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FOURTH
SECTION
CASE OF KNYTER v. POLAND
(Application
no. 31820/06)
JUDGMENT
STRASBOURG
1 February
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Knyter v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Mihai Poalelungi,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31820/06) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish
national, Mr Albert Knyter (“the applicant”), on 26 July
2006.
- The
applicant was represented by Ms A. Pietraś, a lawyer practising
in Gdynia. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that his detention had exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention.
- On
12 December 2007 the
Court decided to give notice of the application to the Government. It
was also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 1 of the
Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Gdańsk.
A. The applicant's pre-trial detention and conditions
in the detention centre
- The
applicant was arrested on 4 June 2004.
- On
5 June 2004 the Kartuzy District Court (Sąd Rejonowy)
ordered that the applicant be detained until 4 September 2004 in
order to secure the proper conduct of the proceedings and in view of
the reasonable suspicion that he and other co-accused had committed
the crime of harassment, deprivation of liberty and homicide.
- The
applicant's detention was repeatedly extended by several decisions of
the Kartuzy District Court, the Gdańsk Regional Court (Sąd
Okręgowy) and subsequently the Gdańsk Court of Appeal
(Sąd Apelacyjny). The applicant's appeals were
unsuccessful. In their decisions, the courts relied on the reasonable
suspicion that the applicant had committed the offence with which he
had been charged, on the serious nature of the offence and on the
complexity of the case.
- The
applicant lodged three applications for release and for the
preventive measure to be varied. On 14 October, 3 November and
3 December 2004 the Kartuzy District Prosecutor (Prokurator
Rejonowy) refused to vary the preventive measure, relying on a
reasonable suspicion that the applicant would obstruct the proper
course of the proceedings.
- On
15 February 2005 a bill of indictment was lodged with the Gdańsk
Regional Court. The applicant was charged with homicide, among other
charges. The bill of indictment concerned four co-accused all of whom
had been remanded in custody.
- On
27 April 2006 the Regional Court made an application under
Article 263 § 4 of the Code of Criminal Procedure to the
Gdańsk Court of Appeal for the applicant's detention to be
extended until 31 July 2006, because the statutory two-year
time-limit on detention pending trial would soon be exceeded
(Article 263 § 3 of the Code of Criminal Procedure).
It emphasised that the grounds originally given for his detention
were still valid and that the court was not able to proceed with the
hearing of evidence, for reasons beyond its control.
- On
4 May 2006 the Court of Appeal granted the Regional Court's
application. The court relied on a strong suspicion that the
applicant had committed the offences in question, which was supported
by evidence from witnesses and experts. It attached importance to the
seriousness of those offences and the likelihood of a severe sentence
of imprisonment being imposed on the applicant. The court emphasised,
however, that the trial court should take all necessary measures to
organise the proceedings in a diligent manner so as to terminate the
trial by 31 July 2006.
- On
28 June 2006 the Gdańsk Court of Appeal extended the applicant's
detention until 30 September 2006. The court again relied on a strong
suspicion that the applicant had committed the offences in question.
It additionally considered that the need to carry out further
evidence justified the extension of the applicant's detention.
- The
applicant's lawyer appealed against this decision.
- On
12 July 2006 the Gdańsk Court of Appeal upheld the challenged
decision, basically repeating the reasons given previously.
- On
26 September 2006 the Gdańsk Court of Appeal again extended the
applicant's detention, until 15 November 2006. The Court relied on
the same grounds as in its decision of 28 June 2006.
- The
applicant appealed.
- On
11 October 2006 the Gdańsk Court of Appeal upheld the challenged
decision. The Court did not rely on any new arguments; it admitted
that the applicant's detention had been very lengthy, because it had
been imposed on him on 4 June 2004. However, it found that, taking
into consideration the likelihood of a severe sentence of
imprisonment, the length of detention “remained in proportional
relation” to the possible penalty.
- On
8 November 2006 the Gdańsk Court of Appeal extended the
applicant's detention until 20 December 2006. No new grounds
justifying the detention were invoked.
- On
14 December 2006 the Gdańsk Court of Appeal extended the
applicant's detention until 31 January 2007. The Court of Appeal
granted the Regional Court's request, which stated that the detention
should be extended because the trial could not be terminated due to
the illness of one of the judges. The Court of Appeal considered that
the trial was “in its final phase”. It did not, however,
rely on any new grounds justifying the extended detention. It only
repeated the argument which had been used before, namely that the
severity of the sentence faced by the applicant created in itself a
risk that he might tamper with evidence or otherwise obstruct the
proceedings.
- On
30 January 2007 the Gdańsk Regional Court sentenced the
applicant to six years' imprisonment. He was found guilty of false
imprisonment, ill-treatment and unintentionally causing the death of
a human being.
- The
applicant, the other co-accused and the prosecutor lodged appeals
against the first instance judgment.
- On
18 September 2007 the Gdańsk Court of Appeal extended the
applicant's detention until 31 December 2007 “taking into
account that the appellate proceedings were still pending”.
- On
4 October 2007 the Gdańsk Court of Appeal quashed the
first instance judgment and remitted the case to the Gdańsk
Regional Court.
- On
8 October 2008 the Gdańsk Court of Appeal, having examined the
applicant's appeal against further extension of his detention ordered
by the Gdańsk Regional Court's decision of 26 September 2008,
released the applicant from detention. The Court of Appeal considered
that after such a long period of detention the Regional Court should
have demonstrated the existence of grounds of detention other than
those on which the courts had relied previously, supported by
particular circumstances justifying their existence. In the Court of
Appeal's view, the Regional Court had failed to do so.
- The
criminal proceedings against the applicant are still pending.
B. Conditions of the applicant's detention
- The
applicant submitted that during the whole period of his detention the
cells allocated to him were designed for four but were shared by six
prisoners. The applicant was detained in at least four detention
centres, in Ustka, Słupsk, Gdańsk and Stargard Szczeciński.
- The
Government submitted information only as regards the applicant's
detention in the Gdańsk Detention Centre. The applicant was
detained there from 3 March 2005 to 16 February 2007,
from 7 to 13 September 2007, and from 19 October
2007 to 8 October 2008, when he was released. As regards
these periods it was confirmed by the Government that the area of the
cells in which the applicant was detained remained consistently below
three square metres.
C. Restrictions on the applicant's personal contact
with his family
- On 27 July 2005 and 19 September
2006 the Gdańsk Regional Court refused to allow the applicant's
family to visit him in person (widzenie
przy stoliku).
- By a letter from the court of 7
June 2006 the applicant was informed that personal contact with his
family would be allowed “on the same basis as before”,
that is, “on the phone”.
- At the initial stage of
detention, on 7 March, 11 April and 5 May 2005,
the applicant was allowed to talk to his wife on the phone.
Subsequently, on 6 June and 5 July 2005 he was allowed
visits from his wife. On 22 August 2005 his brother and
mother visited him. Later, the applicant's wife visited him on
numerous occasions: in 2005 on 3 October, 9 November and
19 December, and in 2006 on 14 March, 11 April, 3 May,
8 June, 10 July, 8 August, 5 September, 5 October
and 6 November. On several occasions the applicant's wife
visited him with his mother. His mother visited him on at least six
other occasions. In October and December 2007 and in February 2008
the applicant was also visited by his brother and cousins.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
detailed description of the relevant domestic law and practice
concerning general rules governing conditions of detention in Poland
and domestic remedies available to detainees alleging that conditions
of their detention are inadequate are set out in the Court's pilot
judgments given in the cases of Orchowski v. Poland (no.
17885/04) and Norbert Sikorski v. Poland (no. 17599/05)
on 22 October 2009 (see §§ 75-85 and §§ 45-88
respectively). More recent developments are described in the decision
given by the Court in the case of Łatak v. Poland (no.
52070/08) on 12 October 2010 (see §§ 25-54).
- 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 other
“preventive measures” (środki zapobiegawcze)
are stated in the Court's judgments in the cases of Gołek v.
Poland, no. 31330/02, §§ 27-33, 25 April 2006, and
Celejewski v. Poland, no. 17584/04, §§ 22-23, 4
August 2006.
- The
relevant domestic law and practice concerning visits by detainees'
families to detention centres are described in the Court's judgment
in Mazgaj v. Poland, no. 41656/02, §§ 33-36, 21
September 2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant alleged a breach of Article 3 of the Convention in
that he had been detained in overcrowded cells and that the State had
failed to secure adequate living conditions for him throughout his
detention. He maintained that during the whole period of his
detention the cells allocated to him were designed for four but were
shared by six prisoners.
Article 3
of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The Government's objection on exhaustion of domestic
remedies
Article
35 § 1 of the Convention reads, in so far as relevant, as
follows:
“1. The Court may only deal with the
matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law ...”
- The
Government first submitted that the applicant had been detained in
the Gdańsk Detention Centre from 3 March 2005 until 16 February
2007, from 7 to 13 September 2007, and from 19 October 2007 until 8
October 2008, when he was released. As regards these periods it was
confirmed by the Government that the applicant had been detained in
cells in which the statutory minimum size of three square metres had
not been respected. The Government did not however submit any
information as regards conditions in the detention centres in which
the applicant had been detained outside the above-mentioned periods.
- The
Government argued that the applicant had not exhausted domestic
remedies available to him, as required by Article 35 § 1 of the
Convention. They raised a preliminary objection similar to that
relied on in the case of Łatak v. Poland (cited above, §§
63-64). In particular, the applicant should bring a civil action
under Article 24 taken in conjunction with Article 448 of the Civil
Code in order to seek compensation for the alleged violation.
- In
view of the foregoing, the Government invited the Court to reject the
application for non-exhaustion of domestic remedies, pursuant to
Article 35 § 1 of the Convention.
B. The applicant's position
- The
applicant's lawyer did not submit any comments on this matter.
C. The Court's conclusion
- The
Court has already examined the same objection raised by the
Government in the above mentioned case of Łatak v. Poland and
considered their arguments not only in the context of that particular
applicant but also in respect of other actual or potential applicants
with similar cases. (see Łatak, cited above, §§
71-85).
- In
so doing, the Court had regard to the fact that on the date of the
adoption of its decision there were 271 cases pending before it where
the applicants had raised complaints similar in substance, alleging a
violation of Article 3 in that at various times and for various
periods they had been adversely affected by the same structural
problem, having been detained in overcrowded, insanitary cells (ibid.
§ 84).
- Having
found that a civil action under Article 24 taken in conjunction with
Article 448 of the Civil Code could be considered an “effective
remedy” for the purposes of Article 35 § 1 of the
Convention as from 17 March 2010 and having regard to the 3-year
limitation period for lodging such an action, the Court held that
essentially in all cases in which in June 2008 the alleged violation
had either been remedied by placing the applicant in
Convention-compliant conditions or had ended ipso facto because
the applicant had been released, the applicants concerned should
bring a civil action for the infringement of personal rights and
compensation (ibid. § 85 and § 76 respectively).
- In
the present case the situation giving rise to the alleged violation
of Article 3 ended on 8 October 2008 the date on which the applicant
was released. That being so and having regard to the fact that he
still has adequate time to prepare and lodge with the Polish civil
courts an action under Article 24 taken in conjunction with Article
448 of the Civil Code, he should, before having his Convention claim
examined by the Court, be required to seek redress at domestic level.
- It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention had been
excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
applicant's detention started on 4 June 2004, when he was arrested on
suspicion of, inter alia, homicide. On 30 January
2007 the Gdańsk Regional Court convicted him of false
imprisonment, ill-treatment and unintentionally causing the death of
a human being. As from that date he was detained “after
conviction by a competent court”, within the meaning of Article
5 § 1 (a) and consequently that period of his detention falls
outside the scope of Article 5 § 3 (see for comparison Kudła
v. Poland [GC], no. 30210/96, § 104 et seq.,
ECHR 2000 XI).
- On
4 October 2007 the Gdańsk Court of Appeal quashed the
applicant's conviction. Following that date his detention was again
covered by Article 5 § 3. It continued until 8
October 2008 when the applicant was released.
Accordingly,
the period to be taken into consideration amounts to three years,
eight months and two days.
2. The parties' submissions
(a) The applicant
- The
applicant's lawyer submitted in general terms that the complaint
under Article 5 § 3 of the Convention was justified.
(b) The Government
- The
Government considered that the applicant's detention satisfied the
requirements of Article 5 § 3. They submitted that the detention
had been duly justified and that during the entire period the
authorities had given relevant and sufficient reasons for extending
it. The Government further submitted that the domestic courts had
acted diligently and speedily, in particular taking into account the
complexity of the case.
3. The Court's assessment
(a) General principles
- The
Court reiterates that the general principles regarding the right “to
trial within a reasonable time or to release pending trial, as
guaranteed by Article 5 § 3 of the Convention” were stated
in a number of its previous judgments (see, among many other
authorities, Kudła, cited above § 110 et seq.,
and McKay v. the United Kingdom [GC], no. 543/03, §§
41-44, ECHR 2006-..., with further references).
(b) Application of the above principles in
the present case
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely (1) the serious nature of the offences with
which he had been charged, (2) the severity of the penalty to which
he was liable; (3) the need to secure the proper conduct of the
proceedings and the risk that the applicant might tamper with
evidence. As regards the latter, they did not, however, give any
specific grounds for their opinion. (see paragraphs 9 and 20 above).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed offences could initially warrant his detention.
Also, the need to obtain voluminous evidence and to determine the
degree of alleged responsibility of each of the defendants, against
whom numerous charges of serious offences had been laid, constituted
valid grounds for the applicant's initial detention.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts, namely, the severity of the anticipated
sentence and the risk that the applicant would tamper with evidence,
were “relevant” and “sufficient” (see Kudła,
cited above, § 111).
- According
to the authorities, the likelihood of a severe sentence being imposed
on the applicant created a presumption that the applicant would
obstruct the proceedings. However, the Court would reiterate that,
while the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending, the seriousness
of the charges cannot of itself justify long periods of detention
(see Michta v. Poland, no. 13425/02, §§
49, 4 May 2006).
- The
Court is not persuaded by the Government's argument that the risk
that the applicant might tamper with evidence constituted a valid
ground for the entire length of the applicant's detention during the
judicial proceedings. The domestic courts did not give any
indications as to why they believed that the applicant might obstruct
the proceedings if released. The Court cannot therefore accept that
ground as a justification for holding the applicant in custody for
the entire period.
- The
Court also considers that, since the term of detention in the present
case had been very lengthy (three years and eight months), it
must be thoroughly and duly justified by the domestic authorities,
both from a substantive point of view (the existence of reasons
justifying keeping the applicant in detention) and from a formal
point of view (a proper formulation and justification of the courts'
decisions).
- For
the Court a failure on the part of the domestic authorities to fulfil
the formal requirements for decisions extending detention precludes
any substantive examination of the justification for continuing
detention and is per se sufficient for finding a violation of
Article 5 § 3 (see, mutatis mutandis, Kubik v. Poland,
no. 12848/03, § 62, 29 January 2008, and Janulis v.
Poland, no. 20251/04, §§38-40, 4 November 2008).
- A
failure to fulfil formal requirements may, in particular, consist in
(1) simply repeating reasons for detention contained in the Code
of Criminal Procedure, without explaining how they apply in a given
case or (2) simply repeating reasons given in the initial phase
of detention, without explaining in further decisions why continuing
detention is indispensable.
61. The
Court notes that the reasons relied upon by the domestic courts in
their decisions to extend the applicant's detention were limited to
paraphrasing the reasons for detention set out in the Code of
Criminal Procedure, without explaining how they applied in the
applicant's case (see paragraphs 15 and 16 above). The Gdańsk
Court of Appeal, when extending the applicant's detention beyond the
statutory two-year time limit, merely repeated the wording of
the decisions previously given (see paragraph 11 above).
- The
Court would add that at no stage of the proceedings was any
consideration given to the possibility of imposing on the applicant
alternative, less severe, preventive measures. In this connection,
the Court would reiterate that Article 5 § 3 of the Convention
not only lays down the right to “trial within a reasonable time
or release pending trial” but also provides that “release
may be conditioned by guarantees to appear for trial” (see
Jabloński v. Poland, no. 33492/96, § 83,
21 December 2000).
- The
justification for any period of detention, no matter how short, must
be convincingly demonstrated by the authorities (see Kubik
v. Poland, § 64, cited above). In this case, the Court
finds that the grounds given by the domestic authorities, in the
absence of any proper reasoning, cannot be considered “relevant”
and “sufficient” to justify the applicant's being kept in
detention for nearly two years.
- Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities could not justify the overall period of
the applicant's detention. In these circumstances it is not necessary
to examine whether the proceedings were conducted with special
diligence.
There
has accordingly been a violation of Article 5 § 3 of
the Convention.
- The
Court would point out in this connection that in its
Kauczor v. Poland judgment it found that numerous
cases have demonstrated that the excessive length of pre-trial
detention in Poland revealed a structural problem consisting of “a
practice that is incompatible with the Convention” (see Kauczor
v. Poland, no. 45219/06, §§ 55-62, 3 February
2009).
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant further complained of the excessive length of the criminal
proceedings against him. He relied on Article 6 § 1 of the
Convention.
- The
Court notes that the applicant was and still is authorised because
the relevant proceedings are pending to lodge a complaint
under section 5 of the Law of 17 June 2004 on complaints
about a breach of the right to a trial within a reasonable time
(Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy
w postępowaniu sądowym bez nieuzasadnionej zwłoki)
(“the 2004 Act”). The applicant did not make use of
that remedy. It follows that the complaint must be rejected for
non-exhaustion of domestic remedies, in accordance with Article 35
§§ 1 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE
6 § 2
OF THE CONVENTION
- The applicant also alleged a
violation of Article 6 § 2 of the Convention, which reads as
follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
- The Court, having examined all the material submitted
to it, finds nothing in the case file that would justify the
applicant's allegations as regards the alleged breach of Article 6 §
2 of the Convention. In any event, the criminal proceedings are still
pending and for this reason the complaint is premature. It follows
that this complaint is inadmissible and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further complained that his right to see members of his
family during his detention had been restricted. He relied on Article
8 of the Convention.
“1. Everyone has the right to respect
for his private and family life, ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility of the complaint concerning the
refusal of 27 July 2005
- The
Court notes that the present application was lodged with the Court on
26 July 2006. The refusal complained of took place on 27 July 2005.
It follows that this part of the applicant's complaint is
inadmissible as it was lodged after the expiry of the six-month time
limit. For that reason it must be rejected in accordance with Article
35 §§ 1 and 4 of the Convention.
B. The parties' submissions regarding the refusal of
19 September 2006
- In
their observations the Government submitted that during the period of
the applicant's detention he had been allowed to see members of his
family throughout the whole period of his detention. The Government
produced documents to support their submissions as well as a detailed
list of dates and family members who had been allowed to visit the
applicant in detention centres (see paragraph 31 above). They also
confirmed that on 19 September
2006, the Regional Court had refused to allow the applicant's family
to visit him.
- In
her observations, the applicant's lawyer did not comment on the
Government's submissions.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention or inadmissible
on any other grounds. It must therefore be declared admissible.
C. The Court's assessment
1. General principles
- The
Court reiterates that detention, like any other measure depriving a
person of his liberty, entails inherent limitations on private and
family life. However, it is an essential part of a detainee's right
to respect for family life that the authorities enable him to, or, if
need be, assist him in, maintaining contact with his close family
(see, mutatis mutandis, Messina v. Italy
(no. 2) no. 25498/94, § 61,
28 September 2000).
- Such
restrictions as limitations on the number of family visits,
supervision of those visits and, if so justified by the nature of the
offence, subjection of a detainee to a special prison regime or
special arrangements for visits, constitute an interference with his
rights under Article 8 but are not of themselves in breach of
that provision (ibid. §§ 62-63; see also Kucera v.
Slovakia, no. 48666/99, §§ 127-128, 17 July 2007).
- The
Court reiterates that any interference with an individual's right to
respect for his private and family life will constitute a breach of
Article 8, unless it was “in accordance with the law”,
pursued a legitimate aim or aims under paragraph 2, and was
“necessary in a democratic society” in the sense that it
was proportionate to the aims sought to be achieved
(see D.G. v. Ireland, no. 39474/98, § 104,
16 May 2002). A measure will be in accordance with the law if it
satisfies three conditions. First, it must have some basis in
domestic law. Second, the law must be adequately accessible: the
citizen must be able to have an indication that is adequate, in the
circumstances, of the legal rules applicable to a given case.
Finally, a norm cannot be regarded as a “law” unless it
is formulated with sufficient precision to enable the citizen to
regulate his conduct: he must be able – if need be with
appropriate advice – to foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may
entail (see Onoufriou v. Cyprus, no. 24407/04, § 93,
7 January 2010).
2. Application of the above principles to the instant
case
(a) Existence of interference
- The
Court notes that on 19 September 2006, the Gdańsk Regional Court
refused to allow the applicant personal contact
with his family. No reasons were given for the refusal.
- The
Court also notes that the Government have preferred not to submit any
comments on the refusal. In particular, the Government did not
dispute that the restrictions on the applicant's personal contact
with his family constituted an “interference” with his
right to respect for his family life. The Court sees no reason to
hold otherwise.
(b) Whether the interference was “in
accordance with the law”
- The
Court observes that the contested measure was applied under Article
217§ 1 of the Code of Execution of Criminal Sentences. The Court
further notes that this provision, as applicable at the material
time, gave the relevant authority (prosecutor or court) the power to
grant permission for family visits in prison. The law, however,
provided no details as regards the conditions for granting such
permission, no guidance as to how the authorities might decide
whether the prohibition of visiting rights was merited in a
particular case and what factors might be relevant to that decision.
It did not provide for the right to appeal against the refusal of
visits and did not require the authorities to provide the persons
concerned with reasons for their decision. The decision was thus left
to the authorities' absolute discretion
- In
this respect the Court notes that on 2 July 2009 the Constitutional
Court declared Article 217 § 1 of the Code of Execution of
Criminal Sentences unconstitutional (see, in this connection Wegera
v. Poland, no. 141/07, §§ 29-41, 19 January 2010).
- The
Court further observes that it has already held that Article 217 § 1
of the Code of Execution of Criminal Sentences did not indicate with
reasonable clarity the scope and manner of the exercise of any
discretion conferred on the relevant authorities to restrict visiting
rights (see Wegera, cited above, §§ 74-75). It
also found that the unreasoned refusal of family visits in detention
was not in accordance with the law (see Gradek v.
Poland, no. 39631/06, § 48, 8 June 2010).
- In
the present case the reasoning for the refusal was not given.
Therefore the Court concludes that the refusal
of the family visit on 19 September 2006 in the applicant's case
was not in accordance with the law. There has accordingly been a
violation of Article 8 § 1 of the Convention. On that account it
is not necessary to ascertain whether the other conditions imposed by
Article 8 § 2 have been complied with.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 200,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage and costs and expenses.
- The
Government considered the claim excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,500 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant's lawyer's claim for EUR 200,000 concerned also the costs
and expenses (see paragraph 85 above). She did not specify, however,
what part of her claim referred to the costs. Nor did she submit any
information as to whether the claim concerned the costs incurred
before the domestic courts or before the Court. She produced six
invoices issued by other lawyers; none of them related to the
proceedings before the Court. As regards the costs of her
representation before the Court, no document was submitted.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 5
§ 3 of the Convention and the complaint concerning Article 8 of
the Convention as regards the refusal of the family visit on
19 September 2006 admissible, and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention as regards the refusal of family visit on
19 September 2006;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two
thousand five hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable, to be converted into the currency of
the respondent State at the rate applicable on the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 1 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
