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BOGUSLAW KRAWCZAK v. POLAND - 24205/06 [2011] ECHR 843 (31 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/843.html
Cite as:
[2011] ECHR 843
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FOURTH
SECTION
CASE OF BOGUSŁAW KRAWCZAK v. POLAND
(Application
no. 24205/06)
JUDGMENT
STRASBOURG
31 May 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 Bogusław Krawczak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 10 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 24205/06) 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 Bogusław Antoni
Krawczak (“the applicant”), on 15 May 2006.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
The
applicant in essence alleged a breach of Article 3 of the Convention
in that the State had failed to secure to him adequate living
conditions throughout his entire detention. He moreover alleged that
his detention on remand had exceeded a “reasonable time”
within the meaning of Article 5 § 3 of the Convention.
He further complained under Article 6 § 1 of the
Convention that the criminal proceedings conducted against him had
been unfair and that he had been unfairly denied release probation.
Lastly, invoking Article 8 of the Convention, he complained that
there had been disproportionate restrictions on his family visits
while in detention.
The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952. He is currently detained in Czerwony Bór
Prison.
A. The applicant's pre-trial detention and criminal
proceedings
On
12 January 2005 the applicant was arrested in Poland and
charged with trafficking large amounts of drugs from Venezuela.
On
14 January 2005 the Gdańsk District Court (Sąd
Rejonowy) remanded him in custody. The decision was upheld on
18 April 2005 by the Gdańsk Regional Court (Sąd
Okręgowy).
In
its decision to detain the applicant, the District Court relied on a
reasonable suspicion that the applicant had committed the
aforementioned offence. It attached particular importance to the
likelihood that a severe sentence of imprisonment would be
imposed on the applicant and to the risk that he would attempt to
obstruct the proceedings.
The
applicant's pre-trial detention was subsequently extended by
decisions of the Gdańsk Regional Court given on 22 March 2005
(upheld by the Gdańsk Court of Appeal (Sąd Apelacyjny)
on 27 April 2005), on 23 June 2005, on 15 September 2005
(upheld by the Gdańsk Court of Appeal on 11 October 2005),
on 13 January 2006 and on 18 April 2006 (upheld by the
Gdańsk Court of Appeal on 26 April 2006).
In
its decisions extending the applicant's detention, the Regional Court
observed that it had been necessary to extend the pre-trial
proceedings in order to obtain translations of certain relevant case
documents from Spanish into Polish, to hear new witnesses and to
supplement the original charges. It took into account the fact that
the applicant had a handicapped mother, but concluded that she had
been receiving adequate care and, therefore, that there were no
special reasons, family-related or other, militating against the
applicant's detention.
On
17 June 2005 the bill of indictment was lodged with the Gdańsk
Regional Court.
On
6 October 2005 the Gdańsk Regional Court dismissed the
applicant's request for release, finding that the initial grounds for
his detention continued to apply.
On
28 December 2006 the Gdańsk Court of Appeal extended
the applicant's detention, restating the
grounds initially invoked for the detention order. It
emphasised that the offence with which the applicant had been charged
had been committed in an organised criminal group. Consequently, the
court took the view that detention on remand constituted
the only measure capable of securing the proper conduct of the
proceedings.
The
applicant's appeal against the decision of the Gdańsk Court of
Appeal was dismissed by the same court on 16 January 2007.
On
25 April 2007, 11 December 2007 and on further
unspecified dates the Gdańsk Court of Appeal again extended the
applicant's detention. In its decision of 11 December 2007
the court held that another extension of the applicant's detention
was necessary in order to allow the trial court to examine additional
evidence and hear more witnesses. The court moreover observed that
one of the co-accused had also been charged in another set of
proceedings and remained at the disposal of the Kraków
Regional Court, which made it necessary to have him escorted from
there to each of the hearings before the Gdańsk Regional Court.
The applicant's appeal against this decision was dismissed on
28 December 2007.
On
30 December 2008 the Gdańsk Regional Court convicted
the applicant as charged and sentenced him to 10 years' imprisonment.
On
2 March 2010 the Gdańsk Court of Appeal upheld the
lower court's judgment.
The
applicant lodged a cassation appeal and the proceedings before the
Supreme Court are currently pending.
B. Detention facilities in which the applicant was held
On
14 January 2005 the applicant was committed to Sztum Remand
Centre.
On
30 September 2005 he was transferred to Gdańsk Remand
Centre.
From
12 October 2006 to 15 November 2006 the applicant
was held in Kraków Remand Centre.
On
16 November 2006 he was transferred back to Gdańsk
Remand Centre. He remained there until 6 March 2007.
On
7 March 2007 the applicant was once more transferred to Kraków
Remand Centre and detained there until 21 March 2007.
From
22 March 2007 onwards the applicant was detained in Gdańsk
Remand Centre.
Following
his conviction, on 17 January 2009 he was transferred to
Iława Remand Centre to serve his term of imprisonment. He
remained there until 17 October 2009, with the exception of
the period from 30 June 2009 to 3 September 2009
when he was detained in Racibórz Remand Centre.
On
18 October 2010 the applicant was transferred to Czerwony
Bór Prison where he is currently detained.
C. Conditions of the applicant's detention
The
parties gave partly differing accounts of the conditions of the
applicant's detention in the above-mentioned establishments.
1. The applicant's account
Upon
his arrest on 12 January 2005 the applicant was committed to Sztum
Remand Centre where he was initially held in a cell of an unspecified
size.
On
20 June 2006, in Gdańsk Remand Centre, he was placed with five
other detainees in a cell of 16 m².
The free area in the cell, furniture and other equipment excluded,
amounted to approximately 1 m² per
person.
Subsequently,
on an unspecified date the applicant was transferred to a cell which
measured 20 m² and was shared by
six detainees. The cell in question was furnished with three bunk
beds, two tables, six stools and a number of cupboards. A toilet
cubicle was also inside the cell. The free area in the cell was
approximately 1.5 m² per detainee.
From
17 October to 15 November 2006 the applicant was held in Kraków
Remand Centre. Despite being a non-smoker, he was detained in a cell
designated for smokers.
In
a letter of 9 November 2009 the applicant informed the
Court that he had been continuously held in a cell where the
statutory requirement of 3 m² of living space per prisoner
had not been respected. The toilet was not properly separated from
the rest of the cell and the conditions were unhygienic.
In
a letter of 15 October 2010 the applicant informed the
Court that from 9 November 2009 to 26 November 2009
the authorities of Iława Prison had placed him together with one
other detainee in a cell where the living space per detainee amounted
to 2.48 m².
In
the same letter he further stated that on 26 November 2009
he was moved to cell no. 18 in ward B where the requirement of 3 m²
of living space per prisoner had been respected and the conditions of
his detention were more or less satisfactory.
2. The Government's account
The
Government supplied the following details concerning the conditions
of the applicant's detention in each establishment.
As
regards Gdańsk Remand Centre, the Government acknowledged that
the applicant had been temporarily placed in cells where the living
space per prisoner had amounted to less than 3 m².
The cell space in different cells occupied by the applicant ranged
from 2.26 m2 to 4.06 m2 per prisoner. The
period during which the applicant had been detained in cells where
the living space was less than 3 m² per
prisoner amounted to a total of 235 days.
The
Government explained that throughout his detention the applicant had
been entitled to a one-hour daily walk in the remand centre's
courtyard and to take part in various sports activities. The sanitary
conditions of Gdańsk Remand Centre were adequate, the cells were
properly lit and equipped with all necessary furniture.
With
regard to Kraków Remand Centre, the Government also conceded
that the applicant had been at times held in cells where the living
space per prisoner amounted to less than 3 m².
He was initially placed in a cell with non-smokers but at his
own request he was later moved to a different cell. In this
remand centre also the applicant was entitled to a one-hour
daily walk in the remand centre's courtyard. The overall sanitary
conditions of the remand centre were satisfactory and the applicant
had been provided with the necessary products for his daily hygiene.
In
a letter of 26 November 2009 the Government submitted that
the applicant was being detained in Iława Remand Centre, in a
cell where the statutory minimum standard of 3 m² per person was
respected.
3. The applicant's actions concerning the conditions of
his detention
The applicant lodged a complaint with the Ombudsman, complaining
about the conditions of his detention in Kraków Remand Centre.
He did not lodge a similar complaint in respect of Gdańsk Remand
Centre because, as he explained, such a complaint would have had no
prospects of success and moreover he had feared persecution by the
prison authorities of Gdańsk Remand Centre.
The
applicant did not bring a civil action in tort to seek
compensation for the infringement of his personal rights on account
of the conditions of his detention.
D. Family visits in detention
1. The applicant's account
The
applicant submitted that during his stay in Sztum Remand Centre he
had been entitled to one family visit per month. During the first
visit he was allowed to see his common-law wife in person and in the
presence of a police officer. During all subsequent visits he
was separated from his visitors by a perspex partition and could only
communicate with them via internal phone. He was only allowed to
receive one visitor at a time.
In
March 2005 the applicant's wife was refused the right to see
him. According to the applicant's submissions, the authorities had
explained their refusal by the fact that a personal search performed
on the applicant's wife at the remand centre's entrance had allegedly
revealed a prohibited “kite” message (gryps) and
some unauthorised medication. The applicant maintained that the
authorities had unfairly mistaken his common-law wife's personal memo
note for a prohibited message. He also explained that the medication
she had been carrying had been her own, ordinary medication for blood
circulation problems. He moreover pointed out that during the visit
scheduled for that particular day he would in any event have been
separated from his wife by a perspex partition, a circumstance of
which both the authorities and his wife had been aware.
In
Gdańsk Remand Centre the applicant was entitled to receive
visitors once a month. He was usually separated from his visitors by
a perspex partition and could communicate with them via internal
phone.
The
applicant submitted that on numerous occasions his common law
wife and other members of his family had filed repeated requests to
be allowed to see him physically in person but that all these
requests had been refused. He maintains that he was allowed to meet
his family in a manner allowing for direct physical contact only on
six occasions.
From
the copies of documents provided by the applicant it can be seen that
the requests filed by various members of his family on 12 July 2005,
5 August 2005, 29 May 2006, 9 July 2006
and on 5 September 2006 were all refused by the Gdańsk
Regional Court, usually by handwritten notes made on their requests –
“permission refused” (“nie wyrażam
zgody”).
As
a result of a request filed on 30 June 2006, on 3 July 2007
the court decided to “only exceptionally” allow the
applicant's common-law wife to see him without their being physically
separated (“sąd wyjątkowo wyraża zgodę
na widzenie umożliwiające kontakt bezpośredni”).
Also,
the applicant's own request to be allowed to have direct physical
contact with his visitors, filed on 10 July 2006, was
refused by the court on 18 July 2006.
According
to a certificate issued on 25 July 2007 by the authorities
of Gdańsk Remand Centre, provided by the applicant, up until
23 July 2007 he had been allowed to see:
- his
common-law wife 16 times: during 9 visits they had been separated by
a perspex partition and on 7 other occasions they had been allowed to
have direct physical contact;
- his
son P. 9 times: on 7 occasions with the perspex partition and
2 occasions with direct physical contact;
- his
daughter E. once, being separated from her by the perspex partition.
2. The Government's account
The
Government pointed out that during his stay in Gdańsk Remand
Centre the applicant had been allowed to see his family 46 times,
on 20 occasions in a manner allowing for direct physical
contact. Nearly all requests filed by the applicant's family members
had been allowed. The visits took place on:
- 11
and 18 October 2005;
- 8,
10, 23, 25 November 2005;
- 1,
8, 13, 20 December 2005;
- 12
and 20 January 2006;
-
7 and 17 February 2006;
- 1,
10, 24 March 2006;
- 10,
12, 14 and 21 April 2006;
- 12
and 17 May 2006;
- 6,
21, 30 June 2006;
- 11
and 21 July 2006;
-
31 August 2006;
- 7
and 21 September 2006;
-
23 November 2006;
-
16 December 2006;
-
22 January 2007;
-
22 February 2007;
-
27 March 2007;
- 8
and 30 May 2007;
-
8 June 2007;
-
24 July 2007;
-
21 August 2007;
-
21 September 2007;
-
12 October 2007;
-
29 November 2007;
- 14
and 22 December 2007.
During
his stay in Kraków Remand Centre from 7 to 21 March 2007,
the applicant was not allowed to make any telephone calls and did not
receive any visits.
E. Request for release on probation
On
19 May 2010 the Elbląg Regional Court refused to grant
the applicant's request for release on probation (warunkowe
przedterminowe zwolnienie). The court held that the applicant
could not be given a positive socio-criminological forecast and that
his resocialisation process had not been completed yet. It noted that
the applicant's behaviour in detention had been proper, but also
observed that he had been a declared member of the prison subculture
in violation of prison regulations, that he had not shown a critical
attitude towards his crime and, lastly, that the end of the
applicant's sentence was still remote. It recalled that, according to
the prevalent jurisprudence, release on probation was a kind of
“reward” for prisoners who, by their behaviour, had
demonstrated that they had made substantial progress in their
resocialisation.
On
22 June 2010 the Gdańsk Court of Appeal dismissed the
applicant's appeal. It restated the reasons invoked for the decision
of the lower court. In addition, it considered that the fact that the
applicant had never throughout his detention been given a
disciplinary penalty and that he had received a dozen or so rewards
for his behaviour (nagroda) could not suffice to conclude that
his socio-criminological forecast should be regarded as positive. The
court further invoked the applicant's membership of the prison
subculture, the serious nature of his criminal conviction and his
lack of remorse in respect of the committed crime.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Conditions of detention
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).
B. Length of pre-trial detention
The
relevant domestic law and practice concerning the imposition
of pre trial detention on
remand (aresztowanie
tymczasowe), the grounds for its
extension, release from detention and rules governing other,
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).
55. The
relevant statistical data, recent amendments to the Code of Criminal
procedure designed to streamline criminal proceedings and references
to the relevant Council of Europe materials can be found in the
Court's judgment in the case of Kauczor (see Kauczor v.
Poland, no. 45219/06, § 27-28 and 30-35, 3 February
2009).
C. Right to visits in detention
Pursuant
to Article 217 § 1 of the Code of Execution of Criminal
Sentences, a detainee is allowed to receive visitors, provided that
he has obtained a visit permission (“zezwolenie na
widzenie”) from the authority at whose disposal he
remains, i.e. an investigating prosecutor (at the investigative
stage) or from the trial court (once the trial has begun) or from the
appellate court (in appeal proceedings). A detainee is entitled to
a single, 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 transfer of any forbidden
objects.
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.
III. 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. ”
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 the State had failed to
secure to him adequate living conditions throughout his detention.
A. The Government's objection on grounds of 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 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 (see Łatak,
cited above, in §§ 63-64). In particular, they stressed
that the applicant had been moved to a cell in which he had been
secured at least the statutory minimum standard space of 3 m2
per person shortly after the delivery of the Orchowski and
Norbert Sikorski pilot judgments. In these circumstances, the
situation giving rise to the alleged breach of Article 3 of the
Convention no longer existed and 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 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.
B. The applicant's position
The
applicant in general disagreed with the above arguments and
maintained that the remedy suggested by the Government could not be
considered “effective” for the purposes of Article 35 §
1 of the Convention.
C. The Court's conclusion
The
Court 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., in § 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 26 November 2009, the date on which,
according to the applicant's own statements corroborated by the
Government's submissions, the applicant was placed in a cell in which
the statutory minimum size requirement of 3 m2 per person
was respected (see above, in §§ 33 and 38). 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.
In
any event, as from 6 December 2009, the date on which
Article 110 § 2 (f) of the Code of Execution of
Criminal Sentences entered into force, a detainee placed in
conditions where the area per person is less than the statutory
minimum may lodge a complaint with a domestic court and contest a
decision of the prison administration to reduce his cell space (see
Łatak cited above, §§ 42-43 and 86-87).
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 pre-trial 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 began on 12 January 2005 when he was
arrested on suspicion of drug trafficking committed in an organised
criminal group.
He
remained in pre-trial detention until his conviction by the court of
first-instance on 30 December 2008. To the Court's
knowledge, the applicant's conviction has not been to-date quashed.
Accordingly, the period to be taken into consideration
amounts to almost 4 years.
2. The parties' submissions
The
applicant submitted that his detention had been exceedingly long. He
further stressed that there was no indication that he had attempted
to obstruct the proper course of the proceedings in any way.
The
Government maintained that in the present case all the criteria for
the application and extension of the applicant's pre-trial detention
had been met and that the authorities had displayed “special
diligence” in conducting the proceedings. They underlined that
the investigation proceedings had been conducted against the
applicant and 6 other accused, all of whom had been charged with a
total of 12 offences, including trafficking in large quantities of
drugs. The Government pointed out that the case file had consisted of
22 volumes of documents. In the Government's view, the national
authorities had conducted the judicial proceedings diligently,
holding on average two hearings each month – thus, a total of
73 hearings from the beginning of the proceedings on
25 March 2005 until 16 April 2008, the date on
which the Government's written observations on the merits were filed.
The Government considered that the grounds invoked by the domestic
courts as reasons for the extension of the applicant's pre trial
detention had been relevant and sufficient to justify its overall
duration.
3. The Court's assessment
(a) General principles
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 v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI; McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-4, ECHR 2006-X, 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
four 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, particularly the risk that he might attempt to tamper
with evidence, and (4) the complexity of the case (see paragraphs 8,
10, 12, 13 and 15 above).
The
applicant was charged with drug trafficking committed in an organised
criminal group (see paragraph 13 above). In the Court's view,
the fact that the case concerned a member of such a criminal group
should be taken into account in assessing compliance with Article
5 § 3 (see Bąk v. Poland,
no. 7870/04, § 57, 16 January 2007).
The Court notes that in the present case none of the decisions which
extended the applicant's detention contained reasoned and convincing
arguments regarding the risk that the applicant would tamper with
evidence, intimidate witnesses or attempt to otherwise disrupt the
proper course of the trial. Therefore, in the absence of a compelling
demonstration of the risk which the applicant's release would have
created for the proper course of the proceedings, this argument
cannot justify the whole period of the applicant's detention.
Furthermore,
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
re-offending, the gravity of the charges cannot by itself justify
long periods of detention on remand (see Michta v. Poland,
no. 13425/02, § 49, 4 May 2006).
As
regards the complexity of the case, the Court's attention has been
drawn to the nature of the charges, the number of accused (7) and the
voluminous documentation. It appears, however, that the authorities
referred to the complexity of the case in a very general manner.
The
Court is of the opinion that while all the above factors could
justify even a relatively long period of detention, they did not give
the domestic courts an unlimited power to prolong this measure.
Moreover, it seems that the authorities failed to envisage the
possibility of imposing other preventive measures on the applicant.
Lastly,
the Court notes that the domestic courts, in particular the Court of
Appeal, often referred to the fact that one of the co-accused had
remained at the disposal of another investigative authority and to
the difficulties resulting from that fact, in particular to the
problems in escorting that person to the hearings conducted in the
applicant's case. In this respect, the Court considers that the
primary responsibility for the proper organisation of criminal
proceedings and for securing the timely and effective participation
of all parties thereto lies ultimately with the State, all the more
so in situations such as the present one, where the person whose
presence at the hearings is required remains at the disposal of
another State authority.
Having
regard to the foregoing, and even taking into account the fact that
the courts were faced with the particularly difficult task of trying
a case involving an organised criminal group with an international
dimension, the Court concludes that the grounds invoked by the
domestic authorities could not justify the overall period of the
applicant's detention. In these circumstances, it considers that 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.
III. ALLEGED VIOLATIONS OF THE RIGHT TO A FAIR TRIAL UNDER
ARTICLE 6 § 1 OF THE CONVENTION
In
a letter received by the Court on 15 January 2009 the
applicant, relying on Article 5 of the Convention, alleged that the
criminal proceedings conducted against him were unfair in that the
court had arbitrarily assessed the evidence.
In
another letter of 7 June 2010 the applicant complained
under Articles 3, 10 and 14 of the Convention, alleging that the
authorities unfairly refused to release him on probation (warunkowe
przedterminowe zwolnienie).
The
Court considers that both new complaints should be examined from the
standpoint of Article 6 § 1 of the Convention which provides, in
so far as relevant:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.”
A. Unfairness of the criminal proceedings
The Court notes that according to the information in
the case file, the criminal proceedings against the applicant are
currently pending before the Supreme Court.
The complaint concerning the alleged unfairness of the
trial is, therefore, premature and must be rejected, pursuant to
Article 35 §§ 1 and 4 of the Convention, for non-exhaustion
of domestic remedies.
B. Refusal to release on probation
The
Court notes that the proceedings for the applicant's release on
probation did not involve the determination of his criminal charge,
it having already been determined by the applicant's final
conviction. Therefore, the Court concludes that the criminal limb of
Article 6 § 1 does not come into play (Enea v. Italy
[GC], no. 74912/01, § 97).
As
regards the civil limb of Article 6, it should be recalled that
although, in the past, the jurisprudence of the Court and of the
Commission customarily held that complaints relating to the
examination of requests for release from prison or to issues
regarding the modalities of execution of penalty of imprisonment fall
outside the scope of Article 6 § 1 (Neumeister v.
Austria, 1936/63,
27 June 1968, § 22-3, Series A no. 8;
A.B. v. Switzerland, no. 20872/92,
Commission decision of 22 February 1995, Decisions and
Reports (D.R.) 80, p. 66 ; Lorsé and Others v.
the Netherlands, no. 52750/99, 4 February 2003;
Montcornet de Caumont v. France (dec.), no. 59290/00,
ECHR 2003 VII), there has recently been a certain change of
its jurisprudence with regard to procedures instituted in the
penitentiary context. For instance, the Court has held Article 6 § 1
to be applicable, under its civil limb, to proceedings concerning
security measures and penitentiary discipline (Enea, cited
above, § 98; Ganci v. Italy,
no. 41576/98, § 20-6, ECHR 2003 XI; Musumeci
v. Italy, no. 33695/96, § 36, 11 January 2005; Gülmez
v. Turkey, no. 16330/02, § 27-31, 20 May 2008; Stegarescu
and Bahrin v. Portugal, no. 46194/06, § 35-9, 6 April 2010)
and, more recently, also in the context of proceedings for temporary
release from prison (see Boulois v. Luxembourg, no. 37575/04,
§ 55-66, 14 December 2010, currently pending
before the Grand Chamber).
The
Court does not, however, deem it necessary to ascertain whether the
proceedings instituted by the applicant with a view to being released
on probation concerned a “dispute” over a “right”,
within the meaning of Article 6 § 1, and whether this putative
right was “civil” in nature, for the following reasons.
Even
assuming the applicability of Article 6 § 1 of the
Convention to the proceedings complained of by the applicant, the
Court notes that, in the present case, the applicant had his request
for release examined by domestic courts at two levels of
jurisdiction. The courts dismissed the applicant's request by
well-reasoned and convincing decisions which do not disclose any
appearance of arbitrariness or any unfairness on their part (see
paragraphs 51 and 52 above). Having regard to the above
circumstances, the Court concludes that the applicant was not
deprived of his “right to a fair (...) hearing”, required
by Article 6 § 1 of the Convention.
It
follows that the complaint about the unfairness of the proceedings
for release on probation is manifestly ill-founded within the meaning
of Article 35 § 3 a) and must be rejected in
accordance with Article 35 § 4.
IV. ALLEGED VIOLATION OF ARTICLE 8 § 1 OF
THE CONVENTION
Invoking Article 8 of the Convention, the
applicant complained that throughout his detention there had been
disproportionate restrictions on his family visits in prison in that
he had been unnecessarily separated from his visitors by a perspex
partition and could only talk to them via internal phone. Article 8
of the Convention provides, in so far as relevant:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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
Court notes that this part of 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 being separated from
visitors by a perspex partition and only being able to talk to
them via internal phone was the general rule for persons
detained on remand and a normal situation, entirely in line with the
relevant provisions of the Code of Enforcement of Criminal Sentences,
concerning visits of persons in pre-trial detention. Exceptions to
this rule could only be decided by the domestic authority, i.e. the
court or the prosecutor, and they were facultative in that the
authority was not bound by the law to decide in this respect. For
this reason, being separated from visitors by a
partition and communicating with them via internal phone had
not constituted an “interference” with the applicant's
right to respect for his family life.
The
Government further maintained that the applicant had been able to
receive visits from his family from the very beginning of his
detention, i.e. from 12 January 2005, and they stressed
that nearly all of the requests filed by the members of the
applicant's family had been allowed. The Government took the view
that no restrictions had been placed on the applicant's contact with
his visitors. They concluded that certain limitations on the
applicant's private and family life had been inherent in the fact of
his being deprived of liberty and that they had been necessary to
secure the proper conduct of the criminal proceedings conducted
against him. In their view, the domestic authorities had maintained a
balance between the need to secure the proper course of the
proceedings and the applicant's rights.
The
applicant argued that the limitations placed on his contact with his
family had been unnecessary and unjustified.
2. The Court's assessment
(a) General principles
The
Court recalls that detention, similar to 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 or, if need be, assist him in maintaining contact with his
close family (see Klamecki v. Poland (no. 2), no.
31583/96, § 144, 3 April 2003; Lesiak v.
Poland, no. 19218/07, § 73, 1 February 2011).
Furthermore, as prescribed by the relevant provision of the European
Prison Rules, the arrangements for family visits in detention shall
be such as to allow detainees to maintain and develop family
relationships in as normal a manner as possible.
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
visiting arrangements constitute an interference with his rights
under Article 8 but are not, of themselves, in breach of that
provision (see e.g. Kučera v. Slovakia,
no. 48666/99, § 127-8, ECHR 2007 IX).
Nevertheless,
any restriction of that kind must be “in accordance with the
law”, must pursue one or more of the legitimate aims listed
in paragraph 2 and, in addition, must be justified as being
“necessary in a democratic society”.
As to the latter criterion, the Court would further
reiterate that the notion of “necessity” for the purposes
of Article 8 means that the interference must be motivated by a
pressing social need, whose existence must be demonstrated by the
respondent State, and in particular, that it must be proportionate to
the legitimate aim pursued. When assessing whether an interference
was “necessary” the Court will take into account the
margin of appreciation left to the State authorities (see, among
other authorities, Płoski v. Poland,
no. 26761/95, § 35, 12 November 2002; and
Bagiński
v. Poland, no. 37444/97, § 89, 11 October
2005).
(b) Application of the above principles to
the present case
(i) Existence of interference
The Court notes that from the beginning of his detention in
January 2005, the applicant had been entitled to at least one
family visit per month and that these visits indeed took place,
except for the incident with the applicant's common-law wife in
March 2005 (see paragraph 42 above). Moreover, in the light
of the observations filed both by the applicant and by the
Government, it can be seen that while a certain number of the
applicant's family visits were conducted in a manner allowing the
visitors to have direct physical contact with the applicant, on a
number of occasions they were separated from him by a perspex
partition and communicated with him via internal phone (see
paragraphs 41-50 above).
The Court considers that the fact of being frequently
separated from his family members by a partition and having to
communicate with them only via internal phone, during short and
relatively infrequent – usually one per month – visits,
amounted to “interference” with the exercise of the
applicant's rights guaranteed by Article 8 of the Convention.
(ii) Whether the interference was “in
accordance with the law”
The Court observes that the contested measures were
applied under Article 217 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
grant permission for family visits in prison and to determine the
manner in which they were to be conducted. The Court also notes that,
pursuant to the rule contained in § 2 of the cited
provision, visitors are not allowed to have direct physical contact
with the person detained on remand and the visits are supervised by a
prison guard, unless the authority which issued the permission
decides otherwise (see paragraph 59 above). The Court is
consequently satisfied that the interference was “in accordance
with the law”.
(iii) Whether the interference pursued a
“legitimate aim”
The
Court recalls that cases concerning organised crime are, by their
very nature, characterised by the existence of a substantial risk
that a detainee might collude with other co-accused or otherwise
obstruct the proceedings with the help of visitors (see Bąk,
cited above, § 57). The impugned measures can accordingly
be considered as having been taken in pursuance of “the
prevention of disorder and crime”, which is a legitimate aim
under Article 8.
(iv) Whether the interference was
“necessary in a democratic society”
It
remains for the Court to ascertain whether the authorities struck
a fair balance between the need to secure the proper conduct of
the proceedings in the applicant's case and his right to respect for
his family life while in detention.
The
Court first of all observes, on the basis of statements made by both
the applicant and the Government, that throughout his detention the
applicant regularly received visits from his common-law wife and
other members of his family. It cannot therefore be held that the
authorities have prevented him from contacting his children and his
family.
The
Court accepts that, initially, due to the nature of the applicant's
charges involving organised crime, recourse to certain restrictions
could have been considered reasonably necessary from the point of
view of the aims pursued by the authorities, even though it
unavoidably resulted in negative consequences for the applicant's
family life. The authorities' interest in limiting visitors' physical
access to the applicant might also be to a certain extent regarded as
justified in the light of the incident with the applicant's
common-law wife in March 2005 (described above at paragraph 41).
However,
it should be noted that the domestic authorities interchangeably
granted the applicant different types of family visits: either in a
manner which allowed him to have direct physical contact with his
visitors, or in a manner preventing him from having such contact. The
information provided by the applicant and by the Government –
although they differ as they cover different periods of the
applicant's detention (see paragraphs 41-50 above) –
unequivocally demonstrate that the applicant was separated from his
visitors by a perspex partition and communicated with them only via
internal phone in about one half of the total number of visits. The
remainder of the family visits in detention, to which the applicant
was entitled, took place in the absence of any such restrictions.
On the basis of the material before it, the Court
finds it difficult to discern any coherent pattern of application of
the above-mentioned restrictions. The Government failed to provide a
plausible explanation as to why during the proceedings the domestic
authorities had on some occasions found it necessary to restrict the
applicant's physical contact with his family while on other occasions
they saw no obstacle to such contact. In the absence of a convincing
explanation on the part of the authorities or of the Government, the
Court concludes that the limitations on the applicant's physical
contact with his family have been applied by the domestic authorities
in an arbitrary and random manner.
It should also be added that the domestic courts did
not consider any alternative means of ensuring that the applicant's
contact with his family would not lead to any collusive action or
otherwise obstruct the process of taking evidence, such as, for
instance, subjecting the visits to supervision by a prison officer –
a possibility explicitly provided for by the relevant provisions of
the domestic law (see paragraph 59 above) – or to other
restrictions on the nature, frequency and duration of contact (see
Eryk Kozłowski v. Poland, no. 12269/02, § 77, 4
November 2008). Nor did they give any reasons for their decisions,
limiting themselves to curt, point-blank refusals, written by hand on
the requests made by the applicant and the members of his family.
In
the circumstances, and having regard to the duration of the
restrictions on the applicant's physical contact with his family and
their random, arbitrary application, the Court concludes that they
went beyond what was necessary in a democratic society “to prevent
disorder and crime”, putting a severe strain on the applicant
and resulting in harsh consequences for his family life. The Court
therefore holds that the authorities failed to maintain a fair
balance between the means employed and the aim they sought to
achieve.
(c) Conclusion
There has, accordingly, been a violation of Article 8
of the Convention in regard to the applicant's right to respect for
his family life.
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
Article
46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties' submissions
1. The applicant
The
applicant did not submit any observations concerning this provision.
2. The Government
The Government referred to the
arguments submitted previously in the case of Figas
v. Poland (no. 7883/07,
§§ 41-44, 23 June 2009).
The
Government concluded that, bearing in mind the efforts of the Polish
authorities and the legislative reforms which were and had been
undertaken by them to solve the problem of the length of detention on
remand, Poland could not be said to have failed to comply with its
obligations under Article 46 of the Convention to obey the Court's
judgments.
B. The Court's assessment
In
the case of Kauczor v. Poland (see Kauczor, cited
above, § 58 et seq. with further references) the Court held that
the 2007 Resolution taken together with the number of judgments
already delivered and of the pending cases raising an issue of
excessive detention incompatible with Article 5 § 3 demonstrated
that the violation of the applicant's right under Article 5 § 3
of the Convention had originated in a widespread problem arising out
of the malfunctioning of the Polish criminal justice system which had
affected, and may still affect in the future, an as yet unidentified,
but potentially considerable number of persons charged in criminal
proceedings.
In
the present case, as in other numerous similar detention cases, the
authorities did not justify the applicant's
continued detention by relevant and sufficient reasons (see
paragraphs 82-89 above). Consequently, the Court sees no reason
to diverge from its findings made in Kauczor
as to the existence of a structural problem and the need for the
Polish State to adopt measures to remedy the situation (see Kauczor,
cited above, paragraphs 60 62 ).
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 EUR 36,250 (PLN 145,000) in respect of
“documented” pecuniary damage and EUR 6,180 in
respect of “non documented” pecuniary damage.
The
Government submitted that the applicant's claims were entirely
groundless.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this part of
the claim.
On
the other hand, it considers that the applicant must have sustained
non-pecuniary damage. Consequently, ruling on an equitable basis, the
Court awards the applicant EUR 2,500 EUR under that head.
B. Costs and expenses
The
applicant also claimed PLN 40,000 for the costs and expenses incurred
in the course of the proceedings in the present case. He also claimed
EUR 3,300 for the costs and expenses incurred by his son in
connection with the case as well as PLN 40,000 for expenses incurred
in caring for his mother. He did not produce, however, any invoice or
other document certifying any costs or expenses incurred in
connection with the case.
The
Government submitted that the costs and expenses claimed by the
applicant were groundless, incurred voluntarily and irrelevant to the
case.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
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 for lack of substantiation.
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 inadmissible the complaints concerning
Articles 3 and 6 of the Convention and the remainder of the
application admissible;
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;
4. 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 2,500 (two
thousand five hundred euros), plus any tax that may be chargeable, 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;
(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 31 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
