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FOURTH
SECTION
CASE OF MISIAK v. POLAND
(Application
no. 43837/06)
JUDGMENT
STRASBOURG
3 June
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 Misiak 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,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku, judges,
and Lawrence
Early,
Section Registrar,
Having
deliberated in private on 13 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43837/06) 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 Roman Misiak
(“the applicant”), on 17 October 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
5 March 2007 the
President of the Fourth Section decided to communicate the complaint
concerning the monitoring of the applicant's correspondence 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Gdańsk.
A. Criminal proceedings against the applicant
- On 9 August 2006 the applicant was arrested on
suspicion of fraud and placed in pre-trial detention. The grounds for
this decision are unknown, since the applicant has not produced a
copy of it.
- On 3 November 2006 the Gdańsk District Court (Sąd
Rejonowy) extended the applicant's detention until 9 February
2007. It relied on the reasonable suspicion that the applicant had
committed the offence with which he had been charged. It referred to
the likelihood of a severe sentence of imprisonment being imposed on
the applicant and the need to secure the proper conduct of the
proceedings. The court further found that there was a risk that the
applicant might go into hiding, given that earlier he could not be
found at his place of permanent residence.
- The
applicant submitted that he unsuccessfully appealed against decisions
extending his detention.
- The
applicant maintained that during his arrest he was treated in a
degrading manner by police officers and that he was subjected to
threats. On 19 February 2007 the Gdańsk District
Prosecutor instituted an investigation into the applicant's
complaints against the police officers. The investigation is still
continuing.
B. Censorship of the applicant's correspondence
- The
applicant submitted that during his detention his correspondence was
censored by the authorities. He produced five envelopes. All the
envelopes bear a stamp that reads: “Censored, date ...,
Prosecutor” (Ocenzurowano,
dnia ... Prokurator).
Those envelopes contained letters from:
1)
the Penitentiary Association “Patronat” (Stowarzyszenie
Penitencjarne “Patronat”), a non-governmental
organisation, acting, inter alia, on behalf of prisoners and
former prisoners, sent on 30 August 2006;
2)
the Supreme Court, sent on 26 September 2006;
3)
the European Committee for the Prevention of Torture and Inhuman and
Degrading Treatment, sent on 27 September 2006;
4)
the Ministry of Justice; sent on 27 September 2006;
5)
the Ombudsman, sent on 28 September 2006.
- The
applicant produced one envelope that indicates as the addressee of
the letter the Governor of Sztum Prison and bears a stamp that reads:
“Censored, date ..., Prosecutor” (Ocenzurowano, dnia
... Prokurator). A hand-written note indicates case file no.
IC 119/05.
- One
envelope bears traces of having been opened - its sides were cut open
and resealed using self-adhesive tape.
- The
applicant submitted that a letter addressed to him by the Court had
been opened and read by the authorities. In a note sent to the
applicant from Sztum Prison (Zakład
Karny) on 21
December 2006, he was informed that on 29 November 2006 a
letter from the European Court of Human Rights to the applicant had
been delivered by the District Prosecutor's Office. The note further
states that the letter had clearly been damaged.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the censorship of
prisoners' correspondence is set out in the Court's judgment in the
case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6
September 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention that during
his detention his correspondence was censored by the authorities. The
relevant part of this provision 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 preliminary objection on 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 §§ 1 and 2 in conjunction with Article 448
of the Civil Code. These provisions would have allowed him to assert
that by censoring his correspondence the authorities had breached his
personal rights protected by the Civil Code and to make a claim in
respect of 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 PLN 5,000 in damages from the State
Treasury for a breach of the confidentiality of his correspondence
with the Central Board of the Prison Service and the Central
Electoral Office. The Regional Court held that the confidentiality of
correspondence was a personal right protected under Article 23
of the Civil Code, a breach of which could entitle the claimant to an
award in respect of non-pecuniary damage.
- The applicant did not comment.
2. The Court's assessment
- The
Court notes that the censorship concerned letters of 30 August 2006,
8 September 2006, 26 September 2006 and two letters of 27 September
2006 and 28 September 2006. The date of the letter sent by the
European Court of Human Rights, which was damaged, is unknown;
however, it must have been sent before 27 November 2006.
Any
relevance the aforementioned judgment might have to the present case
is therefore reduced by the fact that it was delivered 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. In the aforementioned
case an appellate judgment was given by the Warsaw Court of Appeal on
28 June 2007. The Court of Appeal upheld the Regional Court's
judgment.
- 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. The submissions before the Court
- The
applicant submitted in general terms that the circumstances of his
case disclosed a breach of the Convention.
- The
Government, having regard to the particular circumstances of the case
and the Court's case-law, refrained from expressing their opinion on
the merits of the application.
2. The Court's assessment
(a) Existence of an interference
- The
Court first observes that the envelopes that contained letters from:
1)
the Penitentiary Association “Patronat” (Stowarzyszenie
Penitencjarne “Patronat”), a non-governmental
organisation, acting, inter alia, on behalf of prisoners and
former prisoners, sent on 30 August 2006;
2)
the Supreme Court, sent on 26 September 2006;
3)
the European Committee for the Prevention of Torture and Inhuman and
Degrading Treatment, sent on 27 September 2006;
4)
the Ministry of Justice; sent on 27 September 2006;
5)
and the Ombudsman, sent on 28 September 2006, all bear a stamp that
reads: “Censored, date ..., Prosecutor” (see paragraph 9
above).
- The
Court notes that one of the envelopes had been opened and resealed
with adhesive tape (see paragraph 11 above).
- Furthermore,
the Court observes that one envelope that indicates as the addressee
of the letter the Governor of Sztum Prison bears a stamp that reads:
“Censored, date ..., Prosecutor” (Ocenzurowano, dnia
... Prokurator). A hand written note indicates case file no. IC
119/05 (see paragraph 10 above).
- The
Court observes that, in a note from Sztum Prison (Zakład
Karny) of 21 December 2006, the applicant was informed that on
29 November 2006 a letter from the European Court of Human
Rights to the applicant was delivered by the District Prosecutor
Office. The note further states that the letter had clearly been
damaged.
- The
Court has held on many occasions that as long as the Polish
authorities continue the practice of marking detainees' letters with
the “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 letters there was an
“interference” with his right to respect for his
correspondence under Article 8.
(b) Whether the interference was “in
accordance with the law”
- The Court reiterates that any “interference by a
public authority” with the right to respect for correspondence
will contravene Article 8 of the Convention unless it is “in
accordance with the law”, pursues one or more of the legitimate
aims referred to in paragraph 2 of that Article and is
“necessary in a democratic society” in order to achieve
them (see, among many other authorities,
Silver and Others v. the United Kingdom,
25 March 1983, Series A no. 61, p. 32, § 84;
Campbell v. the United Kingdom, 25 March
1992, Series A no. 233, p. 16, § 34; and
Niedbała v. Poland no. 27915/95, § 78).
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, persons detained on remand, like the
applicant, enjoy the same rights as those convicted by a final
judgment. Article 102 (11) of the same Code provides that the
convicted persons are entitled to uncensored correspondence with the
State authorities and the Ombudsman. Furthermore, Article 103 of the
same Code contains the prohibition of censorship of correspondence
with the European Court of Human Rights. Both Articles expressly
relate to convicted persons; however they are also applicable to
detained persons (see Michta v. Poland, cited above,
and Kwiek v. Poland, no. 51895/99, § 23
and 44, 30 May 2006). Thus, censorship of the applicant's letters was
contrary to the domestic law. It
follows that the interference in the present
case was not “in accordance with the law”.
- That
being so, 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that during his arrest he was treated in a
degrading manner by the police officers and subjected to threats. The
Court notes that on 19 February 2007, at the applicant's request, the
Gdańsk District Prosecutor instituted an investigation against
the police officers concerned and the investigation is still pending
(see paragraph 8 above).
It
follows that this complaint is premature and must be rejected in
accordance with Article 35 §§ 3 and 4 of the
Convention.
- The
applicant further complained, in general terms under Article 5, that
his pre-trial detention was unjustified, as no consideration was
given to the possibility of imposing on him other, less severe,
preventive measures. The Court finds nothing in the case file which
might disclose any appearance of a violation of the Convention.
It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 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.”
- The
applicant, who did not claim costs and expenses, left the amount of
just satisfaction to be awarded to the Court's discretion.
- The
Government submitted that they were not able to comment on this
aspect, as the applicant had not specified an amount.
- The
Court considers that the applicant must have sustained some
non-pecuniary damage on account of the unlawful interferences with
his correspondence. Ruling on an equitable basis and having regard to
its established case-law, the court awards him EUR 1,000 under that
head.
- 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 complaint concerning the monitoring
of the applicant's correspondence admissible and the remainder of the
application inadmissible;
- 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 1,000 (one
thousand euros) in respect of non-pecuniary damage, to
be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(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.
Done in English, and notified in writing on 3 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
