Communicated on 23 March 2018

FIRST SECTION

Application no. 34461/16 Kamil JUSIAK against Poland lodged on 30 May 2016

STATEMENT OF FACTS

The applicant, Mr Kamil Jusiak , is a Polish national who was born in 1992 and is detained in Goleniów Prison.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant started serving a prison sentence on 25 October 2014 in a semi-open prison ( zakład karny typu półotwartego ) in an unspecified location. It was the applicant ’ s first conviction leading to imprisonment.

On 4 February 2015 a prison commission ( komisj a penitencjarna ) assigned the applicant to a closed-type prison ( zakład karny typu zamkniętego ) in an unspecified location. This classification was extended every six months. The applicant was summoned before the Prison Commission and informed about the decision. He alleges that he did not receive copies of the decisions, and was not informed of the reasons or of his right to appeal.

On 2 March 2016 the Prison Commission of Nys a Prison assigned the applicant to a closed-type prison. The applicant appealed and requested a copy of the decision, which he received.

On 23 March 2016 the Prison Commission of Nys a Prison upheld its own decision.

On 15 April 2016 the Opole Regional Court ( Sąd Okręgowy ) upheld the challenged decision.

On 14 September 2017 the Prison Commission of Czarne Prison allowed the applicant to take a cookery training course. He remains detained in a closed ‑ type prison.

The applicant submitted that he had complained to the prison director on multiple occasions about the strip searches. The director, however, had dismissed his complaints and considered that the practice had not been degrading, humiliating or inhuman.

B. Relevant domestic law and practice

A prison commission op erates on the basis of Articles 75 and 76 of the Code of Execution of Criminal Sentences (“the Code”) and the Ordinance of the Minister of Justice of 25 August 2003 on the rules concerning the execution of prison sentences ( Rozporządzenie w sprawie regulaminu organizacyjno-porządkowego wykonywani a kary pozbawieni a wolności , “ the old Ordinance”), replaced by the Ordinance of 21 December 2016, which entered into force on 1 January 2017 (“the new Ordinance”). According to the relevant provisions of the old Ordinance (Sections 36-38) and the new Ordinance (Sections 37-39) the prison commission is established and headed by the prison governor, who decides on the composition of the commission and the mode of examination of cases. The prison commission delivers its decision and gives its opinion after hearing the prisoner concerned, and in his presence. The decisions and opinions shall be reasoned and delivered in writing. They are included in the prisoner ’ s personal records.

A decision to assign each convicted person to a particular prison type and imprisonment regime lies with the prison commission, unless the trial court had ruled on that matter in the judgment (Article 76 § 1 (1) of the Code). There are open, semi-open and closed prisons, the difference between them being the level of security and isolation of the prisoners and the scope of their rights and duties (Article 70 §§ 1 and 2 of the Code).

Some elements of detention in the closed-type prison are laid down in Article 88b of the Code, which before the amendment read as far as relevant:

“In a closed-type prison the convicted persons described in Article 88 a § 2 serve their sentence in the following conditions:

1) the cells and places designated for work, learning, outdoor exercise, visits, religious services, meetings and preaching and cultural, educational and sport activities shall be equipped with adequate security measures,

2) the cells remain closed at all times and are supervised more often [...]

3) convicted persons can learn, work, take part in religious services, meetings and preaching and in cultural, educational and sport activities only in the wing in which they are detained,

4) the movement of convicted persons on the prison premises shall take place under increased supervision and shall be limited only to necessary needs,

5) a convicted person shall be subject to a personal check each time they leave and return to their cells,

6) outdoor exercise shall take place in the designated areas under increased supervision,

...

10) convicted persons cannot wear their own clothes or shoes.”

Other relevant provisions concerning the closed-type prison are set out in the case Klibisz v. Poland , (see Klibisz v. Poland, no. 2235/02, §§ 262-263, 265-267 and 271, 4 October 2016).

COMPLAINT

The applicant complains under Article 3 of the Convention that the imposition of the closed-type prison regime amounted to inhuman and degrading treatment and was in breach of that provision. In particular, the regime involved daily and routine strip searches, monitoring of visits and telephone calls, censorship of correspondence, obligation to wear clothes provided by the prison, which were not always adequate for the weather, confinement to a cell for twenty-three hours per day and a restriction on the number of visits.

QUESTIONS TO THE PARTIES

1. Having regard to the cumulative effect of measures to which the applicant has allegedly been subjected while detained in a “closed-type” prison, in particular:

- confinement to a cell for twenty-three hours per day;

- strip search ( kontrol a osobista ) every time he leaves and enters his cell;

- the restricted number and nature of visits;

- monitoring of all correspondence, telephone calls and visits;

- no right to wear his own clothes, while, according to the applicant, the clothes provided by the prison do not protect him from high and low temperatures;

has he been subjected to treatment contrary to Article 3 of the Convention?

2. Do the above facts give rise to a violation of Article 8 of the Convention?

The parties are requested to refer in their observations to the principles established by the Court in Piechowicz v. Poland (no. 20071/07, 17 April 2012) and Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003 ‑ II).

The Government are invited to submit a copy of the decision of 4 February 2015 of the Prison Commission and of any other decisions concerning the applicant ’ s classification to a closed-type prison regime.