CASE OF FERLA v. POLAND
Violation of Art. 8;Non-pecuniary damage - award
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1966 and lives in Fałkowo, Poland. 6. On 24 December 1998 the applicant and his wife attended a dinner organised by their neighbours. An argument broke out between the applicant and his neighbour. They left the room and began struggling in the kitchen. Subsequently, they stopped the tussle and the applicant returned home. Apparently, a few minutes later, when the neighbour was on his way to a church, the applicant assaulted him and beat him unconscious. 7. On 25 December 1998 the applicant was arrested on charges of aggravated assault and placed in the Gdańsk District Detention Centre (Rejonowy Areszt Śledczy). 8. On the same date the applicant’s wife gave a statement to the police. She stated that she had attended the dinner, but she had not known anything about the struggle in which her husband had taken part, as she had stayed in the room with the other women. She had found out about it only after her husband had been arrested by the police. 9. On 26 December 1998 the applicant’s wife confirmed her previous statement. 10. The applicant’s wife applied for permission to visit the applicant in prison. On an unknown date the Sopot District Prosecutor (Prokurator Rejonowy) refused her request. 11. On 4 February 1999 the applicant applied for permission to be visited by his wife. On 19 February 1999 the Sopot District Prosecutor refused this request. The prosecutor held that on account of the fact that the applicant’s wife had been called as a witness by the prosecution no such permission could be granted. 12. Meanwhile, on 11 February 1999 the applicant’s wife again gave a statement to the police. Having been duly informed of her rights, she refused to testify against her husband in the case. 13. On 18 March 1999 the prosecutor allowed the applicant’s wife to visit the applicant in prison. 14. On 23 March 1999 the applicant’s wife visited him in prison. However, they could communicate during the visit only by internal phone and she was not allowed to bring their four-year old son. 15. On 27 May 1999 the applicant requested the Gdańsk District Court to allow his wife to visit him. On 30 May 1999 he lodged a complaint with the District Court against the decision to refuse his wife permission to visit him. 16. On 23 June 1999 the Gdańsk Regional Court (Sąd Okręgowy) informed the applicant that he should not be allowed to have any personal contact with his wife as she was a witness in the proceedings against him. However, the court stressed that the applicant could be visited by adults who were not witnesses in his case and by his four-year old son. The court further noted that the next hearing was set for 16 August 1999. If the applicant’s wife testified on that date she would be allowed to visit him in prison. 17. On 29 June 1999 the applicant asked the Regional Court to indicate a person who could accompany his son to the detention centre. The court in reply informed the applicant that he should indicate such a person. As the applicant failed to do so, his son did not visit him in prison. 18. On 8 July 1999 the President of the Regional Court informed the applicant that his wife was not allowed to visit him in the detention centre since she had testified twice in the investigative stage of the proceedings and those testimonies were relevant to the offences with which the applicant had been charged. The date of the hearing in the applicant’s case had been set for 20 May 1999 and his wife ought to have testified on that date. However, a request by the applicant’s lawyer for an expert psychiatrist’s report caused an adjournment of the trial until 16 August 1999. The president further noted that until the applicant’s wife testified in the trial the court had the right to refuse her requests to visit the applicant, in order to secure the proper conduct of the proceedings. 19. The applicant’s wife failed to appear at the hearing held on 16 August 1999 before the Gdańsk Regional Court and in consequence she was fined. 20. The applicant’s wife subsequently applied again for permission to visit him in prison. 21. During the hearing held on 5 November 1999 the applicant’s wife refused to testify in the proceedings against her husband. 22. The applicant submitted that his wife was allowed to visit him in prison before the end of November 1999. 23. On 10 December 1999 the applicant was convicted as charged and sentenced to four years’ imprisonment. The court extended the applicant’s detention until the judgment became final. 24. On 24 March 2000 the applicant and his wife were deprived of their parental rights in respect of their son S. F. The child was placed in a care institution. The court held that the applicant was in prison and the mother was a regular abuser of alcohol. The court further pointed out that on 19 March 2000 the mother had left her son unattended in the street, which had considerably endangered her child’s security. 25. On 26 April 2000 the Court of Appeal upheld the applicant’s conviction. 26. Pursuant to Article 217 of the Code of Execution of Criminal Sentences of 1997 a detainee is allowed to receive visitors, provided that he obtained permission from the investigating prosecutor (at the investigative stage) or from the trial court (once the trial has begun). 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. ”