CASE OF JAREMOWICZ v. POLAND
Preliminary objection joined to merits and dismissed (victim);Violation of Art. 12;Violation of Art. 13;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
7. The applicant was born in 1973 and lives in Głogów. He is detained in Wołów Prison. 8. The facts of the case, as submitted by the applicant, may be summarised as follows. 9. Throughout 2003 the applicant was serving a sentence of imprisonment in Wrocław Prison No. 1, following his conviction for attempted burglary by the Głogów District Court on 13 February 2001. He completed the sentence on 15 January 2004 and, on an unknown later date, was transferred to Wołów Prison. 10. On 9 June 2003 the applicant asked the Governor of Wrocław Prison No. 1 for leave to have visits from a certain M.H. in prison. M.H. had been detained in the same prison from 10 July to 17 December 2002. At the relevant time, she was detained in another Wrocław Prison (at Kurkowa Street). The request was refused. 11. On 16 June 2003 the applicant asked the Wrocław Regional Court – the Penitentiary Division (Sąd Okręgowy – Wydział Penitencjarny) for leave to marry M.H in prison. On 20 June 2003 M.H. made a similar request to the Penitentiary Division of the same court, asking for leave for her and the applicant to marry in prison. Their requests were referred to the Governor of Wrocław Prison No. 1. 12. On 18 July 2003 the Governor refused both requests. The refusals were phrased in an identical way. The replies read, in so far as relevant, as follows: “Replying to your request of 16 June 2003, which was referred to me by the Penitentiary Division of the Wrocław Regional Court, I hereby inform you that I refuse to give you leave to marry M.H. on the prison premises. The question of your having visits from M.H. was already decided negatively earlier (on 10 June 2003), in connection with your request of 9 June 2003. I now maintain that earlier standpoint taken by the Governor ... . Analysing your family situation one can see that M.H. is not a member of your family or a “close person” (osoba bliska) within the meaning of Article 102 § 2 of the [Code of Execution of Criminal Sentences]. Neither you nor M.H. are able to substantiate your relationship in the period prior to her stay in [this prison] in connection with her pre-trial detention from 10 July 2002 to 17 December 2002. In view of the foregoing, I refuse your request.” 13. On 23 July 2003 the applicant unsuccessfully appealed to the Wrocław Regional Court against the refusal. 14. The applicant also complained to, and sought assistance from, the Ombudsman (Rzecznik Praw Obywatelskich). On 21 July 2003 the Ombudsman informed the Governor of Wrocław Prison of the applicant’s complaint and asked him to consider the possibility of granting him visits from his fiancée who was apparently his only close person, especially given their intention to get married and the fact that the applicant had volunteered for participation in a therapeutic rehabilitation programme based on deepening contact with close persons. On 1 August 2003 the Governor informed the Ombudsman that the principal ground for refusal to grant the applicant visits from M.H. and leave to marry her in prison was the fact that they could not prove that they had had a relationship before her detention in the same prison which “made his attempts to obtain the leave ‘premature’.” On 13 August 2003 the Ombudsman wrote back to the Governor, stating that he had reservations about the grounds for the refusal of leave to marry and asking him to conduct an enquiry into the applicant’s allegations and to reconsider the possibility of granting him visits from M.H. 15. On 9 September 2003 the prison authorities prepared a report on the enquiry which was later transmitted to the Ombudsman. The report read, in so far as relevant, read as follows “Undoubtedly, [the applicant] became illegally acquainted with M.H. during her detention on remand in this establishment (from 10 July to 17 December 2002). In his complaint, [the applicant] states that ‘I [had] got to know a girl who stayed in this remand centre more than a year ago’. It is difficult to call “fiancées” persons who get to know each other in this manner (kites, writing on their hands – often without seeing each other). This contact, which was made in prison (certainly illegally) and which by the nature of things is very superficial, is not a worthy contact from the point of view of the applicant’s rehabilitation. For that reason, the applicant’s requests [for leave to marry M.H. in prison] had received negative opinions from his supervising officer [wychowawca].” 16. On 25 September 2003 the Ombudsman replied to the applicant’s complaint. The letter reads, in so far as relevant, as follows: “I would like to inform you that, as unequivocally emerges from the findings relating to your wish to get married to M.H. in prison, your relationship with Ms M[...] H [...] developed in an illegal manner during her detention on remand in the prison in which you remain. It was precisely your illegal relationship maintained by means of, among other things, sending kites (za pomocą grypsów) in prison which, in the opinion of the prison administration, was decisive [for considering] your union unworthy from the point of view of your social rehabilitation. At the same time, I would like to add that, as emerges from the information I have received, this matter is at present being examined by the Wrocław Regional Court, from which you should get a reply. In view of the foregoing, acting upon the Ombudsman’s authorisation, I consider the matter as clarified in its entirety and I do not see any indication of your rights having been infringed by the [prison] administration.” 17. Meanwhile, on 24 September 2003 the applicant had complained to the Minister of Justice about the refusal to give him leave to contract a marriage in prison. The complaint was referred to the Wrocław Regional Director of the Prison Service (Dyrektor Okręgowy Służby Więziennej) who, on 17 October 2003, addressed the matter as follows: “In reply to your complaint of 24/09/2003 addressed to the Ministry of Justice and concerning the decision of the Governor of Wrocław Prison No. 1 refusing to grant you leave to contract a marriage on the prison premises, I would like to inform you that, according to the rules on competence [in such matters], your complaints have been examined by the Wrocław Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej). Following an enquiry it has been ascertained that, indeed, the administration of Wrocław Prison No. 1 did not give you leave to contract a marriage on the premises of the penitentiary establishment. You were notified of the reasons for it by, inter alia, the letter of 18 July 2003 .... At the same time, I inform you that this decision did not infringe the applicable legal provisions. No provision obliges a governor of a penitentiary establishment to grant a detained person leave to contract a marriage in the establishment run by him. In view of the foregoing, I do not see any grounds for upholding your complaint.” 18. On 2 October 2003 the Wrocław Regional Court-Penitentiary Divisions examined the applicant’s appeal of 23 July 2003 but did not take any decision on the matter. 19. On an unspecified date in November 2003 the Deputy Governor of the Wrocław Prison issued a certificate addressed to the Wrocław Civil Status Office (Urząd Stanu Cywilnego) confirming that the applicant had obtained leave to marry M.H. in prison. 20. The Government submitted that, according to information supplied by the Wrocław Prison’s authorities, the applicant did not marry M.H. in prison. 21. Article 102 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) lists the rights of a convicted person. It reads, in so far as relevant, as follows: “A convicted person has, in particular, the following rights: ... 2) to maintain relationships (więzi) with the family and other close persons; ... 10) to make applications, complaints and requests to an authority competent to deal with the subject-matter and to present them, in the absences of third parties, to the prison administration, heads of organisational units of the Prison Service, penitentiary judge, prosecutor and the Ombudsman.” 22. Detailed rules on the procedure referred to in paragraph 10 is laid down in the Minister of Justice’s Ordinance of 13 August 2003 on dealing with applications, complaints and requests by persons detained in prisons and remand centres (Rozporządzenie Ministra Sprawiedliwości w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych), 23. Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a governor of a prison or a remand centre, a regional director or the Director General of the Prison Service or a court probation officer. Applications relating to the execution of prison sentences are examined by a competent penitentiary court. 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 service of the decision; the decision [in question] shall be pronounced or served with a reasoned opinion and an instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority which 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 competent court. 4. The Court competent for examining 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 vary it; the court’s decision shall not be subject to an interlocutory appeal.” 24. Under the provisions of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) the registrar of the relevant Civil Status Office (Kierownik Urzędu Stanu Cywilnego) may refuse to solemnise marriage only if there exists any statutory obstacle rendering the marriage null and void, such as age, legal incapacity, mental disorder, bigamy, close affinity of the parties or adoptive relationship (Articles 5, 10 11, 12, 13, 14 and 15). In case of doubt, the registrar should ask the competent court to rule on whether the marriage can be contracted (Article 5). 25. Pursuant to Article 4, a marriage before the registrar may not be concluded before 1 month after the persons concerned have made a written declaration that they have no knowledge of any statutory obstacle to the solemnisation of their marriage. At their request and for important reasons, the registrar may solemnise the marriage before the expiry of that term. 26. Article 6 of the Family and Custody Code lays down the rules for a proxy marriage. Contracting a marriage through a representative is subject to leave that can be granted by a family court in the non-contentious procedure. It depends on two principal conditions. First, the court must be satisfied that there exist “important reasons” justifying the departure from the normal procedure. Secondly, the applicant’s signature on a proxy must, on pain of being null and void, be made in the presence of a notary, who confirms its authenticity by a special declaration. The Supreme Court’s case-law and practice of the domestic courts in respect of a proxy marriage is very scant. A few existing rulings of the Supreme Court relate to applications for leave to contract proxy marriages with Polish women made by foreign persons and date back to the 1970s. 27. The Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of the enforcement of custodial sentences that are relevant in the context of the present case. Rule 3 reads: “Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.” Rule 24 reads, in so far as relevant: “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. 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 of contact. ... 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. Rule 70 reads, in so far as relevant: “1. Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or any other competent authority. ... 3. If the request is denied or a complaint rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.”