FIRST SECTION
 
CASE OF WALCZAK v. POLAND
(Application no. 45564/15)
 
 
 
 
 
JUDGMENT
STRASBOURG
9 July 2020
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Walczak v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
 Linos-Alexandre Sicilianos, President,
 Krzysztof Wojtyczek,
 Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 16 June 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 45564/15) 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 a Polish national, Mr Damian Walczak (“the applicant”), on 7 October 2015. 2. The applicant was represented by Mr P. Binas, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 3. The applicant complained under Article 8 of the Convention that during his detention he had been deprived of personal contact with his wife for a significant period of time. 4. On 9 February 2017 notice of the application was given to the Government. THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1971 and lives in Plewiska. 6. On 16 December 2014 the applicant was arrested on charges of robbery (in particular: membership and leadership of an organised criminal group, committing robberies and extortions with the use of a lethal weapon, severely beating and depriving an individual of his liberty, recidivism). He was detained on remand by the Poznań-Nowe Miasto District Court for three months (until 16 March 2015). 7. The applicant’s detention on remand was subsequently prolonged by the Poznań Regional Court on 9 March 2015 (until 16 June 2015) and on 15 June 2015 (until 16 September 2015). 8. On 30 December 2014 the applicant’s wife, M.W., applied to be allowed to visit the applicant in the detention centre. 9. On 5 January 2015 the Poznań-Nowe Miasto District Prosecutor refused the request on the grounds that M.W. was a witness in the proceedings. The applicant and M.W. did not appeal against this decision. 10. Further applications by M.W. for permission to visit the applicant in the detention centre of 26 February and 17 March 2015 were dismissed by the prosecutor on 27 February and 24 March 2015 respectively. The prosecutor noted that there was a need to hear evidence from M.W. Consequently, it was not possible to grant her request. Neither the applicant nor M.W. appealed against these decisions. 11. On 3 April 2015 M.W. refused to testify in the investigation stage of the proceedings against the applicant. On the same day she again applied to be allowed to visit the applicant in the detention centre. 12. On 7 April 2015 the prosecutor refused M.W.’s request on the grounds that she could still be asked to testify as the investigation was ongoing. No appeal was lodged against this decision. 13. A further application by M.W. for permission to visit the applicant of 27 May 2015 was dismissed by the prosecutor on 5 June 2015. Neither the applicant nor M.W. lodged an interlocutory appeal against this decision. 14. On 10 June 2015 M.W. again applied for permission to visit the applicant in prison. Her application was dismissed on 15 June 2015. The prosecutor stated that it could have impeded the course of proceedings as she knew other witnesses and also had access to the applicant’s computer. On 28 August 2015 the Poznań Regional Prosecutor dismissed an interlocutory appeal by the applicant against the decision of 15 June 2015. 15. Further applications by M.W. of 15 June and 15 July 2015 were dismissed by the prosecutor on 25 June and on 24 July 2015. The applicant’s own request of 29 June 2015 to allow him to a have a prison visit from his wife was also dismissed by the prosecutor on 6 July 2015. 16. On 27 August 2015 the prosecutor allowed M.W. to visit the applicant in the detention centre. The visit took place on 30 August 2015. 17. On 3 September 2015 the prosecutor lodged a bill of indictment against the applicant with the court. 18. On 10 September 2015 the Poznań Regional Court dismissed an application by M.W. to visit the applicant, on the ground that she was a witness in the proceedings against him. The decision was served on her on 14 September 2015. On 24 September 2015 the Regional Court dismissed an interlocutory appeal lodged by her. The court held that that it was irrelevant that M.W. had lodged a statement that she was going not to testify against her husband, as the court proceedings had not yet begun. Most importantly, when summoned by the court for a hearing she could change her mind at any time. The court also emphasised that it was irrelevant that during the investigation stage of proceedings M.W. had been allowed by the prosecutor to visit the applicant because the prosecutor’s decisions allowing M.W. prison visits could not have been assessed by the court. 19. A further request by M.W. of 15 September 2015 was marked as “examined” on 17 September 2015. 20. On 2 October 2015 the applicant’s wife was allowed by the Poznań Regional Court to visit him in the detention centre. Her request of 1 October 2015 included a statement that she was going to rely on her right to refuse to testify against the applicant. She visited the applicant on 11 October 2015. Her subsequent requests were also granted. 21. There were subsequently no significant developments in the proceedings. In particular, M.W. was not asked to testify at any of the hearings held after that date. 22. The applicant was released from detention on 4 February 2016. RELEVANT DOMESTIC LAW AND PRACTICE
23. Under Article 217 of the Code of Execution of Criminal Sentences of 1997 a detainee is allowed to receive visitors, provided that he or she has obtained permission from the investigating prosecutor (at the investigation stage) or from the trial court (once the trial has begun). 24. Article 217 § 1c provides that an interlocutory appeal may be lodged against a decision refusing the prison visit either by the detainee or by the person who had asked for such visit. The interlocutory appeal should be lodged with a competent court (once the trial has begun) or with a higher prosecutor (at the investigation stage. 25. Under Article 217 § 1d in the event of a decision refusing a request for a prison visit being upheld, it is not possible to lodge another interlocutory appeal against the decision refusing the prison visit (with the same person) if it was issued within three months of the decision that has been upheld. THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
26. The applicant complained that during his detention he had been deprived of personal contact with his wife for a significant period of time, in breach of Article 8 of the Convention which provides in so far as relevant:
“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 ..., for the prevention of disorder or crime ...”
AdmissibilityThe parties’ submissions

27. The Government raised a preliminary objection on non‑exhaustion of domestic remedies. They submitted that under the relevant provisions of the Code of Execution of Criminal Sentences it was possible to challenge a decision refusing a request for a prison visit every three months. However, the applicant had failed to appeal against the prosecutor’s decisions when it had been possible in accordance with those provisions. In particular he had not challenged any decision issued between 16 December 2014 and 15 June 2015. 28. The applicant submitted that it was true that he had not appealed against all decisions, however such appeals would not have had any prospect of success.

Article of the Convention at issue: Article 8
Outcome: violation