FOURTH SECTION
CASE OF
GŁOWACKI v. POLAND
(Application no. 1608/08)
JUDGMENT
STRASBOURG
30 October 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
In the case of Głowacki v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 9 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 1608/08)
against the Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Leszek Robert Głowacki (“the
applicant”), on 27 December 2007.
. The
applicant was represented by Mr P. Florek, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their then
Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The applicant alleged, in particular, a violation
of Article 3 of the Convention on account of the imposition of the “dangerous
detainee” regime on him. He further complained about the length of criminal
proceedings against him.
On 17 November 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1957 and lives in Warsaw.
A. First set of criminal proceedings.
On an unknown date in 1991 the applicant was
charged with aggravated robbery. In 1993 the Siedlce Regional Prosecutor (Prokurator
Wojewódzki) stayed the investigation as the applicant’s whereabouts were
not known. In July 1993 the applicant was arrested and began serving a prison
sentence which had been imposed in 1982.
On 14 March 1994 a bill of indictment
was lodged with the Warsaw Regional Court (Sad Wojewódzki). The
applicant was charged with robbery.
The proceedings were stayed on 6 March 1996 in
view of the applicant’s health. In December 1996 he underwent spinal surgery. The
trial was resumed on 28 September 1997.
The applicant failed to appear at some hearings
in 2003, however the trial court found that this was because he had been
serving a prison sentence imposed in another set of criminal proceedings.
On 5 April 2004 the charges against the
applicant and several co-accused were severed and dealt with in a
separate set of proceedings.
The applicant failed to appear at a hearing held
on 30 June 2005. On the same date the Warsaw Regional Court (Sad Okręgowy)
issued a wanted notice in respect of the applicant and ordered that he be arrested
and remanded in custody.
On 18 July 2005 the court severed the charges
against the applicant, to be dealt with in a separate set of the proceedings,
and on the same date stayed the proceedings as the applicant was in hiding.
The applicant was arrested on 18 May 2007. He
was placed in the Warsaw Białołęka Detention Centre on 21 May
2007.
On 11 June 2007 the Warsaw Regional Court
resumed the proceedings against the applicant.
In the course of the proceedings, the applicant’s
detention was extended on 13 August and 17 December 2007 and 26 March, 21
April, 21 July and 26 September 2008. In their decisions on the
matter the authorities relied on the original grounds given for holding
him in custody. The applicant did not appeal against most of the decisions
extending his detention.
On 22 September 2009 the Warsaw Regional Court
convicted the applicant of armed robbery, burglary and causing serious bodily
harm and sentenced him to five years’ imprisonment.
The applicant’s detention was subsequently
extended, in particular on: 26 September and 22 December 2008 and 6 March 2010.
The applicant lodged an appeal against the last of those decisions.
On 10 April 2010, at the applicant’s request,
the detention was lifted and he was released from custody.
On 2 March 2011 the applicant began serving the
prison sentence imposed on 22 September 2009.
B. The second set of criminal proceedings
On an unknown date in 2007 the Płock
Regional Prosecutor (Prokurator Okregowy) instituted criminal
proceedings against the applicant and several co-accused on charges of illegal
possession of weapons and robbery.
On 23 May 2007 the Ostrołeka District Court
remanded the applicant in custody, relying on the suspicion that he had
committed the offences with which he was charged. It attached importance
to the likelihood of a lengthy prison sentence being imposed on the
applicant, the serious nature of the offences of which he was suspected, and
the risk that he would go into hiding. This was made more likely by the facts
that he did not have a permanent place of residence and was unemployed. The
applicant did not appeal against this decision.
In the course of the investigation the applicant’s
detention was extended on 31 July and 15 November 2007 and on 31 January,
18 April and 3 October 2008. The authorities relied on the
original grounds given for keeping him in custody.
Appeals by the applicant against the decisions
extending his detention and all his subsequent applications for release and
appeals against refusals to release him were unsuccessful.
On 21 January 2008 a bill of indictment was
lodged with the Płock Regional Court.
On 18 December 2008 the Płock Regional
Court convicted the applicant as charged and sentenced him to seven years and
six months’ imprisonment. The applicant’s detention was subsequently extended.
On 28 October 2009 the Warsaw Court of Appeal
partly upheld the first-instance judgment and partly remitted it. It also sentenced
the applicant to one year’s imprisonment. The applicant served this sentence between
18 May 2007 and 18 May 2008.
On 8 December 2009 the Warsaw Court of Appeal lifted
the applicant’s remand in custody.
C. Proceedings under the 2004 Act
On 1 September 2009 the applicant lodged a complaint
with the Warsaw Court of Appeal under the Law of 17 June 2004 on
complaints about a breach of the right to a trial within a reasonable time
(Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu
sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The
applicant sought a ruling that the length of the proceedings before the Warsaw Regional Court (see paragraphs 6-19 above) had been excessive, and also sought an
award of just satisfaction.
On 15 December 2009 the Court of Appeal gave a
decision and dismissed the applicant’s complaint. The court considered that
there had been no significant delays in the proceedings, as the applicant had contributed
to the length of the proceedings.
D. Imposition of the “dangerous detainee” regime
1. Undisputed facts
On 21 May 2007 the applicant was
placed in the Warsaw Białołęka Remand Centre (Areszt
Śledczy).
On 1 June 2007 the Penitentiary Commission of
the Warsaw Białołęka Remand Centre classified him as a
“dangerous detainee” (tymczasowo aresztowany niebezpieczny) and ordered
that he be placed in a closed cell. The commission referred to: the fact that
the applicant was accused of armed robbery and using fake police uniforms, and
that he had previously escaped from the Warsaw Mokotów Remand Centre, and also
to his “serious lack of moral character” and long history of criminal
convictions.
Every three months the Warsaw Remand Centre Penitentiary
Commission reviewed and upheld its decision classifying the applicant as a
“dangerous detainee”. In particular on 26 February 2008 the commission
confirmed its previous decision. It considered that it was necessary to place
the applicant in solitary confinement as he had been charged with numerous
offences, including armed robbery. The commission also referred to “serious
lack of moral character”.
The applicant appealed to the penitentiary
courts against most of those decisions, arguing that he was suffering from
various health problems including hemiparesis and discopathy, and should not be
placed in solitary confinement. He also stressed that he had never been charged
with acting as part of an organised criminal group.
All his appeals were dismissed. The courts gave decisions
on 26 May, 29 August and 17 October 2008, 15 April and 24 June 2009, and
4 March 2010. The authorities relied on the grounds given for the
initial decision. In particular they stressed the risk posed by the seriousness
of the offences and the use of weapons and fake police uniforms.
On 30 May 2008 the applicant was transferred to Płock Prison so that he could attend the proceedings before the Płock Regional
Court (see paragraphs 20-27 above). He was placed alone in a cell for
dangerous detainees. This situation applied between 30 May and 4 September 2008
and 9 September and 11 December 2008. The applicant complained about this on several
occasions, alleging that due to his health problems, for safety reasons he
should have been placed with another inmate.
Due to his “dangerous detainee” status the
applicant was under increased supervision. The applicant’s cell in Płock Prison
measured 6.92 sq. m. Between 11 December 2008 and 9 January 2009 he shared
it with another inmate. Every time the applicant left or entered his cell he
was subjected to a body search, which in practice meant that he had to strip
naked. Examinations of the applicant’s body, his clothing and shoes were
conducted in a separate room, with no third parties present.
The applicant was ordered to wear “joined
shackles” (kajdanki zespolone) on his hands and feet on three occasions
during the proceedings before the Płock Regional Court, on 2, 9 and
11 June 2008. Those shackles consisted of handcuffs and fetters joined
together with chains. On each occasion he was put in the shackles on his
arrival at the court and remained handcuffed throughout the day until the end
of the hearing.
The applicant was allowed to receive visits from
his family. According to a list of visits provided by the Government, between 8
July and 28 October 2008 the applicant was visited on four occasions by his sister
and son (one visit per month). Subsequently, between 29 June 2009 and 2
November 2009 his sister and son visited him on average once a month. The
majority of these visits lasted one hour. Between 28 October 2008 and 4 June
2009 he was not visited by anyone.
On 8 May 2009 the applicant was granted leave to
attend his mother’s funeral.
2. Facts in dispute
The Government submitted that after his initial
complaint the applicant had, in direct conversation with the prison authorities,
agreed to be held in solitary confinement.
The applicant argued that when his complaints
were unsuccessful he had had no other choice than to accept the situation which
had been imposed on him.
E. Conditions of detention
1. Undisputed facts
The applicant was detained in the following
detention centres: Warsaw Białołeka Detention Centre, Lublin Remand
Centre, Warsaw Mokotów Remand Centre, and Płock Prison.
He failed to lodge a claim for compensation for
damage to his health sustained as a result of inadequate conditions of
detention.
2. Facts in dispute
. The
applicant argued that the living conditions in the detention centres in which
he was detained were inadequate. The cells were very small, with approximately
3 sq. m per person. The exercise area was also very small, approximately 15 sq.
m.
The Government submitted that during the
applicant’s detention in all four of the penal establishments listed above all
standards of detention were respected.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. “Dangerous detainee” status
. The
relevant domestic law and practice concerning the imposition of dangerous
detainee status are set out in the Court’s judgments in the cases of Piechowicz
v. Poland (no. 20071/07, §§ 105-117, 17 April 2012), and Horych v.
Poland (no 13621/08, §§44-56, 17 April 2012).
B. Preventive measures, including pre-trial detention
The relevant domestic law and practice
concerning the imposition of detention on
remand (aresztowanie tymczasowe), the grounds for its extension,
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).
C. Remedies
against unreasonable length of proceedings
The relevant domestic law and practice
concerning remedies for excessive length of judicial and enforcement
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, and Ratajczyk v. Poland no.
11215/02 (dec.), ECHR 2005-VIII, and in its judgment in the case of Krasuski
v. Poland, no. 61444/00, §§ 34-46, ECHR
2005-V.
D. Claim for damages for infringement of personal
rights
1. Liability for infringement of personal rights under
the Civil Code
Article 23 of the Civil Code contains a
non-exhaustive list of “personal rights”
(dobra osobiste). This
provision states:
“The personal rights
of an individual, such as, in particular, health, liberty, honour, freedom of
conscience, name or pseudonym, image, secrecy of correspondence, inviolability
of the home, scientific or artistic work, [as well as] inventions and
improvements, shall be protected by the civil law regardless of the protection
laid down in other legal provisions.”
Article 24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of infringement]
by a third party may seek an injunction, unless the activity [complained of] is
not unlawful. In the event of infringement [the person concerned] may also
require the party who caused the infringement to take the necessary steps to
remove the consequences of the infringement ... In compliance with the
principles of this Code [the person concerned] may also seek pecuniary
compensation or may ask the court to award an appropriate sum for the benefit
of a specific public interest.”
Under Article 448 of the Civil Code, a person
whose personal rights have been infringed may seek compensation. That
provision, in its relevant part, reads:
“The court may grant an appropriate sum as pecuniary
compensation for non-material damage (krzywda)
to anyone whose personal rights have
been infringed. Alternatively, the person concerned, regardless of whether they
are seeking any other relief that may be necessary for removing the
consequences of the infringement sustained, may ask the court to award an
adequate sum for the benefit of a specific public interest ...”
Articles 417 et seq. of the Polish Civil Code
provide for the State’s liability in tort.
Article 417 § 1 of the Civil Code (as amended) provides:
“The State Treasury, or [as the case may be] a self-government
entity or other legal person responsible for exercising public authority, shall
be liable for any damage (szkoda) caused
by an unlawful act or omission [committed] in connection with the exercise of
public authority.”
2. Limitation periods for civil claims based on tort
Article 4421
of the Civil Code sets out limitation periods for civil claims based on
tort, including claims under Article 23 read in conjunction with Articles 24
and 448 of the Civil Code. This provision, in the version applicable from 10
August 2007, reads, in so far as relevant, as follows:
“1. A claim for
compensation for damage caused by a tort shall lapse after the expiration of three
years after the date on which the claimant learned of the damage and the
identity of the person responsible for it. However, this expiry date may not be
later than ten years after the date on which the event causing the damage
occurred.”
III. INTERNATIONAL DOCUMENTS
. The
relevant international documents concerning the imposition of security measures
and the 2009 Report of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (“the
CPT”) are set out in the Court’s judgment in the case of Piechowicz v. Poland
(cited above, §§ 127-136).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
. The
applicant complained under Article 3 of the Convention that the continued
imposition of the “dangerous detainee” regime amounted to inhuman and degrading
treatment and was in breach of this provision. He also complained in general of
inadequate conditions of detention, alleging overcrowding of cells. Article 3
of the Convention states:
“No one shall be subjected to torture or
to inhuman or degrading treatment or punishment.”
. The
Government contested that argument.
A. Admissibility
1. The parties’ submissions
55. The Government
argued that the applicant had failed to make use of the remedies of a
compensatory nature governed by the provisions of Articles 23 and 24 of the
Civil Code, in conjunction with Article 445 or Article 448 of the Civil Code,
and had not brought an action for compensation for alleged damage to his health
sustained as a result of the inhuman and degrading treatment in the
detention centres.
The applicant disagreed.
2. The Court’s assessment
(a) Conditions of detention
In so far as the applicant complained that he
had been held in overcrowded cells, the Court reiterates that it has already
held that, in cases where an applicant has been either released or placed in
conditions compatible with the requirements of Article 3 of the Convention, a
civil action under Article 24 read in conjunction with Article 448 of the Civil
Code can be considered an effective remedy for the purposes of Article 35
§ 1 of the Convention. However, given that the relevant practice of the
Polish civil courts developed gradually over time, the Court held that this
remedy could be regarded as effective only from 17 March 2010 onwards. It also
held that only those applicants in respect of whose civil claims the three-year
limitation period under Polish law had not yet expired were required to make
use of the civil action relied on by the Government (see Orchowski v.
Poland, no. 17885/04, ECHR 2009-..., § 154, and Łatak
v. Poland (dec.) no. 52070/08, ECHR 2010..., §§ 79-81 and 85).
In the present case the applicant was released
from detention on 10 April 2010 (see paragraph 17 above). However he
failed to lodge an action for compensation under Article 24 and 448 of the
Civil Code. Accordingly, he can still obtain redress for the alleged breach of
Article 3 of the Convention before the domestic courts in so far as it relates
to this specific complaint.
It follows that this part of the application
must be rejected under Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
(b) Dangerous detainee regime
In so far as the
applicant complained about the imposition of the “dangerous detainee” regime,
the Court reiterates that although Article 35 § 1 of
the Convention requires that the complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic body, it
does not require that recourse should be had to remedies that are inadequate or
ineffective (see Egmez v. Turkey no. 30873/96, ECHR 2000-XII, §§ 65 et seq.).
In the present case the Court observes that the
applicant appealed to the penitentiary court against nearly all decisions
classifying him as a dangerous detainee (see paragraphs 33 and 34 above). In consequence, the Court does not consider that, after these
appeals were dismissed (see paragraphs above), he should, in order to fulfil
his obligation under Article 35 § 1, have brought a civil action under
Article 24 read in conjunction with Article 448 of the Civil Code.
. Accordingly,
the Court holds that the applicant should not in addition have sought to pursue
the other remedy relied on by the respondent Government. It follows that the
Government’s preliminary objection must be rejected
Consequently, the Court notes that this
complaint is not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ arguments
(a) The applicant
The applicant submitted that the prolonged
imposition of the “dangerous detainee” regime had been in breach of Article 3
of the Convention.
He firstly stressed that his personal situation had
not been properly analysed, and that the classification of him as a “dangerous
detainee” had been imposed specifically in relation to the fact that he was a
habitual offender who had escaped from the Warsaw Mokotów Remand Centre in
1992. The regime was subsequently extended “automatically” every three months.
However, all these subsequent decisions were based on the same grounds, without
any changes or new circumstances.
Secondly, the
applicant referred to the particular severity of the restrictions to which he
had been subjected under the special regime. He stressed that between 30 May
and 4 September 2008 and 9 September and 11 December 2008 he was held in
solitary confinement. He was placed alone in a cell for dangerous detainees.
This situation was dangerous for him because of his health problems. As he had
very serious backache and often felt dizzy and fainted, he needed help from another
inmate.
In addition he had had to wear handcuffs and
fetters during lengthy hearings before the Płock Regional Court despite
his multiple health problems and spinal pain. In his opinion, since joined
shackles were not used during transport between Warsaw and Płock, there
had been no further need to impose them before the Płock Regional Court.
In conclusion, the applicant submitted that the
authorities had gone beyond what could be considered necessary in the
circumstances and had subjected him to treatment contrary to Article 3 of the
Convention.
(b) The Government
The Government, citing a number of the Court’s
judgments, stressed that in the present case the treatment complained of had
not attained the minimum level of severity required under Article 3. In
particular, the alleged suffering involved in the application of the “dangerous
detainee” regime in respect of the applicant had not gone beyond the inevitable
element of humiliation connected with the imposition of detention on a person
considered to pose a threat to prison security - a legitimate measure that had
been fully justified under Polish law.
The Government maintained that the applicant had
been classified as a dangerous detainee in accordance with the relevant
provisions of law and with the aim of protecting others and guaranteeing order
before the courts and in the penitentiary units. Before the Płock Regional
Court four out of eleven detainees, including the applicant, had been
classified as dangerous detainees.
The Government submitted that the applicant was
required to wear joined shackles on only three occasions, that is on 2, 9 and
11 June 2008 during his trial before the Płock Regional Court. The measure
was applied under paragraph 6 1 c of the Cabinet’s Ordinance of 17 September
1990 on the conditions and method of use of direct restraint measures by police
officers (Rozporzadzenie Rady Ministrów z dnia 17 wresznia 1990 r. w sprawie
okreslenia przypadków oraz warunków i sposobów uzycia przez policjantów srodków
przymusu bezposredniego). Furthermore, imposition of the joined shackles
took place only after examination of the applicant’s individual situation. Had
there been any medical reason not to do so, such a measure would not have been
imposed. In addition, the applicant had not complained about the use of the joined
shackles, nor had he demanded that the escorting officers remove them. In conclusion,
they were of the opinion that the use of joined shackles was necessary and
proportionate in the present case
Referring to the applicant’s allegations that he
had spent a significant period of time in solitary confinement, the Government
pointed to the fact that the applicant’s solitary confinement was not of an absolute
character. For almost the whole period of his detention in Płock Prison he
had been incarcerated in a cell of 6.92 sq. m. He was also able to contact his
relatives. In this respect, relying on the Court’s judgment in the case of Ilascu
et al v. Moldova and Russia (no. 48787/99, § 428, ECHR 2004-VII),
they pointed out that the imposition of this measure alone did not expose the
applicant to ill-treatment within the meaning of Article 3.
The Government submitted that the applicant’s
“dangerous detainee” status had been the result of a personal check on the
applicant. According to the applicable rules laid down in Polish law, namely the
2003 Ordinance and Article 212(b) of the Code of Execution of Criminal Sentences,
the authorities had been obliged to carry out a “personal check” on the
applicant every time he left or entered his cell. The main aim of such checks
was to ensure safety in prison. All the checks had been performed with due
respect for the applicant’s dignity. The inspection of his body and clothes had
taken place in a separate room with no third parties or persons of the opposite
sex present. The checks had been conducted by guards of the same sex.
The Government also argued that during his
detention the applicant had regularly sought and obtained medical care. He had
been examined by various doctors on almost fifty occasions and had frequently
received specialist assistance.
Lastly, as regards the number and nature of
visits from family members and others, the Government considered that they had
been granted often enough to help the applicant to maintain adequate contact
and emotional links with his family. Such visits took place on at least nine occasions.
The majority of those visits lasted one hour. In addition, the applicant was
granted leave to attend his mother’s funeral on 8 May 2009.
Considering the combined effects of the measures
involved in the imposition of the “dangerous detainee” regime on the applicant
and the fact that they had been necessary given the danger to society posed by
him, the Government concluded that the treatment to which he had been subjected
had not been incompatible with Article 3 of the Convention. They invited the
Court to find no violation of that provision.
2. The Court’s assessment
(a) General principles deriving from the Court’s
case-law
Article 3 of the Convention enshrines one
of the most fundamental values of democratic societies. Even in the most
difficult of circumstances, such as the fight against terrorism or crime, the
Convention prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the conduct of the person concerned.
The nature of the offence allegedly committed by the applicant is therefore
irrelevant for the purposes of Article 3 (see Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV; Indelicato v. Italy, no. 31143/96, §
30, 18 October 2001; Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005-
..., § 179; and Ramirez Sanchez v. France [GC], no. 59450/00, ECHR-2006-...,
§ 115 et seq., with further references).
Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. The assessment of this
minimum depends on all the circumstances of the case, such as the duration of
the treatment, its physical or mental effects and, in some cases, the sex, age
and state of health of the victim (see, for instance, Kudła v. Poland [GC],
no. 30210/96, ECHR 2000-IX, § 91).
The Court has
considered treatment to be “inhuman” because, inter alia, it was
premeditated, was applied for hours at a stretch and caused either actual
bodily injury or intense physical or mental suffering. It has deemed treatment
to be “degrading” because it was such as to arouse in the victims feelings of
fear, anguish and inferiority capable of humiliating and debasing them. On the
other hand, the Court has consistently stressed that the suffering and
humiliation involved must in any event go beyond that inevitable element of
suffering or humiliation connected with a given form of legitimate treatment or
punishment (see, among other authorities, Kudła, cited above, § 92,
with further references). The question whether the purpose of the treatment was
to humiliate or to debase the victim is a further factor to be taken into
account, but the absence of any such purpose cannot conclusively rule out a
violation of Article 3 (see Van der Ven v. the Netherlands,
no. 50901/99, ECHR 2003-II, § 48).
Measures depriving a
person of his liberty often involve an element of suffering or humiliation.
However, it cannot be said that detention in a high-security prison facility,
be it pre-trial remand in custody or following a criminal conviction, in itself
raises an issue under Article 3 of the Convention. Public-order considerations
may lead the State to introduce high-security prison regimes for
particular categories of detainees and, indeed, in many States Parties to the
Convention more stringent security rules apply to dangerous detainees. These
arrangements, intended to prevent escape, attack or disturbance of the prison
community, are based on separation of such detainees from the prison community
together with tighter controls (see, for instance, Ramirez Sanchez,
cited above, §§ 80-82 and 138; Messina (no. 2) v. Italy, no. 25498/94, ECHR 2000-X, §§ 42-54; Labita, cited above, §§ 103-109; Rohde
v. Denmark, no. 69332/01, 21 July 2005, § 78; Van der Ven, cited
above, §§ 26-31 and 50; and Csüllög v. Hungary, no.
30042/08, 7 June 2011, §§ 13-16).
While, as stated above, those special prison
regimes are not per se contrary to Article 3, under that provision the
State must ensure that a person is detained in conditions which are compatible
with respect for his human dignity, that the manner and method of the execution
of the measure do not subject him to distress or hardship of an intensity
exceeding that unavoidable level of suffering inherent in detention and that,
given the practical demands of imprisonment, his health and well-being are
adequately secured (see Kudła, cited above, §§ 92-94, and Van
der Ven, cited above, § 50).
When making its assessment of conditions of
detention under Article 3 the Court will take account of the cumulative effects
of those conditions, as well as the specific allegations made by the applicant
(see Dougoz v. Greece, no. 40907/98, ECHR 2001-II, § 46). In that
context, it will have regard to the stringency of the measure, its duration,
its objective and consequences for the persons concerned (see Van der Ven,
cited above, § 51 and paragraph 159 above).
Although the prohibition of contact with other
prisoners for security, disciplinary or protective reasons can in certain
circumstances be justified, solitary confinement, even in cases entailing only
relative isolation, must not be imposed on a prisoner indefinitely. It would
also be desirable for alternative solutions to solitary confinement to be
sought for individuals considered dangerous and for whom detention in an
ordinary prison under the ordinary regime is considered inappropriate (see Piechowicz,
cited above, § 164).
Furthermore, in
order to avoid any risk of arbitrariness, substantive reasons must be given
when a protracted period of solitary confinement is extended. The decision on
the continuation of the measure should thus make it possible to establish that
the authorities have carried out a reassessment that takes into account any
changes in the prisoner’s circumstances, situation or behaviour. The statement
of reasons will need to be increasingly detailed and compelling the more time
goes by. Indeed, solitary confinement, which is a form of “imprisonment within
the prison”, should be resorted to only exceptionally and after every
precaution has been taken, as specified in paragraph 53.1 of the European
Prison Rules adopted by the Committee of Ministers on 11 January 2006 (see
Öcalan, cited above, § 191; Ramirez Sanchez, cited above,
§§ 139; and Piechowicz, cited above, § 165).
(b) Application of the above principles in the
present case
Turning to the facts of the present case, the
Court notes that the decision of 1 June 2007 imposing the “dangerous detainee”
regime on the applicant was a legitimate measure, warranted by the fact that
the applicant had been charged with armed robbery, was a habitual offender and
also had previously escaped from the Warsaw Mokotów Remand Centre (see
paragraph 31 above). It was not therefore unreasonable on the part of the
authorities to consider that, for the sake of ensuring prison security, he
should be subjected to tighter security controls, involving increased and constant
supervision of his movements within and outside his cell, limitations on his
contact and communication with the outside world, and some form of segregation
from the prison community.
However, for the reasons stated below, the Court
cannot accept that the continued, routine and indiscriminate application of the
full range of measures that were available to the authorities under the “N”
regime for two years and six months was necessary for maintaining prison
security and compatible with Article 3 of the Convention.
It is true, as the Government pointed out (see
paragraph 72 above), that although the applicant was in solitary confinement he
was not subjected to complete sensory or social isolation, as there were
periods during which he had a cellmate (see paragraphs 35 and 36 above). He
also received family visits (see paragraph 38 above). Accordingly, he was not
subjected to total isolation but rather to limited social isolation (see Messina (no. 2) (dec.), cited above, and Ramirez Sanchez, cited
above, § 135).
The list of
visits received by the applicant in detention shows that between July 2008 and
December 2009 he received fourteen visits, of which nine were from his sister
and son (see paragraph 38 above). However, between 28 October 2008 and 4 June
2009 he was not visited by anyone. In the Court’s view this very limited opportunity
for human contact did not mitigate sufficiently the consequences of his
separation from others and his daily solitude for his mental and emotional well-being.
The Court had already noted in the Piechowicz
case (see Piechowicz, cited above, § 172), referring to the 2009 CPT
report, that not only was the regime itself very restrictive but also the
Polish authorities in general failed to provide “N” wing inmates with
appropriate stimulation and, in particular, with adequate human contact.
. Likewise, in the present case it
does not appear that the authorities made any effort to counteract the effects
of the applicant’s isolation by providing him with the necessary mental or
physical stimulation other than a daily solitary walk in a segregated area. When
the applicant complained to the authorities, stressing his poor health, the
authorities did place another inmate with him (see paragraph 35 above).
The Court would reiterate that all forms of solitary
confinement without appropriate mental and physical stimulation are likely, in
the long term, to have damaging effects, resulting in a deterioration of mental
faculties and social abilities (see Csüllög, cited above, § 30, with further
references). Considering the duration of the regime imposed on the applicant
and the very limited opportunities for human contact available to him, the
Court has no doubt that his prolonged solitude must have caused him serious
distress and mental suffering.
The negative psychological and emotional effects
of his increased social isolation were aggravated by the routine application of
other special security measures, namely the strip searches.
In this respect the
Court also has misgivings about the personal check to which the applicant was
likewise subjected daily, or even several times a day, whenever he left or
entered his cell. The strip-search was carried out as a matter of routine and
was not linked to any specific security needs, nor to any specific suspicion
concerning the applicant’s conduct (see paragraphs 36 and 73 above)
The Court agrees that strip-searches may be
necessary on occasion to ensure prison security or to prevent disorder or crime
(see Iwańczuk v. Poland, no 25196/94, 15 November 2001, § 59).
However, it is not persuaded that systematic, intrusive and exceptionally
embarrassing checks performed on the applicant daily, or even several times a
day, were necessary to ensure safety in prison (see Piechowicz, cited
above, § 176).
Having regard to
the fact that the applicant was already subject to several other strict
surveillance measures, that the authorities did not rely on any specific or convincing
security requirements, and that, despite the serious charges against him, he
apparently did not display any disruptive, violent or otherwise dangerous
behaviour in prison, the Court considers that the practice of daily
strip-searches applied to him for two years and some six months must have
diminished his human dignity and caused him feelings of inferiority, anguish
and accumulated distress which went beyond the unavoidable suffering and
humiliation involved in the imposition of pre-trial detention (see Horych,
cited above, § 101, and Piechowicz, cited above, § 176).
Lastly, the Court
would add, as it has already held (see Piechowicz, cited above, § 177), that
due to the strict, rigid rules for the imposition of the special regime and the
vaguely defined “exceptional circumstances” justifying its discontinuation laid
down in Article 212a § 3 of the Code of Execution of Criminal
Sentences, the authorities, in extending that regime, were not in fact obliged
to consider any changes in the applicant’s personal situation and, in
particular, the combined effects of the continued application of the impugned
measures (see paragraph 45 above).
In the present case it emerges from the relevant
decisions that, apart from the original grounds based essentially on the
admittedly very serious nature of the charges against the applicant, which included
armed robbery, his previous escape from detention, as well as his “serious lack
of moral character”, the authorities did not subsequently find any other
reasons for classifying him as a “dangerous detainee” (see paragraphs 31, 32
and 34 above). While those circumstances could justify the imposition of the
“N” regime on the applicant for a certain period, even a relatively long one,
they could not suffice as the sole justification for its prolonged
continuation. With the passage of time the procedure for review of the
applicant’s “dangerous detainee” status became a pure formality, limited to a
repetition of the same grounds in each successive decision.
In conclusion, assessing the facts of the case
as a whole and considering the cumulative effects of the “dangerous detainee”
regime on the applicant, the Court finds that the duration and severity of the
measures taken exceeded the legitimate requirements of security in prison and
that they were not necessary in their entirety to attain the legitimate aim
pursued by the authorities.
There has accordingly been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant complained that the length of his
detention had been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled
to trial within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
The Government contested that argument.
A. Period to be taken into consideration
The applicant was remanded in custody in two concurrent
sets of criminal proceedings. It started in the first set of proceedings on 18
May 2007, when he was arrested on suspicion of robbery (see paragraph 13 above).
On 23 May 2007 the Ostrołeka District Court remanded him in custody on
suspicion of illegal possession of weapons and robbery (see paragraph 21 above).
He was released on 10 April 2010. However, between 18 May 2007 and 18 May 2008
he had been serving a sentence of imprisonment imposed in another set of
criminal proceedings against him (see paragraph 26 above). In addition, on 18
December 2008 and 22 September 2009 he was convicted as charged by
the Warsaw Court of Appeal and the Płock Regional Court (see paragraphs 18
and 25 above).
Accordingly, given that where an accused person
is detained for two or more separate periods pending trial, the reasonable time
guarantee of Article 5 § 3 requires a global assessment of the cumulative
period (see, among other authorities, Mitev v. Bulgaria, no. 40063/98,
22 December 2004, § 102, with further references), the period to be taken into
consideration amounts to seven months.
B. The parties’ submissions
The Government submitted a preliminary
objection that the applicant had failed to exhaust the available domestic
remedies since he had not appealed against some of the decisions extending his
detention. They further maintained that the domestic authorities had shown
special diligence and examined the applicant’s situation afresh each time.
Lastly, they were of the opinion that the length of the applicant’s detention
was closely connected with the proper conduct of the proceedings and the
circumstances of the case.
The applicant maintained that his detention had
been excessively long.
C. The Court’s assessment
. The
Court does not find it necessary to examine the objection as to the exhaustion
of domestic remedies raised by the Government, as this complaint is
in any event
inadmissible for the following reasons.
The Court firstly reiterates that the general
principles regarding the right “to trial within a reasonable time or to release
pending trial”, as guaranteed by Article 5 § 3 of the Convention, have been set
out in a number of its previous judgments (see, among many other authorities, Kudła, cited above, § 110 et seq.,
and Bąk v. Poland, no. 7870/04,
§§ 56-65, 16 January 2007).
Turning to the circumstances of the instant
case, the Court notes that the grounds given by the judicial authorities to
justify the applicant’s continued detention satisfied the requirement of being
“relevant” and “sufficient”. It further notes that his detention was reviewed
by the courts at regular intervals, and that the two sets of the proceedings
were very complex. In this connection the Court observes that the courts
stressed the need to verify evidence from numerous suspects and witnesses, and
that there was an extensive body of evidence to be considered. The Court
also accepts that the reasonable suspicion that the applicant had committed
serious offences, together with the likelihood of a severe sentence being
imposed on him, warranted his initial detention.
Lastly, the Court observes that the applicant
was charged with multiple offences committed with others.
For these reasons, the Court also finds that
the domestic authorities cannot be criticised for failure to observe “special
diligence” in the handling of the applicant’s case.
In view of the above considerations and in the
light of the criteria established in its case-law in similar cases, the Court
considers that the overall period of the applicant’s detention does not
disclose any appearance of a breach of the “reasonable time” requirement of
Article 5 § 3 of the Convention. This complaint is therefore manifestly
ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF LENGTH OF
PROCEEDINGS
The applicant complained that the length of the
first set of proceedings had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
The Court notes that the proceedings began on
an unknown date in 1991. However, the period to be taken into consideration
began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. Nevertheless, in assessing the
reasonableness of the time that elapsed after that date, account must be taken
of the state of proceedings at the time.
The period in question ended on 22 September
2009 (see paragraph 16 above). It thus lasted sixteen years and some four months
at one level of jurisdiction.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant maintained that the proceedings
in his case have lasted an excessively long time.
The Government refrained from submitting any
observations.
2. The Court’s assessment
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities and what was at
stake for the applicant in the dispute (see, among many other authorities, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see Frydlender, cited above).
Having examined all the material submitted to
it, the Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in the
present case. Having regard to its case-law on the subject and the overall
length of the proceedings, the Court considers that in the instant case the
length of the proceedings was excessive and failed to meet the “reasonable
time” requirement.
There has accordingly been a breach of Article
6 § 1.
IV. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
120. The applicant further complained under Article 6 § 1
alleging unfairness of the criminal proceedings against him. He also cited
Article 13 of the Convention.
121. The Court finds that the facts of the case do not
disclose any appearance of a violation of the above-mentioned provisions. It
follows that these complaints are manifestly ill-founded within the meaning of
Article 35 §3 (a) and must be rejected in accordance with Article 35 § 4.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the internal
law of the High Contracting Party concerned allows only partial reparation to
be made, the Court shall, if necessary, afford just satisfaction to the injured
party.”
A. Damage
The applicant claimed 100,000 Polish zlotys
(PLN) in compensation for non-pecuniary damage.
The Government considered that the sum claimed
was exorbitant and inconsistent with the Court’s awards in similar cases.
The Court, having regard to its case-law and
making its assessment on an equitable basis, awards the applicant EUR 12,000 in
respect of non-pecuniary damage. It rejects the remainder of the claim.
B. Costs and expenses
The applicant did not ask for reimbursement of
costs and expenses incurred before the domestic courts or in the proceedings
before the Court.
C. Default interest rate
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 3 concerning
the imposition of the “dangerous detainee” regime on the applicant and under
Article 6 § 1 concerning the length of the first set of criminal proceedings
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3 Holds that there has been a violation of
Article 6 §1 of the Convention;
4. Holds
(a) that the respondent
State is to pay the applicant, within three months of the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, EUR 12,000 (twelve thousand euros) to be converted into the currency
of the respondent State at the rate applicable at the date of settlement, plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above amount at
a rate equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 30 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David
Thór Björgvinsson
Registrar President
