ZIMER AND OTHERS v. POLAND

FIRST SECTION

DECISION

Application no. 50808/22
Radosław ZIMER against Poland
and 8 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 28 May 2024 as a Committee composed of:

 Lətif Hüseynov, President,
 Krzysztof Wojtyczek,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The applicants, prisoners deprived of their liberty in various prisons in Poland, complain under Article 8 of the Convention that following the amendment of the Code of Execution of Criminal Procedure (Kodeks Karny Wykonawczy), which entered into force on 17 September 2022, their right to make telephone calls to members of their families was limited.

2.  The amendment in question introduced a principle that a convicted person could make a telephone call at least once a week. On the basis of that provision, the directors of some prison facilities introduced internal regulations which limited the prisoners’ telephone calls to one per week. The applicants claim that, before the amendment of the relevant provisions, they were allowed to make several telephone calls to family members each week.

3.  The applicants requested permission for additional telephone calls, beyond the minimum to which they had a statutory right, and this was refused by the prison directors. The refusal was justified by the fact that they could communicate with their families by traditional correspondence. In some cases, the prison authorities relied additionally on the possibility of communicating via Skype, or on the fact that the applicants could receive personal visits from family members in prison. At the same time, no particular circumstances or sudden events had been put forward by the applicants which would justify granting them a right to additional telephone calls.

4.  Some of the applicants appealed to the penitentiary courts which, however, upheld the refusals holding that they were issued in accordance with the relevant law.

5.  The applicants complained under Article 8 of the Convention that their right to respect for their family life had been violated through the restriction on making telephone calls to their family members.

6.  Some of the applicants further complained, also under Article 8, that their telephone contact with lawyers was restricted and that they were imprisoned far from their family members making visits difficult.

THE COURT’S ASSESSMENT

7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

8.  As regards communication by telephone, the Court stated in A.B. v. the Netherlands (no.  37328/97, § 92, 29 January 2002) that Article 8 of the Convention does not in itself guarantee prisoners a right to make telephone calls, especially if there are adequate possibilities for written correspondence. In that case, there was no allegation of an interference with the right to respect for family life. The applicant complained rather generally that the limited telephone facilities had prevented him from establishing contact with those outside prison, and the Court examined the restrictions from the point of view of an interference with “private life” or “correspondence”, notions considered to cover telephone conversations (ibid., § 75; Klass and Others v. Germany, 6 September 1978, § 41, Series A no. 28; and X. v. the United Kingdom, no. 7990/77, Commission decision of 11 May 1981).

9.  However, the Court has also assessed the compatibility of various restrictions on prisoners’ telephone communications in the context of their family life within the meaning of Article 8. While noting that that provision does not in itself guarantee prisoners the right to make telephone calls, the Court has regarded such a means of communication as a way for them to maintain contact with their families. It has thus examined whether such restrictions were justified within the meaning of the second paragraph of Article 8 of the Convention (see Danilevich v. Russia, no. 31469/08, §§ 49‑50, 19 October 2021, with further references).

10.  In the present applications, following the amendment of the Code of Execution of Criminal Procedure, which entered into force on 17 September 2022, and which allowed prisoners a telephone call at least once a week, some prison facilities introduced internal rules according to which only one telephone call per week was permitted. The Court has hesitations whether this at all amounts to an interference with the applicants’ right to family life since they were allowed regularly weekly telephone calls with family members. However, noting that the applicants claimed that before this amendment they were allowed to make more than one telephone call a week, the length and frequency depending on the organisational possibilities of particular prisons, the Court will continue its examination of the case on the assumption that the practice in some prisons limiting the prisoners’ rights to just one telephone call a week amounted to an interference with the applicants’ right to family life.

11.  The Court further accepts that the limitation was “in accordance with the law” and “pursued a legitimate aim”, namely the “prevention of disorder and crime” (see Hagyó v. Hungary, no. 52624/10, § 77, 23 April 2013).

12.  It remains to be established whether the interference complained of was also justified as being “necessary in a democratic society”.

13.  In this respect the Court notes that the applicants were not completely deprived of the possibility to remain in telephone contact with their relatives (compare ibid., § 90). They were still allowed to make one telephone call a week. Additionally, there existed a possibility to request permission for additional telephone calls in “particularly justified cases”, especially relating to “a sudden life situation”. What is more, the applicants could still remain in contact with their families by using traditional correspondence or Skype. An additional telephone call could also be granted as a reward for good behaviour and some of the applicants benefited from this. The prisoners were also allowed to receive visits from their relatives or other persons close to them and to receive parcels, which are also means of maintaining relations with the outside world.

14.  Taking into consideration all the above, the Court considers that the interference complained of was not disproportionate and that the limitation to one telephone call to relatives per week, combined with the possibility to remain in contact via traditional correspondence, Skype or prison visits struck a fair balance.

15.  For the above reasons, this complaint under Article 8 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

16.  The applicants in applications nos. 12915/23 and 20205/23 also complained that their telephone contact with lawyers was limited. The applicants in applications nos. 50808/22 and 10121/23 further complained that they were imprisoned far from their place of residence, which made visits from their family members difficult.

17.  The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

18.  It follows that this part of the above applications must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 20 June 2024.

 Liv Tigerstedt Lətif Hüseynov
 Deputy Registrar President

Appendix

List of cases: