CASE OF HORYCH v. POLAND
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman punishment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1957 and lives in Warszawa. He is currently detained in the Warsaw Mokotów Remand Centre. 6. On 14 July 2004 the applicant was arrested on suspicion of drug smuggling. On 15 July 2004 the Gdańsk District Court (Sąd Rejonowy) remanded him in custody for 3 months, relying on the reasonable suspicion – supported by evidence taken from witnesses – that he had committed the offence in question and the need to secure the proper course of the proceedings. The court also attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to induce witnesses to give false testimony or would otherwise obstruct the proceedings. That risk was justified by the fact that the case involved a large number of accomplices who had not yet been apprehended. 7. An appeal by the applicant against the detention order, likewise his further appeals against subsequent decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful. In his applications and appeals, he argued that his lengthy detention violated the provisions of the Code of Criminal Procedure relating to the imposition of this measure. 8. In the course of the investigation, the applicant’s detention was extended on several occasions, namely on 21 September 2004 (to 31 December 2004), 21 December 2004 (to 31 March 2005) and 22 March 2005 (to 30 June 2005). In all their decisions the authorities relied on the original grounds given for the applicant’s detention. The courts also stressed the fact that, owing to the complexity of the case, the investigation had still not been completed. 9. On 16 June 2005 a bill of indictment was lodged with the Gdańsk Regional Court (Sąd Okręgowy). The applicant, together with 3 other coaccused, was indicted on charges of drug smuggling and conspiracy to import drugs committed in an organised criminal group aiming at importing into Poland considerable amounts of drugs. 10. During the court proceedings the courts further extended the applicant’s detention on several occasions, namely on 23 June 2005 (to 30 September 2005), on an unspecified subsequent date, on 28 June 2006 (to 30 October 2006), 3 October 2006 (to 31 December 2006), 28 December 2006 (to 30 April 2007), 25 April 2007 (31 August 2007), 22 August 2007 (to 31 December 2007), 11 December 2007 (to 31 March 2008), 18 March 2008 (until 30 June 2008), 25 June 2008 (until 30 September 2008) and 18 September 2008 (until 31 December 2008). The courts repeated the grounds previously given for keeping the applicant in custody. They attached importance to the likelihood of a severe sentence of imprisonment being imposed on him and the risk that he would obstruct the proceedings. 11. On 19 October 2005 the Regional Court held the first hearing. The trial continued until 30 December 2008. Throughout that time 98 hearings were scheduled. The hearings took place at last once a month but at certain periods the court held up to 5 hearings per month. On average, they were held at 2 week-intervals and there was no interruption of the trial longer than 5 weeks. 12. On 30 December 2008 the court convicted the applicant of drug smuggling and conspiracy to import drugs but acquitted him of acting in an organised criminal group. He was sentenced to a cumulative penalty of 12 years’ imprisonment. The Court deducted the period of his detention from 14 July 2004 to 12 June 2005 from his sentence. The applicant appealed. 13. The applicant did not specify when the proceedings had terminated but it appears that they most likely ended between the end of 2009 and the beginning of 2010. 14. On an unspecified date in 2005 the Kraków Regional Court convicted the applicant of drug-related offences committed in an armed organised criminal group and sentenced him to 15 years’ imprisonment. The applicant started to serve the sentence on 13 June 2005. 15. On an unspecified date, apparently on 18 January 2006, the Ostrołęka Regional Prosecutor charged the applicant with, among other things, leading an organised criminal group called “mokotowska” involved in trafficking large amounts of drugs, arms and ammunition, money laundering, bribery of public officials, kidnapping, extortion, armed robbery and other theft-related offences. 16. On 19 January 2006 the Ostrołęka Distrcit Court remanded the applicant in custody relying on the reasonable suspicion that he had committed the offences with which he had been charged. The court underlined that the suspicion was fully supported by evidence obtained from a crown witness (świadek koronny) and confirmed by other evidence, such as searches, inspections of crime scenes and testimonies of other witnesses. It also referred to the risk that the applicant would try to bring pressure to bear on witnesses, the need to secure the proper course of the investigation and the likelihood that a severe penalty – minimum 8 years’ imprisonment would be imposed on him. 17. On an unspecified date, apparently in 2009, the Warsaw Regional Court convicted the applicant as charged and sentenced him to 14 years’ imprisonment. 18. The applicant did not inform the Court of the further course of the proceedings. 19. On 18 July 2007 the applicant lodged with the Gdańsk Court of Appeal (Sąd Apelacyjny) a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). 20. The applicant sought a ruling that the length of the proceedings in case no. IV K 200/05 (see paragraphs 6-13 above) had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. 2,500 euros (EUR)). 21. On 25 September 2007 the Gdańsk Court of Appeal dismissed his complaint as unfounded. It held that since the beginning of the trial 61 hearings had been scheduled in the case until 24 August 2007 and only 11 of them had been adjourned due to the absence of counsel or cosuspects and because of a lay judge’s illness. The court concluded that the proceedings had been conducted with the requisite speed and without undue delay. 22. After his arrest on 14 July 2004 (see paragraph 6 above) the applicant was detained in the Sztum Prison (Zakład Karny). Shortly afterwards, on an unspecified date, he was transferred to the Gdańsk Remand Centre (Areszt Śledczy). He remained there until 22 January 2009 but in 2008 he was transferred to the Warszawa-Mokotów Remand Centre for a few months. From 22 January 2009 to 9 June 2009 he was detained in the Kraków Remand Centre. Later he was held in the Radom Prison and then transferred to the Warsaw Mokotów Remand Centre. 23. On 22 July 2004 the Sztum Prison Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee” (a so-called ”tymczasowo aresztowany niebezpieczny”; in the relevant legal provisions referred to as ”tymczasowo aresztowany stwarzający poważne zagrożenie społeczne albo poważne zagrożenie dla bezpieczeństwa aresztu”). It considered that it was necessary to place the applicant in a solitary cell designated for such detainees at a special high-security prison ward because he had been charged with serious offences committed in an organised criminal group. Pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy), this circumstance by itself justified the classification of a detainee as “dangerous”. The commission also referred to the applicant’s serious lack of moral character (wysoki stopień demoralizacji). 24. Every three months the Gdańsk Remand Centre’s Penitentiary Commission (Komisja Penitencjarna Aresztu Śledczego) reviewed its decision on the classification of the applicant as a “dangerous detainee”. The applicant appealed against many of those decisions. He submitted that the offences with which he had been charged, in particular drug-smuggling, did not justify the imposition of the special regime. He argued that the measure had been extended automatically without any consideration for his health and mental well-being, that it had in fact been imposed for an unlimited duration and was putting an exceptionally severe strain on him and his family. He also complained about being subjected to a strip search every time he left and entered the cell. All the appeals were dismissed. 25. On 3 September 2007 the Gdańsk Regional Court – Penitentiary Division examined the applicant’s appeal against the Gdańsk Remand Centre’s Penitentiary Commission’s decision of 10 July 2007 prolonging the application of the “dangerous detainee” regime and continuing to hold him in a solitary cell. In his appeal, the applicant underlined that the special regime had already been imposed on him for some 3 years and that its continuation had been based solely on the charges laid against him, without any court conviction. In his view, this was in breach of the principle of the presumption of innocence. The court rejected the applicant’s argument that the nature of the offences with which he had been charged did not justify the continued application of that regime in his case. In that regard, it stressed that the applicant had been charged in three separate sets of criminal proceedings conducted by different courts or prosecutors and those other charges included, among other things, the leading of an organised and armed criminal group, kidnapping, armed robbery and arms trafficking. The nature of the charges and the applicant’s personal circumstances, such as his previous criminal record, leadership qualities and tendency to dominate the others fully supported the view that there existed the “danger [to society and the security of a remand centre]” referred to in Article 212a of the Code of Execution of Criminal Sentences. In sum, there was no indication that the contested decision was contrary to the law, which was the sole ground on which it could be challenged and possibly quashed. As regards the applicant’s argument that his contacts with his family were severely restricted as a result of his “dangerous detainee” status, the court held that those restrictions were lawful as being applied under the relevant provisions of the Code of Execution of Criminal Sentences and did not make it impossible for him to maintain such contacts. 26. On 11 December 2007, 15 February 2008 and 3 June 2008 the Gdańsk Regional Court – Penitentiary Division, relying on the same grounds, rejected further appeals against the Penitentiary Commission’s decisions prolonging the imposition of the “dangerous detainee” regime on the applicant. In his appeals, the applicant submitted that his prolonged solitary confinement was putting an exceptionally severe emotional strain on him, which was compounded by his lack of sufficient contact with the family. He also complained that the routine strip-searches, to which he had been subjected, sometimes several times a day, were intrusive, unnecessary and humiliating. 27. Further decisions on the prolongation of the “dangerous detainee” regime were based on similar grounds or repeated the initial reasons. On 19 August 2009 the Radom Regional Court upheld the Penitentiary Commission’s decision to continue the imposition of the regime, given on 23 June 2009, in view of the serious nature of the charges brought against the applicant and his personal circumstances, such as his leadership qualities and tendency to dominate the others and his serious lack of moral character. On 23 October 2009 the Warsaw Regional Court upheld a similar decision, stressing that since 13 June 2005 the applicant had been serving a sentence of 15 years’ imprisonment, following his conviction for drugrelated offences committed in an organised criminal group. He had also been convicted at first instance by the Gdańsk District Court for other drugrelated offences and sentenced to 12 years’ imprisonment. In these circumstances, the special regime had to be continued. On 14 July 2010 the Warsaw Regional Court upheld another decision of the Penitentiary Commission, relying on the applicant’s criminal convictions and stressing that under the applicable legal provisions no timelimit was set for the imposition of the regime. On 30 August 2011 the Warsaw Regional Court upheld the Penitentiary Commission’s decision of 2 August 2011. Noting that the decision was based on the fact that the applicant, in view of his personal circumstances and serious lack of moral character, posed a serious danger to prison security and order, as well as to prison officers’ safety, the court found that this assessment had been objective and fully justified the continuation of the regime. 28. Throughout his detention the applicant repeatedly requested the authorities to place him with another inmate, complaining that his excessively long solitary confinement had severely affected his emotional and mental well-being. 29. The regime is still being applied to the applicant and he is still held in a solitary cell. In all likelihood, pursuant to Article 212a § 3 of the Code of Execution of Criminal Sentences (see paragraph 44 below), the regime will continue until he has finished serving his three consecutive sentences of imprisonment, or at least the sentence following the conviction for leading an organised and armed criminal group, kidnapping, arms and drug trafficking. At present it is estimated that the applicant’s imprisonment would come to an end at the end of 2031. 30. Since 22 July 2004, when the applicant was placed in a solitary cell for dangerous detainees at the high-security prison ward until present, he has remained under increased supervision. The cells in which he has been held, including their sanitary facilities, have been constantly monitored via close-circuit television. They have also been searched frequently, sometimes on a daily basis. He has been subjected to a socalled “personal check” (kontrola osobista), i.e. a thorough body search every time he has left and entered the cell. The applicant has explained that this means that each time he enters or leaves the cell he must strip naked in front of prison guards and carry out deep knee-bends from 6 to 10 times to enable an examination of his anus. Whenever he is outside his cell and the high-security ward, including his appearances at court hearings, the applicant must be handcuffed or required to wear so-called “joined shackles” (kajdanki zespolone) on his hands and feet (see paragraph 47 below). Those shackles consist of handcuffs and fetters joined together with chains. The applicant has many times unsuccessfully complained to the authorities that outside his cell his hands were handcuffed behind his back, which caused him considerable pain and difficulty in moving, especially during a daily walk. The applicant’s movements outside his cell and the special ward must be supervised by 2 prison guards. He is allowed to have a 1-hour long solitary walk per day in a segregated area. 31. The applicant was entitled to 1 one-hour visit from the family per month. 32. He supplied a document issued by the Governor of the Gdańsk Remand Centre on 13 February 2008, setting out a list of visits received by him up to that date. From 23 August 2004 to 20 January 2008, i.e. for 3 years and some 5 months, he was granted permission to have 11 “open visits” (widzenie przy stoliku). He was also granted 21“closed visits” (widzenie przez telefon) (see also paragraph 58 below). 33. On most occasions only the applicant’s wife visited him. The applicant has 3 daughters M.H., K.H. and S.H. born, respectively, in 1988, 1993 and 1998. Throughout the above period he received visits from his oldest daughter on 2 occasions and from each of the two younger daughters once. 34. In 2004 the applicant was granted 6 visits, 2 of which were open and 4 closed. They took place on 23 August (this was an open visit from the applicant’s wife), 17 September (this was a closed visit from his wife, E.H., and M.H., his oldest daughter), 15 October, 29 October (on this occasion he received an open visit from his daughter M.H.), 19 November and 17 December respectively. 35. In 2005 the applicant was granted 10 visits, only 1 of which was open. They took place on 11 February, 11 March, 15 April, 12 May, 5 July, 28 July, 16 August, 30 September (this was a closed visit from his wife and K.H., one of his daughters), 28 October and 9 December 2005. 36. In 2006 the applicant received 7 visits (including 1 “open”) from his wife only. They took place on 28 February, 5 April, 13 June, 23 August, 20 October, 30 November and 29 December. 37. In 2007 the applicant was granted 7 visits from his wife, 4 of which were open visits. They took place on 9 February, 29 March, 1 June (on this open visit the applicant could also see S.H., his youngest daughter), 24 July, 6 September, 24 October and 27 November. 38. In 2008, as of the date of the issuance of the document, the applicant received one “open visit” from his wife – on 20 January 2008. He submitted that throughout the whole of 2008 he had received 5 family visits. 39. The applicant stated that his very limited contact with his daughters had been caused by the fact that the Gdańsk Remand Centre and the Kraków Remand Centre did not provide satisfactory conditions for visits by children or minor persons. A visit took place in a room where visitors were separated from a detainee by a Perspex window partition and bars, making it impossible for them to have any direct contact. A visitor, including a child, in order to reach the visiting area in the ward for dangerous detainees had to walk through the entire prison, past prison cells situated on both sides of the corridor. This exposed his daughters to the gaze of inmates and their reaction to the girls’ presence constituted an exceptionally traumatic experience for them. During the meeting, they were separated by a window and bars from their father, which was very stressful for them and made it impossible for them to have any normal contact. For that reason, considering that the conditions in which he was allowed to see his family in prison caused too much distress and suffering for his daughters, the applicant had to give up receiving visits from his daughters. 40. In the Kraków Remand Centre the visits to “dangerous detainees” could take place only on Tuesdays. For that reason, the applicant’s wife was unable to visit him on every occasion he was entitled to have a monthly visit because she worked from Monday to Friday. 41. The applicant made numerous complaints about poor visiting conditions and the practical impossibility of having contact with his daughters, but they were to no avail. 42. The applicant’s correspondence with his family was censored. He supplied three envelopes bearing stamps that read respectively: “censored on 12 November 2007”, “censored on 8 January 2008”, “censored on 30 January 2008” and illegible signatures. The first letter was from his daughter, K.H., and two others from a family member, a certain K[a]. H. The applicant did not inform the Court about the contents of the letters and whether any parts of them had been expunged or otherwise censored. 43. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing others, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006). 44. Article 212a of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows: “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 subparagraph 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 in 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. ...” The penitentiary commission referred to in the above provision is set up by the governor of the prison or the governor of the remand centre. It is composed of prison officers and prison employees. Other persons such as representatives of associations, foundations and institutions involved in the rehabilitation of prisoners as well as church or religious organisations – may participate in the work of the commission in an advisory capacity. If the commission’s decision on the classification of a prisoner or detainee is contrary to the law, the relevant penitentiary court may quash or alter that decision (Article 76). A detainee may appeal against the penitentiary commission’s decision but solely on the ground of its non-conformity with the law (Article 7). 45. Article 212b of the Code of Execution of Criminal Sentences lays down specific arrangements for the detention of a “dangerous detainee”. It reads, in so far as relevant, as follows: “1. In a remand centre a detainee referred to in Article 212a shall be held 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 held; 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 is held; 4) a detainee’s movement around 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 leaves and enters his 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 ...; 9) a detainee may not use his own clothes or footwear. Rules on the use of handcuffs, fetters and other restraint measures are laid down in the Cabinet’s Ordinance of 17 September 1990 on conditions and manner of using direct restraint measures by policemen (as amended on 19 July 2005) (Rozporządzenie Rady Ministrów z dnia 17 września 1990 r. w sprawie określenia przypadków oraz warunków i sposobów użycia przez policjantów środków przymusu bezpośredniego) (“the 1990 Ordinance”). Paragraph 6 of the 1990 Ordinance reads, in so far as relevant, as follows: “1b Handcuffs shall be put on hands kept on the front. If a person is aggressive or dangerous, handcuffs may be put on hands kept behind the back. 2b In respect of persons detained or sentenced to imprisonment, in particularly justified cases joined shackles designed to be worn on hands and legs may be used.” 46. The “N” wards (from “niebezpieczny” – dangerous in Polish) designed for dangerous detainees are closed units within prisons or remand centres, shut off from other sections of the detention facility. They are placed in a separate building or in a specific part of the prison building fully isolated from other sections of the prison, usually through a special entry or corridor. A security door remains closed at all times and the entire ward is continually monitored via close-circuit television. Regular daily routines (provision of meals, clothes, etc.) are organised with the use of remotecontrolled devices, reducing to the minimum any direct contact between the detainees and the prison guards. The prison guards wear bulletproof jackets. Routine searches of cells are often carried out. 47. The detainees, whenever outside cells, even within the “N” ward, wear “joined shackles” or are handcuffed at all times. They are subjected to a personal check before leaving cells and on return. They all wear special red uniforms. They have a daily, solitary walk in a specially designated and segregated area and if they are allowed to spend some time in a day room, they usually remain alone. They are not necessarily subjected to solitary confinement and may share the cell with an inmate or inmates but, pursuant to paragraph 90 of the 2003 Ordinance, the number of detainees in the cell is limited to 3 persons at the same time. According to paragraph 91(1) of the Ordinance of the Minister of Justice of 31 October 2003 on means of protection of organisational units of the Prison Service (Rozporządzenie Ministra Sprawiedliwości z dn. 31 października 2003 r. w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej) (“the 2003 Ordinance”), a dangerous detainee can move about within the detention facility only singly. In justified cases such detainees may move in a group of three but under the increased supervision by the prison guards. Paragraph 91(4) states that, outside the cell and facilities designated for “N” detainees, an “N” inmate must be permanently and directly supervised by at least 2 prison guards. This restriction can only exceptionally and in justified cases be lifted by the Prison Governor. A dangerous detainee cannot perform any work using dangerous tools, handle devices designed to make dangerous or illegal objects, take up any work enabling him to set fire, cause an explosion or any danger to the prison security or work in any place enabling an escape or uncontrolled contact with other persons (paragraph 92). He is not allowed to make purchases in the prison shop but must submit his shopping list to a designated prison guard. The goods are delivered directly to his cell (paragraph 93). 48. As of 2008 there were 16 “N” wards in Polish prisons, which had the capacity to hold from 17 to 45 detainees. As of February 2010 there were 340 “dangerous detainees” (convicted or detained on remand) in “N” wards. 49. Article 116 § 2 of the Code of Execution of Criminal Sentences defines the “personal check” in the following way: “A personal check means an inspection of the body and checking of clothes, underwear and footwear as well as [other] objects in a [prisoner’s] possession. The inspection of the body, checking of clothes and footwear shall be carried out in a room, in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex.” 50. Pursuant to paragraph 94 § 1 of the 2003 Ordinance: “1. A [dangerous] detainee shall be subjected to a personal or cursory check, in particular: 1) before leaving the ward or the workplace and after his return there; 2) before individual conversations or meetings with the representatives of the prison administration or other persons that take place in the ward; 3) immediately after the use of a direct coercive measure – if it is possible given the nature of the measure; 4) directly before the beginning of the escort.” 51. By virtue of the law of 18 June 2009 on amendments to the Code of Execution of Criminal Sentences (ustawa o zmianie ustawy – Kodeks karny wykonawczy) (“the 2009 Amendment”) Article 212b was rephrased and new rules on monitoring detention facilities by means of close-circuit television were added. The 2009 Amendment entered into force on 22 October 2009. 52. The former text of Article 212b (see paragraph 45 above) became paragraph 1 of this provision and a new paragraph 2 was introduced. This new provision is formulated as follows: “2. The behaviour of a person in pre-trial detention referred to in Article 212a § 1 and 4 in a prison cell, including its part designated for sanitary and hygienic purposes and in places referred to in paragraph 1 (1) [of this provision] shall be monitored permanently. The images and sound [obtained through monitoring] shall be recorded.” 53. The above provision belongs to the set of new rules that introduced monitoring in prisons by means of close-circuit television as a necessary security measure. The new Article 73a reads, in so far as relevant, as follows: “1. Detention facilities may be monitored through an internal system of devices recording images or sound, including close-circuit television. 2. Monitoring, ensuring the observation of a prisoner’s behaviour, may be used in particular in prison cells including parts designated for sanitary and hygienic purposes, in baths, in premises designated for visits, in places of employment of detainees, in traffic routes, in prison yards, as well as to ensure observation of the prison grounds outside buildings, including the lines of external walls. 3. Monitored images or sound may be recorded with the help of appropriate devices. 4. Monitoring and recording of sound may not include information subject to the seal of confession or secret protected by law. 5. Images from close-circuit television installed in the part of the prison cell designated for sanitary and hygienic purposes and in baths shall be transmitted to monitors or other devices referred to in paragraph 3 in a manner making it impossible to show [detainees’] private parts or their intimate physiological functions. ...” 54. Pursuant to Article 73 (a) §§ 6 and 7, if the recorded material is not relevant for the prison security or security of an individual prisoner it shall be immediately destroyed. The Prison Governor decides for how long the relevant recorded material should be stored and how it is to be used. 55. However, all recorded material concerning a dangerous detainee is stored in accordance with Article 88c, which reads as follows: “The behaviour of a [detainee classified as dangerous] in a prison cell, including its part designated for sanitary and hygienic purposes and in places referred to in Article 88b (1) [places and premises designated for work, education, walking exercise, receiving visits, religious service, religious meetings and teaching, as well as cultural, educational and sports activity] shall be monitored permanently. The images and sound [obtained through monitoring] shall be recorded.” 56. Before that amendment, the rules on monitoring detainees were as included in paragraph 81 § 2 of the 2003 Ordinance, according to which a prison cell could be additionally equipped with video cameras and devices enabling listening. 57. Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, as applicable until 8 June 2010, a detainee was allowed to receive visitors, provided that he had obtained a visit permission (“zezwolenie na widzenie”) from the authority at whose disposal he remained, i.e. an investigating prosecutor (at the investigative stage) or from the trial court (once the trial had begun) or from the appellate court (in appeal proceedings). A detainee was entitled to 1 onehour long visit per month. 58. According to paragraphs 2 and 3, a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions. In practice, there are 3 types of visits: an “open visit”, a “supervised visit” (widzenie w obecności funkcjonariusza Służby Więziennej) and a “closed visit”. An open visit takes place in a common room designated for visits. Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact. Several detainees receive visits at the same time and in the same room. A supervised visit takes place in the same common room but the prison guard is present at the table, controls the course of the visit, may restrict physical contact if so ordered under the visit permission, although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transferring of any forbidden objects from or to prison. A closed visit takes place in a special room. A detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone. 59. Article 217 § 5 lays down specific conditions for receiving visits by dangerous detainees in the following way: “In the case of a [dangerous detainee], the governor of the remand centre shall inform the authority at whose disposal a detainee remains of the existence of a serious danger for a visitor and that it is necessary to grant a visit permission in a manner making [his or her] direct contact with a detainee impossible.” 60. The judgment was given following an application, lodged by the Ombudsman on 2 January 2007, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences was incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the Convention and Article 37 of the United Nations Convention on the Rights of the Child. The Constitutional Court’s judgment became effective on 8 July 2009, the date of its publication in the Journal of Laws (Dziennik Ustaw). 61. The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusing family visits to those in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee’s constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against a prosecutor’s decision to refuse a family visit to those in pre-trial detention. 62. On 5 November 2009 Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions stipulate that a detainee is entitled to at least one family visit per month. In addition, they indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments entered into force on 8 June 2010. 63. The relevant domestic law and practice concerning the censorship of prisoners’ correspondence are set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007. 64. Article 23 of the Civil Code contains a non-exhaustive list of socalled “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.” Article 24, paragraph 1, of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” 65. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 66. Articles 417 et seq. of the Polish Civil Code provide for the State’s liability in tort. Article 417 § 1 of the Civil Code (as amended) provides: “The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 67. Article 4421 of the Civil Code sets out limitation periods for civil claims based on tort, including claims under Article 23 read in conjunction with Articles 24 and 448 of the Civil Code. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows: “1. A claim for compensation for damage caused by a tort shall lapse after the expiration of three years from the date on which the claimant learned of the damage and of a person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.” 68. The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and in its the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. 69. The recommendation, in its part relating to the application of security measures reads, in so far as relevant, as follows: “51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. 51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control. 51.3 As soon as possible after admission, prisoners shall be assessed to determine: a. the risk that they would present to the community if they were to escape; b. the risk that they will try to escape either on their own or with external assistance. 51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk. 51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.” “52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves. 52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety. 52.3 Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety. 52.4 It shall be possible for prisoners to contact staff at all times, including during the night. 52.5 National health and safety laws shall be observed in prisons.” “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners.” 70. From 26 November to 8 December 2009 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) carried out a periodic visit to selected detention establishments in Poland. The CPT visited wards designated for dangerous detainees in the Poznań Remand Centre, the Racibórz Prison and the Rawicz Prison. The CPT report contains a general description of the “N” regime and a number of specific recommendations aimed at ameliorating conditions of detention of inmates with “N” category status in the establishments visited. It also lists recommendations aimed at removing perceived shortcomings in the “dangerous detainee” regime in general. 71. The following observations were made in paragraph 91 of the report in respect of the application of the regime: “The regime applied to ‘N’ category prisoners remained very restrictive, similar to the one described in the report on the 2004 visit. Out-of-cell time consisted essentially of one hour of outdoor exercise per day (taken either alone or in the company of a cellmate) and access to a recreation room twice weekly at Poznań Remand Prison and Racibórz Prison. Inmates could have their own TV in the cell. They were entitled to a weekly shower, two visits a month, and two phone calls per month for sentenced prisoners (at the prosecutor’s discretion for remand prisoners) at Rawicz and Racibórz prisons, and a five-minute-daily phone call for sentenced prisoners at Poznań Remand Prison. Contact with staff was limited to occasional visits by educators, psychologists and a chaplain. The CPT remains of the opinion that the regime for ‘N’ status prisoners should be fundamentally reviewed. Solitary confinement or small-group isolation for extended periods is more likely to de-socialise than re-socialise people. There should instead be a structured programme of constructive and preferably out-of-cell activities, and educators and psychologists should be proactive in working with "N" status prisoners to encourage them to take part in that programme and attempt to engage them safely with other prisoners for at least a part of each day. As stressed in the report on the visit in 2004, regardless of the gravity of the offences of which prisoners are accused or have been convicted and/or their presumed dangerousness, efforts must be made to provide them with appropriate stimulation and, in particular, with adequate human contact.” 72. In paragraph 92 of the report the CPT referred to the procedure for the classification as a “dangerous detainee” and the usually lengthy application of the “dangerous detainee” status in the following terms: “The procedure for allocation and review of ‘N’ status remained unchanged. Despite the presence of regular quarterly reviews, most prisoners remained in ‘N’ status for lengthy periods of time. ... The Committee must stress that placement in an ‘N’ unit should not be a purely passive response to the prisoner’s attitude and behaviour. Instead, reviews of placement should be objective and meaningful, and form part of a positive process designed to address the prisoner’s problems and permit his (re-)integration into the mainstream prison population. In the CPT’s opinion, the procedure for allocating a prisoner to ‘N’ status should be refined to ensure that only those who pose an ongoing high risk if accommodated in the mainstream of the prison population are accorded this status. Reviews of ‘N’ status should specify clearly what is to be done to assist the prisoner concerned to move away from the ‘N’ status and provide clear criteria for assessing development. Prisoners should be fully involved in all review processes. The Committee reiterates its recommendation that the Polish authorities review current practice with a view to ensuring that "N" status is only applied and maintained in relation to prisoners who genuinely require to be placed in such a category.” 73. In paragraph 94, the CPT expressed the following opinion regarding the practice of routine strip-searches: “The CPT also has serious misgivings about the systematic practice of obliging ‘N’ status prisoners to undergo routine strip-searches whenever entering or leaving their cells. The prisoners concerned had to undress completely, and squat fully naked in view of the guards and any prisoner(s) sharing the cell while all their clothes were examined. In the CPT’s opinion, such a practice could be considered as amounting to degrading treatment. The Committee recommends that strip-searches only be conducted on the basis of a concrete suspicion and in an appropriate setting and be carried out in a manner respectful of human dignity.” 74. The CPT gave the following general recommendations to the Polish Government in respect to prisoners classified as “dangerous” (“N” status): “- the Polish authorities to review the regime applied to ‘N’ status prisoners and to develop individual plans aimed at providing appropriate mental and physical stimulation to prisoners (paragraph 91); - the Polish authorities to review current practice with a view to ensuring that ‘N’ status is only applied and maintained in relation to prisoners who genuinely require to be placed in such a category (paragraph 92); - strip-searches to be conducted only on the basis of a concrete suspicion and in an appropriate setting, and to be carried out in a manner respectful of human dignity (paragraph 94). 75. The Polish Government’s response to the CPT report was published on 12 July 2011. 76. In respect of the recommendation that the Polish authorities should revise the regime applied to “N” status prisoners and develop individual plans aimed at providing inmates with appropriate psychological and physical stimulation (paragraph 91), they stated: “Adult[s] ... classified in the category of so-called dangerous offenders have a possibility of selecting a system in which they serve their sentence of imprisonment, i.e. programmed impact or an ordinary system. The above does not apply to sentenced juvenile offenders who are classified as dangerous and who obligatorily serve their sentence in the system of programmed impact. In an ordinary system, a convict may use employment available at the penitentiary institution, as well as education and cultural-educational and sports classes. As far as such convicts are concerned, no plans are made for application of the individual programme of impact. The individual programme of impact is prepared in co-operation with the convict who declared that he wishes to serve his sentence in the system of programmed impact, which anticipates active participation of the convict in the process of re-socialization by means of fulfilment of tasks imposed upon him as part of the programme which are aimed at solving the problems constituting the grounds for the offences he committed. Dangerous convicts qualified in a therapeutic system requiring specialized impact are presented with individual therapeutic programmes preceded by diagnosis, which encompasses: 1) a description of the causes of the event; 2) a description of irregularities in the area of cognitive, emotional and behavioural processes; 3) characteristics of the actual state of their psychological and physical condition; 4) a description of the problem constituting the grounds justifying delegation for the therapeutic system; 5) description of individual problems of the convict; 6) evaluation of motivation to participate in implementation of the individual therapeutic programme; 7) indication of positive features if personality and behaviour of the convict. When developing an individual therapeutic programme, the following should be specified: 1) the scope of the conducted activities; 2) purpose of impact, possible to be undertaken in the conditions of a therapeutic ward or outside such ward, taking into account the properties of the convict; 3) methods of specialized impact; 4) criteria for implementation of an individual therapeutic programme. Convicts qualified in the category of so-called dangerous are subjected to penitentiary impact with limitations deriving from the fact of causing by them of serious social threat or a serious threat to security of the institution. Moreover, they are subjected to impact whose purpose is to, in particular, decrease emotional tensions, as well as limitation of tendencies for aggressive or self-aggressive behaviours. In the individual programme of impact and the individual therapeutic programme conducted for him, methods and measures are specified which are aimed at mental and physical stimulation of the convict. It should also be emphasised that each inmate, including dangerous offender, exhibiting symptoms of worsening of his mental conditions is covered by psychological and psychiatric help. Moreover, dangerous inmates are also covered by intensive psychological supervision for the purpose of elimination of tensions resulting from an increased isolation. The Polish prison system developed rules of organization and conditions of conduct of penitentiary impact against convicts, persons under detention on remand and punished persons who pose serious social danger or serious danger for security of the penitentiary institution or a detention on remand centre, kept in conditions ensuring increased security of the community and the security of the penitentiary institution. Such solutions are aimed at intensification and unification of impact against dangerous inmates, and in particular: - directing the penitentiary work on preventing of negative consequences of limitation of social contacts by organization and initiation of desirable activity as part of cultural-educational and sports activities, re-adaptation programmes; - undertaking measures connected with maintenance of mental hygiene, including the reduction of the level of stress and aggression; - a need of allowing the inmate to commence or continue education (in particular in case of juvenile offenders); - undertaking of employment in the division; - impact based on educational and prophylactic programmes. Recommendations of the Committee concerning development of individual programmes for dangerous convicts have been taken into account and are implemented according to the provisions binding in this regard.” 77. Referring to the recommendation that the Polish authorities should verify their current practice in order to ensure that the “N” status is accorded appropriately and maintained only in respect of prisoners who do, in fact, require to be qualified in such category (paragraph 92), the Government responded: “In the Polish penal law, the basic legal act specifying criteria of qualifying inmates creating serious social danger or serious danger to security of the institution is the [Code of Execution of Criminal Sentences]. The aforementioned inmates are placed in a designated division or cell of a penitentiary institution or an investigation detention centre in conditions ensuring increased protection of the community and the security of the penitentiary unit. An authority authorized to verify a necessity of further stay of the inmate in a designated division or cell is a penitentiary commission. The penitentiary commission is obliged to verify its decisions in this regard at least once every three months. Decisions taken by the penitentiary commission shall be each time notified to the penitentiary judge, and in the event of detention on remand, also to the authority at whose disposal the inmate is. The penitentiary commission performed an inquisitive and, in every case, individual analysis of justification of the request for qualification, as well as verifies a necessity of continued stay of the inmates in delegated division or cell. Moreover, attention should be drawn to the fact that each decision of the authority executing the judgement according to Art. 7 of the [Code of Execution of Criminal Sentences] is subject to an appeal by the inmate. Summing up the above, we can state that such frequent verification of this category of inmates, an analysis of behaviours and a legal situation gives a guarantee of real evaluation of the situation of the inmate and possible benefits deriving from continued application against him of an extended system of protection.” 78. Lastly, in regard to the recommendation that a strip-search should be conducted only on the basis of a concrete suspicion and under appropriate conditions, as well as with respect for human dignity (paragraph 94 of the Report), the Government stated: “The principles and procedures of performing a personal search of the inmate and other persons in penitentiary institutions and investigation detention centres are regulated in the [Code of Execution of Criminal Sentences] and the [Ordinance of the Minister of Justice of 31 October 2003 on means of protection of organisational units of the Prison Service]. According to these provisions, personal check-up consists of examination of the body and checking clothes, underwear and shoes, including any objects in possession of the convict. Inspection of the body and checking-up clothes and shoes is each time performed by officers of the Prison Service in a separate room, in absence of any third parties and persons of a different sex, and is performed by persons of the same sex. The conducted control must, on many occasions have a prevention character, but it is always performed with respect for human dignity, applying the principle of humanitarianism and legality. The control is conducted for the purpose of finding dangerous and forbidden products and preventing an escape or in other justified cases. Departure from these rules would entail a realistic threat to security of the penitentiary unit and inmates kept therein.”