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FOURTH
SECTION
CASE OF GRADEK v. POLAND
(Application
no. 39631/06)
JUDGMENT
STRASBOURG
8 June
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 Gradek v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 18 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39631/06) 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 Paweł Gradek (“the
applicant”), on 22 September 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, applicant alleged, in particular,
that his right to respect for his family life had been infringed.
- On
1 September 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 (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in Łódź.
- On
20 October 2004 the Łódź District Court ordered the
applicant's pre-trial detention for a period of fourteen days. The
court referred to the reasonable suspicion that the applicant was
guilty of fraud while acting in an organised group.
- On
6 June 2006 the applicant was arrested. On 13 June 2006 the Łódź
District Court ordered his detention for a period of three months.
The court held that there was a reasonable suspicion that the
applicant had committed the offences with which he had been charged
(including establishing and leading an organised criminal group).
Furthermore, he had confessed to the charges. The court also stressed
that the detention was necessary in order to ensure the proper
course of the proceedings, in particular as the applicant had been in
hiding.
- In
July his detention was extended until 6 November 2006. The court
repeated the reasons previously given.
- On
14 June and 3 July 2006 the applicant's wife, M.G., asked for
permission to visit her husband in prison. On 20 June and 5 July 2006
respectively, the Łódź Regional Prosecutor refused
her requests. The prosecutor made handwritten notes on M.G.'s
applications – “no permission” and “permission
refused” respectively (“brak zgody”,
“nie wyrażam zgody”).
- On
24 July 2006 the applicant was again refused permission to be visited
by his wife and children by the Piotrków Trybunalski District
Court. The prosecutor made a handwritten note on the applicant's
motion “permission refused” (“nie wyrażam
zgody”).
- On
24 September 2006 the applicant was visited by his daughter.
- On
26 October 2006 the Łódź District Court extended the
applicant's detention until 6 May 2007. The court held that
the original reasons for his detention were still valid. The court
also referred to the likelihood of a heavy sentence and the
fact that the applicant had acted in a criminal group. The court
further refused the applicant's request for release.
- On
21 February 2007 the Łódź District Court refused the
applicant's application for release and the replacement of detention
by more lenient preventive measures. The court referred to the
grounds given in previous decisions.
- The
trial began on 4 April 2007. There were sixteen other co accused
in the proceedings. The prosecutor asked the court to hear
106 witnesses.
- At
the hearing held on 29 May 2007 the applicant again asked for the
preventive measure to be changed. The court refused his request and
extended the detention until 31 July 2007.
- Between
8 June 2007 and 2 May 2008 the applicant was visited by his wife
on twelve occasions.
- The
applicant's detention was subsequently extended on several occasions,
in particular on 23 August and 5 October 2007.
- On
8 May 2008 the applicant was released from detention.
- It
would appear that the proceedings are pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Pre-trial detention.
- The
relevant domestic law and practice concerning the imposition
of pre-trial detention (aresztowanie tymczasowe), the
grounds for its extension, release from detention and the rules
governing other “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 August 2006.
B. Prison visits
1. 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.”
2. Constitutional Court's judgment of 2 July 2009
(no. K. 1/07)
- 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).
- 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.
3. 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 enter into force on
8 June 2010.
4. 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 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention on remand had
been excessive He relied on Article 5 § 3 of the Convention,
which provides 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
applicant's detention started on 6 June 2006, when he was arrested on
suspicion of fraud committed while acting in an organised criminal
group and also establishing and leading an organised criminal group.
He was released from detention on 8 May 2008. Accordingly, the
period to be taken into consideration amounts to one year, eleven
months and two days.
- The
Government submitted that the domestic authorities had shown special
diligence in the proceedings. There was a strong likelihood that the
applicant had committed the offences with which he was charged,
in particular leading and organising a criminal gang. In
addition there was a serious risk of the applicant going into
hiding since the authorities had had to search for the applicant for
more than a year and a half by means of a wanted notice.
They also stressed that the proceedings had been very complex as they
had concerned a large number of co-accused and numerous witnesses had
been heard. Lastly, they were of the opinion that the length of the
applicant's detention was closely connected with the proper conduct
of the proceedings and the circumstances of the case.
- The
applicant maintained that his detention had been excessively long.
- The Court firstly reiterates that the general
principles regarding the right “to trial within a reasonable
time or to release pending trial”, as guaranteed by
Article 5 § 3 of the Convention, have been set out 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, and Bąk v. Poland, no. 7870/04,
§§ 56-65, 16 January 2007).
- Turning
to the circumstances of the instant case, the Court notes that the
grounds given by the judicial authorities to justify the applicant's
continuous detention satisfied the requirement of being “relevant”
and “sufficient”. It further notes that his detention was
reviewed by the courts at regular intervals and that the case was
very complex. In this connection the Court observes that the courts
stressed the need to verify evidence from sixteen suspects and one
hundred and six witnesses, and that there was an extensive body
of evidence to be considered. The Court also accepts that the
reasonable suspicion that the applicant had committed serious
offences, together with the likelihood of a severe sentence being
imposed on him, warranted his initial detention.
- Lastly,
the Court observes that the applicant was charged with fraud
committed while acting in an organised criminal gang. In addition he
was charged with establishing and leading an organised criminal gang.
As to these charges, the Court reiterates that they
constitute a factor to be considered when assessing
compliance with Article 5 § 3 (see Bąk, cited above,
§§ 57 and 60).
- For
these reasons, the Court also finds that the domestic authorities
cannot be criticised for failure to observe “special diligence”
in the handling of the applicant's case.
- In view of the above considerations and in the light
of the criteria established in its case-law in similar cases, the
Court considers that the applicant's detention does not disclose any
appearance of a breach of the “reasonable time”
requirement of Article 5 § 3 of the Convention. This complaint
is therefore manifestly ill-founded and must be rejected pursuant to
Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that during his detention he had been deprived
of personal contact with his family 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
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 agreed that there could have been an interference with the
applicant's right to respect for private and family life in view of
his detention. However, in their opinion this interference was
justified under Article 8 § 2 of the Convention. They further
submitted that during the applicant's detention he had had regular
contact with his family. Between 8 June 2007 and 2 May 2008 the
applicant had been visited by his wife on twelve occasions, that
is, once a month on average. Between 19 September 2006 and
15 April 2008 the applicant had also been visited by his
daughter on fifteen occasions. Lastly, he had been visited by his
parents on 22 November 2006 and 12 July 2007.
In addition, the Government stressed that on sixteen occasions the
applicant had contacted the members of his family by telephone. They
concluded that there was no violation of Article 8 in the
present case.
- 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 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).
- 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).
- Nevertheless, any restriction of that kind must be “in
accordance with the law”, must pursue one or more legitimate
aims 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 recalls 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 judgment
of 15 November 1996, Reports 1996-V, p. 1800, §
33).
(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
any members of his family between 6 June 2006 and 19 September 2006
(see paragraphs 7 and 11 above). In addition, his wife's applications
for permission to visit him in prison were refused without any
reasons (see paragraphs 9,10 above).
- 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.
It further 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 22 and 23 above).
- The
Court further observes, that it had 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).
- For
these reasons the Court concludes that the unreasoned 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 of the Convention.
III. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 8
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation
of Article 8 of the Convention.
Done in English, and notified in writing on 8 June 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Lawrence Early Nicolas Bratza Registrar President
