FOURTH SECTION
CASE OF
KURKOWSKI v. POLAND
(Application no.
36228/06)
JUDGMENT
STRASBOURG
9 April 2013
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 Kurkowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 19 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
36228/06) 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 Mariusz Kurkowski (“the applicant”),
on 28 August 2006.
The applicant was represented by Ms B. Krzyżagórska-
Żurek, a lawyer practising in Gdańsk. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
succeeded by Ms J. Chrzanowska of the Ministry for Foreign Affairs.
The applicant alleged, in particular, that the
conditions of his detention had given rise to inhuman and degrading treatment
contrary to Article 3 of the Convention.
On 12 January 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1960 and lives in Gdańsk.
A. The applicant’s pre-trial detention and criminal
proceedings against him
The applicant was a member of the management
board of the Mostostal Gdańsk joint-stock company (“the company”),
manufacturing ships and other industrial steel constructions.
On 28 November 2002 the Gdańsk District
Prosecutor (Prokuratur Rejonowy) opened a criminal investigation into
allegations that the company’s management board had intentionally acted to the
detriment of the enterprise (celowe działanie na szkodę
spółki).
On 4 December 2004 the Gdańsk District Court
(Sąd Rejonowy) remanded the applicant in custody on reasonable
suspicion that he had committed a series of offences related to the running of
the company. The court also considered that keeping the applicant in detention
was justified by the severity of the penalty which could be imposed if he were
convicted and the risk that he might attempt to obstruct the proceedings,
especially since the applicant’s and his co-accused’s testimonies had been
contradictory. That decision was upheld by the Gdańsk Regional Court (Sąd
Okręgowy) on 10 January 2005.
The applicant’s detention was subsequently
extended by decisions of the Gdańsk District Court of 2 March, 1 June and
26 August 2005, which were upheld by the Gdańsk Regional Court on 30
March, 27 June and 19 September 2005 respectively. In their
decisions, the domestic courts repeatedly relied on the reasonable suspicion
that the applicant had committed the offences with which he had been charged,
the serious nature of the offences, the complexity of the case which involved
many individuals and the risk that the applicant would obstruct the
proceedings, for example, by inducing witnesses to give false testimony. The
domestic courts considered the latter argument particularly relevant in light
of the fact that the penalty which the applicant faced was severe. In addition,
the domestic courts invoked the difficulties in obtaining evidence, including
from abroad, and the need to examine several hundred witnesses and many
accounting, tax and auditing experts. On 1 June 2005 the case file already consisted
of one hundred volumes.
The applicant’s pre-trial detention was further
extended by decisions of the Gdańsk Regional Court of 22 December 2005, 23
May and 28 September 2006, which were upheld by the Gdańsk Court of
Appeal (Sąd Apelacyjny) on 24 January and 13 June 2006 and a further
decision of an unspecified date.
On 31 August 2005 and 2 February 2006 two
motions for the applicant’s release were rejected.
In the meantime, on 18 August 2005 the
prosecutor lodged a bill of indictment with the Gdansk District Court against
the applicant and eleven other co-accused. The applicant was charged with eleven
offences including appropriation of the company’s assets, causing damage to the
company and acting to the detriment of the company’s creditors. The prosecutor
requested to hear evidence from 30 witnesses and to have read out the testimonies
of 552 other witnesses.
On 31 August 2005 the District Court requested
the Gdansk Court of Appeal to transfer the case to the Gdansk Regional Court
due to its complicated nature. On 6 September 2005 the case was remitted to the
Gdańsk Regional Court.
The first hearing took place on 27 June 2006.
The applicant’s detention pending trial was
further extended by the first-instance court on 28 September 2006.
On 26 October 2006 the Gdańsk Regional
Court decided to lift the preventive measure and to release the applicant.
The court considered that continuing the applicant’s detention was no longer
necessary because two of the co-accused, who had initially been detained, had
already made their statements and seven of the other co-accused had remained at
liberty throughout the proceedings. For these reasons there was no need to keep
the applicant in pre-trial detention.
It would appear that the criminal proceedings
against the applicant are still pending.
B. Complaint about the unreasonable length of the
criminal proceedings against the applicant
On 7 December 2005 the applicant complained of
the unreasonable length of the criminal proceedings against him to the Minister
of Justice and to the President of the Gdańsk Regional Court.
By letters of 18 January and 14 February 2006
the respective authorities rejected the applicant’s complaint as ill-founded.
The authorities considered that in the light of the complexity of the case the
impugned proceedings had not been lengthy.
The applicant did not lodge a complaint under
the Law of 17 June 2004 on complaints about a
breach of the right to a trial within a reasonable time.
C. Conditions of the applicant’s detention
1. Uncontested facts
The applicant was detained in Gdańsk Remand
Centre from 4 December 2004 until 26 October 2006. During this time
he was held in six different cells. The size of those cells varied between 6.74 m²
and 17 m². The space per person ranged between 2.1 m² and 3.6 m².
Between 29 August and 1 September 2005 the
applicant was detained in cell number 10, which measured 17 m² and was shared
by eight detainees, including the applicant (2.1 m² per person).
Between 12 and 15 September 2005, the applicant was
held in cell number 18, which measured 5.52 m² and was shared by two detainees,
including the applicant (2.6 m² per person).
The cells were equipped with separate toilets.
2. Facts in dispute
(a) The applicant
The applicant stressed that the conditions of
detention in the two- person cell were inhuman. He submitted that in
each cell there had been a bunk bed (200 cm x 100 cm). However the surface of
the toilet had been included in the total surface and constituted part of the 3
m² per person. The design of the cells made it impossible for two prisoners to
move around freely.
The applicant also claimed that the food served
to all detainees was of poor quality and insufficient quantity. He had to buy
additional food and despite that he had lost 20 kg during his detention.
(b) The Government
The Government argued that the applicant had had
access to clean sanitary facilities, running water and bathing facilities. The
food served to him complied with the relevant standards of the Ministry of
Justice. The applicant was afforded a one-hour walk per day. He could have his
own television set or he could watch television in the prison’s social room.
D. Restrictions on the applicant’s right to visits
during his detention and monitoring of his correspondence
1. Uncontested facts
The list of visits supplied by the Government
shows that between 29 December 2004 and 6 July 2006 the applicant
received 86 visits, of which 53 were meetings with his defence counsel and 1
meeting with a notary. The remaining 32 visits involved the applicant’s family
(wife, daughter and mother). They lasted from 40 (on one occasion) to 120 minutes
but on most occasions were 90 minutes long.
On 13 March 2006, the authorities rejected the
applicant’s request to have an additional visit from his relatives. That
decision did not contain any reasoning.
On three occasions (27 September 2005, 2
November 2005 and 11 January 2006) the applicant’s contacts with his
family were restricted and he was separated from the
visitors by a Perspex partition.
2. Facts in dispute
(a) The applicant
The applicant, without specifying any details,
submitted that, during his pre-trial detention, his correspondence with his
family had been monitored and withheld by the authorities.
He also submitted that his wife and children had
been allowed to visit him in the remand centre only once a month. Most of the
applicant’s requests to meet more often with his family had been rejected by
the authorities. The applicant’s family members’ visits were short and without the possibility of direct contact. On several occasions he had had no direct contact with his
family because he had been separated from them by a Perspex partition and they
could communicate with him only by internal phone.
Lastly, he denied receiving a visit from a
certain E.P. on 6 July 2006.
(b) The Government
The Government submitted that between 29
December 2004 and 5 October 2006 most of the family visits took place at a
table (przy stoliku) in the presence of a guard. Out of the thirty-two
visits of the applicant’s wife, mother and youngest child, direct contact was
granted on twenty-nine occasions.
The Government submitted that in addition to the
visits listed above, the applicant received a visit from E.P. on 6 July 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
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 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 May 2006).
B. Conditions of detention
A detailed description of the relevant domestic
law and practice concerning general rules governing the conditions of detention
in Poland and domestic remedies available to detainees alleging that the
conditions of their detention were 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
Court’s decision in the case of Łatak v. Poland (no. 52070/08 (dec), §§ 25-54,
12 October 2010).
C. Right to visits in detention
1. Situation until 8 June 2010
. Pursuant
to Article 217 § 1 of the Code of Execution of Criminal Sentences, as
applicable until 8 June 2010, 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 1 one-hour
long visit per month.
. According
to paragraphs 2 and 3, 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 3 types of visits: an “open visit”, a
“supervised visit” (widzenie w obecności funkcjonariusza
Służby Więziennej) 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.
2. Situation as from 8 June 2010
(a) Constitutional Court’s
judgment of 2 July 2009 (no. K. 1/07)
. The
judgment was given following an application, lodged by the Ombudsman on 2
January 2007, alleging that Article 217 § 1 of the Code of Execution of
Criminal Sentences was incompatible with a number of constitutional provisions,
including the principle of protection of private and family life (Article 47 of
the Constitution), the principle of proportionality (Article 31 § 3 of the
Constitution), Article 8 of the Convention and Article 37 of the United Nations
Convention on the Rights of the Child. The Constitutional Court’s judgment became effective on 8 July 2009, the date of
its publication in the Journal of Laws (Dziennik
Ustaw).
. The
Constitutional Court ruled that Article 217
§ 1, 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 Article 217 § 1 was incompatible
with the Constitution 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.
(b) Amendments to the Code of
Execution of Criminal Sentences
. On
5 November 2009 Parliament adopted amendments to Article 217 of the Code
of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were
added. These provisions stipulate that a detainee is entitled to at least one
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 8 June 2010.
D. Remedies against unreasonable
length of proceedings
. The
relevant domestic law and practice concerning remedies for excessive length of
judicial and enforcement proceedings, in particular the applicable provisions
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”) are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§
12-23, ECHR 2005-V; and Ratajczyk v. Poland, no. 11215/02 (dec.),
ECHR 2005-VIII; and in its judgment in the case of Krasuski v. Poland,
no. 61444/00, §§ 34-46, ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that the conditions of
his detention in the Gdansk Detention Centre (overcrowding and lack of adequate
food) amounted to inhuman and degrading treatment contrary to Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government contested that argument.
A. Admissibility
1. The Government’s preliminary objection
. The
Government submitted that the applicant could have had recourse to
administrative authorities i.e. a complaint to the penitentiary authorities.
They further stressed that on 26 October 2006 the applicant had been released
from the Gdansk Remand Centre. In these circumstances, the situation giving
rise to the alleged breach of Article 3 of the Convention no longer existed and
that the applicant should have brought a civil action under Article 24 taken in
conjunction with Article 448 of the Civil Code in order to seek compensation
for the past 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.
. The
applicant in general disagreed with the above arguments and maintained that the
remedies suggested by the Government could not be considered “effective” for
the purposes of Article 35 § 1 of the Convention.
. The
Court has already examined a similar objection based on exhaustion of domestic
remedies 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
complaints (see Łatak v. Poland, cited
above §§ 71-85).
. 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 26 October 2006 when the applicant was released from
the Gdansk Remand Centre. The Court considers, therefore, that since the
relevant civil action under Articles 24 and 448 of the Civil Code is barred by
a three-year statute of limitation, the applicant cannot presently be required
to avail himself of the civil remedy in question.
. Moreover,
the Court reiterates that in its pilot judgments in the cases of Orchowski and Norbert Sikorski (see Orchowski, cited above, §
96 and Norbert Sikorski, cited above, §§ 100-101) it has already held that the
findings made by the Constitutional Court and by this Court that overcrowding
in Polish detention facilities was of a structural nature, “undermined the
effectiveness of any domestic remedy available, making them theoretical and
illusory and incapable of providing redress in respect of the applicant’s
complaint” at the time when those applicants lodged their applications with the
Court (ibid. § 111 and § 121 respectively). This conclusion equally
applies to the present case which was lodged on 28 August 2006.
. Accordingly,
the Court dismisses the Government’s preliminary objection as to the non-exhaustion of domestic remedies.
2. Overcrowding
The Court concludes that the complaint about detention
in an overcrowded cell is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. No other ground for declaring it
inadmissible has been established.
3. Lack of adequate food
(a) The parties’ submissions
The applicant submitted that the quality of food
served in the Gdansk Detention Centre was very bad. Despite buying extra food,
during the two years he had spent in detention he had lost 20 kg.
The Government argued that the food served to
the applicant complied with the relevant standards of the Ministry of Justice.
(b) The Court’s assessment
. The
Court notes the applicant’s allegation about the poor quality of food, which is
disputed by the Government. The Court further considers that while failure to provide food in accordance with the general nutritional
tables and menus in prison may put at risk the health of detainees (compare Rotaru v. Moldova, no.
51216/06, § 37, 15 February 2011), it has not been established that such was
the situation in the present case. In addition, the applicant has failed to
provide any evidence that he had raised the substance of this complaint with
the prison administration. Consequently, it follows that this complaint
is manifestly ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
B. Merits
1. The parties’ submissions
(a) The applicant
The applicant submitted that the conditions of
his detention in the Gdansk Detention Centre had fallen short of standards
compatible with Article 3 of the Convention. In particular, he complained that
he had been detained in overcrowded cells. In addition, the conditions of
detention had been inhuman. The design of cells made it impossible for two
detainees sharing the same cell to move around freely. Cells were equipped with
separate toilets but the surface of the toilet was included in the calculation
of the surface of the cell.
(b) The Government
The Government listed the cells in which the
applicant was kept in the Gdansk Detention Centre. They acknowledged that between
29 August and 1 September 2005 and between 12 and 15 September 2005 the space
per person in the applicant’s cells had been inferior to 3m². They argued,
however, that the applicant had not suffered inhuman or degrading treatment
which attained the minimum level of severity within the meaning of Article 3 of
the Convention.
2. The Court’s assessment
A restatement of the general principles
concerning the examination of conditions of detention under Article 3 may be
found in the Court’s judgment in Orchowski
v.
Poland (cited above, §§ 119-229).
The Court has already found in its two pilot
judgments in the cases of Orchowski v. Poland
and Norbert Sikorski v. Poland that, for many years, namely from
2000 until at least mid-2008, overcrowding in Polish prisons and remand centres
had revealed a structural problem consisting of “a practice that [was]
incompatible with the Convention” (see Orchowski,
cited above, § 151, and Norbert
Sikorski, cited above, §§ 155-156).
. The
Court notes that in the instant case the Government acknowledged that
during two periods (eight days in total) of the applicant’s detention in the
Gdansk Remand Centre the personal space afforded to him
was below 3 square metres (see paragraph 53 above).
Contrary to the case of Dmitriy Rozhin (see Dmitriy
Rozhin v. Russia, no. 4265/06, § 52, 23 October 2012),
where the applicant spent 11 days in a disciplinary cell and was afforded
less than 2 m² per person, the Court notes that in the present case, the
applicant spent 4 days in a cell in which he was afforded approximately 2.1 m² of floor space per person. Subsequently, he spent a period of 4
days, in a cell where he was afforded approximately 2.6 m² of floor space per person (see paragraphs 22 and 23 above).
. The
Court considers having regard to the brevity of the applicant’s stay in
these cells (two periods of four days), that the conditions of the applicant’s
detention did not reach the threshold of severity required to characterise the
treatment as inhuman or degrading within the meaning of Article 3 of the
Convention (see Dmitriy Rozhin cited above § 53, Fetisov and Others v. Russia, nos. 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, § 138, 17 January 2012).
It follows that there has
been no violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant complained that the length of his
pre-trial detention had been excessive. He relied on Article 5 § 3 of
the Convention, which, in its relevant part, 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.”
A. Admissibility
The Government did not contest the admissibility
of this complaint.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Period to be taken into consideration
The period to be taken into consideration began
on 4 December 2004 and ended on 26 October 2006; it accordingly lasted one year,
ten months and twenty-two days.
2. The parties’ submissions
(a) The applicant
. The applicant submitted that his
detention on remand had been exceedingly long.
(b) The Government
The Government maintained that in the present
case all the criteria for the application and extension of pre-trial detention
had been met. The applicant’s detention was justified by the reasonable
suspicion that the applicant had committed the offences with which he had been
charged, the serious nature of the offences and the severity of the anticipated
penalty. In addition, the risk of obstructing the proceedings or tampering with
evidence had been increased as a result of the significant financial damage
which he allegedly caused to the company. In their opinion the case had been
very complex due to its commercial nature and the contradictory testimonies of
the applicant and the co-accused. At the moment of lodging the bill of
indictment against the applicant the case file had already consisted of
107 volumes and related to 61 crimes allegedly committed by 12 accused.
Lastly, in the Government’s opinion, the domestic authorities showed special
diligence in the case.
3. The Court’s assessment
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-X, with further references).
In their detention decisions, the authorities,
in addition to the reasonable suspicion against the applicant, relied
principally on three grounds, namely: the serious nature of the offences with
which he had been charged, the severity of the penalty to which he was liable
and the risk that the applicant might tamper with evidence.
. The
Court notes that the applicant was charged with a series of offences related to
the running of a company. It is true that the applicant was not charged with
being a member of an organised criminal group (a contrario Bąk v. Poland, no.
7870/04, § 57, 16 January 2007). However, the proceedings in the present case involved
11 other co-accused, several hundred witnesses and the need to obtain evidence
from abroad (see paragraphs 8 and 9 above).
The Court accepts that the reasonable suspicion
against the applicant of having committed serious offences and the severity of
the penalty constituted relevant grounds for the applicant’s initial detention.
The need to secure the proper conduct of the proceedings,
in particular the process of obtaining evidence from a large number of witnesses
also constituted a valid ground for maintaining the applicant’s detention.
. The
Court takes note of the fact that when the authorities could no longer justify
the applicant’s protracted detention, they released the applicant (see
paragraph 16 above).
. The
foregoing considerations are sufficient for the Court to conclude that the
grounds given for the applicant’s pre-trial detention were “relevant” and
“sufficient” to justify holding him in custody for the entire relevant period,
namely nearly one year and eleven months.
. It
therefore remains to be ascertained whether the national authorities displayed
“special diligence” in the conduct of the proceedings.
. In
this regard, the Court observes that the investigation was of significant complexity,
regard being had to the number of co-accused and the fact that it concerned
complicated financial and commercial issues. The Court further does not discern
any significant periods of inactivity in the investigation or the initial phase
of the trial. For these reasons, the Court considers that during the relevant
period the domestic authorities handled the applicant’s case with necessary
diligence.
. Having
regard to the foregoing, the Court finds that there has been no
violation of Article 5 § 3 of the Convention
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant further complained under Article
8, submitting that the restrictions on visits from his family throughout his
detention, in particular with his youngest child and mother, put
an exceptionally severe strain on him.
Article 8, in so far as-relevant, reads as follows:
““1. Everyone has the right to respect for his ...
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
The Government did not contest the admissibility
of this complaint.
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Principles deriving from the Court’s case-law
. The
relevant general principles are set out in the Piechowicz and Horych judgments
(see, Piechowicz cited above § 212; Horych cited above, §§ 122-124). The Court would nevertheless reiterate that any interference by
a public authority with a detainee’s right to
respect for family life should be lawful, must pursue one or more legitimate
aims listed in paragraph 2 of Article 8 and, in addition, must be justified as
being “necessary in a democratic society” (see Horych, cited above, §
123).
2. Refusal of family visits
(a) The parties’ arguments
(i) The applicant
The applicant submitted that during the period
of his pre-trial detention his right to receive visits was restricted. In
particular, he referred to the fact that he was only allowed to receive visits
from his family once a month. In addition, during certain months his family was
not allowed to visit him at all.
. He
stressed that the restrictions on his contacts with his two-year old child and
his eighty-two year old mother (restricting the number of visits and preventing
direct contact) proved that he had been treated in an inhuman manner.
. The
applicant concluded that these restrictions had caused him serious emotional
distress and suffering. The authorities had interfered with his rights under
Article 8 in an arbitrary and disproportionate manner. He asked the Court to
find a violation of this provision.
(ii) The Government
The Government argued that the applicant’s
contacts with his family had not been restricted. He had been visited by his
wife, child and mother on thirty-two occasions. In March 2005 and July 2006 the
applicant was visited by his family on three occasions. In addition, in eight
other months the applicant was visited by his family two times per month. Admittedly,
the applicant was refused a visit in March 2006. However, in April 2006 the applicant saw his family twice.
The Government concluded that the restrictions
imposed had not amounted to an interference with his rights under Article 8 of
the Convention. In view of the foregoing, the Government considered that there
had been no violation of Article 8 of the Convention.
(b) The Court’s assessment
The Court observes that it
has not been contested that at least on one occasion, namely on 13 March 2006,
the applicant was refused a visit from his family and that this decision did
not include any reasoning (see paragraph 29 above). Accordingly, the Court
considers that the restriction on the applicant’s personal contact with his
family constituted an “interference” with his right to respect for his family
life.
. 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 on visiting rights was merited in a particular case,
and what factors might be relevant to that decision. It further did not provide
for a possibility to appeal against the refusal of visits. The decision was
left to the authorities’ absolute discretion (see Dochnal v. Poland, no. 31622/07, § 95, 18 September
2012).
. The
Court further observes that it had already held in similar Polish cases 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. In
consequence, the Court has held that an unreasoned refusal to grant permission
for visits was not in “accordance with the law” and found a breach of Article 8
on account of the arbitrariness of the interference (see Wegera v. Poland, no. 141/07, § 74-75, 19 January 2010; Popenda v. Poland, no. 39502/08, § 72, 9 October 2012).
. For
these reasons the Court concludes that the refusal of the family visit in the
present case was not in accordance with the law. On that account it is not
necessary to ascertain whether the other conditions imposed by Article 8 § 2
have been complied with.
. There
has accordingly been a violation of Article 8 of the Convention.
3. Limitations on direct contact
(a) The parties’ arguments
. The
applicant also complained that he was unable to take full advantage of visits
already granted or available to him each month because of the specific
arrangements governing visits, which on several occasions excluded direct
physical contact with the visitors. The applicant complained, without giving
any details, that on some occasions he was only allowed to have the so-called
“closed visits”, without the possibility of direct contact as he was physically
separated from his visitors by a Perspex partition and they could communicate only by internal phone.
. The
Government argued that during the vast majority of visits the applicant was
afforded direct contact with his relatives. Of the thirty-two visits of the
applicant’s wife with the youngest child and the applicant’s mother, direct
contact was restricted only on three occasions, namely: on 27 September
2005, 2 November 2005 and 11 January 2006.
(b) The Court’s assessment
. The
Court observes that on three occasions (27 September 2005, 2 November
2005 and 11 January 2006) he was separated from his
family by a Perspex partition (see paragraph 31 above). The Court considers
that this amounted to “interference” with the applicant’s rights guaranteed by
Article 8 of the Convention.
. The
Court further observes that the contested measure was applied under Article 217
§ 2 of the Code of Execution of Criminal Sentences. This provision, as
applicable at the material time, gave the relevant authority (prosecutor or
court) the power to determine the manner in which they were to be conducted.
The Court also notes that, pursuant to the rule contained
in that provision, visitors are not allowed to have direct physical contact
with the person detained on remand. The Court is consequently satisfied that
the interference was “in accordance with the law”.
. The
Court further considers that the impugned measures can be considered as having
been taken in pursuance of “the prevention of disorder and crime”, which is a
legitimate aim under Article 8.
. It
remains for the Court to ascertain whether a fair balance was struck between
the competing public and private interests involved (see Horych,
cited above, § 126), having regard to the legitimate aim relied on.
The Court accepts that in certain situations restrictions on a detainee’s contact with members of his family
may be compatible with Article 8 (see Horych cited above § 129).
However, in the present case the Government offered no explanation as to why it
was necessary on these three occasions to require the applicant and his close
family members to be separated by a physical barrier. In particular, no arguments
have been adduced regarding the legitimacy of the aim pursued, nor as regards
the necessity of imposing the measure on these specific occasions. The Court
can but note that such measure had never been imposed during any of the other twenty-nine
visits. The Court
finds it difficult to discern any coherent pattern of application of the
above-mentioned restrictions and considers that they have
been applied by the domestic authorities in an arbitrary and random manner. For these reasons alone, the Court finds that the
applicant’s right to respect for his family life has been breached.
. Accordingly,
there has been a violation of Article 8 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also
complained under Article 6 § 1 of the Convention that the length of the
criminal proceedings against him had been unreasonably lengthy.
. The
Court notes that the applicant failed to lodge a complaint with the domestic
courts under the 2004 Act (see paragraph 20 above). It follows that this
complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
Lastly, the applicant alleged that his private correspondence
had been censored.
However, in the light of all the material in
its possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. 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 30,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested this claim.
The Court awards the applicant EUR 1,500 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant made no claim for the reimbursement of costs and expenses incurred before the
domestic courts or in the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaints under Articles 3
(overcrowding), 5 § 3 and 8 (refusal of family visits and limitations on
direct contact with family members) admissible and the remainder of the application
inadmissible;
2. Holds that there has been no violation of
Article 3 of the Convention;
3. Holds that there has been no violation of
Article 5 § 3 of the Convention;
4. Holds that there has been a violation of
Article 8 of the Convention as regards the refusal of family visits on certain
occasions and limitations on direct contact with family visitors during certain
visits;
5. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one thousand five
hundred euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be chargeable;
(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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Ineta
Ziemele
Deputy Registrar President
