CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 juillet 2023

.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 } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; 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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s76CF415B { page-break-before:always; clear:both } .s31EEE7E5 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; line-height:150% } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3B53EBD4 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:9pt } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } Published on 28 August 2023   FIRST SECTION Application no. 78366/17 P.W. against Poland lodged on 18 October 2017 communicated on 10 July 2023 and 2 other applications – see appended list STATEMENT OF FACTS 1.     The applicant, Mr P.W., is a Polish national who was born in 1965. 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 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. Detention at the Gostynin Centre 3.     On 15 November 2005 the applicant was convicted of rape and sentenced to twelve years’ imprisonment. On 21 September 2016 he was released from prison. On an unspecified date, the Director of Rzeszów Prison asked the Rzeszów 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”). 4.     On 12 September 2016 the Rzeszów Regional Court found the applicant to be a person representing a threat and placed him at the Gostynin Centre. On 7 February 2017 the Rzeszów Court of Appeal dismissed an appeal by the applicant. On 10 August 2017 the Supreme Court dismissed a subsequent cassation appeal by the applicant. The applicant has remained in the Centre since 10 February 2017. Individual therapy plan 5.     In letters dated 1 March 2017, 10 October 2017, 5 February 2018, 21   February 2019 and 23 September 2020, the applicant asked the Director of the Centre and the psychologist conducting his therapy to either prepare his individual therapy plan or disclose a copy of a plan that already existed. In replies dated 1 March 2019 and 5 October 2020, the Director stated that the applicant’s progress had been recorded in periodic reports and the 2013 Act did not contain any provisions allowing disclosure of the plan. 6.     On 30 May 2019 the applicant asked the Płock Regional Court to order the Director to establish an individual therapy plan, but to no avail. On 1 July 2019 a judge from the Płock Regional Court informed the applicant that the court had no power to make such an order. On 22 August 2019, the President of the Płock Regional Court informed the applicant about an inspection that had been conducted by a judge under the Mental Health Protection Act of 19   August 1994. The President stated that the inspecting judge did not have the right to interfere with individual therapy plans. Access to legal information 7.     After the applicant arrived at the Centre, his personal laptop was confiscated and put into the storage room while the cassation appeal proceedings concerning his detention were still pending. 8.     In letters dated 27 February 2017, 10 April 2017, and 12 April 2017, the applicant asked the Director of the Gostynin Centre to release his laptop from the storage so that he could use it to access relevant legislation and judgments. The applicant said that there was no library at the Centre with access to the Internet. On 31 May 2017, the Director responded that he could not release the requested device because of security concerns, and that the Centre did not provide access to the Internet or to legislation and case-law. 9.     The applicant lodged an interlocutory appeal against that decision with the Płock Regional Court, arguing that the refusal infringed his constitutional right to receive information as provided in Article 54 of the Constitution. On   24 July 2017 the Płock Regional Court rejected the appeal as lodged out of time. According to the court’s findings, during admission to the Centre, the Director of the Centre had informed all patients (including the applicant) about the lack of access to the Internet. In the court’s view, the time-limit for lodging an interlocutory appeal against that decision had expired seven days after the applicant’s admission. The applicant tried to initiate a further appeal against that decision, but to no avail. 10.     On 3 January 2018 the applicant instituted civil proceedings for infringement of his personal rights ( naruszenie dóbr osobistych ) in the Gostynin District Court, claiming 50,000 Polish zlotys (PLN) in compensation. He argued that the deprivation of access to information was unlawful as the Constitution required such a limitation on the exercise of constitutional freedoms and rights to be imposed by statute. 11.     On 24 May and 14 August 2018, the court held hearings in which it heard the applicant in person. On 19 October 2018, the Gostynin District Court dismissed the applicant’s claim. The court found that the Centre had set up a kiosk that enabled the patients to access the Internet sites of the Polish Ombudsman, the National Patients’ Ombudsman and the European Court of Human Rights and a database of legal instruments. While dismissing the applicant’s claim, the court found that the limiting of the applicant’s right to access information was justified by the aims of the 2013 Act and remained necessary for the protection and safety of others. 12.     On 19 November 2018 the applicant lodged an appeal with the Płock Regional Court. In his appeal the applicant argued, among other things, that even though he could access the home pages of the institutions mentioned above, he could not access any links or further references on those sites. 13.     The second-instance court scheduled a hearing date for 30 January 2019. On 8 January 2019, the applicant asked to be brought from the Gostynin Centre to the hearing. On 10 January 2019 the Płock Regional Court denied his request. 14.     On 7 February 2019 the Płock Regional Court dismissed the applicant’s appeal. The court found that there was no dispute between the parties as to the facts of the case. In dismissing the appeal, the court concurred with the reasons given by the first-instance court, namely that the limitations were justified by the aims of the 2013 Act and remained necessary for the protection and safety of others. Conditions of family visits 15.     The applicant receives visits from his partner and stepdaughter at the Centre. He states that the visits are regulated by the internal rules of the Centre. According to the rules, any sexual acts during the visits are forbidden. The applicant submits that that rule is interpreted as including any form of touching the visitors and that, as a consequence, he is not allowed to have any physical contact with his partner and stepdaughter during visits. Moreover, the rules forbid him and the visitors to have any sort of drink or meal during the visit or to leave the visitors’ room in the Centre and spend time, for example, at the recreational area in the facility. 16.     In letters dated 5 June 2017, 1 March, 7 May and 6 August 2018, he requested the Director of the Centre to grant him leave to spend time with his family outside the facility. In letters dated 9 June and 17 July 2017, 6 March, 16   May and 9 August 2018, the Director informed the applicant that the 2013 Act did not include any legal provision allowing interruption of his detention in the Gostynin Centre and he denied the applicant’s requests. 17.     On 20 August 2018 the applicant lodged a complaint with the Płock Regional Court. He argued that the legal basis for such leave could be found in the Mental Health Protection Act of 19 August 1994, and since the Gostynin Centre was a therapeutic institution, those provisions should be applicable to his situation. On 17 September 2018, the Płock Regional Court found that the 2013 Act did not contain regulations concerning temporary leave from the Centre. As a consequence, the court rejected the applicant’s interlocutory appeal as inadmissible in law. Hunger strike 18.     On 14 October 2018 the applicant began a hunger strike. 19.     On 10 December 2018, the Director of the Gostynin Centre asked the Płock Regional Court to authorise the force-feeding of the applicant. On 13   December 2018 the Płock Regional Court found that it lacked jurisdiction and transferred the case to the Łódź District Court. 20.     On 20 December 2018 a doctor at the Centre diagnosed the applicant with electrolyte disorders and referred him to the hospital. 21.     On 21 December 2018 staff at the Centre informed the applicant that he was about to be moved to the hospital in Łódź Prison in order to be subjected to force-feeding. The applicant refused to cooperate. Consequently, the applicant was handcuffed and forcibly moved to the hospital in Łódź Prison. 22.     The Łódź Prison Hospital refused to administer the force-feeding procedure or to admit the applicant. The hospital authorities said that they had no access to either a full medical history or the treatment administered to the applicant so far, that no information as to the court order authorising force ‑ feeding had been provided, and that there was no legal basis for the admission of the applicant to a prison hospital. The applicant agreed to undergo a   physical check-up but refused to allow any laboratory tests. After it was confirmed that the overall condition of the applicant was satisfactory, the applicant was taken back to the Gostynin Centre. 23.     On 24 January 2019 the Łódź District Court discontinued the proceedings finding that on 24 December 2018 the applicant had ended his hunger strike and his health was no longer in danger. 24.     On 16 January 2019 the applicant’s sister lodged a criminal complaint ( zawiadomienie o popelnieniu przestepstwa ) against the Director of the Centre. She asked the authorities to secure the CCTV recording from 21   December 2018. The applicant gave an oral deposition to the police on 5   February 2019. On 16 May 2019 the Gostynin District Prosecutor refused to open an investigation. On 30 May 2019 the applicant lodged another criminal complaint against staff at the Centre, accusing them of, among other things, abuse of power (Article 231 of the Criminal Code) and referring to the existence of a CCTV recording from 21 December 2018. 25.     On 16 July 2019 the Gostynin District Prosecutor refused to open an investigation, finding that the 2013 Act contained relevant provisions allowing staff of the Centre to use force and direct coercion on patients. The applicant lodged an interlocutory appeal against this decision with the Gostynin District Court. On 16 September 2020, the Gostynin Court upheld the prosecutor’s decision and his findings. 26.     On 28 December 2018 and 4 September 2019, the applicant filed a   complaint with the Patient Ombudsman. In his response dated 20 April 2020, the Ombudsman found there had been no infringement of the applicant’s patient rights by the Gostynin Centre. The applicant lodged an appeal against that decision with the administrative courts. It appears that the proceedings are currently pending. Prohibition on using phones 27.     On 14 November 2018 the Director of the Centre took away the applicant’s right to use his mobile phone and the phone available in the Centre. The applicant asked the Director to give written reasons for that decision. On 21   November 2018 the Director informed the applicant that the decision had been issued in accordance with section 29 of the 2013 Act. 28.     The applicant lodged an interlocutory appeal with the Płock Regional Court. On 6 February 2019 the Płock Regional Court dismissed the appeal. The decision did not contain any written reasoning. The applicant asked the court to provide reasons for its decision. On 23 July 2019 the Płock Regional Court refused, finding that such a request was inadmissible in law. Prohibition of a visit from A.G. 29.     On 17 November 2018 the Director of the Gostynin Centre prohibited the applicant from receiving visits from A.G., an academic who was discussing the applicant’s situation as a patient at the Gostynin Centre with him. The applicant lodged two interlocutory appeals against that decision, dated 25   November and 3 December 2018. 30.     The interlocutory appeal dated 25 November 2018 was accompanied by a letter sent by the Director of the Centre to the Deputy Minister of Health. The Director asked the Deputy Minister to authorise a prohibition on visits from academics, namely A.G. and her colleague M.P. He argued that the activities of those academics were contributing to the growing resentment against the Centre that was surging in the media and that their meetings with patients led them to oppose the Centre’s policies. 31.     On 28 January 2019 the Płock Regional Court dismissed the applicant’s interlocutory appeal against the Director’s decision dated 17   November 2018. On 6 February 2019, the Płock Regional Court quashed the Director’s decision of 17 November 2018. Neither decision indicated which of the interlocutory appeals the court was deciding. 32.     The applicant asked the court to provide written reasons for the 28   January 2019 decision. On 23 July 2019, the Płock Regional Court refused, finding that such a request was inadmissible in law. Search of the applicant’s belongings 33.     On 30 October 2018 and 4 February 2019, the employees of the Centre searched the applicant’s belongings. It appears that the applicant was not informed of any reasons for the searches. He lodged two interlocutory appeals against both incidents with the Płock Regional Court. 34.     On 14 February and 14 May 2019, the Płock Regional Court dismissed the applicant’s interlocutory appeals against, respectively, the searches of 30 October 2018 and 4 February 2019. 35.     The applicant asked the Płock Regional Court to provide written reasons for the decisions to search his belongings. On 23 July 2019 the Płock Regional Court refused, holding that such a request was inadmissible in law. Relevant legal framework 36.     The relevant law and practice are set out in the communication report in the case of W v. Poland (no. 43562/17, published on HUDOC on 7   February 2022). COMPLAINTS 37.     In his application forms and letters dated 14 May 2018, 28 June 2019, 6   August 2019, 10 December 2019 and 15 March 2021 the applicant complains that detention at the Gostynin Centre amounts to inhuman and degrading treatment prohibited under Article 3 of the Convention. In particular, he refers to overcrowding, inadequate sanitary conditions, the limited availability of outdoor exercise, scarce opportunities for contact with the outside world, and the arbitrary treatment of him by the authorities in various proceedings referred to in his application to the Court. The applicant also argues that the Centre cannot provide effective therapy owing to the conditions there and the lack of an individual therapy plan. 38.     In letters dated 6 August 2019 and 15 May 2021, the applicant, referring to the events that took place on 21 December 2018 surrounding his hunger strike, alleges that the use of force by the staff of the Centre was unlawful and violated his personal integrity. The applicant also submits that the authorities failed to conduct a proper criminal investigation into those events. 39.     In his letters dated 6 August 2019 and 15 March 2021, the applicant, invoking Article 8 of the Convention, complains about the arrangements for family visits at the Centre. In particular, he submits that during the visits he is forbidden to have physical contact with his visitors and that they cannot eat a meal together or spend time outside the visitors’ room. The applicant claims that the environment of the Gostynin Centre is not appropriate for visits from families, and that the Director’s persistent refusal to allow him to meet his relatives outside the facility infringes the right to respect for his family life provided in Article 8 of the Convention. 40.     In the application form dated 14 November 2017, the applicant, with reference to Article 10 of the Convention, questions the legality and proportionality of the restrictions on his access to information imposed at the Centre. Moreover, he complains of arbitrariness in the decisions taken by the Płock Regional Court following his complaints against the disputed restrictions. In his letter dated 6 August 2019 the applicant submits that the domestic courts dismissed his complaint about the lack of access to information in an arbitrary fashion without properly addressing his arguments or allowing him to attend the second-instance court hearing. 41.     In letters dated 6 August and 10 December 2019 the applicant complains that the various restrictions he was subjected to (the prohibition on using the phone and on visits from A.G. and the searches of his belongings) had no legal basis, and that neither the Director nor the courts provided any reasons for the imposition of those restrictions.     QUESTIONS TO THE PARTIES 1.     Therapy and conditions at the Gostynin Centre Article 3 1.     Did the physical conditions of the applicant’s detention at the Gostynin Centre, in particular the personal space available, general overcrowding and the constant presence of 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 of 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.     Have the Centre authorities prepared and implemented an individual therapy plan for the applicant? 3.     Having regard to the conditions prevailing at the Gostynin Centre referred to in question number 1 and the issue raised in question number 2, was it possible for the applicant to properly follow the therapeutic treatment offered there? If the response is in the negative, did that situation amount to inhuman or degrading treatment (see Rooman v. Belgium [GC], no. 18052/11, §§   141-48, 31 January 2019)?   Article 5 § 1 (e) 1.     Have the Centre authorities prepared and implemented an individual therapy plan for the applicant? If the response is in the negative, having regard to the purpose of the applicant’s detention and the authorities’ obligations under the 2013 Act to prepare individual therapy plans for the patients at the Centre, was the applicant’s detention “lawful” within the meaning of Article   5 §   1 (e) of the Convention? 2.     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 provided with a proper therapeutic environment at the Gostynin Centre as required by Article 5 § 1 (e) of the Convention (see Rooman , cited above, §§ 205-11)? Reference is made to the reports mentioned above in question number 1 concerning the complaint under Article 3.   2.     Use of force and handcuffs Article 3 1.     Has the applicant been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention on account of being taken forcibly to the hospital and the use of restraint measures during the actions undertaken on 21 December 2018 with a view to subjecting him to force-feeding (see   Shlykov and Others v. Russia , nos. 78638/11 and 3 others, §§ 69-76, 19   January 2021, and Nevmerzhitsky v. Ukraine , no. 54825/00, §§ 93-98, ECHR 2005-II (extracts))? Reference is made to the fact that at the relevant time there was no domestic court decision authorising force-feeding of the applicant. 2.     As regards the procedural aspect of Article 3, was the investigation into the events of 21 December 2018 “thorough and effective”, as required by this provision (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV)?   3.     Access to legal information   Article 10 1.     Have the restrictions on the applicant’s access to information, in particular information about legislation and case-law, infringed the applicant’s right to receive information as provided for in Article 10 of the Convention? 2.     If so, was that interference in accordance with the law, in pursuit of a   legitimate aim, and necessary in a democratic society in terms of Article   10 §   2 of the Convention (see Kalda v. Estonia , no. 17429/10, §§ 41-54, 19   January 2016)? 3.     Was the applicant afforded adequate procedural safeguards during the domestic proceedings in which he had raised his complaint pertaining to Article   10 of the Convention (see Karácsony and Others v. Hungary [GC], nos.   42461/13 and 44357/13, §§ 133-36, 17 May 2016)?   4.     Conditions of family visits   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 the conditions in which the applicant has to receive visits from his family? 2.     If so, was that interference in accordance with the law, in pursuit of a   legitimate aim, and necessary in a democratic society within the meaning of Article 8 § 2 of the Convention (see Khoroshenko v. Russia [GC], no.   41418/04, § 127-49, ECHR 2015)?   5.     Prohibitions against using phones and receiving visits from A.G. and searches of the applicant’s belongings   Article 8 1.     Has there been an interference with the applicant’s right to respect for his private life within the meaning of Article 8 § 1 of the Convention on account of the revocation of his rights to possess a mobile phone at the Centre and to receive visits from A.G. and the searches of his belongings? 2.     If so, was that interference in accordance with the law, in pursuit of a   legitimate aim, and necessary in a democratic society in terms of Article   8 §   2? Reference is made to the fact that the applicant did not receive any written justification for the decisions in question (see Wegera v. Poland , no.   141/07, § 74-75, 19 January 2010; Gradek v. Poland , no. 39631/06, §   47 ‑ 48, 8 June 2010; and Nurzyński v. Poland , no. 46859/06, § 41-42, 21   December 2010).   APPENDIX   No. Application no. Case name Lodged on 1. 78366/17 P.W. v. Poland 18/10/2017 2. 83161/17 P.W. v. Poland 14/11/2017 3. 38717/19 P.W. v. Poland 28/06/2019