stimulation (paragraph 91), they stated:
“Adult[s] ... classified in the category of so-called dangerous offenders have a possibility of selecting a system in which they serve their sentence of imprisonment, i.e. programmed impact or an ordinary system. The above does not apply to sentenced juvenile offenders who are classified as dangerous and who obligatorily serve their sentence in the system of programmed impact. In an ordinary system, a convict may use employment available at the penitentiary institution, as well as education and cultural-educational and sports classes. As far as such convicts are concerned, no plans are made for application of the individual programme of impact. The individual programme of impact is prepared in co-operation with the convict who declared that he wishes to serve his sentence in the system of programmed impact, which anticipates active participation of the convict in the process of re-socialization by means of fulfilment of tasks imposed upon him as part of the programme which are aimed at solving the problems constituting the grounds for the offences he committed.
Dangerous convicts qualified in a therapeutic system requiring specialized impact re presented with individual therapeutic programmes preceded by diagnosis, which encompasses:
1) a description of the causes of the event;
2) a description of irregularities in the area of cognitive, emotional and behavioural processes;
3) characteristics of the actual state of their psychological and physical condition;
4) a description of the problem constituting the grounds justifying delegation for the therapeutic system;
5) description of individual problems of the convict;
6) evaluation of motivation to participate in implementation of the individual therapeutic programme;
7) indication of positive features if personality and behaviour of the convict.
When developing an individual therapeutic programme, the following should be specified:
1) the scope of the conducted activities;
2) purpose of impact, possible to be undertaken in the conditions of a therapeutic ward or outside such ward, taking into account the properties of the convict;
3) methods of specialized impact;
4) criteria for implementation of an individual therapeutic programme.
Convicts qualified in the category of so-called dangerous are subjected to penitentiary impact with limitations deriving from the fact of causing by them of serious social threat or a serious threat to security of the institution. Moreover, they are subjected to impact whose purpose is to, in particular, decrease emotional tensions, as well as limitation of tendencies for aggressive or self-aggressive behaviours. In the individual programme of impact and the individual therapeutic programme conducted for him, methods and measures are specified which are aimed at mental and physical stimulation of the convict. It should also be emphasised that each inmate, including dangerous offender, exhibiting symptoms of worsening of his mental conditions is covered by psychological and psychiatric help. Moreover, dangerous inmates are also covered by intensive psychological supervision for the purpose of elimination of tensions resulting from an increased isolation.
The Polish prison system developed rules of organization and conditions of conduct of penitentiary impact against convicts, persons under detention on remand and punished persons who pose serious social danger or serious danger for security of the penitentiary institution or a detention on remand centre, kept in conditions ensuring increased security of the community and the security of the penitentiary institution. Such solutions are aimed at intensification and unification of impact against dangerous inmates, and in particular:
- directing the penitentiary work on preventing of negative consequences of limitation of social contacts by organization and initiation of desirable activity as part of cultural-educational and sports activities, re-adaptation programmes;
- undertaking measures connected with maintenance of mental hygiene, including the reduction of the level of stress and aggression;
- a need of allowing the inmate to commence or continue education (in particular in case of juvenile offenders);
- undertaking of employment in the division;
- impact based on educational and prophylactic programmes.
Recommendations of the Committee concerning development of individual programmes for dangerous convicts have been taken into account and are implemented according to the provisions binding in this regard.”
Referring to the recommendation that the Polish authorities should verify their current practice in order to ensure that the “N” status is accorded appropriately and maintained only in respect to prisoners who do, in fact, require being qualified in such category (paragraph 92), the Government responded:
“In the Polish penal law, the basic legal act specifying criteria of qualifying inmates creating serious social danger or serious danger to security of the institution is the [Code of Execution of Criminal Sentences].
The aforementioned inmates are placed in a designated division or cell of a penitentiary institution or an investigation detention centre in conditions ensuring increased protection of the community and the security of the penitentiary unit. An authority authorized to verify a necessity of further stay of the inmate in a designated division or cell is a penitentiary commission. The penitentiary commission is obliged to verify its decisions in this regard at least once every three months. Decisions taken by the penitentiary commission shall be each time notified to the penitentiary judge, and in the event of detention on remand, also to the authority at whose disposal the inmate is. The penitentiary commission performed an inquisitive and, in every case, individual analysis of justification of the request for qualification, as well as verifies a necessity of continued stay of the inmates in delegated division or cell.
Moreover, attention should be drawn to the fact that each decision of the authority executing the judgement according to Art. 7 of the [Code of Execution of Criminal Sentences] is subject to an appeal by the inmate.
Summing up the above, we can state that such frequent verification of this category of inmates, an analysis of behaviours and a legal situation gives a guarantee of real evaluation of the situation of the inmate and possible benefits deriving from continued application against him of an extended system of protection.”
Lastly, in regard to the recommendation that a strip-search should be conducted only on the basis of a concrete suspicion and under appropriate conditions, as well as with respect for human dignity (paragraph 94 of the Report), the Government stated:
“The principles and procedures of performing a personal search of the inmate and other persons in penitentiary institutions and investigation detention centres are regulated in the [Code of Execution of Criminal Sentences] and the [Ordinance of the Minister of Justice of 31 October 2003 on means of protection of organisational units of the Prison Service]. According to these provisions, personal check-up consists of examination of the body and checking clothes, underwear and shoes, including any objects in possession of the convict. Inspection of the body and checking-up clothes and shoes is each time performed by officers of the Prison Service in a separate room, in absence of any third parties and persons of a different sex, and is performed by persons of the same sex. The conducted control must, on many occasions have a prevention character, but it is always performed with respect for human dignity, applying the principle of humanitarianism and legality. The control is conducted for the purpose of finding dangerous and forbidden products and preventing an escape or in other justified cases. Departure from these rules would entail a realistic threat to security of the penitentiary unit and inmates kept therein.”
COMPLAINTS
1. The applicant complains in substance under Articles 3 and 8 of the Convention of the inadequate conditions of his detention.
2. Invoking Article 3 of the Convention, the applicant also complains that he was unlawfully classified as a “dangerous detainee” and subjected to degrading treatment. He further complains under the same Article about the inadequate medical care.
3. The applicant further complains in substance under Article 5 § 1 of the Convention that between 21 and 28 December 2006 he had been unlawfully held in custody.
4. He also alleges, invoking Article 5 § 3 of the Convention, that the length of his pre-trial detention was unreasonable.
5. He further complains under Article 6 § 1 of the Convention about the excessive length of the criminal proceedings against him.
6. The applicant also complains without invoking any Articles of the Convention about the discontinuance of the criminal proceedings against the medical and nursing staff of the hospital ward of Lublin Remand Centre.
7. Relying in substance on Article 8 of the Convention, the applicant alleges that correspondence from his sister, his counsel and the Court has been censored.
8. Finally, the applicant also complains invoking in substance Article 3 of Protocol No. 1 to the Convention that as a result of his refusal to strip naked he was not allowed to vote in the European Parliament elections of 7 June 2009.
QUESTIONS TO THE PARTIES
1. Having regard to
– the number and nature of visits that he has been granted by the authorities throughout the period;
– the fact that, in addition to various other restrictions involved in the imposition of the “dangerous detainee” regime, pursuant to Article 212b (5) of the Code of Execution of Criminal Sentences, he is subjected to a personal check (kontrola osobista) every time he leaves and enters his cell – a measure which in practice is effected by prison guards by ordering him to strip naked in front of them and to carry out deep knee-bends;
– that his cell, including its sanitary facilities, is constantly monitored via close-circuit television;
– that he must wear the so-called “joined shackles” (hand cuffs and fetters joined together with chains) whenever he is outside the cell, including appearances at court hearings and medical visits;
and considering the combined effects that those measures have had on the applicant,
has he been subjected to treatment contrary to Article 3 of the Convention?
2. Alternatively, do the above facts give rise to a violation of Article 8 of the Convention?
3. In the context of the applicant’s status of a ‘dangerous detainee’ and his refusal to undergo a full body search, has there been a breach of the applicant’s right under Article 3 of Protocol No. 1 to vote in the European Parliament elections of 7 June 2009?
4. Did the length of the applicant’s pre-trial detention exceed a “reasonable time” within the meaning of Article 5 § 3 of the Convention?
5. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
6. With regard to the letters from the applicant’s sister, has there been an interference with the applicant’s right to respect for his correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
Full & Egal Universal Law Academy