Published on 7 February 2022
FIRST SECTION
Application no. 43562/17
W
against Poland
lodged on 12 June 2017
communicated on 20 January 2022
STATEMENT OF FACTS
1. The applicant, W, is a Polish national who was born in 1981. He is currently detained in the National Centre for the Prevention of Dissocial Behaviour in Gostynin (“the Centre” or “the Gostynin Centre”). The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He is represented before the Court by Mr P. Kładoczny and Mr M. Szwed, lawyers from the Helsinki Foundation of Human Rights, a non‑governmental organisation based in Warsaw.
The circumstances of the caseThe facts of the case, as submitted by the applicant, may be summarised as follows.
Facts of the case2. In 2001 the applicant was convicted of rape and sentenced to four years’ imprisonment. In May 2003 he was conditionally released on probation. During his probation, the applicant committed two further offences of rape, of one sixteen and one ninety-nine-year-old woman, for which the Grójec District Court convicted him in 2004. He was sentenced to eight and three years’ imprisonment.
3. In a psychiatric report of 21 July 2004 commissioned by the prosecutor, the experts established that the applicant was not suffering from a mental disorder or impairment. He was diagnosed with dissocial personality disorder and dependence on alcohol and psychoactive drugs, but his criminal responsibility at the relevant time had not been diminished.
4. On 25 August 2009 the Grójec District Court sentenced the applicant to a cumulative penalty of ten years’ imprisonment. His term of imprisonment was due to come to an end on 14 February 2015.
5. During his imprisonment, he was repeatedly examined by psychiatrists. On 25 June 2014 a penitentiary commission assigned the applicant to serve the remaining seven months of his prison sentence in a therapeutic wing for convicts with non-psychotic disorders. He was transferred to such a facility at Rzeszów Prison.
6. In a report of 12 August 2014, the psychiatric expert established that the applicant suffered from dissocial personality disorder with dependence on alcohol and psychoactive drugs and was developing raptophilia. Relying on this report, on 10 September 2014 the Director of the prison requested the Rzeszów Regional Court to declare the applicant a person representing a threat (osoba stwarzająca zagrożenie) within the meaning of the Act of 22 November 2013 on Procedure regarding Mentally Disturbed Persons Representing a Threat to Life, Health or Sexual Freedom of Others (“the 2013 Act”) and to order his detention in the Gostynin Centre.
7. On 12 February 2015 the applicant was referred for one month’s psychiatric observation at the Regional Centre for Forensic Psychiatry in Gostynin.
8. Between 12 March and 18 December 2015 the applicant was at liberty. For part of that period he was subject to preventive supervision as regulated by the 2013 Act. Initially, he lived in his family home and subsequently with his partner and her daughter from a previous relationship. The couple had a daughter in April 2016.
9. On 3 July 2015 the Rzeszów Regional Court found the applicant to be a person representing a threat and ordered his detention at the Gostynin Centre. It noted that, at the time when the prison Director made his request, the applicant had been serving a cumulative term of imprisonment in a therapeutic system for convicts with non-psychotic disorders. The applicant had committed his last two offences while on probation. The court, having regard to the expert reports, noted that in the course of his imprisonment the applicant had been suffering from a personality disorder (dissocial with elements of paranoia) and sexual preference disorder in the form of raptophilia (a form of sadism); these traits had prevailed at the time of the court’s decision. He had also been dependent on alcohol and psychoactive drugs. The applicant had not suffered from mental illness (choroba psychiczna) or impairment (upośledzenie umysłowe).
10. According to the court, the applicant’s sexual preference disorder, which could be controlled but not eliminated, had appeared in his early youth and been consolidated in his later life. His personality disorder denoted a person without respect for social norms and morals. Furthermore, the court noted that the applicant had been provided with therapy only for the last few months of his imprisonment and thus its completion had not been possible.
11. Having regard to the nature and degree of his disorders, the court found that there was a very high risk that the applicant would commit an offence against life, health or sexual freedom as specified in section 1(3) of the 2013 Act. It held that the applicant’s confinement was necessary, taking into account the negative results of the therapy administered so far in prison and the lack of possibility to undergo effective therapy at liberty.
12. On 17 November 2015 the Rzeszów Court of Appeal dismissed the applicant’s appeal. His cassation appeal to the Supreme Court was dismissed on 31 January 2017.
13. On 18 December 2015 the applicant was detained in the Gostynin Centre. He participated in therapy which consisted of meetings with experts in addiction, psychologists, social and rehabilitation workers and lasted on average two hours per day. The applicant lived in a room measuring 30 sq. m with five, and occasionally seven, other detainees.
14. On 4 February 2016 the applicant lodged a request for judicial review of his continued preventive detention. He submitted, inter alia, that while at liberty between 12 March and 18 December 2015 he had lived a normal, law-abiding life with his partner and her daughter.
15. On 19 October 2016 the Płock Regional Court dismissed his application (case no. I Ns 32/16). It had regard to the report of 14 June 2016 prepared by a team of psychiatrists and psychologists from the Centre which established, inter alia, that the applicant’s therapy had not produced any results since he had failed to engage in it and remained uncritical of his past offences. The report concluded that there was still a very high risk that the applicant would commit an offence specified in the 2013 Act and that his continued confinement was required. A second expert report commissioned by the court confirmed the findings of the first report. Having regard to the nature and degree of the applicant’s disorders, his lack of motivation for therapy, the negative results of the treatment provided so far and the lack of a possibility for effective therapy at liberty, the court found that the applicant’s continued detention at the Centre was necessary.
16. In their periodic report of 13 December 2016, a team of experts from the Centre made the same findings as in their previous report of 14 June 2016.
17. On 17 January 2017 the Łódź Court of Appeal upheld the first‑instance decision.
18. In 2016 the applicant expressed a wish to marry his partner. The Director of the Gostynin Civil Status Registry requested a court to determine whether the applicant’s mental condition constituted an obstacle in this regard. The court, relying on the positive opinion of the expert, granted leave to the applicant. In July 2017 the applicant and his partner married.
19. On 13 June 2017 a team of experts from the Centre submitted their periodic report to the Płock Regional Court. They found that the applicant manifested a dissocial personality disorder which had been alleviated as a result of his therapy. In addition, they concluded that there was no very high risk that the applicant would again commit an offence. Accordingly, he should be discharged from the Centre, placed under preventive supervision and continue his therapy as an outpatient. On the basis of the report, the applicant asked the court to review the necessity of his continued detention.
20. The court ordered another expert report to be prepared by external experts. In their report of 18 September 2017, experts in psychiatry and psychology concluded that the applicant’s confinement should be extended since there was still a very high risk that he would commit an offence.
21. On 25 May 2018 the Regional Court ordered that the applicant’s preventive detention be extended (case no. I Ns 200/17). It pointed out that, in the light of the expert report of 18 September 2017, progress in the applicant’s therapy was slow and there was no improvement regarding the traits of his dissocial personality disorder. The applicant had started to work on his psychological problems only in the previous six months and this period was too short to achieve satisfactory results. He was at the early stage of dealing with his sexual preference disorder. The court held that there was still a very high risk that the applicant would commit an offence. The applicant lodged an appeal against this decision, but his appeal was rejected as belated.
22. On 13 December 2017 a team of experts in psychiatry and psychology from the Gostynin Centre submitted another periodic report to the Regional Court. The report concluded that:
(1) there was no high risk that the applicant would reoffend, as a result of the psychological and sex therapy he followed;
(2) as a result of undergoing addiction therapy and addressing his personality traits the applicant had improved his social competences. He had established a family, he took care of his daughter and step-daughter and had become critical of his alcohol abuse and past offences;
(3) having regard to the progress made in psychological and sex therapy the applicant should no longer be detained at the Centre;
(4) his current behaviour did not display traits of dissocial personality disorder;
(5) at present it would be sufficient to place the applicant under preventive supervision;
(6) the applicant should follow sex and personality disorder therapy as an outpatient.
23. In a subsequent periodic report of 13 June 2018 it was noted that the applicant had actively participated in his therapy. Although he needed therapy to reduce negative traits of his dissocial personality disorder, this could be carried out on an outpatient basis. The experts concluded that there was no very high risk that he would commit an offence and, therefore, he should be released and placed under police supervision.
24. On 27 July 2018 the applicant lodged a fresh application for review of the necessity of his continued preventive detention with the Płock Regional Court (case no. I Ns 256/18). He argued that, in the light of the periodic report of 13 June 2018, his confinement at the Centre was no longer necessary. He also asked to be examined by a team of experts from the Łódź Medical Academy, submitting that the report of external experts called previously by the court had contradicted the periodic reports prepared by the Centre’s experts.
25. On 9 July 2019 the Regional Court decided to obtain an expert report on the necessity of the applicant’s continued confinement. The report of 22 December 2019 was prepared by a team of four external experts in psychiatry, psychology and sex therapy. The experts concluded that the applicant did not suffer from a mental disorder or impairment, but from a dissocial personality disorder and sexual preference disorder in the form of sadism. Moreover, he was addicted to psychoactive substances. According to the report, there was a high risk that the applicant would commit another prohibited act within the meaning of the 2013 Act. The applicant required sex and addiction therapy, which however could be provided on an outpatient basis.
26. The supplementary expert report of 22 June 2020 confirmed the conclusions made in the report of 22 December 2019. The applicant did not provide information about the outcome of the proceedings.
27. A periodic report prepared by a team of experts from the Centre was submitted to the court on 13 December 2018. Its conclusions were similar to those made in the report of 13 June 2018 (see paragraph 23 above). Three further periodic reports of 13 June 2019, 13 December 2019 and 12 June 2020 concluded that there was no very high risk that the applicant would commit a prohibited act and that, accordingly, his continued detention at the Centre was not necessary. They also noted that the applicant still needed therapy, which could be provided on an outpatient basis.
General living conditions at the Centre28. The applicant is detained in an overcrowded room. According to the regulation of the Minister of Health of 16 January 2014 the capacity of the Centre was 60 patients, while on 7 February 2020 there were seventy-four persons detained there.
29. The guards are constantly present during family visits at the Centre. There are no facilities for the applicant to play with his child or to have an unsupervised conjugal visit.
30. On 23 June 2020 a group of thirty-nine detainees started a hunger strike to protest against conditions in the Centre. The strike ended after six days when an agreement was concluded, in which the director of the Centre promised to lift some of the restrictions.
Civil action against the State31. In June 2019 the applicant lodged with the Warsaw Regional Court a civil action against the State for protection of his personal rights. He submitted that various restrictions imposed by the Centre, as well as living conditions there, had violated his personal rights, namely the right to privacy, family life and dignity. The applicant referred to such restrictions as the prohibition of smoking, the lack of privacy during meetings with his wife and daughter on account of the presence of a guard in the same room, the carrying out of invasive personal searches without a legal basis, the recording of conversations with therapists, the lack of adequate health care, the prohibition on using a computer and restrictions on the use of other electronic devices, the lack of adequate living space, the violation of confidentiality of correspondence and restrictions on taking walks outside.
32. The applicant requested that the court order the State to refrain from actions which violated his personal rights. He sought compensation for non‑pecuniary damage in the amount of 55,000 Polish zlotys (PLN; equivalent to 13,750 EUR) plus PLN 50 (EUR 12.5) for each day of his stay in an overcrowded room.
33. The proceedings are pending.
Relevant legal frameworkThe 2013 Act34. The Act of 22 November 2013 on Procedure regarding Mentally Disturbed Persons Representing a Threat to Life, Health or Sexual Freedom of Others (Ustawa o postępowaniu wobec osób z zaburzeniami psychicznymi stwarzających zagrożenie życia, zdrowia lub wolności seksualnej innych osób; “the 2013 Act”) entered into force on 22 January 2014.
35. The 2013 Act regulates the procedure applicable to “persons representing a threat” (osoby stwarzające zagrożenie). Under section 1 of the 2013 Act such persons must fulfil the following requirements: 1) they are (were) serving a sentence of imprisonment or a sentence of twenty-five years’ imprisonment executed in a therapeutic system; 2) during the execution of their sentence they suffered from mental impairment, personality disorder or sexual preference disorder; and 3) their mental disorders are of such a nature or intensity that there is at least a high likelihood of them committing a prohibited violent act against life, health or sexual freedom, punishable by imprisonment of up to at least ten years. Measures provided by the 2013 Act are applied by the civil sections of the regional courts.
36. A prison Director may file an application with the court declaring an individual to be a person representing a threat within the meaning of the 2013 Act (section 9). In order to determine whether an individual suffers from a mental disorder the court appoints two experts in psychiatry and, in certain cases, additionally an expert in psychology and sexology (section 11). The person concerned must be represented by a lawyer of his choice or appointed by the court. Having regard to the expert reports, results of the therapeutic treatment provided so far and the possibility of undergoing treatment at liberty, the court may subject a person representing a threat to preventive supervision (nadzór prewencyjny) if there is a high risk that the person would commit a prohibited act referred to in section 1(3) of the 2013 Act (section 14(2)). If such risk is very high, the court may order the person’s placement in the National Centre for Prevention of Dissocial Behaviour (“the Centre”; section 14(3)). Those measures are applied without maximum duration.
37. A person detained in the Centre undergoes appropriate therapeutic treatment whose aim is to improve his state of health and behaviour in order to enable him to function in society without posing a threat to the life, health or sexual freedom of others. The Director of the Centre draws up an individual therapy plan for each detained person (section 25).
38. The detained person may, at any time, apply to the court to determine the need for his continued placement in the Centre. A decision rejecting the application may be appealed against if at least six months have passed since the decision on the previous application was made (section 32(1)).
39. At least once every six months the court decides whether the continuation of the person’s detention in the Centre is necessary, having regard to a psychiatric report and the results of therapeutic treatment. Every six months the Director of the Centre submits to the court a psychiatric report on the detained person and the results of his treatment (section 46).
40. On an application from the detained person the Director of the Centre or, of its own motion, the court, may at any time discharge the detained person from the Centre if the results of his therapeutic treatment and his behaviour justify a conclusion that his further confinement is no longer necessary (section 47 (1)).
The regulation of the Minister of Health41. The regulation of the Minister of Health of 16 January 2014 on the National Centre for the Prevention of Dissocial Behaviour provided that the capacity of the Centre was sixty beds. Initially, the regulation specified that detainees should stay in single rooms, then (from September 2015) in double rooms and finally (in September 2018) the Minister of Health removed the provision on occupancy limits in the rooms. The regulation also specified the minimum number of various categories of staff employed in the Centre per ten detainees.
The Constitutional Court’s judgment of 23 November 2016, case no. K 6/1442. The President of the Republic and the Ombudsman challenged the compatibility of various provisions of the 2013 Act with the Constitution and the Convention. Furthermore, two courts referred legal questions on the constitutionality of the Act. In its leading judgment of 23 November 2016 (no. K 6/14), the Constitutional Court sitting as a bench of five judges held, by a majority of four to one, that practically all of the contested provisions (sections 1, 2(3), 9, 11, 14(1-3), 15(1), 19(3) and 25) were compatible with the Constitution and the Convention. It relied extensively on the Court’s case-law and comparative material. The only provision declared partly unconstitutional was section 46(1) of the 2013 Act. It was found incompatible with Article 41 § 1 in conjunction with Article 31 § 3 of the Constitution in so far as it provided for a report on the necessity of further detention in the Centre to be prepared by only one psychiatrist. The Constitutional Court held that in order to ensure proper procedural safeguards to the person concerned, when deciding on the issue of extension of preventive detention, the court should have at its disposal a report of the same number and type of experts as applicable to a decision on placement in the Centre as specified in section 11 of the 2013 Act.
43. On the question of whether placement in the Centre should be considered as being of a penal nature, the Constitutional Court noted that such placement constituted a form of deprivation of liberty, combining elements of psychiatric detention and several security measures provided for in the Criminal Code. Such placement was the final result of the examination of a person whose behaviour during the execution of a long‑term custodial sentence has led the prison director to conclude that it was in the public interest to provide that person, on release from prison, with specialised therapeutic measures during detention at the Centre. The reason for placement was not the offence for which the prisoner had served a long‑term prison sentence. The basic prerequisite for placement in the Centre was a personality disorder diagnosed during the execution of a prison sentence such that the person remaining at liberty posed a real risk of committing a prohibited act specified in the 2013 Act. Both the therapeutic and preventive nature of the placement were only indirectly linked to the fact that the person had committed an offence in the past. The decision on placement in the Centre must be based on a prior finding by the civil court that there was a very high likelihood that the person representing a threat would again commit an offence referred to in section 1(3) of the 2013 Act. Having regard to all the applicable statutory conditions, the Constitutional Court found that placement in the Centre was not a penal measure, although it constituted a severe form of deprivation of liberty. It could in no way be regarded as a renewed conviction for the same offence committed in the past. Placement in the Centre could only be ordered after a person had served a custodial sentence, always of long duration, and not instead of such a sentence. In the Constitutional Court’s view, these differences meant that the constitutional standards of Article 42 § 1 (the non-retroactivity of criminal law) and Article 2 of the Constitution (the ne bis in idem principle) were not applicable to the assessment of placement in the Centre.
44. The Constitutional Court further noted that the 2013 Act introduced the possibility of the civil court’s ordering therapy in a closed centre and by doing so ensured the requirement of a “distance” between this measure and the penalty of imprisonment. The manner of execution of the court’s order specified in the 2013 law rendered this form of confinement much closer to the compulsory placement of the patient in a psychiatric institution regulated by the Mental Health Protection Act than to the penalty of imprisonment.
45. On the question of the proportionality of section 1 of the 2013 Act, the Constitutional Court noted that life, health and personal liberty featured exceptionally high in the hierarchy of constitutionally protected values. Nevertheless, when the court found a high or very high likelihood that a mentally disturbed convict about to be released would threaten the life, health or sexual freedom of another person, his personal freedom could be limited (preventive supervision) or forfeited (placement in the Centre). It held that such a serious interference with personal liberty protected by Article 41 § 1 of the Constitution did not violate the essence of the liberty of the person representing a threat as defined in section 1 of the 2013 Act.
46. The Constitutional Court held that section 14(3) of the Act (placement in the Centre) was compatible with Article 41 § 1 in conjunction with Article 31 § 3 of the Constitution (proportionality principle). When interpreting section 14(3) in the context of sections 3 and 14(1) and (2), it concluded that detention in the Centre of a person representing a threat was an exceptional measure that could only be applied when preventive supervision, namely a less intrusive measure, would be insufficient. The Constitutional Court found that preventive detention without maximum duration was intended by the legislator to be a measure of last resort and should only be applied where the disturbed person posed a particularly serious and real threat to the safety, health and life of others, and the likelihood that he would commit another offence was “very high”.
The CPT’s report on the visit to Poland carried out from 11 to 22 May 201747. In respect of living conditions in the Gostynin Centre, the CPT’s report stated, inter alia:
“117. ... patients at the National Centre (which was accommodating many more patients than planned initially) lived under relatively cramped conditions; some of the rooms had had to be fitted with bunk beds, which was not conducive to creating a therapeutic environment and contributed to tensions between patients and between patients and staff.
On the positive side, rooms at ... the National Centre were always unlocked and patients could associate during the day and had access to pleasant common rooms equipped with sofas, tables, TV, radio and games, books and newspapers.”
48. As regards treatment, the CPT’s report read, inter alia:
“121. ... As for the National Centre, there was no psychiatric treatment sensu stricto (only a few patients were on psycho-active medication with their consent ...), but instead assistance (exclusively on a voluntary basis) was offered to persons with personality disorders, learning disabilities and “disorders of sexual preference”, by means of individually tailored programmes comprising individual and group psychotherapy, work with sexologists and addictologists, occupational and art therapy. However, the delegation was told by staff that approximately 75% of the patients were not interested in any therapy and remained uncritical towards their deeds and conditions, some of them being persuaded that they had been placed at the National Centre by error or for political motives.
Furthermore, patients had access to means of diversion such as table tennis, table football and billiard for 2-3 hours per day and to the gym four times a week.
While welcoming genuine efforts made by the staff of the National Centre to involve as many patients as possible in therapeutic activities, the CPT cannot escape the impression that there is a general problem with the concept of therapy at the establishment and, in particular, no clear idea of what to do with patients who refuse treatment and rehabilitative activities.
Many patients interviewed by the delegation failed to understand the reason for their placement and were unable to say how long they would have to remain at the National Centre (a few of them thought they would spend the rest of their days there). Predictably, this had a negative impact on their mood, their attitude and motivation to co-operate with the staff.
The Committee recommends that a serious reflection be undertaken into the concept and philosophy of treatment at the National Centre in Gostynin, in the light of the above remarks. In addition, more should be done to provide therapeutic and rehabilitative activities such as anger management, life skills training, recreation and sports [emphasis in the original]. This would help defuse ambient tension in the establishment ....”
49. With regard to guards, the reported stated:
“128. Both the Regional and the National Centre in Gostynin employed security guards (they were employees of the respective institutions). (...)
The guards acted exclusively under instructions of doctors, and had to report to them. ...
By contrast, guards at the National Centre had more powers (they were e.g. in charge of convoys to outside medical and other institutions) and carried special means (long truncheons, handcuffs and pepper spray) at all times, including inside the accommodation areas and in full view of patients. This is an intimidating and unjustified practice; the CPT recommends that it cease without delay [emphasis in the original].”
Report on the Ombudsman’s visit carried out on 26 June 201750. As regards staffing issues, the Ombudsman noted that in accordance with the Regulation of the Minister of Health of 16 January 2014 on the Centre, for ten detainees there should be at least one psychiatrist, six psychologists, fourteen nurses and seven group therapists. Given the current number of detainees (42) and staffing levels, the Ombudsman observed that there were significant shortages of staff having direct contact with the patients.
Report on the Ombudsman’s visits carried out on 2 July 2018 and Reports on the National Mechanism for the Prevention of Torture’s visits carried out from 18 to 20 February 2019 and from 8 to 10 March 202151. As regards overcrowding, the Ombudsman and the National Mechanism for the Prevention of Torture reported an increase in the number of patients held in the Centre from fifty-five in July 2018 to sixty-five in February 2019 and ninety-five in March 2021. In connection with the staffing problems they noted that, on the one hand, the number of employees exceeded limits stipulated in the Regulation of the Minister of Health of 16 January 2014 and on the other, the number of specialists did not comply with the Regulation of the Minister of Health of 16 January 2014.
COMPLAINTS
52. The applicant complains that his preventive detention was in breach of Article 5 § 1 of the Convention and, in particular, was not justified under sub-paragraph (e) of this provision. The applicant is not, and never has been, a person of unsound mind. He committed a crime in a state of full criminal responsibility and served his whole sentence. The courts did not demonstrate that other, less severe measures would be insufficient and did take into account the fact that the applicant had lived a normal life at liberty for ten months after he had left prison.
53. The applicant submits that the grounds for his preventive detention ceased to exist in mid-2017. In their report of 13 June 2017 and six subsequent periodic reports, the experts from the Centre concluded that the applicant’s continued detention was no longer necessary.
54. The applicant complains that the Gostynin Centre did not offer a proper therapeutic environment as required by Article 5 § 1 (e). He alleges that the Centre did not comply with the domestic rules regarding the space available to detainees and that his individual therapy plan was formulated in general terms. He also refers to the constant presence of guards on the premises of the Centre, including during therapy.
55. In his letters of 20 April 2018 and 26 March 2019, the applicant complains under Article 5 § 4 that the domestic courts did not decide speedily in two sets of proceedings in which he had sought to challenge the lawfulness of his preventive detention. The first set of proceedings was initiated on an unspecified date in June 2017 and came to an end on 25 May 2018. The second set of proceedings was initiated on 27 July 2018 and was still pending on 23 November 2020.
56. The applicant alleges a breach of Article 8 as regards the restrictions on his right to contact with his family. He was not allowed to meet his wife and child without guards being present. Such restriction was unjustified because there are no indications that he could pose a threat to his relatives. Moreover, the said restriction did not have a legal basis in statute as required by the Constitution, but merely in a regulation issued by the Centre. In a letter of 23 November 2020, the applicant alleges that as a result of serious limitations on maintaining contact with his wife, she has initiated divorce proceedings.
QUESTIONS TO THE PARTIES
Article 3
1. Did the material conditions of the applicant’s detention at the Gostynin Centre, in particular the personal space available, general overcrowding and the constant presence of the guards, amount to inhuman or degrading treatment? Reference is made to: (1) the reports on the Ombudsman’s visits carried out on 26 June 2017 and 2 July 2018; (2) the reports on the visits by the National Mechanism for the Prevention of Torture carried out from 18 to 20 February 2019 and from 8 to 10 March 2021; and (3) the findings made in the report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Poland carried out from 11 to 22 May 2017.
2. Having regard to the conditions prevailing at the Gostynin Centre, was it possible for the applicant to properly follow the therapeutic treatment offered by the Gostynin Centre? In the negative, did that situation amount to inhuman or degrading treatment (cf. Rooman v. Belgium [GC], no. 18052/11, §§ 141-148, 31 January 2019)?
Article 5 § 1 (e)
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraph (e) of this provision?
2. Was the applicant’s detention justified under Article 5 § 1 (e) of the Convention in the period following the periodic report of June 2017 and subsequent reports (cf. Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 127, 4 December 2018)?
3. Was the applicant’s detention “lawful” and ordered “in accordance with a procedure prescribed by law” as required by Article 5 § 1 (e) of the Convention?
4. Did the domestic courts consider whether less severe measures would be sufficient in the circumstances of the applicant’s case to safeguard the individual or public interest (cf. Ilnseher, § 137, cited above)?
5. Was the applicant ensured a proper therapeutic environment in the Gostynin Centre as required by Article 5 § 1 (e) of the Convention (cf. Rooman v. Belgium [GC], no. 18052/11, §§ 205-211, 31 January 2019)? Reference is made to the report on the Ombudsman’s visit carried out on 26 June 2017 and the findings made in the CPT’s report on the visit to Poland carried out from 11 to 22 May 2017.
Article 5 § 4
Did the length of the two sets of proceedings in the present case, by which the applicant sought to challenge the lawfulness of his detention on an unspecified date in June 2017 and on 27 July 2018 respectively, comply with the “speed” requirement of Article 5 § 4 of the Convention?
Article 8
1. Has there been an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention, on account of guards being constantly present during family visits?
2. If so, was that interference in accordance with the law in terms of Article 8 § 2? Reference is made to the fact that the restriction in the form of the constant presence of guards does not have legal basis in the statute and is solely provided for by the internal rules of the Centre.
3. Did the authorities put disproportionate restrictions on the applicant’s personal contact with his family during his detention on account of guards being constantly present during family visits?