FOURTH SECTION

CASE OF MAZGAJ v. POLAND

(Application no. 41656/02)

JUDGMENT

STRASBOURG

21 September 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 ,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Giovanni Bonello,
	Ljiljana Mijović,
	David Thór Björgvinsson,
	Ledi Bianku,
	Mihai Poalelungi, judges,
and LawrenceEarlySection Registrar,
Having deliberated in private on 31 August 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 41656/02) 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 two Polish nationals, Mr Adam Mazgaj and his son, Mr Grzegorz Mazgaj (“the applicants”), on 8 June 2001.
2.  The applicants were represented by Mr S. Kotuła, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On 25 May 2009 the President of the Fourth Section of the Court decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention).
4.  On 24 September 2009 the Government requested the Court to sever the complaints of the applicants.
5.  On 22 October 2009 the Court granted the Government's request and decided to sever the complaints of Adam Mazgaj (“the applicant”) from the rest of the application.
6.  The applicant alleged, in particular, that the restrictions placed on his contacts with his close family members when he was detained amounted to a violation of his right to respect for family life under Article 8 of the Convention.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
7.  The applicant was born in 1928 and lives in Włodawa.
A.  The applicant's arrest and detention
8.  On 28 June 2000 the Rzeszów District Court remanded the applicant in custody for two months. The court relied on a statement given on 27 June 2000 by the applicant's mentally ill son, G.M., who accused the applicant of homicide. The court also referred to the likelihood that a heavy penalty would be imposed on the applicant.
9.  On an unspecified date the applicant appealed and requested that the preventive measure imposed on him be reduced in severity. He relied on his age (he was seventy-two years old at the time) and on the fact that he was undergoing medical treatment.
10.  On 12 July 2000 the Rzeszów Regional Court, relying on the same grounds as the District Court, upheld the challenged decision.
11.  On 23 August 2000 the Rzeszów Regional Prosecutor requested the court to extend the applicant's detention.
12.  On 25 August 2000 the Rzeszów District Court granted the request and extended the applicant's detention for another month, until 28 September 2000.
13.  On an unspecified date the applicant's lawyer appealed against that decision.
14.  On 12 September 2000 the Rzeszów Regional Court upheld the challenged decision. The court recognised that the only evidence against the applicant was the statement by the applicant's son, who had undergone a psychiatric examination. It stressed, however, that according to the results of the psychiatric report, the applicant's son's mental condition had improved. The court also relied on the risk that the applicant could obstruct the proceedings.
15.  The Rzeszów Regional Court, relying on the same grounds as previously, extended the applicant's detention on 22 September 2000 for three months, and then on 22 December 2000 for a further three months.
16.  The applicant and his lawyer appealed against the latter decision.
17.  On 18 January 2001 the Rzeszów Court of Appeal gave a decision and released the applicant. The court referred to a psychiatric opinion of 2 January 2001 concerning the applicant's son and found that his statements could not be considered reliable evidence.
B.  Criminal proceedings against the applicant
18.  On 20 December 2001 the Rzeszów Regional Court gave judgment and acquitted the applicant.
19.  On an unspecified date the Regional Rzeszów Prosecutor appealed against that judgment.
20.  On 9 May 2002 the Rzeszów Court of Appeal upheld the first‑instance judgment.
C.  Proceedings for compensation for manifestly unjustified detention of the applicant
21.  On an unspecified date the applicant lodged a claim for compensation for manifestly unjustified detention with the Rzeszów Regional Court.
22.  On an unspecified date the Rzeszów Regional Court gave judgment, against which the applicant appealed.
23.  On 22 December 2004 the Rzeszów Court of Appeal remitted the case.
24.  On 29 June 2005 the Rzeszów Regional Court granted the applicant compensation in the amount of 10,360 Polish zlotys (PLN).
25.  The applicant appealed against that judgment, arguing that the instructions given by the Court of Appeal, which had remitted the case, had not been followed.
26.  On 22 September 2005 the Rzeszów Court of Appeal granted the appeal in part, amended the first-instance judgment and increased the compensation to PLN 10,809. The court considered that the compensation should also include the travelling costs borne by the applicant's family to visit him in prison.
D.  Restrictions placed on the applicant's contact with his family
27.  On 10 July 2000 J.M., the applicant's wife, and R.M., the applicant's second son, asked the Rzeszów Regional Prosecutor for permission to see the applicant. They also requested information on the applicant's state of health.
28.  According to the applicant's submissions the prosecutor did not reply to their request.
29.  On 3 August 2000 the applicant's lawyer requested the Rzeszów Regional Prosecutor to allow him to see his wife and son. He relied on the applicant's age and state of health.
30.  On 17 August 2000 the Rzeszów Regional Prosecutor refused to allow the applicant personal contact with his family. The refusal was motivated by the need to secure the proper conduct of the investigation (z uwagi na dobro toczącego się śledztwa).
31.  On 21 September 2000 J.M. and R.M. again requested the prosecutor to allow them to visit the applicant. They submitted that for almost three months they had been denied personal contact with the close family members. Apparently this request remained unanswered.
32.  According to the findings of the Court of Appeal which examined the matter of the applicant's family's visits in prison for the purposes of calculating their travelling costs, the applicant's son visited him twice in the hospital wing of the Kraków Remand Centre on 14 October and 18 November 2000, and once, on 7 January 2001, in the Remand Centre itself. The applicant's wife was allowed to see her husband on 14 January 2001.
II.  RELEVANT DOMESTIC LAW
A.  Code of Execution of Criminal Sentences
33.  Article 217 § 1 of the 1997 Code of Execution of Criminal Sentences (Kodeks Karny Wykonawczy) as applicable at the material time, provided as follows:
“A detainee is allowed to receive visitors provided that he obtained permission from the authority at whose disposal he remains; a detainee's correspondence shall be monitored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
B.  Constitutional Court's judgment of 2 July 2009 (no. K. 1/07)
34.  The judgment was given following a constitutional complaint lodged by the Ombudsman, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences had been 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 ECHR and Article 37 of the UN Convention of the Rights of the Child. The Constitutional Court's judgment became effective on 8 July 2009, on the date of its publication in the Journal of Laws (Dziennik Ustaw).
35.  The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusal of family visits 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 the prosecutor's decision to refuse a family visit in pre-trial detention.
C.  Amendments to the Code of Execution of Criminal Sentences
36.  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.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
37.  The applicant complained that the restrictions on his right to see members of his family during his detention were in breach of Article  of the Convention, which provides:
“1.  Everyone has the right to respect for his private and family life, ...
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, for the protection of health ..., or for the protection of the rights and freedoms of others.”
A.  The applicant's victim status
38.  According to the Government, the applicant ceased to be a victim of the alleged breach of the Convention as a result of the payment of the compensation for manifestly unjustified detention granted by the Court of Appeal on 22 September 2005. Government submitted that since the domestic authorities had acknowledged that the applicant's detention had been unjustified and had paid compensation, the entirety of the applicant's claims had been satisfied.
39.  The applicant did not comment.
40.  According to Article 34 of the Convention, “the Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”.
41.  The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether or not the applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see E. v. Austria,no. 10668/83, Commission decision of 13 May 1987, Decisions and Reports 52, p. 177).
42.  The Court further reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions1996-III, p. 846, § 36, and Dalban v. Romania[GC], no. 28114/95, § 44, ECHR 1999-VI).
43.  Turning to the facts of the present case, the Court accepts that the applicant was paid compensation for the manifestly unjustified detention and that this compensation consisted in part of travelling costs connected with the applicant's family's visits to the detention centre (see paragraph 32 above). However, there is nothing in the reasoning of the Court of Appeal's judgment that the compensation amounted to redress for the restriction on the applicant's contact with his family. What is more, the payment of the compensation did not involve any acknowledgment of the violation alleged.
44.  Taking into account the above considerations, the Court considers that the applicant may still claim to be a victim of a violation of Article 8 of the Convention.
45.  The Court considers that the instant application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  Arguments before the Court
46.  The applicant asserted that the restrictions placed on his personal contact with his family amounted to a violation of Article of the Convention. He pointed out that neither his wife nor his son were witnesses in the proceedings in question, that the authorities have never explained the reasons for the refusal of contact, that they had failed to take his age into account and that the restrictions placed had not been indispensable to the proper conduct of the proceedings.
47.  The Government did not comment on the merits of the present application.
2.  The Court's assessment
(a)  General principles
48.  Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on private and family life. However, it is an essential part of a detainee's right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, mutatis mutandis, Messina v. Italy (no. 2). 25498/94, § 61, 28 September 2000, unreported).
49.  Such restrictions as limitations on the number of family visits, supervision of those visits and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special arrangements for visits constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision (ibid.§§ 62-63; see also Kucera v. Slovakia, no. 48666/99, §§ 127-128, 17 July 2007).
50.  The Court reiterates that any interference with an individual's right to respect for his private and family life will constitute a breach of Article , unless it was “in accordance with the law”, pursued a legitimate aim or aims under paragraph 2, and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought to be achieved (see , no. 39474/98, § 104, 16 May 2002). measure will be in accordance with the law if it satisfies three conditions. First, it must have some basis in domestic law. Second, the law must be adequately accessible: the citizen must be able to have an indication that is adequate, in the circumstances, of the legal rules applicable to a given case. Finally, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Onoufriou v. Cyprus, no. 24407/04, § 93, 7 January 2010).
(b)  Application of the above principles to the instant case
(i)  Existence of interference
51.  The Court notes at the outset that the applicant was detained on 28 June 2000. The applicant's son was able to see the applicant for the first time only on 14 October 2000 that is almost four months after his arrest. Subsequently, he visited him twice: on 18 November 2000 and on 7 January 2001. The applicant's wife visited the applicant only on 14 January 2001, some six months after his arrest (see paragraph 32 above).
52.  The Court further notes that the decision of 17 August 2000 given by the Rzeszów Regional Prosecutor refused to allow the applicant personal contact with his family. The refusal was motivated by the need to secure the proper conduct of the investigation (z uwagi na dobro toczącego się śledztwa).
53.  The Court also notes that the Government have preferred not to express their opinion on the merits of the application. In particular, they 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”
54.  The Court observes that the contested measure was applied under Article 217§ 1 of the Code of Execution of Criminal Sentences. The Court further notes that this provision, as applicable at the material time, gave the relevant authority (prosecutor or court) the power to grant permission for family visits in prison. The law, however, provided no details as regards the conditions for granting such permission, no guidance as to how the authorities might decide whether the prohibition of visiting rights was merited in a particular case and what factors might be relevant to that decision. It further did not provide for a possibility to appeal against the refusal of visits and did not require the authorities to provide the persons concerned with reasons for their decision. The decision was thus left to the authorities' absolute discretion
55.  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 34 and 35 above).
56.  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). It also found that the unreasoned refusal of family visits in detention was not in accordance with the law (see, Gradek v. Poland, no. 39631/06, § 48, 8 June 2010).
57.  In the present case the reasoning for the refusal was abstract in terms; the general formula applied by the Regional Prosecutor (see paragraph 30 above) did not in fact reveal any particular reason. Therefore, the Court concludes that the refusal of family visits in detention in the applicant's case was not in accordance with the law. There has accordingly been a violation of Article 8 § 1 of the Convention. On that account it is not necessary to ascertain whether the other conditions imposed by Article 8 § 2 have been complied with.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
58.  The applicant also complained under Article 8 of the Convention that his family life had been ruined because his case details had been reported in the local press. He further complained that he had been detained solely on the grounds of statements given by his mentally ill son and that there was no other evidence against him.
59.  The Court considers that the complaint under Article 8 is incompatible ratione personae with the Convention. Responsibility for the effects of newspaper articles cannot be attributable to the State.
60.  As regards the complaint concerning the grounds for the applicant's detention, on 12 September 2000 the Rzeszów Regional Court, which upheld the decision to extend the second applicant's detention, recognised the fact that the sole basis for the detention was the statements given by his mentally ill son (see paragraph 14 above). However, on 18 January 2001 the applicant was released from detention, subsequently acquitted by a judgment of the Rzeszów District Court of 20 December 2001 and, on 27 September 2005, granted compensation for unlawful detention. Therefore, the Court considers that, as regards the complaint under Article 5§1 (c), he can no longer be considered a victim of a violation of his Convention rights. It follows that this complaint must be declared inadmissible as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
61.  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
62.  The applicant claimed 16,000 euros (EUR) in respect of non‑pecuniary damage.
63.  The Government contested that claim.
64.  The Court considers that the applicant must have suffered non‑pecuniary damage; it therefore awards him EUR 1,500 under this head for the breach of Article 8 of the Convention.

B.  Costs and expenses
65.   The applicant's lawyer also claimed PLN 3,355 for costs and expenses incurred before the Court.
66.  The Government did not comment on that claim.
67.  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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed for the proceedings before the Court.
C.  Default interest
68.  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 complaint under Article 8 of the Convention as regards the restrictions on the applicant's visiting rights admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 8 of the Convention as regards the restrictions on the applicant's visiting rights;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the following amounts, to be converted into Polish zlotys at the rate applicable on the date of settlement:
(i)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage;
(ii)  EUR 865 (eight hundred and sixty five euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 September 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Lawrence Early	Nicolas Bratza
	Registrar	President