Communicated on 7 July 2014

FOURTH SECTION

Application no. 57292/12 Jakub PALUCH against Poland lodged on 30 August 2012

STATEMENT OF FACTS

The applicant, Mr Jakub Paluch , is a Polish national, who was born in 1989 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. Criminal proceedings against the applicant

On an unknown date before October 2011 the applicant was convicted of unspecified offences.

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

On 11 October 2011, the Lublin Remand Centre Penitentiary Commission (“the commission”) imposed on the applicant the “dangerous detainee” regime. It appears that the applicant did not appeal against the decision. The regime was reviewed and upheld by the commission every three months.

On 16 May 2012 the commission reviewed and upheld its decision again. It referred to the applicant ’ s conduct. According to the authorities, the applicant often demonstrated aggressive behavior. The commission also referred to the applicant ’ s serious lack of moral character ( wysoki stopień demoralizacji ) and the fact that the applicant had been the leader in a collective remonstrance in the Opole Lubelskie Prison (the prisoners ’ hunger strike) and planned an attack on one of the prison employees. The applicant appealed against the decision.

On 13 June 2012 the Lublin Regional Court dismissed the appeal. The court held that the decision had been lawful.

On 14 July 2012 the Lublin Remand Centre Penitentiary Commission lifted the imposition of the “dangerous detainee” regime off the applicant.

3. Particular aspects of the regime

The cell, in which the applicant was kept, including its sanitary facilities, was constantly monitored via closed-circuit television. The window was covered by a plastic blind. The applicant 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 officers and was required to carry out deep knee-bends. The applicant, whenever he was outside his cell, including his appearances at court hearings, wore the so-called “joined shackles” ( kajdanki zespolone ) on his hands and feet. Those shackles consisted of hand ‑ cuffs and fetters joined together with chains. The applicant ’ s hair had to be cut.

B. Relevant domestic law and practice

1. General rules

The relevant provisions relating to the imposition of the dangerous detainee status as regards detained on remand is set out in the Code of Execution of Criminal Sentences (“the Code”). Articles 212a and 212b of the Code regulate 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:

a ) was the leader or an active participant in a collective remonstrance in 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 te chnical 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 its decisions.

QUESTIONS TO THE PARTIES

1. Having regard to the cumulative effect of the “dangerous detainee” regime imposed on the applicant from 11 October 2011 to 14 July 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:

- a copy of the decision of 11 October 2011 imposing the regime on the applicant ;

- copies of judgments relating to criminal proceedings against the applicant.