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FOURTH
SECTION
CASE OF KISIELEWSKI v. POLAND
(Application
no. 26744/02)
JUDGMENT
STRASBOURG
7
July 2009
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 Kisielewski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 16 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 26744/02) 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 Witold
Kisielewski (“the applicant”), on 9 July 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
20 November 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Cracow.
1. First set of criminal proceedings against the
applicant
- The
applicant was charged with handling stolen property and, on an
unspecified later date, he was detained on remand.
- On
29 November 1993 the Cracow District Court convicted the applicant as
charged and sentenced him to 2 years' imprisonment. The applicant
appealed.
- On
8 April 1994 the Cracow Regional Court upheld the first-instance
judgment.
2. Second set of criminal proceedings against the
applicant
- The
applicant was charged with handling stolen property, forgery of
documents and unlawful possession of a firearm and, on an unspecified
later date, he was detained on remand.
- On
2 March 1995 the Cracow Regional Court convicted the applicant as
charged and sentenced him to 3 years and 6 months' imprisonment. Both
the applicant and the prosecutor appealed.
- On
5 October 1995 the Cracow Court of Appeal amended the first-instance
judgment and increased the sentence to 5 years' imprisonment.
- On
21 December 1995 the Cracow Regional Court gave a cumulative judgment
(wyrok łączny) and sentenced the applicant to 5
years' imprisonment as cumulative penalties for the former conviction
given in the first set of criminal proceedings (see paragraph 7
above) and the latter conviction given on 5 October 1995.
3.
Third set of criminal proceedings against the applicant
- On
an unspecified later date the applicant was charged with handling
stolen property.
- On
27 February 1997 the Cracow Regional Court convicted the applicant as
charged and sentenced him to 2 years and 6 months' imprisonment. The
applicant appealed.
- On
5 June 1997 the Cracow Court of Appeal upheld the first-instance
judgment. A cassation appeal was available.
- On
5 June 2002 the applicant requested to have the criminal proceedings
against him re-opened. On 18 July 2002 the Supreme Court dismissed
his request.
4. Censorship of the applicant's correspondence
- On
14 March 2002 the Court received the applicant's letter of
25 February 2002. The envelope bore the following stamp:
“Censored on 28 February 2002” (Ocenzurowano dnia
28.02.2002) and an illegible signature.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
legal provisions concerning monitoring of detainees' correspondence
applicable at the material time and questions of practice are set out
in paragraphs 65-66 of the judgment delivered by the Court on
2 December 2003 in Matwiejczuk
v. Poland case,
no. 37641/97.
THE LAW
III. 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 with the
Court.
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. Admissibility
The
Government's plea of non-exhaustion of domestic remedies
- The Government submitted that the applicant had not
exhausted all available domestic remedies. They alleged that he had
failed to bring an action under Articles 24 and 23 in
conjunction with Article 448 of the Civil Code. These provisions
would have allowed the applicant 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 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 had held that the
confidentiality of one's correspondence was one of the personal
rights protected under Article 23 of the Civil Code and that in
the event of its breach a claimant could be entitled to an award for
non-pecuniary damage.
- The
applicant disagreed with the Government.
22. The Court notes
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 that it was given after the
relevant time (see, for example, V. v. the United Kingdom
[GC], no. 24888/94, § 57, ECHR 1999-IX).
- It
follows that 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
1. The parties' submissions
- The
applicant argued that the circumstances of his case disclosed a
breach of Article 8 of the Convention.
- The
Government refrained from expressing their opinion on the merits of
the complaint.
2. The Court's assessment
(a) Existence of an interference
- The
Court first observes that the applicant's letter of 25 February 2002
to the Court bears a red stamp reading “Censored on 28 February
2002” (Ocenzurowano dnia 28.02.2002) and an illegible
signature (see paragraph 16 above).
- The
Court notes that the Government refrained from taking a position on
the question whether there had been an interference with the
applicant's right to respect for his correspondence. The Court has
held on many occasions that as long as the Polish authorities
continue the practice of marking detainees' letters with the
ocenzurowano stamp, the Court has no alternative but to
presume that those letters have been opened and their contents read,
even if there is no separate stamp on the letter as such (see
Matwiejczuk v. Poland, no. 37641/97, § 99,
2 December 2003, and Pisk Piskowski v. Poland,
no. 92/03, § 26, 14 June 2005)
- It
follows that the censoring of the applicant's correspondence with 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 the 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
Court observes that the Government did not indicate a concrete legal
basis in the domestic law for the impugned interference. It further
notes that the impugned interference took place on 25 February 2002
when the applicant had been detained pending trial or was serving a
prison sentence.
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, persons detained pending trial
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, and Kwiek
v. Poland, no. 51895/99, § 44, 30 May
2006). Thus, the 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.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained about unfairness of the above three sets of
criminal proceedings and that his appeals had been dismissed (see
paragraphs 5-14 above). He alleged a violation of Articles 6 and 13
of the Convention.
- The
Court considers that the applicant's complaints concerning unfairness
of the first, the second and the third sets of criminal proceedings
against him and the alleged ineffectiveness of his appeals lodged in
these proceedings are inadmissible for non-exhaustion of
domestic remedies and failure to comply with the six-month
time-limit. It
further considers that no arguable claim arises under Article 13 of
the Convention.
- It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention.
- The
applicant also complained that the refusal to re-open the criminal
proceedings against him had been arbitrary (see paragraph 15
above). He alleged a violation of Article 6 of the Convention.
- In this respect the Court recalls that the guarantees
of Article 6 of the Convention do not apply to proceedings in which
the re-opening of proceedings terminated by a final decision is
sought (see, among many other authorities, Rudan v. Croatia
(dec.), no. 45943/99, 13 September 2001; Wierciszewska
v. Poland, no. 41431/98, § 35,
25 November 2003). The Court therefore concludes that Article 6
of the Convention is not applicable to this part of the proceedings.
- It
follows that this part of the application is incompatible ratione
materiae with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
V. 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 just satisfaction in respect of non-pecuniary
damage without expressing its amount.
- The
Government did not express opinion on the matter.
- 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 EUR 500 under this head.
B. Costs and expenses
- The
applicant did not make any claim for the costs and expenses incurred
in the proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the censorship
of 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;
3. 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
