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FOURTH SECTION

Application no. 66424/09
Leslaw WÓJCIK
against Poland
lodged on 25 November 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Leslaw Wójcik, is a Polish national who was born in 1988 and is currently serving a prison sentence in Wroclaw Prison.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is serving a prison sentence.

From 11 September 2009 until 5 August 2010 and from 24 January until 15 July 2011 he was detained in Rzeszów Prison. In the meantime, from 5 August 2010 until 24 January 2011 he was detained at the Cracow Remand Centre’s hospital. On 15 July 2011 he was transferred to Wroclaw Prison where is currently detained.

1.  Visits of the applicant’s wife and relatives

The applicant is married and has a two-year old child. Since the beginning of his detention he has been making regular requests for visits from his wife, his child, his two parents, his two brothers and one sister. In addition, the applicant has made requests for private conjugal visits (widzenie malzenskie), the so-called “intimate visits”, which take place in a private room without a guard being present.

It appears that in Rzeszów Prison the applicant was regularly granted three family visits per month: two visits from adults (maximum two at a time) and one visit from his young son, who was accompanied by his wife.

It appears that an unspecified number of those visits took place in a common room where the applicant was allowed to see his visitors in person and in the presence of a police officer – the so called “supervised visits” or “visits at the table” (widzenie przy stoliku). The applicant was not allowed to kiss or hug his wife during those visits.

During the remainder of the visits the applicant was separated from his visitors by a perspex partition and could communicate with them via internal phone – the so-called “closed visits” or “visits at the window” (widzenie przy okienku).

It also appears that on 24 December 2009 the applicant was granted one additional supervised visit (widzenie dodatkowe) from his relatives and his wife.

The applicant submitted, however, that the remainder of his numerous requests for additional visits from his family and all of his own and his wife’s applications for conjugal visits had been rejected by the Governor of Rzeszów Prison. No reasons were given.

The applicant complained that the law did not require the prison authorities to reply in writing to requests for visits made by prisoners but only to those which were made by potential visitors.

The applicant further alleged that an additional visit and, particularly, a conjugal visit could be granted by the prison governor once a month as a reward for a prisoner’s good behaviour. In the practice of Rzeszów Prison, such visits were granted only to inmates employed by the prison. The applicant alleged that his job application, even to work for free, had been rejected due to the limited employment opportunities. In consequence, additional family visits and conjugal visits were beyond his reach.

To that effect the applicant submitted copies of letters of 17 and 28 December 2009 and of 28 May 2010 by which the Deputy Governor of Rzeszów Prison had rejected four requests for a conjugal visit made by the applicant’s wife. It was noted, without any details being given, that the applicant did not deserve to be so rewarded.

It appears that on 12 January 2010 the applicant was told that as a form of punishment for his behaviour of 5 and 6 January 2010, his family visits in the following two months would take place through a perplex partition and via an interphone. It appears that no written decision was issued to that effect by the authorities of Rzeszów Prison. The applicant claimed that that decision had had such an impact on him that later that day he had been taken ill and had been escorted to the hospital.

On 19 January 2010 the applicant received a disciplinary punishment for attempting to corrupt the guards who had escorted him to the hospital on 12 January. In consequence, for fourteen days he was not allowed to receive any visitors or to make phone calls.

It appears that during his detention in the Cracow Remand Centre’s hospital, the applicant was granted many additional supervised family visits. Conjugal visits, however, could not be authorised despite the applicant’s good behaviour. The applicant submitted that the remand centre did not have a separate room where such private visits could take place.

It appears that no conjugal visit has been authorised since the applicant’s transfer to Wroclaw Prison.

2.  The applicant’s complaints about the refusal of additional family visits and conjugal visits

The applicant and his wife made many complaints about the refusal of additional family visits and conjugal visits.

On 30 March 2010 the penitentiary judge of the Rzeszów Regional Court (Sad Okregowy) dismissed the applicant’s interlocutory appeal against the decision of 18 March 2010 by which the Rzeszów Prison’s Governor refused to grant the applicant a conjugal visit in a private room.

By letter of 21 April 2010 the Deputy Governor of Rzeszów Prison informed the applicant that his complaint of 18 March 2010 had been considered ill-founded. It was noted that the rules regulating the grant of conjugal visits and other forms of rewards for good behaviour had been thoroughly explained to the applicant. The applicant’s behaviour, however, did not allow for such rewards. On the other hand, the authorities stressed that the applicant had enjoyed sufficient contact with his family because he had been regularly granted visits in a common room or visits via an interphone.

By letter of 26 May 2011 the Ombudsman (Rzecznik Praw Obywatelskich) informed the applicant that the basic forms of family contact in prison were: visits which took place in a common room where a prisoner was allowed to see his visitors in person and in the presence of a prison guard; telephone calls and letters. Conjugal visits could be exceptionally granted by a remand centre or a prison’s governor as a reward for a prisoner’s good behaviour. Conjugal visits were, therefore, not a prisoner’s right but a privilege.

B.  Relevant domestic law

Pursuant to Article 105 of the Code of Execution of Criminal Sentences (Kodeks Karny Wykonawczy) (“the Code”), prison authorities should enable a person who is serving a prison sentence to maintain his or her family ties through visits, correspondence, telephone calls, parcels and money transfers. The organisation of prisoners’ contacts with family members, including the monitoring of visits and correspondence, depends on the type of prison and the prisoner’s individual circumstances.

A person who is serving a sentence in a closed-type prison is entitled to two visits per month. With the permission of the prison governor both visits may take place on the same day. Such visits, including conversations, are monitored by the prison’s administration (Article 90 points 6 and 7 of the Code).

A person who is serving a sentence in a semi-open prison is entitled to three visits per month. With the permission of the prison governor all three visits may take place on the same day. These visits, including conversations, are monitored by the prison’s administration (Article 91 points 8 and 9 of the Code).

A person who is serving a sentence in an open prison is entitled to an unlimited number of visits. These visits, excluding conversations, may be monitored by the prison’s administration (Article 92 points 10 and 11 of the same Code).

Article 105 (a) of the Code provides further details on the organisation of visits, irrespective of the prison type.

Visits of persons who are not members of a prisoner’s family may take place only with the permission of the prison governor. Visits of family members do not require such procedure.

As a general rule, a prisoner is entitled to one 60-minute-visit per day. A maximum of two adults are allowed to visit a prisoner at a time. The number of minors is unlimited. However, children younger than 15 must be accompanied by an adult. Prisoners with full custody rights are also entitled to an additional visit from their children (see also Article 87 (a) of the Code).

Typically, visits must take place in a common room at an individual table and under the supervision of a prison guard. They are organised in a way such as to enable a prisoner to have direct contact with a visitor.

In practice, there are four types of visits.

An “open visit” (widzenie bezdozorowe), commonly referred to as a “visit at the table” (“widzenie przy stoliku”). It 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” (widzenie dozorowane or widzenie “przy stoliku” w obecnosci funkcjonariusza Sluzby Wieziennej). It takes place in the same common room but the prison guard is present at the table, controls the course of the visit, listens to the conversation and may restrict physical contact. His principal role usually is to ensure that the visit is not used for the purposes of achieving any unlawful aims and to prevent the transfer of any forbidden objects.

A “closed visit”, commonly referred to in Polish as “widzenie przy okienku”. It takes place in a special room. A detainee is separated from his visitor by a perspex partition and they communicate through an internal phone.

A “conjugal visit” (“widzenie malzenskie”), also known as an “intimate visit”. It takes place without the presence of a prison guard in a private room which may be equipped with a bed.

According to Article 138 of the Code, “conjugal visits”, “open visits” and any type of additional or longer visits constitute rewards (“nagrody”). They are granted by a prison governor for a prisoner’s good behaviour or as a form of motivation to improve a prisoner’s behaviour (Article 137 of the Code).

Article 141 of the Code further provides that rewards are also granted to prisoners as a form of “motivation” (“ulga”) if it is justified by a prisoner’s exceptional family or personal circumstances.

Finally, Articles 142 and 143 point 6 of the Code stipulate that a prisoner who is responsible for breaching the law or a prison’s internal order is liable to a disciplinary punishment, which may take the form of restrictions on visits. For example, a visit will be organised only in a manner which does not allow a prisoner to have direct contact with a visitor. Such restrictions are ordered by a prison governor for a maximum period of three months.

C.  Relevant international law materials

The relevant extracts from Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, adopted on 11 January 2006, read as follows:

“Part II Conditions of imprisonment

Contact with the outside world

24.1  Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.

24.2  Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.

24.3  National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.

24.4  The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.

24.5  Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ”

COMPLAINT

The applicant complains under Article 8 of the Convention about unjustified and disproportionate restrictions on his right to have private conjugal visits in prison. In particular, he submits that the alleged interference destroys his family life and impedes him and his wife from having more children.

QUESTIONS TO THE PARTIES

In so far as the applicant complains about unjustified and disproportionate restrictions on his private conjugal visits in prison:

1. Has there been a violation of the applicant’s right to respect for his private and family life or, alternatively, a failure to secure that right, contrary to Article 8 of the Convention?

2. Has there been a violation of the applicant’s right to found a family or, alternatively, a failure to secure that right, contrary to Article 12 of the Convention?