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FOURTH
SECTION
CASE OF JANULIS v. POLAND
(Application
no. 20251/04)
JUDGMENT
STRASBOURG
4 November
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Janulis v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early, Section Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20251/04) 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 Adam Janulis
(“the applicant”), on 19 May 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged that his detention on remand had exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention.
- On
11 January 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it was decided to examine the merits of the
application at the same time as its admissibility.
- The
Court decided to raise of its own motion a complaint under Article 8
of the Convention about the censorship of the applicant's
correspondence.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Ostróda.
A. Criminal proceedings
against the applicant and his detention on remand
- The
applicant was arrested on 26 March 2002 at 4 p.m. On the same day the
Olsztyn District Court (Sąd Rejonowy) remanded the
applicant in custody until 26 June 2002 in view of the reasonable
suspicion that, together with three other suspects, he had stolen
several cars. It also considered that keeping the applicant in
detention was necessary given the risk that he might obstruct the
proceedings; the court did not, however, state its reasons for taking
such a view. It also stressed the severity of the anticipated
sentence.
- The
applicant's appeal against the detention order was unsuccessful, as
were his further appeals against decisions extending his detention
and his applications for release. His detention was extended on
several occasions by the Olsztyn District Court (decisions of
20 May and 23 August 2002, 4 and 14
February 2003 and 14 May 2003) and his appeals against
extension were dismissed by the Olsztyn Regional Court (decisions of
26 April 2002, 17 January and 23 May 2003, 6 June 2003 and
16 April 2004). In all these decisions the courts relied on the
original grounds given for the applicant's detention or simply found
that the reasons for his continued detention given in their previous
decisions “were still relevant”.
- On
27 September 2002 the first hearing took place. Evidence was heard
from the applicant and his co-accused. The applicant behaved in an
arrogant and disorderly manner and was expelled from the court room.
Consequently, the hearing had to be adjourned and no witness evidence
was heard that day.
- On
14 February 2003 the Olsztyn District Court sentenced the applicant
to ten years' imprisonment. On the same day the Olsztyn District
Court extended the applicant's detention until 14 May 2003.
- The
applicant and two of his co-accused lodged appeals against the
first instance judgment.
- On
15 October 2003 the Olsztyn Regional Court heard the appeals, quashed
the first instance judgment and remitted the case for retrial.
- In
the retrial proceedings the applicant unsuccessfully appealed against
further decisions extending his detention. The relevant decisions on
extension of his detention were given by the Olsztyn District Court
and the Olsztyn Regional Court. The courts again relied on the
grounds originally given for the applicant's detention. They added
that there were no circumstances obliging them to release the
applicant, with the result that his detention could be continued. In
its decision given on 23 January 2004 the Olsztyn Regional Court
dismissed the applicant's appeal against further extension. It relied
on the likelihood that a severe penalty would be imposed on the
applicant as well as on the reasonable suspicion, justified by the
evidence collected in the proceedings before the first-instance
court, that the applicant and his co-accused would obstruct the
proceedings. The court further found that the proceedings had been
conducted without undue delays and that the applicant's detention had
been necessary to secure the proper course of the proceedings,
because the court had had to hear evidence from a certain W.K., who
had previously been accused in the same set of proceedings.
- Between
5 February 2004 and 16 July 2004 the District Court held seven
hearings during which evidence was heard from eighteen witnesses.
- Following
the retrial, on 16 July 2004, the Olsztyn District Court sentenced
the applicant to three years and eight months' imprisonment.
- On
the same day the applicant was released from detention.
- The
applicant, his co-accused and the prosecutor appealed against the
Olsztyn District Court's judgment, which was upheld by the Olsztyn
Regional Court on 15 February 2005.
B.
Monitoring of the applicant's correspondence
- On
24 February 2005 the Court received a letter from the applicant. The
envelope bore the following stamp: “Censored on 14 February
2005” (Ocenzurowano dnia 14.02.2005), together with an
illegible signature and a stamp affixed by the post office in Ostróda
that read: “Envelope taken out of mail box damaged and
re-taped. Ostróda, 14 February 2005”
(“Przesyłka wyjęta ze
skrzynki w stanie uszkodzonym oklejona taśmą. Ostróda
14.02.2005”).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. As regards the applicant's detention on remand
- The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other
so-called “preventive measures” (środki
zapobiegawcze) are set out 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.
B. As regards censorship of prisoners' correspondence
- The
relevant domestic law concerning the censorship of prisoners'
correspondence is set out in the Court's judgment in the case of
Michta v. Poland, no. 13425/02, §§ 33-39,
4 May 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention on remand had
been excessive. He relied on Article 5 § 3 of the
Convention which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
applicant's detention started on 26 March 2002, when he was arrested
on suspicion of having committed several counts of theft. On
14 February 2003 the Olsztyn District Court convicted him as
charged.
As
from that date he was detained “after conviction by a competent
court”, within the meaning of Article 5 § 1 (a);
consequently, that period of his detention falls outside the scope of
Article 5 § 3 (compare Kudła v. Poland [GC],
no. 30210/96, § 104).
- On
15 October 2003 the Olsztyn Regional Court quashed the applicant's
conviction. After that date his detention was again covered by
Article 5 § 3. It continued until 16 July 2004,
when the applicant was released.
- Accordingly,
the period to be taken into consideration amounts to one year,
eight months and nineteen days.
2. The parties' submissions
(a) The applicant
- The
applicant submitted in general terms that his application lodged with
the Court was justified.
(b) The Government
- The
Government considered that the applicant's detention on remand
satisfied the requirements of Article 5 § 3. They submitted that
the detention had been duly justified and that during the entire
period the authorities had given relevant and sufficient reasons for
extending it. The Government further submitted that the domestic
courts had acted diligently and speedily, in particular taking into
account the complexity of the case, the applicant's aggressive
behaviour and the difficulties in hearing evidence from witnesses who
on several occasions had failed to appear for questioning.
3. The Court's assessment
(a) General principles
- The
Court recalls that the general principles regarding the right “to
trial within a reasonable time or to release pending trial”, as
guaranteed by Article 5 § 3 of the Convention, have been set out
in a number of its previous judgments (see, among many other
authorities, Kudła v. Poland, cited above, § 110
et seq, ECHR 2000 XI, and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
(b) Application of the above principles in
the present case
- The
Court agree with the Government that the applicant's detention was
indeed reviewed by the courts at regular intervals. In addition to
the reasonable suspicion against the applicant, the courts relied
principally on two grounds, namely (1) the severity of the penalty to
which he was liable and (2) the need to secure the proper
conduct of the proceedings. The Court notes that these grounds were
reiterated by the courts throughout the whole period of the
applicant's detention.
- The
Court accepts that the reasonable suspicion against the applicant of
having committed offences warranted detaining him initially. Also,
the need to secure the proper conduct of the proceedings, in
particular the process of obtaining evidence from witnesses,
constituted valid grounds for his initial detention.
- However,
with the passage of time, those grounds became less and less
relevant. The Court must therefore establish whether the other ground
adduced by the courts – namely, the risk that the applicant
would tamper with evidence – was “relevant” and
“sufficient” (see, Kudła cited above, § 111).
- The
Court is not persuaded by the Government's argument that the risk
that the applicant might tamper with evidence constituted a valid
ground for the entire length of the applicant's detention on remand.
The domestic courts did not give any indications as to why they
believed that the applicant, if released, might obstruct the
proceedings. The Court cannot therefore accept that ground as a
justification for holding the applicant in custody for the entire
period.
- According
to the authorities, the likelihood of a severe sentence being imposed
on the applicant created a presumption that the applicant would
obstruct the proceedings. However, the Court would reiterate that,
while the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending, the gravity of
the charges cannot by itself justify long periods of detention on
remand (see Michta v. Poland, cited above, §§
49). Having regard to the above, the Court cannot accept the position
adopted by the judicial authorities in the present case, namely that
the presumption referred to above was by itself sufficient, after a
certain lapse of time, to justify the applicant's continued
detention, without the need to indicate any concrete facts supporting
the supposed risk of obstruction of the proceedings (see Szydłowski
v. Poland, no. 1326/04, § 55; Malikowski v. Poland,
no. 15154/03, § 54; and Osiński v. Poland, no.
13732/02, § 53, all judgments delivered on 16 October
2007).
- It
is true, as the Government submitted, that the case was of a certain
complexity, given the number of defendants and offences as well as
the volume of evidence. However, it would appear that the courts
never relied on this as a factor militating against the applicant's
release.
- The
Court notes that in cases similar to the instant one, where there was
no element of organised crime, it has made findings both of violation
(see, for example, Lyp v. Poland, no. 25135/04,
13 November 2007) and no violation (see, for example,
Dzitkowski v. Poland, no. 35833/03, 27 November
2007) of Article 5 § 3. On each occasion the particular
circumstances of the case were decisive for its decision.
- Since
the term of detention in the present case was rather long (one year
and eight months), it must be thoroughly and duly justified by the
domestic authorities both from a substantive point of view (the
existence of reasons justifying keeping the applicant in detention)
and from a formal point of view (a proper formulation and
justification of the courts' decisions).
- For
the Court, a failure on the part of the domestic authorities to
fulfil the formal requirements for decisions extending detention on
remand precludes any substantive examination of the justification for
continuing detention and is per se sufficient for finding a
violation of Article 5 § 3 (see, mutatis mutandis, Kubik
v. Poland, no. 12848/03, § 62, 29 January 2008).
- A
failure to fulfil formal requirements may, in particular, consist in
(1) simply repeating reasons for detention contained in the Code
of Criminal Procedure, without explaining how they apply in a given
case or (2) simply repeating reasons given in the initial phase
of detention, without explaining in further decisions why continuing
detention is indispensable.
- The
Court notes that the reasons relied upon by the domestic courts in
their decisions to prolong the applicant's detention were limited to
paraphrasing the reasons for detention set out in the Code of
Criminal Procedure, without explaining how they applied in the
applicant's case (see paragraphs 8 and 13 above). The Olsztyn
District Court, when extending the applicant's detention, merely
repeated the wording of the decisions previously given. The Court
also notes with concern that the Olsztyn District Court limited
itself to reiterating the relevant provision of the Code of Criminal
Procedure. Only in a few decisions did the domestic authorities
fulfil the formal requirements referred to above (see paragraph 13
above, as regards the decision of 23 January 2004).
- The
Court would add that at no stage of the proceedings was any
consideration given to the possibility of imposing on the applicant
alternative, less severe, preventive measures. In this connection,
the Court would reiterate that Article 5 § 3 of the Convention
not only lays down the right to “trial within a reasonable time
or release pending trial” but also provides that “release
may be conditioned by guarantees to appear for trial” (see
Jabloński v. Poland, no. 33492/96, § 83,
21 December 2000).
- The
justification for any period of detention, no matter how short, must
be convincingly demonstrated by the authorities (see Kubik
v. Poland, § 64, cited above). In this case, the
Court finds that the grounds given by the domestic authorities, in
the absence of any proper reasoning, cannot be considered “relevant”
and “sufficient” to justify the applicant's being kept in
detention for nearly two years.
In
these circumstances, it is not necessary to examine whether the
proceedings were conducted with special diligence.
- There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
Court raised of its own motion a complaint under Article 8 of the
Convention. This provision, in its relevant part, reads:
“1. Everyone has the right to respect
for ... his correspondence.
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.”
A. Admissibility
1. The Government's objection as to non-exhaustion of
domestic remedies
- The
Government submitted that the applicant had not exhausted all
available domestic remedies. He had failed to bring an action under
Article 24 § 2 read in conjunction with Article 448 of the
Civil Code. These provisions would have allowed him both to assert
that by censoring his correspondence the authorities had breached his
personal rights protected by the Civil Code, and to claim
compensation for non-pecuniary damage.
- In this connection the Government relied on the Warsaw
Regional Court's judgment of 27 November 2006 in which a prisoner had
been awarded 5,000 Polish zlotys (PLN) in damages from the State
Treasury for a breach of the secrecy of his correspondence with the
Central Board of the Prison Service and the Central Electoral Office.
The Regional Court held that the secrecy of an individual's
correspondence was one of the personal rights protected under
Article 23 of the Civil Code and that in the event of a breach a
claimant could be entitled to an award of compensation for
non pecuniary damage.
- The
applicant did not comment.
2. The Court's assessment
- The
Court notes that the complaint under Article 8 of the Convention
concerning the alleged censorship of the applicant's correspondence
was raised of its own motion. The letter at issue was sent by the
applicant to the Court and he could not have been aware that it had
been censored by the authorities. In those circumstances, the
applicant cannot be required to bring any domestic proceedings to
obtain redress for the alleged breach of his right to respect for his
correspondence.
- Even
assuming that the applicant had complained about the censorship of
his letters to the Court, it has to be noted that the alleged
interference with the applicant's correspondence occurred in February
2005, whereas the Government relied on the Warsaw Regional Court's
judgment of 27 November 2006. Any relevance that the latter
judgment might possibly have in respect of the present case is
therefore reduced by the fact that it was given after the relevant
time (see, for example, V. v. the United Kingdom [GC],
no. 24888/94, § 57, ECHR 1999 IX). Furthermore,
the Court observes that the judgment relied on by the Government was
given by a first-instance court.
- For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
3. Conclusion as to admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Whether there was interference
- The
Court notes that the envelope in which the applicant's letter was
sent to the Court bore a stamp that read: “Censored on 14
February 2005”, together with an illegible signature and a
stamp affixed by the post office in Ostróda that read:
“Envelope taken out of mail box damaged and re taped.
Ostróda, 14 February 2005”.
- The
Court has held on many occasions that as long as the Polish
authorities continue the practice of marking detainees' letters with
a “Censored” stamp, the Court has no alternative but to
presume that those letters have been opened and their contents read
(see Matwiejczuk v. Poland, no. 37641/97, §
99, 2 December 2003; Pisk-Piskowski v. Poland, no. 92/03,
§ 26, 14 June 2005; and Michta v. Poland,
no. 13425/02, § 58, 4 May 2006). It follows that
in respect of the applicant's letter there was “interference”
with his right to respect for his correspondence under Article 8.
2. Whether the
interference was “in accordance with the law”
- The
Government did not indicate a specific legal basis in domestic law
for the impugned interference. The Court notes that the interference
took place while the applicant was in detention on remand.
- The
Court observes that, by virtue of Article 214 of the Code on
Execution of Criminal Sentences, persons in detention on remand
should enjoy the same rights as those convicted by a final judgment.
Accordingly, the prohibition of censorship of correspondence with the
European Court of Human Rights contained in Article 103 of the same
Code, which expressly relates to convicted persons, is also
applicable to detained persons (see Michta, cited above, §
61, and Kwiek v. Poland, no. 51895/99, § 44,
30 May 2006).
Consequently, censorship of the applicant's letter to the Court was
contrary to domestic law. It follows that the interference in the
present case was not “in accordance with the law”.
- Having
regard to that finding, the Court does not consider it necessary to
ascertain whether the other requirements of paragraph 2 of Article 8
were complied with. Consequently, the Court finds that there has been
a violation of Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 Polish zlotys (PLN) in respect of
non pecuniary damage.
- The
Government considered the applicant's claim “groundless”
and requested that it be rejected.
-
The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this
claim. On the other hand, it awards the applicant EUR 1,500 in
respect of non pecuniary damage.
B. Costs and expenses
- The
applicant submitted no claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable, to be converted into the currency of
the respondent State at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
