FIRST SECTION
DECISION
Application no. 10034/09
Sylwester FLIS
against Poland
The European Court of Human Rights (First Section), sitting on 12 December 2017 as a Committee composed of:
Aleš Pejchal, President,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 22 January 2009,
Having regard to the unilateral declaration submitted and observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Sylwester Flis, is a Polish national who was born in 1980. He is currently in detention in Hrubieszów. He was represented before the Court by Mr S. Kotuła, a lawyer practising in Lublin.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case and the applicant’s arrest and detention
4. The first period of the applicant’s detention lasted from 14 January to 18 August 2000. Subsequently, while the applicant was undergoing psychiatric observation, he went into hiding.
5. An arrest warrant was issued on 19 August 2000. On 31 August 2000 he was charged with having effected an unlawful release from detention (bezprawne uwolnienie się). The proceedings against him were suspended on 31 October 2000.
6. On 22 May 2001 the Lublin Regional Court (Sąd Okręgowy) issued an order to detain the applicant for three months, with a reservation that the period was to be calculated from the date he was eventually arrested. Another arrest warrant was issued on 29 June 2001.
7. On 19 October 2004 the Lublin Regional Court issued a European Arrest Warrant against the applicant.
8. On 28 September 2006 the applicant was arrested in Spain and placed on remand.
9. On 3 November 2006 he was transferred to Poland and placed in Lublin Remand Centre.
10. Subsequently, the investigation resumed and the applicant was charged with murder, participation in a brawl which had caused serious bodily injury and effecting an unlawful release from detention.
2. First set of criminal proceedings
11. On 22 December 2006 a bill of indictment was lodged against the applicant with the Lublin Regional Court.
12. On 19 March 2008 the Lublin Regional Court convicted the applicant as charged and sentenced him to fifteen years’ imprisonment.
13. The applicant appealed.
14. On 7 October 2008 the Lublin Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case. In respect of the offence of unlawful release from detention, the court quashed the first-instance judgment only as regards the punishment imposed on the applicant.
15. The retrial started on 6 March 2009. On 4 March 2010 it was decided to sever the charge of unlawful release and to examine it in a separate set of proceedings (see paragraph 22 below).
16. On 20 September 2011 the Lublin Regional Court convicted the applicant of murder and participation in a brawl which had caused serious bodily injury and sentenced him to fifteen years’ imprisonment.
17. Subsequently, on 13 December 2011 the Lublin Regional Court extended the applicant’s detention.
18. The applicant appealed against the first-instance judgment.
19. On 30 May 2012 the Lublin Court of Appeal dismissed the applicant’s appeal.
20. The applicant lodged a cassation appeal with the Supreme Court.
21. On 5 April 2013 the Supreme Court dismissed the applicant’s cassation appeal as manifestly ill-founded.
3. Second set of criminal proceedings
22. The second set of proceedings was a continuation of the first and concerned the charge of effecting an unlawful release from detention, following the judgment given by the Lublin Court of Appeal on 7 October 2008 and the severing of the charges (see paragraph 15 above).
23. On 23 April 2010 the Lublin Regional Court, after re-examining the case, sentenced the applicant to two years’ in prison.
24. The applicant appealed against the first-instance judgment.
25. On 4 August 2010 the Lublin Court of Appeal dismissed the applicant’s appeal.
26. The applicant lodged a cassation appeal, which was dismissed by the Supreme Court on 29 June 2011.
27. The applicant was not detained on remand for the purposes of the second set of proceedings. From 6 December 2010 to 31 October 2012 the applicant was serving the sentence imposed on him in this set of proceedings.
4. The overall period of the applicant’s detention on remand
28. The applicant was arrested and placed in detention in Spain on 28 September 2006. He was transferred to Poland on 3 November 2006, where he was kept in pre-trial detention. On 19 March 2008 he was convicted by the first-instance judgment, meaning he had been “convicted by a competent court” within the meaning of Article 5 § 1(a) of the Convention as of that date. The conviction was quashed by the appeal court on 7 October 2008 and he was then convicted again in that set of proceedings on 20 September 2011. He was convicted in the second set of criminal proceedings against him on 23 April 2010.
29. Accordingly, the applicant’s pre-trial detention lasted from 14 January to 22 March 2000; from 16 April to 18 August 2000; from 3 November 2006 (when the applicant was transferred to Poland from Spain) to 19 March 2008 (the first-instance judgment); and from 7 October 2008 (the appeal judgment) to 6 October 2010 (when he started serving his prison term). The overall period was three years and nine months.
5. The applicant’s requests for release and appeals against detention order
30. The period of detention after the applicant’s apprehension in Spain was extended on 2 January, 22 March, 6 June, 26 September and 28 December 2007, on 19 February, 19 March and 18 November 2008, on 17 February, 15 May and 12 November 2009, on 9 February, 12 May, 7 June and 17 November 2010 and on 12 January, 13 May, 14 September and 13 December 2011 by decisions of the Lublin Regional Court.
31. The pre-trial detention was also extended by decisions of the Lublin Court of Appeal on 10 September 2008 and 29 February 2012. The courts relied on the presence of a reasonable suspicion that the applicant had committed the offences in question. They attached importance to the risk of him attempting to obstruct the proceedings.
32. On 8 December 2009 the Lublin Regional Court refused an application for release from the applicant.
33. On 31 August 2010 the Lublin Regional Court refused an application by the applicant to vary the preventive measure applied to him.
34. On 11 March, 3 June and 2 December 2009, on 24 February, 2 June, 30 June on 1 December 2010, on 2 February, 1 June and 5 October 2011 the Lublin Court of Appeal dismissed the applicant’s interlocutory appeals by the applicant against the Lublin Regional Court’s decisions of 17 February, 15 May and 12 November 2009, of 9 February, 12 May, 7 June and 17 November 2010 and of 12 January, 13 May and 14 September 2011 respectively.
6. The dangerous detainee regime
35. On 7 November 2006 the Lublin Remand Centre Penitentiary Commission (“the Commission”) classified the applicant as a “dangerous detainee”. The Commission relied on the applicant’s lack of a critical attitude towards the offences he had committed and the degree of his lack of moral character. It also had regard to the fact he had effected an unlawful release, considering that he posed a danger to prison security.
36. The Commission afterwards reviewed and upheld that decision on the following dates: 7 February, 26 April, 26 July and 25 October 2007, 24 January, 24 April, 23 July and 23 October 2008, 22 January, 16 April, 16 July and 15 October 2009, 14 January, 8 April, 7 July and 7 October 2010, 5 January, 4 April, 30 June and 29 September 2011. The Commission referred each time to the reasons originally relied on in the decision of 7 November 2006.
37. The applicant was detained in several detention facilities, including Warsaw‑Mokotów Remand Centre, Radom Remand Centre and Lublin Remand Centre.
38. He had to wear a red uniform, which designated dangerous prisoners. He was subjected to a body search every time he left and entered the cell, which in practice meant that he had to strip naked in front of the prison guards and was required to bend over to enable the examination of his anus. Whenever he was outside his cell, including for appearances at court hearings or medical visits, the applicant wore so-called “joined shackles” on his hands and feet. The shackles consisted of handcuffs and fetters joined together with chains. The cells, including the sanitary facilities, were constantly monitored via closed-circuit television. He was always accompanied by a prison officer when he was outside his cell. No educational or cultural activities were available. Contacts with his family were limited.
39. The applicant had the right to an hour of exercise in the prison yard. He could use the daily recreation room three times a week. He had access to a library and could take part in cultural activities.
40. The applicant appealed against the decision of 30 June 2011. On 12 September 2011 the Lublin Regional Court dismissed the appeal. The court found that the decision had been issued by the authority competent to make a ruling, had been in the appropriate form and had accorded with the relevant provisions of the law.
41. On 29 December 2011 the Commission ended the “dangerous detainee” regime in respect of the applicant, referring to positive changes in his behaviour.
42. On 5 January 2012 the applicant appealed against that decision. He submitted that the “dangerous detainee” regime had been applied to him without reason for five years.
7. The applicant’s attempt to withdraw money from his account
43. On 22 December 2008 the applicant asked the governor of Lublin Remand Centre for permission to withdraw 1,500 Polish zlotys (PLN) (approximately 370 euros (EUR)) from his bank account for his sister. The request was denied. The applicant had PLN 2,316.21, of which PLN 1,484.28 had to remain in his account to as accumulate in the “iron savings box” (żelazna kasa), a post-prison aid fund.
B. Relevant domestic law and practice
1. Dangerous detainee regime
44. The relevant domestic law and practice concerning the dangerous detainee regime, monitoring of detainees and personal checks are set out in the Court’s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 110-117, 17 April 2012), and Horych v. Poland (no. 13621/08, §§ 49-56, 17 April 2012).
2. Detention on remand
45. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated 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 August 2006.
3. The “iron savings box”
46. The relevant domestic law and practice concerning the release savings fund, the so Called “iron savings box” (“żelazna kasa”) are set out in the Court’s judgment in the case Siemaszko and Olszyński v. Poland (nos. 60975/08 and 35410/09, § 30, 13 September 2016). In particular, Article 126 of the Code provides that 50% of the funds obtained by a convicted person, although no more than 4% of the national average monthly salary, as established by the Central Statistical Office, should be deposited in his or her release savings fund, to be returned upon his or her release. The money is intended to cover travel expenses to the person’s place of residence and initial maintenance outside prison. The amount of savings in the fund was limited to one average monthly salary. Article 126 was amended with effect from 1 January 2012 so as to allow prisoners to place their savings in an interest-earning bank account of his or her choice. If a prisoner lacks sufficient funds on the day of his or her release, he or she may apply to the prison governor for financial help of up to 30% of the average monthly salary (Article 166 § 3 of the Code). Article 126 was subsequently amended again, with effect from 1 July 2015. Currently, the savings of convicted persons are placed in accounts run by the State Development Bank of Poland (Bank Gospodarstwa Krajowego), where the interest rate is the same as the deposit rate at the National Bank of Poland.
COMPLAINTS
47. The applicant complained under Article 3 of the Convention about the “dangerous detainee” regime; under Articles 6 and 13 of the lack of a fair trial and effective remedies in connection with the imposition of the regime; under Article 5 § 3 of the excessive length of his pre-trial detention; and under Article 1 of Protocol No. 1 of the Convention about the so-called “iron savings box”.
THE LAW
A. The Government’s request to strike out part of the application under article 37 of the Convention
48. On 30 March 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested that the Court strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government hereby wish to express by way of the unilateral declaration their acknowledgement for the fact that the applicant has been subjected to treatment contrary to Article 3 of the Convention and acknowledgement of the fact that the applicant’s pre-trial detention was not compatible with the “reasonable time” requirement within the meaning of Article 5 § 3 of the Convention.
Simultaneously the Government declare that they are ready to pay the applicant the sum of PLN 30,000 (thirty thousand Polish zlotys) which they consider to be reasonable in the light of the Court’s case-law in similar cases (see, inter alia, Piechowicz v. Poland, no. 20071/07, 17 April 2012 and Horych v. Poland, no. 13621/08, 17 April 2012). The sum referred to above, which is to cover any pecuniary and non‑pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention of Human Rights. 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 period plus three percentage points.
The Government respectfully suggest that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”
49. By a letter of 7 May 2015 the applicant submitted that he was not satisfied with the terms of the unilateral declaration, in particular on the grounds that the proposed amount was too low.
50. The Court reiterates 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”.
51. It also reiterates that in certain circumstances, it may strike out an application or part thereof 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.
52. To this end, the Court has examined the declaration carefully 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; see also WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
53. The Court has in a number of cases established its practice concerning complaints of a violation of Article 3 as regards various aspects of the application of the “dangerous detainee” regime, including cases brought against Poland (see, for example, Piechowicz and Horych, cited above).
54. 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)).
55. Moreover, in light of the above considerations, and in particular given its 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).
56. Finally, the Court emphasises that if the Government fails to comply with the terms of their unilateral declaration, the application – in the part covered by the declaration – could be restored to the list, in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
57. Accordingly, the Court takes note of the terms of the respondent Government’s declaration under Articles 3 and 5 § 3 of the Convention and of the arrangements for ensuring compliance with the undertakings referred to therein and decides to strike the complaints under Article 3 and Article 5 § 3 of the Convention out of its list of cases, in accordance with Article 37 § 1 (c) of the Convention.
B. Alleged violation of Article 1 of Protocol no. 1 to the Convention
58. The applicant complained that the obligation to place part of his savings in a deposit fund amounted to a violation of Article 1 of Protocol No. 1 to the Convention, which provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
59. The Government contested that argument.
1. The parties’ submissions
60. The Government agreed that the applicant had “possessions” within the meaning of Article 1 of Protocol No. 1. Access to those possessions, as well as the possibility of disposing of them, had also been temporarily limited, which had constituted an interference with the applicant’s rights. They submitted, however, that the interference complained of was proportionate in the circumstances of the case and had not placed an excessive burden on the applicant.
61. They also maintained that the relevant legislation regulating the use of prisoners’ money was compatible with the requirements of Article 1 of Protocol No. 1. They argued that that provision did not impair the right of States to enact such laws as they deemed necessary to control the use of property in accordance with the general interest. The purpose of the relevant legislation was to ensure that prisoners had the necessary savings when they were released from prison after serving their sentence. From 1 January 2012 the applicant had been authorised to place his savings in an interest-earning savings account of his choice. Even though such a regulation interfered with the right of prisoners to freely dispose of their money, it was not a disproportionate interference because prisoners were provided with food, clothing and other items and services free of charge. Without any funds upon release, prisoners would need financial help from the State for their trip back home and their initial living expenses. Moreover, such regulations were in compliance with European Prison Rules, which endorsed encouraging prisoners to save a part of their earnings. The measure of obliging prisoners to save money should be considered proportional to the aim pursued as it was limited to 50% of the sum received and the amount saved could not exceed the national average monthly salary.
62. The applicant submitted that the obligation to accumulate savings in a bank account amounted to a disproportionate interference with his property rights, in breach of Article 1 of Protocol No. 1 to the Convention. In particular, he complained about the refusal to allow him to withdraw part of his savings, which he had requested on 22 December 2008.
2. The Court’s assessment
63. The Court reiterates that Article 1 of Protocol No. 1 guarantees in substance the right of property. Any interference with that right must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (for a recapitulation of the relevant principles see, for example, Beyeler v. Italy [GC], no. 33202/96, §§ 108-114, ECHR 2000‑I, Metalco Bt. v. Hungary, no. 34976/05, § 16, 1 February 2011, and Michał Korgul v. Poland, no. 36140/11, § 51, 21 March 2017 with further references).
64. The Court firstly notes that the applicant complained about the obligation to save half of his money in the release savings fund. He made no particular complaint that prior to 31 December 2011 he had been limited in his choice of where to place his savings (compare and contrast Siemaszko and Olszyński, cited above, § 78, and see Michal Korgul, cited above, § 52).
65. The authorities specifically refused to allow the applicant to use his money, which had been placed in a special fund and was inaccessible during his incarceration. There has thus been an interference with the applicant’s right under Article 1 of Protocol No. 1 to the peaceful enjoyment of his possessions, which amounts to a control of the use of the applicant’s property within the meaning of the second paragraph of that provision. The interference had a legal basis, namely Article 126 of the Code (see paragraph 46 above). The legitimate aim of such limitations was to ensure that the applicant had a certain amount of money for his reintegration into society after release from prison (see Siemaszko and Olszyński, cited above, § 82 et seq.).
66. The Court reiterates that States have a wide margin of appreciation under Article 1 of Protocol No. 1 when it comes to general measures of economic or social strategy (see Stummer v. Austria [GC], no. 37452/02, § 89, ECHR 2011). The Court has recognised in the past that the obligation for prisoners to use half of their money to pay back their debt to the State was not disproportionate to the aim pursued (see Laduna v. Slovakia, no. 31827/02, §§ 82-86, ECHR 2011). The Court has also held that the national authorities could not be reproached for ensuring that a limited sum of money was deposited in a savings fund to be handed over to an applicant on his release from prison (see Loog v. Estonia (dec.), no. 56419/15, 31 May 2016, and Siemaszko and Olszyński, cited above, § 88).
67. The Court notes that the interference at issue was limited to when the applicant could use his money, but did not deprive him of it. The money in the savings fund was not taken over by the State, but remained the property of prisoners. The sums in release savings accounts are generally quite modest, with the maximum amount that can be deposited being equal to the average monthly salary, as estimated by the statistical office (about EUR 950 at the material time). Each transfer to the fund was also limited to 4% of the average monthly salary (see paragraph 46 above). The Court considers that a State has the right to use the schemes it deems most appropriate for the reintegration of prisoners into society upon their release, including by securing for them a certain amount of money (see Loog, cited above and Michał Korgul, cited above, §§ 47‑56).
68. In conclusion, the complaint under Article 1 of Protocol No. 1 to the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violation of Articles 6 and 13 of the Convention
69. The applicant also raised complaints under Article 6 and 13 of the Convention alleging unfairness of the proceedings for imposition and extension of the dangerous detainee regime. However, the Court notes that at the heart of the applicant’s complaint under Article 3 of the Convention lies not only the prolonged imposition of the dangerous detainee regime, but also the procedure for reviewing his status (see paragraph 47 above). In these circumstances the Court considers that the main legal issue raised by this application has been already dealt with above (see paragraph 48 above) and that, therefore, there is no need to make a separate ruling on the applicant’s complaints under Articles 6 and 13 of the Convention (see, mutatis mutandis, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and Prus v. Poland, no. 5136/11, §§ 42-43, 12 January 2016).
For these reasons, the Court, unanimously,
Decides to strike out of its list of cases the applicant’s complaints under Articles 3 and 5 § 3 of the Convention.
Holds that there is no need to rule separately on the complaints under Articles 6 and 13 of the Convention.
Declares inadmissible the remainder of the application.
Done in English and notified in writing on 11 January 2018.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
Full & Egal Universal Law Academy