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NURZYNSKI v. POLAND - 46859/06 [2010] ECHR 2086 (21 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/2086.html
Cite as:
[2010] ECHR 2086
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FOURTH
SECTION
CASE OF NURZYŃSKI v. POLAND
(Application
no. 46859/06)
JUDGMENT
STRASBOURG
21
December 2010
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 Nurzyński v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 46859/06) 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 Krzysztof Nurzyński
(“the applicant”), on 8 November 2006.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
The
applicant alleged that his right to respect for his family life had
been infringed.
On
11 December 2008 the President of the Fourth Section 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 (former Article 29 § 3 of the Convention, now
Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1973 and lives in Łódź.
On
11 October 2005 the applicant was arrested on charges of aggravated
assault and theft.
On
13 October 2005 the Łódz District Court ordered his
pre-trial detention, which was subsequently extended on several
occasions.
The
applicant's mother and wife were witnesses during the investigation
stage of the proceedings.
On
30 March 2006 a bill of indictment was lodged with the Łódź
District Court. The applicant was charged with aggravated assault and
theft.
On
an unknown date the applicant's wife and mother applied to be allowed
to visit the applicant in prison. Their applications bear handwritten
notes “refusal, the person is a witness”, illegible
signatures and the date of 3 April 2006.
On
17 July and 2 August 2006 the applicant requested to be allowed to
maintain personal contact with his family. His applications were
rejected. The authorities noted that the family members themselves
should apply for permission to visit the applicant in prison.
On
14 November 2006 the applicant's mother applied for permission to
visit the applicant in prison. Her application bears a note “refusal,
witness in the case”, an illegible signature and the date of
14 November 2006.
During
a hearing held on 3 April 2007 the applicant's mother and wife stated
that they refused to testify at the trial. On the same day, the
applicant's mother was granted permission to visit the applicant in
prison.
On
27 June 2007 the applicant and his wife were granted a divorce.
On
29 July 2008 the Łódź District Court convicted the
applicant as charged and sentenced him to two years' imprisonment.
The
applicant's pre-trial detention was lifted on 8 October 2008. After
that date he was visited by his mother on 11 occasions.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Execution of Criminal Sentences
Article
217 § 1 of the Code of Execution of Criminal Sentences of 1997,
as applicable at the material time, provided as follows:
“A detainee is allowed to receive visitors,
provided that he obtains permission from the authority at whose
disposal he remains [investigating prosecutor at the investigative
stage or from the trial court once the trial has begun]. If the
detainee remains at the disposal of several authorities, it is
necessary to obtain permission from all of them unless they decide
otherwise.”
B. 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.
C. Amendments to the Code of Execution of Criminal
Sentences
On
5 November 2009 the parliament adopted amendments to Article 217 of
the Code of Execution of Criminal Sentences. In particular,
subparagraphs 1a-1f were added. These provisions provide in
particular that a detainee is entitled to at least one family visit
per month. In addition, they indicate clearly the 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. Recommendation Rec(2006)2 of the Committee of
Ministers to Member States on the European Prison Rules, adopted
on 11 January 2006
The
relevant extracts from the Recommendation 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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that during his detention he had been deprived
of personal contact with his wife and mother for a significant period
of time, in breach of Article 8 of the Convention which provides as
relevant:
“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.”
The
Government contested that argument.
A. Admissibility
The
Government firstly claimed that the applicant could have lodged a
constitutional complaint under Article 79 § 1 of the
Constitution, challenging the provisions of the Code of Execution of
Criminal Sentences. Subsequently, he could have sought compensation
under Article 417 § 2 of the Civil Code for damage resulting
from decisions based on unconstitutional provisions.
The
applicant contested the Government's submissions.
Turning
to the circumstances of the present case, the Court reiterates that
the rule of exhaustion of domestic remedies contained in Article 35 §
1 of the Convention requires that normal recourse should be had
by an applicant to remedies which are available and sufficient
to afford redress in respect of the breaches alleged. The
existence of the remedies in question must be sufficiently certain
not only in theory but in practice, failing which they will lack
the requisite accessibility and effectiveness (see, among other
authorities, Akdivar and Others v. Turkey 16 September 1996,
§ 65, Reports of Judgments and Decisions 1996-IV).
In so far as the Government alleged that the applicant
should have lodged a constitutional complaint, the Court observes
that on 2 January 2007 the Ombudsman had lodged an
application for review of constitutionality with the Constitutional
Court. The judgment in that case was delivered on 2 July 2009
(see paragraphs 17 and 18 above).
The Court further notes that the applicant did not
object to the relevant provisions of the Code of Execution of
Criminal Sentences, he merely stressed that the authorities had
deprived him of personal contact with his wife and mother. Against
that background, the Court concludes that the applicant did
everything that could reasonably be expected of him to exhaust the
national channels of redress. The Court accordingly dismisses the
Government's objection.
The Government further argued that the applicant had
failed to exhaust the available domestic remedies envisaged by the
Code of Criminal Procedure and the Code of Execution of Criminal
Sentences.
The Court observes that the Government have failed to
indicate any specific remedy that the applicant could have resorted
to. Accordingly, the Court dismisses this objection.
The
Court notes that the application 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. The parties' arguments
The
Government submitted that the interference with the applicant's right
to private and family life was justified by the requirements laid
down in § 2 of Article 8. They noted that most of the
applications for visits had been lodged by the applicant himself.
They claimed that the applicant's wife and his mother had asked, only
on one occasion and three occasions respectively, to be allowed to
visit him in prison. In addition, they had both been granted witness
status in the proceedings. The Government further mentioned that the
applicant was a recidivist offender and the conduct of the domestic
authorities was reasonably justified by the already committed and
potential crimes of the applicant. They finally referred to the fact
that in 1999, at the time of his marriage, the applicant had decided
to change his name and take his wife's name. In their opinion, this
could have explained the conduct of the domestic authorities in
restricting the applicant's contact with his family in the course of
the criminal proceedings. They concluded that the restrictions
imposed were justified by the need to secure the proper conduct of
the proceedings.
The
applicant objected to the Government's submissions.
2. The Court's assessment
(a) 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 his family life that the authorities enable him 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,
unreported).
Restrictions
such 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, by themselves, in breach of that
provision (ibid. §§ 62-63; see also Kucera v.
Slovakia, no. 48666/99, §§ 127-128, 17 July 2007).
Nevertheless, any restriction of that kind must be “in
accordance with the law”, must pursue one or more legitimate
aim listed in paragraph 2 and, in addition, must be
justified as being “necessary in a democratic
society”. The expression “in accordance with the law”
not only necessitates compliance with domestic law, but also relates
to the quality of that law (see, Niedbała v. Poland, no.
27915/95, § 79, 4 July 2000). The Court notes that
domestic law must indicate with reasonable clarity the scope and
manner of exercise of the relevant discretion conferred on the public
authorities so as to ensure to individuals the minimum degree of
protection to which citizens are entitled under the rule of law in a
democratic society (Domenichini v. Italy, 15 November 1996,
§ 33, Reports 1996-V).
(b) Application of the above principles to
the present case
(i) Existence of interference
The
Court notes at the outset that the applicant had not been visited by
his wife and mother for several months.
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.
(ii) 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. Further, it did not provide for a possibility to
appeal against the refusal of visits. The decision was 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 paragraphs 17 and 18 above).
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 v. Poland, no.
141/07, § 74-75, 19 January 2010, and Gradek v. Poland
no 39631/06, § 47, 8 June 2010). In the present case, contrary
to the case of Grabowski (see Grabowski v. Poland
(dec.), no. 30447/07, 14 September 2010), where the District Court
informed the applicant in detail about the reasons for refusal of
visits from his common law wife, the motions of the applicant's wife
and mother for permission to visit him in prison were refused with
scant, blunt, handwritten notes on their motions (see paragraphs
10 and 12 above).
The
Court concludes that, in the present case, the refusal to allow the
applicant to receive family visits during his detention was not in
accordance with the law. For that reason, it is not necessary to
decide whether the other conditions laid down in the second paragraph
of Article 8 have been complied with. There has accordingly been a
violation of Article 8 of the Convention
II. 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
44. The applicant claimed 20,000 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 did not make any claims 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
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 8 of the Convention;
3. 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), plus any tax that may be chargeable,
in respect of non pecuniary damage, to be converted into Polish
zlotys at the rate applicable at 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;
4. Dismisses the remainder of the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
