FIRST SECTION
\nDECISION
\nApplication no. 19228\/07
\nNorbert ST\u0118PIE\u0143
\nagainst Poland<\/p>\n
The European Court of Human Rights (First Section), sitting on 6\u00a0February 2018 as a Committee composed of:<\/p>\n
Ale\u0161 Pejchal, President,
\nKrzysztof Wojtyczek,
\nArmen Harutyunyan, judges,<\/p>\n
and Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 27 April 2007,<\/p>\n
Having regard to the Government\u2019s unilateral declaration in respect of the complaints under Article 5 \u00a7\u00a7 1 and 3 of the Convention,<\/p>\n
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,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Norbert St\u0119pie\u0144, is a Polish national who was born in 1974 and lives in Sosnowiec. His application was lodged on 27\u00a0April 2007. The applicant was represented by Ms J. Metelska, a lawyer practising in Warsaw.<\/p>\n 2.\u00a0\u00a0The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Mr J. Wo\u0142\u0105siewicz, succeeded by Ms J. Chrzanowska of the Ministry of Foreign Affairs.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0The applicant\u2019s detention on remand and the criminal proceedings against him<\/em><\/p>\n 4.\u00a0\u00a0On 1 April 2003 the applicant was arrested on suspicion of obtaining loans from various businesses under false pretences.<\/p>\n 5.\u00a0\u00a0On 3 April 2003 he was remanded in custody by the Sosnowiec District Court (S\u0105dRejonowy \u2013 \u201cthe District Court\u201d), on reasonable suspicion of being a member of an organised criminal group.<\/p>\n 6.\u00a0\u00a0The 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\u2019s co\u2011suspects. 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 \u2013 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.<\/p>\n 7.\u00a0\u00a0The applicant\u2019s 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 (S\u0105dOkr\u0119gowy\u2013\u201cthe Regional Court\u201d) on 3\u00a0September and 5 November 2003 respectively. A further decision was taken on 23 December 2003, which was not appealed against.<\/p>\n 8.\u00a0\u00a0In 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\u2019s co\u2011suspects 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.<\/p>\n 9.\u00a0\u00a0On 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.<\/p>\n 10.\u00a0\u00a0Following the indictment, the applicant\u2019s detention on remand was further extended by decisions of the District Court of 26 March and 22\u00a0September 2004. The earlier decision was upheld by the Regional Court on 14 April 2004.<\/p>\n 11.\u00a0\u00a0On 16 and 27 August, 20 September, 29 November and 13\u00a0December 2004 the District Court rejected the applicant\u2019s appeals for the preventive measure to be lifted.<\/p>\n 12.\u00a0\u00a0When the length of the applicant\u2019s detention on remand reached the statutory two-year time limit laid down in Article 263 \u00a7 3 of the Code of Criminal Procedure (Kodekspost\u0119powaniakarnego), the measure was extended by decisions of the Katowice Court of Appeal (S\u0105dApelacyjny\u2013\u201cthe Court of Appeal\u201d) of 23 March and 28 September 2005. By virtue of the later decision the applicant\u2019s detention on remand was to be extended until 1\u00a0January 2006.<\/p>\n 13.\u00a0\u00a0The Court of Appeal held that the original reasons for the applicant\u2019s detention were still valid and the trial could not be completed because of circumstances beyond the authorities\u2019 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.<\/p>\n 14.\u00a0\u00a0On 29 December 2005 the District Court convicted the applicant as charged and sentenced him to three years and ten months\u2019 imprisonment.<\/p>\n 15.\u00a0\u00a0The applicant appealed the same day. The prosecutor did not appeal against the first-instance judgment.<\/p>\n 16.\u00a0\u00a0Pending the appellate proceedings the applicant\u2019s detention was extended by several decisions of the Court of Appeal, including on 21 June 2006, when the measure was extended until 1\u00a0October 2006.<\/p>\n 17.\u00a0\u00a0On 19 September 2006 the Regional Court quashed the first-instance judgment and remitted the case.<\/p>\n 18.\u00a0\u00a0On 26 September and 27 November 2006 the Regional Court further extended the applicant\u2019s detention on remand. By virtue of the later decision the measure was to remain in place until 1 March 2007.<\/p>\n 19.\u00a0\u00a0On 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.<\/p>\n 20.\u00a0\u00a0It 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\u2019s lawyer.<\/p>\n 21.\u00a0\u00a0By 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.<\/p>\n 22.\u00a0\u00a0On 19 February 2007 the District Court extended the applicant\u2019s detention until 1 June 2007 without addressing the above-mentioned applications for release. The court reiterated the grounds for the applicant\u2019s detention which had previously been given.<\/p>\n 23.\u00a0\u00a0The applicant\u2019s lawyer lodged an interlocutory appeal against that decision. He argued that as of 31 January 2007 the applicant\u2019s 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.<\/p>\n 24.\u00a0\u00a0On 27 February 2007 the Regional Court lifted the applicant\u2019s preventive measure and ordered his immediate release. The court fully upheld the arguments of the applicant\u2019s 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\u00a0December 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.<\/p>\n 25.\u00a0\u00a0A letter issued by the Ministry of Justice on 6 March 2007 officially declared that the applicant\u2019s detention after 31 January 2007 had been unjustified.<\/p>\n 26.\u00a0\u00a0As a result of certain procedural amendments, on 27 July 2007 the District Court relinquished its jurisdiction over the case to the Regional Court.<\/p>\n 27.\u00a0\u00a0Following further amendments to the law, the Regional Court lost its competence to deal with the case.<\/p>\n 28.\u00a0\u00a0On 23 June 2014 the D\u0105browaG\u00f3rnicza District Court convicted the applicant of several of the offences charged and imposed on him a cumulative sentence of two years and six months\u2019 imprisonment.<\/p>\n 29.\u00a0\u00a0On 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\u2019s cumulative sentence, partly upheld his first-instance conviction of several offences and imposed a sentence of two years\u2019 imprisonment. The time which the applicant had spent in detention on remand was credited towards his sentence.<\/p>\n 30.\u00a0\u00a0The proceedings concerning the part of the judgment quashed are currently pending before the Regional Court after the applicant appealed against the judgment of the B\u0119dzin District Court of 29 September 2017.<\/p>\n 2.\u00a0\u00a0Actions for compensation for manifestly unlawful detention on remand<\/em><\/p>\n 31.\u00a0\u00a0On 27 November 2007 the applicant brought a claim for compensation for his unlawful detention in the above-mentioned case. On 28\u00a0January 2008 the Regional Court discontinued the proceedings, considering the applicant\u2019s 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.<\/p>\n 32.\u00a0\u00a0On 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 \u2013 approximately 72,500 euros) for his unlawful detention from 2\u00a0April 2005 until 27 February 2007.<\/p>\n 33.\u00a0\u00a0On 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 B\u0119dzin District Court.<\/p>\n 34.\u00a0\u00a0The 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\u2019s view, to await the outcome of the applicant\u2019s criminal case in order to later determine whether there was any outstanding portion of his allegedly unlawful detention on remand which warranted compensation.<\/p>\n 3.\u00a0\u00a0The applicant\u2019s contact with his child<\/em><\/p>\n 35.\u00a0\u00a0The applicant has a son who was born in 2001.<\/p>\n 36.\u00a0\u00a0Six 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.<\/p>\n 37.\u00a0\u00a0On 25 July 2006 the applicant was informed that his ex-wife had passed away.<\/p>\n 38.\u00a0\u00a0On 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.<\/p>\n 39.\u00a0\u00a0On 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.<\/p>\n 40.\u00a0\u00a0On 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 \u201cvery close-knit with his grandparents\u201d and had never had such a close relationship with the applicant. It was concluded that the applicant\u2019s continued detention did not have any particularly harsh consequences for his child.<\/p>\n 41.\u00a0\u00a0On 14 September 2006 the Sosnowiec District Court decided to appoint the child\u2019s maternal grandparents as a foster family. The applicant did not appeal against that decision.<\/p>\n 42.\u00a0\u00a0The 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.<\/p>\n 43.\u00a0\u00a0That limitation, in the applicant\u2019s view, stemmed from the fact that under the applicable law detainees\u2019 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\u2019s 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\u2019s guardians and hence were not entitled to do so.<\/p>\n 44.\u00a0\u00a0Being 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.<\/p>\n 45.\u00a0\u00a0A 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.<\/p>\n 46.\u00a0\u00a0The applicant\u2019s 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\u2019s parental rights were suspended by a family court.<\/p>\n 47.\u00a0\u00a0The 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.<\/p>\n 48.\u00a0\u00a0It appears that after his release from the remand centre, he resumed contact with his son.<\/p>\n 49.\u00a0\u00a0On 20 August 2007 the District Court reinstated the applicant\u2019s 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.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0Provisions governing detention on remand<\/em><\/p>\n 50.\u00a0\u00a0The relevant domestic law and practice concerning the imposition of pre\u2011trial detention (aresztowanietymczasowe), the grounds for its extension, release from detention and rules governing other \u201cpreventive measures\u201d (\u015brodkizapobiegawcze) are stated in the Court\u2019s judgments in the cases ofGo\u0142ek\u00a0v.\u00a0Poland (no.\u00a031330\/02, \u00a7\u00a7\u00a027\u201133, 25 April 2006), andCelejewskiv.\u00a0Poland (no.\u00a017584\/04, \u00a7\u00a7\u00a022\u201123, 4 August 2006).<\/p>\n Moreover, Article 443 of the Code of Criminal Procedure (KodeksPost\u0119powaniaKarnego) 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\u2011instance judgment has been appealed against by the prosecutor.<\/p>\n 2.\u00a0\u00a0Provisions on State liability for unlawful detention<\/em><\/p>\n 51.\u00a0\u00a0Chapter 58 of the Code of Criminal Procedure, entitled \u201cCompensation for unjustified conviction, detention on remand or arrest\u201d, 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.<\/p>\n 52.\u00a0\u00a0Article 552 provides, in so far as relevant:<\/p>\n \u201c1.\u00a0\u00a0An 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\u00a0the sentence unjustifiably imposed on him.<\/p>\n 2.\u00a0\u00a0The 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.<\/p>\n 3.\u00a0\u00a0A right to compensation for pecuniary and non-pecuniary damage shall also arise if a preventive measure has been applied under the conditions specified in\u00a0paragraphs\u00a01 and\u00a02.<\/p>\n 4.\u00a0\u00a0A right to compensation for pecuniary and non-pecuniary damage shall also arise in the event of undoubtedly unjustified (niew\u0105tpliwienies\u0142uszne) pre\u2011trial detention or\u00a0arrest.\u201d<\/p>\n 53.\u00a0\u00a0In the light of well-established domestic practice, the requirements for compensation for manifestly unlawful detention on remand under Article\u00a0552 \u00a7\u00a04 shall comply cumulatively with the requirements stemming from paragraph 1 of that provision (see, in particular, the Supreme Court\u2019s resolution no. IKZP 27\/99 of 15 September 1999 and decision no. WZ 26\/01 of 28 June 2001).<\/p>\n 54.\u00a0\u00a0Under 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.<\/p>\n 55.\u00a0\u00a0It follows that proceedings related to an application under Article\u00a0552 \u00a7\u00a04 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.<\/p>\n 56.\u00a0\u00a0Admittedly, 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\u2019s 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\u2019s detention on remand from the sentence imposed by the court in the related or other criminal trial (see the Supreme Court\u2019s resolution no. IKZP 27\/99, cited above; the Supreme Court\u2019s decision of 20\u00a0September 2007 given by seven judges (IKZP28\/7, OSNKW 2007\/10\/07); the Supreme Court\u2019s decision of 15 November 2007 (IV KK 82\/07, OSNwSK 2007\/1\/2610), and the Supreme Court\u2019s judgment of 2\u00a0April 2001 (V KKN 481\/99, OSNKW 2001, nr 7-8, poz.\u00a066).<\/p>\n 57.\u00a0\u00a0The above lexspecialis remedy excludes the applicability of the provisions of civil law and general principles of the State\u2019s 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\u2019s decision of 7 February 2007 (V KK 61\/06, OSNKW 207, Nr 3, poz. 28) and the Rzesz\u00f3w Court of Appeal\u2019s judgment of 13 March 2014 (II AKa 16\/14); compare with the Wroc\u0142aw Regional Court\u2019s judgment of 23\u00a0April 2013 (I\u00a0C 40\/12)).<\/p>\n Article\u00a0417 \u00a7 1, which lays down a general rule, reads as follows:<\/p>\n \u201cThe 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.\u201d<\/p>\n Article 4171\u00a0\u00a7\u00a03 provides the following:<\/p>\n \u201cIf 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.\u201d<\/p>\n 3.\u00a0\u00a0Detainees\u2019 contact with family<\/em><\/p>\n 58.\u00a0\u00a0Persons deprived of their liberty have a right to maintain family ties (Articles 102, 209 and 214 of the Code of Execution of Criminal Sentences, KodeksKarnyWykonawczy) and the authorities are under duty to ensure the preservation of such ties, among others, by means of visits in detention facilities (Article 105).<\/p>\n 59.\u00a0\u00a0Under 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\u2019s list (Article\u00a090 \u00a7 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 (zezwolenienawidzenie) from the authority in whose control they remained (Article 217 \u00a7 1).<\/p>\n 60.\u00a0\u00a0As 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 \u00a7 1 (a)). Such persons are entitled to an additional visit with the child (Article 105a \u00a7 3). At the relevant time, minors under fifteen could make such visits only if accompanied by an adult (Article 105a \u00a7\u00a02). 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.<\/p>\n 61.\u00a0\u00a0The 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\u00a0217 \u00a7 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 \u00a7\u00a01\u00a0(f) ).<\/p>\n 62.\u00a0\u00a0Under 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.<\/p>\n 4.\u00a0\u00a0Parental authority and contact rights<\/em><\/p>\n 63.\u00a0\u00a0Article 58 \u00a7 1 of the Family and Guardianship Code (KodeksRodzinnyi\u00a0Opieku\u0144czy) provides:<\/p>\n \u201cIn a decision on divorce, the court is competent to issue orders concerning the manner in which the care of the parties\u2019 minor children should be carried out …. The court may grant custody rights to one parent and limit the custody rights of the other.\u201d<\/p>\n 64.\u00a0\u00a0Moreover, under Article 1132 \u00a7 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:<\/p>\n \u201cWhen 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.\u201d<\/p>\n In accordance with Article 1135 of the Family and Guardianship Codeand Article 557 of the Code of Civil Procedure (KodeksPost\u0119powaniaCywilnego) the guardianship court can change its decision if the best interests of the child so require.<\/p>\n COMPLAINTS<\/strong><\/p>\n 65.\u00a0\u00a0The applicant made the following complaints:<\/p>\n (i)\u00a0\u00a0under Article 5 \u00a7 1 of the Convention that his detention from 31\u00a0January 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 29December 2005;<\/p>\n (ii)\u00a0\u00a0under Article 5 \u00a7 3 of the Convention of the unreasonable length of his detention on remand;<\/p>\n (iii)\u00a0\u00a0under Article 5 \u00a7 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;<\/p>\n (iv)\u00a0\u00a0under 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;<\/p>\n (v)\u00a0\u00a0under Article 5 \u00a7 4 of the Convention that the proceedings for review of the lawfulness of his detention on remand from 31 January until 27\u00a0February 2007 had been marked by unreasonable delays; and<\/p>\n (vi)\u00a0\u00a0under Article 6 \u00a7 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.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Alleged violation of Article 5 \u00a7\u00a7 1 and 3 of the Convention<\/strong><\/p>\n 66.\u00a0\u00a0The applicant complained that his detention from 31 January until 27\u00a0February 2007 had been arbitrary and unlawful, in breach of Article\u00a05\u00a0\u00a7\u00a01 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\u00a0December 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.<\/p>\n 67.\u00a0\u00a0Article\u00a05 \u00a7\u00a01, in its relevant part, reads:<\/p>\n \u201c\u00a01.\u00a0\u00a0Everyone 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:<\/p>\n …<\/p>\n (c)\u00a0\u00a0the 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;…\u201d<\/p>\n 68.\u00a0\u00a0The applicant also complained under Article 5 \u00a7 3 of the Convention of the unreasonable length of his detention on remand. The relevant part of this provision reads as follows:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n 69.\u00a0\u00a0By 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\u00a037 of the Convention.<\/p>\n 70.\u00a0\u00a0The declaration provided as follows:<\/p>\n \u201c1.\u00a0\u00a0The Government thereby wish to express \u2013 by way of the unilateral declaration \u2013 their acknowledgment of the fact that the applicant\u2019s pre-trial detention was not compatible with a \u201creasonable time\u201d requirement within the meaning of Article\u00a05 \u00a7\u00a03 of the Convention and that the applicant was deprived of his liberty in breach of Article\u00a05 \u00a7\u00a01 of the Convention in the period form 31 January until 27 February 2007.<\/p>\n 2.\u00a0\u00a0In these circumstances, and having particular regard to violations of Article\u00a05\u00a0\u00a7\u00a7\u00a01 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\u2019s 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\u00a037\u00a0\u00a7\u00a01 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…\u201d<\/p>\n 71.\u00a0\u00a0In a letter of 4 March 2014 the applicant\u2019s lawyer objected to the striking out of this part of the application. She argued that the amount of money mentioned in the Government\u2019s declaration was unacceptably low. She also expressed concerns about the Court\u2019s 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 Jeronovi\u010ds v.\u00a0Latvia ([GC], no.\u00a044898\/10, \u00a7\u00a793\u2011102, ECHR 2016).<\/p>\n 72.\u00a0\u00a0The 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\u00a037\u00a0\u00a7\u00a01\u00a0(c) enables the Court in particular to strike a case out of its list if:<\/p>\n \u201cfor any other reason established by the Court, it is no longer justified to continue the examination of the application\u201d.<\/p>\n 73.\u00a0\u00a0In certain circumstances, the Court may strike out an application under Article 37 \u00a7 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.<\/p>\n 74.\u00a0\u00a0As 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 \u201cclear and extensive\u201d 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 Jeronovi\u010ds, cited above, \u00a7 64).<\/p>\n 75.\u00a0\u00a0The Court examined the declaration in the light of the principles emerging from its case-law and the above-mentioned elements, in particular the TahsinAcar judgment (see TahsinAcar v. Turkey, [GC], no.\u00a026307\/95, \u00a7\u00a7\u00a075-77, ECHR 2003-VI); see also WAZA Sp\u00f3\u0142ka z o.o. v.\u00a0Poland (dec.), no.\u00a011602\/02, 26 June 2007; and Sulwi\u0144ska v. Poland (dec.), no.\u00a028953\/03, 18\u00a0September 2007).<\/p>\n 76.\u00a0\u00a0The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints of a violation of Article\u00a05 \u00a7\u00a01 on account of the unlawfulness of detention on remand (see, for example, Porowski v. Poland,no. 34458\/03, 21 March 2017; Mame\u0142kav.\u00a0Poland, no. 16761\/07, 17 April 2012; Ladent v. Poland, no.\u00a011036\/03, 18\u00a0March 2008; and Dombek v. Poland, no.75107\/01, 12\u00a0December 2006). The Court has also addressed, in numerous cases, its practice concerning complaints under Article 5 \u00a7 3 of the Convention about the length of pre\u2011trial detention (see Kauczor v. Poland, no. 45219\/06, 3\u00a0February 2009, with further references).<\/p>\n 77.\u00a0\u00a0Having regard to the nature of the admissions contained in the Government\u2019s declaration, as well as the amount of compensation proposed \u2013 which is consistent with the amounts awarded in similar cases (see, mutatis mutandis, Kruczek v. Poland (dec.), no. 61041\/10, 6\u00a0October 2015; Lopyta v. Poland (dec.), 28113, 15 January 2008; Chudy-Sternik v.\u00a0Polandand Spain (dec.), no. 7063\/10, 15 January 2013; and Zapal v. Poland (dec.), no.\u00a057694\/08, 13 September 2011) \u2013 the Court considers that it is no longer justified to continue the examination of the application (Article\u00a037 \u00a7\u00a01\u00a0(c)).<\/p>\n 78.\u00a0\u00a0The 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.<\/p>\n 79.\u00a0\u00a0Moreover, 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 \u00a7 1 in fine).<\/p>\n 80.\u00a0\u00a0Lastly, 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 \u00a7 2 of the Convention (Josipovi\u0107 v. Serbia (dec.), no. 18369\/07, 4 March 2008).<\/p>\n Accordingly, this part of the application should be struck out of the list.<\/p>\n B.\u00a0\u00a0Alleged violation of Article 5 \u00a7 5 of the Convention<\/strong><\/p>\n 81.\u00a0\u00a0The applicant complained that he had not had an enforceable right to compensation for his unlawful detention, contrary to Articles\u00a05 \u00a7\u00a05 and\u00a013 of the Convention.<\/p>\n 82.\u00a0\u00a0The Court considers that this complaint falls to be examined under Article\u00a05 \u00a7\u00a05, which reads as follows:<\/p>\n \u201cEveryone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.\u201d<\/p>\n 83.\u00a0\u00a0On 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.<\/p>\n 84.\u00a0\u00a0The 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.<\/p>\n 85.\u00a0\u00a0The 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 Mame\u0142kav.\u00a0Poland, no. 16761\/07, \u00a7 23, 17 April 2012).<\/p>\n 86.\u00a0\u00a0On the other hand, the applicant\u2019s claim under Article 552 of the Code of Criminal Procedure, which he lodged on 23June2015, seeking compensation for his unlawful detention from 2 April 2005 until 27\u00a0February 2007, is currently pending, even if it has recently been stayed sine die (see paragraph 33 above).<\/p>\n 87.\u00a0\u00a0Following its ruling in the similar case of Kobla\u0144ski v.\u00a0Poland (no.\u00a059445\/00, \u00a7\u00a7 28 and 29, 28 September 2004), the Court considers the complaint under Article 5 \u00a7 5 of the Convention premature.<\/p>\n 88.\u00a0\u00a0Consequently, this part of the application is inadmissible for non\u2011exhaustion of domestic remedies within the meaning of Article 35 \u00a7\u00a01 of the Convention and must be rejected pursuant to Article 35 \u00a7\u00a04.<\/p>\n C.\u00a0\u00a0Alleged violation of Article 8 of the Convention<\/strong><\/p>\n 89.\u00a0\u00a0The 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.<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his … family life …<\/p>\n 2.\u00a0\u00a0There 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.\u201d<\/p>\n 90.\u00a0\u00a0The 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\u2019s adult guardian. Because, in the applicant\u2019s case, his child\u2019s 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\u2019s 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\u2019s guardians.<\/p>\n 91.\u00a0\u00a0The Government argued that this complaint was manifestly ill\u2011founded because a legal framework allowing detainees to secure visits from their children had been in place. The applicant\u2019s 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.<\/p>\n 92.\u00a0\u00a0The 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\u2019s 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, \u00a7 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, \u00a7\u00a0142).<\/p>\n 93.\u00a0\u00a0Turning to the circumstances of the present case, the Court notes that the applicant\u2019s 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\u2011child 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\u2019s maternal grandparents (see paragraphs 36, 37 and 41 above).<\/p>\n 94.\u00a0\u00a0The applicant submitted that the interruption of his contact with the child had resulted from the authorities\u2019 failure to ensure that he visited him in detention facility despite the unwillingness of his legal guardians to have him visit.<\/p>\n 95.\u00a0\u00a0The 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\u2019s 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.<\/p>\n 96.\u00a0\u00a0The 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.<\/p>\n 97.\u00a0\u00a0The 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.\u00a0It 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).<\/p>\n 98.\u00a0\u00a0The 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).<\/p>\n 99.\u00a0\u00a0The Court, coming to a crucial element of the present case, observes that the unwillingness of the child\u2019s guardians to allow contact with the applicant was in some way sanctioned by the law. On 24 October2003 the Regional Court divested the applicant of his parental authority and, essentially, also of his contact rights (see paragraph\u00a036 above). The applicant had not successfully sought to overturn that decision until after his release (see paragraph 49 above).<\/p>\n 100.\u00a0\u00a0In 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\u2019s 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\u2019s best interests.<\/p>\n 101.\u00a0\u00a0In the light of the above considerations, the Court finds that the unavailability of visits from the applicant\u2019s 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\u2019s guardians adequately into account.<\/p>\n 102.\u00a0\u00a0Accordingly, this part of the application is manifestly ill\u2011founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n D.\u00a0\u00a0Alleged violations of Articles 5 \u00a7 4 and 6 \u00a7 2 of the Convention<\/strong><\/p>\n 103.\u00a0\u00a0Lastly, the applicant complained of a breach of Article\u00a05 \u00a7\u00a04 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.<\/p>\n 104.\u00a0\u00a0In addition, the applicant complained under Article6 \u00a72 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.<\/p>\n 105.\u00a0\u00a0Having regard to the Government\u2019s acknowledgment, by way of the unilateral declaration, of a violation of Article 5 \u00a7\u00a7 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 \u00a7 4 and 6 \u00a7 2 of the Convention (see Hassan Al-Zubaidi v. Poland (dec.), no.\u00a08802\/12, 13\u00a0October 2015, with further references, and Jan Za\u0142uska v.\u00a0Poland (dec.), no.\u00a065709\/09, 26 April 2016).<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Takes note of the terms of the respondent Government\u2019s declaration under Article 5 \u00a7\u00a7 1 and 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;<\/p>\n 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 \u00a7 1 (c) of the Convention;<\/p>\n Declares the complaints under Articles 5 \u00a7 5 and 8 of the Convention inadmissible;<\/p>\n Holds that it is no longer necessary to examine separately the present application under Articles 5 \u00a7 4 and 6 \u00a7 2 of the Convention.<\/p>\n Done in English and notified in writing on 1 March 2018.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ale\u0161 Pejchal
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n