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

The applicant was born in DATE and lives in GPE . He is currently detained in ORG .

On DATE the applicant was arrested on suspicion of drug smuggling . On DATE the ORG ( Sąd Rejonowy ) remanded him in custody for DATE , relying on the reasonable suspicion – supported by evidence taken from witnesses DATE 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 .

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 LAW relating to the imposition of this measure .

In the course of the investigation , the applicant ’s detention was extended on several occasions , namely on DATE ( to DATE ) , DATE ( to CARDINAL DATE ) and DATE ( to CARDINAL DATE ) . 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 .

On DATE a bill of indictment was lodged with ORG ( PERSON ) . The applicant , together with CARDINAL other coaccused , was indicted on charges of drug smuggling and conspiracy to import drugs committed in an organised criminal group aiming at importing into GPE considerable amounts of drugs .

During the court proceedings the courts further extended the applicant ’s detention on several occasions , namely on DATE ( to CARDINAL DATE ) , on an unspecified subsequent date , on DATE ( to DATE ) , DATE ( to DATE ) , DATE ( to DATE ) , DATE ( DATE ) , CARDINAL DATE ( to DATE ) , CARDINAL DATE ( to DATE ) , DATE ( until DATE ) , DATE ( until DATE ) and DATE ( until DATE ) .

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 .

On DATE ORG held the first hearing . The trial continued until DATE .

Throughout that time CARDINAL hearings were scheduled . The hearings took place at DATE but at certain periods the court held CARDINAL hearings per month . On average , they were held at DATE - intervals and there was no interruption of the trial DATE .

On DATE 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 CARDINAL years’ imprisonment . The ORG deducted the period of his detention from DATE to DATE from his sentence . The applicant appealed .

The applicant did not specify when the proceedings had terminated but it appears that they most likely ended DATE and DATE .

On an unspecified date in DATE ORG convicted the applicant of drug - related offences committed in an armed organised criminal group and sentenced him to CARDINAL years’ imprisonment . The applicant started to serve the sentence on DATE .

On an unspecified date , apparently on DATE , ORG 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 .

On DATE 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 DATE imprisonment would be imposed on him .

On an unspecified date , apparently in DATE , ORG convicted the applicant as charged and sentenced him to DATE imprisonment .

The applicant did not inform ORG further course of the proceedings .

On DATE the applicant lodged with ORG ( Sąd Apelacyjny ) a complaint under LAW on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) .

The applicant sought a ruling that the length of the proceedings in case no . PERSON CARDINAL/CARDINAL ( see paragraphs CARDINAL above ) had been excessive and an award of just satisfaction in the amount of MONEY ( ORG ) ( approx . CARDINAL ( ORG ) ) .

On DATE ORG dismissed his complaint as unfounded . It held that since the beginning of the trial CARDINAL hearings had been scheduled in the case until DATE and CARDINAL 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 .

After his arrest on DATE ( see paragraph CARDINAL above ) the applicant was detained in FAC ( PERSON ) . Shortly afterwards , on an unspecified date , he was transferred to ORG ) . He remained there until DATE but in DATE he was transferred to ORG for DATE . From DATE to CARDINAL DATE he was detained in FAC . Later he was held in FAC and then transferred to ORG .

On DATE the Sztum ORG ( 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 LAW of LAW ( NORP 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 ) .

Every DATE the Gdańsk Remand ORG Penitentiary Commission ( PERSON ) 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 .

On DATE the ORG examined the applicant ’s appeal against the ORG decision of DATE 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 DATE 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 CARDINAL 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 LAW . 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 LAW and did not make it impossible for him to maintain such contacts .

On DATE , DATE and DATE the ORG , relying on the same grounds , rejected further appeals against ORG 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 .

Further decisions on the prolongation of the “ dangerous detainee ” regime were based on similar grounds or repeated the initial reasons .

On DATE ORG upheld ORG decision to continue the imposition of the regime , given on DATE , 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 DATE ORG upheld a similar decision , stressing that since DATE the applicant had been serving a sentence of CARDINAL years’ imprisonment , following his conviction for drugrelated offences committed in an organised criminal group . He had also been convicted at first instance by ORG for other drugrelated offences and sentenced to CARDINAL years’ imprisonment . In these circumstances , the special regime had to be continued .

On DATE ORG upheld another decision of ORG , 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 DATE ORG upheld ORG decision of CARDINAL DATE . 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 ORG safety , the court found that this assessment had been objective and fully justified the continuation of the regime .

NORP 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 .

NORP The regime is still being applied to the applicant and he is still held in a solitary cell .

In all likelihood , pursuant to LAW ( see paragraph CARDINAL below ) , the regime will continue until he has finished serving his CARDINAL 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 DATE .

NORP Since DATE , 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 DATE 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 CARDINAL 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 CARDINAL 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 DATE walk .

The applicant ’s movements outside his cell and the special ward must be supervised by CARDINAL prison guards . He is allowed to have a CARDINAL long solitary walk per day in a segregated area .

The applicant was entitled to CARDINAL TIME visit from the family per DATE .

He supplied a document issued by the Governor of the Gdańsk Remand Centre on DATE , setting out a list of visits received by him up to that date .

From DATE to DATE , i.e. for DATE and DATE , he was granted permission to have CARDINAL “ open visits ” ( widzenie przy stoliku ) . He was also granted CARDINAL“closed visits ” ( widzenie przez telefon ) ( see also paragraph CARDINAL below ) .

On most occasions only the applicant ’s wife visited him . The applicant has CARDINAL daughters GPE , GPE and GPE born , respectively , in DATE , DATE and DATE . Throughout the above period he received visits from his oldest daughter on CARDINAL occasions and from each of the CARDINAL younger daughters once .

In DATE the applicant was granted CARDINAL visits , CARDINAL of which were open and CARDINAL closed . They took place on DATE ( this was an open visit from the applicant ’s wife ) , DATE ( this was a closed visit from his wife , ORG , and GPE , his oldest daughter ) , DATE , DATE ( on this occasion he received an open visit from his daughter GPE ) , DATE and CARDINAL DATE respectively .

In DATE the applicant was granted CARDINAL visits , CARDINAL of which was open . They took place on DATE , DATE , DATE , CARDINAL May , DATE , CARDINAL July , CARDINAL DATE , DATE ( this was a closed visit from his wife and GPE , CARDINAL of his daughters ) , DATE and DATE .

In DATE the applicant received CARDINAL visits ( including CARDINAL “ open ” ) from his wife only . They took place on DATE , DATE , DATE , DATE , DATE , DATE and DATE .

In DATE the applicant was granted CARDINAL visits from his wife , CARDINAL of which were open visits . They took place on DATE , DATE , DATE ( on this open visit the applicant could also see ORG , his youngest daughter ) , DATE , DATE , DATE and DATE .

In DATE , as of the date of the issuance of the document , the applicant received CARDINAL “ open visit ” from his wife DATE on DATE . He submitted that throughout the whole of DATE he had received CARDINAL family visits .

The applicant stated that his very limited contact with his daughters had been caused by the fact that the Gdańsk Remand Centre and ORG 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 ORG 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 .

NORP In FAC the visits to “ dangerous detainees ” could take place only on DATE . For that reason , the applicant ’s wife was unable to visit him on every occasion he was entitled to have a DATE visit because she worked from DATE .

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 .

The applicant ’s correspondence with his family was censored . He supplied CARDINAL envelopes bearing stamps that read respectively : “ censored on DATE ” , “ censored on DATE ” , “ censored on DATE ” and illegible signatures . The first letter was from his daughter , GPE , and CARDINAL others from a family member , a certain ORG ] . H.

The applicant did not inform the ORG about the contents of the letters and whether any parts of them had been expunged or otherwise censored .

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 ORG ’s judgments in the cases of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .

Article CARDINALa of LAW Sentences reads , in so far as relevant , as follows :

“ CARDINAL . NORP 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 DATE . The authority at whose disposal a detainee remains and a penitentiary judge shall be informed of decisions taken .

A detainee , referred to in subparagraph CARDINAL , 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 .

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 ( LAW ) . A detainee may appeal against the penitentiary commission ’s decision but solely on the ground of its non - conformity with the law ( LAW .

Article CARDINALb 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 :

“ CARDINAL . In a remand centre a detainee referred to in Article CARDINAL shall be held in the following conditions :

CARDINAL ) NORP 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 ;

CARDINAL ) cells shall be controlled more often than those in which detainees [ not classified as “ dangerous ” ] are held ;

CARDINAL ) 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 ;

CARDINAL ) a detainee ’s movement around a remand centre shall be under increased supervision and shall be restricted to what is strictly necessary ;

CARDINAL ) a detainee shall be subjected to a personal check ( kontrola osobista ) each time he leaves and enters his cell ;

CARDINAL ) a detainee ’s walk shall take place in designated areas and under increased supervision ;

CARDINAL) visits shall take place in designated areas and under increased supervision ... ;

CARDINAL ) 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 ORG ’s Ordinance of CARDINAL DATE on conditions and manner of using direct restraint measures by policemen ( as amended on DATE ) ( ORG PERSON z dnia CARDINAL września DATE r. w sprawie określenia przypadków oraz warunków i sposobów użycia przez policjantów środków przymusu bezpośredniego ) ( “ the DATE LAW ) . Paragraph CARDINAL of the DATE Ordinance reads , in so far as relevant , as follows :

“ CARDINAL 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 .

CARDINAL NORP 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 . ”

The “ N ” wards ( from “ niebezpieczny ” – dangerous in NORP ) 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 DATE 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 .

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 DATE , solitary walk in a specially designated and segregated area and if they are allowed to spend some time in a DATE 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 CARDINAL of the DATE Ordinance , the number of detainees in the cell is limited to QUANTITY persons at the same time .

According to paragraph CARDINAL(CARDINAL ) of the Ordinance of the Minister of ORG of DATE on means of protection of organisational units of ORG ( ORG z dn . CARDINAL października DATE r. w sprawie sposobów ochrony jednostek organizacyjnych PERSON ) ( “ the DATE LAW ) , a dangerous detainee can move about within the detention facility only singly . In justified cases such detainees may move in a group of CARDINAL but under the increased supervision by the prison guards .

Paragraph CARDINAL(CARDINAL ) states that , outside the cell and facilities designated for “ N ” detainees , an “ N ” inmate must be permanently and directly supervised by CARDINAL prison guards . This restriction can only exceptionally and in justified cases be lifted by the Prison Governor .

A dangerous detainee can not 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 CARDINAL ) . 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 CARDINAL ) .

As of DATE there were CARDINAL “ N ” wards in NORP prisons , which had the capacity to hold from CARDINAL to CARDINAL detainees .

As of DATE there were CARDINAL “ dangerous detainees ” ( convicted or detained on remand ) in “ N ” wards .

Article CARDINAL § CARDINAL of LAW 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 . ”

Pursuant to paragraph CARDINAL of the DATE Ordinance :

“ CARDINAL . A [ dangerous ] detainee shall be subjected to a personal or cursory check , in particular :

CARDINAL ) NORP before leaving the ward or the workplace and after his return there ;

CARDINAL ) NORP before individual conversations or meetings with the representatives of the prison administration or other persons that take place in the ward ;

CARDINAL ) NORP immediately after the use of a direct coercive measure – if it is possible given the nature of the measure ;

CARDINAL ) NORP directly before the beginning of the escort . ”

By virtue of the law of DATE on amendments to LAW ( ustawa o zmianie ustawy – Kodeks karny wykonawczy ) ( “ the DATE LAW Article PERSON was rephrased and new rules on monitoring detention facilities by means of close - circuit television were added . LAW entered into force on DATE .

The former text of Article PERSON ( see paragraph CARDINAL above ) became paragraph CARDINAL of this provision and a new paragraph CARDINAL was introduced . This new provision is formulated as follows :

“ CARDINAL . The behaviour of a person in pre - trial detention referred to in LAW in a prison cell , including its part designated for sanitary and hygienic purposes and in places referred to in paragraph CARDINAL ( CARDINAL ) [ of this provision ] shall be monitored permanently . The images and sound [ obtained through monitoring ] shall be recorded . ”

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 CARDINALa reads , in so far as relevant , as follows :

“ CARDINAL . Detention facilities may be monitored through an internal system of devices recording images or sound , including close - circuit television .

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 LOC 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 .

Monitored images or sound may be recorded with the help of appropriate devices .

Monitoring and recording of sound may not include information subject to the seal of confession or secret protected by law .

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 CARDINAL in a manner making it impossible to show [ detainees’ ] private parts or their intimate physiological functions .

Pursuant to LAW ( a ) § § CARDINAL and DATE , 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 .

NORP However , all recorded material concerning a dangerous detainee is stored in accordance with Article CARDINALc , 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 LAW ( CARDINAL ) [ 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 . ”

NORP Before that amendment , the rules on monitoring detainees were as included in paragraph QUANTITY of the DATE Ordinance , according to which a prison cell could be additionally equipped with video cameras and devices enabling listening .

Pursuant to LAW , as applicable until DATE , 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 CARDINAL onehour long visit per month .

According to paragraphs CARDINAL and CARDINAL , 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 QUANTITY types of visits : an “ open visit ” , a “ supervised visit ” ( widzenie w obecności funkcjonariusza PERSON ) 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 .

Article CARDINAL § CARDINAL 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 . ”

The judgment was given following an application , lodged by the ORG on DATE , alleging that LAW was incompatible with a number of constitutional provisions , including the principle of protection of private and family life ( LAW ) , the principle of proportionality ( LAW ) , LAW . ORG judgment became effective on DATE , the date of its publication in ORG ) .

The Constitutional Court ruled that LAW , 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 LAW was incompatible with LAW 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 .

On DATE ORG adopted amendments to LAW . In particular , subparagraphs CARDINALa-CARDINALf were added . These provisions stipulate that a detainee is entitled to CARDINAL 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 DATE .

The relevant domestic law and practice concerning the censorship of ORG correspondence are set out in the ORG ’s judgment in the case of Kliza v. GPE , no . CARDINAL , § § DATE , DATE .

DATE 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 CARDINAL , paragraph CARDINAL , 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 LAW [ 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 . ”

Under LAW of LAW , 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 ... ”

Articles CARDINAL et seq . of the NORP LAW provide for the ORG ’s liability in tort .

Article CARDINAL § CARDINAL of LAW ( as amended ) provides :

“ ORG , 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 . ”

DATE of the Civil Code sets out limitation periods for civil claims based on tort , including claims under LAW read in conjunction with ORG and CARDINAL of LAW . This provision , in the version applicable as from DATE , reads , in so far as relevant , as follows :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse after the expiration of DATE 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 DATE following the date on which the event causing the damage occurred . ”

DATE . The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE , no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ORG , and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINALVIII , and in its the judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.

The recommendation , in its part relating to the application of security measures reads , in so far as relevant , as follows :

“ CARDINAL.CARDINAL The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody .

CARDINAL 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 .

CARDINAL 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 .

CARDINAL Each prisoner shall then be held in security conditions appropriate to these levels of risk .

CARDINAL The level of security necessary shall be reviewed at regular intervals throughout a person ’s imprisonment . ”

“ CARDINAL.CARDINAL 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 .

CARDINAL 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 .

CARDINAL Every possible effort shall be made to allow all prisoners to take a full part in DATE activities in safety .

CARDINAL It shall be possible for prisoners to contact staff at all times , including during TIME .

CARDINAL National health and safety laws shall be observed in prisons . ”

“ CARDINAL Special high security or safety measures shall only be applied in exceptional circumstances .

CARDINAL.CARDINAL There shall be clear procedures to be followed when such measures are to be applied to any prisoner .

CARDINAL The nature of any such measures , their duration and the grounds on which they may be applied shall be determined by national law .

CARDINAL The application of the measures in each case shall be approved by the competent authority for a specified period of time .

CARDINAL Any decision to extend the approved period of time shall be subject to a new approval by the competent authority .

CARDINAL Such measures shall be applied to individuals and not to groups of prisoners . ”

From DATE to CARDINAL DATE ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) carried out a periodic visit to selected detention establishments in GPE .

The ORG visited wards designated for dangerous detainees in the FAC , FAC and FAC . The ORG 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 .

The following observations were made in paragraph CARDINAL of the report in respect of the application of the regime :

“ The regime applied to ‘ N’ category prisoners remained very restrictive , similar to the CARDINAL described in the report on the DATE visit . Out - of - cell time consisted essentially of TIME of outdoor exercise per day ( taken either alone or in the company of a cellmate ) and access to a recreation room twice DATE at FAC and FAC . Inmates could have their own TV in the cell . They were entitled to a DATE shower , DATE , and CARDINAL phone calls per month for sentenced prisoners ( at the prosecutor ’s discretion for remand prisoners ) at ORG and PERSON prisons , and a TIME - daily phone call for sentenced prisoners at FAC . Contact with staff was limited to occasional visits by educators , psychologists and a chaplain .

The ORG 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 DATE . As stressed in the report on the visit in DATE , 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 . ”

In paragraph CARDINAL of the report the ORG 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 DATE reviews , most prisoners remained in ‘ N’ status for lengthy periods of time . ...

The ORG 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 ORG ’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 ORG reiterates its recommendation that the NORP 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 . ”

In paragraph CARDINAL , the ORG expressed the following opinion regarding the practice of routine strip - searches :

“ The ORG 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 ORG ’s opinion , such a practice could be considered as amounting to degrading treatment . ORG 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 . ”

The ORG gave the following general recommendations to ORG in respect to prisoners classified as “ dangerous ” ( “ N ” status ) :

“ - the NORP 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 CARDINAL ) ;

- the NORP 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 CARDINAL ) ;

- 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 CARDINAL ) .

The Polish Government ’s response to the ORG report was published on DATE .

DATE . In respect of the recommendation that the NORP 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 CARDINAL ) , they stated :

“ PERSON ] ... 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 :

CARDINAL ) a description of the causes of the event ;

CARDINAL ) a description of irregularities in the area of cognitive , emotional and behavioural processes ;

CARDINAL ) NORP characteristics of the actual state of their psychological and physical condition ;

CARDINAL ) a description of the problem constituting the grounds justifying delegation for the therapeutic system ;

CARDINAL ) NORP description of individual problems of the convict ;

CARDINAL ) NORP evaluation of motivation to participate in implementation of the individual therapeutic programme ;

CARDINAL ) NORP indication of positive features if personality and behaviour of the convict .

When developing an individual therapeutic programme , the following should be specified :

CARDINAL ) NORP the scope of the conducted activities ;

CARDINAL ) 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 ;

CARDINAL ) NORP methods of specialized impact ;

CARDINAL ) 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 NORP 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 ORG concerning development of individual programmes for dangerous convicts have been taken into account and are implemented according to the provisions binding in this regard . ”

Referring to the recommendation that the NORP 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 CARDINAL ) , the Government responded :

“ In the NORP 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 [ LAW ] .

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 DATE . 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 . CARDINAL of the [ LAW ] 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 . ”

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 CARDINAL 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 ORG of DATE on means of protection of organisational units of ORG ] . 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 ORG 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 . ”


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a sentence in GPE no . CARDINAL ORG , GPE .

According to the applicant , in DATE he was held for DATE in an unheated van , beaten in detention , forced to participate in court hearings while sick , and kept handcuffed during court hearings .

On DATE the ORG , in the presence of CARDINAL advocates , PERSON . and PERSON , sentenced the applicant and CARDINAL others to various terms of imprisonment for drug trafficking . In his appeal the applicant indicated that he had been “ prevented from hiring a lawyer , who would have defended him properly , and had no opportunity to consult a lawyer during the breaks in the hearing ” .

On DATE ORG , in the presence of advocate PERSON . and in the applicant ’s presence , upheld this decision . The applicant appealed in cassation .

On DATE ORG of GPE , following the applicant ’s complaints , returned the applicant ’s case file to the first - instance court because the applicant wanted to study the case file materials .

In additional cassation appeals lodged on DATE and CARDINAL DATE the applicant submitted that the first - instance court had ignored his requests lodged DATE to have the opportunity to consult a lawyer . He further submitted that the first instance court ignored his complaints about pages missing from his appeal case - file .

Before this ORG the applicant explained that while studying case - file materials he had discovered that , according to him , the first - instance court judge had removed CARDINAL pages from his appeal and that was the reason why he had wanted to meet with the lawyer . According to the applicant , the removed pages contained CARDINAL requests addressed to the court of appeal and the applicant ’s complaint to a prosecutor . The applicant did not specify either before ORG of GPE , or before this ORG what were the subjects of his requests and complaints .

On DATE ORG examined his appeal and found it unsubstantiated .


Violation of Art. 6-1;Not necessary to examine Art. 3;Not necessary to examine Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Mr PERSON , a NORP citizen , was born in DATE and lives at PERSON ( PERSON ) . At the material time he worked in a textile factory . Since being released from prison he has not found employment .

In connection with an operation monitoring drug trafficking , CARDINAL plain - clothes officers of ORG ( PSP ) from the NORP police station approached an individual , FAC , on a number of occasions . He was suspected of petty drug trafficking in order to pay for drugs – mainly hashish DATE for his own consumption . They hoped that through GPE they would be able to identify his supplier and offered to buy QUANTITY of hashish from him . Unaware that they were police officers , ORG agreed to find a supplier . However , despite being pressed by the CARDINAL officers , he was unable to locate one .

Shortly before TIME on DATE the CARDINAL officers went to ORG home saying that they were DATE interested in buying heroin . PERSON mentioned the name of PERSON as being someone who might be able to find some ; however , he did not know the latter ’s address and had to obtain it from F.O. All CARDINAL then went to the applicant ’s home in the purported LOC car . The applicant came outside at ORG request and got into the car where the CARDINAL officers , accompanied by PERSON , were waiting . The officers said that they wished to buy QUANTITY of heroin for MONEY ( PTE ) and produced a roll of banknotes from ORG .

Mr PERSON agreed to procure the heroin and , accompanied by PERSON , went in his own car to the home of another person , ORG The latter obtained CARDINAL sachets of heroin , one weighing QUANTITY grams and the other QUANTITY each , from someone else and , on his return , handed them over to the applicant in exchange for a payment , which , though the precise figure is not known , exceeded PTE CARDINAL .

NORP The applicant then took the drugs to ORG home ; PERSON had in the meantime returned there and the CARDINAL police officers were waiting outside . The deal was to take place in the house . The officers went inside at FAC ’s invitation ; the applicant then took CARDINAL of the sachets out of his pocket , whereupon the CARDINAL officers identified themselves and arrested the applicant , GPE and PERSON , shortly before TIME They searched all CARDINAL and found the applicant to be in possession of another CARDINAL sachets of heroin , PTE CARDINAL in cash and a gold bracelet .

The applicant was brought before an investigating judge at ORG DATE and was detained pending trial .

On DATE he applied for release . He argued that his detention was unlawful as it infringed Articles CARDINAL , CARDINAL and DATE of the Convention . In his submission , he had been detained as a result of the immoral and unlawful conduct of the QUANTITY police officers , since he had committed the offence solely and exclusively at their behest . They had acted as “ agents provocateurs ” , particularly as they had not been carrying out an anti - drug - trafficking operation pursuant to a court order .

The investigating judge dismissed that application in a decision of CARDINAL DATE that was upheld on DATE by ORG ) .

The applicant lodged CARDINAL applications for habeas corpus with ORG ( Supremo Tribunal de Justiça ) , which were dismissed on DATE and CARDINAL DATE . In its judgment of CARDINAL May ORG held that although the QUANTITY police officers had acted as “ agents provocateurs ” in the sale of the heroin the applicant ’s detention was justified since he had been found in possession of the drug .

On DATE the public prosecutor filed his submissions concerning the applicant and V.S. He did not proceed with the prosecution of the other CARDINAL people charged , PERSON and ORG

The case file was sent to ORG ( Tribunal de circulo ) .

A hearing was held on DATE at which the court heard several witnesses , including the QUANTITY police officers and F.O.

On DATE the court convicted the applicant and sentenced him to CARDINAL years’ imprisonment . It imposed a fine on ORG equivalent to CARDINAL days’ imprisonment . The court considered that the use of an “ undercover ” agent or even an “ agent provocateur ” did not appear to be prohibited under domestic legislation , provided that the sacrifice of the accused ’s individual freedom was justified by the values that were being upheld . As the applicant had initially been approached by F.O. the conduct of the ORG officers had not been “ decisive ” in the commission of the offence . The court explained that it had reached its verdict on the basis of the statements of the witness , F.O. , the co - defendant , GPE , the applicant himself and , “ mainly ” , of the QUANTITY police officers .

On DATE the applicant appealed against that decision to ORG . He complained of a breach of the right to a fair hearing and relied , inter alia , on LAW .

In a judgment of CARDINAL DATE ORG dismissed his appeal and upheld all the provisions of the judgment appealed against , holding that :

“ In the instant case it is indisputable that the ORG officers ... were extremely pressing until they were introduced to PERSON . It was , however , only natural that that should have been the course adopted . The police officers knew that PERSON was a drug user and sought to unmask the person responsible for supplying him with drugs . No hashish being available , they tried to obtain heroin and met PERSON , who agreed to their false proposals because he aimed to make a profit out of the deal , thereby exploiting one of the major scourges of our time ...

The PSP officers’ perseverance was thus rewarded since they arrested the applicant in possession of what was already a considerable quantity of the drug .

Moreover , as officers in the Public Security Police based at the NORP police station , the policemen ... were acting as criminal investigators ( LAW ) under the powers vested in them by statute enabling them , without referring to higher authority , to obtain information about offences , identify offenders and take any steps that were necessary and urgent to preserve evidence ( LAW ) .

Police officers ... act in criminal proceedings as officers of the court , but that does not prevent them taking , in special statutorily defined circumstances , procedural steps in the exercise of their own undelegated powers .

As the public prosecutor said in his submissions , the ORG officers acted within the law and their conduct did not render the evidence obtained inadmissible .

In these circumstances , PERSON appeal is wholly unfounded .

In the light of these considerations ORG dismisses the appeal and upholds all the provisions of the judgment appealed against . ”

The relevant provisions of Legislative Decree no . CARDINAL of CARDINAL DATE on ORG , which was in force at the material time , read as follows :

“ Anyone who , without being lawfully authorised to do so , grows , produces , manufactures , extracts , offers to supply , puts on sale , sells , distributes , buys , assigns or , in any capacity , receives , procures from others , transports , imports , brings in and out of the country or illicitly has in his possession , other than for the reasons stated in DATE , any of the substances or preparations referred to in tables I to III , shall on conviction be liable to CARDINAL DATE imprisonment and a fine of CARDINAL . ”

“ CARDINAL . A criminal investigation agent who , in the course of preliminary inquiries and without revealing his identity , accepts either in person or through CARDINAL party an offer for narcotics or other psychotropic substances shall not be liable to prosecution in respect of such conduct .

A report on such action shall be added to the case file within a maximum of TIME . ”

Drug trafficking is now covered by Legislative Decree no . CARDINAL of DATE . LAW no . CARDINAL/CARDINAL is reproduced with no material change in LAW .

The main provisions of LAW referred to in the instant case are as follows :

“ CARDINAL . Evidence obtained through torture , the use of force or any kind of physical or psychological duress shall be invalid and inadmissible .

Evidence obtained by any of the following means shall be deemed to have been obtained by physical or psychological duress even where the victim has consented thereto :

( a ) interference by ill - treatment , assault , any other method , hypnosis or the use of cruel or deceitful means with a person 's freedom to exercise his will or make decisions ;

Where evidence is obtained by means that constitute a serious criminal offence under LAW , it may be used only for the purpose of prosecuting those responsible for obtaining it in that way . ”

“ The public prosecutor is apprised of the commission of an offence through his own investigations , by police officers responsible for investigating crime or if the offence is reported in accordance with the following provisions . ”

“ Even if the offender ’s identity is not known , an offence must be reported to the prosecuting authorities :

( a ) by the police in the event of any offence which comes to their attention ;

Subject to certain conditions , ORG accepts the use of “ infiltrators ” in the fight against drug - trafficking ( judgments of DATE , ORG no . CARDINAL , p. CARDINAL ; DATE , Col . PERSON . ( ORG ) , CARDINAL , p. CARDINAL ; CARDINAL DATE , Col . PERSON . ( ORG ) , CARDINAL , p. CARDINAL , delivered in the instant case ; and the judgments of CARDINAL DATE , Col . PERSON . ( ORG ) , DATE , p. CARDINAL ; DATE , Col . PERSON . ( ORG ) , DATE , p. CARDINAL ; and DATE , Col . PERSON . ( ORG ) , CARDINAL , p. CARDINAL ) .

Legal writers in GPE ( and in other NORP countries ) draw a distinction , under the generic term of “ infiltrators ” , between an “ undercover agent ” and an “ agent provocateur ” . The former is someone who confines himself to gathering information , whereas the latter is someone who actually incites people to commit a criminal offence . In GPE , under the law in force at the material time , legal experts regarded evidence obtained by “ undercover agents ” as admissible , but were more reserved about evidence obtained by “ agents provocateurs ” ( see , for example , PERSON , ORG as proibições de prova em processo pènal , ORG , DATE , pp . CARDINAL et seq . , and PERSON , ORG . PERSON . PERSON , ORG , DATE , pp . CARDINAL et seq . , and , more recently , “ ORG e direito ” , ORG , ORG , DATE , pp . CARDINAL et seq . ) .


Violation of Art. 3;Not necessary to examine Art. 2;Not necessary to examine Art. 8;No violation of Art. 13;Costs and expenses partial award - Convention proceedings

ORG The applicant was born in GPE and appears to have lived there most of his life . He is CARDINAL of CARDINAL children . CARDINAL sister and CARDINAL brother moved to GPE in DATE and the rest of the family appears to have followed at unspecified dates . The applicant visited GPE in DATE to try to join his family . During his stay there he was arrested on CARDINAL DATE for possession of cocaine and subsequently sentenced to a DATE term of imprisonment . After DATE , he was paroled for good behaviour and deported on DATE to GPE .

ORG The applicant arrived at FAC , GPE , on DATE and sought leave to enter GPE for DATE as a visitor . He was found at the airport terminal to be in possession of a substantial quantity of cocaine with a street value of QUANTITY ( GBP ) . The immigration officer refused him leave to enter on the ground that his exclusion was conducive to the public good and gave him notice that he would be removed to GPE within DATE .

However , after being arrested and charged , the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at ORG on DATE and was sentenced on DATE to CARDINAL years’ imprisonment . He apparently behaved well while in PERSON and was released on licence on DATE . He was placed in immigration detention pending his removal to GPE . Bail was granted by an adjudicator on DATE after the ORG ’s report had been made public .

ORG In DATE , while serving his prison sentence , the applicant suffered an attack of pneumocystis carinii pneumonia ( " PCP " ) and was diagnosed as HIV ( human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome ( AIDS ) . The infection appears to have occurred some time before his arrival in GPE .

ORG On DATE , the applicant was granted a period of compassionate leave to be with his mother whose air fare to GPE to visit him had been covered by charitable donations .

ORG On DATE , immediately prior to his release on licence , the immigration authorities gave directions for the applicant ’s removal to GPE .

ORG By letter dated DATE , the applicant ’s solicitors requested that the Secretary of ORG grant the applicant leave to remain on compassionate grounds since his removal to GPE would entail the loss of the medical treatment which he was currently receiving , thereby shortening his life expectancy ( see paragraphs CARDINAL and CARDINAL below ) . This request was refused on DATE by the Chief Immigration Officer . In his letter of refusal addressed to the applicant ’s solicitors the Chief Immigration Officer stated :

" In reaching this decision full account was taken of paragraph CARDINAL of ORG and HIV - positive cases . You will be aware that paragraph CARDINAL of this instruction which relates to persons whose applications are for leave to enter the GPE states [ see paragraph CARDINAL of the judgment below ] ... While we are saddened to learn of Mr D [ ... ] ’s medical circumstances we do not accept , in line with ORG , that it is right generally or in the individual circumstances of this case , to allow an AIDS sufferer to remain here exceptionally when , as here , treatment in this country is carried out at public expense , under ORG . Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ... "

ORG On DATE , the applicant applied unsuccessfully to ORG for leave to apply for judicial review of the decision to refuse him leave to enter . On DATE , ORG dismissed his renewed application . It found that section CARDINAL of the Immigration Act DATE drew a distinction between leave to enter and leave to remain . It held that the Chief Immigration Officer had correctly treated PERSON application as an application for leave to enter and was not required to take into account paragraph CARDINAL of the ORG guidelines which applied to applications for leave to remain ( see paragraphs CARDINAL and CARDINAL below ) . As to the applicant ’s argument that ORG acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea , Sir PERSON stated in his judgment :

" Nobody can but have great sympathy for this applicant in the plight in which he finds himself . If he is to return to GPE it seems that he will be unable to work because of his illness . His expectation of life , if the medical evidence is correct , may well be shorter than it would be if he remained under the treatment that he is receiving in GPE , and in many ways his plight will be great . On the other hand he would not be here if he had not come on a cocaine smuggling expedition in DATE ; and if he had not been imprisoned he would have gone back to GPE , if he had ever come here at all , long before his AIDS was diagnosed . Taking account of the fact that the ORG must give most anxious scrutiny to a decision which involves questions particularly of life expectancy , as this one apparently does , nevertheless I can not find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all . Putting it the opposite way , it seems to me to be one which was well within the bounds of his discretion , and thus is not one with which the ORG can properly interfere . "

ORG Since DATE , the applicant ’s " CDCARDINAL " cell count has been below CARDINAL . He has been in the advanced stages of the illness , suffering from recurrent anaemia , bacterial chest infections , malaise , skin rashes , weight loss and periods of extreme fatigue .

ORG By letter dated DATE , PERSON , a consultant doctor , stated :

" His current treatment is AZT QUANTITY . b.d . and DATE nebulised pentamidine , he occasionally takes mystatin pastilles and skin emollients . In view of the fact that [ the applicant ] has now had AIDS for DATE and because this is a relentlessly progressive disease his prognosis is extremely poor . In my professional opinion [ the applicant ’s ] life expectancy would be substantially shortened if he were to return to GPE where there is no medication ; it is important that he receives pentamidine treatment against ORG and that he receives prompt anti - microbial therapy for any further infections which he is likely to develop ... "

ORG In a medical report provided on DATE , Professor Pinching , a professor of immunology at a GPE hospital , stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours . The applicant was reaching the end of the average durability of effectiveness of the drug therapy which he was receiving . It was stated that the applicant ’s prognosis was very poor and limited to DATE on present therapy . It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to CARDINAL of what would be otherwise expected .

ORG By letter dated DATE , ORG for LOC informed the doctor treating the applicant in prison that the medical facilities in GPE did not have the capacity to provide the medical treatment that he would require . This was in response to a faxed enquiry of the same date by PERSON , the managing medical officer at FAC . By letter of CARDINAL DATE , PERSON informed ORG contents of the letter from ORG , which had also been sent to ORG on DATE . He stated that the necessary treatment was not available in GPE but was widely and freely available in GPE and requested that due consideration be given to lifting the deportation order in respect of the applicant . By letter dated DATE , ORG for LOC confirmed that the position in GPE had not changed .

By letter dated DATE , the GPE and ORG informed the applicant ’s representatives that they had consulted their officer on GPE who stated that there was no health care providing for drugs treatment of AIDS .

Results of enquiries made by the Government of the authorities in GPE suggest that there are CARDINAL hospitals in GPE which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged , and that an increasing number of AIDS sufferers there live with relatives .

ORG The applicant has no family home or close family in GPE other than , according to information provided by the ORG , a cousin . His mother , who currently lives in GPE , has declared that her age , bad health and lack of resources prevent her from returning to GPE to look after her son if he were to be returned there . She has also stated that she knew of no relatives who would be able to care for him in GPE .

ORG When granted bail on DATE ( see paragraph CARDINAL above ) the applicant was released to reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons . Accommodation , food and services are provided free of charge to the applicant . He also has the emotional support and assistance of a trained volunteer provided by ORG , the leading charity in GPE providing practical support , help , counselling and legal and other advice for persons concerned about or having AIDS or HIV infection .

ORG In a medical report dated DATE PERSON , a consultant in clinical immunology treating the applicant at a GPE hospital , noted that he was at an advanced stage of HIV infection and was severely immunosuppressed . His prognosis was poor . The applicant was being given antiretroviral therapy with " CARDINAL T " and " CARDINALTC " to reduce the risk of opportunistic infection and was continuing to be prescribed pentamidine nebulisers to prevent a recurrence of ORG . Preventative treatment for other opportunistic infections was also foreseen . PERSON noted that the lack of treatment with anti - HIV therapy and preventative measures for opportunistic disease would hasten his death if he were to be returned to GPE .

ORG The applicant was transferred to an AIDS hospice around DATE for a period of respite care . At DATE there was a sudden deterioration in his condition and he had to be admitted to a hospital on DATE for examination . At the hearing before ORG on DATE , it was stated that the applicant ’s condition was causing concern and that the prognosis was uncertain . According to his counsel , it would appear that the applicant ’s life was drawing to a close much as the experts had predicted ( see paragraph CARDINAL above ) .

ORG The regulation of entry into and stay in GPE is governed by LAW DATE . The practice to be followed in the administration of the LAW for regulating entry and stay is contained in statements of the rules laid by the Secretary of ORG before ORG ( " LAW " ) .

Section CARDINAL ( CARDINAL ) provides that a person who is not a NORP citizen shall not enter the GPE unless given leave to do so in accordance with the provisions of the LAW . Leave to enter may be granted for a limited or for an indefinite period .

ORG Under LAW the power to grant or refuse leave to enter is exercised by immigration officers whereas the power to grant leave to remain in GPE is exercised by the Secretary of ORG . These powers are exercisable by notice in writing given to the person affected .

ORG A person , such as the applicant , who has been refused leave to enter but is physically in the GPE pending his removal and seeks to be allowed to stay there does not fall to be treated as applying for leave to remain . Since no leave to enter had been granted to the applicant , it was right according to the judgment of Sir PERSON in NORP v. Secretary of ORG for ORG , ex parte NORP ( ORG , DATE ) for the immigration officer to treat his application as an application for leave to enter rather than for leave to remain .

ORG The Immigration and ORG of ORG issued a policy document ( ORG CARDINAL/CARDINAL ) on this subject in DATE . LAW of the guidelines specifies that the fact that a person is suffering from AIDS or is HIV - positive is not a ground for refusing leave to enter or leave to remain if the person concerned otherwise qualifies under LAW . Equally , this fact is not in itself a sufficient ground to justify the exercise of discretion where the person concerned has not met the requirements of the Rules .

The policy guidelines distinguish between applications for leave to enter and applications for leave to remain .

ORG On applications for leave to enter ( paragraph CARDINAL of the guidelines ) , where the person is suffering from AIDS , the policy and practice is to adhere to the provisions of ORG in the normal way . Where such a person does not qualify under the LAW , entry is refused .

ORG On applications for leave to remain ( paragraph CARDINAL of the guidelines ) , the application should be dealt with normally on its merits under the applicable Rules . However , there is a discretion outside the Rules which can be exercised in strong compassionate circumstances . Paragraph CARDINAL states that :

" ... there may be cases where it is apparent that there are no facilities for treatment available in the applicant ’s own country . Where evidence suggests that this absence of treatment significantly shortens the life expectancy of the applicant it will normally be appropriate to grant leave to remain . "

ORG Among the documentary materials submitted by the applicant , are the following .

ORG International concern about AIDS has resulted in the adoption of several international texts which have addressed , inter alia , the protection of the human rights of the victims of the disease . Thus , ORG Human Rights adopted a resolution on DATE on the protection of human rights in the context of human immunodeficiency virus or acquired immunodeficiency syndrome in which it called upon " all GPE to ensure that their laws , policies and practices introduced in the context of AIDS respect human rights standards " .

ORG At LOC of forty - two States meeting in GPE on DATE , a declaration was adopted in which the participating GPE solemnly declared their obligation " to act with compassion for and in solidarity with those with HIV or at risk of becoming infected , both within [ their ] societies and internationally " .

ORG " Health and living conditions ... there are a number of serious environmental problems , such as inadequate disposal of solid and liquid waste - especially untreated sewage - into coastal lands and waters , resulting in coastal zone degradation , fish depletion and health problems ( gastroenteritis ) ... "

ORG According to this publication , there are CARDINAL general hospitals in GPE , CARDINAL with CARDINAL beds and the other with CARDINAL . There is also a " cottage " hospital with CARDINAL beds . There are CARDINAL homes providing geriatric care .

ORG This guide describes the CARDINAL medical strategies available for treating HIV infection and AIDS : using anti - HIV drugs which attack HIV itself to delay or prevent damage to the immune system , treating or preventing opportunistic infections which take advantage of damage to the immune system and strengthening and restoring the immune system . Amongst the first category , several drugs can be used , including AZT ( also known as ORG or its tradename Retrovir ) . This belongs to a family of drugs called nucleoside analogues which inhibit an enzyme produced by HIV called reverse transcriptase ( ORG ) . If ORG is inhibited , HIV can not infect new cells and the build - up of virus in the body is slowed down . However , the existing drugs are only partially effective and at best can only delay the worsening of HIV - related disease rather than prevent it .

ORG As regards the second category , persons whose immune systems have been significantly damaged are vulnerable to a range of infections and tumours known as opportunistic infections . These commonly include cytomegalovirus ( herpes virus ) , PERSON ’s sarcoma , anaemia , tuberculosis , toxoplasmosis and ORG . ORG is a form of pneumonia which in people infected with HIV may affect the lymph nodes , bone marrow , spleen and liver as well as the lungs . Steps to avoid such infections include taking care with food and drink and prophylactic treatment by drugs . In the case of ORG , which was a common cause of death during DATE of the epidemic and is still one of the commonest AIDS illnesses , options include the long - term taking of antibiotics such as cotrimoxazole and the use of nebulised pentamidine which is intended to protect the lungs .

ORG In relation to the third category , treatment which strengthens or restores the immune system , research has yet to produce any clear results .