CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 9 juillet 2020

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POLAND (Application no. 45564/15)           JUDGMENT STRASBOURG 9 July 2020         This judgment is final but it may be subject to editorial revision.   In the case of Walczak v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Linos-Alexandre Sicilianos, President,   Krzysztof Wojtyczek,   Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 16 June 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 45564/15) 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 Damian Walczak (“the applicant”), on 7 October 2015. 2.     The applicant was represented by Mr P. Binas, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 3.     The applicant complained under Article 8 of the Convention that during his detention he had been deprived of personal contact with his wife for a significant period of time. 4.     On 9 February 2017 notice of the application was given to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1971 and lives in Plewiska. 6.     On 16 December 2014 the applicant was arrested on charges of robbery (in particular: membership and leadership of an organised criminal group, committing robberies and extortions with the use of a lethal weapon, severely beating and depriving an individual of his liberty, recidivism). He was detained on remand by the Poznań-Nowe Miasto District Court for three months (until 16 March 2015). 7.     The applicant’s detention on remand was subsequently prolonged by the Poznań Regional Court on 9 March 2015 (until 16 June 2015) and on 15   June 2015 (until 16 September 2015). 8.     On 30 December 2014 the applicant’s wife, M.W., applied to be allowed to visit the applicant in the detention centre. 9 .     On 5 January 2015 the Poznań-Nowe Miasto District Prosecutor refused the request on the grounds that M.W. was a witness in the proceedings. The applicant and M.W. did not appeal against this decision. 10 .     Further applications by M.W. for permission to visit the applicant in the detention centre of 26 February and 17 March 2015 were dismissed by the prosecutor on 27 February and 24 March 2015 respectively. The prosecutor noted that there was a need to hear evidence from M.W. Consequently, it was not possible to grant her request. Neither the applicant nor M.W. appealed against these decisions. 11 .     On 3 April 2015 M.W. refused to testify in the investigation stage of the proceedings against the applicant. On the same day she again applied to be allowed to visit the applicant in the detention centre. 12 .     On 7 April 2015 the prosecutor refused M.W.’s request on the grounds that she could still be asked to testify as the investigation was ongoing. No appeal was lodged against this decision. 13 .     A further application by M.W. for permission to visit the applicant of 27 May 2015 was dismissed by the prosecutor on 5 June 2015. Neither the applicant nor M.W. lodged an interlocutory appeal against this decision. 14 .     On 10 June 2015 M.W. again applied for permission to visit the applicant in prison. Her application was dismissed on 15 June 2015. The prosecutor stated that it could have impeded the course of proceedings as she knew other witnesses and also had access to the applicant’s computer. On 28 August 2015 the Poznań Regional Prosecutor dismissed an interlocutory appeal by the applicant against the decision of 15 June 2015. 15 .     Further applications by M.W. of 15 June and 15 July 2015 were dismissed by the prosecutor on 25 June and on 24 July 2015. The applicant’s own request of 29 June 2015 to allow him to a have a prison visit from his wife was also dismissed by the prosecutor on 6 July 2015. 16 .     On 27 August 2015 the prosecutor allowed M.W. to visit the applicant in the detention centre. The visit took place on 30 August 2015. 17.     On 3 September 2015 the prosecutor lodged a bill of indictment against the applicant with the court. 18 .     On 10 September 2015 the Poznań Regional Court dismissed an application by M.W. to visit the applicant, on the ground that she was a witness in the proceedings against him. The decision was served on her on 14   September 2015. On 24 September 2015 the Regional Court dismissed an interlocutory appeal lodged by her. The court held that that it was irrelevant that M.W. had lodged a statement that she was going not to testify against her husband, as the court proceedings had not yet begun. Most importantly, when summoned by the court for a hearing she could change her mind at any time. The court also emphasised that it was irrelevant that during the investigation stage of proceedings M.W. had been allowed by the prosecutor to visit the applicant because the prosecutor’s decisions allowing M.W. prison visits could not have been assessed by the court. 19.     A further request by M.W. of 15 September 2015 was marked as “examined” on 17 September 2015. 20 .     On 2 October 2015 the applicant’s wife was allowed by the Poznań Regional Court to visit him in the detention centre. Her request of 1   October   2015 included a statement that she was going to rely on her right to refuse to testify against the applicant. She visited the applicant on 11   October 2015. Her subsequent requests were also granted. 21.     There   were subsequently no significant developments in the proceedings. In particular, M.W. was not asked to testify at any of the hearings held after that date. 22.     The applicant was released from detention on 4   February 2016. RELEVANT DOMESTIC LAW AND PRACTICE 23 .     Under Article 217 of the Code of Execution of Criminal Sentences of 1997 a detainee is allowed to receive visitors, provided that he or she has obtained permission from the investigating prosecutor (at the investigation stage) or from the trial court (once the trial has begun). 24 .     Article 217 § 1c provides that an interlocutory appeal may be lodged against a decision refusing the prison visit either by the detainee or by the person who had asked for such visit. The interlocutory appeal should be lodged with a competent court (once the trial has begun) or with a higher prosecutor (at the investigation stage. 25 .     Under Article 217 § 1d in the event of a decision refusing a request for a prison visit being upheld, it is not possible to lodge another interlocutory appeal against the decision refusing the prison visit (with the same person) if it was issued within three months of the decision that has been upheld. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 26.     The applicant complained that during his detention he had been deprived of personal contact with his wife for a significant period of time, in breach of Article 8 of the Convention which provides in so far 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 ..., for the prevention of disorder or crime ...” Admissibility The parties’ submissions 27.     The Government raised a preliminary objection on non ‑ exhaustion of domestic remedies. They submitted that under the relevant provisions of the Code of Execution of Criminal Sentences it was possible to challenge a decision refusing a request for a prison visit every three months. However, the applicant had failed to appeal against the prosecutor’s decisions when it had been possible in accordance with those provisions. In particular he had not challenged any decision issued between 16 December 2014 and 15   June   2015. 28.     The applicant submitted that it was true that he had not appealed against all decisions, however such appeals would not have had any prospect of success. The Court’s assessment 29.     The Court reiterates at the outset the general principles developed in its case ‑ law regarding the rule of exhaustion of domestic remedies under Article   35 § 1 of the Convention (see, for instance, Sargsyan v.   Azerbaijan [GC], no.   40167/06, §§ 115-16, ECHR 2015). It further notes that in so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, that remedy should be used (see, mutatis mutandis , Vučković and Others v. Serbia (preliminary objection) [GC], nos.   17153/11 and 29 others, § 75, 25 March 2014). 30.     The Court observes that between 16 December 2014 and 6 July   2015 and between 10 and 17 September 2015 the applicant was repeatedly refused permission to be visited by his wife in prison. The inability to meet his wife in these two periods, did not stem from any general prohibition under the law (compare Khoroshenko v.   Russia [GC], no. 41418/04, §   126, ECHR) and must be viewed as a series of instantaneous and isolated incidents resulting from individual decisions given on particular dates, to refuse a request for a prison visit. 31.     The Court further notes that, as pointed by the Government, under Article   217 §§ 1c and 1d of the Code of Execution of Criminal Sentences it is possible to lodge an interlocutory appeal against a decision refusing a prison visit. This remedy is accessible directly to the detainee or to the person requesting the visit. However, in the event of decision being upheld another interlocutory appeal, against a further decision refusing a prison visit, may be lodged only after a period of three months (see paragraphs   24, 25   and 27 above). 32.     In the present case the applicant did not lodge an interlocutory appeal against any of the decisions given between 5 January 2015 and 5   June 2015 (see paragraphs 9, 10 and 12 above). He appealed unsuccessfully against the decision of 15 June 2015. Subsequently, as soon as it had become possible under the domestic law, he lodged an interlocutory appeal against the decision of 10 September 2015 (see paragraphs 14 and 18 above). Under Article 217 § 1d he could not have challenged the decisions of 25 June, 6 July, 24 July and 17 September 2015 and the subsequent decisions were favourable to him (see paragraph   25 above) 33.     In view of the above considerations, the Court finds that the Government’s objection must be accepted and the part of the application which concerns five requests for a visit examined by the prosecutor between 5   January and 5 June 2015 is inadmissible because of the applicant’s failure to lodge an interlocutory appeal under Article 217 § 1c of the Code of Execution of Criminal Sentences. 34.     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. 35.     The Court further notes that as regards the remaining period and the refusals to grant permission to visit the applicant in prison on 15   June, 25   June, 6 July, 24 July, 10 September and 17 September 2015 the application is not manifestly ill-founded within the meaning of Article   35 §   3 (a) of the Convention. This part of the application is also not inadmissible on any other grounds and must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 36 .     The applicant argued that he had been refused permission to see his wife on several occasions. He further maintained that the reason for the refusals of his wife’s visits had been arbitrary. The authorities had referred to the fact that his wife had been called as a witness in the proceedings against him. However, he stressed that she had refused to testify in the investigation stage of the proceedings against him. Therefore, there had been no substantive reasons to deny her the right to visit her husband in prison. (b)    The Government 37 .     The Government agreed that some interference with the applicant’s right to respect for his family life had occurred in the case at issue. He had been denied contact with his wife on several occasions and his personal contacts with family members were subject to certain limitations. However, they maintained that the applicant had not been totally deprived of contact with his family as he had been visited by his father, his children and his aunt. 38.     The Government underlined that the applicant had been involved in organised crime and, in consequence, there had been serious indications that his communication with other persons, including his close family, had had to be restricted. 39 .     They observed that the domestic authorities had not had any alternative means of ensuring the applicant’s contact with his wife. Subjecting their contact to supervision by a prison officer would not have been adequate since they could have communicated through the use of body language and gestures. 40.     The Government also produced a detailed list of the visits received by the applicant. He had received visits from his son D.W. and his aunt on 17   February, 31 May, 19 July 2015, from his son A.W. on 30 June 2015, and from his father on 19 April 2015. The Court’s assessment (a)    General principles 41.     The general principles relating to a detainee’s right to maintain contact with his or her close family are set out in the judgment Piechowicz v.   Poland (no.   20071/07, § 212, 17 April 2012). (b)    Application of the above principles to the present case (i)   Existence of interference 42.     It was not disputed between the parties that the restrictions on the applicant’s personal contact with his family had constituted an “interference” with his family life (see paragraphs 36 and 37 above). The Court sees no reason to hold otherwise. (ii)   Whether the interference was “in accordance with the law” 43.     The Court notes that the contested measure was applied under Article   217 of the Code of Execution of Criminal Sentences. It consequently holds that the interference was “in accordance with the law”. (iii)   Whether the interference pursued a “legitimate aim” 44.     The Court further notes that the restrictions on the applicant’s contact with his wife were based on the fact that she was a witness in the proceedings against him (see paragraphs 9, 10 and 12 above) and she could have impeded the proceedings at its investigation stage (see paragraph   14 above). 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. (iv)   Whether the interference was “necessary in a democratic society” 45.     It remains for the Court to ascertain whether 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. 46.     The Court accepts that initially the resort to that measure could be considered necessary and reasonable from the point of view of the aims sought by the authorities, even though it inevitably resulted in harsh consequences for the applicant’s family life. It must consider, however, whether the continued application of these measures was compatible with the requirement of respect for the rights guaranteed by Article 8 of the Convention. 47.     In that regard, the Court notes that the applicant’s wife was a witness in the criminal proceedings against him. However, she refused to testify during the investigation stage of the proceedings, on 3 April 2015 (see paragraph 11 above). Despite that, her subsequent requests to be allowed to visit the applicant in the detention centre were again refused by the prosecutor on the ground that she could have impeded the course of proceedings (see paragraph 14 above). 48.     The Court accepts that, given the applicant’s wife was a witness in the proceedings, the authorities had to restrict their contact to secure the process of obtaining evidence. However, with the passage of time and having regard to the stringency of the measure, as well as the authorities’ general obligation to enable the applicant to have contact with the family during his detention, the situation called for a careful review of the necessity of keeping him in complete isolation from his wife (see Piechowicz v.   Poland , cited above, §   220). 49.     The Court further observes that the domestic authorities did not consider any alternative means of ensuring that the applicant’s contact with his wife would not lead to collusion or otherwise obstruct the process of taking evidence such as, for example, subjection of their contact to supervision by a prison officer and granting a “close visit” without the possibility of direct contact or by imposing other restrictions on the nature, frequency and duration of contact (see Klamecki (no.2) v.   Poland , no.   31583/96, § 151, 3 April 2003; Ferla v.   Poland , no. 55470/00, §   47, 20   May 2008; and Piechowicz, cited above, § 220). Contrary to the Government’s arguments (see paragraph 39 above) the above consideration had not been part of the grounds of any decision issued on or after 15   June   2015. 50.     In addition, the Court notes that, although M.W. had already visited the applicant on 30   August 2015 and despite the fact that she had made a statement that she would refuse to testify during the trial, she was again refused permission to visit the applicant on 10 September 2015 (see paragraph 18 above). 51.     In the circumstances, and having regard to the duration and the nature of the restrictions on the applicant’s contact with his wife, the Court concludes that they went beyond what was necessary in a democratic society “to prevent disorder and crime”. The interference with the applicant’s family life cannot, therefore, be justified either by the inherent limitations involved in detention or by the pursuance of the legitimate aim relied on by the Government. The Court accordingly holds that the authorities failed to maintain a fair balance between the means employed and the aim sought to be achieved. 52.     It follows that there has been a violation of Article   8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53.     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.” 54.     The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage, after the expiry of the time-limit for submission of claims for just satisfaction under Article 41 of the Convention. 55.     The Government contested the applicant’s claim as lodged after the expiry of the time-limit. 56.     In the Court’s letter of 16 June 2017 the applicant was invited to submit any claims for just satisfaction within the time-limit fixed for submission of his observations on the merits, and was reminded that failure to do so would entail the consequence that the Chamber would either make no award of just satisfaction or else would reject the claim in part. He was also informed that this applied even if he had indicated his wishes in this connection at an earlier stage of the proceedings. 57.     The applicant submitted his claim after the expiry of the time ‑ limit. He has advanced no reasons for having failed to comply with the requirements of Rule 60 § 2 of the Rules of   Court. In these circumstances the Court considers that his claim should be rejected, there being no exceptional circumstances which would require it to adopt a different approach in this case (see Tripcovici v. Montenegro , no. 80104/13, §   56, 7   November 2017). FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible in so far as it concerns decisions refusing the applicant’s requests for visits from his wife issued on and after 15 June 2015 and the remainder inadmissible; Holds that there has been a violation of Article 8 of the Convention; Rejects the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 July 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Renata Degener   Linos-Alexandre Sicilianos Deputy Registrar   President