The European Court of Human Rights („ECtHR”) will deal with these issues in the case of Piechowicz v. Poland (application No 20071/07). The applicant in this case was classified as dangerous priosner and detained in the „N” unit. The „N” regime raises serious doubts in terms of its compliance with the European Convention of Human Rights and Basic Freedoms („the Convention”), for this reason the Helsinki Foundation for Human Rights („HFHR”) decided to file its Amicus Curiae brief (hereinafter „the Brief”). The brief points out the relevant deficiencies in the Polish regulation of the „N” regime.
Stegarescu and Bahrin v. Portugal – the lack of effective appeal affects rights of the prisoners
The European Court of Human Rights dealt with similar issues in its recent judgment, released soon after the HFHR’s filed its Brief.
In Stegarescu and Bahrin v. Portugal (application no. 46194/06) the Court dealt specifically with the procedure of qualifying prisoners for the stringent security regime and the prisoners’ possibility to appeal from decisions made in such procedures.
Mr Stegarescu and Mr Bahrin („the applicants”) were imprisoned since 2001. In May 2006, they were placed in stringent security regime unit, what resulted in additional security measures, such as isolation from other prisoners, limited visiting and general overall restrictions on prisoner’s activities. Decision to place the applicants in the stringent security regime unit made by the head of the penitentiary administration was not delivered to the applicants. For several times, the applicants complained about the decision, claiming its inconsistency with the law, however, with no response. In October 2006, the applicants were informed about the decision of the head of the penitentiary administration extending their confinement under stringent security regime. Yet again, the applicants were neither informed about the decision nor the reviewing process, which, according to the Portuguese law, should take place every three months. Again, the applicant submitted a number of complains to the prison’s governor, all left without response. In December 2006, the Applicants were placed back in the regular regime prison.
The Court held that as the decisions of the penitentiary administration influenced the applicants’ civil rights and obligations, the case could have been considered in the light of Art. 6 (1) of the Convention – right to have his or hers „civil rights and obligations” determined by a „free and impartial tribunal”. On the merits, the Court held that not delivering of the decisions to the applicants, deprived them of the possibility to effectively appeal from the decisions, and in consequence breached Article 6 (1) of the Convention.
„Dangerous” for several years
As already mentioned, the Stegarescu and Bahrin judgment, may be of significance for the Piechowicz v. Poland case. According to Polish law, allocation to a „N” unit is carried out by the Penitentiary Commission on the basis of the character of the offence and the degree of threat which the prisoner poses to society and to the safety of the prison. (Art. 88 (3) in relation to Art. 88a and Art. 212a of the Executive Criminal Code).
The most concerning are the procedure of qualifying prisoners as „N” prisoners and review of those decisions, which result in protracted periods of confinement in the „N” units. This practice contradicts the very rationale of the „N” units. The Code of Criminal Procedure provides for a review of a „N” status every three months ( Art. 76(1)(7) and Art. 212a(1)). The form of the regulation clearly indicates that placing prisoners in the „N” units was intended as and should be a temporary measure. However, prisoners are often placed in the „N” units even for several years.
Radosław Perlaka, whose case was reported by „Przekrój” magazine, spent over 10 years in the „N” unit. The European Committee for the Prevention of Torture and Inhumane and Degrading Treatment, after its visit to Poland in 2004, reported that „Many prisoners interviewed by the delegation considered the periodic review of their status a pure formality and thought that they did not have a realistic chance of moving from the .N. status to another regime.”
Another matter raised by the HFHR is the general grounds on which the prisoners are being qualified as ”N” prisoners. According to the results of prof. Lasocik’s research on the „N” units, the grounds for classifying as an „N” prisoner were often „high degree of demoralization” and „affiliation with a subculture”. This practice contradicts the EctHR’s criteria, as set out in its case law (Ramirez Sanchez v. France), wherein the Court stated that when deciding upon protracted confinement „the statement of reasons will need to be increasingly detailed and compelling the more time goes by considered with greater precision and persuasion. […] The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner’s circumstances, situation or behavior.”
From the Court’s case law it can be clearly derived that the stringent regime confinement should be regarded as an extraordinary measure, and its extension needs to be precisely justified each time when evaluated.
The HFHR indicated that decisions on granting the „N” status are frequently not delivered to the prisoners concerned. This deprives them of the possibility to file complains in response to decisions. Such practices are inconsistent with the Convention, as confirmed by the Court in the Stegarescu and Bahrin judgement.
The organ to decide upon allocation to the „N” units is the Penitentiary Commission. The HFHR also emphasized in its brief that due to the restrictions of the prisoners’ rights inextricably connected with the „N” status, the actual punishment served by a „N” prisoner is aggravated and differs from the one in the initial sentence. Therefore, the HFHR is of the opinion that competence of the Penitentiary Commission to decide upon the „N” status infringes Art. 5(1)(a) of the Convention – which stipulate that one can be lawfully detained after conviction by competent court. Therefore, it should be for the courts to decide whether to grant or not the „N” status.
