FOURTH SECTION
CASE OF
ŚLUSARCZYK v. POLAND
(Application no.
23463/04)
JUDGMENT
STRASBOURG
28 October 2014
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 Ślusarczyk v. Poland,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 7 October 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
23463/04) against the Republic of Poland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Polish national, Mr Dariusz Ślusarczyk (“the applicant”),
on 27 May 2004.
The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewcz, succeeded by Mrs
J. Chrzanowska of the Ministry for Foreign Affairs.
The applicant alleged a breach of Article 3 of
the Convention on account of the imposition of the so-called “dangerous
detainee” regime on him and inadequate conditions of his detention. He further
submitted that the length of his pre-trial detention was excessive, in breach
of Article 5 § 3. Invoking Article 6 § 1 the applicant complained that criminal
proceedings in his case lasted excessively long. The applicant also alleged a
breach of Article 8 in that his correspondence had been censored.
. On 18 January 2007 the complaints
under Article 3 (conditions of detention), Article 5 § 3 and Article 8 were
communicated to the Government.
On 21 February 2011, additionally, the complaint
under Article 3 about the “dangerous detainee” regime and the complaint under
Article 6 § 1 were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant is a Polish national, who was born
in 1971 and lives in Będzin.
A. Partial disagreement as to certain facts of the
case
The parties gave partly different descriptions of
certain facts of the case concerning the conditions of the applicant’s
detention and the “dangerous detainee” regime (see paragraphs 54-57 and 68-75
below). The remaining facts were not in dispute.
B. First set of
criminal proceedings against the applicant (case no. XVI K 101/04)
On 27 December 2000 the applicant was arrested on
suspicion of robbery.
On 29 December 2000 the Sosnowiec District Court
(Sąd Rejonowy) remanded him in custody, relying on the reasonable
suspicion that he had committed robbery, theft and had caused bodily harm,
acting with two other persons. It also considered that keeping the applicant in
detention was necessary to secure the proper conduct of the proceedings, given
the risk that he might tamper with evidence. In that respect, it was noted that
the applicant had threatened the victims in order to stop them from informing
the police of the offences allegedly committed and from testifying against him.
The court also stressed the severity of the anticipated sentence.
In the course of the investigation, the
applicant’s detention was extended on 31 January and 19 March 2001. In their
detention decisions, the courts repeatedly relied on the original grounds given
for the applicant’s detention.
On 13 June 2001 the Sosnowiec District
Prosecutor lodged a bill of indictment with the Sosnowiec District Court. The
applicant, together with two co-accused, was charged with robbery, two counts
of theft and causing bodily harm.
During the court proceedings the authorities
further extended the applicant’s detention pending trial on 26 June and 6
December 2001, 8 March, 26 July, 22 November and 18 December 2002 and
again on 29 January 2003. The courts repeated the grounds previously given
for his continued detention.
On 28 February 2003 the Sosnowiec District Court
gave judgment. The applicant was convicted as charged and sentenced to 7 years’
imprisonment.
The applicant appealed. He was held in detention
pending appeal for the subsequent months.
On 23 April 2004 the Katowice Regional Court (Sąd
Okręgowy) heard the applicant’s appeal. It quashed the first-instance
judgment and remitted the case.
The courts further extended the applicant’s
detention on 10 May, 23 July, 27 September and 11 October 2004,
relying on the initial grounds.
On 22
November 2004 the District Court decided that the applicant’s detention should
be replaced by police supervision (dozór policji) but he was not
released and remained in custody under a detention order given in the second
set of criminal proceedings against him (see paragraph 23 below).
On 27 January 2006 the Sosnowiec District Court again
convicted the applicant as charged but mitigated the sentence to 5 years’
imprisonment. The period of the applicant’s pre-trial detention from 27 December
2000 to 23 November 2004 was deducted from the sentence.
On 26 October 2006 the Katowice Regional Court
upheld the first‑instance judgment.
From 7 December 2006 to 10 January 2008 the
applicant served the prison sentence following his conviction of 27 January
2006.
C. Second set of criminal proceedings against the
applicant and proceedings under the 2004 Act
1. Criminal proceedings (case no. II K 167/04)
On 26 April 2004 the applicant was charged with
robbery and battery committed in an organised criminal group.
On 28 April 2004 the Katowice District Court
remanded the applicant in custody for three months relying on the reasonable
suspicion that he had committed the offences in question. It also considered
that keeping the applicant in detention was necessary to secure the proper
conduct of the proceedings, given the risk that he might tamper with evidence
by inducing other co-accused or witnesses to give false testimony. In this
context the court referred to the fact that the applicant was suspected of
serious offences committed in an organised criminal group.
Later, several other members of the same criminal group were
detained and charged in the investigation against the applicant.
The applicant’s appeal against the detention
order was unsuccessful, as were his further appeals against decisions extending
his detention and all his subsequent, numerous applications for release and
appeals against refusals to release him.
On 27 September 2004 the Katowice District Court
extended the applicant’s detention to 30 December 2004. It repeated the grounds
that had previously been given for the applicant’s detention.
On 18 November 2004 the Katowice Regional Prosecutor
lodged a bill of indictment with the Częstochowa Regional Court. The
applicant was charged with extortion and causing bodily harm. The bill of
indictment comprised numerous charges brought against 15 accused.
On 9 June
2005 the Częstochowa Regional Court held the first hearing. It
subsequently scheduled some 60 hearings in the case.
During the court proceedings
the Częstochowa Regional Court further extended the applicant’s pre-trial
detention on several occasions, namely on 21 December 2004 (until 30 June
2005), on 23 June 2005 (until 31 December 2005) and on 14 December
2005 (until 27 May 2006). It repeated the grounds that had previously been
given for the applicant’s continued detention. In particular, the court
referred to the fact that the applicant was suspected of committing offences in
an organised criminal group which involved 15 co-accused and 47 charges.
Because the length of the applicant’s detention was
about to reach the statutory two-year time‑limit laid down in Article 263
§ 3 of the Code of Criminal Procedure, the Częstochowa Regional Court
applied to the Katowice Court of Appeal (Sąd Apelacyjny), asking
for the applicant’s detention to be extended beyond that term. The
Katowice Court of Appeal extended his detention on 19 April 2006 (until 31
October 2006), 11 October 2006 (until 28 February 2007), 22 February
2007 (until 30 June 2007), 20 June 2007 (until 30 November 2007)
and 28 November 2007 (until 31 January 2008). The court referred in
particular to the need to obtain evidence from several further witnesses. The
Court confirmed that the hearings were held at regular intervals, however the
case was very complex.
On 10 January 2008 the Częstochowa Regional
Court gave judgment. The applicant was convicted as charged and sentenced to
three years and six months’ imprisonment. The applicant appealed. He remained
detained pending appellate proceedings.
On 15 January 2009 the Katowice Court of Appeal
quashed the first‑instance judgment in respect of the applicant and the
few other co‑accused and in this part remitted the case for retrial. On
the same date the court also decided to lift the applicant’s detention but he still
remained detained in the third set of criminal proceedings against him (see paragraph
42 below).
On 10 March, 14 April, 12 May and 19 May 2010
the Częstochowa Regional Court held hearings.
It would appear that the proceedings were
terminated at a later, unknown date.
2. Proceedings under the 2004 Act (case no. XIII S
24/10)
On 31 March
2010 the applicant lodged a complaint with the Katowice Court of Appeal under
section 5 of the Law of 17 June 2004 on complaints about a breach of the right
to an investigation conducted or supervised by a prosecutor and to a trial
within a reasonable time (Ustawa o skardze na
naruszenie prawa strony do rozpoznania sprawy w postępowaniu
przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i
postępowaniu sądowym bez nieuzasadnionej zwłoki)
(“the 2004 Act”).
On 25 May 2010 the Katowice Court of Appeal
dismissed the applicant’s complaint. It considered that the proceedings before
the trial court had been conducted with the requisite speed. In particular, the
court observed that the hearings had been held frequently, at regular intervals
and only a few of them had been adjourned due to reasons not imputable to the
trial court.
D. Third set of criminal proceedings against the
applicant (case no. V K 140/08)
On 15 May 2007 the Katowice-Wschód District
Court remanded the applicant in custody relying on a reasonable suspicion that
he had committed several offences of extortion while acting in an organised
criminal group. It also considered that keeping the applicant in detention was
necessary to secure the proper conduct of the proceedings, given the risk that
he might tamper with evidence. The court also stressed the likelihood of a
lengthy prison sentence being imposed on him and the complexity of the case.
The
Katowice-Wschód District Court further extended the applicant’s pre-trial
detention on several occasions, namely on 10 August 2007 (until 31 October
2007), 25 October 2007 (until 31 January 2008), 25 January 2008 (until
31 March 2008) and 26 March 2008 (until 30 June 2008). It
repeated the original grounds given to justify for the applicant’s detention.
The applicant’s appeal against the detention order and his
further appeals against the above decisions extending his detention were
unsuccessful.
On 25 June 2008 the Katowice-Wschód District
Court extended the applicant’s pre-trial detention to 30 September 2008. The
applicant lodged an appeal against this decision.
On 30 June 2008 the Katowice Regional Prosecutor
lodged a bill of indictment with the Katowice Regional Court. The applicant was
charged with extortion and endangering other persons.
On 23 July 2008 the Katowice Regional Court quashed
the decision of Katowice-Wschód District Court of 25 June 2008. It held that
the decision to extend the applicant’s pre-trial detention beyond the period of
one year should be taken by a regional court. The applicant remained detained
in the second set of criminal proceedings (see paragraph 28 above).
On 26 September 2008 the Katowice Regional Court
remanded the applicant in custody relying on the reasonable suspicion that he
had committed the offences with which he was charged. It also considered that
keeping him in detention was necessary to secure the proper conduct of the
proceedings, given the risk that he might tamper with evidence. It further
noted that the applicant was detained in another set of criminal proceedings
against him in which he had been sentenced to three years and six months’
imprisonment. The applicant lodged an appeal against the detention order.
On 5 November 2008 the Katowice Court of Appeal
quashed the order. It considered that the Katowice Regional Court had failed to
give relevant reasons for the prolongation of the applicant’s detention. The
applicant was still detained in the second set of criminal proceedings (see paragraph
28 above).
On 24 November 2008 the Katowice Regional Court again
remanded the applicant in custody. It held that the evidence which had been
gathered in the case, in particular the testimonies of other suspects, showed
that there was a sufficient probability that the applicant had committed the
offences with which he had been charged. It attached importance to the
likelihood of a severe prison sentence being imposed on the applicant and
the risk that he would attempt to induce witnesses to give false testimony or
would otherwise obstruct the proceedings. The latter risk was considered of the
utmost importance in the light of the fact that the case involved a large
number of alleged accomplices.
On 19 February 2009 the Katowice Regional Court
extended the applicant’s detention until 24 May 2009. The applicant appealed.
On 1 April 2009 the Katowice Court of Appeal
quashed the contested decision. It held that the impugned decision was given by
a single judge whereas it should have been taken by a panel composed of one
judge and two lay judges.
On the same date the Katowice Regional Court extended the
applicant’s detention to 24 May 2009. On 18 May 2009 it further extended the
applicant’s detention to 6 August 2009. It referred to the severity of the
anticipated penalty, the risk that the applicant would attempt to induce
witnesses, in particular as he was charged with acting in an organised criminal
group and the complexity of the case.
On 29 July 2009 and 4 November 2009 the Katowice
Court of Appeal extended the applicant’s pre-trial detention to 15 November
2009 and 31 March 2010 respectively. In its decisions the court underlined
the complexity of the case, the fact that it involved thirteen co-accused and
that evidence from 48 witnesses was to be obtained. It further noted the
severity of the penalty to which the applicant was liable. Having regard
to the organised character of the alleged criminal activities, it also held
that the applicant’s detention was necessary in order to prevent the applicant
from interfering with the proceedings.
On 30 March 2010 the applicant was released from
custody under police supervision.
E. Censorship of the applicant’s correspondence
The applicant submitted to the Court an envelope
of the Ombudsman’s (Rzecznik Praw Obywatelskich) letter of 6 July 2004,
addressed to him and bearing a stamp “censored on...”. Another stamp indicated
that the letter was received at Katowice Remand Centre on 9 July 2004.
On 30 July 2004 the Katowice Regional Court
dismissed the applicant’s complaint about the censorship of his correspondence
with the Ombudsman on the grounds that this measure had been applied in accordance
with law, i.e. the relevant provisions of the Code of Execution of Criminal
Sentences.
On 9 August 2004 the Katowice Regional
Prosecutor, in response to the applicant’s complaints that his letters had been
delayed or intercepted, informed him that his correspondence was transmitted to
him “immediately after its censorship”.
On 28 April 2008 the applicant submitted an
envelope of the Court Registry’s letter of 11 January 2008 bearing a stamp “censored
on...”. A postmark indicated that the letter was delivered to an unspecified
post office in Częstochowa on 17 January 2008.
F. Imposition of the “dangerous detainee” status
1. Undisputed facts
On 27 May
2004 the Katowice Remand Centre Penitentiary Commission (Komisja
Penitencjarna) classified the applicant as a “dangerous detainee”. It
considered that this was necessary given that he was charged with numerous
offences committed as a member of an organised criminal group. The commission
also referred to the high degree of demoralisation of the applicant. The
applicant appealed unsuccessfully against this decision.
Every three months the commission reviewed, and
upheld, its decision classifying the applicant as a “dangerous detainee”. The
commission underlined that the initial grounds for imposing the special
confinement measure were still valid. In its decision of 23 February 2005 it
also pointed to the fact that the applicant used threats and intimidation to try
to compel other detainees to go on hunger strike and to ignore the orders of
the remand centre’s staff. The applicant’s appeals against these decisions were
dismissed as ill-founded.
As a “dangerous detainee”, the applicant was
subjected to a body search every time he entered or left his cell which meant
that he had to strip naked in front of two prison guards at least twice a day.
The body search was performed in a separate room, which was monitored and its
recording was viewable in a duty room. Whenever the applicant was outside his
cell, including his appearances at court hearings, he wore the so-called
“joined shackles” (kajdany zespolone) on his hands and feet. In
addition, his cell, including the sanitary corner was monitored via CCTV.
On 15 November 2005 the commission lifted the
“dangerous detainee” status in the applicant’s respect.
2. Facts in dispute
The applicant submitted that on several
occasions his body search was monitored by a female prison officer.
The Government claimed that a body search was
conducted exclusively by the male prison staff and the presence of persons of
the opposite sex was never permitted.
The applicant further claimed that whenever
outside his cell he had to wear the “joined shackles” on his hands and feet.
The Government argued that the applicant had not
been obliged to wear the joined shackles while moving around his prison ward.
G. Conditions of the applicant’s detention
1. Undisputed facts
(a) Conditions of the applicant’s detention
On 27 December 2000 the applicant was committed
to Sosnowiec Remand Centre. He remained there until 18 March 2002. Subsequently,
until his release on 30 March 2010, (see paragraph 46 above) he was held in several
detention facilities, including Strzelce Opolskie Prison (from 18 March
2002 to 3 February 2004), Katowice Remand Centre (from 3 February 2004 to
1 June 2006 and then for an unspecified period from May 2009 until his release
on 30 March 2010), Częstochowa Remand Centre (from 1 June 2006 to 24
January 2008), Bytom Remand Centre (24 January 2008 to January 2009) and
Wojkowice Prison (unspecified dates in January 2009 until May 2009). Except for
the period from 27 May 2004 to 15 November 2005, when the applicant was
subjected to the “dangerous detainee” regime, he was detained under the
ordinary prison regime in multi-occupancy cells.
(i) Sosnowiec Remand Centre
The inmates had been provided with toothpaste,
soap and other basic hygiene products but their quality had been very poor.
The applicant acknowledged that the cells had
been equipped adequately to ensure that every inmate had his own place to
sleep, eat and store his food or other items.
(ii) Katowice Remand Centre
In each cell to which the applicant was
allocated there was a separate, closed toilet and the cells had been adequately
equipped with furniture. The applicant was provided with the necessary hygiene
products. Hot meals were distributed directly to the cells. The bed linen was
changed every 2 weeks. The applicant was entitled to a shower once a week. He
had access to the prison library.
(iii) Częstochowa Remand Centre
The cells in which the applicant was held were
adequately equipped with furniture. The applicant was provided with the
necessary hygiene products. The bed linen was changed every 2 weeks. The
applicant was entitled to a shower once a week. He had access to the prison
library.
(b) The applicant’s complaints to penitentiary
authorities and his civil actions
The applicant lodged several complaints about
the conditions of his detention with the penitentiary authorities. All of them
were dismissed as ill‑founded.
On 22 December 2009 the applicant lodged a civil
action against the State Treasury statio fisci Sosnowiec Remand Centre
for the infringement of his personal rights on account of overcrowding and the degrading
conditions of his detention. The applicant did not inform the Court of the
outcome of the proceedings.
On 23 December 2009 the applicant lodged a
similar civil action against the State Treasury statio fisci Katowice
Remand Centre for the infringement of his personal rights on account of
overcrowding and the degrading conditions of his detention. On 31 March 2010
the Katowice Regional Court dismissed the applicant’s claim. The applicant’s
appealed. On 30 September 2010 the Katowice Court of Appeal rejected his appeal
on formal grounds.
On 5 January 2010 the applicant lodged yet
another civil action against the State Treasury statio fisci
Częstochowa Remand Centre for the infringement of his personal rights on
account of overcrowding and degrading conditions of his detention. On 5 August
2010 the Częstochowa Regional Court dismissed the applicant’s claim. The
court established that between 1 June 2006 and 22 January 2007 the applicant
was assigned to cell no. 40 where the space available was 1.7 m² per person. Between
23 January 2007 and 24 January 2008 the applicant was placed in cell no. 52,
where the space available was 2.1m². However, the court considered that the
applicant had failed to provide the names of inmates sharing his cells. The
applicant failed to inform the Court whether he had lodged an appeal against
this judgment.
In his letter of 28 September 2011 the applicant
stated generally: “all my civil actions were rejected and I was ordered to pay
costs of legal representation.”
2. Facts in dispute
(a) The applicant
The applicant submitted that throughout the
entire period of his detention he was held in overcrowded cells. Despite his
numerous requests, he was not allowed to work in prison.
(b) The Government
As regards the general conditions of the
applicant’s detention, the applicant was held in adequately equipped cells,
with enough private space for every inmate. He was provided with the necessary
cosmetics and other hygiene products. He had been given the possibility of a
daily walk and could participate in various cultural and indoor recreation
activities in prison.
As regards overcrowding, the Government supplied
the following information concerning the applicant’s detention in Sosnowiec
Remand Centre, Bytom Remand Centre, Wojkowice Prison and Katowice Remand Centre.
In Sosnowiec Remand Centre decisions reducing
the minimum statutory space of 3 m2 in respect of the applicant were
given on 8 June, 8 August, 14 September, 8 October and 19
November 2001, then on 15 January, 22 February, 3 April, 28 May, 27 June,
28 August, 17 October, 14 November 2002 and 24 January 2003. However, the
Government submitted that since the authorities of Sosnowiec Remand Centre had
not kept any record of persons allocated to particular cells, it was impossible
to determine the exact number of inmates in the applicant’s cells during his
detention.
In Bytom Remand Centre the applicant was detained
in overcrowded cells from 24 January to 13 February 2008, on 29 February 2008
and from 21 to 25 March 2008.
In Wojkowice Prison the applicant was held in
overcrowded cells on 5 January 2009, from 20 January to 8 February 2009, on 19
February 2009 and from 7 to 11 March 2009.
In Katowice Remand Centre the applicant was held
in overcrowded cells from 23 October to 5 November 2009. The Government
submitted that since the prison authorities had not kept any record of persons
allocated to particular cells, it was impossible to determine the exact number
of inmates in the applicant’s cells during his detention.
The applicant submitted that throughout his
detention in the Czestochowa Remand Centre he had been held in overcrowded
cells. The Government replied that since the prison authorities had not kept
any record of persons allocated to particular cells, it was impossible to
determine the exact number of inmates in the applicant’s cells during his
detention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
The relevant
domestic law and practice concerning the imposition of detention on remand (tymczasowe
aresztowanie), the grounds for its extension, release from detention and
rules governing other, so-called “preventive measures” (środki
zapobiegawcze) are stated in the Court’s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§
75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§
42-46, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§
22-23, 4 May 2006.
B. Conditions of detention
A detailed description of the relevant domestic
law and practice concerning general rules governing the conditions of detention
in Poland and domestic remedies available to detainees alleging that the
conditions of their detention were inadequate are set out in the Court’s pilot
judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski
v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75‑85
and §§ 45-88 respectively). More recent developments are described in the
Court’s decision in the case of Łatak v. Poland (no. 52070/08)
on 12 October 2010 (see §§ 25-54).
C. “Dangerous detainee” status
The relevant domestic law and practice concerning the
imposition of “dangerous detainee” regime are set out in the Court’s judgments
in the cases of Piechowicz v. Poland (no. 20071/07, §§ 105-117, 17 April
2012), and Horych v. Poland (no 13621/08, §§ 44-56, 17 April 2012).
D. Monitoring of detainees correspondence
. The
relevant domestic law and practice concerning the censorship of prisoners’
correspondence are set out in the Court’s judgments in the cases of Kliza v.
Poland no. 8363/04, §§ 29-34, 6 September 2007 and Biśta v. Poland,
no. 22807/07, § 21, 12 January 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION ON ACCOUNT OF THE IMPOSITION OF THE “DANGEROUS DETAINEE” REGIME
The applicant complained that he was unlawfully
classified as a “dangerous detainee” and subjected to degrading treatment as
provided in Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
A. Admissibility
1. The parties’ submissions
. Without
specifying any details, the Government submitted that the applicant had failed
to exhaust the available domestic remedies.
. The
applicant disagreed.
2. The Court’s assessment
. In
the present case the Court observes that the applicant appealed to the
penitentiary court against nearly all decisions classifying him as a dangerous
detainee (see paragraphs 50, 51 above). The Government did not refer to any other remedy capable of affording
redress to the applicant. Consequently, the Court notes that this complaint is
not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The applicant
. The applicant
submitted that the prolonged imposition of the “dangerous detainee” regime had
been in breach of Article 3 of the Convention.
2. The Government
. The
Government stressed that in the present case the treatment complained of had
not attained the minimum level of severity required under Article 3.
. The Government
maintained that the applicant had been classified as a dangerous detainee in
accordance with the relevant provisions of law and with the aim of protecting
others. The decision was given on the basis of the applicant’s membership in an
organised criminal group and in view of the brutality of acts he allegedly
committed. In addition, they maintained that during his detention in the
Katowice Remand Centre the applicant had been inciting other prisoners to go on
hunger strike. The Government submitted that the applicant was required to wear
joined shackles only outside the prison ward. They further pointed to the fact
that the applicant had never been placed in solitary confinement.
. The
Government stressed that pursuant to Article 212(b) of the Code of Execution of
Criminal Sentences, the authorities had been obliged to carry out a “personal
check” on the applicant every time he left or entered his cell. However, the
applicant had not complained about any mistreatment in this respect.
. Lastly,
as regards the number and nature of visits from family members and others, the
Government maintained that between 27 May 2004 and 15 November 2005 the
applicant had been granted 26 visits from three persons close to him.
. Considering
the combined effects of the measures involved in the imposition of the
“dangerous detainee” regime on the applicant and the fact that they had been
necessary given the danger he posed to society, the Government concluded that
the treatment to which he had been subjected had not been incompatible with
Article 3 of the Convention. They invited the Court to find no violation of
that provision.
3. The Court’s assessment
(a) General principles deriving
from the Court’s case-law
. The relevant general principles deriving from its
case-law were recently summarised in the Court’s judgments in the cases of Piechowicz v. Poland (Piechowicz cited
above, §§ 158-165) and Horych v. Poland (Horych, cited above,
§§ 85-92).
(b) Findings of fact
. The
Court notes that the respondent Government and the applicant differed in their
accounts of certain aspects of the applicant’s detention in the three relevant
detention establishments, in particular with regard to the monitoring of his body
searches and the use of shackles.
. As
regards the use of shackles, the Government disputed the applicant’s allegation
that he had had to wear the so-called “joined shackles” (handcuffs and fetters
joined together with chains) whenever he had been taken outside his cell. They
nonetheless admitted that in accordance with section 19 § 5 of the Prison Act
the applicant had had to wear shackles (kajdany) whenever he was taken out of the prison ward (see paragraph
56 above). The Court is of the view that the applicant’s claim regarding the
constant use of chains on his hands and feet whenever he was outside his cell
is credible. In any event, in the light of the available material, such as the
relevant report of the CPT (see Piechowicz, cited above, §§ 80-81) there
could be no doubt that at the material time there existed a practice of
shackling or handcuffing dangerous detainees whenever they were taken out of
their cells.
(c) Merits of the complaint
. The
Court notes that there is no dispute over the fact that from
27 May 2004 and 15 November 2005, that is to say for one year, five
months and nineteen days, the applicant, a remand prisoner, was continually
classified as a so-called “dangerous detainee” and, in consequence, subjected
to high-security measures and various restrictions (see paragraphs 50-53 above).
. The
measures applied in the applicant’s case comprised confinement at a special
high-security prison ward and increased supervision of his movement within and
outside the remand centre, which meant that at all times he wore shackles. The
measures involved his segregation from the prison community and limitations on
contact with his family. Also, every time he left
or entered his cell he was subjected to a routine “personal check” – a
strip-search, including a thorough inspection of
his body and clothes and requiring him to strip naked and make deep knee bends
in order to enable an examination of his anus (see paragraph 52 above). In
addition, his cell, excluding sanitary facilities, was constantly monitored via CCTV.
. The
parties disagreed, however, on whether the adverse consequences of the
imposition of the above measures on the applicant had been so serious as to
attain the minimum level of severity required by Article 3 of the Convention.
. The
Court notes that the decision of 27 May 2004 imposing the “dangerous detainee”
regime on the applicant was a legitimate measure, warranted by the fact that
the applicant had been charged with a violent crime committed as a
member of an organised criminal group (see paragraph
50 above). It was not therefore unreasonable on the part of the authorities to
consider that, for the sake of ensuring prison security, he should be subjected
to tighter security controls, involving increased and constant supervision of
his movements within and outside his cell, limitations on his contact and
communication with the outside world, and some form of segregation from the
prison community.
. However,
for the reasons stated below, the Court cannot accept that the continued,
routine and indiscriminate application of the full range of measures that were
available to the authorities under the “N” regime for one year, five months and
nineteen days was necessary for maintaining prison security and compatible with
Article 3 of the Convention.
. It
is true, as the Government pointed out (see paragraph 87 above) that the
applicant was never placed in solitary confinement and therefore was not
subjected to complete sensory or social isolation. In addition, between 27 May
2004 and 15 November 2005 he received 26 family visits (see paragraph 89 above).
Nevertheless, given the nature and extent of the other restrictions, the family
visits could not alone sufficiently mitigate the cumulative, adverse effects of
the imposition of the “dangerous detainee” regime on the applicant.
. Furthermore,
the Court is not convinced that shackling the applicant on leaving his cell,
which was a matter of everyday procedure, was indeed necessary on each and
every occasion.
. The
Court has even more misgivings about the personal check to which the applicant
was likewise subjected daily, or even several times a day, whenever he left or
entered his cell. The strip-search was carried out as a matter of routine and
was not linked to any specific security needs, nor to any specific suspicion
concerning the applicant’s conduct (see paragraphs 52 and 88 above).
. The
Court has already held in the Piechowicz case (see Piechowicz, cited
above, § 176) that while strip-searches might be necessary to ensure prison
security or to prevent disorder or crime, it was not persuaded by the
Government’s argument that such systematic, intrusive and exceptionally
embarrassing checks performed daily, or even several times a day, were
necessary to ensure safety in prison.
. Having
regard to the fact that the applicant was already subjected to several other
strict surveillance measures and that the authorities did not rely on any
specific or convincing security requirements, the Court considers that the
practice of daily strip-searches applied to him for one year and nearly six
months must have diminished his human dignity and caused him feelings of
inferiority, anguish and accumulated distress which went beyond the unavoidable
suffering and humiliation involved in the imposition of pre‑trial
detention (see Horych, cited above, § 101, and Piechowicz, cited above, § 176).
. 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.
. In
the present case it emerges from the relevant decisions that, apart from the
original grounds based essentially on the admittedly very serious nature of the
charges against the applicant, which included a violent crime committed in an
organised group, as well as his “serious lack of moral character” and alleged
incitement to go on hunger strike, the authorities did not subsequently find
any other reasons to classify him as a “dangerous detainee” (see paragraphs 50 and
51 above). While those circumstances could justify the imposition of the “N”
regime on the applicant for a certain period, even a relatively long one, they
could not suffice as the sole justification for its prolonged continuation.
With the passage of time the procedure for review of the applicant’s “dangerous
detainee” status became a pure formality, limited to a repetition of the same
grounds in each successive decision.
. 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 3 OF THE
CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S DETENTION
The applicant’s second complaint under Article
3 of the Convention concerned the conditions of his detention when he was not
subjected to the “dangerous detainee” regime. In particular, he complained
about overcrowding and unhygienic conditions in the detention centres.
The Government contested that argument.
A. Admissibility
1. Withdrawal and re-introduction of the complaint
In his letters of 6 April, 15 May and 21 June
2010 the applicant informed the Court that he withdrew his complaint under
Article 3 about overcrowding in the Sosnowiec, Katowice and Czestochowa detention
facilities. He submitted that civil proceedings concerning his claims for
compensation against these prisons were pending. He further confirmed that he
upheld his complaints about other remand centres.
However, on 17 October 2010 the applicant
informed the Court that he wished to resubmit his complaints about living
conditions in the above prisons, since his claims for compensation in Poland
had been unsuccessful.
In this respect the Court
points out that it is not open to it to set aside the application of the six‑month
rule solely because a respondent Government have not made a preliminary
objection based on that rule (see Marchowski
v. Poland, no.10273/02, § 48, 8 July 2008, and
Walker
v. the United Kingdom (dec.), no. 34979/97,
ECHR 2000-I).
. The
present case concerns overcrowding in five different detention facilities (see
paragraphs 66, 71-74 above), which took place on several identifiably separate
occasions. It follows that the applicant’s detention in these prisons cannot be
construed as a “continuing situation” (see Olszewski v. Poland,
no. 21880/03, § 85, 2 April 2013).
. In so far as the applicant’s
complaint relates to overcrowding in the Sosnowiec Remand Centre, the Court
observes that it concerns events that took place in 2001 and 2002 (see paragraph 58 above). The applicant re-introduced this complaint
on 17 October 2010 (see paragraph 111 above). The Court also notes that the
applicant lodged a claim for compensation against the Sosnowiec Remand Centre
(see paragraph 64 above). However, despite a brief indication, without
specifying any details thereof, that the claim had been unsuccessful (see
paragraph 67 above) he had failed to inform the Court about the further course
of the proceedings. Consequently, the Court notes that the applicant failed to
substantiate this complaint and this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
. The
Court also notes that the remainder of the complaint, in so far as it relates
to the applicant’s detention in the Katowice and Czestochowa Remand Centres was
reintroduced within the six-month period (see paragraphs 123-127).
2. Non-exhaustion of domestic remedies
(a) The Government’s preliminary objection
. In
their initial observations of 29 May 2007 the
Government formulated this objection in the same way as they did in the cases
of Sławomir Musiał v. Poland (no. 2830/06, §§ 67-69, 20 January 2009) and Orchowski v. Poland (cited
above, §§ 95-98).
. In
particular, they stressed that before lodging his Article 3 application
with the Court the applicant should have: (1) made an application to the
Constitutional Court under Article 191, read in conjunction with Article 79 of
the Constitution, asking for the 2006 Ordinance to be declared
unconstitutional; (2) brought a civil action seeking compensation for the
infringement of his personal rights, namely his dignity and health, under
Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of
that Code; and (3) used remedies provided by the Code of Execution of Criminal
Sentences, such as an appeal against any unlawful decision issued by the prison
administration or a complaint to the relevant penitentiary judge about being
placed in a particular cell in prison, or a complaint about prison conditions
to the authorities responsible for the execution of criminal sentences or to
the Ombudsman.
. In
view of the foregoing, the Government invited the Court to reject the
application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1
of the Convention.
. In
their further observations, the Government did not refer to the fact that on 22
December 2009, 23 December 2009 and 24 December 2009 the applicant had
lodged three civil actions for compensation, of which he had informed the
Court.
(b) The applicant
The applicant confirmed that he had filed civil
claims for compensation for the infringement of his personal rights on account
of the degrading conditions of his detention and that those proceedings were unsuccessful
(c) The Court’s assessment
. The
Court has already examined a similar objection based on exhaustion of domestic
remedies raised by the Government in the above‑mentioned case of Łatak v. Poland and
considered their arguments not only in the context of that particular applicant
but also in respect of other actual or potential applicants with similar
complaints (see Łatak v. Poland, cited above, §§ 71-85).
. In the context of Polish cases involving
complaints about conditions of detention, including overcrowding, the Court has
already held that, in cases where an applicant has been either released or
placed in conditions compatible with the requirements of Article 3 of the
Convention, a civil action under Article 24 read in conjunction with Article
448 of the Civil Code can be considered an effective remedy for the purposes of
Article 35 § 1 of the Convention. However, given that the relevant
practice of the Polish civil courts developed gradually over time, the Court
held that this remedy could be regarded as effective only as from 17 March
2010. It also held that only those applicants in respect of whose civil claims
the 3‑year limitation period as set by the Polish law had not yet expired
were required to make use of the civil action relied on by the Government (see Orchowski
v. Poland, cited above, § 154; Łatak v. Poland, cited above, §§
79-81 and 85 and more recently D.G. v. Poland, no. 45705/07, §§
119-120, 12 February 2013).
(i) Katowice Remand Centre
. The
Government admitted that the applicant had been placed in overcrowded cells at
times. However, during his detention in the Katowice Remand Centre as from 5
November 2009 until 30 March 2010 (when he was released) he had been
placed in cells in which the statutory minimum space of 3 m² per person had
been secured (see paragraphs 58 and 74 above). The Court further notes that the
applicant’s complaint was introduced on 17 October 2010 (see
paragraph 111 above). Consequently, the applicant should have, before having
his Convention claim examined by this Court, sought redress at domestic level
and brought a civil action for compensation for the infringement of his
personal rights under Article 24 taken in conjunction with Article
448 of the Civil Code (see paragraph 122 above).
. In
this respect the Court observes that the applicant had lodged a civil action
for infringement of the personal rights caused by the conditions of detention
in the Katowice Remand Centre. In the course of the relevant proceedings the
applicant’s appeal against the Katowice Regional Court’s judgment was rejected
by the Katowice Court of Appeal on formal grounds on 30 September 2010 (see
paragraph 65 above).
In view of
the above, the Court considers that the applicant failed to properly use the
remedy which was available and sufficient to afford redress for the breaches
alleged, namely a civil action for compensation for the
infringement of his personal rights under Article 24 taken in
conjunction with Article 448 of the Civil Code (Pustelnik v. Poland
(dec.), no. 37775/09, 23 October 2012, § 48). Consequently, the
complaint about overcrowding in the Katowice Remand Centre must be rejected
under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of
domestic remedies.
(ii) Częstochowa Remand Centre
. The Court observes that the applicant was released
from the Czestochowa Remand Centre on 24 January 2008 (see paragraph 58 above).
The Court further notes that the applicant’s complaint about overcrowding in
this detention facility was introduced on 17 October 2010 (see
paragraph 111 above). Consequently, the applicant should have, before having
his Convention claim examined by this Court, sought redress at domestic level
and brought a civil action for compensation for the infringement of his
personal rights under Article 24 taken in conjunction with Article 448 of the
Civil Code (see paragraph 122 above).
. In
this respect the Court observes that that the applicant had lodged a
civil action for infringement of the personal rights caused by the conditions
of detention in the Czestochowa Remand Centre. However, in
the course of the relevant civil proceedings the applicant failed to appeal
against the Czestochowa Regional Court’s judgment of 31 March 2010 (see paragraph
66 above).
In view of the above, the Court considers that
the applicant failed to properly use the remedy which
was available and sufficient to afford redress for the breaches alleged, namely
a civil action for compensation for the infringement of
his personal rights under Article 24 taken in conjunction with
Article 448 of the Civil Code (see Pustelnik v. Poland, cited
above, § 48). Consequently, the complaint about overcrowding in the Częstochowa
Remand Centre must be rejected under Article 35 §§ 1 and 4 of the Convention
for non‑exhaustion of domestic remedies.
(iii) Bytom Remand Centre
. In the above detention centre the situation giving
rise to the alleged violation of Article 3 ended on 25 March 2008 when the
applicant was placed in cells
in which the statutory minimum space of 3 m² per person had been secured (see
paragraph 72 above). The Court notes that the applicant introduced this
complaint in his letter of 28 January 2008. The Court
considers, therefore, that since the relevant civil action under Articles 24
and 448 of the Civil Code could be regarded as effective only from 17 March
2010 (see paragraph 122 above) and is now is barred by a three-year statute of
limitation, the applicant cannot presently be required to avail himself of the
civil remedy in question (see Grzywaczewski v. Poland, no. 18364/06, § 66, 31 May
2012; Musiałek and Baczyński v. Poland, no. 32798/02, §§ 113-14, 26
July 2011; and Mirosław Zieliński v. Poland, no. 3390/05, § 46, 20 September
2011).
. Accordingly,
the Court dismisses the Government’s preliminary objection as to the
non-exhaustion of domestic remedies as regards the Bytom Remand Centre.
(iv) Wojkowice Remand Centre
. In
the present case the situation giving rise to the alleged violation of Article
3 ended on 11 March 2009 when the applicant was placed in cells in which
the statutory minimum space of 3 m² per person had been secured (see paragraph
73 above). The Court notes that the applicant introduced this complaint in his
letter of 19 January 2009. The Court considers,
therefore, that since the relevant civil action under Articles 24 and 448 of
the Civil Code could be regarded as effective only from 17 March 2010 (see paragraph
122 above) and is now is barred by a three-year statute of limitation, the
applicant cannot presently be required to avail himself of the civil remedy in
question (see Grzywaczewski v. Poland, cited above, Musiałek
and Baczyński v. Poland, cited above, and Mirosław
Zieliński v. Poland, cited above).
. Accordingly,
the Court dismisses the Government’s preliminary objection as to the
non-exhaustion of domestic remedies as regards the Wojkowice Remand Centre.
3. The Court’s conclusion on admissibility
. The
Court concludes that the complaint about detention in overcrowded cells in the
Bytom and Wojkowice Remand Centres is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring
it inadmissible has been established.
B. Merits
1. The parties’ submissions
(a) The applicant
. The
applicant submitted that the conditions of his detention had fallen short of
standards compatible with Article 3 of the Convention. In particular, he
complained that he had been detained in overcrowded cells.
(b) The Government
. The
Government acknowledged that between 24 January and 13 February 2008, on
29 February 2008, between 21 and 25 March 2008, on 5 January 2009, between 20
January and 8 February 2009, on 19 February 2009 and between 7 and 11
March 2009 the space per person in the applicant’s cells had been inferior to
3m². They argued, however, that the time the applicant had spent in overcrowded
cells had not been significant.
2. The Court’s assessment
. The
Court observes that in the present case, as acknowledged by the Government, at
times (in total for 47 days) the applicant had been afforded less than 3 m² of personal space (see paragraph
135 above).
. The
Court has already found in its two pilot judgments in the cases of Orchowski v. Poland and
Norbert Sikorski v. Poland that, for many years, namely from 2000 until at least
mid-2008, the overcrowding in Polish prisons and remand centres had revealed a structural
problem consisting of “a practice that [was] incompatible with the Convention”
(see Norbert Sikorski, cited above, §§ 155–156).
. In
its previous cases where applicants had at their disposal less than 3 m² of
personal space, the Court found that the overcrowding was so severe
as to justify of itself a finding of a violation of Article 3 of the Convention
(see, among many others, Lind v. Russia, no.25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no.
37213/02, §§ 50–51, 21 June 2007; Andrey Frolov
v. Russia, no. 205/02, §§ 47–49, 29 March
2007; Labzov v. Russia, no. 62208/00, § 44, 16 June 2005).
. Having
regard to its case-law on the subject and the facts of the present case, the
Court notes that the applicant spent some 47 days in total in cells in which he
was exposed to the conditions described above, which in the Court’s view
amounted to degrading treatment contrary to Article 3 of the Convention.
. There
has accordingly been a violation of Article 3 of the Convention on account of
the conditions in which the applicant had been detained in the Bytom and
Wojkowice Remand Centres.
III. ALLEGED
VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE
APPLICANT’S PRE-TRIAL DETENTION
Invoking Article 5 § 3 of the Convention, the applicant
complained that his pre-trial detention had been excessively lengthy and that
the courts had not given relevant and sufficient reasons for keeping him in
custody.
Article 5 § 3 of the Convention, in so far as relevant, reads:
“Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ... entitled
to trial within a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.”
The Government contested that argument.
A. Admissibility
143. The Government did
not contest the admissibility of this complaint.
The Court notes
that this complaint is not manifestly ill-founded within the meaning of Article
35 § 3 (a) of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
The applicant was detained on remand in three
sets of criminal proceedings against him.
The applicant was continually detained, without
interruption, under detention orders given both in the first-instance and in
the appellate proceedings for 9 years and some 4 months lasting from 27
December 2000, when he was arrested on suspicion of robbery in the first case,
to 30 March 2010, when he was released under police supervision in the third
case (see paragraphs 7-40 above). During that time he also served, between
7 December 2006 and 10 January 2008, a sentence of imprisonment
imposed in the first case (see paragraph 19 above).
However,
only the following period of the applicant’s detention falls within the scope
of Article 5 § 3 of the Convention: between 27 December 2000 (when the applicant was arrested in the first case) and 28
February 2003 (when he was convicted by the Sosnowiec District Court in the
first case), from 23 April 2004 (when the Katowice Regional Court
quashed the first instance conviction in the first case) to 27 January
2006 (when the Sosnowiec District Court convicted him again in the first case)
and between 15 January 2009 (when the Katowice Court of Appeal quashed his
first instance conviction in the second case) until his release from
detention on 30 March 2010 (see paragraphs 8, 13, 15, 18, 29, 45 above).
2. The parties’ submissions
(a) The applicant
The applicant maintained that the length of his
pre-trial detention was excessive and unreasonable. He stressed that the Polish
courts failed to give valid reasons for keeping him in custody for the entire
period and that their decisions had been a repetition of the same grounds.
(b) The Government
The Government maintained
that in the present case all the criteria for the application and extension of
pre-trial detention had been met. The applicant’s detention was justified by
the reasonable suspicion that the applicant had committed the offences with
which he had been charged, the serious nature of the offences and the severity
of the anticipated penalty. In their opinion the case had been very complex due
to the fact that it concerned an organised criminal group. The proceedings had
been conducted in different courts in Poland which had also contributed to the
length of the proceedings and in consequence had an impact on the length of the
applicant’s detention.
. Lastly,
in the Government’s opinion, the domestic authorities showed special diligence
in the case. In their opinion, the applicant contributed to the excessive length
of the proceedings, in particular by lodging numerous motions to change the
preventive measure and to release him.
3. The Court’s assessment
(a) General principles
The Court recalls that the general principles
regarding the right “to trial within a reasonable time or to release pending
trial, as guaranteed by Article 5 § 3 of the Convention were stated in a number
of its previous judgments (see, among many other authorities, Kudła v.
Poland, cited above, § 110 et seq.; and McKay v. the United
Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(b) Application of the above principles in the
present case
In their detention decisions given in all sets
of the proceedings against the applicant, the authorities, in addition to the
reasonable suspicion against the applicant, relied continually on four
principal grounds, namely (1) the serious nature of the offences with which he
had been charged, (2) the severity of the penalty to which he was liable
(3) the need to secure the proper conduct of the proceedings in view of the
risk that the applicant might attempt to obstruct them by bringing pressure to
bear on witnesses and (4) the complexity of the case (see paragraphs 9, 22,26,
27, 34, 41, 43, 44 above).
The Court notes at the outset, that contrary to
the case of Idalov (Idalov v. Russia [GC], no. 5826/03, 22
May 2012) the applicant’s detention on remand did not constitute multiple periods of pre-trial detention applied in one set of
criminal proceedings, but the applicant was detained on remand in three,
partially overlapping, sets of criminal proceedings against him,
concerning different charges. During the initial 2 years and 2 months of the
applicant’s detention on remand, he was detained only in the first set of the
proceedings (see paragraph 147 above). During the second
period, until 22 November 2004, he was detained cumulatively in the first and
the second set of the proceedings and subsequently only in the second set (see paragraph
15, 17, 18, 22 and 147 above). After 15 January 2009, the applicant remained in
custody under a detention order given in the third set of the proceedings (see
paragraphs 29, 41 and 147 above).
The applicant was charged with several offences
involving, among other things, robbery, theft and causing bodily harm committed
together with two other persons in the first set of criminal proceedings (see paragraph
8 above) but also robbery, battery and extortion committed in an organised
criminal group (in the second and third set of the proceedings) (see paragraphs
21, 34 above).
In this respect the Court notes that while in
the first set of the proceedings the applicant was charged with a series of
offences committed together with two co-accused, he was not charged with being
a member of an organised criminal group (see a contrario Bąk v. Poland, no. 7870/04, § 57, 16 January 2007) (see paragraph 9
above).
. The
Court further accepts that the reasonable suspicion against the applicant
of having committed serious offences could initially warrant his detention.
Also, the need to secure the proper conduct of the proceedings, in particular
the process of obtaining evidence from witnesses, constituted a valid ground
for the applicant’s initial detention. However, while all the above factors
could warrant even a relatively long period of detention, they did not give the
domestic courts an unlimited power to prolong this measure. As regards the risk
that the applicant would tamper with evidence or otherwise obstruct the
proceedings, the Court is not persuaded that it constituted a valid ground for
the entire length of the first period of his pre‑trial detention. While
such risk, might possibly be accepted as the basis for his detention at the
initial stages of the proceedings, the Court is not
persuaded that it can justify the entire period of the applicant’s detention in
the first set of the proceedings.
Having regard to the foregoing, the Court
concludes that the grounds given by the domestic authorities in the first set
of the proceedings could not justify that period of the applicant’s detention.
In these circumstances it is not necessary to examine whether the proceedings
were conducted with special diligence.
With reference to the second and third set of
criminal proceedings against the applicant, the Court observes that in those
proceedings the applicant was charged with acting in an organised criminal
group (see paragraphs 21 and 34 above). The Court
considers that in such proceedings the authorities are faced with the difficult
task of determining the facts and the degree of alleged responsibility of each
of the defendants (see, Bak, cited above, § 60). For these reasons, the
Court accepts that the need to obtain evidence from many sources, coupled with
the existence of a general risk flowing from the organised nature of the
applicant’s alleged criminal activities, constituted relevant and sufficient
grounds for prolonging his detention. In addition, the risk of obstructing
proceedings may be much higher if there is a serious suspicion that several
accused acted in organised criminal group, as such group may try to resort to
different unlawful means to try to prevent the prosecuting authorities from
establishing the facts (see Kowrygo v. Poland, no. 6200/07, § 69, 26 February 2013).
. The
foregoing considerations are sufficient for the Court to conclude that the
grounds given for the applicant’s pre-trial detention in the second and the
third set of the proceedings were “relevant” and “sufficient” to justify
holding him in custody.
. It
therefore remains to be ascertained whether the national authorities displayed
“special diligence” in the conduct of the proceedings.
. In
this regard, the Court observes that the proceedings were of significant
complexity, regard being had to the number of co-accused and the fact that they
concerned numerous charges against them. The Court further does not discern any
significant periods of inactivity in the investigation or the initial phase of
the trial. For these reasons, the Court considers that during the relevant
period the domestic authorities handled the applicant’s case with necessary
diligence.
. Having
regard to the foregoing, the Court considers that there has been a
violation of Article 5 § 3 of the Convention in respect of the first period of
the applicant’s detention on remand (until 28 February 2003) and no violation of Article 5 § 3 of the Convention as regards the
remainder of his detention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION OF THE LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT
The applicant further complained under Article
6 § 1 of the Convention that the length of the second set of the criminal
proceedings against him had exceeded a “reasonable time” within the meaning of
this provision.
Article 6 § 1, in so far as relevant, states:
“In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...” ...
By letter dated 5 September 2011 the Government
informed the Court that they proposed to make a unilateral declaration with a
view to resolving the issue raised by this part of the application. They
further requested the Court to strike out the application in accordance with
Article 37 of the Convention.
The declaration, in so far as relevant, read as follows:
“ the Government hereby wish to express - by way of the
unilateral declaration - their acknowledgement of the fact that the length of
criminal proceedings against the applicant was not compatible with a “reasonable
time” requirement within the meaning of Article 6 § 1 of the Convention.
In these circumstances, and having particular regard to
violation of Article 6 § 1 of the Convention, the Government declare that they
offer to pay the applicant the amount of PLN 20,000 (twenty thousand Polish
zlotys), which they consider to be reasonable in the light of the Court’s
case-law ... .
The sum referred to above, which is to cover any pecuniary and
non-pecuniary damage as well as the costs and expenses, will be free from any
taxes that may be applicable. It will be payable within 3 months from the date
of notification of the decisions taken by the Court pursuant to Article 37 § 1
of the ... Convention. In the event of failure to pay this sum within the said
three-month period, the Government undertake to pay simple interest on it, from
expiry of that period until settlement, at the rate equal to the marginal
lending rate of the European central bank during the default periods plus three
percentage points.”
The applicant did not accept the Government’s
declaration and maintained that, given the considerable prejudice he had
suffered, the sum offered was insufficient for the purposes of just
satisfaction for the alleged violation.
The Court recalls that Article 37 of the
Convention provides that it may at any stage of the proceedings decide to
strike an application out of its list of cases where the circumstances lead to
one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the Court in particular
to strike a case out of its list if:
“for any other reason established by the Court, it is no longer
justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike
out an application under Article 37 § 1 (c) on the basis of a
unilateral declaration by a respondent Government even if the applicant wishes
the examination of the case to be continued.
To this end, the Court examined carefully the declaration in
the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin
Acar v. Turkey [GC], no. 26307/95, §§ 75-77,
ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.),
no. 11602/02, 26 June 2007; and Sulwińska v. Poland
(dec.), no. 28953/03).
The Court has established in a number of cases,
including those brought against Poland, its practice concerning complaints
about the excessive length of proceedings. Having
regard to the nature of the admissions contained in the Government’s
declaration, as well as the amount of compensation proposed – which is
consistent with the amounts awarded in similar cases – the Court considers that
it is no longer justified to continue the examination of this part of the
application (Article 37 § 1 (c)).
Moreover, in light of the above considerations,
and in particular given the clear and extensive case-law on the topic, the
Court is satisfied that respect for human rights as defined in the Convention
and the Protocols thereto does not require it to continue the examination of
this part of the application (Article 37 § 1 in fine). Accordingly, it
should be struck
out of the list.
V. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION ON ACCOUNT OF CENSORSHIP OF THE APPLICANT’S CORRESPONDENCE
The applicant further alleged a breach of
Article 8 of the Convention on account of the censorship of his correspondence
with the Ombudsman and the Court.
Article 8, in so far as relevant, states:
“1. Everyone has the right to respect for ... his
correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Admissibility
1. The Government’s preliminary objection on
exhaustion of domestic remedies
The
Government, as they did in previous similar cases involving complaints about
routine censorship of a detainee’s correspondence, argued that the applicant
failed to comply with the requirements of Article 35 § 1 because he had not
lodged an action for the protection of his personal rights under Article 24
read in conjunction with Article 448 of the Civil Code. In essence, they
repeated the observations that they had already made in other cases (see, for
instance, Lewak v. Poland, no. 218990/03, 6 September 2007, §§
21–22; Misiak v. Poland, no. 43837/06, 3 June 2008, §§ 15–16; Pasternak
v. Poland, 42785/06, 16 July 2009, §§ 24–26; Biśta, cited
above, § 26; and Piechowicz, cited above, § 224), maintaining that
it had been open to the applicant to obtain redress at domestic level by means
of that remedy.
2. The applicant
The applicant maintained that at the time of
lodging his application he had not been aware of the existence and availability
of the remedy advanced by the Government.
3. The Court’s assessment
The rule of exhaustion of domestic remedies referred
to in Article 35 § 1 of the Convention requires an applicant first to use
the remedies provided by the national legal system. It is based on the
assumption that the domestic system provides an effective remedy in respect of
the alleged breach (see Biśta, cited above, § 44, with further
references).
. The
Court has held that applicants with similar complaints based on interferences
which occurred after 28 June 2007 are required to avail themselves of the
provisions of Articles 23 and 24 § 1 read in conjunction with Article 448 of
the Civil Code, failing which they will be considered to have failed to exhaust
domestic remedies, as required by Article 35 § 1 of the Convention (see Biśta v.
Poland, § 49, cited above).
. The
Court further observes that the present case did not concern “continued
censorship” (see in contrast Piechowicz, cited above, § 223),
but rather two interferences within four years of one another.
. The
Court notes that the first alleged interference with the applicant’s
correspondence occurred on around 9 July 2004 (see paragraph 46 above), that is, before 28 June 2007. Accordingly the remedy was not
available to the applicant at the material time (see Hinczewski v. Poland, no. 34907/05,
§ 30, 5 October 2010). For these reasons, the Government’s plea of
inadmissibility on the ground of non-exhaustion of domestic remedies with
respect to the first letter must be dismissed.
The Court concludes therefore that the
complaint about censorship of the applicant’s letter of 9 July 2004 is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. No other ground for declaring it inadmissible has been established.
. The
second alleged interference occurred on an unspecified date following
17 January 2008 (see paragraph 49 above), that
is after the relevant date (28 June 2007) set out in the Biśta judgment.
. That
being so, the Court considers that the applicant should, as required by Article
35 § 1, put the substance of his Convention claim under Article 8 before the
domestic courts. It follows that the complaint about censorship of the letter
of 17 January 2008 must be rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
B. Merits
1. The parties’ arguments
The applicant in general maintained that the
censorship of his correspondence with the Ombudsman had been unlawful and
arbitrary.
The Government did not make any observations on
the merits of the complaint.
2. The Court’s assessment
(a) General principles deriving from the Court’s
case-law
Any “interference by a public authority” with
the exercise of the applicant’s right to respect for his correspondence will
contravene Article 8 § 1 unless it is “in accordance with the law”, pursues one
or more of the legitimate aims referred to in paragraph 2 and is “necessary in
a democratic society” in order to achieve them (see, among many other
authorities, Enea v. Italy [GC], no. 74912/01, ECHR 2009-...,
§ 140, with further references and Jarkiewicz v. Poland, no.
23623/07, 6 July 2010, § 72, with further references).
(b) Application of the above principles in the
present case
(i) Existence of interference
The applicant produced an envelope of a letter
stamped “censored” that he had received from the Ombudsman (see paragraph
46 above).
The Court
has already held in many previous similar cases that as long as the Polish
authorities continue the practice of marking detainees’ letters with the
“censored” stamp, it has no alternative but to presume that those letters have
been opened and their contents read (see Matwiejczuk
v. Poland, no. 37641/97,
§ 99, 2 December 2003; Pisk-Piskowski
v. Poland, no. 92/03, § 26, 14 June 2005; Michta v. Poland, no. 13425/02, § 58, 4 May 2006;
and Friedensberg v. Poland, no. 44025/08, 27 April 2010, § 36, and Piechowicz,
cited above, § 234). There has
accordingly been an interference with the applicant’s right to respect for his
correspondence for the purposes of Article 8.
(ii) Whether the interference was “in accordance with
the law”
Pursuant to Article 102 (11) read in
conjunction with Article 214 § 1 of the Code of Execution of
Criminal Sentences, a detainee has the right to conduct uncensored
correspondence with the investigating authorities (e.g. the police and the
prosecution), courts, other State or self‑government authorities and the
Ombudsman. Under Article 103 read in conjunction with Article 214 § 1 of that
Code, a detainee’s correspondence with institutions set up by international
treaties ratified by Poland concerning the protection of human rights shall not
be censored (see Kwiek v. Poland, no. 51895/99, 30 May 2006, §§ 23-24).
(iii) The Court’s conclusion
Since in respect of the above letter the
authorities acted against the explicit legal prohibition, their interference
was not “in accordance with the law” and therefore in breach of Article 8.
Consequently, it is not necessary to examine whether the other requirements of
that provision were complied with.
VI. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
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 1,124,500 Polish zlotys [256,735
euros (EUR)] in respect of non-pecuniary damage.
The Government considered that the sum
requested was exorbitant.
The Court awards the applicant EUR 10,000 in
respect of non‑pecuniary damage.
B. Costs and expenses
Since the applicant did not ask for
reimbursement of costs and expenses incurred before the domestic courts or in
the proceedings before the Court, there is no reason to make any award under
this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Takes note of the terms of
the respondent Government’s unilateral declaration as regards the complaint under Article 6 § 1 of the Convention
concerning the excessive length of the proceedings and of the modalities for
ensuring compliance with its undertakings;
2. Decides to strike
this part of the application out of its list of cases in accordance with
Article 37 § 1 (c) of the Convention;
3. Declares the complaints: under Article 3 of
the Convention, concerning the imposition of the “dangerous detainee” status and
the overcrowding during the applicant’s detention in the
Bytom and Wojkowice Remand Centres, under Articles 5 § 3, 6 § 1 and 8
(censorship of the Ombudsman’s letter) of the Convention admissible and the
remainder of the application inadmissible;
4. Holds that there has been a violation of
Article 3 of the Convention in respect of overcrowding in the Bytom and
Wojkowice Remand Centres;
5. Holds that there has been a violation of
Article 3 of the Convention concerning the imposition of
the “dangerous detainee” regime on the applicant;
6. Holds that there has been a violation of Article 5 § 3 of the
Convention as regards the first period of the applicant’s detention on remand;
7. Holds that there has been no violation of Article 5 § 3 of the
Convention in respect of the remainder of the applicant’s detention on remand;
8. Holds that there has been a violation of
Article 8 of the Convention (censorship of the Ombudsman’s letter);
9. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 10,000
(ten thousand euros) to be converted into the currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
10. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 28 October 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ineta
Ziemele
Deputy Registrar President
