FOURTH SECTION

Application no. 39241/08 Jaros Å‚ aw POFELSKI against Poland lodged on 17 July 2008

STATEMENT OF FACTS

The applicant, Mr Jarosław Pofelski , is a Polish national, who was born in 1966 and lives in Szymbark .

A. The circumstances of the case

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

1. Proceedings before the Gdańsk Regional Court (case no. IV K 35/05)

On 10 February 2004 the Gdańsk District Court remanded the applicant in custody in view of the reasonable suspicion that he had been a member of a group involved in drug trafficking.

On 28 January 2005 the prosecution filed a bill of indictment with the GdaÅ„sk Regional Court . The applicant was charged with a number of drug ‑ trafficking offences. There were twenty-six other defendants in the case.

On 10 February 2006 the applicant ’ s detention on remand was lifted.

The applicant failed to appear at the hearing scheduled for 2 October 2006.

On 28 December 2006 the trial court severed some of the charges against the applicant to be examined in different se t of proceedings (case no. IV K 166/08).

On 8 February 2007 the President of Criminal Section IV of the Gdańsk Regional Court decided that the applicant ’ s trial should be conducted de novo and assigned the case to a new judge.

On 16 May 2008 the Gdańsk Regional Court severed further charges against the applicant to be dealt with in a separate set of proceedings.

On 24 July 2008 the applicant filed a complaint about a breach of his right to a trial within a reasonable time. On 15 October 2008 the Gdańsk Court of Appeal dismissed his complaint. It found that the trial court had conducted the proceedings diligently and in a timely manner.

The applicant did not submit any specific information about the course of these proceedings.

2. Proceedings before the Åšwidnica Regional Court (case no. III K 16/08)

The applicant was arrested on 14 May 2007 on suspicion of drug trafficking. On 16 May 2007 the Wrocław-Śródmieście District Court remanded him in custody in view of the reasonable suspicion that he had been involved in a group dealing in amphetamine. The court relied on the severity of the anticipated penalty and the related risk that the applicant might obstruct the proceedings. On 3 July 2007 the Wrocław Regional Court dismissed the applicant ’ s appeal. It found that the applicant had submitted insufficient information to enable it to determine the medical condition of his wife and her ability to look after their children.

In February 2008 the prosecution filed a bill of indictment with the Åšwidnica Regional Court . The applicant was charged with drug-trafficking offences. There were thirty-six other defendants in the case. Some of them were charged with having acted in an organised criminal gang and with other serious offences.

On 7 August 2007 the Świdnica Regional Court prolonged the applicant ’ s detention on remand until 13 November 2007. It noted that all defendants in the case had been involved in the same group dealing in drugs and that there was a risk of putting pressure on witnesses since not all members of the group had been arrested.

The applicant ’ s detention on remand was subsequently prolonged on 8 November 2007 (until 13 February 2008), 11 February 2008 (until 13 August 2008), 21 July 2008 (until 15 November 2008), 3 November 2008 (until 15 February 2009) and 9 February 2009 (until 14 May 2009). The applicant appealed unsuccessfully against decisions prolonging his detention on remand. In its decision of 12 December 2007 the Wrocław Court of Appeal found that the applicant had not substantiated his claim that his detention had entailed severe consequences for his family.

On 26 February 2009 the Świdnica Regional Court lifted the applicant ’ s detention on remand on condition that he put up bail in the amount of PLN 50,000. It further placed him under police supervision and imposed a ban on leaving the country. The applicant claimed that the amount of bail was excessive. On 15 April 2009 the Wrocław Court of Appeal upheld the decision of 26 February 2009.

3. Imposition of the “dangerous detainee” regime

On 16 May 2007 the Wrocław Remand Centre Penitentiary Commission ( Komisja Penitencjarna ) classified the applicant as a “dangerous detainee” pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences . The applicant did not provide a copy of this decision. On 29 May 2008 the applicant appealed. It appears that the Wrocław Regional Court upheld the Penitentiary Commission ’ s decision. The applicant ’ s classification as a “dangerous detainee” was prolonged on a number of occasions. On 10 October 2008 the Wrocław Regional Court upheld the decision of the Penitentiary Commission of unspecified date prolonging the application of the regime. In its decision the Wrocław Regional Court stated, inter alia :

“the conducted proceedings showed that the convict requires to be placed in conditions ensuring enhanced protection of society and the security of the remand centre having regard to the nature and the circumstances of the acts committed by him.”

The decision was served on the applicant in December 2008.

The last known decision on prolongation of the applicant ’ s regime was given on 10 January 2009.

The applicant was subjected to a body search, including an inspection of his anus every time he left and entered the cell. He had to wear shackles on his hands and feet when escorted outside the remand centre, including during court hearings.

On 12 May 2008 the applicant requested the trial court to authorise the removal of his handcuffs during the hearing and during breaks. The trial court refused his request in view of the fact that a number of the defendants had been charged with having acted in an organised criminal group and that one of the defendants had previously attempted to harm himself. Further similar requests were to no avail.

On 30 October 2008 the applicant complained to the Ombudsman that the application of the “dangerous detainee” regime to him amounted to torture and inhuman and degrading treatment. He complained, in particular, about being chained on the days of court hearings for an average period of 11 hours at a stretch. He could not take notes during hearings and eat his meals at intervals despite the fact that during that time he remained under police escort in a special room. On 9 February 2009 the Ombudsman informed the applicant that the special measures applied in his case were justified by the fact that the trial before the Świdnica Regional Court concerned a thirty-eight-person organised armed gang and that he and a number of other defendants had been classified as “dangerous detainees”. The Ombudsman further informed the applicant that the use of shackles during court hearings was justified by security concerns.

The applicant also filed a criminal complaint in relation to the application of the security measures. On 25 March 2009 the Świdnica District Prosecutor discontinued the investigation in this respect. She found that the impugned measures were applied in connection with the applicant ’ s classification as a “dangerous detainee”.

B. Relevant domestic law and practice

The applicable rules concerning the regime of “dangerous detainees” are set out in the Court ’ s judgments in the cases of Piechowicz v. Poland (no. 20071/07 , §§ 105-106, 17 April 2012) and Horych v. Poland ( no. 13621/08 , §§ 44-45, 17 April 2012).

COMPLAINTS

1. The applicant complains under Article 3 of the Convention about being shackled on the days of court hearings for a period of 11 hours at a stretch and that his requests to remove handcuffs during court hearings were refused. He also complains about the personal check procedure on leaving the remand centre.

2. The applicant complains under Article 5 of the Convention about the circumstances of his arrest on 14 May 2007.

3. He complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand in the proceedings before the Gdańsk Regional Court and before the Świdnica Regional Court .

4. The applicant complains under Article 6 § 1 of the Convention about the length of both sets of criminal proceedings against him.

5. He further alleges a breach of Article 8 of the Convention on account of his detention on remand in the Wrocław Remand Centre which is located 500 km from his home. He claims that his disabled wife and his daughters (12 and 22 years old) could not visit him on account of his wife ’ s illness and the lack of financial resources. He complains that he was allowed only two closed visits from his wife whereby a detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone.

6. The applicant complains under Article 13 of the Convention about the delay in the service of the decision of the Wrocław Court of Appeal on his appeal against the prolongation of his detention on remand.

7. In his letter of 17 November 2008 the applicant complains about overcrowding in the Wrocław Remand Centre.

8. In his letter of 27 April 2009 the applicant complains about a breach of the right to be presumed innocent under Article 6 § 2 of the Convention in connection with the reasons given for the decision of the Wrocław Regional Court of 10 October 2008.

QUESTION s TO THE PARTIES

1. Having regard to

– the fact that the applicant was classified as a “dangerous detainee” from 16 May 2007 until at least 10 April 2009 during his detention in the Wrocław Remand Centre;

– the number and nature of visits that he had been granted by the authorities throughout the period;

– the fact that, in addition to various other restrictions involved in the imposition of the “dangerous detainee” regime, pursuant to Article 212b (5) of the Code of Execution of Criminal Sentences, he is subjected to a personal check ( kontrola osobista ) every time he leaves and enters his cell – a measure which in practice is effected by prison guards by ordering him to strip naked in front of them and to carry out deep knee-bends;

– that he must wear the so-called “joined shackles” (handcuffs and fetters joined together with chains) whenever he is outside the cell, including appearances at court hearings and medical visits;

and considering the combined effects that those measures have had on the applicant,

has he been subjected to treatment contrary to Article 3 of the Convention (cf. Piechowicz v. Poland , no. 20071/07 , 17 April 2012)?

2. Has there been a violation of the applicant ’ s right to respect for his family life guaranteed by Article 8 of the Convention on account of the visiting regime during his solitary confinement and the conditions in which visits took place in the relevant detention facilities?

In connection with this question and question no. 1 above, the Government are asked to supply copies of all decisions concerning imposition and prolongation of the “dangerous detainee” regime as well as the list of visits received by the applicant from his wife and his daughters during the period in which he was subjected to the regime in the Wrocław Remand Centre. The list should specify the dates, the names of the visitors, the nature of the visits and their length.

3. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? Reference is made to the reasons given for the Wrocław Regional Court ’ s decision of 10 October 2008.

4. Was the length of the criminal proceedings before the Gdańsk Regional Court in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?