Communicated on 7 July 2014

FOURTH SECTION

Application no. 10034/09 Sylwester FLIS against Poland lodged on 22 January 2009

STATEMENT OF FACTS

The applicant, Mr Sylwester Flis , is a Polish national, who was born in 1980 and is currently detained in the Lublin Remand Centre .

A. The circumstances of the case

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

1. Background to the case and the applicant ’ s arrest and detention

The first period of his detention lasted from 14 January until 18 August 2000. Subsequently, the applicant was at liberty and went into hiding.

On 22 May 2001 the Lublin Regional Court decided to detain the applicant for a period of three months with a reservation that this period was to be calculated from the date on which the applicant would be arrested.

On 19 October 2004 the Lublin Regional Court issued a European Arrest Warrant against the applicant.

On 28 September 2006 the applicant was arrested in Spain and detained on remand.

On 3 November 2006 he was transferred to Poland and detained in the Lublin Remand Centre.

The applicant was charged with murder, participation in a brawl which caused a serious bodily injury and unlawful release from detention ( bezprawne uwolnienie siÄ™ ).

2. First set of criminal proceedings

On 22 December 2006 a bill of indictment against the applicant was lodged with the Lublin Regional Court.

On 19 March 2008 the Lublin Regional Court convicted the applicant as charged and sentenced him to 15 years ’ imprisonment.

The applicant appealed.

On 7 October 2008 the Lublin Court of Appeal quashed the first-instance judgment and remitted the case for re-examination. In respect of the offence of unlawful release from detention, the court quashed the first-instance judgment only as regards the punishment imposed on the applicant.

On 20 September 2011 the Lublin Regional Court convicted the applicant of murder and participation in a brawl which caused a serious bodily injury and sentenced him to 15 years ’ imprisonment.

Subsequently, on 13 December 2011 the Lublin Regional Court extended the applicant ’ s detention.

The applicant appealed against the first-instance judgment.

On 30 May 2012 the Lublin Court of Appeal dismissed the applicant ’ s appeal.

The applicant lodged a cassation appeal with the Supreme Court.

On 5 April 2013 the Supreme Court dismissed the applicant ’ s cassation appeal as manifestly ill-founded.

3. Second set of criminal proceedings

This set of proceedings is a continuation of the first set of proceedings referred to above as regards the charge of unlawful release from detention, following the judgment given by the Lublin Court of Appeal on 7 October 2008.

On 23 April 2010 the Lublin Regional Court, after re-examination of the case, gave judgment. It sentenced the applicant to 2 years ’ imprisonment.

The applicant appealed against the first-instance judgment.

On 4 August 2010 the Lublin Court of Appeal dismissed the applicant ’ s appeal.

The applicant lodged a cassation appeal which was dismissed by the Supreme Court on 29 June 2011.

4. The overall period of the applicant ’ s detention on remand

The applicant was arrested and detained in Spain on 28 September 2006. On 3 November 2006 he was transferred to Poland and still detained. On 19 March 2008 the applicant was convicted by the first instance judgment. Since then he was "convicted by a competent court". On 7 October 2008 the conviction was quashed by the second instance court. In this set of proceedings the applicant was convicted again on 20 September 2011. However, on 23 April 2010 he was convicted in a second set of criminal proceedings against him.

5. The applicant ’ s actions against his detention on remand

As regards the detention after the applicant ’ s apprehension in Spain, it was extended on 2 January 2007, 19 February and 18 November 2008, on 17 February, 15 May and 12 November 2009, on 17 November 2010, on 12 January, 14 September and on 13 December 2011, by the decisions of the Lublin Regional Court. The pre-trial detention was also extended by the decisions of the Lublin Court of Appeal of 10 September 2008 and 29 February 2012. The courts extending the detention relied on the reasonable suspicion that the applicant had committed the offences in question. They attached importance to the risk that he could attempt to obstruct the proceedings.

On 8 December 2009 the Lublin Regional Court refused the applicant ’ s request for release.

On 31 August 2010 the Lublin Regional Court refused the applicant ’ s request to vary the preventive measure applied to him.

On 11 March, 3 June and 2 December 2009, on 1 December 2010, on 2 February and on 5 October 2011 the Lublin Court of Appeal dismissed the applicant ’ s interlocutory appeals against the Lublin Regional Court ’ s decisions of 17 February, 15 May and 12 November 2009, of 17 November 2010, of 12 January and 14 September 2011 respectively.

6. Imposition of the so-called “dangerous prisoner” regime

On 7 November 2006 the Lublin Remand Centre Penitentiary Commission classified the applicant as “dangerous prisoner”.

Afterwards the Commission reviewed and upheld this decision on numerous occasions.

The applicant appealed against the decision of 30 June 2011 on the extension of the imposition of the “dangerous prisoner” regime on him. On 12 September 2011 the Lublin Regional Court dismissed the appeal. The court found that the decision had been issued by the competent authority, in the appropriate form and in accordance with the relevant provisions of law.

On 29 December 2011 the Lublin Remand Centre Penitentiary Commission lifted the imposition of the “dangerous prisoner” regime on the applicant. It relied on positive changes in the applicant ’ s behavior.

The applicant appealed against the decision. He submitted that for the five years which preceded the challenged decision, the regime of a "dangerous detainee" had been applied to him without reasons.

On 13 February 2012 the Lublin Regional Court dismissed the appeal finding that the applicant ’ s appeal in fact had aimed at challenging all previous decisions by which the application of the special regime was extended.

7. Particular aspects of the regime

The applicant was detained in several detention facilities, i.e. in the Lublin Remand Centre, in the Radom Remand Centre and in the Warsaw - Mokotów Remand Centre.

( a) Lublin Remand Centre

The applicant was detained in the Lublin Remand Centre between 17 November 2006 and 26 May 2008 and subsequently from 4 August 2008 until now.

The cells in which the applicant was kept under the “dangerous prisoner” regime were deprived of fresh air and natural light. The windows were covered by a plastic blind, which made the cells very hot during the summer.

The sanitary corners were not separated from the rest of the cells. The cells, including their sanitary facilities, were constantly monitored via closed-circuit television.

The applicant had to wear a red uniform designated for dangerous prisoners, which was not warm enough in winter time. He was subjected to a body search every time he left and entered the cell, which in practice meant that he had to strip naked in front of prison guards and was required to carry out deep knee-bends. The applicant, whenever he was outside his cell, including his appearances at court hearings or medical visits, wore the so-called “joined shackles” on his hands and feet. Those shackles consisted of handcuffs and fetters joined together with chains. No educational or cultural activities were available. Wherever the applicant was, a prison officer always accompanied him.

The applicant ’ s hair had to be cut. He had a right to an hour-long exercise in concrete yard. He had also access to a daily recreation room thrice a week. He had no access to hot water, no sportswear, no skipping rope, no dumbbells.

( b) Radom Remand Centre

The applicant was detained in the Radom Remand Centre between 26 May and 4 August 2008.

The cell in which he was kept was deprived of fresh air and natural light. The window was covered by a plastic blind, which made the cell very hot during the summer.

The cell was well – lit around-the-clock, so that the camera could record what was happening inside.

( c) Warsaw - Mokotów Remand Centre

The applicant was detained in the Warsaw – Mokotów Remand Centre between 7 and 17 November 2006.

The cell in which he was kept was deprived of fresh air and natural light. The window was covered by a plastic blind, which made the cell very hot during the summer.

8. Restrictions on the applicant ’ s contact with his family

On numerous occasions the applicant lodged complaints with the Governor of the Lublin Remand Centre, the Lublin Regional Inspectorate of Prison Service, the Lublin Regional Court and the Ombudsman, which concerned the possibility to receive visits from his family on public holidays instead of on Mondays. He also complained that he couldn ’ t have more than one visit per month.

On 29 October 2008 the Ombudsman dismissed the applicant ’ s complaint that he had not been allowed to receive visits from his family on public holidays instead of on Mondays. The Ombudsman found the complaint manifestly ill founded.

On an unspecified date in 2008 the applicant requested the Governor of the Lublin Remand Centre to enroll some people on his guest list. On 26 August 2008 the Governor of the Lublin Remand Centre refused to grant his request finding that the people who had been indicated by the applicant had not been members of his family. On 21 August 2008 the Governor of the Lublin Remand Centre again refused the applicant ’ s request to enroll some persons who had been indicated by the applicant on his guest list. The Governor noted that the persons had been sentenced to imprisonment and that they might have disturbed the security of the remand centre .

On 3 November 2008 the Lublin Regional Court dismissed the applicant ’ s appeal against the decision of 21 August 2008.

On 6 April 2009 the President of the Lublin Regional Court dismissed the applicant ’ s complaint of 16 March 2009 finding that the applicant had been treated as every other prisoner in the Lublin Remand Centre. He was allowed to have two visits per month, each visit from one person or one visit from two persons per month. Similar complaints had been dismissed on 10 October 2008 by the Lublin Regional Inspectorate of Prison Service and on 28 July 2008 by the Governor of the Lublin Remand Centre.

9. The applicant ’ s attempt to withdraw money from his account

On 22 December 2008 the applicant requested the Governor of the Lublin Remand Centre to withdraw from his bank account the amount of PLN 1.500,00 (approx. EUR 370.00) for his sister. The request was dismissed.

B. Relevant domestic law and practice

1. General rules

On 1 September 2003 provisions concerning the “dangerous detainee” regime for remand prisoners were added to the Code of Execution of Criminal Sentences (“the Code”). New Articles 212a and 212b of the Code regulated henceforth the main features of the status of such detainees which read, in so far as relevant, as follows:

Article 212 a

“1. The penitentiary commission shall classify a detainee as posing a serious danger to society or to the security of a remand centre . It shall review its decisions on that matter at least once every three months. The authority at whose disposal a detainee remains and a penitentiary judge shall be informed of decisions taken.

2. A detainee, referred to in paragraph 1, shall be placed in a designated remand centre ’ s ward or in a cell in conditions ensuring increased protection of society and the security of the remand centre . A penitentiary judge shall be informed about this placement.

3. A detainee who is suspected of committing an offence within an organised criminal group or organisation aimed at committing offences shall be placed in a remand centre in conditions ensuring increased protection of society and the security of the remand centre , unless particular circumstances militate against such placement.

4. The provisions of paragraphs 1 and 2 shall be applied to the detainee whose characteristics, personal circumstances, his/her behaviour while being detained in a remand centre or the degree of depravity pose a serious danger to society or to the security of a remand centre , and who:

( ... )

2) during the prior or current imprisonment posed a danger to the security of a prison or a remand centre in this way that:

( ... )

d) unlawfully released or tried to escape from a prison or a remand centre or while being convoyed outside a prison or a remand centre .

( ... )”.

Article 212 b

“1. In a remand centre a detainee referred to in Article 212a shall be kept in the following conditions:

1) cells and places designated for work, study, walks, visits, religious services, religious meetings and religious classes, as well as cultural and educational activities, physical exercise and sports, shall be equipped with adequate technical and protective security systems;

2) cells shall be controlled more often than those in which detainees [not classified as “dangerous”] are kept;

3) a detainee may study, work, participate directly in religious services, religious meetings and classes, and participate in cultural and educational activities, exercise and do sports only in the ward in which he/she is kept;

4) a detainee ’ s movement within a remand centre shall be under increased supervision and shall be restricted to what is strictly necessary;

5) a detainee shall be subjected to a personal check ( kontrola osobista ) each time he/she leaves and enters his/her cell;

6) a detainee ’ s walk shall take place in designated areas and under increased supervision;

...

8) visits shall take place in designated areas and under increased supervision. While having visits which prevent direct contact with visitors (open visits), the detainee is not allowed to consume groceries. ... ;

9) a detainee may not use his/her own clothes or footwear”.

Articles 88 § 3, 88a and 88b of the Code contain the same rules in respect of convicted persons.

2. Monitoring and personal check

The relevant domestic law and practice concerning the monitoring of “dangerous detainees” and personal check are set out in the Court ’ s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 110-117, 17 April 2012), and Horych v. Poland (no. 13621/08, §§ 49-56, 17 April 2012).

3. As regards the detention on remand

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” ( Å›rodki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of KudÅ‚a v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; BagiÅ„ski v. Poland , no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 May 2006.

4. As regards the “iron saving box”

Article 126 of the Code on the Execution of Criminal Sentences ( Kodeks karny wykonawczy – “the Code”) provided, in so far as relevant:

“1. All financial sums received by convicted prisoners, except for the benefit referred to in Article 113 § 6 (1), shall be gathered and handed over to the prisoner on the day of his/her release from prison with the aim of paying for travel costs from prison to his/her place of residence and for [the prisoner ’ s] maintenance. The funds shall be gathered until they reach the amount of the official average salary; they shall be excluded from any debt collection procedure. At the request of the prisoner they may be paid into a bank deposit account.”

On 1 January 2012 Article 126 of the Code on the Execution of Criminal Sentences was amended and currently provides, in so far as relevant:

“1. All financial sums received by convicted prisoners, except for the funds referred to in Article 113 § 6 (1-3), shall be gathered and handed over to the prisoner on the day of his/her release from prison with the aim of paying for travel costs from prison to his/her place of residence and for [the prisoner ’ s] maintenance. The funds shall be gathered until they reach the amount of the official average salary; they shall be excluded from any debt collection procedure. At the request of the prisoner they may be paid into a chosen by him/her bank account or account book”.

COMPLAINTS

The applicant complains under Articles 3 and 8 of the Convention that the imposition of the “dangerous detainee” regime on him amounted to inhuman and degrading treatment and was in breach of this provision.

He also complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand.

He further complains under Articles 6 and 13 of the Convention that he was not served with the penitentiary commission ’ s decision and he could not effectively appeal against it and that it took the court too long to examine his appeals against the decisions of the commission. He also raises a complaint that he was not able to effectively challenge the penitentiary commissions ’ decisions classifying him as a “dangerous detainee” as they could be examined only on their conformity with law and not with facts.

He further complains under Article 1 of Protocol No. 1 to the Convention that his money are frozen on so called “iron saving box”.

QUESTIONS TO THE PARTIES

1. Having regard to the cumulative effect of the “dangerous detainee” regime imposed on the applicant from 7 November 2006 until 29 December 2011, has he been subjected to treatment contrary to Article 3 of the Convention? The parties are requested to refer in their observations to the leading judgment of Piechowicz v. Poland , no. 20071/07, 17 April 2012.

2. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

3. Having regard to the applicant ’ s complaint about a lack of fair trial in the proceedings before the penitentiary commission and a lack of an effective remedy against the decisions of the penitentiary commission to impose and extend the dangerous detainee regime:

a) Did the applicant have a fair hearing in the determination of his civil rights and obligations in accordance with Article 6 § 1 of the Convention? Reference is made to the case of Enea v. Italy [GC], no. 74912/01, § 107, ECHR 2009.

b) Did the applicant have at his disposal an effective domestic remedy as required by Article 13 of the Convention?

4. As regards Article 1 of the Protocol No. 1 to the Convention – “iron savings box”, h as the applicant been deprived of his possessions, within the meaning of Article 1 of Protocol No. 1 (see communication in cases Olszy ń ski v Poland , 35410/09 and Siemaszko v. Poland, 60975/08) ?

The Government are requested to provide a copy of the decision of 7 November 2006 by which the “dangerous detainee” regime was imposed on the applicant , as well as copies of the relevant decisions extending the application of the regime to the applicant until September 2011.