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FOURTH
SECTION
CASE OF OLEKSY v. POLAND
(Application
no. 64284/01)
JUDGMENT
STRASBOURG
28
November 2006
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 Oleksy v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 7 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 64284/01) 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
Nestor Oleksy (“the applicant”), on 4 April 2000.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- On
16 September 2005 the President of the Fourth Section of the Court
decided to communicate 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
- The
applicant was born in 1975 and lives in Wrocław, Poland.
- On
30 November 1999 the applicant was arrested by the police.
- On
2 December 1999 the Wrocław District Court (Sąd
Rejonowy) decided to detain the applicant on remand in view of
the reasonable suspicion that he had been drug trafficking.
- On
17 February 2000 the Wrocław Regional Court (Sąd
Okręgowy) decided to prolong the applicant’s pre-trial
detention. It found that the strong suspicion against the applicant,
the severity of the expected penalty, and the need to secure the
proper course of the investigation, justified holding him in
detention.
- On
17 May and 6 June 2000 the Wrocław Court of Appeal (Sąd
Apelacyjny), upon an application by the Wrocław Regional
Prosecutor (Prokurator Okręgowy), further prolonged the
applicant’s pre trial detention. It reiterated the
original grounds for keeping him in custody and added that the
complexity of the case and the large number of co accused
justified the fear that, once released, the applicant would attempt
to influence witnesses or abscond.
- On
17 August 2000 the applicant was indicted before the Wrocław
Regional Court.
- On
20 November 2000 the Wrocław Regional Court held a hearing at
which it further prolonged the applicant’s detention until
31 January 2001. The court gave the following reasons:
“The majority of the adduced evidence has not yet
been taken, and it is impossible to do this by 30 November 2000.”
- At
the hearing held on 15 January 2001 the trial court again prolonged
the applicant’s detention until 31 March 2001 giving the
following reasons:
“The grounds on which the detention on remand was
ordered are still valid. At the same time it is impossible to
consider all the evidence before the end of the period for which the
detention had been previously prolonged; that is by 31 January 2001.”
- At
the hearings on 22 June and 20 August 2001, the Wrocław Regional
Court prolonged the applicant’s detention, repeating the
justification given in both previous decisions.
- Subsequently,
as the length of the applicant’s detention had reached the
statutory time-limit of 2 years laid down in Article 263 § 3 of
the Code of Criminal Procedure (Kodeks postępowania karnego),
the Regional Court applied to the Wrocław Court of Appeal asking
for the applicant’s detention to be prolonged beyond that term.
On 14 November 2001 the Court of Appeal granted the request.
- The
applicant’s numerous applications for release and appeals
against decisions concerning the prolongation of his detention were
to no avail.
- On
11 April 2002 the Wrocław Regional Court convicted the applicant
and sentenced him to four years’ imprisonment.
- The
applicant apparently did not appeal against this judgment and it
became final. On an unspecified later date the applicant was released
from prison. It appears that in 2005 the applicant remained in
detention in connection with another set of criminal proceedings
against him.
B. The monitoring of the applicant’s
correspondence
- On
31 May 2000 the Registry received the applicant’s first letter
to the Court of 4 April 2000. On the top of the first page of the
letter there is a handwritten note: censored (ocenzurowano)
and an illegible signature. The envelope in which the letter was
delivered bears signs of having been opened and then resealed: one
side had been cut open and then resealed with adhesive tape. The
envelope bears a handwritten note: R[egional] P[rosecutor] Wrocław
(P.O. Wrocław) and a stamp: Wrocław Detention Centre
2000 04 10 (Areszt Śledczy we Wrocławiu).
The letter had been posted on 27 April 2000.
- On
25 August 2005 the applicant complained that the Court’s letter
of 27 July 2005 had been censored by the authorities. The
original of that letter, submitted by the applicant, is marked on the
reverse side with a blue stamp “censored” (cenzurowano).
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure of 1997, which entered into force on
1 September 1998, defines detention on remand as one of the
so called “preventive measures” (środki
zapobiegawcze). Article 249 § 5 provides that the lawyer of
a detained person should be informed of the date and time of court
sessions at which a decision is to be taken concerning prolongation
of detention on remand.
A
more detailed rendition of the relevant domestic law provisions is
set out in the Court’s judgment in Celejewski v. Poland,
no. 17584/04, §§ 22 and 23, 4 May 2006.
- 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) (“the 1997
Code”) which entered into force on 1 September 1998. The
relevant part of Article 103 § 1 of the Code provides
as follows:
“Convicts (...) have a right to lodge complaints
with institutions established by international treaties ratified by
the Republic of Poland concerning the protection of human rights.
Correspondence in those cases (...) shall be sent to the addressee
without delay and shall not be censored.”
For a
more detailed rendition of the relevant domestic law provisions, see
the Court’s judgment in Michta v. Poland, no. 13425/02,
§ 33, 4 May 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention on remand had
been unreasonable. He relied on Article 5 § 3 of the Convention,
which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument. The Government considered that
the applicant’s pre-trial detention satisfied the requirements
of Article 5 § 3. It was justified by “relevant”
and “sufficient” grounds. These grounds were, in
particular, the gravity of the charges against the applicant as well
as the risk that he might obstruct the course of the proceedings. The
Government further argued that the domestic authorities showed due
diligence, as required in the case of detained persons. They also
maintained that the proceedings were “extremely complex,”
in particular due to the fact that 4 persons had been accused and the
trial court “conducted extensive evidentiary procedures”.
A. Admissibility
- The
Government raised a preliminary objection that the applicant failed
to exhaust domestic remedies in respect of his complaint about the
unreasonable length of his detention on remand in that he failed to
lodge an appeal against the first-instance judgment.
- However, the Court observes that the Government’s
objection is confined to a mere assertion and no information of any
judicial practice relating thereto has been provided. In the absence
of such evidence, the Court finds that the Government have failed to
substantiate their contention that an appeal against the judgment of
the trial court should be considered an effective remedy for the
applicant’s complaint under Article 5 § 3 of the
Convention.
- Accordingly,
the Court rejects the Government’s preliminary objection. It
further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. The Court therefore
declares it admissible.
B. Merits
1. Principles established under the Court’s
case-law
- Under
the Court’s case-law, the issue of whether a period of
detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention must
be assessed in each case according to its special features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty (see, among other authorities, W.
v. Switzerland, judgment of 26 January 1993, Series A
no. 254 A, p. 15, § 30, and Kudła v.
Poland [GC], no. 30210/96, § 110, ECHR 2000 XI).
- The
presumption is in favour of release. As established in Neumeister
v. Austria (judgment of 27 June 1968, Series A no. 8, p.37,
§ 4), the second limb of Article 5 § 3 does not give
judicial authorities a choice between either bringing an accused to
trial within a reasonable time or granting him provisional release
pending trial. Until conviction, he must be presumed innocent, and
the purpose of the provision under consideration is essentially to
require his provisional release once his continuing detention ceases
to be reasonable (see McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006-...).
- Continued
detention therefore can be justified in a given case only if there
are specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighs the
rule of respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Kudła v. Poland
[GC], no. 30210/96, §§ 110 111 with further
references, ECHR 2000-XI).
- It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts mentioned by the applicant in his appeals, that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see
McKay, cited above, § 43).
- The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy [GC], no. 26772/95, § 153,
ECHR 2000 IV, and Jablonski v. Poland, no. 33492/96,
§ 80, 21 December 2000).
2. Application of the principles to the circumstances
of the present case
- The
Court firstly notes that the applicant was detained on remand on
30 November 1999 and that the first-instance judgment in his
case was given on 11 April 2002. Consequently, the period to be taken
into consideration lasted 2 years, 4 months and 11 days.
- The
Court observes that in the present case the authorities relied on the
reasonable suspicion that the applicant had committed the offences
with which he had been charged, on the severity of the sentence that
might be imposed and a risk that the applicant might abscond or
influence the witnesses. They repeated those grounds in all their
decisions without advancing any other justifications for prolonging
the applicant’s detention. Moreover, the reasoning of most of
those decisions was limited to a brief indication that the reasons
for the applicant’s detention were still valid.
- The
Court accepts that the suspicion against the applicant of having
committed the offences and the need to secure the proper conduct of
the proceedings might initially justify his detention. However, with
the passage of time, these grounds became less relevant and cannot
justify the entire period of 2 years and over 4 months during which
the most serious preventive measure against the applicant had been
imposed (see Malik v. Poland, no. 57477/00, § 45,
4 April 2006).
- Moreover,
the authorities relied heavily on the likelihood that a severe
sentence would be imposed on the applicant given the serious nature
of the offences at issue. In this respect, the Court agrees that the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending. However, the
Court has repeatedly held that the gravity of the charges cannot by
itself serve to justify long periods of detention on remand (see
Ilijkov v. Bulgaria, no. 33977/96, §§ 80 81,
26 July 2001).
- The
Court observes further that the applicant was detained on charges of
drug trafficking for which he was eventually sentenced to 4 years’
imprisonment. Although the applicant acted with accomplices there is
no indication that he was a member of an organised criminal group. It
does not appear therefore that his case presented particular
difficulties for the investigation authorities and for the courts to
determine the facts and mount a case against the perpetrator as would
undoubtedly have been the case had the proceedings concerned
organised crime (see Celejewski v. Poland, no. 17584/04,
§ 37, 4 May 2006; Dudek v. Poland, no. 633/03, § 36,
4 May 2006).
- The
Court also notes that there is no specific indication that during the
entire period in question the authorities envisaged the possibility
of imposing other preventive measures on the applicant, such as bail
or police supervision.
In
this context the Court would emphasise that “other preventive
measures” are expressly foreseen by Polish law to secure the
proper conduct of criminal proceedings and that under Article 5
§ 3 the authorities, when deciding whether a person should
be released or detained, are obliged to consider alternative measures
for ensuring his appearance at the trial. Indeed, that Article lays
down not only the right to “trial within a reasonable time or
release pending trial” but also provides that “release
may be conditioned by guarantees to appear for trial” (see
Jablonski, cited above, § 83).
- In
the circumstances, the Court concludes that the grounds given by the
domestic authorities were not “relevant” and “sufficient”
to justify the applicant’s being kept in detention for almost 2
years, 4 months and 11 days.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
Court considered it appropriate to raise ex officio the issue
of Poland’s compliance with Article 8 of the Convention on
account of the monitoring of the applicant’s correspondence.
This Article, 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. The submissions before the Court
1. The Government’s preliminary objection
- The
Government raised an objection under Article 35 § 1 alleging
that the applicant had failed to submit his complaint under Article 8
of the Convention within the six-month time-limit. The Government
argued that “the applicant submitted to the Court the letter
bearing the stamp “censored” in 2005, while the
proceedings in his case were terminated in 2002.”
- However,
the Court notes that the issue of Poland’s compliance with
Article 8 of the Convention on account of the alleged censoring
of the applicant’s letter of April 2000 was raised by the Court
ex officio. As regards the applicant’s complaint that
the Court’s letter of 27 July 2005 addressed to him had
been censored, it was raised by him in his letter of 25 August
2005 and thus less than six months from the date on which the alleged
interference took place.
- Accordingly,
the Court rejects the Government’s preliminary objection. It
further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. The Court will therefore
declare it admissible.
2. The arguments of the parties
- The
applicant generally argued that his rights had been violated and that
his correspondence with the Court has been censored by the
authorities.
- The
Government submitted that the case did not disclose a breach of
Article 8 because there was no evidence that the applicant’s
correspondence with the Court had been censored. In this connection
they argued that there was no stamp marked “censored” on
the letter of 4 April 2000 and that “only a hand-written note
was placed on the letter without any official stamp that could
testify that this activity was performed by the domestic authority”.
As regards the second letter complained of, which had a stamp, the
Government maintained that it could not constitute proof of
censorship either as it had no “signature, a date or a name of
an organ which might have stamped it”.
B. The Court’s assessment
1. Principles established under the Court’s
case-law
- The
Court recalls 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).
- It
is of utmost importance for the effective operation of the system of
individual application instituted by Article 34 that applicants
should be able to communicate freely with the Court without being
subjected to any form of pressure from the authorities to withdraw or
modify their complaints. In this context, “pressure”
includes not only direct coercion and flagrant acts of intimidation,
but also other improper indirect acts or contacts designed to
dissuade or discourage applicants from using a Convention remedy (see
Aydın v. Turkey, judgment of 25 September 1997,
Reports of Judgments and Decisions 1997-VI, §§ 115-117).
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).
- It
is important to respect the confidentiality of correspondence with
the Court since it may concern allegations against prison authorities
or prison officials. The opening of letters both to and from the
Court undoubtedly gives rise to the possibility that they will be
read and may conceivably, on occasion, also create the risk of
reprisals by prison staff against the prisoner concerned (see
Campbell, cited above, p. 22, § 62). No
compelling reasons have been found to exist for monitoring or
delaying an applicant’s correspondence with the Court (see
Campbell, cited above, §§ 48 and 62; and
Peers v. Greece, no. 28524/95, § 84,
ECHR 2001 III and Drozdowski v. Poland,
no. 20841/02, §§ 27-31, 6 December 2005).
2. Application of the principles to the circumstances
of the present case
(a) Existence of an interference
- The
Court firstly notes the letter sent by the applicant to the Court on
4 April 2000 bears on the first page a handwritten note
“censored” and an illegible signature. It was received in
an envelope which bears signs of having been opened and then resealed
and has on it a handwritten note “District Prosecutor Wroclaw”
and a stamp: “Wrocław Detention Centre, 10 April
2000” (see paragraph 17 above). The letter had been posted
17 days later, on 27 April 2000.
- The
Court next observes that the letter of 4 April 2001 sent to the
applicant by the Court’s Registry bears a stamp “censored”
on the reverse side of the letter.
In
those circumstances, the Court has no alternative but to assume that
both letters had been opened and read by the authorities and that the
sending of the first letter had been delayed.
- It
follows that there had been an “interference” with the
applicant’s right to respect for his correspondence under
Article 8.
(b) Whether the interference was “in
accordance with the law”
- The
Government did not indicate a concrete legal basis in the domestic
law for the impugned interference. The Court notes that the first
interference complained of took place during the investigation stage.
As regards the second letter, it appears that during the material
time the applicant had been detained in connection with another set
of criminal proceedings against him.
It further observes that, according to Article 214 of the
1997 Code, 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 1997 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 letter to the Court, and of the Court Registry’s
letter to him, was contrary to Article 103 of the 1997 Code.
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.
III. 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 did not claim any particular sum in respect of pecuniary
and 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.
- The Government asked the Court to rule that a finding
of a violation would constitute in itself sufficient just
satisfaction. In the alternative, they invited the Court to make an
award of just satisfaction on the basis of its case-law in similar
cases and 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 awards the applicant 1,500 euros (EUR) in respect
of non pecuniary damage.
B. Costs and expenses
- The
applicant did not claim reimbursement of costs and expenses incurred
before the domestic courts and the Court.
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 application admissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- 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 1,500 (one
thousand five hundred euros) in respect of non pecuniary damage,
plus any tax that may be chargeable, to be converted into Polish
zlotys 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 28 November 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
