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FOURTH
SECTION
CASE OF STĘPNIAK v. POLAND
(Application
no. 29366/03)
JUDGMENT
STRASBOURG
29
January 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 Stępniak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Josep
Casadevall,
Giovanni
Bonello,
Kristaq
Traja,
Stanislav
Pavlovschi,
Lech
Garlicki,
Ljiljana
Mijović,
judges,
and Lawrence Early, Section
Registrar,
Having
deliberated in private on 8 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29366/03) 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 Mr D. Stępniak on 25 July 2003.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
5 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Bytom.
1. The applicant's detention
- On
21 October 2002 the applicant was arrested. By a decision of
24 October 2002 the District Court in Wodzisław Śląski
remanded him in custody on charges connected with organised crime. It
had regard to evidence gathered by the prosecuting authorities which
indicated that the applicant had committed the offences concerned.
The applicant appealed, to no avail.
- The
same court subsequently extended the applicant's detention by
decisions of, inter alia, 10 July and 7 October 2003 and 7
March 2004, until, respectively, 15 October 2003, 19 January and 19
July 2004. The court relied on the evidence gathered in the case
which pointed to the likelihood of the applicant's guilt. It was also
of the view that the applicant, if released, could hinder the proper
course of the investigations and judicial proceedings by exerting
pressure on witnesses and by colluding with his co-accused. It noted
that many persons appeared to have been involved in the commission of
the offences concerned and that it was therefore necessary to obtain
a considerable amount of evidence. It also had regard to the
applicant's criminal record.
- On
numerous other occasions the prosecuting authorities refused to
release the applicant, relying on the same arguments and referring to
the evidence gathered in the investigation.
- On
an unspecified number of occasions the applicant was allowed to see
his wife during his detention. Between 15 December 2002, the date on
which the applicant's wife gave birth to a son, and 21 November 2003
the applicant saw her and his son on at least three occasions.
- On
30 September 2003 the prosecuting authorities lodged a bill of
indictment with the Wodzislaw Śląski District Court. The
applicant was charged with multiple counts of fraud.
- On
11 December 2003 the court ordered that the applicant should serve a
prison sentence imposed on him by a final judgment given in another
criminal case concurrently with the present detention.
- Hearings
in the case were held on 7 January, 18 February and 25 October
2004. On the latter date the applicant was convicted as charged.
2. Censorship of the applicant's correspondence
- The
applicant submitted envelopes of two letters sent to him by the Court
on 15 January 2004 and 30 March 2004. The envelope of the first
letter bears the stamp “Censored (cenzurowano) –
the Wodzisław Śląski District Court – Date”,
signed with an illegible signature. The envelope of the second letter
bears the full official stamp of the Wodzisław Śląski
District Court and a handwritten note “censorship”
(cenzura), accompanied by a handwritten date, 9 April 2004.
II. RELEVANT DOMESTIC LAW
- The
legal provisions governing monitoring of detainees' correspondence
applicable at the material time are set out in a judgment delivered
by the Court on 6 December 2005 (Wasilewski v. Poland, no.
63905/00, §§ 16-21).
THE LAW
I. 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 (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 23 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 claim
non-pecuniary damages.
- 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 secrecy of his correspondence with
the Central Board of the Prison Service and the Central Electoral
Office. The Regional Court held that secrecy of one's correspondence
was one of the personal rights protected under Article 23 of the
Civil Code and that in the case of a breach a claimant might be
entitled to an award of non-pecuniary damages.
- The applicant did not comment.
- The Court notes that the alleged interference with the
applicant's correspondence occurred in 2004, whereas the Government
relied on the Warsaw Regional Court's judgment of 27 November 2006,
which was confirmed by the Warsaw Court of Appeal on 28 June 2007 and
became final. Any relevance that this 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).
- For these reasons, the Government's plea of
inadmissibility on the ground of non-exhaustion of domestic remedies
must be dismissed.
- 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. Existence of an interference
- The
Court notes that its two letters sent to the applicant on 15 January
2004 and 30 March 2004 bear censorship stamps. The envelope of the
first letter bears the stamp “Censored (cenzurowano) –
the Wodzisław Śląski District Court – Date”,
signed with an illegible signature. The envelope of the second letter
bears the official stamp of the Wodzisław Śląski
District Court and a handwritten note “censorship”
(cenzura), accompanied by a handwritten date, 9 April 2004.
- 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; Michta v. Poland,
no. 13425/02, § 58, 4 May 2006). It follows that in
respect of both of the applicant's letters there was an
“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 on two occasions when the applicant was in detention.
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, detained persons 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, was also applicable to
detained persons (see Michta v. Poland, no. 13425/02,
§ 61, 4 May 2006, and Kwiek v. Poland,
no. 51895/99, § 44, 30 May 2006). Thus, censorship of the
two letters of the Court's Registry to the applicant 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
1. Lawfulness of detention
- The
applicant also complains that his detention was unjustified and
therefore unlawful.
- The Court
reiterates that the reasonableness of the suspicion on which an
arrest must be based forms an essential part of the safeguard against
arbitrary arrest and detention which is laid down in Article
5 § 1 (c). Having a “reasonable suspicion”
presupposes the existence of facts or information which would satisfy
an objective observer that the person concerned might have committed
the offence (see Fox, Campbell and Hartley v. the United Kingdom,
judgment of 30 August 1990, Series A no. 182, p. 16, § 32).
However, facts which raise a suspicion need not be of the same level
as those necessary to justify a conviction or even the bringing of a
charge, which comes at a later stage of the process of criminal
investigation (see Murray v. the United Kingdom, judgment of
28 October 1994, Series A no. 300-A, p. 27 § 55).
- In
the light of the documents in the file, there is no indication that
there was no reasonable suspicion against the applicant which
provided grounds for his detention or that the authorities did not
have at their disposal evidence in support of imposition of
detention.
- 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.
2. Right to respect for family life
- The
applicant also complains that while detained he was not allowed to
see his family.
- However,
the Court observes that the applicant was apparently allowed, on an
unspecified number of occasions, to see his wife during his
detention. On 15 December 2002 she gave birth to a son. From that
date until 21 November 2003 the applicant saw his son on at least
three occasions (see paragraph 8 above). Hence, he was in fact
allowed to have contacts with his family. In any event, this
complaint does not appear to be substantiated.
- Having
regard to the above, the Court considers that the applicant has not
made out his case under Article 8 of the Convention. The Court finds
no discernible shortcomings indicating non-compliance with the
requirements of this Article.
- 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 claimed 25,000 Polish zlotys (PLN) in respect of
non-pecuniary damage.
- The Government argued that the applicant's claims were
exorbitant. They asked the Court to rule that a finding of a
violation of Article 8 constituted in itself sufficient just
satisfaction. In the alternative, they invited the Court to assess
the amount of just satisfaction on the basis of its case-law in
similar cases and having regard to national economic circumstances.
- The Court finds that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of Article 8 of the Convention. Considering
the circumstances of the case, the Court awards the applicant EUR 500
under this head.
B. Costs and expenses
- The
applicant submitted no claim in respect of 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 complaint concerning the
interference with 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 500 (five
hundred 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
