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FOURTH
SECTION
CASE OF JAKUBIAK v. POLAND
(Application
no. 36161/05)
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 Jakubiak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Stanislav Pavlovschi,
Lech Garlicki,
Ljiljana
Mijović,
Jan Šikuta,
Päivi 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. 36161/05) 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 Janusz Jantar Jakubiak
(“the applicant”), on 19 September 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
15 February 2007 the President of the Fourth Section decided to give
notice of 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 1967 and lives in Łowicz.
A. Criminal proceedings against the applicant
- The
applicant was charged with armed robbery and, on an unspecified date,
remanded in custody.
- On
10 November 2005 the Rawa Mazowiecka District Court sentenced the
applicant to eight years and six months' imprisonment.
- The
applicant lodged an appeal.
- On
5 May 2006 the Łódź Regional Court upheld the
first-instance judgment and dismissed the appeal as manifestly
ill-founded.
- The
applicant did not lodge a cassation appeal.
B. Censorship of the applicant's correspondence
- On
30 September 2005 the Court received a letter from the applicant. The
envelope bore the stamp “Censored on 19 September 2005”
(Ocenzurowano dnia 19.09.2005), an illegible signature and the
stamp of the Rawa Mazowiecka District Court (Sąd Rejonowy
Rawa Mazowiecka). The envelope was sealed with adhesive tape. The
letter of 11 September 2005 which was in the envelope likewise bore
the stamp: “Censored on 19 September 2005” and an
illegible signature.
II. RELEVANT DOMESTIC LAW
- 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 8 OF THE CONVENTION
- The
Court raised of its own motion a complaint under Article 8 of the
Convention. This provision, 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. Admissibility
1. The Government's objection on non-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 § 2 in conjunction with Article 448 of the Civil
Code. These provisions would have allowed him both to assert that by
censoring his correspondence the authorities had breached his
personal rights protected by the Civil Code, and to claim
compensation for non-pecuniary damage.
- In this connection, the Government relied on the
Warsaw Regional Court's judgment of 27 November 2006 in which a
prisoner had been awarded 5,000 Polish zlotys (PLN) 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 a breach a claimant may be
entitled to an award of compensation for 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 of its own motion. The letter at issue 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 cannot be required to bring any domestic proceedings to
obtain redress for the alleged breach of his right to respect for his
correspondence.
- Even
assuming that the applicant complained about the censorship of his
letters to the Court, it has to be noted that the alleged
interference with the applicant's correspondence occurred in
September 2005, 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 that it was given 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. There is no
indication that it has been reviewed by higher courts and that it has
became final.
- 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. Existence of an interference
- The
Court notes that the envelope in which the applicant's letter of 11
September 2005 was sent to the Court from the Łowicz Prison
bears a stamp that reads: “censored on 19 September 2005”
and “the Rawa Mazowiecka District Court”. The envelope in
which this letter was sent to the Court from the Łowicz Prison
bears similar stamps. It appears that the envelope had been cut open,
the letter read and subsequently the envelope resealed with adhesive
tape.
- 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.
2. Whether the
interference was “in accordance with the law”
- The
Government did not indicate a specific legal basis in the domestic
law for the impugned interference. The Court notes that the
interference took place when the applicant had been in pre-trial
detention.
- The
Court observes that, by virtue of Article 214 of the Code of
Execution of Criminal Sentences, persons in pre-trial 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, is also
applicable to detained persons (see Michta, cited above, §
61, and Kwiek v. Poland, no. 51895/99, § 44, 30
May 2006).
Thus, censorship of the applicant's letter 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 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had not had a “fair trial”.
- The
Court notes that it appears that the applicant did not lodge a
cassation appeal with the Supreme Court. However, even assuming that
the applicant had exhausted domestic remedies, the Court reiterates
that it is not called upon to deal with errors of fact and 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).
- The
Court observes that the applicant does not allege any particular
failure to respect his right to a fair hearing. Assessing the
criminal proceedings against the applicant as a whole, it finds no
indication that they were unfairly conducted.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
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 or
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, finding that the applicant had not expressed his
just-satisfaction claims precisely, did not comment on this aspect of
the applicant's claim.
- The
Court 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 500 euros (EUR) 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
(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 500
(five 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.
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
