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FOURTH
SECTION
CASE OF PASTERNAK v. POLAND
(Application
no. 42785/06)
JUDGMENT
STRASBOURG
16 July
2009
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 Pasternak 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,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 23 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42785/06) 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 Adam Pasternak (“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
26 May 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Warsaw.
A. The first set of criminal proceedings against the
applicant
- On
22 June 2005 the Katowice Appeal Prosecutor (Prokuratur
Prokuratury Apelacyjnej) charged the applicant with fraud and
dealing in stolen goods committed in an organised criminal group.
- On
29 June 2005 the Katowice District Court (Sąd Rejonowy)
remanded the applicant in custody in view of the reasonable suspicion
that he had committed the offences in question. It further considered
that there was a risk that he would obstruct the proper conduct of
the investigation. The court also stressed the likelihood that a
heavy penalty would be imposed on him.
- In
the course of the investigation the applicant's detention was
extended regularly by the Katowice Regional Court (Sąd
Okręgowy) and the Wrocław Court of Appeal (Sąd
Apelacyjny). The courts repeated the grounds originally given for
his detention. The applicant appealed unsuccessfully against the
subsequent decisions.
- On
13 and 30 October and 6 December 2005 the applicant lodged
unsuccessful applications with the Appeal Prosecutor for his
detention to be lifted and replaced by another preventive measure.
- On
14 February 2006 the Wrocław Court of Appeal did
not extend the applicant's pre-trial detention. The court prohibited
the applicant from leaving the country and ordered police
supervision.
- The
applicant submits that despite the Court of Appeal's decision to
release him he was kept in detention until 17 February 2006, the date
when new charges were laid against him and the Katowice District
Court remanded him in custody in another set of proceedings.
B. Second set of criminal proceedings against the
applicant
- On
17 February 2006 the Katowice Appeal Prosecutor charged the applicant
with armed robbery, hostage taking and fraud committed in an
organised group.
- On
the same date the Katowice District Court remanded the applicant in
custody in view of the reasonable suspicion that he had committed the
offences in question. It further considered that there was a risk
that he would obstruct the proper conduct of the investigation. It
referred to the complexity of the case and the large number of
persons involved. The court also stressed the likelihood that a heavy
penalty would be imposed on him. The applicant unsuccessfully
appealed against the decision.
- On
24 February and 30 May 2006 the applicant lodged applications with
the Prosecutor of Appeal for his detention to be lifted and replaced
by another preventive measure. He referred to his state of health and
the deterioration of his family relationships. On 24 March and 5 June
2006 respectively the Prosecutor of Appeal dismissed his
applications.
- On
8 May 2006 the Katowice Regional Court extended the applicant's
detention. The court repeated the grounds previously given by the
District Court.
- Subsequently,
in the course of the proceedings the applicant's detention was
extended regularly by the Katowice Regional Court and the Katowice
Court of Appeal. The courts repeated the grounds originally given for
his detention. The applicant appealed unsuccessfully against the
subsequent decisions.
- In
the meantime, on 13 July 2006 and 22 January 2007 the applicant
lodged applications with the Appeal Prosecutor requesting permission
to call his daughter. Respectively, on 24 July 2006 and 5 February
2007 the Prosecutor refused his requests, referring in his decisions
to the prohibition on using telephone and other communication devices
by persons in pre-trial detention.
- On
30 October 2007 the Katowice Regional Court sentenced the applicant
to four years' imprisonment and ordered his release. It appears that
he was released on the same day.
-
The proceedings are still pending before the appellate court.
C. Censorship of the applicant's correspondence
- The
applicant submitted that during his detention his correspondence with
the Registry had been censored by the authorities. He produced a
Court envelope sent on 25 October 2006, which bears the following
stamp: “Censored, date ...” (Cenzurowano, dnia ...)
and an illegible signature. It appears that the envelope had been cut
open and subsequently resealed with adhesive tape.
- He
also produced a Court letter dated 27 March 2007, which bears a
stamp: “Prosecutor of the Appeal Prosecution Office in Kraków
delegated to the Katowice Appeal Prosecution Office, W. M.”
(Prokurator
Prokuratury Apelacyjnej w Krakowie del. Do Prokuratury Apelacyjnej
w Katowicach, W. M.), a
handwritten “date ..., censored” (Ocenzurowano)
and an illegible signature. The envelope in which the letter
was delivered bears the following stamp: “Censored, date ...”
It appears that the envelope had been cut open and subsequently
resealed with adhesive tape.
- On
9 May 2007 the Court received a letter from the applicant dated 14
March 2007. It bears the following stamp: “Prosecutor of
the Appeal Prosecution Office in Kraków delegated to the
Katowice Appeal Prosecution Office, W.M.” (Prokurator
Prokuratury Apelacyjnej w Krakowie del. do Prokuratury Apelacyjnej w
Katowicach, W.M.), a
handwritten “date..., censored” (Ocenzurowano)
and an illegible
signature.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law concerning censorship of detainees'
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 as follows:
“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
- The
Government submitted that the applicant had not exhausted all
available domestic remedies in that he had failed to bring an action
under Article 24 §§ 1 and 2 in conjunction with
Articles 417, 448 and 23 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 claim non-pecuniary damages.
- In this connection, the Government relied on the Śrem
District Court's judgment of 21 December 2005 in which a prisoner had
been awarded 3,000 Polish zlotys (PLN) in damages from the State
Treasury for a breach of secrecy of his correspondence with the
European Court of Human Rights. The judgment was partly amended on 19
May 2006 by the Poznań Regional Court, which reduced the amount
of damages granted to the claimant.
- Further,
the Government provided an example of the judgment delivered by the
Warsaw Regional Court on 27 November 2006 in which a prisoner had
been awarded PLN 5,000 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 correspondence was one of the personal rights
protected under Article 23 of the Civil Code and that in the
case of its breach a claimant may be entitled to an award of
non-pecuniary damages. The judgment was upheld by the Warsaw Court of
Appeal on 28 June 2007.
- The
applicant submitted that his difficult financial situation as well as
serious health problems had not allowed him to claim any damages
before the domestic courts.
- The
Court observes that Article 35 § 1 must be applied with some
degree of flexibility and without excessive formalism. The rule
of exhaustion of domestic remedies contained in that provision
requires that normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in
respect of the breaches alleged. The existence of the remedies
in question must be sufficiently certain not only in theory but in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, among other authorities, Akdivar and
Others v. Turkey, judgment of 16 September 1996,
Reports of Judgments and Decisions 1996-IV, § 65).
In addition, for the purposes of reviewing whether the rule of
exhaustion has been observed, it is essential to have regard to the
circumstances of the individual case. This means, in particular, that
the Court must take realistic account not only of the existence of
formal remedies in the legal system of the Contracting State
concerned but also of the general context in which they operate, as
well as the personal circumstances of the applicant (see Akdivar,
cited above, § 69).
- The
censorship in the present case concerned two Court letters sent to
the applicant on 25 October 2006 and 27 March 2007 and a letter of
9 May 2007 sent by the applicant to the Court.
- The
Court notes that the alleged interference with the applicant's
correspondence in respect of two letters sent by the Court occurred
after the delivery of the Poznań Regional Court's judgment of 19
May 2006, but before the Warsaw Court of Appeal gave its 28 June 2007
judgment. Hence, any relevance that the latter judgment might
possibly have in respect of the present case is reduced by the fact
that it was given after the relevant time (see, among other
authorities, Lewak v. Poland, no. 21890/03, § 25,
6 September 2007; Kołodziński v. Poland, no.
44521/04, § 29, 8 January 2008; and Misiak v. Poland, no.
43837/06, § 18, 3 June 2008).
- The
Court notes that the two examples of domestic case-law provided by
the Government do not constitute evidence of sufficiently established
judicial practice to show that a claim for damages under Article 24
§§ 1 and 2 in conjunction with Articles 417, 448 and 23 of
the Civil Code was an effective remedy available
in theory and practice at the material time.
- In
the circumstances of the case, it cannot therefore be said that any
attempt by the applicant to seek redress by lodging such an action
would have provided reasonable prospects of a successful outcome.
- As
to the letter of 9 May 2007, the Court notes that the complaint
concerning the alleged censorship thereof was raised ex officio.
The letter 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 could not be required to bring any
domestic proceedings in order to obtain redress for the alleged
breach of his right to respect for his correspondence in respect of
the letter of 9 May 2007.
- 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. The submissions before the court
(a) the applicant
- The
applicant submitted in general terms that the circumstances of his
case disclosed a breach of the Convention.
(b) the Government
- The
Government refrained from expressing an opinion on the merits of the
application.
2. The Court's assessment
(a) Whether there was interference
- The
Court notes that an envelope in which a Court letter of 25 October
2006 was sent to the applicant bears a stamp indicating that the
letter had been censored (see paragraph 19 above).
- Further,
a Court letter dated 27 March 2007 carries a handwritten note
demonstrating that it was censored by the authorities (see paragraph
20 above).
- It
appears that both Court envelopes had been cut open and subsequently
resealed with adhesive tape.
- Furthermore,
the Court observes that a letter received from the applicant on 9 May
2007 (dated 14 March 2007) bears a stamp which shows that its content
had been censored (see paragraph 21 above).
- 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, and 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
“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 notes that the interference with the applicant's right to
respect for his correspondence took place on three occasions when the
applicant was detained in a remand centre.
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, persons in 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, 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 applicant's letters 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”.
- 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 5 §§ 1 AND 2 OF
THE CONVENTION
- The
applicant complained that his detention in the period from 14 until
17 February 2006 had been unlawful, in particular that he had not
been informed of the reasons for his detention. In this respect he
relied on Article 5 §§ 1 and 2 of the Convention.
- However,
the Court notes that even assuming that the applicant had been
remanded in custody until 17 February 2006 as he claimed, his
detention was in any event lifted more than six
months before 17 October 2006, the date
on which this complaint was submitted to the Court.
It
follows that this complaint has been introduced out of time and must
therefore be rejected in compliance with Article 35 §§ 1
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant further complained that the length of his pre-trial
detention in the second set of proceedings had been excessive. He
relied on Article 5 § 3 of the Convention.
- The
Court notes that the applicant had been remanded in custody by the
Katowice District Court on 17 February 2006. On 30 October 2007 the
Katowice Regional Court sentenced the applicant to four years'
imprisonment. He was released on the very same day. Accordingly, the
period to be taken into consideration amounts to one year, eight
months and twelve days.
The
applicant was charged with armed robbery, hostage taking and
fraud committed in an organised criminal group (see
paragraphs 11 and 12 above). According to the well-established case
law of the Court (see, among other authorities, Bąk
v. Poland, no. 7870/04, §§ 56-65,
16 January 2007; Chruściński v. Poland, no.
22755/04, §§ 34-42, 6 November
2007; and Tomecki v. Poland, no. 47944/06, §§ 29-37,
20 May 2008) and in view of the
seriousness of the accusations and the fact
that the case concerned a member of an organised criminal group, it
cannot be said that the length of the applicant's detention had been
excessive.
- Consequently,
this complaint is manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained, invoking numerous provisions of the
Convention, that on account of the lengthy detention his contacts
with family members had deteriorated.
- Having
examined all the material in its possession, the Court finds
nothing in the case file which might disclose any appearance of a
violation of the rights guaranteed by 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.
V. 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 50,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government claimed that the application was inadmissible for
non-exhaustion of domestic remedies. They further submitted that, in
any event, the sum claimed by the applicant was
unreasonable in the light of the Court's case-law concerning similar
cases brought against Poland.
- 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 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. The Court awards the applicant EUR 1,000 under this
head.
B. Costs and expenses
- The
applicant did not claim any 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 censorship
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, 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 16 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
