CASE OF GRADEK v. POLAND
Violation of Art. 8
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1972 and lives in Łódź. 6. On 20 October 2004 the Łódź District Court ordered the applicant's pre-trial detention for a period of fourteen days. The court referred to the reasonable suspicion that the applicant was guilty of fraud while acting in an organised group. 7. On 6 June 2006 the applicant was arrested. On 13 June 2006 the Łódź District Court ordered his detention for a period of three months. The court held that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged (including establishing and leading an organised criminal group). Furthermore, he had confessed to the charges. The court also stressed that the detention was necessary in order to ensure the proper course of the proceedings, in particular as the applicant had been in hiding. 8. In July his detention was extended until 6 November 2006. The court repeated the reasons previously given. 9. On 14 June and 3 July 2006 the applicant's wife, M.G., asked for permission to visit her husband in prison. On 20 June and 5 July 2006 respectively, the Łódź Regional Prosecutor refused her requests. The prosecutor made handwritten notes on M.G.'s applications – “no permission” and “permission refused” respectively (“brak zgody”, “nie wyrażam zgody”). 10. On 24 July 2006 the applicant was again refused permission to be visited by his wife and children by the Piotrków Trybunalski District Court. The prosecutor made a handwritten note on the applicant's motion “permission refused” (“nie wyrażam zgody”). 11. On 24 September 2006 the applicant was visited by his daughter. 12. On 26 October 2006 the Łódź District Court extended the applicant's detention until 6 May 2007. The court held that the original reasons for his detention were still valid. The court also referred to the likelihood of a heavy sentence and the fact that the applicant had acted in a criminal group. The court further refused the applicant's request for release. 13. On 21 February 2007 the Łódź District Court refused the applicant's application for release and the replacement of detention by more lenient preventive measures. The court referred to the grounds given in previous decisions. 14. The trial began on 4 April 2007. There were sixteen other coaccused in the proceedings. The prosecutor asked the court to hear 106 witnesses. 15. At the hearing held on 29 May 2007 the applicant again asked for the preventive measure to be changed. The court refused his request and extended the detention until 31 July 2007. 16. Between 8 June 2007 and 2 May 2008 the applicant was visited by his wife on twelve occasions. 17. The applicant's detention was subsequently extended on several occasions, in particular on 23 August and 5 October 2007. 18. On 8 May 2008 the applicant was released from detention. 19. It would appear that the proceedings are pending. 20. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and the rules governing other “preventive measures” (środki 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 August 2006. 21. Article 217 § 1 of the Code of Execution of Criminal Sentences of 1997, as applicable at the material time, provided as follows: “A detainee is allowed to receive visitors, provided that he obtains permission from the authority at whose disposal he remains [investigating prosecutor at the investigative stage or from the trial court once the trial has begun]. If the detainee remains at the disposal of several authorities, it is necessary to obtain permission from all of them unless they decide otherwise.” 22. The judgment was given following a constitutional complaint lodged by the Ombudsman, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences had been 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 ECHR and Article 37 of the UN Convention of the Rights of the Child. The Constitutional Court's judgment became effective on 8 July 2009, on the date of its publication in the Journal of Laws (Dziennik Ustaw). 23. The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusal of family visits in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee's constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against the prosecutor's decision to refuse a family visit in pre-trial detention. 24. On 5 November 2009 the parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions provide in particular that a detainee is entitled to at least one family visit per month. In addition, they indicate clearly the conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments enter into force on 8 June 2010. 25. The relevant extracts from the Recommendation 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. ”