FOURTH SECTION

CASE OF JAKUBIAK v. POLAND

(Application no. 36161/05)

JUDGMENT

STRASBOURG

8 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 Jakubiak v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Nicolas Bratza, President,
	Josep Casadevall,
	Stanislav Pavlovschi,
	Lech Garlicki,
	Ljiljana Mijović,
	Jan Šikuta,
	Päivi Hirvelä, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 December 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 36161/05) 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 Janusz Jantar Jakubiak (“the applicant”), on 19 September 2005.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On 15 February 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
4.  The applicant was born in 1967 and lives in Łowicz.
A.  Criminal proceedings against the applicant
5.  The applicant was charged with armed robbery and, on an unspecified date, remanded in custody.
6.  On 10 November 2005 the Rawa Mazowiecka District Court sentenced the applicant to eight years and six months' imprisonment.
7.  The applicant lodged an appeal.
8.  On 5 May 2006 the Łódź Regional Court upheld the first-instance judgment and dismissed the appeal as manifestly ill-founded.
9.  The applicant did not lodge a cassation appeal.
B.  Censorship of the applicant's correspondence
10.  On 30 September 2005 the Court received a letter from the applicant. The envelope bore the stamp “Censored on 19 September 2005” (Ocenzurowano dnia 19.09.2005), an illegible signature and the stamp of the Rawa Mazowiecka District Court (Sąd Rejonowy Rawa Mazowiecka). The envelope was sealed with adhesive tape. The letter of 11 September 2005 which was in the envelope likewise bore the stamp: “Censored on 19 September 2005” and an illegible signature.
II.  RELEVANT DOMESTIC LAW
11.  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 8 OF THE CONVENTION
12.  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 on non-exhaustion of domestic remedies
13.  The Government submitted that the applicant had not exhausted all available domestic remedies. He had failed to bring an action under Article 24 § 2 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.
14.  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 may be entitled to an award of compensation for non-pecuniary damage.
15.  The applicant did not comment.
2.  The Court's assessment
16.  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.
17.  Even assuming that the applicant 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 September 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 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. There is no indication that it has been reviewed by higher courts and that it has became final.
18.  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
19.  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
20.  The Court notes that the envelope in which the applicant's letter of 11 September 2005 was sent to the Court from the Łowicz Prison bears a stamp that reads: “censored on 19 September 2005” and “the Rawa Mazowiecka District Court”. The envelope in which this letter was sent to the Court from the Łowicz Prison bears similar stamps. It appears that the envelope had been cut open, the letter read and subsequently the envelope resealed with adhesive tape.
21.  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 letter 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”
22.  The Government did not indicate a specific legal basis in the domestic law for the impugned interference. The Court notes that the interference took place when the applicant had been in pre-trial detention.
23.  The Court observes that, by virtue of Article 214 of the Code of Execution of Criminal Sentences, persons in pre-trial detention 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). Thus, censorship of the applicant's letter to the Court was contrary to the domestic law. It follows that the interference in the present case was not “in accordance with the law”.
24.  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.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
25.  The applicant complained under Article 6 § 1 of the Convention that he had not had a “fair trial”.
26.  The Court notes that it appears that the applicant did not lodge a cassation appeal with the Supreme Court. However, even assuming that the applicant had exhausted domestic remedies, the Court reiterates that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
27.  The Court observes that the applicant does not allege any particular failure to respect his right to a fair hearing. Assessing the criminal proceedings against the applicant as a whole, it finds no indication that they were unfairly conducted.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  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
29.  The applicant did not claim any particular sum in respect of pecuniary or non-pecuniary damage. He left that matter to the Court's discretion and asked the Court to award him just satisfaction in the amount it finds appropriate.
30.  The Government, finding that the applicant had not expressed his just-satisfaction claims precisely, did not comment on this aspect of the applicant's claim.
31.  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 500 euros (EUR) under this head.
B.  Costs and expenses
32.  The applicant submitted no claim in respect of costs and expenses.
C.  Default interest
33.  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

1.  Declares the complaint concerning the interference with the applicant's correspondence admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 8 of the Convention;

3.  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.
Done in English, and notified in writing on 8 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	 Nicolas Bratza
	Deputy Registrar	President