Communicated on 7 July 2014

FOURTH SECTION

Application no. 12120/11 Robert KWIEK against Poland lodged on 6 February 2011

STATEMENT OF FACTS

The applicant, Mr Robert Kwiek , is a Polish national, who was born in 1964 and is currently detained in the Warszawa Remand Centre.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On an unspecified date in 1994 the applicant was arrested in Ukraine. On 11 November 1994 he was transferred to Poland and detained in the Lublin Remand Centre. Subsequently, he was detained in the Radom Remand Centre, the Warsaw- Białołę ka Remand Centre, the Tarnó w Prison and also the Rzeszó w Prison.

The applicant was convicted of several counts of murder and sentenced to life imprisonment.

2. Imposition of the so-called “dangerous detainee” regime

On 11 November 1994 the Lublin Remand Centre Penitentiary Commission ("the Commission") imposed on the applicant the “dangerous detainee” regime. The commission referred to the fact that the applicant had been searched by a wanted notice. The commission reviewed, and upheld its decision classifying the applicant as a “dangerous detainee” on several occasions. It referred to the fact that the applicant had been charged with numerous offences. It also stressed the applicant ’ s lack of moral character ( poziom zdemoralizowania )

It appears that the applicant appealed against two of the decisions.

On 14 December 2010 the Radom Regional Court dismissed the applicant ’ s appeal against the Radom Remand Centre Penitentiary Commission ’ s decision issued on an unknown date in 2010. The court held that the decision had been lawful and fully justified as the applicant had been several times convicted of murder and was sentenced to life imprisonment.

On 20 September 2011 the Lublin Regional Court dismissed the applicant ’ s appeal against the Lublin Remand Centre Penitentiary Commission ’ s decision of 7 July 2011. The court held that the decision was lawful. The court referred to the fact that the applicant had been previously convicted, the gravity of committed offences, his lack of moral character and his attitude.

On 3 October 2012 the Lublin Remand Centre Penitentiary Commission lifted the “dangerous detainee” off the applicant.

3. Particular aspects of the regime

The applicant was detained in a few detention facilities. Currently he is serving a prison sentence in the Warsaw – Białołę ka Remand Centre.

( a) Lublin Remand Centre

Between 11 November 1994 and 20 May 2003 and between 26 January 2011 until an unspecified date in 2012, the applicant was detained in the Lublin Remand Centre.

The applicant in the Lublin Remand Centre had a right to spend one hour a day in an outdoor yard, measuring 18m².

During the first term of his detention in the Lublin Remand Centre, the applicant was kept in a small cell. The cell was deprived of fresh air and natural light. The cell was equipped with a sanitary annex which was not separated from the rest of the cell. The applicant had to wear a red uniform designated for dangerous detainees, which was too hot in summer and too cold in winter. The applicant had no access to hot water. He was subjected to a body search every time he left and entered the cell. The body search was performed in a room, which was monitored and its recording was viewable in a duty room. No educational or cultural activities were available.

Additionally, during the second term of the applicant ’ s detention in the Lublin Remand Centre he was kept in a cell which was constantly monitored via closed-circuit television.

( b) Tarnów Prison and Rzeszó w Prison

Between 20 May 2003 and 25 or 26 September 2003 the applicant was detained in Tarnó w Prison. From 25 or 26 September 2003 until December 2003 he was detained in Rzeszó w Prison. In both prisons the conditions of the applicant ’ s detention were similar to those in the Lublin Remand Centre.

( c) Radom Remand Centre

Between December 2003 and 26 January 2011 the applicant was detained in the Radom Remand Centre.

The applicant was kept in a two-three persons cell. The cell was deprived of natural light and fresh air.

B. Relevant domestic law and practice

1. General rules

(a) Until 1 September 2003

The domestic law relating to imposition of dangerous detainee status as regards detained on remand is set out in the Court ’ s judgment in the case of Paweł Pawlak v. Poland ( no. 13421/03, §73-81, 30 October 2012).

(b) After 1 September 2003

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 in creased 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:             

1) is suspected of committing an offence, in particular:

( ... )

b) with particular cruelty,

( ... )”.

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).

COMPLAINTS

1. The applicant complains under Article 3 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.

2. He also complains under Articles 6 and 13 of the Convention that the proceedings before the penitentiary commission were unfair, he was not represented by a lawyer and that he did not have an effective remedy to appeal against the commission ’ s decisions

QUESTIONS TO THE PARTIES

1. Having regard to the cumulative effect of the “dangerous detainee” regime imposed on the applicant from 11 November 1994 to 3 October 2012, 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. 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?

The Government are invited to submit copies of domestic courts ’ judgments concerning the criminal proceedings for murder against the applicant.