FOURTH SECTION

Application no. 26104/08 Halina LIEBERSBACH and O thers against Poland lodged on 21 May 2008

STATEMENT OF FACTS

The applicant Halina Liebersbach was born in 1952 (“the first applicant”). Her sons: Norbert Stachowiak (“the second applicant”) and Mariusz Stachowiak (“the third applicant”) were born in 1975 and 1973 respectively. They all live in Pozna ń .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Criminal proceedings against the applicant ’ s sons

On 29 October 2007 at 6 a.m. fifteen police officers showed up at the first applicant ’ s home in Poznań . They produced a search warrant and began the search of the applicant ’ s house. The first applicant submits that they broke several windows, destroyed the entrance doors and broke into the home ’ s safe, completely destroying it. She submits that she remained incompletely dressed until midday since the police officers did not allow her to change into her day clothes.

Subsequently, the police officers ordered her to follow them to her second home in Kiekrz , which had already been searched. Upon her arrival the first applicant discovered that her property had been seriously damaged. The entrance doors, as well as several windows were broken and holes in the ceiling were made.

On 30 October 2007 the third applicant was arrested and placed in detention. He was charged with distribution of drugs. He was released on bail on 10 June 2008.

On 10 April 2008 the second applicant was arrested while driving with his fiancée to a shop. He was allegedly kicked and beaten by the police officers arresting him.

On 14 April 2008 the second applicant was detained on remand and placed in the Wronki detention centre. He was charged with leading an organised criminal gang smuggling and distributing drugs. Nineteen other co-accused w ere charged in the same proceedings.

The second applicant ’ s detention on remand was extended on numerous occasions. On an unknown later date he was transferred to Rawicz prison.

On 6 August 2009 the Poznań Regional Court held the first hearing. On 10 September 2009 the trial court heard a witness, P.S. On 2 September 2010 the trial court finished collecting evidence from P.S.

On 6 September 2010 the Regional Court released all nineteen co ‑ accused. However it refused to release the applicant on the ground that there was a serious risk of collusion and the offences carried a severe penalty.

The second applicant was eventually released on bail on 15 April 2011

2. The alleged ill-treatment of the second applicant

On 10 April 2008 the second applicant was arrested while driving with his fiancée to a shop. He was dragged out of the car and thrown on the ground. He was kicked in the ribs and beaten.

On 11 April 2008, upon arrival in the Wronki detention centre he was examined by a doctor who noted, in his detainee health book (“ Książka zdrowia osadzonego ”):

“Light pain of right costal arch”.

Another note in the book, dated 15 April 2008 reads as follows:

“Pain in the rib cage, bottom right costal arch. Pain on pressure.”

On 22 April 2008 the second applicant underwent an x-ray of his rib cage which confirmed that there had been no radiological changes.

The first applicant complained on several occasions to the prosecutor in charge of the criminal investigation about her son ’ s alleged ill treatment.

On 16 September 2008 the prosecutor informed her that, from the second applicant ’ s medical documentation from the Rawicz prison, it did not seem that he had complained about any alleged ill-treatment.

On 4 November 2008 the Minister of Justice informed the first applicant that during his interrogation with the prosecutor her son had not complained about the alleged ill-treatment of 10 April 2008.

3. Restrictions on the second and third applicants ’ contacts with their family

On her sons ’ arrest, the first applicant repeatedly requested the prosecutor in charge to be allowed to visit them in detention.

In May and June 2008 she asked on 14 occasions to be allowed to visit her sons in prison. On all occasions she was refused. The prosecutor stressed that she was a witness in the criminal proceedings against her sons and therefore her visit in prison could have interfered with the course of the investigation.

On 26 June 2008 the state prosecutor confirmed that indeed the first applicant had not been allowed to visit her sons in prison. However, the refusals were caused by the complexity of the investigation and the fact that she was a witness in the proceedings.

On 25 June 2008 the first applicant was exceptionally allowed to visit the second applicant in prison. The visit was to take place on 3 July 2008. However, on that date the first applicant was informed that none of the officers from the Central Investigation Bureau ( Centralne Biuro Åšledcze ) was available to assist during the visit and therefore it was cancelled. The new visit was scheduled for 28 July 2008.

Subsequently the first applicant on numerous occasions asked to be allowed to visit the second applicant in prison. She submitted that she had refused to testify at the investigative stage of the proceedings. The prosecutor refused all these requests observing that the first applicant was still a witness and until she testified or refused to testify during the trial her requests to visit her son had to be refused.

She was exceptionally allowed to visit her son in December 2008.

Subsequently, the prosecutor continued to refuse her requests for visits.

The first applicant submits that the second applicant was granted visits from his father or aunt on average once a month.

B. Relevant domestic law and practice

1. Visits in detention until 8 June 2010

Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, as applicable until 8 June 2010, a detainee was allowed to receive visitors, provided that he had obtained a visit permission ( “ zezwolenie na widzenie ” ) from the authority at whose disposal he remained, i.e. an investigating prosecutor (at the investigative stage) or from the trial court (once the trial had begun) or from the appellate court (in appeal proceedings). A detainee was entitled to 1 one ‑ hour long visit per month.

2. Constitutional Court ’ s judgment of 2 July 2009 (no. K. 1/07)

The judgment was given following an application, lodged by the Ombudsman on 2 January 2007, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences was incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the Convention and Article 37 of the United Nations Convention on the Rights of the Child. The Constitutional Court ’ s judgment became effective on 8 July 2009, the date of its publication in the Journal of Laws ( Dziennik Ustaw ).

The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusing family visits to those in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee ’ s constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against a prosecutor ’ s decision to refuse a family visit to those in pre-trial detention.

3. Amendments to the Code of Execution of Criminal Sentences

On 5 November 2009 Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions stipulate that a detainee is entitled to at least one family visit per month. In addition, they indicate specific conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments entered into force on 8 June 2010.

COMPLAINTS

1. The first applicant complains without invoking any provisions of the Convention about damage to her property caused by the search of her home on 29 October 2007.

2. The second applicant complains under Article 3 that he was ill-treated by the police officers during his arrest on 10 April 2008.

3. The second and third applicants complain about restrictions on the family visits in detention. In particular, they complain about refusals to allow them to see their mother.

QUESTION TO THE PARTIES

Did the restrictions placed on the second and third applicants ’ personal contact with their family members, in particular their mother, violate their right to respect for family life, guaranteed by Article 8 of the Convention?