Communicated on 7 July 2014

FOURTH SECTION

Application no. 41436/11 Artur PAWLAK against Poland lodged on 20 June 2011

STATEMENT OF FACTS

The applicant, Mr Artur Pawlak , is a Polish national, who was born in 1983 and lives in Lublin. He is currently detained in the Hrubieszów Detention Centre.

A. The circumstances of the case

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

1. The applicant ’ s arrest and conviction

On 19 April 2005 the applicant was arrested and detained in the Chełm Prison. Subsequently he was detained in a few other detention facilities.

On an unspecified date he was convicted of murder.

On 21 November 2008 the Governor of Chełm Prison requested the Lublin Regional Court to order the applicant to serve his sentence in the therapeutic system for convicted drug addicts.

On 15 December 2008 the Lublin Regional Court granted the request.

On 27 June 2010 the applicant complained to the Lublin Regional Inspectorate of Prison Service that he had not been serving his sentence in the therapeutic system for convicted drug addicts.

On 24 September 2010 the Governor of the Lublin Regional Inspectorate of Prison Service replied that the applicant ’ s therapy was planned to start on 6 January 2010 , however, due to his anti-social behavio u r , which might be dangerous for other inmates he had been classified as “dangerous prisoner” and therefore could not participate in therapy which, as a rule, involved some group trainings and treatment.

2. Imposition of the “dangerous prisoner” regime

On 14 September 2009 the Chełm Prison Penitentiary Commission classified the applicant as a “dangerous prisoner”. The commission held that the applicant had beaten an other prisoner and behaved in an aggressive and unpredictable manner. The applicant did not appeal.

The applicant ’ s “dangerous prisoner” regime was subsequently upheld, inter alia by the decisions of the Lublin Remand Centre Penitentiary Commission of 4 March, 2 June, 2 September and 2 December 2010 and 2 March 2011.

The applicant appealed against the decisions mentioned above. The appeals were dismissed by the decisions of the Lublin Regional Court of 9 April and 15 October 2010 and 28 February and 27 April 2011 respectively.

In the decisions, the court held that the Lublin Remand Centre Penitentiary Commission ’ s decisions had been lawful and justified as the “dangerous prisoner” regime was imposed on the applicant in accordance with Article 88a § 2 subparagraph 2(c) of the Code of Execution of Criminal Sentences.

On 27 February 2013 the Lublin Remand Centre Penitentiary Commission extended the imposition of the “dangerous prisoner” regime on the applicant. The Commission relied on that the applicant had tormented other prisoner. On 9 July 2013 the Lublin Regional Court upheld the decision.

12. The imposition of the “dangerous prisoner” regime was also extended on 22 May 2013. The Lublin Remand Centre Penitentiary Commission again relied on that the applicant had tormented other prisoner. On 2 September 2013 the Lublin Regional Court upheld the decision.

13. On 13 August and on 13 November 2013 the Lublin Remand Centre Penitentiary Commission again extended the imposition of the “dangerous prisoner” regime on the applicant. Following the applicant ’ s appeal, the latter decision was upheld by the Lublin Regional Court on 30 December 2013. The court found, among other things that the applicant had not controlled his aggressive reactions and constituted threat and danger to the order in prison.

On 12 February 2014 the dangerous prisoner regime applied to the applicant was lifted.

The regime was applied to the applicant for 4 years, 4 months and 30 days.

3. Particular aspects of the regime

The applicant was detained in several detention facilities, i.e. in the Chełm Prison, the Radom Remand Centre, the Lublin Remand Centre and Potulice Prison.

In all facilities in which the applicant was detained the cells were equipped with sanitary corner which 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 officers and was required to carry out deep knee-bends. The applicant, whenever outside his cell, including his appearances at court hearings, had to wear handcuffs.

The windows were covered by a plastic blind which limited access to daylight and fresh air to the cells.

( a) Radom Remand Centre

On 28 September 2009 the applicant was transferred from Che Å‚ m to the Radom Remand Centre.

The cell was equipped with a noisy ventilator thus the applicant could not sleep.

( b) Lublin Remand Centre

On 27 November 2009 the applicant was transferred to the Lublin Remand Centre where he was placed in solitary confinement which apparently lasted until the day of his release.

In the cell he had no access to hot water. He was allowed to a shower once a week.

The applicant was not allowed to go to mass held in the Lublin Remand Centre. He lodged a complaint about it with the Lublin Regional Inspectorate of Prison Service. In reply, on 26 August 2010, the authorities held that the applicant could listen to a mass on the radio or receive a private catechism session celebrated by a priest. No educational or cultural activities were available.

( c) Potulice Prison

On 20 March 2013 the applicant was transferred to Potulice Prison.

The applicant, whenever he was outside his cell, including his appearances at court hearings or medical visits, had to wear the so-called “ joined shackles ” ( kajdanki zespolone ) on his hands and feet. Those shackles consisted of handcuffs and fetters joined together with chains.

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:

...

c ) was the perpetrator of a rape, caused grievous bodily harm or tormented other convict, a punished person or other prisoner,

.

( ... )”.

Article 212 b

“1. In a remand centre a detainee referred to in Article 212 a 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 e xercise 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

The applicant complains under Article 3 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.

The applicant further complains under Articles 6 and 13 of the Convention about the alleged unfairness of the proceedings before the penitentiary commission, in particular that the courts examined his appeals against the decisions of the penitentiary commission after the commission had given a fresh decision on extension of the dangerous detainee regime and that he was not informed and could not be present at the hearings held by 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.

QUESTIONs TO THE PARTIES

1. Having regard to the cumulative effect of the “dangerous detainee” regime imposed on the applicant from 14 September 2009 until 12 February 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 commission ’ s decisions:

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?