FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 47672/09
by Romuald MOCNY
against Poland
The European Court of Human Rights (Fourth Section), sitting on 30 November 2010 as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Ljiljana Mijović,
	Ján Šikuta,
	Mihai Poalelungi,
	Nebojša Vučinić,
	Vincent A. de Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 19 August 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Romuald Mocny, is a Polish national who was born in 1966 and lives in Kalisz. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  Seizure of the applicant’s salary
On 11 December 1989 the Ostrów Wielkopolski District Prosecutor made a seizure order in respect of the applicant’s salary in the amount of 60,297.50 old Polish zlotys in the context of criminal proceedings against him. In accordance with the then applicable rules the seized amount was placed on a court deposit. On an unspecified date in 1990 the applicant was convicted of a criminal offence.
On an unspecified date in 2009 the applicant requested the Ostrów Wielkopolski District Court to return the seized amount. On 28 April 2009 the court allowed his request. The amount to be returned was 6 new Polish zlotys following the change in the denomination of the national currency which had taken place on 1 January 1995.
The applicant appealed and claimed that the amount of 60,297.50 PLN should have been returned to him. On 24 June 2009 the Kalisz Regional Court dismissed his appeal. It found that there were no regulations providing for placement of the seized amount on a bank deposit or that the returned amount should have been index-linked. Accordingly, following the change in the denomination the applicant was due to receive 6 PLN.
2.  The alleged censorship of the applicant’s correspondence with the Court
The envelope in which the applicant’s application form was sent to the Court from the Rawicz Prison bears a stamp “Censored” (Ocenzurowano) and a stamp of the Ostrów Wielkopolski Regional Prosecution Service dated 18 August 2009 and signed by a prosecutor E.M. It also bears a stamp of the Rawicz Prison indicating that the letter was received on 12 August 2009. It appears that the envelope was cut open and subsequently resealed with adhesive tape.
B.  Relevant domestic law
1.  Censorship of correspondence
Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 1 September 1998.
Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:
“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”
Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.
Article 217 § 1 reads, in so far as relevant:
“... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
Pursuant to Article 214 § 1,
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:
“The prohibition of censorship shall also mean the prohibition on acquainting oneself with the contents of a letter.”
2.  Protection of personal rights
Article 23 of the Civil Code sets out a non-exhaustive list of the so‑called “personal rights” (dobra osobiste) in the following way:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24 § 1 reads as follows:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
Article 448 provides:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
Article 442¹ of the Civil Code sets out limitation periods in respect of various claims based on tort, including actions for the infringement of personal rights. Article 442¹, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows:
“1.  A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”
COMPLAINTS	
1.  The applicant complained, without invoking any provision of the Convention, that the seized amount should have been returned to him long before the change in the denomination. He claimed that the amount had been unlawfully held by the authorities for twenty years.
2.  In respect of the alleged censorship of the applicant’s correspondence, the Court raised of its own motion a complaint about a breach of Article 8 of the Convention.
THE LAW
1.  The applicant claimed that the seized amount should have been returned to him long before the change in the denomination.
The Court notes that in so far as the applicant’s complaint relates to the seizure of his salary effected in 1989 it has no temporal jurisdiction to examine the matter. In so far as the complaint falls within the Court’s jurisdiction, it observes that the applicant’s request for return of the seized amount was allowed and the returned amount reflected the change in the denomination of the national currency. The Court further notes that the applicant has not instituted civil proceedings against the authorities had he considered that the returned amount should have been higher.
Even assuming that the applicant has not exhausted domestic remedies, the Court considers that this complaint is still manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2.  The Court raised of its own motion a complaint under Article 8 of the Convention concerning the alleged censorship of the applicant’s correspondence.
The Government objected to the Court’s decision to give notice ex officio of the complaint to the Government. They submitted that it did not follow from the Convention or from the Rules of Court that the Court could initiate of its own motion the examination of a complaint which was not lodged by the applicant. In the Government’s view, the Court had transgressed its competencies.
Secondly, the Government argued that the applicant has not resorted to a civil action for infringement of the secrecy of his correspondence under Articles 23 and 24 § 1 read in conjunction with Article 448 of the Civil Code which the Court recognised as an effective domestic remedy in respect of the alleged breaches of Article 8 of the Convention (see, Biśta v. Poland, no. 22807/07, 12 January 2010). In this connection, they maintained that the Court did not respect the principle of subsidiarity.
Thirdly, the Government asserted that the applicant could not have been unaware of the fact of the censorship of his correspondence with the Court. They were of the view that the Court should have informed the applicant of the alleged interference and instructed him to have recourse to the available domestic remedies as was the Court’s practice in respect of applications concerning the excessive length of proceedings following the entry into force of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”).
The applicant did not comment on the Government’s submissions.
In respect of the Government’s objection to the Court’s raising of its own motion the issue of the alleged censorship of the applicant’s correspondence, the Court reiterates that it is master of the characterisation to be given in law to the facts of the case and it does not consider itself bound by the characterisation given by the applicant or the Government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties and even under a provision in respect of which the Convention institutions had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172, Guerra and Others, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, ECHR 2009‑..., and Anusca v. Moldova, no. 24034/07, § 26, 18 May 2010).
Furthermore, the Court observes that in its practice it occasionally raised of its own motion complaints under Articles of the Convention which were not invoked by the applicant (see, amongst others, Ladent v. Poland, no. 11036/03, § 77, ECHR 2008‑... (extracts)). In numerous cases concerning the monitoring of prisoners’ correspondence with the Court it was settled practice that the Court would raise of its own motion the issues of compliance with Article 8 and, in some cases also of compliance with Article 34 of the Convention (see, amongst many others, Pisk-Piskowski v. Poland, no. 92/03, § 20, 14 June 2005; Drozdowski v. Poland, no. 20841/02, § 19, 6 December 2005; Michta v. Poland, no. 13425/02, § 52, 4 May 2006; Maksym v. Poland, no. 14450/02, § 20, 19 December 2006; Lewak v. Poland, no. 21890/03, § 20, 6 September 2007; Kliza v. Poland, no. 8363/04, § 56, 6 September 2007; Kołodziński v. Poland, no. 44521/04, § 23, 8 January 2008; Dzitkowski v. Poland, no. 35833/03, § 50, 27 November 2007, Stępniak v. Poland, no. 29366/03, § 14, 29 January 2008, Miernicki v. Poland, no. 10847/02, § 75, 27 October 2009).
In the great majority of those cases the monitoring of correspondence concerned letters sent by the applicants to the Court where it was very probable that the applicants could not have been aware of the interference with their correspondence. The Court observes that situations of this kind should be seen in the context of the effective operation of the system of individual petition guaranteed by Article 34 of the Convention. While in the present case there is no allegation or evidence of undue pressure, the interception of letters by prison authorities can also hinder applicants in bringing their cases to the Court (see, Klyakhin v. Russia, no. 46082/99, § 119, 30 November 2004, Drozdowski, cited above, §§ 27-31, and Maksym, cited above, § 31).
Having regard to the above, the Court rejects the Government’s objection to its decision in the present case to raise of its own motion the issue of compliance with Article 8 of the Convention.
The Government further submitted that the applicant had not exhausted the relevant domestic remedy. He did not avail himself of an action for protection of his personal rights under Articles 23 and 24 § 1 read in conjunction with Article 448 of the Civil Code. The applicant did not comment.
The Court recalls that in the case of Biśta v. Poland (no. 22807/07, 12 January 2010, §§ 44-49) it considered a similar objection concerning remedies to be used in cases of interference with a prisoner’s correspondence. It established, having regard to the relevant developments in the domestic practice, that in respect of the alleged infringements of the secrecy of a prisoner’s correspondence which took place after 28 June 2007 applicants were required to have recourse to a civil action under Articles 23 and 24 § 1 read in conjunction with Article 448 of the Civil Code.
In the present case, it is arguable that the applicant was not aware of the alleged interference with the right to respect for his correspondence (see, for example, Krawiecki v. Poland, no. 49128/06, § 18, 9 June 2009). However, that fact was brought to his attention following the Court’s decision to raise of its own motion the complaint under Article 8 of the Convention and give notice of it to the respondent Government. The alleged censorship occurred on 18 August 2009, that is after the relevant date (28 June 2007) set out in the Biśta judgment. Furthermore, given that the three-year limitation period for lodging such civil action has not yet expired, the applicant may still make use of this remedy.
That being so, the Court considers that the applicant should, as required by Article 35 § 1 of the Convention, put the substance of his Convention claim under Article 8 before the domestic courts.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Lawrence Early	Nicolas Bratza	Registrar	President