CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 22 September 2017   FIRST SECTION Application no. 52641/16 K.P. against Poland lodged on 30 August 2016 STATEMENT OF FACTS The applicant, Ms K.P., is a Polish national who was born in 1984 and is presently being detained in Grudziądz. She is represented before the Court by Ms A. Żurawska, a lawyer practising in Gdańsk. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Criminal proceedings and detention In May 2012 the prosecution service began an investigation into allegations of fraud and money laundering by the A. company. The company was founded by the applicant’s husband in 2009 and offered high interest rate deposits to some 11,000 people. In 2012 it was declared bankrupt and liquidated. On 30 August 2012 the applicant’s husband, Mr M.P., was arrested and detained on remand in connection with the investigation. On 28 September 2012 the applicant was charged with several offences, related mostly to the financial management of companies where she had been president of the board. On 10 October 2012 she was ordered not to leave the country. On 15 April 2013 the Lódź Regional Prosecutor decided to supplement the charges against the applicant. She was charged with additional offences related to helping her husband set up and run A., which was a financial pyramid. In particular, the applicant was charged with signing over 2,000   individual deposit contracts for the benefit of the company. The prosecutor decided on the same day to place the applicant under arrest, which was duly carried out. On 15 April 2013 the Łódź District Court decided to detain the applicant on remand. She informed the court that she had been treated by a psychiatrist since August 2012. On 17 May 2013 the Łódź Regional Court dismissed an appeal against the decision of 15 April 2013 to detain the applicant on remand. The applicant’s detention on remand was afterwards extended at regular intervals. On 15 June 2015 the Lódź Regional Prosecutor lodged a bill of indictment against the applicant and her husband. The applicant remains detained on remand. 2.     The applicant’s child On the day of her arrest, 15 April 2013, the applicant complained about being in a vulnerable mental state. On 17 April 2013 the governor of Łódź Prison decided to grant a request from the applicant and provided for measures of enhanced protection. The governor noted that although there had been no incidents so far, the applicant’s case had nevertheless received wide media coverage and some detainees or their families could have been victims of the A. company. While in detention the applicant suffered from depression and various other ailments. She received psychological help and medication, including antidepressants. In November 2014 the applicant became pregnant while still in detention in Łódź Prison. She submitted that the father of the child was an officer at the prison who had taken advantage of her vulnerable situation. On 1 April 2015 the applicant was transported to Grudziądz Prison, which has a facility for detaining women during their pregnancy and afterwards. Children can stay at the facility with their mother until they are three years old. On 12 August 2015 the applicant gave birth to a son, J. The applicant had to undergo a caesarean section as the baby’s life was in danger. The prosecution service opened an investigation into the circumstances of the applicant’s becoming pregnant while in detention. On 16 December 2015 the Łódź District Prosecutor discontinued the investigation (2Ds   400/15). The applicant’s lawyer appealed, submitting in particular that the prosecutor had failed to carry out a DNA test to establish whether the officer named by the applicant was the father of her child. Moreover, the lawyer submitted that the officer in question had received a disciplinary punishment for “establishing illegal relations with [the applicant], trying to arrange meetings with her, made it possible to have unlimited and uncontrolled access to [the applicant] by obtaining unauthorised keys to her cell, expressed an unjustified interest in her life, failed to keep the appropriate distance from her, he had deliberately been misleading, giving false information to his superiors concerning the circumstances of [the applicant] becoming pregnant”. On 9 August 2016 the Łódź District Court (II Kp 243/16) allowed the applicant’s appeal and quashed the prosecutor’s decision. It appears that the proceedings are still ongoing. On 1 June 2016 the Gdansk District Court allowed an action brought by the applicant’s husband to deny paternity of the child. The circumstances of the birth of the child, which took place two years into her continuing detention, were not contested by the parties. The applicant agreed that her husband was not the father as he had been detained three years prior to the birth. Moreover, she named the prison officer as the father of the child. On 5 July 2016 the applicant lodged a civil claim to establish paternity of the child and to deprive the father of parental rights. The proceedings are ongoing. 3.     The applicant’s trial On 20 January 2016 the Gdansk Regional Court asked Grudziądz Prison about arrangements for the applicant’s son during her trial given that the child needed professional help and the applicant was breastfeeding him. The hearings were scheduled to take place two to three days a week between 9   a.m. and 3   p.m. On 29 January 2016 the prison governor replied to the letter, informing the court that lactating mothers could be considered by a doctor as unable to participate in proceedings. If the court agreed, it would be possible for the child to be released into the care of a family member. Leaving the child in prison would pose practical difficulties as the family wing did not have enough staff to care for a small child during a mother’s prolonged absence. In March 2016 the judge at Gdansk Regional Court obtained a personal assurance from the prison governor that childcare would be organised for the first two hearings. The trial court further undertook to make arrangements for video ‑ conferencing to allow the applicant to participate in her trial from Grudziądz Prison. The applicant repeated her requests to be present at the hearings. Moreover, she did not agree to her family taking care of her child during the hearings as he did not know anybody else because the court had refused to allow her to have family visits. On 29 February 2016 the Gdansk Regional Court again wrote to Grudziądz Prison, informing the governor that teleconference arrangements would be necessary in order to allow the applicant to take part in her trial. In any event, the prison was under a legal obligation to provide care for the applicant’s child during her absence caused by her participating at the hearings. The first hearing was held on 21 March 2016 and the applicant was present. She was also present at another hearing on 24 March 2016. The hearing started at 9 a.m. and lasted until 11.50 a.m. The trial court agreed to the press being present and to record the hearing, except for when witnesses were examined. It also laid down other guarantees and exceptions, for instance, that pictures and other personal information related to the accused and witnesses were to be withheld. During the hearing the applicant’s lawyer raised the matter of the circumstances of the applicant’s becoming pregnant and the consequences of her detention for her child. The lawyer submitted that the applicant had not received adequate protection from the prison officer’s wrongful behaviour. Moreover, she submitted that frequent and lengthy hearings caused suffering to the applicant and her child as they were separated for up to twelve hours, which happened in spite of the fact that the applicant continued to breastfeed. At another hearing on 14 April 2016 the applicant’s lawyer again raised the issue of a lack of care for the child, who was left all day in Grudziądz Prison during the hearings. The presiding judge noted that since the applicant was breastfeeding she could participate in the hearings by means of video-conferences from the prison and there had been attempts to organise it. The presiding judge dismissed a request from the applicant to finish the hearings earlier, before 1 p.m. or 3 p.m. The court considered that it would be counterproductive for organisational reasons and that the applicant’s need to care for a small child was not so exceptional as to warrant such measures. The hearing started at 9 a.m., ended at 1.20 p.m., and was adjourned to the following day. The hearing on 15 April 2015 lasted from 9 a.m. to 3 p.m. The applicant was present but her husband was absent as he had decided to waive his right to attend. The court heard further witnesses. On 26 April 2016 the applicant informed the court that a doctor considered her unfit to participate in hearings as her child had been sick. At the same time the applicant disagreed to holding hearings in her absence. On 4 and 10 May 2016 medical certificates were issued, confirming that the applicant had been sick and could not participate in hearings. On 11 May 2016 a further medical certificate confirmed that the applicant’s child had been ill, which had precluded her from participating at the hearings. The applicant was present at further hearings on 7 July and 8 July 2016. 4.     Family visits Between 11 May 2013 and June 2015 the applicant received regular visits from her mother, brother, sister-in-law and other family members. The visits were allowed by the regional prosecutor, who also agreed to extend their length. After the bill of indictment against the applicant was lodged with the Gdansk Regional Court in June 2015 all requests had to be made to that court. On 28 June 2015 the applicant’s mother requested a direct visit, without being separated by a Perspex screen. The document bears a handwritten note: “I disagree to the visit (witness to appear in court)”. It is dated 30 June 2015. On 29 June 2015 the applicant’s lawyer lodged a request with the trial court to allow the applicant’s mother to visit her in detention. The request bears a handwritten note: “I do not agree to a visit by [the applicant’s mother] as she is an important witness in the case.” The note bears an illegible signature and is dated 6 August 2015. On 29 June 2015 the applicant’s lawyer requested that the court allow the applicant’s sister-in-law to be present at the birth, provided that she arrived on time after being informed by the detention centre that labour had started. In addition, the document contained requests for the applicant to receive parcels from her family containing hygiene products for her and the baby and medication. The document bears a handwritten note stating that the court had refused the request for the sister-in-law’s attendance at the birth. The court only agreed to her receiving parcels from her family. On 6 July 2015 the Gdansk Regional Court informed the applicant’s lawyer by letter of that decision. On 29 June 2015 the applicant’s lawyer asked the court to allow direct contact with the applicant and to allow her to call him at his office. The document bears a handwritten note that the court refused the request in so far as it related to telephone calls but allowed the lawyer to meet with the applicant directly. On 6 July 2015 the Gdansk Regional Court informed the applicant’s lawyer of that decision. On 20 July 2015 the applicant’s sister-in-law asked the court to be allowed to visit the applicant, accompanied by her daughter, the applicant’s godchild. The request was refused by the judge on 21 July 2015 on the grounds that the sister-in-law was a witness in the case. On 22 July 2015 the applicant’s brother asked the court for permission to visit the applicant. The document bears a handwritten note that the request was refused on 23 July 2015. On 22 July 2015 the Gdansk Regional Court refused a request for a visit made on 10 July 2015 by the applicant’s mother. On 24 August 2015 the applicant’s mother requested that the court allow her to visit the applicant and her baby. She argued that she had already been examined in the case and had invoked her testimonial privilege, refusing to testify in the case. During the investigatory stage she had regularly visited her daughter, moreover, the applicant had just given birth to her grandchild and needed the support of her mother. The request was refused on 28   August 2015. The court considered that the circumstances of the case justified not applying the general rule that a detainee had the right to one family visit a month. The court also noted that it had intercepted an illegal note written by the applicant with “Mum” written on it, which had justified the assessment that the applicant would use the meeting with her mother to interfere with the proceedings. The applicant’s lawyer appealed against the above decision arguing that the applicant’s mother was not an important witness in the case and had previously been granted visits to the applicant. The lawyer added that basing the refusals only on the formal grounds of a person being a witness was not sufficient reason to refuse the visits. He also disagreed that the applicant’s note had been illegal as it had referred only to private matters, had been intended for consultation by the applicant’s second lawyer and had not been meant to be taken out of prison. On 16 September 2015 the Gdansk Regional Court dismissed the appeal. On 23 November 2015 the applicant’s brother informed the court that he had invoked his testimonial privilege and did not intend to testify in the case. The statement was made before a notary public. On 30 January 2015 the applicant’s mother made an identical statement before a notary public and on the same day the applicant’s lawyer asked the court for permission for the mother to visit the applicant. The lawyer repeated that the applicant’s mother had refused to testify against her at the investigative stage, which she had just reiterated. There were therefore no grounds to refuse the mother’s request to visit the applicant. Moreover, the applicant had been experiencing mental suffering given her detention, giving birth and her isolation from her family. On 23 December 2015 the court received a medical opinion which stated that the applicant had been feeling depressed and was deeply disturbed. The doctor stated that she needed antidepressants; however, she could only take them when she was no longer breastfeeding. On 7 January 2016 the applicant’s lawyer requested permission for the applicant’s mother to visit the applicant. On 18 January 2016 the lawyer repeated the request and reiterated a request to be notified of the court’s decision. On 22 January 2016 the court refused the request, but the letter contained no reasons. On 8 February 2016 the applicant’s lawyer requested that the court notify her of the decision with written reasons. The reasons were subsequently provided and stated that the applicant’s mother had been named as a witness and that she might in the future revoke her decision not to testify. The applicant’s lawyer lodged an appeal but the Gdansk Regional Court dismissed it on 12 April 2016. It is not clear whether the applicant’s family was granted permission to visit her in Grudziądz Prison. B.     Relevant domestic law and practice The relevant domestic law and practice concerning the imposition of   pre ‑ trial detention ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and rules governing other “preventive measures” ( środki zapobiegawcze ) are stated in the Court’s judgments in the cases of Gołek   v.   Poland (no.   31330/02, §§   27 ‑ 33, 25   April   2006), and Celejewski   v.   Poland (no.   17584/04, §§   22 ‑ 23, 4   August   2006). COMPLAINTS 1.     The applicant complains under Article 5 § 3 of the Convention of the unreasonable length of her detention on remand. She underlines the fact that for the first seven months after the charges were brought against her she was not detained and there had been no appearance or allegation of her tampering with the proper course of the proceedings or other unlawful actions. Therefore, the subsequent detention and its extension for over four years has not been justified by any grounds pertaining to her particular situation or behaviour. 2.     The applicant also complains in general that the facts of the case raise an issue under Article 3 of the Convention. In particular, she complains about anxiety and fear for her child, from whom she is separated during the lengthy hearings at the Gdansk Regional Court. She submits that the separation lasts up to twelve hours and has sometimes lasted three days in one week, even though she is still breastfeeding her son. The applicant submits that her situation has a negative impact on her mental and physical state. 3.     She further maintains that after her indictment she was not allowed to see her family and all requests for family visits were refused by the trial court. She was kept apart from her family during the particularly difficult period of her pregnancy, giving birth and afterwards. During that period her grandfather died, and soon after, on 18 July 2016, her brother died too. She was not able to see him for over a year before his death. The applicant submits that during her detention she did not receive adequate protection from ill-treatment, which resulted in her becoming pregnant by a prison officer. The investigation into that unlawful action is ongoing. Her continued detention on remand also causes suffering to her child. Moreover, her child has to bear negative consequences for his development of being brought up in a detention centre. He is often sick and his life will forever be marked by being born and raised in a prison.       QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? Reference is made to the conditions of her pre-natal and post-natal detention, the conditions of detention with the baby, including hygiene arrangements and care for lactating mothers, prolonged periods of separation from the child during the court hearings, and her allegations of ill-treatment by a prison officer, which resulted in her becoming pregnant while detained.   2.(a)     Did the circumstances described in question 1 give rise to a violation of the applicant’s right to respect for her private and family life, contrary to Article 8 of the Convention?   2.(b)     Has there been an interference with the applicant’s right to respect for her private and family life, within the meaning of Article   8 §   1 of the Convention, given that the applicant has been prevented from receiving visits from her mother and other relatives since June 2015? The parties are invited to indicate whether any family visits were requested in the period after June 2015 and whether those requests were granted or refused.   If so, was that interference in accordance with the law and necessary in terms of Article   8 §   2?   3.     Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?   4.     The Government are invited to submit copies of the following documents:   - decision of 16 December 2015 by the Łódź District Prosecutor (2Ds 400/15) concerning the investigation into the circumstances of the applicant becoming pregnant; - decision of 9 August 2016 by the Łódź District Court (II Kp 243/16) quashing the prosecutor’s decision and any further decisions given in that set of proceedings; -     decisions to impose a disciplinary punishment on the officer at Łódź Prison in connection with the applicant becoming pregnant.