FIRST SECTION
DECISION
Application no. 19228/07
Norbert STĘPIEŃ
against Poland
The European Court of Human Rights (First Section), sitting on 6 February 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 27 April 2007,
Having regard to the Government’s unilateral declaration in respect of the complaints under Article 5 §§ 1 and 3 of the Convention,
Having regard to the observations submitted by the applicant and the observations in reply submitted by the respondent Government and concerning the complaints beyond the scope of the unilateral declaration,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Norbert Stępień, is a Polish national who was born in 1974 and lives in Sosnowiec. His application was lodged on 27 April 2007. The applicant was represented by Ms J. Metelska, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s detention on remand and the criminal proceedings against him
4. On 1 April 2003 the applicant was arrested on suspicion of obtaining loans from various businesses under false pretences.
5. On 3 April 2003 he was remanded in custody by the Sosnowiec District Court (Sąd Rejonowy – “the District Court”), on reasonable suspicion of being a member of an organised criminal group.
6. The court justified the preventive measure by the existence of strong evidence against the applicant. In this connection, it referred to the testimony of a certain witness, A.D., and that of one of the applicant’s co‑suspects. The court also took into consideration the fact that the applicant had been recognised as a member of a criminal group during an identification parade. Moreover, it held that keeping the applicant in detention was justified by the risk that he might attempt to obstruct the proceedings and induce witnesses to give false testimony – the criminal organisation of which he was allegedly part had already attempted to coerce witnesses G.W. and A.D. Lastly, the court referred to the multi-layered nature of the case and the need to obtain further evidence.
7. The applicant’s detention was subsequently extended by decisions of the District Court of 25 June and 26 September 2003, which were upheld by the Katowice Regional Court (Sąd Okręgowy – “the Regional Court”) on 3 September and 5 November 2003 respectively. A further decision was taken on 23 December 2003, which was not appealed against.
8. In their decisions, the courts repeatedly referred to the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences, the complexity and number of persons involved in the case, the fact that many of the applicant’s co‑suspects and the alleged members of the organised criminal group had not yet been arrested and, lastly, the risk that the applicant would obstruct the proceedings, for example by inducing witnesses to give false testimony.
9. On 22 March 2004 the prosecutor lodged an indictment with the District Court against the applicant and his eight co-accused. The applicant was charged with the following offences: membership of an organised criminal group acting with the aim of obtaining loans under false pretences for the purchase of goods such as household appliances; fraud; obtaining and attempting to obtain several loans under false pretences; adverse disposal of a mobile telephone; and illegal possession of tear gas bullets.
10. Following the indictment, the applicant’s detention on remand was further extended by decisions of the District Court of 26 March and 22 September 2004. The earlier decision was upheld by the Regional Court on 14 April 2004.
11. On 16 and 27 August, 20 September, 29 November and 13 December 2004 the District Court rejected the applicant’s appeals for the preventive measure to be lifted.
12. When the length of the applicant’s detention on remand reached the statutory two-year time limit laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the measure was extended by decisions of the Katowice Court of Appeal (Sąd Apelacyjny – “the Court of Appeal”) of 23 March and 28 September 2005. By virtue of the later decision the applicant’s detention on remand was to be extended until 1 January 2006.
13. The Court of Appeal held that the original reasons for the applicant’s detention were still valid and the trial could not be completed because of circumstances beyond the authorities’ control. Moreover, the appellate court referred to the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences and the fact that the punishment which the applicant faced was severe.
14. On 29 December 2005 the District Court convicted the applicant as charged and sentenced him to three years and ten months’ imprisonment.
15. The applicant appealed the same day. The prosecutor did not appeal against the first-instance judgment.
16. Pending the appellate proceedings the applicant’s detention was extended by several decisions of the Court of Appeal, including on 21 June 2006, when the measure was extended until 1 October 2006.
17. On 19 September 2006 the Regional Court quashed the first-instance judgment and remitted the case.
18. On 26 September and 27 November 2006 the Regional Court further extended the applicant’s detention on remand. By virtue of the later decision the measure was to remain in place until 1 March 2007.
19. On 8 February 2007 the applicant embarked on a hunger strike in protest against his detention being extended beyond the period equal to the sentence which he had been given by the first-instance court.
20. It appears that on 13 February 2007 he applied to the District Court for the preventive measure to be lifted. A similar application was also lodged by the applicant’s lawyer.
21. By a letter of 16 February 2007 the Deputy President of the District Court informed the applicant that his application for release had been transferred to the competent judge and would be examined after the return of the case file from the Regional Court.
22. On 19 February 2007 the District Court extended the applicant’s detention until 1 June 2007 without addressing the above-mentioned applications for release. The court reiterated the grounds for the applicant’s detention which had previously been given.
23. The applicant’s lawyer lodged an interlocutory appeal against that decision. He argued that as of 31 January 2007 the applicant’s detention had lasted a period equal to the prison sentence which had been given by the first-instance court. Under the applicable law (in particular Article 443 of the Code of Criminal Procedure), an accused, if convicted after the examination of his case de novo, could not be sentenced to a term of imprisonment exceeding the term prescribed in the judgment which had been quashed on appeal.
24. On 27 February 2007 the Regional Court lifted the applicant’s preventive measure and ordered his immediate release. The court fully upheld the arguments of the applicant’s lawyers and confirmed that in the circumstances of the case, by 31 January 2007 the applicant had completed the sentence imposed on him by the first-instance judgment of 29 December 2005, which had later been quashed. Under the applicable law, the applicant could not be given a longer prison sentence even if he had been convicted in the de novo proceedings pending at the time.
25. A letter issued by the Ministry of Justice on 6 March 2007 officially declared that the applicant’s detention after 31 January 2007 had been unjustified.
26. As a result of certain procedural amendments, on 27 July 2007 the District Court relinquished its jurisdiction over the case to the Regional Court.
27. Following further amendments to the law, the Regional Court lost its competence to deal with the case.
28. On 23 June 2014 the Dąbrowa Górnicza District Court convicted the applicant of several of the offences charged and imposed on him a cumulative sentence of two years and six months’ imprisonment.
29. On 5 December 2014 the Regional Court partly quashed his conviction of several of the offences and remitted that part of the case to the first-instance court. It also quashed the applicant’s cumulative sentence, partly upheld his first-instance conviction of several offences and imposed a sentence of two years’ imprisonment. The time which the applicant had spent in detention on remand was credited towards his sentence.
30. The proceedings concerning the part of the judgment quashed are currently pending before the Regional Court after the applicant appealed against the judgment of the Będzin District Court of 29 September 2017.
2. Actions for compensation for manifestly unlawful detention on remand
31. On 27 November 2007 the applicant brought a claim for compensation for his unlawful detention in the above-mentioned case. On 28 January 2008 the Regional Court discontinued the proceedings, considering the applicant’s action premature in view of the fact that the final decision ending his criminal case had not yet been delivered as the case, after a successful appeal, was pending again before the first-instance court.
32. On 23 June 2015 the applicant brought a claim under Article 552 of the Code of Criminal Procedure, seeking compensation of 290,000 Polish zlotys (PLN – approximately 72,500 euros) for his unlawful detention from 2 April 2005 until 27 February 2007.
33. On 23 July 2015 the Regional Court decided that the case, because of its complexity, should be examined by three professional judges and that the proceedings should be stayed until the end of the criminal proceedings against the applicant pending before the Będzin District Court.
34. The court observed that various conflicting lines of authority existed under Polish law as regards the relationship between the right to compensation for unlawful detention and the right to have the period of detention on remand credited towards the prison sentence. The approach which the court favoured was to consider these rights as alternative forms of redress which were mutually exclusive. It was therefore crucial, in the court’s view, to await the outcome of the applicant’s criminal case in order to later determine whether there was any outstanding portion of his allegedly unlawful detention on remand which warranted compensation.
3. The applicant’s contact with his child
35. The applicant has a son who was born in 2001.
36. Six months into his detention, on 24 October 2003, the Regional Court pronounced his divorce from his wife E.S., suspended his parental authority and awarded E.S. full custody of the child. The judgment was silent as to his contact rights. His lawyer missed the deadline for filing an appeal and the judgment became final on 21 March 2005.
37. On 25 July 2006 the applicant was informed that his ex-wife had passed away.
38. On 26 July 2006 he applied for release on the grounds that following the death of his ex-wife, he had to take care of his child.
39. On 27 July 2006 a judge of the Regional Court informed the applicant that he did not consider it necessary to continue his detention in Sosnowiec Remand Centre until the termination of the appellate proceedings.
40. On 23 August 2006 the Regional Court rejected an application by the applicant for release. On the basis of a social enquiry report, the court established that his son was in the permanent and very good care of his maternal grandparents. The court found that the child was “very close-knit with his grandparents” and had never had such a close relationship with the applicant. It was concluded that the applicant’s continued detention did not have any particularly harsh consequences for his child.
41. On 14 September 2006 the Sosnowiec District Court decided to appoint the child’s maternal grandparents as a foster family. The applicant did not appeal against that decision.
42. The applicant submitted that because of his detention he had not been able to exercise his custody or contact rights over his child. His son never visited him in the remand centre.
43. That limitation, in the applicant’s view, stemmed from the fact that under the applicable law detainees’ children under the age of 15 could only be granted visits when accompanied by an adult. In addition, a request for such a visit had to be filed by the child’s guardian, for example, a custodial parent. The applicant was not therefore authorised to and did not apply to receive visits from his son during his detention. Likewise, his relatives did not take any formal steps to ensure a visit with the child because, as the applicant submits, they were not the child’s guardians and hence were not entitled to do so.
44. Being in conflict with the applicant, the adult guardians of his son (the mother and, after her death, the maternal grandparents) did not seek to visit the applicant in the remand centre.
45. A document submitted by the Government shows that between January and August 2006 the applicant had the status of a convicted prisoner and, in the remaining time, that of a remand detainee.
46. The applicant’s mother and sister visited the applicant in the remand centre ninety-three times (on average twice a month), including fourteen times prior to 24 October 2003, when the applicant’s parental rights were suspended by a family court.
47. The applicant submitted that prior to his arrest he had lived with his son and had had a very close relationship with him. That relationship had been broken because of the lack of visits during his detention.
48. It appears that after his release from the remand centre, he resumed contact with his son.
49. On 20 August 2007 the District Court reinstated the applicant’s parental authority. It was decided, however, that his rights were to be limited in that the custody over the child remained with the maternal grandparents as a foster family. The decision in question was silent as to his contact rights. He did not appeal against that decision.
B. Relevant domestic law and practice
1. Provisions governing detention on remand
50. 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).
Moreover, Article 443 of the Code of Criminal Procedure (Kodeks Postępowania Karnego) provides that where a case is remitted for a de novo examination, a longer sentence than the one quashed may be imposed only if the first‑instance judgment has been appealed against by the prosecutor.
2. Provisions on State liability for unlawful detention
51. Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him.
52. Article 552 provides, in so far as relevant:
“1. An accused who, as a result of the reopening of proceedings or an appeal on points of law, has been acquitted or re-sentenced under a more lenient provision, shall be entitled to receive from the State Treasury compensation for the pecuniary and non-pecuniary damage which he has suffered as a result of having served all or part of the sentence unjustifiably imposed on him.
2. The provisions of paragraph 1 shall also apply if, after the sentencing judgment has been reversed or declared null and void, the proceedings have been discontinued for material circumstances not duly considered in prior proceedings.
3. A right to compensation for pecuniary and non-pecuniary damage shall also arise if a preventive measure has been applied under the conditions specified in paragraphs 1 and 2.
4. A right to compensation for pecuniary and non-pecuniary damage shall also arise in the event of undoubtedly unjustified (niewątpliwie niesłuszne) pre‑trial detention or arrest.”
53. In the light of well-established domestic practice, the requirements for compensation for manifestly unlawful detention on remand under Article 552 § 4 shall comply cumulatively with the requirements stemming from paragraph 1 of that provision (see, in particular, the Supreme Court’s resolution no. IKZP 27/99 of 15 September 1999 and decision no. WZ 26/01 of 28 June 2001).
54. Under Article 555, an application for compensation for manifestly unjustified detention on remand has to be lodged within one year of the date on which the decision terminating the criminal proceedings in question becomes final.
55. It follows that proceedings related to an application under Article 552 § 4 are subsequent to and dependent on the outcome of the original criminal proceedings in which the detention was ordered. A claimant may only retrospectively seek a ruling as to whether his detention was in compliance with the applicable procedure or justified. He cannot, however, test the lawfulness of his continued detention on remand and obtain release. Moreover, if compensation is sought for manifestly wrongful detention on remand, this remedy is only available if the claimant has been acquitted or the relevant criminal investigation against him or his criminal court proceedings have been discontinued.
56. Admittedly, allegations that detention on remand is manifestly wrongful because of procedural breaches in imposing the measure are examined not in the light of the ultimate outcome of the claimant’s criminal case, but in view of the circumstances existing at the time when the measure was imposed, that is to say when the decision was issued in breach of procedure. On the other hand, the State will not be held liable for manifestly wrongful detention if the pecuniary or non-pecuniary damage suffered by the claimant had been completely redressed, for example, by means of deducting the length of the claimant’s detention on remand from the sentence imposed by the court in the related or other criminal trial (see the Supreme Court’s resolution no. IKZP 27/99, cited above; the Supreme Court’s decision of 20 September 2007 given by seven judges (IKZP28/7, OSNKW 2007/10/07); the Supreme Court’s decision of 15 November 2007 (IV KK 82/07, OSNwSK 2007/1/2610), and the Supreme Court’s judgment of 2 April 2001 (V KKN 481/99, OSNKW 2001, nr 7-8, poz. 66).
57. The above lex specialis remedy excludes the applicability of the provisions of civil law and general principles of the State’s liability in tort as regulated in Article 417 et seq. of the Civil Code unless it is for the purpose of seeking redress for further damage which occurred as an indirect result of the wrongful detention on remand (see the Supreme Court’s decision of 7 February 2007 (V KK 61/06, OSNKW 207, Nr 3, poz. 28) and the Rzeszów Court of Appeal’s judgment of 13 March 2014 (II AKa 16/14); compare with the Wrocław Regional Court’s judgment of 23 April 2013 (I C 40/12)).
Article 417 § 1, which lays down a general rule, reads as follows:
“The State Treasury, municipality or another legal person wielding public power by virtue of the law shall be liable for damage caused by an unlawful act or omission in the exercise of that power.”
Article 4171 § 3 provides the following:
“If damage has been caused by failure to give a ruling [orzeczenie] or decision [decyzja] where there is a statutory duty to do so, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless other specific provisions provide otherwise.”
3. Detainees’ contact with family
58. Persons deprived of their liberty have a right to maintain family ties (Articles 102, 209 and 214 of the Code of Execution of Criminal Sentences, Kodeks Karny Wykonawczy) and the authorities are under duty to ensure the preservation of such ties, among others, by means of visits in detention facilities (Article 105).
59. Under the law as applicable at the relevant time, convicted persons serving their sentences in a closed-type prison were entitled to two one-hour visits per month. Such visits were granted and scheduled by the prison governor upon a simple signing up on a visitor’s list (Article 90 § 6). Those in detention on remand were entitled to receive visitors (with no limit on the frequency of the visits), provided that they had obtained a visitor permit (zezwolenie na widzenie) from the authority in whose control they remained (Article 217 § 1).
60. As regards convicted prisoners who have parental authority over children under the age of fifteen, the authorities shall take into consideration the need of initiating, preserving and strengthening their emotional bonds with their children (Article 87 § 1 (a)). Such persons are entitled to an additional visit with the child (Article 105a § 3). At the relevant time, minors under fifteen could make such visits only if accompanied by an adult (Article 105a § 2). In practice, in the event that a minor sought a visit without an adult, the prison administration had discretion to allow the visit to go ahead in the presence of a designated prison officer.
61. The situation of persons detained on remand who had parental authority over minors was not initially regulated by any separate provision. By virtue of an amendment which entered into force on 8 June 2010, minors may be granted visitor permits upon a request filed by their legal guardian (Article 217 § 1 (e)). Moreover, minors under the age of fifteen may visit a detained person only if accompanied by the guardian remaining at liberty or an adult relative. If the accompanying adult has not been granted his or her own visitor permit or does not wish to attend, the visit shall take place in the presence of a designated remand centre officer (Article 217 § 1 (f) ).
62. Under Article 223, a detainee, following his or her conviction by a first-instance court, may be transferred to a prison and may choose to obtain the status of a convicted prisoner or that of a remand detainee.
4. Parental authority and contact rights
63. Article 58 § 1 of the Family and Guardianship Code (Kodeks Rodzinny i Opiekuńczy) provides:
“In a decision on divorce, the court is competent to issue orders concerning the manner in which the care of the parties’ minor children should be carried out .... The court may grant custody rights to one parent and limit the custody rights of the other.”
64. Moreover, under Article 1132 § 1 of the same Code, if the welfare of the child so requires, the guardianship court shall limit contact between [either or both] parents and the child. Article 1134 of the same Code read as follows:
“When deciding on the matter of contact with the child, the guardianship court may compel the parents to undertake a specific course of action; in particular, [it may] refer them to institutions or specialists providing family therapy, counselling or other appropriate assistance to the family, at the same time indicating the manner of overseeing compliance with the orders issued.”
In accordance with Article 1135 of the Family and Guardianship Code and Article 557 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) the guardianship court can change its decision if the best interests of the child so require.
COMPLAINTS
65. The applicant made the following complaints:
(i) under Article 5 § 1 of the Convention that his detention from 31 January until 27 February 2007 had been arbitrary and unlawful as by that time it had exceeded the term of the prison sentence which had been imposed on him by the Sosnowiec District Court on 29 December 2005;
(ii) under Article 5 § 3 of the Convention of the unreasonable length of his detention on remand;
(iii) under Article 5 § 5 of the Convention that he had not had an effective and enforceable right to compensation for detention on remand from 31 January until 27 February 2007 because the criminal proceedings against him had not yet terminated;
(iv) under Article 8 of the Convention of an unjustified interference with his family life in that he had not been authorised to have contact with his child for almost four years during his detention;
(v) under Article 5 § 4 of the Convention that the proceedings for review of the lawfulness of his detention on remand from 31 January until 27 February 2007 had been marked by unreasonable delays; and
(vi) under Article 6 § 2 of the Convention of a breach of the principle of presumption of innocence in that, by extending his detention on remand beyond 31 January 2007 and not giving him an opportunity to seek compensation, the domestic courts and authorities had implied that he was guilty of the offences with which he had been charged.
THE LAW
A. Alleged violation of Article 5 §§ 1 and 3 of the Convention
66. The applicant complained that his detention from 31 January until 27 February 2007 had been arbitrary and unlawful, in breach of Article 5 § 1 of the Convention, as by that time it had exceeded the term of the prison sentence which had been imposed on him by the District Court on 29 December 2005. The applicant submitted that in the light of the applicable domestic law, an accused, if convicted after the examination of his case de novo, could not be sentenced to a term of imprisonment exceeding the term prescribed in the judgment which had been quashed on appeal lodged by a defendant. In consequence, such an accused had to be released from detention on remand before the preventive measure went beyond his original prison sentence.
67. Article 5 § 1, in its relevant part, reads:
“ 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;...”
68. The applicant also complained under Article 5 § 3 of the Convention of the unreasonable length of his detention on remand. The relevant part of this provision reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
69. By a letter dated 20 January 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
70. The declaration provided as follows:
“1. The Government thereby wish to express – by way of the unilateral declaration – their acknowledgment of the fact that the applicant’s pre-trial detention was not compatible with a “reasonable time” requirement within the meaning of Article 5 § 3 of the Convention and that the applicant was deprived of his liberty in breach of Article 5 § 1 of the Convention in the period form 31 January until 27 February 2007.
2. In these circumstances, and having particular regard to violations of Article 5 §§ 1 and 3 of the Convention, the Government declare that the offer to pay the applicant the equivalent of the amount EUR 5,000 which they consider to be reasonable in the light of the Court’s case-law (...) The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, as a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points...”
71. In a letter of 4 March 2014 the applicant’s lawyer objected to the striking out of this part of the application. She argued that the amount of money mentioned in the Government’s declaration was unacceptably low. She also expressed concerns about the Court’s common practice of accepting unilateral declarations. To this end, she made reference to the submissions of the Helsinki Foundation for Human Rights, a third party intervener in the recent Grand Chamber case of Jeronovičs v. Latvia ([GC], no. 44898/10, §§ 93‑102, ECHR 2016).
72. The Court points out that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
73. In certain circumstances, the Court may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
74. As is clear from the structure of Article 37 of the Convention and from its case-law with regard to unilateral declarations, the following considerations underlie a decision by the Court to accept a unilateral declaration and to strike an application (or part thereof) out of its list of cases: the nature of the complaints made; the nature and scope of any measures taken by the respondent Government in the context of the execution of judgments delivered by the Court in any such previous cases and the impact of these measures on the case at issue; the nature of the concessions contained in the unilateral declaration, in particular the acknowledgment of a violation of the Convention and the payment of adequate compensation for that violation; the existence of relevant or “clear and extensive” case-law in that respect, in other words, whether the issues raised are comparable to issues already determined by the Court in previous cases; and the manner in which the Government intend to provide redress to the applicant and whether this makes it possible to eliminate the effects of an alleged violation (see Jeronovičs, cited above, § 64).
75. The Court examined the declaration in the light of the principles emerging from its case-law and the above-mentioned elements, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); see also WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
76. The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints of a violation of Article 5 § 1 on account of the unlawfulness of detention on remand (see, for example, Porowski v. Poland, no. 34458/03, 21 March 2017; Mamełka v. Poland, no. 16761/07, 17 April 2012; Ladent v. Poland, no. 11036/03, 18 March 2008; and Dombek v. Poland, no. 75107/01, 12 December 2006). The Court has also addressed, in numerous cases, its practice concerning complaints under Article 5 § 3 of the Convention about the length of pre‑trial detention (see Kauczor v. Poland, no. 45219/06, 3 February 2009, with further references).
77. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases (see, mutatis mutandis, Kruczek v. Poland (dec.), no. 61041/10, 6 October 2015; Lopyta v. Poland (dec.), 28113, 15 January 2008; Chudy-Sternik v. Poland and Spain (dec.), no. 7063/10, 15 January 2013; and Zapal v. Poland (dec.), no. 57694/08, 13 September 2011) – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
78. The Court further notes that this decision constitutes a final resolution of this part of the application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of his complaints of the unlawfulness and unreasonable length of his detention on remand.
79. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
80. Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
Accordingly, this part of the application should be struck out of the list.
B. Alleged violation of Article 5 § 5 of the Convention
81. The applicant complained that he had not had an enforceable right to compensation for his unlawful detention, contrary to Articles 5 § 5 and 13 of the Convention.
82. The Court considers that this complaint falls to be examined under Article 5 § 5, which reads as follows:
“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
83. On 20 January 2014 the Government raised an objection on the grounds of non-exhaustion of domestic remedies, arguing that the applicant had not had recourse to any of the effective remedies under Article 417 of the Civil Code or under Article 552 of the Code of Criminal Procedure.
84. The applicant argued that no effective remedy had been available to him. In particular, the law excluded the applicability of the impugned civil remedy to cases of undoubtedly unjustified detention on remand. Moreover, its availability and effectiveness was not supported by any judicial practice. The remedy provided under Article 552 of the Code of Criminal Procedure had been unavailable to the applicant because the criminal proceedings against him had not yet been terminated with a final and binding judgment.
85. The Court has already observed that, at the material time, the effectiveness of the civil remedy in question was not confirmed by any evidence of a sufficiently well-established judicial practice (see Mamełka v. Poland, no. 16761/07, § 23, 17 April 2012).
86. On the other hand, the applicant’s claim under Article 552 of the Code of Criminal Procedure, which he lodged on 23 June 2015, seeking compensation for his unlawful detention from 2 April 2005 until 27 February 2007, is currently pending, even if it has recently been stayed sine die (see paragraph 33 above).
87. Following its ruling in the similar case of Koblański v. Poland (no. 59445/00, §§ 28 and 29, 28 September 2004), the Court considers the complaint under Article 5 § 5 of the Convention premature.
88. Consequently, this part of the application is inadmissible for non‑exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.
C. Alleged violation of Article 8 of the Convention
89. The applicant also complained under Article 8 of the Convention of an unjustified interference with his family life in that he had not been authorised to have contact with his child for almost four years during his detention.
“1. Everyone has the right to respect for his ... family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
90. The applicant submitted that under the applicable law, a person deprived of his or her liberty could not secure a visit from his or her child in the detention facility without a request from the child’s adult guardian. Because, in the applicant’s case, his child’s guardians (the mother and later, the maternal grandparents as court-appointed guardians) had been in conflict with him, they had not applied for visitor permits, and he had not seen his child for nearly four years. In the applicant’s view, the competent authorities had not taken all necessary steps to ensure that a family bond between him and his son was developed and maintained during his detention, having left the matter to the discretion of the child’s guardians.
91. The Government argued that this complaint was manifestly ill‑founded because a legal framework allowing detainees to secure visits from their children had been in place. The applicant’s inability to have contact with his son had been because of a lack of initiative on the part of his family members who had not applied for any such visits.
92. The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, among many other authorities, Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015). More particularly, on the issue of family visits Article 8 of the Convention requires the States to take into account the interests of the convict and his or her relatives and family members (see Khoroshenko, cited above, § 142).
93. Turning to the circumstances of the present case, the Court notes that the applicant’s son was about two years old when the applicant was first deprived of his liberty (see paragraphs 4 and 35 above). There is no dispute between the parties that prior to his detention the applicant enjoyed a parent‑child relationship, that he wished to receive visits from his young son and that in the nearly four years of his detention he did not once see him (see paragraph 42 above). It appears that the applicant had custody rights over his child for the first six months of his detention and later lost them to his ex-wife and, after her death, to the child’s maternal grandparents (see paragraphs 36, 37 and 41 above).
94. The applicant submitted that the interruption of his contact with the child had resulted from the authorities’ failure to ensure that he visited him in detention facility despite the unwillingness of his legal guardians to have him visit.
95. The applicant argued that under the applicable law, children under the age of fifteen could visit persons in detention facilities only if accompanied by an adult. In addition, a request for such a visit had to be filed by the child’s legal guardian. Consequently, in the circumstances of his particular family, the applicant was unable under the law to arrange visits from his child, as this was left in the control of his estranged family members.
96. The Court notes, as a matter of precision that the applicant, for a greater part of his deprivation of liberty, had the status of a remand detainee and, for approximately seven months of that period, he was detained under the regime for convicted prisoners (see paragraph 45 above). This distinction becomes nevertheless inconsequential because, throughout the entire time, the modalities of visits from a minor were in fact not regulated by any special provisions.
97. The existing practice which was partly dictated by the general provisions and partly, by the practicalities, was that a detained person could see his or her young child only if the latter was brought to accompany an adult visitor, who, in turn, had either received a visitor permit from the competent authority or had signed up for a visit directly with the prison. It is therefore obvious that ensuring visits from young children in detention facilities under the provisions of the Code of Execution of Criminal Sentences was conditional on the willingness of the adult relatives or guardians to take the child (see paragraphs 58-62 above).
98. The present case illustrates this interdependence. The applicant regularly received statutorily allowed visits from his relatives (see paragraph 46 above). None of the visitors however took the child as he was living with his mother and, later, with his maternal grandparents who had all chosen to alienate themselves from the applicant (see paragraph 44 above).
99. The Court, coming to a crucial element of the present case, observes that the unwillingness of the child’s guardians to allow contact with the applicant was in some way sanctioned by the law. On 24 October 2003 the Regional Court divested the applicant of his parental authority and, essentially, also of his contact rights (see paragraph 36 above). The applicant had not successfully sought to overturn that decision until after his release (see paragraph 49 above).
100. In these circumstances, the Court concludes firstly that Polish family and civil law offered the applicant as a non-custodial parent various remedies to try to ensure on the strength of a judicial decision the continuity of his family life with his young son, irrespective of the state of his relations with the child’s estranged guardians (see paragraphs 63 and 64 above). Secondly, because the applicant, for the greater part of his detention, was without parental rights, the Court infers that any obligation to make his very young child visit him in a detention facility, might have in fact been contrary to the child’s best interests.
101. In the light of the above considerations, the Court finds that the unavailability of visits from the applicant’s minor child did not result from a lack of a legal framework and that the relevant legislation which existed at the material time took the competing interests of the applicant and those of his child and the latter’s guardians adequately into account.
102. Accordingly, this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. Alleged violations of Articles 5 § 4 and 6 § 2 of the Convention
103. Lastly, the applicant complained of a breach of Article 5 § 4 of the Convention in that the proceedings for review of the lawfulness of his detention on remand from 31 January until 27 February 2007 had been marked by unreasonable delays.
104. In addition, the applicant complained under Article 6 § 2 of the Convention of a breach of the principle of presumption of innocence in that, by extending his detention on remand beyond 31 January 2007 and not giving him a possibility to seek compensation, the domestic courts and authorities had implied that he was guilty of the offences with which he had been charged.
105. Having regard to the Government’s acknowledgment, by way of the unilateral declaration, of a violation of Article 5 §§ 1 and 3 of the Convention, the Court considers that it is no longer necessary to examine the facts of the case separately under Articles 5 § 4 and 6 § 2 of the Convention (see Hassan Al-Zubaidi v. Poland (dec.), no. 8802/12, 13 October 2015, with further references, and Jan Załuska v. Poland (dec.), no. 65709/09, 26 April 2016).
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 5 §§ 1 and 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the complaints under Articles 5 § 5 and 8 of the Convention inadmissible;
Holds that it is no longer necessary to examine separately the present application under Articles 5 § 4 and 6 § 2 of the Convention.
Done in English and notified in writing on 1 March 2018.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
Full & Egal Universal Law Academy