Communicated on 7 July 2014

FOURTH SECTION

Application no. 5532/10 Jakub ÅšWIDERSKI against Poland lodged on 15 January 2010

STATEMENT OF FACTS

The applicant, Mr Jakub Åšwiderski, is a Polish national, who was born in 1989 and is currently detained in the Opole Lubelskie Detention Centre .

A. The circumstances of the case

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

1. Imposition of the “dangerous prisoner” regime

On 29 June 2007 the applicant was arrested and detained on remand in the Bia Å‚ a Podlaska Prison.

On 14 August 2007 the Bia ł a Podlaska Prison Penitentiary Commission classified the applicant as a “dangerous prisoner”. It relied on the applicant ’ s unlawful release while being convoyed outside a prison.

On an unspecified day in September 2007, the applicant was transferred to the Lublin Remand Centre. On 3 October 2007 the Lublin Remand Centre Penitentiary Commission upheld the regime imposed on the applicant. After that, the commission extended the application of the “dangerous prisoner” regime to the applicant on numerous occasions. Each time the commission referred to the reasons given in the decision of 14 August 2007.

On 17 December 2009 the applicant was convicted of a murder and sentenced to 25 years ’ imprisonment. Following the applicant ’ s appeal the proceedings are pending before the second-instance court.

On an unspecified date the applicant was transferred to the Kielce Remand Centre.

On 30 March 2010 the Kielce Remand Centre Penitentiary Commission extended the imposition of the “dangerous prisoner” regime on the applicant. The applicant appealed.

On 28 June 2010 the Kielce Regional Court upheld the decision holding that the decision had been justified taking into account the applicant ’ s aggressive behavio u r in the Remand Centre, his refusing meals and his uncritical attitude towards offences of which he had been convicted by the first instance court.

On an unspecified date in 2010 the applicant was transferred back to the Lublin Remand Centre.

On 23 December 2010 and on 23 June 2011 the Lublin Remand Centre Penitentiary Commission extended the regime imposed on the applicant. The applicant appealed against both decisions.

On 28 February and on 11 May 2011 respectively the Lublin Regional Court dismissed the appeals. The court held that the decisions had been lawful and justified taking into account the applicant ’ s unlawful release.

On 22 September 2011 the Lublin Remand Centre Penitentiary Commission lifted the “dangerous prisoner” regime imposed on the applicant. It relied on the applicant ’ s good behavio u r.

In total, the “dangerous prisoner” regime was applied to the applicant for 4 years 1 month and 9 days.

2. Particular aspects of the regime

The applicant was detained in several detention facilities, i.e. Bia Å‚ a Podlaska Prison, the Lublin Remand Centre and the Kielce Remand Centre. However, most of the time complained of the applicant spent in the Lublin Remand Centre.

The cell was equipped with sanitary corner which was not separated from the rest of the cell. The cell, including its sanitary facilities, was 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 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 handcuffs and fetters joined together with chains.

The applicant had a one-hour long outdoor exercise per day.

The cell window was covered by a plastic blind which, according to the applicant, limited access of fresh air and natural light to the cell. The cell was constantly in semi-darkness and for reading, even during the day, the applicant needed to use artificial light.

No educational or cultural activities were available.

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).

COMPLAINTS

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.

The applicant also complains under Article 6 § 1 and Article 6 § 3 (c) of the Convention about the alleged unfairness of the proceedings, lack of equality of arms and violation of his right to defend himself in the proceedings before the penitentiary commission which imposed on him the dangerous detainee regime. He also raises a complaint that he was not informed and could not be present at hearings held by the commission.

He further complains under Article 13 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 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 requested to produce a copy of the judgment of 17 December 2009 by which the applicant was convicted , as well as a further judgment issued as a result of the applicant ’ s and the prosecutor ’ s appeal if such judgment has already been given.