CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 février 2022

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sADADF4A7 { font-family:Arial; text-decoration:underline } Published on 14 March 2022   FIRST SECTION Application no. 20228/19 Ł. K. against Poland lodged on 24 June 2019 communicated on 22 February 2022 STATEMENT OF FACTS 1.     The applicant, Mr Ł.K., is a Polish national, who was born in 1982. He is currently detained in the National Centre for the Prevention of Dissocial Behaviour in Gostynin (“the Centre” or “the Gostynin Centre”). The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. Detention at the Gostynin Centre 2.     In 2004 the applicant was convicted of rape, sexual assault, assault and attempted robbery and sentenced to a term of imprisonment. In 2005 he was convicted of assaulting a prisoner and sentenced to a suspended term of imprisonment. In 2008 the applicant was convicted of the rape and assault of a woman and sentenced to ten years’ imprisonment. 3.     The applicant had been in prison since 25   August 2007. On 17   May 2017 he was transferred to a therapeutic wing of Sztum prison. He was due to be released on 21   August 2018. 4.     On an unspecified date in 2017 the Director of Sztum prison requested the Gdańsk Regional Court to declare the applicant a person representing a threat ( osoba stwarzająca zagrożenie ) within the meaning of the Act of 22   November 2013 on the Procedure regarding Mentally Disturbed Persons Representing a Threat to Life, Health or Sexual Freedom of Others (“the 2013 Act”) and to order his detention at the Gostynin Centre. He also applied for an interim injunction ordering the applicant to be confined to the Centre for the duration of the proceedings. 5.     On 3   August 2018 the Gdańsk Regional Court granted the interim injunction. The applicant’s interlocutory appeal was dismissed on 2   October 2018. 6.     On 21 August 2018 the applicant was released from Sztum prison and transferred to the Gostynin Centre on the basis of the interim injunction. 7.     On 17 December 2018 the Gdańsk Regional Court found the applicant to be a person representing a threat and ordered his detention at the Gostynin Centre. It relied on the report prepared by a group of court experts, including a psychologist, a psychiatrist, and a sexologist. The experts concluded that the applicant had been suffering from a dissocial personality disorder and disorder of sexual preference (paraphilia – sadism). The risk that the applicant would commit further serious violent offences owing to these disorders if released was found to be very high. According to the report, given this risk, a therapy provided outside a closed facility would be ineffective. 8.     On 5 May 2019 the Gdańsk Court of Appeal dismissed the applicant’s appeal. The applicant did not lodge a cassation appeal with the Supreme Court. General living conditions 9.     The applicant claims to be detained in cramped conditions, sharing a shower with sixteen other detainees, and having only one hour of outdoor exercise per day. He also claims that CCTV is present in rooms, showers, and toilets. According to the regulation of the Minister of Health of 16   January 2014 the capacity of the Centre was sixty patients, while in April 2021 there were ninety-three persons detained there. Family visits 10.     The applicant receives visits from his parents at the Centre. He claims that during family visits a guard is constantly present in the room. According to the applicant, every such visit is preceded by a search during which he must strip naked and his belongings are searched by a centre guard. Relevant legal framework 11.     The relevant law and practice is set out in the communication report in the case of W v. Poland , no.   43562/17, published on HUDOC on 7   February 2022. COMPLAINTs 12.     The applicant complains about his detention at the Gostynin Centre. He claims that the Centre does not resemble a therapeutic institution on account of the poor living conditions, the lack of space, insufficient sanitary conditions (one shower shared between seventeen patients), limited outdoor activities and constant CCTV surveillance. 13.     The applicant complains under Article 8 of the Convention about the restrictions on his right to contact with his family. He is not allowed to meet his parents without a guard being in close proximity. The said restriction did not have a legal basis in a statute as required by the Constitution. It was also disproportionate because it was applied without any assessment of his individual situation, while there were no indications that he could pose a threat to his parents. Moreover, the applicant claims that before every family visit, he has to strip naked and undergo a search in the presence of a guard. QUESTIONS TO THE PARTIES Article 3   1.     Did the material conditions of the applicant’s detention at the Gostynin Centre, in particular the personal space available, general overcrowding and the constant presence of the guards, amount to inhuman or degrading treatment? Reference is made to: (1) the reports on the Ombudsman’s visits carried out on 26   June 2017 and 2   July 2018; (2)   the reports on the visits by the National Mechanism for the Prevention of Torture carried out from 18 to 20   February 2019 and from 8 to 10   March 2021; and (3) the findings made in the report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Poland carried out from 11 to 22   May 2017. 2.     Having regard to the conditions prevailing at the Gostynin Centre, was it possible for the applicant to properly follow the therapeutic treatment offered there? In the negative, did that situation amount to inhuman or degrading treatment (cf.   Rooman v.   Belgium [GC], no.   18052/11, §§   141 ‑ 148, 31   January 2019)? 3.     The Government are invited to provide the Court with copies of any documentation from the applicant’s personal files, including medical documentation and documentation on the conditions in the Centre that they consider useful for addressing the applicant’s complaints and the examination of his case by the Court.   Article 5 §   1 (e)   Having regard to the conditions prevailing at the Gostynin Centre and the purpose of his detention, was the applicant’s detention “lawful” within the meaning of Article 5 §   1 (e) of the Convention? In particular, was the applicant ensured a proper therapeutic environment at the Gostynin Centre as required by Article 5 §   1 (e) of the Convention (cf. Rooman v.   Belgium [GC], no.   18052/11, §§   205-211, 31   January 2019)? Reference is made to the reports mentioned above.   Article 8 §   1   1.     Has there been an interference with the applicant’s right to respect for his family life within the meaning of Article   8 §   1 of the Convention, on account of: (1) the guards, equipped with special means, being constantly in close proximity during family visits and, (2) the obligation to strip naked and undergo a search before and/or after every family visit? 2.     If so, was that interference in accordance with the law in terms of Article   8 §   2? Reference is made to the fact that the restrictions in the form of: (1) the constant presence of guards and, (2) the obligation to strip naked and undergo a search do not have a legal basis in the statute and are solely provided for by the internal rules of the Centre. 3.     Did the authorities put disproportionate restrictions on the applicant’s contact with his family during his detention on account of: (1) the guards being constantly present during each and every family visit, and (2) the routine obligation to strip naked and undergo a search before and/or after every family visit? 4.     The Government are requested to provide information about the dates on which the applicant received visits from his family. 5.     The Government are requested to provide information about the rules governing the visits of the patients’ relatives in the Gostynin Centre.