Communicated on 7 July 2014

FOURTH SECTION

Application no. 50868/12 Łukasz ZAWADZKI against Poland lodged on 9 August 2012

STATEMENT OF FACTS

The applicant, Mr Ł ukasz Zawadzki, is a Polish national, who was born in 1981 and lives in Łódź . He is represented before the Court by Ms M. Niełaczna, a lawyer practising in Warszawa.

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 first detention on remand

In 1995, when the applicant was thirteen years old, he was diagnosed with encephalopathy in the form of behaviour disorders in children with reduced intellectual capacity.

He has been repeatedly treated psychiatrically since he was fourteen years old.

Since 1998 when the applicant became an adult, in some of experts ’ reports concerning his mental state, prepared in the course of criminal proceedings against him, he had been diagnosed with paranoid schizophrenia.

In 2000 the applicant was charged with uttering threats and criminal proceedings against him were instituted. The experts ’ reports underlined that the applicant required treatment in psychiatric ward conditions.

On 23 February 2001 the Łódź District Court discontinued the proceedings finding that when the applicant had committed the prohibited act in question he was incapable of recognising the significance of his behaviour because of mental disturbance and ordered that the applicant be placed in the Lubi ąż Psychiatric Hospital.

This decision was upheld on 21 March 2001 by the Łódź Regional Court.

On 26 October 2001 the applicant was arrested under suspicion of bomb hoaxing and detained on remand.

On 21 October 2002 the Łódź Regional Court convicted the applicant and sentenced him to 3 years ’ imprisonment. The applicant was ordered to serve the sentence in the therapeutic system. He was released from prison on 2 August 2004.

2. Second detention on remand and further criminal proceedings

On 31 March 2006, in another set of proceedings, the Łódź Śródmie ś cie District Court ordered that the applicant be detained on remand. He was suspected of uttering threats. All of the applicant ’ s interlocutory appeals against the courts ’ decisions regarding extension of his pre-trial detention were unsuccessful.

On 14 February 2012 thirteen sets of various criminal proceedings were pending against the applicant.

Until 14 February 2012 the courts delivered eight judgments against the applicant, i.e.:

- the Łódź District Court ’ s judgment of 2 August 2007;

- the Łódź Regional Court judgment of 12 March 2008;

- the Łódź Regional Court ’ s judgment of 17 March 2010 (3 years and 6 months ’ imprisonment);

- the Skierniewice District Court ’ s judgment of 13 April 2010 (1 year and 4 months ’ imprisonment);

- the Brzeziny District Court ’ s judgment of 6 April 2011 (1 year imprisonment);

- the Wroclaw District Court ’ s judgment of April 2011 (1 year imprisonment);

- the Gda ń sk – Pó ł noc District Court ’ s judgment of May 2011 (3 years ’ imprisonment);

- the Ko ł o District Court ’ s judgment of April 2011 (3 years ’ imprisonment).

In its judgment of 2 August 2007 the Łódź District Court ordered to place the applicant in prison with necessary psychiatric treatment and constant medical supervision. The same was ordered by the Łódź Regional Court on 12 March 2008.

The need to provide specialised and adequate psychiatric treatment to the applicant was also underlined in the judgment of the Skierniewice District Court of 13 April 2010. The court found, among other things, that although already on 6 April 2006 the Łódź Śródmie ś cie Family Court had ordered to place the applicant in the psychiatric hospital, the order was not followed because of lack of beds in the hospital.

On 17 March 2010 the Łódź Regional Court ordered that the applicant serve his sentence in ordinary prison but in the therapeutic system.

The courts ’ orders as regards the applicant ’ s treatment were not executed: between 28 March 2006 and 14 February 2012 the applicant was detained on remand in ordinary detention centre without necessary psychiatric treatment and constant medical supervision.

Additionally, between June 2009 and 14 February 2012 the applicant was placed in ward for dangerous prisoners.

On 14 February 2012 he was released from the remand centre and transferred to the psychiatric hospital, so that he could serve his sentence with necessary psychiatric treatment and constant medical supervision as ordered by criminal courts on numerous occasions.

3. Particular aspects of the “dangerous detainee” regime

Between January and June 2009 as well as between January and June 2010, when the applicant was detained in the Ł ód ź Remand Centre and in the Piotrków Trybunalski Remand Centre, he was not allowed to receive visits from his mother. Between March and May 2011 the applicant was not allowed to send correspondence to his mother.

In the applicant ’ s case the Ombudsman intervened. In the letter of 26 January 2011 addressed to the applicant ’ s mother it was found that there had been no possibility of placing the applicant in the therapeutic ward because of his legal status and because of the need to assure his participation in hearings which had taken place in cases against him. As there was no possibility of providing constant medical supervision and psychiatric treatment to the applicant, he was occasionally admitted to the therapeutic ward of prison hospital.

B. Relevant domestic law and practice

1. Preventive measures

Article 62 of the Criminal Code provides as follows:

“Upon deciding to impose a penalty of deprivation of liberty, the court may determine the kind and type of penal institution where the sentenced person is to serve the term and to stipulate the therapeutic methods for serving the term of deprivation of liberty.”

Article 95 of the Criminal Code provides, in so far as relevant, as follows:

“ §1. In sentencing a perpetrator to a penalty of deprivation of liberty without a conditional suspension of its execution, for an offence committed in a state of diminished accountability ( ... ) the court may order his commitment to a penal institution where special medical treatment or rehabilitation measures can be applied.”

2. “Dangerous prisoner” regime

The relevant domestic law and practice concerning the imposition of “dangerous detainee” regime are set out in the Court ’ s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 105-117, 17 April 2012), and Horych v. Poland (no. 13621/08, §§ 44-56, 17 April 2012).

COMPLAINTS

The applicant complains under Article 3 of the Convention that when he was detained on remand he was deprived of the adequate medical and psychiatric care, ordered by criminal courts on many occasions. He complains in particular about the period between June 2009 and 14 February 2012 which he spent in more severe conditions as a “dangerous detainee” and during which he was not treated in conditions adequate to his state of health and during which contacts with members of his family were restricted. He complains that the dangerous detainee regime was applied to him without any official decision on that matter.

He further complains under Article 5 § 1 (c) and (e) of the Convention that his detention in the conditions of ordinary detention centre was unlawful because the criminal courts which convicted him on many occasions ordered that he serve his sentence in special conditions assuring adequate medical and psychiatric care.

He finally complains under Article 6 of the Convention of non-enforcement of the judgments in which the criminal courts had ordered his placement in prisons where adequate medical and psychiatric treatment would be secured.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived, in breach of Article 3 of the Convention, of the adequate medical and psychiatric care while detained on remand between 31 March 2006 and 14 February 2012 ?

Reference is made to the fact that he was convicted by several judgments in which the courts had ordered his placement in particular facilities offering special care to applicants, whereas in the relevant period he was detained in ordinary detention centres.

2. Having regard to the cumulative effect of the “dangerous detainee” regime imposed on the applicant from June 2009 until 14 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.

3. What was the legal basis and what were the reasons for the imposition of the dangerous detainee regime on the applicant?

The Government are requested to produce a copy of the relevant decision imposing the regime on the applicant and further decisions extending the application of the regime until the applicant ’ s transfer to hospital on 14 February 2012.