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FOURTH
SECTION
CASE OF KOŁODZIŃSKI v. POLAND
(Application
no. 44521/04)
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 Kołodziński v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Kristaq Traja,
Lech
Garlicki,
Ljiljana Mijović,
Jan Šikuta,
Paivi
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
- The
case originated in an application
(no. 44521/04) 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 Leszek
Kołodziński (“the applicant”), on 19 August
2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
12 April 2007 the
President of the Fourth Section decided to communicate the complaint
concerning the monitoring of the applicant's correspondence 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 1949 and lives in Gdańsk, Poland.
A. Criminal
proceedings against the applicant
- On
16 July 2004 the applicant was arrested on suspicion of robbery. On
17 July 2004 the Gdańsk District Court (Sąd Rejonowy)
ordered that the applicant be remanded in custody until
16 October 2004. It found that there were reasonable
grounds – in particular, evidence from witnesses – for
suspecting him of the offence charged. The court further noted that
the applicant was liable to a statutory maximum sentence of at least
12 years' imprisonment. It also found that there was a risk
that the applicant might tamper with evidence.
- On
11 October 2004 the Gdańsk District Court prolonged the
applicant's detention until 16 January 2005. It considered
that the reasons for keeping him in detention were still valid and
the need to secure the proper conduct of the investigation justified
holding him in custody.
It referred to the likelihood of a severe
sentence of imprisonment being imposed on the applicant. It also
found that there was a risk that the applicant might tamper with
evidence, given the nature of the charges against him and the fact
that he had acted with other co-accused.
7. The applicant's detention was subsequently prolonged by the
District Court on unspecified dates. The courts' decisions were based
on Article 258 § 1 of the Code of Criminal Procedure,
which lists grounds for pre-trial detention, such as, the risk that
an accused will abscond or go into hiding or a justified fear that an
accused will attempt to induce witnesses or co-defendants to give
false testimony or to obstruct the proper course of proceedings by
any other unlawful means.
- On
27 October 2005 the Gdańsk District Court convicted the
applicant of two counts of robbery and sentenced him to 3 years and 6
months' imprisonment. The applicant appealed.
- On
26 September 2006 the Gdańsk Regional Court (Sąd
Okręgowy) upheld the impugned judgment.
-
The applicant did not lodge a cassation appeal.
B. Censorship of the
applicant's correspondence
-
The applicant's letter to the Court dated 24 November 2004 bears a
stamp marked “censored” (cenzurowano), “the
prosecutor” (prokurator) followed by an illegible
signature. It appears that the envelope in which that letter was sent
had been cut open and subsequently resealed with adhesive tape.
According to the postmark the letter was posted on 8 December 2004.
- The
application form submitted by the applicant and dated 13 January 2005
bears a stamp marked “censored” (cenzurowano),
“the judge” (sędzia) followed by an illegible
signature. The envelope bears a stamp confirming that the applicant's
letter was received for dispatch by the prison administration on
18 January 2005. However, according to the postmark the
letter was not posted until 31 January 2005. It also
appears that the envelope was cut open and subsequently resealed with
adhesive tape.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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 5 § 1 OF THE
CONVENTION
- The applicant complained that his detention was in
breach of Article 5 § 1 of the Convention, which
provides, in so far as relevant, as follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...”
- The
Court notes, however, that the applicant's detention was based on
Article 258 § 1 of the Code of Criminal Procedure and that he
was detained on reasonable suspicion of having committed a serious
offence (see paragraph 7 above). It accordingly finds that the
decision to place the applicant in custody had a legal basis and was
issued by the competent judicial authority. There is nothing to
suggest that the legal basis for his detention was not clearly
defined or, therefore, lacked the degree of foreseeability required
by the Convention. The Court is therefore satisfied that the
applicant's detention complied with the requirements of Article
5 § 1. Moreover, the Court does not discern any
appearance of arbitrariness in the decisions of the relevant judicial
authorities on the applicant's detention. It also observes that
the lawfulness of the detention was repeatedly reviewed by the
competent domestic courts (see Malik v. Poland, no.
57447/00, § 26, 4 April 2006).
- Against
that background, the Court concludes that the applicant's detention
was “lawful” within the meaning of Article 5 § 1 of
the Convention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention simultaneously.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention about
unfairness of the proceedings in that he had been convicted despite
being innocent. However, according to Article 35 § 1 of the
Convention:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law ...”
- The
Court finds that the applicant did not file a cassation appeal with
the Supreme Court against the final judgment of the Gdańsk
Regional Court of 26 September 2006.
-
In that regard, the Court observes that under Polish law and in
accordance with the practice of the Supreme Court a cassation appeal
can be brought by a party alleging a flagrant breach of any
substantive or procedural provision of law capable of affecting the
substance of the judgment (see, Kucharski v. Poland
(dec.), no. 51521/99, 16 October 2003).
-
The cassation appeal was therefore a remedy that would have permitted
the applicant to submit the substance of the present complaint to the
domestic authorities effectively and to seek relief.
-
It follows that the complaint is inadmissible for non-exhaustion of
domestic remedies within the meaning of Article 35 § 1 of the
Convention and must be rejected pursuant to Article 35 § 4.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
Court raised of its own motion an issue under Article 8 of the
Convention on account of the fact that the applicant's correspondence
with the Court had been censored. The relevant part of this provision
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 preliminary objection on 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 24 §§ 1 and 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 to make a claim in
respect of non-pecuniary damage.
-
The Government further submitted that the provisions of the Civil
Code were reinforced by the provisions of the Polish Constitution, in
particular Article 49 (which protects the freedom and secrecy of
communication) and Article 77 (which secures to everyone the
possibility of seeking redress for damage caused by a public
authority).
- 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 the confidentiality of his correspondence
with the Central Board of the Prison Service and the Central
Electoral Office. The Regional Court held that the confidentiality of
correspondence was a personal right protected under Article 23
of the Civil Code whose breach could entitle the claimant to an award
in respect of non-pecuniary damage.
- The
applicant did not comment.
2. The Court's assessment
- The
Court notes that the complaint under Article 8 of the Convention
concerning the alleged censorship of the applicant's correspondence
was raised ex officio. The two letters at issue were sent by
the applicant to the Court and he could not have been aware that they
had been censored by the authorities. In these 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.
- Even
had the applicant complained about the censorship of his letters to
the Court, it has to be noted that the alleged interference with his
correspondence occurred in 2004 and 2005, whereas the Government
relied on the Warsaw Regional Court's judgment of 27 November 2006.
Any relevance the latter judgment might have to the present case
is therefore reduced by the fact that it was delivered 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.
- 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
- 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
-
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.
2. The Court's assessment
(a) Existence of an interference
-
The Court first observes that the applicant's letter of
24 November 2004 bears a stamp marked “censored”,
“the prosecutor”, followed by an illegible signature. In
addition, the envelope had been opened and resealed with adhesive
tape (see paragraph 11 above).
-
The Court further notes that the application form submitted by the
applicant and dated 13 January 2005 bears a stamp marked “censored”,
“the judge”, followed by an illegible signature. The
envelope bears a stamp indicating that the applicant's letter was
received and dispatched by the prison administration on 18 January
2005. However, according to the postmark the letter was posted with a
13 day delay. It appears that the envelope was cut open and
subsequently resealed with adhesive tape (see paragraph 12 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; 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.
-
It follows that the opening, reading and delaying of the applicant's
letters to the Court amounted to an “interference” with
his right to respect for his correspondence under Article 8.
(b) Whether the interference was “in
accordance with 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
Government noted that the impugned interference took place on two
occasions between 24 November 2004 and 31 January 2005 when
the applicant was in detention on remand. The Government referred to
the amendments introduced to the Code of Execution of Criminal
Sentences on 24 July 2003, but did not point to a concrete basis in
the domestic law that would justify such interference.
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, persons detained on remand 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 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”.
- That
being so, 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.
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 30,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that the applicant's claim was excessive and
linked to the applicant's detention on remand. 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 considers that the applicant has suffered
non pecuniary damage which is not sufficiently compensated for
by the finding of a violation of the Convention. Considering the
circumstances of the case, and making its assessment on an equitable
basis, the Court awards the applicant EUR 1,000 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 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, 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 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
