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FOURTH
SECTION
CASE OF WARSIŃSKI v. POLAND
(Application
no. 38007/02)
JUDGMENT
STRASBOURG
4
December 2007
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 Warsiński v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mrs F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 13 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38007/02) 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 Artur Warsiński
(“the applicant”), on 3 October 2002.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
29 November 2006 the President of the Fourth Section of the Court
decided to communicate to the Government the complaint concerning the
issue of the possible monitoring of the applicant's correspondence.
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
A. The criminal proceedings against the applicant
- The
applicant, Mr Artur Warsiński, is a Polish national who was born
in 1976 and lives in Bytów.
- The
applicant was charged with drug trafficking and detained on remand
from 6 April 2002 to 21 May 2004. He was detained in the Słupsk
Detention Centre.
- On
28 May 2003 the Słupsk Regional Court found the applicant guilty
of drug trafficking and sentenced him to three years' imprisonment.
The applicant appealed.
- On
30 December 2003 the Gdańsk Court of Appeal amended the judgment
and sentenced the applicant to two years and four months'
imprisonment. The judgment is final.
B. The monitoring of the applicant's correspondence
- On
3 October 2002 the applicant sent a letter to the European Court of
Human Rights. It was received by the Court on 21 October 2002. It
bears a stamp “censored on” (cenzurowano dnia ...),
a handwritten date “2 October” and an illegible
signature. The envelope also bears a stamp of the Słupsk
Regional Court.
- On
4 December 2002 the applicant sent another letter to the European
Court of Human Rights. It was received by the Court on 17 December
2002. It bears a stamp “censored on”, a handwritten date
“4 December” and an illegible signature. The envelope
also bears a stamp of the Słupsk Regional Court.
- It
also appears that both envelopes had been cut open and resealed with
adhesive tape.
- The
applicant submitted a photocopy of an envelope sent to him on
24 October 2002 by the Court. It bears a stamp “censored
on”, a handwritten date “31 October 2002” and an
illegible signature. The envelope also bears a stamp of the Słupsk
Regional Court. The applicant claimed that he had received the letter
in an opened envelope.
- The
applicant also produced a photocopy of an envelope sent to him on 22
November 2002 by “Amnesty International”. It bears a
stamp “censored”, a handwritten date “28 November
2002” and an illegible signature. The envelope also bears a
stamp of the Słupsk Detention Centre, with a date of receipt (25
November 2002) and a stamp of the Słupsk Regional Court.
- Lastly,
the applicant submitted a photocopy of an envelope sent to him on 28
November 2002 by “Transparency International - Polska”.
It bears a stamp “censored”, a handwritten date
“3 December” and an illegible signature. The
envelope also bears a stamp of the Słupsk Detention Centre, with
a date of receipt (2 December 2002) and a stamp of the Słupsk
Regional Court.
- On
12 June 2003 the applicant sent a letter to the Słupsk Regional
Court in which he complained about censorship of his correspondence.
- On
30 June 2003 he received a letter from the President of the Słupsk
Regional Court informing him that, according to the information
obtained from the Criminal Department of the Słupsk Regional
Court, the applicant's correspondence had not been censored. He
further stated that the applicant's correspondence had been stamped
“censored” by mistake.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law concerning the censorship of prisoners'
correspondence is set out in the Court's judgments in the cases of
Michta v. Poland, no. 13425/02, §§ 33-39, 4 May
2006 and Kwiek v. Poland, no. 51895/99, § 21-24, 30
May 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Articles 8 and 34 of the Convention about
censorship of his correspondence. The Court raised of its own motion
a complaint under those Articles in respect of
the letters sent by the applicant to the Court. Article 8 of
the Convention provides, as relevant:
“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.”
Article
34 of the Convention reads as follows:
“The Court may receive applications from any
person, non governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. Admissibility (exhaustion of domestic remedies)
- The
Government submitted that the applicant had not exhausted all
available domestic remedies because he had failed to bring an action
under Article 23 and/or Article 24
§ 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 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 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
one's 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
applicant did not comment.
- The
Court notes that the complaint under Article 8 of the Convention
concerning the alleged censorship of the applicant's
correspondence insofar as it concerned the two
letters sent to the Court was raised ex officio.
In respect of the two letters at issue the applicant could not have
been aware that they had been censored by the authorities. In those
circumstances, the applicant cannot be required to bring any domestic
proceedings in order to obtain redress for the alleged breach of his
right to respect for his correspondence.
- Insofar
as other letters are concerned, received by the applicant from the
Court and other institutions, it is to be noted that the alleged
interference with the applicant's correspondence occurred in 2002,
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 it was given long after the relevant time
(see, for example, V. v. the United Kingdom [GC],
no. 24888/94, § 57, ECHR 1999 IX).
- In
any event the Court observes that the applicant complained to the
Słupsk Regional Court about censorship of his correspondence,
but the court informed him, without instituting relevant proceedings,
that the applicant's correspondence had been stamped as “censored”
by mistake (see paragraphs 14 and 15 above).
- 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
- 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.
- 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).
1. Existence of an interference
- The
Court first notes that all the envelopes containing the applicant's
correspondence with the Court, as well as those in which letters from
the non-governmental organisations “Amnesty International”
and “Transparency International” were sent to the
applicant, were marked “censored on...” (cenzurowano
dnia ...). Moreover, it appears that the two envelopes containing
the applicant's letters to the Court had been cut open and
subsequently resealed with adhesive tape.
- The
Court considers that marking the applicant's letters as “censored”
indicates that there is a reasonable likelihood that the envelope had
been opened by the domestic authorities. 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, Michta v. Poland, no. 13425/02, § 58,
4 May 2006). It follows that there was an “interference”
with the applicant's right to respect for his correspondence under
Article 8.
2. Whether the interference was “in accordance
with the law” and whether it was justified
a. The applicant's correspondence with the
Court's Registry
- The
Court notes that the impugned interference took place in 2002 when
the applicant had been detained on remand.
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, persons detained on remand 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; 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”.
- Accordingly,
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.
- Having
regard to this finding, the Court does not consider it necessary to
examine this complaint under Article 34
of the Convention (see Pisk-Piskowski, cited above, §
29).
b. The applicant's correspondence with
“Amnesty International” and “Transparency
International”
- The
Government did not indicate a concrete legal basis in the domestic
law for the impugned interference.
- Having
regard to the provisions of Article 217 § 1 of the
Code of Execution of Criminal Sentences the Court accepts that there
was a legal basis for the opening and reading of the letters in
question.
- The
Court recalls that in a number of its previous judgments – for
instance, those in the cases of Matwiejczuk v. Poland (no.
37641/97, judgment of 2 December 2003, § 101) and of
Mianowski v. Poland (no. 42083/98, judgment of 16
December 2003, § 65) – it has already dealt with the
question whether Polish law as it stood at the material time
indicated with reasonable clarity the scope and manner of control of
prisoners' correspondence. The Court has found that the
applicable provisions of Polish law were adequately accessible.
Furthermore, bearing in mind the impossibility of attaining absolute
certainty in the framing of laws and the risk that the search for
certainty may entail excessive rigidity, it has accepted that the
provisions were formulated with sufficient precision (see Kwiek,
cited above, § 46).
- The
Court is satisfied that the provision in question pursued the
legitimate aim of “the prevention of disorder or crime”.
However, as regards the necessity of the interference, the Government
have not submitted any reasons which could justify the control of the
applicant's correspondence with recognised non-governmental
organisations, even if one of them does not deal with human rights as
such but with the fight against corruption. Accordingly, the
interference complained of was not necessary in a democratic society
within the meaning of Article 8 § 2 of the Convention (see,
mutatis mutandis, Puzinas v. Lithuania, no. 44800/98,
§ 21, 14 March 2002). There has consequently been a
violation of Article 8.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated by police officers,
namely that he had been subjected to psychological pressure while
being interrogated.
- The
Court observes that the applicant did not provide sufficient
information to make his allegations plausible. Furthermore, it
appears that he did not raise those complaints
before any competent authority. The Court therefore considers
that the applicant's allegations are entirely unsubstantiated.
- 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant further complained that the proceedings in his case were
unfair. In particular, he alleged that the domestic courts had
erroneously assessed the evidence and that he had been wrongly
convicted. He did not rely on any specific provision of the
Convention. This complaint falls to be examined under Article 6 §
1 of the Convention.
- The
Court reiterates that, according to Article 19 of the Convention, its
duty is to ensure the observance of the engagements undertaken by the
Contracting Parties to the Convention. In particular, it is not its
function to deal with errors of fact or 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, with
further references).
- In
the present case the applicant did not allege any particular failure
to respect his right to a fair hearing on the part of the relevant
courts. Indeed, his complaints are limited to a challenge to the
result of the proceedings. Assessing the circumstances of the case as
a whole, the Court finds no indication that the impugned proceedings
were conducted unfairly.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
IV. 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 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 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. Considering
the circumstances of the case, the Court awards the applicant
EUR 1,200 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 that it is not necessary to examine the
complaint under Article 34 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 1,200 (one
thousand two 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 4 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
