(Application no. 23042/02)
8 August 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 Cabała v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 4 July 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings
B. The monitoring of the applicant’s correspondence
II. RELEVANT DOMESTIC LAW
A. Preventive measures, including detention on remand
Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused committing another serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is 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;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed.
B. Censorship of correspondence
1. The Code of Execution of Criminal Sentences 1997
“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.”
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
“(...) detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
Article 242 § 5 reads as follows:
“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.”
2. The Rules of Detention on Remand 1998
§ 36 of the Rules provides:
“The detainee’s correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.”
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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 further submitted that the domestic courts acted diligently and speedily, in particular having regard to the complexity of the case.
1. Period to be taken into consideration
2. The reasonableness of the length of detention
(a) Principles established under the Court’s case-law
(b) Application of the principles to the circumstances of the present case
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).
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 (see paragraphs 19 and 21 above) 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).
There has therefore been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
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. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
1. Principles established under the Court’s case-law
2. Application of the principles to the circumstances of the present case
(a) Existence of an interference
The Court considers that, even if there is no separate stamp on the letter as such, there is a reasonable likelihood that the envelope was opened by the domestic authorities. The Court has held on many occasions that as long as the Polish authorities continue the practice of marking the detainees’ letters with the ocenzurowano 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 and Pisk Piskowski v. Poland, no. 92/03, § 26, 14 June 2005, Michta v. Poland, no. 13425/02, § 58, 4 May 2006).
It follows that there was 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”
It further observes that, according to Article 214 of the Code of Execution of Criminal Sentences, 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’s Registry was contrary to the domestic law.
It follows that the interference in the present case was not “in accordance with the law”.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 2,000 (two thousand 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;
Done in English, and notified in writing on 8 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas