CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 septembre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s2A91C753 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 30447/07 by Mirosław GRABOWSKI against Poland The European Court of Human Rights (Fourth Section), sitting on   14   September 2010 as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar, Having regard to the above application lodged on 4 July 2007, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Mirosław Grabowski, is a Polish national who was born in 1987 and lives in Goleniów. He was represented before the Court by Mr J. Lachowicz, a lawyer practising in Szczecin. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 20 September 2006 the applicant was placed in pre-trial detention in the course of criminal proceedings against him. On 17 November 2006 a bill of indictment was filed with the Szczecin District Court against eight persons including the applicant. After the bill of indictment had been filed, A.K., the applicant's common ‑ law wife, was allowed to visit him in prison. On 3 January 2007 A.K. applied to be allowed to visit the applicant in prison. On the same date the court refused her request. The trial began on 11 January 2007. On 12 January 2007 the applicant's lawyer asked the court to allow the applicant to have prison visits from A.K. On 23 January 2007 the Szczecin District Court refused the request and informed the applicant that at this stage of the proceedings he could not receive prison visits. The refusal was motivated by the need to secure the proper conduct of the proceedings. The proceedings concerned several co-accused and the process of gathering evidence had not been finished. Even though A.K. was not a witness in the proceedings it was not possible to allow her to visit the applicant, at least until the key witnesses in the proceedings had been heard. On 5 February 2007 the applicant's lawyer complained to the Szczecin Court of Appeal and to the Ombudsman. He stressed that the applicant was being refused all prison visits and that the District Court had not specified the duration of this prohibition. On 26 February 2007, on the applicant's appeal, the Court of Appeal informed him that the District Court was competent to decide on prison visits for the applicant. A.K.'s further applications for permission to visit the applicant in prison of 12 February, 20 March, 27 March and 3 April 2007 were dismissed. On 29 March 2007 the Ombudsman informed the applicant that the refusal of family visits in prison was due to the complicated nature of the proceedings and the fact that several co-accused were involved. It would further appear that as soon as all the witnesses in the proceedings had been heard, the applicant would be allowed prison visits. At the hearing held on 20 April 2007 the court allowed A.K.'s motion and agreed that she could visit the applicant in prison. The applicant states that she visited him on 21 April 2007. Subsequently, A.K. was allowed to visit the applicant on numerous occasions. On 16 October 2007 the District Court convicted the applicant as charged. On 21 April 2008 the Szczecin Regional Court quashed the first ‑ instance judgment and remitted the case. The applicant was released on bail on 17 July 2008. The proceedings are pending before the court of first-instance. B.     Relevant domestic law and practice The relevant domestic law and practice concerning detainees' right to receive visitors in remand centres are stated in the Court's judgment in the case of Gradek v. Poland , no. 39631/06, §§ 21-25, 8 June 2010. COMPLAINT The applicant complained under Article 8 of the Convention that he had been deprived of personal contact with his common-law wife. THE LAW The applicant complained that during his detention he had been deprived of personal contact with his common-law wife 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 submitted that the applicant could have lodged a constitutional complaint under Article 79 § 1 of the Constitution, challenging the provisions of the Code of Execution of Criminal Sentences. Subsequently, he could have sought compensation under Article   417 § 2 of the Civil Code for damage resulting from decisions based on unconstitutional provisions. The applicant replied that he had made an attempt to put the issue in question before the domestic authorities and had applied to the Ombudsman on several occasions. However, since the Ombudsman had already applied to the Constitutional Court alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences was incompatible with a number of constitutional and international provisions the applicant's own constitutional complaint would have been groundless. In so far as the Government claimed that the applicant had not exhausted the available domestic remedies, the Court does not consider it necessary in the present case to rule on this objection since, even assuming that the applicant has exhausted domestic remedies, the application is in any event inadmissible for the reasons set out below. The Government submitted also that the applicant had had regular contact with his common-law wife. While it is true that her request to visit the applicant between 3 January and 30 April 2007 had been refused, this refusal had been justified in the interests of the trial proceedings. The applicant objected to the Government's submissions. 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). 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 aim listed in   paragraph   2 and, in addition, must be justified as being “necessary in   a   democratic society”. Turning to the circumstances of the present case the Court considers that the decisions complained of amounted to “interference” with the exercise of the applicant's rights guaranteed by this provision. 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. 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. 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 exercise of the 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 has recently concluded in the case of Gradek v.   Poland cited above § 47) that an unreasoned refusal of   family visits in detention was not in accordance with the law. In the present case, contrary to the case of Gradek , where the prosecutor refused the applicant's wife's requests by making blunt handwritten notes on her applications, the Szczecin District Court informed the applicant about the reasons for refusal of visits from A.K. The court confirmed that many co-accused were involved in the proceedings and the authorities were examining their respective connections. While A.K. was not a witness, it was considered important to prohibit her from contacting the applicant, at least until the crucial witnesses were heard. In the particular circumstances of the instant case the Court concludes that the refusals of   family visits during the applicant's pre-trial detention were reasoned and thus the interference was in accordance with the law. The Court further observes that the limitations on the applicant's contact with A.K. were imposed only during the initial stage of the trial, until the key witnesses were heard. The impugned measure 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. Lastly, in the light of the information before it the Court considers that the authorities struck a fair balance between the need to secure the process of obtaining evidence in the applicant's case and his right to respect for his family life while in detention. It has not been shown that the measure complained of went beyond what was necessary in a democratic society “to prevent disorder and crime” in the context of family visits in prison during pre-trial detention. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar   President