CASE OF PUGŽLYS v. POLAND
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1966 and is detained in the Suwałki Prison. 6 7. On 30 April 2003 the Suwałki Regional Prosecutor’s Office issued an arrest warrant against the applicant on suspicion of his being the leader of an international organised criminal group and six counts of kidnapping for ransom committed by members of that group. On the same day the Suwałki District Court issued a decision ordering the applicant’s detention on remand, relying on the reasonable suspicion that he had committed the offences in question. It attached great weight to the possibility that the applicant might attempt to obstruct the proceedings by bringing pressure to bear on witnesses and other suspects. 8. On 22 April 2003 the applicant was arrested in the Netherlands. 9. The extradition request, arrest warrant and detention order were sent to the Netherlands. The applicant was transferred to Poland on 20 October 2003. 10. On 8 April 2004 the Suwałki Regional Prosecutor indicted the applicant before the Augustów District Court. The case was later transferred to the Lublin Regional Court. 11. The applicant’s appeal against the detention order, 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. 12. In the meantime, in another set of criminal proceedings, on 1 April 2005, the Suwałki Regional Court convicted the applicant of armed robbery and sentenced him to four years and six months’ imprisonment (II K 96/04). The judgment was upheld on appeal. He served this sentence from 21 January 2006 until 20 July 2010. 13. The bill of indictment was first lodged with the Augustów District Court, which declared itself not competent to deal with the case on 14 April 2004. The case was then transferred to the Lublin District Court, where the trial commenced on 21 September 2004. The court held many hearings and heard witnesses. On 26 January 2006 the prosecutor submitted a request for the case to be transferred to the Lublin Regional Court. Following various appeals and challenges, on 26 September 2006 the Warsaw Court of Appeal finally decided that the Lublin Regional Court was competent to deal with the applicant’s trial. The trial commenced before the Lublin Regional Court in December 2006. The court held at least sixty-five public hearings lasting up to four hours. 14. At the hearings before the Lublin District Court and Lublin Regional Court the applicant had the services of a Lithuanian interpreter. On a few occasions a Russian interpreter was provided as the applicant agreed that he spoke Russian well enough. On 4 January 2007 the applicant expressed his preference for a Lithuanian interpreter and one was provided until the end of the trial. 15. On numerous occasions the applicant, assisted by an interpreter, examined the file. According to the Government, the file was examined on 14 November and 2 December 2007, 3 January, 7, 17 and 31 March and 5 May 2008 at the very least. At the applicant’s request the trial court provided him with translations of documents. In addition, at four hearings in 2005 the applicant requested copies of the relevant documents in Polish. 16. On 5 October 2007 the applicant asked the trial court to allocate another legal aid lawyer to him. He contended that he had argued with the incumbent lawyer and could not communicate with him. It appears that at the hearing the lawyer endorsed the request made by the applicant, but the court dismissed it. 17. At the hearing of 7 January 2009 the applicant challenged the presiding judge. However his challenge was dismissed. 18. On 27 January 2010 the Lublin Regional Court (IV Ka 338/06) convicted the applicant as charged. In particular he was convicted on six counts of kidnapping for ransom and leading an organised criminal gang. The applicant was sentenced to twelve years’ imprisonment. The period of the applicant’s detention from 22 April 2003 until 20 January 2006 was credited towards the sentence. 19. During the trial before the Lublin District and Regional Courts the applicant was represented by Mr M.C. a lawyer from Białystok, appointed for him by the court. The lawyer prepared an appeal on his behalf. In his appeal he raised, inter alia, a breach of the applicant’s defence rights under Article 6 of the Convention and argued that the applicant had not had access to his lawyer in the presence of an interpreter and full access to the case file in his own language. 20. On 7 December 2010 the Lublin Court of Appeal (II AKa 235/10) upheld the conviction. The court dismissed the allegations regarding the impossibility of communicating with his lawyer, who spoke only Polish, as manifestly ill-founded. The court established that the applicant had had access to a sworn interpreter during the entire trial, including meetings with the lawyer. The appellate court also found that the applicant had not been hindered in his right of access to the case file, which he consulted on many occasions in the presence of his interpreter. The court stated: “During the entire proceedings the accused benefited from free counsel with whom he could communicate in the presence of an interpreter. The regional court even organised recesses during the hearing in order to enable the applicant to contact his lawyer in the presence of a sworn interpreter. Consequently, one cannot share the accused’s allegation of a breach of Article 6 of the Convention or other provisions. Moreover, throughout the proceedings the first-instance court provided him with copies of the requested documents...” 21. A new lawyer allocated to the applicant at this stage of the proceedings, Mr A.D., lodged a cassation appeal against the judgment. He argued that the contact with the lawyer during recesses in the trial had occurred in the presence of police officers and sometimes lay judges or judges’ assistants. That rendered respect for the applicant’s defence rights illusory. The requests for unsupervised meetings with the lawyer in the presence of the interpreter had been dismissed by both the trial court and the court of appeal. In the cassation appeal he further argued that the trial court never actually provided the applicant with copies of the translated documents although it had agreed to do it. Moreover, the court had asked the applicant to pay for them although he did not have any financial means. 22. On 4 April 2012 the Supreme Court dismissed the applicant’s cassation appeal. The translation into Lithuanian of this judgment had been received by the applicant on 7 July 2012. As regards the arguments put forward in the cassation appeal, the court stated that the applicant had been detained on remand and had therefore had to be accompanied by guards during the meetings with the lawyer which had taken place during recesses in the trial court hearing. The court further noted that the requirements of Article 6 of the Convention had been fulfilled as the applicant had had translations of the most important documents necessary for his comprehension of the case, even if not the entire file. 23. On 21 October 2003 the Suwałki Remand Centre requested to classify the applicant as a so-called “dangerous detainee”. In their request the authorities pointed out that the applicant had been charged with having committed several counts of kidnapping for ransom, robberies and attempted murder and of being a leader of an international, armed, criminal group. The applicant was searched by an arrest warrant and apprehended in Amsterdam. The remand centre authorities stated: “his personal situation, character and behaviour pose a serious danger to society or to the security of a remand centre”. They further indicated that the security of all transfers of the applicant be strengthen “given the character and the manner in which the offences had been committed and the fact that [the applicant] had previously practiced box and combat techniques”. The request ends: “He is a person of high degree of depravity”. On the same day the Lublin Remand Centre Penitentiary Commission decided to classify the applicant as a “dangerous detainee”. The commission stated that the main reason for the classification was the suspicion that the applicant had committed offences within an organised criminal group (Article 212a § 3 and §4 (c) of the Code of Execution of Criminal Sentences). 24. On an unspecified date the applicant lodged a complaint with the Lublin Regional Prison Service Inspectorate concerning the constant monitoring of his cell, repeated body searches and the lack of unsupervised visits. On 15 February 2010 the complaint was declared manifestly illfounded. 25. Every three months the Lublin Remand Centre Penitentiary Commission reviewed and reaffirmed its decision to classify the applicant as a “dangerous detainee”. The relevant decisions were limited to short descriptions of the nature of the charges laid against him, and later offences of which he had been convicted which, together with his “personal situation”, justified the maintaining of the previous decisions. In the requests for extension of the regime issued prior to each decision of the commission, the director of the remand centre emphasised the violent nature of the crimes which the applicant had allegedly committed. In the requests of 19 October 2004 and 9 January 2005 the authorities referred to the applicant’s “personal circumstances (ruthless and cruel manner in which the crimes were committed taken together with the knowledge of box and combat techniques)”. In the more recent requests the remand centre authorities pointed out that the applicant had not taken any active part in the “social rehabilitation process” and had been of low moral character. All the commission’s decisions and the requests by the remand centre issued between April 2005 and 2012 had similar wording. 26. The applicant appealed against some of those decisions. In particular, he appealed against the decision of 2 April 2009, but this was dismissed by the Lublin Regional Court on 8 June 2009. The applicant also appealed against the commission’s decision of 29 April 2011 and on 6 September 2011 the Białystok Regional Court upheld it. In addition to that, the applicant submitted that he had appealed against the decision of 4 August 2011 which was dismissed on 11 October 2011. On 26 March 2012 the Białystok Regional Court dismissed his appeal against the decision of the commission issued on 27 January 2012. The domestic courts examined the legality of the impugned decisions and found that they had been given in accordance with the law and after a thorough analysis of the case. In particular due consideration had to be given to the nature of the offences allegedly committed by the applicant and of which he had been later found guilty. The courts also found that the authorities based their decisions on an exhaustive assessment of the applicant’s behaviour. 27. On 25 July 2012 the Białystok Remand Centre Penitentiary Commission decided to lift the measure. The commission considered that the applicant no longer posed a threat to the security of the remand centre. 28. On 11 October 2007 the Lublin Regional Court granted the applicant’s request to be allowed to make phone calls from the detention centre. During his subsequent detention in the Lublin and Suwałki Remand Centres the applicant was authorised to make two telephone calls per week, each lasting ten minutes. For a short period of time in 2010 the use of telephone was limited to once a week but the call duration extended to 15 minutes. 29. In addition to that, the applicant was often granted additional telephone conversations with his family, daughter, lawyer, or diplomatic representatives. In 2010 these took place on eight occasions and in 2011 on seven occasions. At his request, on seven occasions in 2010 the authorities extended the allotted time to fifteen minutes. 30. The visits by the applicant’s family, his common-law wife and daughter, were subject to restrictions, but he had been able to receive them regularly. The first visit from his common law wife took place in August 2004, followed by two other in the same year. From the list of visits submitted by the Government and not contested by the applicant, it appears that between 2004 and 2009 he had had between two and four visits every year at least. In 2010 he had in total eight visits mostly from his wife and daughter. Each visit lasted between thirty minutes and two hours. 31. The applicant was not restricted in receiving correspondence from his family. 32. The Government acknowledged that during the hearings before the Lublin Regional Court the applicant had been held in a metal cage separating him from the judges and the public, and whilst in the cage, his hands had remained handcuffed. 33. The parties failed to provide a detailed description of the cage, in particular its dimensions. It is also not clear whether the guards were positioned inside the cage with the applicant or next to it. 34. The parties disagreed as to the number of hearings during which the applicant remained in the cage. The applicant stated that he was placed in the metal cage, with his hands and legs shackled, during all the hearings before the trial court, approximately 104 of them. The Government submitted that he was placed in the cage, handcuffed, during some hearings before the Lublin Regional Court but not all of them. 35. The Government also submitted that on 7 October 2010 the applicant received disciplinary punishment for having verbally threatened a prison guard.