"Instructions" make the prison administration responsible for verifying the decision of considering a prisoner dangerous at least once every six months. Only negative information collected during six months may become the basis for maintaining the decision in force; otherwise a motion should be filed for the decision to be recalled. The regulations do not state precisely the prisoner's rights in the case when no negative information had been collected but the decision was prolonged.

In June 1993 in Poland there were 117 dangerous prisoners [6], 0.18% of the whole prison population [7]. They were all male [8]. Among them there were 67 sentenced and 50 prisoners in detention awaiting trial. It is interesting to look at why these men were included in the group of dangerous prisoners. The reasons are as follow: 65 cases – escape of a prisoner or planning of escape [9]; 30 cases – aggressive behaviour towards prison officers or civilian personnel; 9 cases – organization or participation in serious actions disturbing order and security in a penal institution and prisons for detention in custody pending inquiry; 2 cases – insinuating and performing acts of terror towards fellow prisoners. The last 11 men were found dangerous on the basis of various reasons: e.g. homicide of a prison officer, homicide of two policemen, "cruel homicide of four people", "another homicide while on pass from prison" etc. [10]

Dangerous prisoners serve their sentence in closed penal institutions. At present there are several dozens of such institutions. There exist neither special maximum security prisons for dangerous prisoners nor even special wards for them. Using the Anglo–Saxon terminology, a "dispersal policy" is in force in Poland [11].

The "Instructions" mentioned above contain the general reservation that finding a prisoner dangerous cannot set limits upon his rights resulting from the Punishment Execution Code and the Rules. This regulation was introduced after the intervention of the Ombudsman for Civil Rights in 1988.

What are then the restrictions resulting from the fact of finding the prisoner dangerous? A dangerous prisoner is put in a "maximum technical security" cell, which has all furniture and equipment firmly fixed to the walls and the floor of the cell. There are special food – serving slots in the door. Only two sentenced people, carefully chosen, can be put together in one cell. The place for beds should be selected so as to help the prison officer observe and control the prisoners [12].

Dangerous prisoners are under "regular supervision" by prison officers and personnel. They are searched every time they leave or enter the cell. They take part in cultural and educational meetings, according to individual choice of a group. They participate in group walks (not more than 10 people in a group) in a specially protected place and under the supervision of prison officers. They can work only within the penal institution area, under the supervision of prison officers, excluding the production of dangerous tools [13]. According to the above–mentioned "Instructions" , prisoners should be transferred wearing Penal Institution clothes and with handcuffs on if they "tend to be aggressive or to escape".

The execution of the regulations mentioned above, as shown by the preliminary research, is different. Dangerous prisoners actually serve their sentence in cells with firmly fixed equipment [14].

If the prisoners happened to be perpetrators of acts of terror towards the Prison Service , they were under extended control while on walk. They did not work because of the lack of work possibilities. The regulations setting limits upon the prisoners' participation in cultural and educational meetings were no longer valid because of the access to audio–visual equipment in individual cells.

The question is whether the restrictions mentioned above set limits upon the rights of a sentenced person resulting from the Punishment Execution Code and/or the Rules? The Punishment Execution Code is a very general formulation of the rights of a sentenced person. On the other hand, the Rules contain very detailed information about the rights of a sentenced person/a prisoner in custody pending inquiry but they do not say anything about dangerous prisoners. Formally, there is no clear discrepancy between the "Instructions" and the legal acts currently being created. Nevertheless, finding a prisoner dangerous may cause serious problems. Our task is to find out if the status of dangerous prisoners complies with contemporary standards of human rights.

Dangerous prisoners and human rights

Standard Minimum Rules for the Treatment of UN Prisoners, (1955) is one of the first important international acts that partly deals with the question of human rights. They do not mention the problem of dangerous prisoners expressis verbis, but the rule No. 27 emphasizes the importance of keeping discipline and order only with those limitations that are necessary for the security of a penal institution (no major limitations are required) [15]. Obviously, with such a general formulation, it is difficult under the Polish "Instructions" to prove violation of this rule.

It is worth mentioning that the Minimum Rules belong to "soft" international law, because they are a resolution and have the character of a recommendation. They have been obligatory for 40 years; their role is, however, diminishing because of the introduction of new international rules.

European Prison Rules [16], quite a recent document of great importance on the continent, also do not contain any regulations dealing with the category of dangerous prisoners.

One of the most significant documents concerning the custody and treatment of dangerous prisoners is the resolution of the Council of Europe, 1982 [17]. It recommends the application of normal regulations to dangerous prisoners as far as it is possible. Security measures should be applied only if they are absolutely indispensable and respect human dignity and the prisoner's rights. Education, vocational training, work and recreation should be taken into consideration unless they collide with security measures. Finally, the resolution calls for governments of the member states to create a procedure for the inspection and control of the fairness of the decisions of considering the sentenced dangerous.

The resolution gives the state legislators important directives concerning legal regulations dealing with dangerous prisoners. However, since it is one of the documents belonging to "soft" international law and its formulation seems to be very general, other countries are obliged to fulfil its recommendations only from a moral and political point of view.

The Convention for the Protection of Human Rights and Fundamental Freedoms, (1950) belongs, on the other hand, to "hard" treaty law and creates one of the most efficient mechanisms of protection of human rights.

The Convention does not mention prisoners expressis verbis and what's more, dangerous prisoners. It contains, however, a few indirect regulations concerning prisoners, mainly article 3 (prohibition of practising torture), and article 6 (right to a fair trial).

Prohibition of degrading treatment and the right to a fair trial in the European Convention

Article 3 prohibits practising torture and degrading or inhuman treatment or punishment. This is the only resolution in the Convention that has no exceptions, which means that it is obligatory for everyone in all circumstances [18].

Would the complaint of a Polish dangerous prisoner concerning the violation of article 3 of the Convention (e.g. in case of degrading treatment) be positively considered? Even a rough analysis of the decisions of the Court and the Committee proves that the answer would be negative. There were cases in which the Committee and sometimes the Court of Human Rights considered the complaints of German terrorists and other prisoners who had been held incommunicado (misé au secret in Switzerland) for a considerable time. According to the Convention the full isolation of a prisoner complies with article 3 if it is absolutely indispensable and if the prisoner is given the possibility of obtaining information from the outside world as well as communicating with other people. It is rightly emphasized in legal literature that the organs of the Convention assume in their decisions that staying in prison makes life difficult; that is why the limitations set upon isolated prisoners are tolerated. If the same limitations were set upon free people, it would be considered a violation of the prohibition of practising torture, inhuman or degrading treatment or punishment [19].

Measures applied to dangerous prisoners in Poland do not provide the possibility of total isolation [20], and it is difficult to compare them to even more restrictive measures in other countries [21]. Therefore, on the basis of this data, it should be assumed that there is a chance of positive consideration of a prisoner's complaint.

Preventive mechanisms should be mentioned here in relation to the regulations of article 3 of the Convention. These mechanisms were formed by the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in 1989. Poland has not yet signed this important act. When this takes place it is likely that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment will be interested in the problem of dangerous prisoners while inspecting Polish institutions [22].

The question of the right to a fair trial, formulated in article 6 of the Convention, is a more complicated one. According to this article, everyone (including dangerous prisoners) has the right to a fair and public consideration of his matter in a reasonable time limit by an independent and fair statutory court of law, with the consideration of their civil rights and duties or of the justness of any objections raised against them in a criminal case.

Polish regulations concerning dangerous prisoners belong to so called "duplicative" law. They are included neither in the Punishment Execution Code nor in the Rules of carrying out the penalty of imprisonment and the detention awaiting trial. Polish administrative law assumes that an administrative decision cannot be the result of an instructional act [23]. What follows is that these decisions are not law in the proper sense, but can be considered quasi–decisions. It is in the course of administrative decisions that a prisoner has the right to appeal from any decision of the prison administration (article 141 of the Punishment Execution Code). This also includes the decision of considering a prisoner dangerous. The matter is examined by a penitentiary court which is then an administrative one.

This regulation is not clearly stated in law. Consequently, from the technical point of view, the prisoner does not receive any document ("decision"). He is informed of being found dangerous orally. Even if we considered this decision an administrative act, the appeal should have been preceded with the action against the prison administration for passing the decision (in writing). The Ombudsman's bitter words were not unjustified.

In the light of the procedural and formal deficiencies, the justness of a complaint from article 6 of the Convention about considering a prisoner dangerous should be examined. The very formulations in article 6, such as "civil rights and duties" as well as "objections raised in the criminal case" are unclear. Taking into account the complaining party (person deprived of liberty) and the character of the matters considered (execution of punishment), we may assume that we are dealing with a "criminal case". On the other hand, the "Instructions" mentioned previously do not contain any regulations that would reveal the features of a sanction. What's more, the "Instructions" have a restrictive character. So far, however, the organs of the Convention have used both terms: "civil case" (towards administrative law) and "criminal case" [24].

Conclusions and discussion

The problem of the protection of dangerous prisoners' rights may seem insignificant taking into account numbers and social attitudes [25]. There is nothing more misleading. Human rights should pertain also to various types of minorities, including those who break the law. Sir Winston Churchill was right when he said that the civilization level of a society can be defined on the basis of conditions of isolating its members.

In my opinion, Polish regulations concerning dangerous prisoners are not too rigorous and do not endanger human dignity. They comply with the recommendations of the Council of Europe mentioned earlier in this paper. The problem is the "instructional" character of the regulations concerning matters important to the prisoner. From the point of view of a long–term prisoner, the problem of individual walks in separation "under extended control" may be of vital importance. Here is another deficiency – the right to complain. The prisoner may be right or wrong and this is yet another question. He should have the right to complain about the conditions and treatment. In practice, this law is present, although the "confidentiality" of the Instructions and the oral informing of prisoners about decisions makes it difficult to put into practice. As a result, the system takes advantage of the prisoners' ignorance of administrative procedure and violates the principle of open proceedings.

Changes that should be indispensably introduced are as follows: the rule regulating the status of dangerous prisoners should be introduced either into the Punishment Execution Code or, at least, into the Rules; prisoners should be given the right to judicial control over the decisions on considering a prisoner dangerous; and the very term "dangerous prisoner" [26] should be replaced by "difficult prisoner". These changes, though not very prominent, may help to avoid complaints on the basis of article 6 of the Convention. This would allow for better adaptation of Polish law to European standards. It seems to be even more important for Poland nowadays because as a country behind the "Iron Curtain", it has been and will be closely watched by the Europeans.