CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 1 juillet 2021

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display:inline-block }     FIRST SECTION CASE OF LESŁAW WÓJCIK v. POLAND (Application no. 66424/09)   JUDGMENT   Art 8 • Family life • Prison governor’s refusal of convicted prisoner’s requests for unsupervised conjugal visits adequately reasoned, and not arbitrary or manifestly unreasonable in the circumstances • Impugned measure part of system of privileges for prisoners linked to their conduct and with inherent element of discretion Art 35 § 1 • Interlocutory appeal lodged with a regional court effective domestic remedy against the prison governor’s refusal   STRASBOURG 1 July 2021 FINAL   01/10/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.. In the case of Lesław Wójcik v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Tim Eicke, President,   Krzysztof Wojtyczek,   Armen Harutyunyan,   Pauliine Koskelo,   Jovan Ilievski,   Gilberto Felici,   Linos-Alexandre Sicilianos, judges, and Liv Tigerstedt, Deputy Section Registrar, Having deliberated in private on 8 June 2021, delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 66424/09) 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 Lesław Wójcik (“the   applicant”), on 25 November 2009. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, followed by Ms J. Chrzanowska and, subsequently, by Mr   J.   Sobczak of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that unjustified and disproportionate restrictions on his right to receive private conjugal visits in prison had been in breach of Article 8 of the Convention. 4.     On 13 December 2011 the application was communicated to the Government. 5.     On 17 April 2012 the Court granted a request for third-party intervention lodged by the Helsinki Foundation for Human Rights based in Poland (Article 36 § 2 of the Convention and Rule 44 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The facts of the case, as submitted by the parties, may be summarised as follows. Chronology of the applicant’s detention 7.     The applicant was deprived of his liberty in connection with two sets of criminal proceedings against him. On 19 January 2007 the Tarnobrzeg Regional Court convicted the applicant of a number of offences, including robbery, currency counterfeiting and destruction of property and sentenced him to five years’ imprisonment (case no. IIAKa 35/07). On 6 March 2009 the Tarnobrzeg District Court convicted him of robbery and battery and sentenced him to three years and six months’ imprisonment (case no. IIK 84/08). 8.     From 11 September 2009 until 22 November 2010 and from 24   January until 14 June 2011, the applicant served his prison sentence, alternating between Rzeszów Prison and Cracow Remand Centre’s hospital. Between those two periods and on the latter date, the applicant was granted a licence for temporary leave in view of cardiological ailments from which he was suffering. 9.     From 15 July until 21 December 2011 the applicant resumed his prison sentence; he was subsequently moved to Wrocław and Rzeszów Prisons and Katowice Remand Centre. On the latter date he was again granted a licence for temporary leave on health grounds. 10.     On 13 June 2012 the applicant was moved to an open-type prison in Chmielów. The applicant’s conduct in prison and regular visits from his wife and relatives 11.     In 2008 the applicant got married. He had a child with his wife. From the beginning of his post-conviction detention he lodged regular requests for visits from his wife, his child, his parents, his two brothers and his sister. In addition, the applicant lodged requests for private conjugal visits ( widzenie małżeńskie ), otherwise known as “intimate visits”, which take place in a private room without a guard being present. 12.     During the first term of his detention after conviction (between September 2009 and November 2010) the applicant received on average three supervised visits per month, which added up to thirty-seven visits (thirty in Rzeszów Prison and seven in Cracow Remand Centre). That number included seven unaccompanied visits from the applicant’s wife. 13.     It appears that in October 2009, the prison administration lodged five requests for the applicant to be punished for various disciplinary infractions. On 14 October 2009 the applicant was punished by being placed for fourteen days in a solitary-confinement cell. 14.     On 9 November 2009 the applicant’s supervisor ( wychowawca ) granted a request lodged by the applicant for a conjugal visit, in view of the latter’s improving behaviour. On 23 November 2009 the prison governor decided not to allow the visit and instead to issue an official commendation ( pochwała ), pending a consolidation of the applicant’s good conduct. 15.     On 19 January 2010 – after asking the guards escorting him to the hospital on 12 January 2010 to set him free in exchange for future payment – the applicant was given a disciplinary punishment: for fourteen days he was not allowed to receive any visitors or to make phone calls. On 26   February 2010, when taken to the dentist, the applicant made unauthorised contact with his family. These incidents were reported to the prosecution service. 16.     As can been seen from the documents submitted to the Court, throughout the applicant’s first term of detention he was at times insolent and uncooperative (thirteen requests for disciplinary punishment were issued in the first ten months of his detention in Rzeszów Prison); however, at times the standard of his behaviour was adequate. He lodged frequent requests to be rewarded by a conjugal visit for his voluntary involvement in prison work and activities. 17.     During the second term of his imprisonment, from January until June   2011, the applicant was granted thirteen supervised family visits, including three unaccompanied visits from his wife. According to the applicant’s submission to the Court, four requests for a conjugal visit and two requests for an additional family visit were refused. 18.     During the third term of his imprisonment, from July until December 2011, thirteen requests for family visits lodged by the applicant were granted, including three unaccompanied visits from his wife. Two requests for a conjugal visit were refused and, according to the Government’s submission to the Court, two were granted (requests lodged on 12 and 21   November 2011). According to the applicant’s submission to the Court, only one unsupervised conjugal visit to him in Wrocław Prison was granted during his third period of imprisonment. 19.     The supervised visits described below, which are otherwise known as “visits at the table” ( widzenie przy stoliku ), took place in a common room where the applicant was allowed to see his visitors in person and in the presence of a prison officer. The applicant was not allowed to kiss or hug his wife during those visits. Refusals to grant unsupervised conjugal visits and the applicant’s interlocutory appeal Refusals to grant the requests filed by the applicant 20.     During the first term of his detention after conviction (between September 2009 and November 2010), requests lodged by the applicant or his wife for a conjugal visit were refused fourteen times. 21.     It appears that the applicant lodged his first request for a conjugal visit on 25 September 2009. It was refused four days later (see paragraph   25 below). Requests for additional family visits were refused nine times during his first period of detention. 22.     In his numerous requests for a conjugal visit, including requests lodged on 17 March 2010 and 19 September 2011, the applicant stated that intimate contact was necessary for him and his wife to maintain their marriage bonds. They also wanted to conceive another child. Contact during supervised family visits was too limited and his relationship with his wife had suffered. In a number of his subsequent requests, the applicant also mentioned the advanced state of his rehabilitation and his good conduct, his work on a prison Internet site, his preparation of information posters, his helping to clean his prison wing and his organising religious meetings. This, in the applicant’s opinion, constituted outstanding conduct and justified granting him a reward. 23.     The applicant submitted to the Court that the refusal to grant his requests for a conjugal visit had not been properly reasoned and had been communicated to him only orally by his prison supervisors. 24.     The Government submitted to the Court that each of the applicant’s requests for conjugal visits had been refused by means of a handwritten note added (by the governor or deputy governor of the prison in question) to the applicant’s written request. The grounds for each such refusal had been the applicant’s reprehensible attitude and behaviour ( naganna postawa i zachowanie ). That assessment, in turn, had been made on the basis of written reports concerning the applicant’s conduct prepared by prison staff. 25.     The Government further submitted to the Court copies of the applicant’s fourteen requests for a conjugal visit. They were lodged on the following dates: 25   September and 2   and 18   November 2009, 4 January and   8 and 17   March, 1,   21 and 28 June and 6 July 2010, and 26 and 31   January, 19   September and 7 November 2011 (see paragraph 20 above). All of those requests were refused. 26.     The handwritten note added to the request of 17   March   2010 reads as follows: “Refused (convicted person to be informed) 18.03.2010”. The note contains an illegible signature and bears the stamp of the Rzeszów Prison Deputy Governor. A one-page copy of this document was submitted to the Court, the original of which appears to have been two pages long. 27.     The handwritten note on the top of the first page of the request of 19   September 2011 reads as follows: “Refused 20.09.2011”. The note contains an illegible signature and bears the stamp of the Rzeszów Prison Deputy Governor. The second page of this document bears an additional handwritten note that was signed and stamped by the applicant’s prison supervisor on 19   September 2011. This note is four-lines long and reads as follows: “The request is not approved; educational reasons ( względy wychowawcze ); I   informed the applicant of the possibility of applying for the above ‑ mentioned visit under the rewards procedure; exceptional grounds lacking ( brak szczególnych przesłanek ).” 28.     The remaining requests for conjugal visits bear similar handwritten notes: the word “refused” ( odmownie ), a date, a stamp and the illegible signature of the Rzeszów Prison Deputy Governor (the first thirteen requests) or of the Wrocław Prison Deputy Governor (the request of 7   November 2011). These requests bear additional handwritten notes, which contain the illegible signatures of (and are stamped by) the applicant’s prison supervisors. These notes read as follows: “I do not support” Nie popieram ); “This is a form of a reward that the convicted person does not deserve at the moment” and “I informed [the applicant] of the possibility to apply for such a visit under the rewards procedure ( w trybie nagrodowym )”. A number of the notes that were made by the applicant’s supervisors also contain short handwritten information to the effect that either “the conduct of the convicted person had been unacceptable”; that requests for disciplinary punishment had been lodged; that the applicant had already received an additional supervised visit from his relatives; or that there was a hierarchy of rewards and he could not choose his rewards as he pleased. 29.     The Government stated that other than for the reason of the applicant’s reprehensible behaviour, one request for a conjugal visit (lodged by the applicant on 7   November 2011) had been orally rejected by the Wroclaw Prison Governor because the applicant’s wife had not sent a letter of consent in respect of the proposed conjugal visit. The Government submitted to the Court a copy of the applicant’s handwritten request. The document bears an illegible signature and handwritten notes to the effect that the applicant had just been transferred from another prison without his prisoner’s records and that his temporary records did not contain his wife’s written consent. 30.     Two forms were also submitted to the Court, dated 21 November and 12 December 2011, by which the applicant’s supervisor at Wrocław Prison recommended the granting of the applicant’s requests for a conjugal visit in view of the latter’s good behaviour and his work on an information poster. Refusal to grant the requests lodged by the applicant’s wife 31.     Irrespective of the applicant’s own requests, his wife lodged a number of requests for a conjugal visit, stating that the couple had only recently been married and that they were trying for another baby. These requests were each refused by means of a written letter of reply signed by the prison governor or his deputy and sent to the applicant’s wife, with a copy being sent to the applicant in prison. 32.     Submitted to the Court were letters dated 17 and 28   December 2009 and 12   February, 17 and 23 March 2010 and 28   May 2010 by which the Deputy Governor of Rzeszów Prison refused six requests lodged by the applicant’s wife for a conjugal visit. Five of the six letters stated, without giving any details, that the applicant did not deserve to be so rewarded. In addition, on 25 March 2010 the Governor of Rzeszów Prison informed the applicant’s wife in more elaborate terms that a conjugal visit could only be granted as a reward – for a prisoner’s good conduct or by way of motivation – if it was justified by a prisoner’s exceptional family or personal circumstances. The applicant did not qualify for either measure. His prison supervisors unanimously considered that his behaviour had been highly reprehensible. Many requests that the applicant be subjected to disciplinary punishment had been lodged. His conduct had not improved. Attempts to encourage good behaviour, such as the granting of an additional supervised visit from the applicant’s siblings, had been unsuccessful. The applicant’s interlocutory appeals and complaints about the refusals to grant conjugal visits Appeals under Article 7 of the Code on the Execution of Criminal Sentences 33.     On 18   March   2010 the Governor of Rzeszów Prison refused to grant the applicant a conjugal visit with his wife. That decision was issued in the form of a note handwritten on the applicant’s request of 17 March 2010 (see   paragraph   22 above). On an unspecified date the applicant lodged with a penitentiary judge ( sędzia penitencjarny ) of the Rzeszów Regional Court ( Sąd Okręgowy ) an interlocutory appeal against that decision. The applicant specifically invoked Article 8 of the European Convention of Human Rights and Article 141 of the Code on the Execution of Criminal Sentences ( Kodeks Karny Wykonawczy ) (“the Code”), arguing essentially that he deserved to be granted the visit requested. 34.     In connection with the above-mentioned appeal, the penitentiary judge obtained an explanatory note on the applicant’s conduct ( sprawozdanie z czynności wyjaśniających ) dated 16 April 2010 and signed by the Rzeszów Prison Deputy Governor and lower-ranking staff. The document noted that on 18 March 2010 the deputy governor had refused the applicant’s request for a conjugal visit in the light of the latter’s reprehensible behaviour. The applicant had been dismissive and manipulative. He had received multiple disciplinary punishments. Therefore, granting him a reward would not have served any educational purpose. 35.     On 30 April 2010 the penitentiary judge dismissed the applicant’s interlocutory appeal. It was observed that the system of rewards was a measure aimed at helping prisoners’ resocialisation. In principle, rewards should be granted to prisoners willing to actively participate in their rehabilitation programme and not to those who only occasionally showed good conduct. A motivational measure within the meaning of Article 141 of the Code was still a type of a reward and was to be granted only in particularly justified circumstances. In view of his insolence and numerous disciplinary punishments, the applicant had not qualified for any reward. Lastly, it was considered that the refusal to grant the request in question had not hindered family bonding, which had been maintained through supervised visits, correspondence and telephone calls. 36.     It appears that on 23 or 28 September 2011 the applicant lodged a similar interlocutory appeal against the refusal of 20 September 2011, which was issued in the form of a handwritten note added to the applicant’s request of 19 September 2011 for a conjugal visit (see paragraphs 25 and   27 above). The case was registered under case no. III. Kow 1417/11. 37.     On 10 October 2011 the Rzeszów Regional Court obtained an explanatory note on the applicant’s conduct from his senior supervisor ( starszy wychowawca ) at Rzeszów Prison. The note stated that the Deputy Governor of Rzeszów Prison had refused the applicant’s request of 19   September 2011 for a conjugal visit. The applicant complained that he had not received any reasoning in respect of this refusal. The applicant’s supervisor had not approved this request because of the lack of any consolidation of the applicant’s good behaviour. The applicant had been told of the refusal of the request by his supervisor. Having examined the applicant’s file, the senior supervisor had considered that the applicant’s behaviour had not been good enough to warrant the reward sought. The applicant had admittedly been rewarded on two occasions, but two requests for his disciplinary punishment had also been lodged. 38.     A copy of the subsequent decision of the penitentiary judge has not been submitted by the parties. Complaints to the prison authorities 39.     The applicant and his wife lodged various applications with the prison authorities, complaining that the law did not require the prison authorities to reply in writing to requests for visits lodged by prisoners but only to those lodged by potential visitors. They also stated that the repeated refusals to grant unsupervised conjugal visits had hindered family bonding and had been in breach of Article 141 of the Code. The applicant furthermore alleged that an additional visit and, in particular, a conjugal visit could be granted by a prison governor once a month as a reward for a prisoner’s good behaviour. According to the practice followed at Rzeszów Prison, such visits were granted only to inmates employed by the prison. The applicant alleged that his application for such employment (he had even offered to work for free) had been rejected owing to the limited employment opportunities in the prison and to his poor health. Consequently, additional family visits and conjugal visits were beyond his reach. 40.     The applicant submitted to the Court copies of twelve letters of reply sent to the applicant by the Rzeszów Regional Inspectorate of the Prison Service, the Governor of Rzeszów Prison and his deputy, and the Governor of Cracow Remand Centre (dated 6 February, 7 and 21 April, 19 and 25   May, 27   July, 9 August, and 2, 6, 13 and 27 September 2010 and 9   June 2011). All of these letters reiterated the rules on the granting of rewards and noted that the applicant did not qualify for any reward or of motivational measure in view either of his reprehensible conduct or the lack on his part of any special and consolidated resocialisation-related achievements. The authorities also stressed that the applicant enjoyed sufficient contact with his family because visits from them in a common room or visits via an interphone had been regularly authorised. 41.     In addition to those arguments, the Governor of Rzeszów Prison observed, in his letters to the applicant of 9 August and 2 September 2010, that the applicant had expressed a very hostile attitude towards his wife (in a letter to his wife dated 20   July 2010 – the letter had been opened and read by the prison authorities). It had therefore been concluded that the unsupervised visit sought could have put the applicant’s wife in danger. 42.     Moreover, on 9 June 2011 the Governor of Cracow Remand Centre denied that the applicant had been promised a conjugal visit as a reward for his participation in the cleaning of the remand centre. Work performed by the applicant on 28 May 2011 had been rewarded by means of the authorisation of an additional supervised visit. Complaints lodged with the Minister of Justice and the Ombudsman 43.     On 17 February 2010 the applicant wrote to the Minister of Justice, asking that the legal provisions on the granting of conjugal visits to convicted prisoners be amended. In reply (of 8 March 2010), the applicant was informed that conjugal visits could be granted as a reward or as a motivational measure, which was in line with European standards. Refusal to grant such visits could be challenged by lodging a complaint with a penitentiary judge or with the head of the relevant regional Prison Service. 44.     On 14 July 2010 the applicant lodged a complaint with the Ombudsman ( Rzecznik Praw Obywatelskich ). On 29 October 2010 the Ombudsman obtained a report from the Rzeszów Regional Inspectorate of the Prison Service. The report concluded that a series of actions (“five positive actions”) undertaken by the applicant had undoubtedly constituted outstanding behaviour. The authorities could nevertheless use their discretion not to reward the applicant. The law did not require that each positive action shown by a prisoner be rewarded. 45.     By a letter of 26 May 2011 the Ombudsman informed the applicant that the basic forms of family contact in prison were: visits that took place in a common room, where a prisoner was allowed to see his visitors in person and in the presence of a prison guard; telephone calls; and letters. Conjugal visits could be exceptionally granted by a remand centre or a prison governor as a reward for a prisoner’s good behaviour. Conjugal visits, therefore, constituted not a prisoner’s right but a privilege. RELEVANT DOMESTIC LAW AND PRACTICE Judicial review and complaints to administrative authorities 46.     Detention and prison establishments in Poland are supervised by penitentiary judges, who act under the authority of the Minister of Justice. Under Article 6 of the Code on the Execution of Criminal Sentences ( Kodeks Karny Wykonawczy ) (“the Code”) , a convicted person is entitled to lodge applications, complaints and requests with the authorities enforcing that person’s sentence. Article 7 §§ 1 and 2 of the Code provides that a convicted person can challenge before a court any decision issued by a judge, a penitentiary judge, the governor of a prison or of a remand centre, a regional director or the Director General of the Prison Service, or a court probation officer. Article   7 § 1 of the Code states that such a decision can be challenged on the grounds of its “non-compliance with the law” unless otherwise provided by the law. The remainder of Article 7 of the Code reads as follows: “3.     Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the pronouncement or the serving of the decision; the decision [in question] shall be pronounced or served with a reasoned opinion and an instruction regarding the right [to lodge an appeal and] the deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority that issued the contested decision. If [that] authority does not consider the appeal favourably, it shall refer it, together with the case file and without undue delay, to the relevant court. 4.     The court that has jurisdiction to examine the appeal may suspend the enforcement of the contested decision ... 5.     Having examined the appeal, the court shall decide either to uphold the contested decision or to quash or amend it; the court’s decision may not be subject to an interlocutory appeal.” 47.     Article 102 § 10 of the Code guarantees a convicted person the right to lodge applications, complaints and requests with other relevant authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. Constitutional complaint and proceedings for compensation Relevant provisions 48.     Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed has the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations, as specified in the Constitution.” Article 190 of the Constitution, in so far as relevant, provides as follows: “1.     Judgments of the Constitutional Court shall be universally binding and final. 2.     Judgments of the Constitutional Court ... shall be published without delay. 3.     A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date in respect of the end of the [period during which a normative act will have] binding force. Such a time-limit may not exceed eighteen months in respect of a statute or twelve months in respect of any other normative act ... 4.     A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for reopening the proceedings [in question], or for quashing the decision ... in a manner and in accordance with principles specified in provisions applicable to the proceedings in question.” 49.     Article 417 1 of the Civil Code, which entered into force on 1   September 2004 and which was amended as of 25 September 2010, regulates the State liability in tort. It reads, in its relevant parts, as follows: “1.     If damage has been caused by the enactment of a law, reparation for [that damage] may be sought after it has been established in the relevant proceedings that that statute was incompatible with the Constitution, a ratified international agreement or another statute. 2.     If damage has been caused by a binding ruling or a final decision, reparation for [that damage] may be sought after it has been established in the relevant proceedings that [the binding ruling or the final decision] were contrary to law ... This also concerns a situation in which a binding ruling or a final decision was based on a statute incompatible with the Constitution, a ratified international agreement or another statute ...” Constitutional Court’s judgments in cases SK 58/03 and SK 17/07 50.     The rulings which were relied on by the Government in their observations on the admissibility of the present case (see paragraph   71 below) may be summarised as follows. 51.     Both constitutional complaints in question were lodged by former detainees who challenged the constitutionality of Article 263 §§ 3 and 4 of the Code of Criminal Procedure regulating the statutory maximum cumulative length of detention on remand (for details, see Porowski v.   Poland , no. 34458/03, § 73, 21 March 2017). 52.     On 24 July 2006 the Constitutional Court declared Article 263 § 4 of the Code unconstitutional, holding that its imprecise and broad wording could lead to arbitrary court decisions on detention on remand (no.   SK   58/03). The Constitutional Court ruled that the provision in the part which had been declared unconstitutional was to be repealed within six months from the date of the publication of the judgment in the Journal of Laws ( Dziennik Ustaw ). On 16 February 2007 the controversial clause was reformulated in a new paragraph 4 (a) of Article 263 of the Code. 53.     On 10 June 2008 the Constitutional Court declared Article 263 § 3 of the Code, inter alia , in breach of the principle that any deprivation or restriction of liberty could only be provided by an act of law and had to be in accordance with clearly formulated and coherent legal provisions (SK   17/07). The Constitutional Court observed that a direct consequence of its ruling was the repeal of the unconstitutional law principle by virtue of the judgment itself, as from the date of its publication. It furthermore stated that the judgment in question allowed the domestic courts to start interpreting and implementing the impugned provision of the Code of Criminal Procedure in compliance with the Constitution, as indicated by the Constitutional Court. The last paragraph of the judgment contained a general clause reiterating that under Article 190 of the Constitution and other provisions, a judgment of the Constitutional Court declaring the unconstitutionality of a particular principle of law, served as a basis for the reopening of proceedings in cases in which a final and enforceable judicial or administrative decision, had been issued on the basis of the normative act declared unconstitutional. As a result of the judgment, on 12 February 2009 the impugned Article 263 of the Code was amended. Prisoner’s contact with his family 54.     Pursuant to Article 105 of the Code, prison authorities should enable a person who is serving a prison sentence to maintain his or her family ties through visits, correspondence, telephone calls, parcels and money transfers. The organisation of prisoners’ contacts with family members, including the monitoring of visits and correspondence, depends on the type of prison and the prisoner’s individual circumstances. 55.     A person who is serving a sentence in a closed-type prison is entitled to two visits per month. With the permission of the prison governor both visits may take place on the same day. Such visits, including conversations, are monitored by the prison’s administration (Article 90 §§ 6 and 7 of the Code). 56.     A person who is serving a sentence in a semi-open prison is entitled to three visits per month. With the permission of the prison governor all three visits may take place on the same day. These visits, including conversations, are monitored by the prison’s administration (Article 91 §§ 8 and 9 of the Code). 57.     A person who is serving a sentence in an open prison is entitled to an unlimited number of visits. These visits, excluding conversations, may be monitored by the prison’s administration (Article 92 §§ 10 and 11 of the same Code). 58.     Article 105 (a) of the Code provides further details on the organisation of visits, irrespective of the prison type. Visits of persons who are not members of a prisoner’s family may take place only with the permission of the prison governor. Visits from family members do not require such procedure. 59.     As a general rule, a prisoner is entitled to one sixty-minute-visit per day. A maximum of two adults are allowed to visit a prisoner at any one time. The number of minors is unlimited. However, children younger than the age of fifteen must be accompanied by an adult. Prisoners with full custody rights are also entitled to an additional visit from their children (see   also Article 87 (a) of the Code). 60.     Typically, visits must take place in a common room at an individual table and under the supervision of a prison guard. They are organised in such a way as to enable a prisoner to have direct contact with a visitor. In practice, there are four types of visits: (i)     An “open visit” ( widzenie bezdozorowe ), commonly referred to as a “visit at the table” (“ widzenie przy stoliku ”). This 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. (ii)     A “supervised visit” ( widzenie dozorowane or widzenie przy stoliku w obecności funkcjonariusza Służby Więziennej ) . This takes place in the same common room, but a prison guard is present at the table, controls the course of the visit, listens to the conversation and may restrict physical contact. His principal role usually is to ensure that the visit is not used for the purposes of achieving any unlawful aims and to prevent the transfer of any forbidden objects. (iii)     A “closed visit” (commonly referred to in Polish as widzenie przy okienku ). This takes place in a special room. A detainee is separated from his visitor by a Perspex partition and they communicate through an internal phone. (iv)     A “conjugal visit” ( widzenie małżeńskie ), also known as an “intimate visit”. This takes place without the presence of a prison guard in a private room, which may be equipped with a bed. 61.     Under Article 138 of the Code, “conjugal visits”, “open visits”, any type of additional or longer visits, as well as a short unsupervised leave from prison constitute rewards (“ nagrody ”). They are granted by a prison governor to “a prisoner who stands out because of his good behaviour” ( wyróżniającemu się dobrym zachowaniem ) or as a form of motivation aimed at improving a prisoner’s behaviour (Article   137 of the Code). Article   141 of the Code furthermore provides that rewards are also granted to prisoners as a form of “motivation” ( ulga ) if it is “particularly justified by a prisoner’s family or personal circumstances ( w wypadkach szczególnie uzasadnionych warunkami rodzinnymi lub osobistymi skazanego ). The same chapter of the Code, entitled “Rewards and Motivation” also lists, in its Article 141 (a), a short compassionate leave from prison. 62.     Articles 142 and 143 § 6 of the Code stipulate that a prisoner who is responsible for breaching the law or a prison’s internal order is liable to incur a disciplinary punishment, which may take the form of restrictions on visits. For example, a visit will be organised only in a manner which does not allow a prisoner to have direct contact with a visitor. Such restrictions are ordered by a prison governor for a maximum period of three months. 63.     On 2 July 2009 the Polish Constitutional Court ruled (no. K. 1/07) that Article 217 § 1 of the Code, in so far as it did not specify the reasons for refusing family visits to those in pre-trial detention, was 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 Convention, and Article 37 of the United Nations Convention on the Rights of the Child. It was held that the impugned provision did not indicate with sufficient clarity the limitations on a detainee’s constitutional right to protection of private and family life and did not stipulate the possibility to appeal against a prosecutor’s decision to refuse a family visit to a person in pre-trial detention. The Constitutional Court’s judgment became effective on 8 July 2009, the date of its publication in the Journal of Laws ( Dziennik Ustaw ). 64.     On 5 November 2009 Parliament adopted amendments to Article   217 of the Code. In particular, subparagraphs 1a-1f were added. Those provisions stipulate that a detainee is entitled to at least one family visit per month. In addition, they indicate specific conditions for refusing a family visit to a detainee and set out an appeal procedure against such a refusal. The amendments entered into force on 8 June 2010. RELEVANT INTERNATIONAL AND COMPARATIVE LAW MATERIALS 65.     As applicable at the relevant time, Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies), in so far as relevant, reads as follows: “Contact with the outside world ... 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 ...” 66.     The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT Standards, CPT/Inf/E (2002) 1 - Rev. 2010, in so far as relevant, read as follows: “...32. The regimes of a number of the juvenile detention centres visited by the Committee have included generalised incentive schemes, which allow juveniles to attain additional privileges in exchange for displaying approved behaviour.   It is not for the CPT to express a view on the socio-educative value of such schemes. However, it pays particularly close attention to the content of the base-level regime being offered to juveniles subject to such schemes, and to whether the manner in which they may progress (and regress) within a given scheme includes adequate safeguards against arbitrary decision-making by staff. ...” 67.     On 20 December 1996 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) presented its Report to the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 30 June to 12 July 1996 (CPT/Inf (98) 13 | Section: 41/67). This report contains the following relevant observations in respect of the contact with the outside world in prison establishments: “... 150. It is very important for prisoners to be able to maintain reasonably good contact with the outside world. Above all, prisoners must be given the means of safeguarding their relationships with their family and close friends. The continuation of such relationships is of critical importance for all the interested parties, and especially for the social rehabilitation of a prisoner. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations. 151. Prisoners were allowed two visits of one hour each per month; further, additional or extended visits could be authorised as a reward for good Behaviour. ...” On 12 July 2011 the CPT presented a similar report on the visit to Poland carried out from 26 November to 8 December 2009 (CPT/Inf (2011) 20). The CPT concluded in paragraph 136 of this report that the rules and practice applicable to family visits, correspondence and access to telephone for sentenced prisoners were on the whole adequate. The CPT also found it desirable for sentenced prisoners to be entitled to at least one visit per week. 68.     The Standard Minimum Rules For The Treatment of Prisoners Adopted by the First United Nations Congress On The Prevention of Crime And The Treatment of Offenders, held at Geneva in 1955, and approved by the Economic And Social Council By its Resolutions 663 C (Xxiv) Of 31   July 1957 And 2076 (Lxii) of 13 May 1977, read as follows, in so far as relevant: “... Privileges 70. Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every institution, in order to encourage good conduct, develop a sense of responsibility and secure the interest and co-operation of the prisoners in their treatment ....” 69.     The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) General Assembly resolution 70/175, annex, adopted on 17 December 2015, read as follows, in so far as relevant: “... Rule 58 (Contact with the outside world) 1. Prisoners shall be allowed, under necessary supervision, to communicate with their family and friends at regular intervals: (a) By corresponding in writing and using, where available, telecommunication, electronic, digital and other means; and (b) By receiving visits. 2. Where conjugal visits are allowed, this right shall be applied without discrimination, and women prisoners shall be able to exercise this right on an equal basis with men. Procedures shall be in place and premises shall be made available to ensure fair and equal access with due regard to safety and dignity. ... Rule 95 (Privileges) Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every prison, in order to encourage good conduct, develop a sense of responsibility and secure the interest and cooperation of prisoners in their treatment. ...” 70.     In the United Kingdom’s the Ministry of Justice and Her Majesty’s Prison and Probation Service issued Incentives Policy Framework of 8 July 2020. This document, in so far as relevant, read as follows: “ ... 1. Purpose 1.1 The system of privileges is a key tool for incentivising prisoners to abide by the rules and engage in the prison regime and rehabilitation, including education, work and substance misuse interventions – whilst allowing privileges to be taken away from those who behave poorly or refuse to engage. This policy sets a common framework with which local incentives policies must comply. 2. Context 2.1 The Incentives Policy Framework... allows Governors to incentivise good behaviour and tackle poor behaviour and breaches of the Prison Rules and YOI Rules, helping prisoners to make the right choices to prepare them to lead crime-free lives when they leave prison. ... Extra and Improved Visits 5.51 Prisoners on Standard, Enhanced or levels above Enhanced may receive improved visits, which could include additional visits over their statutory entitlement, visits in better surroundings, or longer visits. This would be in addition to a prisoner’s statutory entitlement...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 71.     The applicant complained that unjustified and disproportionate refusals to grant him unsupervised conjugal visits in prison had been in breach of his right to respect for his private and family life, with