CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 31 mai 2011

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text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .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 } .s2055D3B3 { width:16.54pt; display:inline-block } .s7C039683 { width:226.45pt; display:inline-block }     FOURTH SECTION         CASE OF BOGUSŁAW KRAWCZAK v. POLAND   (Application no. 24205/06)                 JUDGMENT     STRASBOURG   31 May 2011     FINAL   31/08/2011     This judgment has become final under 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 1.     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. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr   J.   Wołąsiewicz of the Ministry of Foreign Affairs. 3.     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. 4.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1952. He is currently detained in Czerwony Bór Prison. A.     The applicant’s pre-trial detention and criminal proceedings 6.     On 12   January   2005 the applicant was arrested in Poland and charged with trafficking large amounts of drugs from Venezuela. 7.     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 ). 8.     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. 9.     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). 10.     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. 11.     On 17 June 2005 the bill of indictment was lodged with the Gdańsk Regional Court. 12.     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. 13.     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. 14.     The applicant’s appeal against the decision of the Gdańsk Court of Appeal was dismissed by the same court on 16   January   2007. 15.     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. 16.     On 30   December   2008 the Gdańsk Regional Court convicted the applicant as charged and sentenced him to 10 years’ imprisonment. 17.     On 2   March   2010 the Gdańsk Court of Appeal upheld the lower court’s judgment. 18.     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 19.     On 14   January   2005 the applicant was committed to Sztum Remand Centre. 20.     On 30   September   2005 he was transferred to Gdańsk Remand Centre. 21.     From 12   October   2006 to 15   November   2006 the applicant was held in Kraków Remand Centre. 22.     On 16   November   2006 he was transferred back to Gdańsk Remand Centre. He remained there until 6   March   2007. 23.     On 7 March 2007 the applicant was once more transferred to Kraków Remand Centre and detained there until 21   March   2007. 24.     From 22   March 2007 onwards the applicant was detained in Gdańsk Remand Centre. 25.     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. 26.     On 18   October   2010 the applicant was transferred to Czerwony Bór Prison where he is currently detained. C.     Conditions of the applicant’s detention 27.     The parties gave partly differing accounts of the conditions of the applicant’s detention in the above-mentioned establishments. 1.     The applicant’s account 28.     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. 29.     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. 30.     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. 31.     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. 32.     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. 33.     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 34.     The Government supplied the following details concerning the conditions of the applicant’s detention in each establishment. 35.     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 m 2 to 4.06 m 2 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. 36.     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. 37.     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. 38.     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 39.   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. 40.     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 41.   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. 42.     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. 43.     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. 44.     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. 45.     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 ”). 46.     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 ”). 47.     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. 48.     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 49.     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. 50.     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 51.     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. 52.     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 53.     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 54.     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” (ś rodki 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 56.     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. 57.     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”. 58.     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. 59.     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. 60.     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 61.     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 62.     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 63.     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 ...” 64.     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   m 2 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. 65.     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 66.     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 67.     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). 68.     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). 69.     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). 70.     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 m 2 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. 71.     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). 72.     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 73.     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.” 74.     The Government contested that argument. A.     Admissibility 75.     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 76.     The applicant’s detention began on 12   January   2005 when he was arrested on suspicion of drug trafficking committed in an organised criminal group. 77.     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. 78.     Accordingly, the period to be taken into consideration amounts to almost 4 years. 2.     The parties’ submissions 79.     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. 80.     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 81.     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 82.     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). 83.     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). 84.     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. 85.     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). 86.     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. 87.     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. 88.     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. 89.     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. 90.     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 91.     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. 92.     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 ). 93.     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 94.     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. 95.     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 96.     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). 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). 98.     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. 99.     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. 100.     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 101. 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.” 102.     The Government contested that argument. A.     Admissibility 103.     The Court notes that this part of the application is not manifestly ill-founde