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FOURTH
SECTION
CASE OF BARTOSIŃSKI v. POLAND
(Application
no. 13637/03)
JUDGMENT
STRASBOURG
13 October 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 Bartosiński 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,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13637/03) 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 Krzysztof Bartosiński
(“the applicant”), on 3 April 2003.
- The
applicant was represented before the Court by Ms Lucyna Rutkowska, a
lawyer practising in Toruń. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged, in particular, that his correspondence with the
Court had been opened and read by the prison authorities.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
- On
7 September 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, Mr Krzysztof Bartosinski, is a Polish national who was
born in 1972 and lives in Lubianka.
- By
a decision of the Bydgoszcz District Court of 14 September 2002 the
applicant was arrested and remanded in custody on suspicion of
illegal production and sale of alcohol, selling cigarettes without
payment of excise duty and membership of an organised criminal group.
According to the applicant's submissions, police officers used force
against him during his arrest and insulted him. When ordering his
detention, the court found that the evidence obtained in the case, in
particular the testimonies of the other suspects and of a witness,
bills, minutes of searches and telephone conversations, indicated a
high probability that the applicant had committed the offences. The
applicant's detention was therefore necessary in order to prevent
collusion and to avert the risk that he would exert pressure on
witnesses or that the suspects would coordinate their testimonies.
- During
the investigation the applicant's detention was successively
prolonged by detention orders issued by the Inowrocław District
Court or the Gdańsk Court of Appeal and dated 11 December 2002,
11 March and 27 August 2003.
- The
applicant submits that the decision of 11 December 2002 was served on
him on 16 December 2002 and that for 4 days he had been kept in
custody without having been provided with a relevant detention order.
- In
his letter of 3 April 2003 the Bydgoszcz Regional Prosecutor admitted
that the service of the applicant's motion for release had been
delayed for 5 days before reaching the Prosecutor Office.
- In
further letters, the Regional Prosecutor stated among other things
that the applicant's correspondence with the prosecutor had not been
delayed by the Prosecutor Office. On 15 May 2003, following the
applicant's complaint to the Ombudsman about delays in the service of
official letters, the President of the Inowrocław District Court
clarified that the applicant's letter to the Regional Prosecutor of
27 January 2003 had been forwarded to the prosecutor on 14 February
2003 and that a letter dated 13 February had been served on the
applicant on 28 February 2003.
- The
applicant submitted an envelope containing a letter from the Court,
bearing several stamps of the Police Detention Centre dated 8 and
16 March 2004 including a stamp “censored”
(“ocenzurowano”) with an illegible date.
- By
a decision of 14 August 2003 the Bydgoszcz Regional Prosecutor
granted the applicant permission to receive a visit from members of
his family in the presence of an officer of the Central Investigation
Office. The prosecutor stated that the applicant had previously been
granted two visits, on 28 February and 10 June 2003, and that neither
the family nor the applicant had requested more frequent meetings. On
29 September 2003 the Regional Prosecutor replied to the applicant
that further visits had not been granted since no requests for such
had been made.
- On
29 March 2004 the applicant was released from detention. The
proceedings are pending.
II. RELEVANT DOMESTIC LAW
- The
legal provisions governing monitoring of detainees' correspondence
applicable at the material time are set out in a judgment delivered
by the Court on 6 December 2005 (Wasilewski v. Poland,
no. 63905/00, §§ 16-21)
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention about the
monitoring by the authorities of the detention centre of his
correspondence with his family and with the Court. He alleged that a
number of his letters had never reached his family, certain domestic
authorities and the Court.
Article
8, 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 (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 23 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 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 might be
entitled to an award in respect of non-pecuniary damage.
- The applicant contested the Government's arguments and
submitted that the remedy in question had not been effectively
available to him.
- The Court notes that the alleged interference with the
applicant's correspondence occurred in 2004, whereas the Government
relied on the Warsaw Regional Court's judgment of 27 November 2006.
The judgment was reviewed by the Warsaw Court of Appeal on 28 June
2007 and became final. 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).
- 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
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).
- As
to the expression “in accordance with the law”, the Court
has established three fundamental principles. The first one is that
the interference in question must have some basis in domestic law.
The second principle is that “the law must be adequately
accessible”, a person must be able to have an indication that
is adequate, in the circumstances, of the legal rules applicable to
his case. The third principle is that “a norm cannot be
regarded as a 'law' unless it is formulated with sufficient precision
to enable a person to regulate his conduct; he must be able if
need be with appropriate advice to foresee, to a degree that
is reasonable in the circumstances, the consequences which a given
action may entail” (see Silver, cited above, §§ 86-88).
- 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
Convention organs 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 notes that its letter sent to the applicant in March 2004 bears
censorship stamps, including the stamp “Censored”
(cenzurowano) of 8 and 16 March 2004.
- 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; Michta
v. Poland, no. 13425/02, § 58, 4 May
2006). It follows that in respect of both of the applicant's letters
there was an “interference” with his 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 specific legal basis in domestic law
for the impugned interference. The Court notes that the interference
took place when the applicant was in detention.
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, detained persons 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, censorship of the
two letters of the Court's Registry to the applicant was contrary to
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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 3 of the Convention
that police officers had used excessive force against him at the time
of his arrest and had insulted and beaten him. He also alleged
a violation of Article 5 § 4 of the Convention
maintaining that the lawfulness of his detention had not been
decided speedily by the courts, due to the fact that his
correspondence had been delayed by the authorities. He
further alleged a breach of Article 6 of the Convention given
the unfairness of the criminal proceedings and the unlawful publicity
about the proceedings in the media, which had negatively affected
their fairness. Under the same provision the applicant also
complained about the poor quality of his defence conducted by a
legal-aid lawyer. In addition, under Article 8 of the Convention the
applicant complained that visits from his family in prison were
rarely granted and his letters to his family were open and read.
Finally, the applicant alleged that in view of his overall treatment
in the course of the proceedings, he had been discriminated against
contrary to Article 14 of the Convention.
- The Court has examined these
complaints as submitted by the applicant. However, having regard to
all the material in its possession and in so far as the matters
complained of are within its competence, the Court finds that there
is nothing in the case file which would disclose a violation of the
Convention.
- It follows that this part of the
application must be rejected as being manifestly ill founded 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 claimed 75,000 Polish zlotys (PLN) in respect of
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 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
38. The applicant also asked for
reimbursement of costs and expenses incurred in connection with the
proceedings in amount of 1,830 PLN.
- The Government did not object to
the claim.
- Having
regard to all information in its possession, the Court decides that
the sum should be awarded in full.
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 and EUR 450 (four
hundred and fifty euros) in respect of costs and expenses, 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 amounts 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 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
