European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1345/06
by Radosław NIEDŹWIEDŹ
against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 March 2008 as a Chamber composed of:

          Nicolas Bratza, President,
          Lech Garlicki,
          Giovanni Bonello,
          Ljiljana Mijović,
          Ján Šikuta,
          Päivi Hirvelä,
          Ledi Bianku, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 14 November 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Radosław Niedźwiedź, is a Polish national who was born in 1974 and lives in Elbląg.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was detained in the Elbląg Detention Centre.

In 2000 he intended to vote in the presidential election. However, he was informed that he could not vote because he was not on the list of eligible voters. The applicant did not inquire further.

In 2001 the applicant unsuccessfully attempted to vote in the parliamentary elections. He was informed by a member of the electoral commission that he had been deprived of his civic rights pursuant to a court decision. The applicant wrote to the State Electoral Commission and the Elbląg Regional Court requesting an explanation for the refusal to allow him to vote. He received no reply.

In May 2003 the applicant again unsuccessfully attempted to vote in the referendum on Poland’s accession to the EU. The applicant complained to the State Electoral Commission. He also lodged an electoral complaint (protest wyborczy) with the Supreme Court, claiming that he had been unlawfully deprived of the right to vote in the referendum. On 7 July 2003 the Supreme Court dismissed his complaint. He also filed a criminal complaint with the Elbląg District Prosecutor, but the criminal proceedings were discontinued on an unspecified date.

On an unspecified date in 2004 the applicant brought an action in the Elbląg Regional Court against the president of that court. He sought compensation in the amount of PLN 150,000 for damage sustained in connection with the unjustified refusal to allow him to vote in the 2000 presidential elections, the 2001 parliamentary elections and the 2003 referendum. The applicant submitted that on 29 January 2000 the additional penalty of deprivation of his civic rights had come to an end. Nevertheless, as a result of an error committed by the Regional Court clerk his name had been put on the list of persons who had not been eligible to vote. The applicant claimed to have sustained damage because he could not exercise his constitutional rights and actively participate in elections.

As regards the factual background to the applicant’s claim, the court established that on 17 May 1994 the Elbląg Regional Court had sentenced him to a term of imprisonment and an additional penalty of 2 years’ deprivation of his civic rights. The applicant finished serving the sentence of imprisonment on 29 January 1998. On 2 February 1998 Elbląg Prison notified the Regional Court that the applicant had been released. Subsequently, the period of deprivation of civic rights began to run. The relevant period came to an end on 29 January 2000. Despite this fact, and as a result of the error committed by the court clerk, the applicant’s name was put on the list of disenfranchised persons in respect of the elections mentioned above. The Regional Court adopted as its own the findings of the prosecution service, which found that the above error had resulted from negligence in the duty to duly verify the situation of each person who had been put on the list of disenfranchised persons.

On 25 October 2004 the Elbląg Regional Court awarded the applicant PLN 1,000 (approximately EUR 250) and dismissed the remainder of his claim. It found that the applicant had been unjustifiably deprived of the right to vote in respect of all three elections.

The Regional Court noted that the applicant had not claimed to have sustained any pecuniary damage in this respect. On the other hand, he was seeking some financial compensation in connection with the infringement of his personal rights.

The court found that the right to vote could be considered as one of the personal rights protected under Article 23 of the Civil Code. It held that that personal right had been unlawfully violated in the applicant’s case (“...dobro osobiste zostało naruszone działaniem bezprawnym. Przesłanka ta w niniejszej sprawie jest spełniona.”). Having regard to the above, the court decided, contrary to the defendant’s submission, that the applicant should be awarded non-pecuniary damages under Article 448 of the Civil Code. However, it observed that the degree of intensity of the harm was very much a subjective question. When assessing the amount to be awarded for the infringement of his personal rights, it took into account the fact that the applicant was not active or interested in politics, and that accordingly his subjective feelings of harm could not have been particularly intense. The case would have been different had it involved a politician who had been deprived of the right to vote. The court further observed that the wrong had not been done intentionally and that the damage caused to the applicant had not been significant. It further noted that the consequences of the violation of the right to vote were limited to the emotional sphere. Having regard to all the relevant circumstances and, in particular, the nature of the right that had been violated and the fact that compensation for non-pecuniary damage should not lead to enrichment of the claimant, the court considered it reasonable to award the applicant PLN 1,000. It found the remainder of the applicant’s claim for damages excessive.

The applicant lodged an appeal against the first-instance judgment and contested the insufficient amount of the award. He further claimed that the Regional Court had considered his right to vote to be of lesser importance when compared with the similar right of politicians.

On 16 May 2005 the Gdańsk Court of Appeal upheld the Regional Court’s judgment. It endorsed for the most part the lower court’s findings in respect of the amount of compensation awarded to the applicant and considered it proportionate to the damage sustained by the applicant. The Court of Appeal noted that the amount awarded was higher than the minimum monthly salary (PLN 849) and the amount of unemployment benefit (PLN 504,20). It found that when assessing the extent of harm the Regional Court had correctly relied on the applicant’s limited involvement in politics. Furthermore, the applicant had not established that his involvement in politics had been higher than average.

The Court of Appeal disagreed with the Regional Court only in one respect. It held, referring to Article 77 of the Constitution and Article 417 § 1 of the Civil Code, that the fact that the breach of the applicant’s rights had been unintentional was not relevant for the assessment of the defendant’s liability. However, that shortcoming did not alter the Court of Appeal’s decision.

The applicant intended to lodge a cassation appeal with the Supreme Court. The Court of Appeal appointed him a legal-aid lawyer to that end. However, on 2 November 2005 his legal-aid lawyer informed the applicant in writing that he had found no grounds on which such an appeal could be based.

B.  Relevant domestic law

1. Constitutional provisions

Article 62 of the Constitution provides:

“1.  If, no later than on the date of the vote, he has attained eighteen years of age, a Polish citizen shall have the right to participate in a referendum and the right to vote for the President of the Republic of Poland as well as representatives to the Sejm and Senate and organs of local government.

2.  Persons who, by a final judgment of a court, have incurred legal incapacity or deprivation of civic or electoral rights, shall have no right to participate in a referendum or to vote.”

2. Deprivation of civic rights under the Criminal Code

Under the 1997 Criminal Code, deprivation of civic rights (prawa publiczne) is one of the additional penalties that may be imposed by a court.

Article 40 § 1 of the Criminal Code reads in so far as relevant:

“The deprivation of civic rights shall entail the loss of the right to vote and to stand for election ...”

Article 43 § 2 of the Criminal Code provides:

“The deprivation of civic rights ... shall take effect from the time when the judgment becomes final; the period for which deprivation is imposed shall not run during the serving of a custodial sentence, even if the sentence has been imposed in respect of another offence.”

3. Provisions concerning parliamentary elections

Section 20 of the Law of 12 April 2001 on Elections to the Sejm and the Senate of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej i do Senatu Rzeczypospolitej Polskiej) (“the 2001 Elections Act”) provides in so far as relevant:

“§ 3.  The list of voters in prisons and detention centres ... shall be drawn up on the basis of the registers of persons staying there on the date of elections.

§ 5.  Persons who are deprived of civic rights by the final decision of a court shall not be included in the list referred to in § 3.”

Section 28 of the 2001 Elections Act provides that a prisoner may file a complaint with the prison governor about being excluded from the list of voters. In the event that the complaint is unsuccessful, the prisoner may further lodge a complaint with a district court.

4.  Personal rights and their protection under the Civil Code

Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states:

“The personal rights of an individual, such as in particular health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”

Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the danger of an infringement may demand that the prospective perpetrator abandon the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.

Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:

“The court may grant an adequate sum as pecuniary compensation for non-pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific social interest. ...”

COMPLAINT

The applicant alleged a breach of Article 3 of Protocol No. 1 to the Convention, claiming that he had been prohibited from voting in the 2000 presidential elections, the 2001 parliamentary elections and the 2003 referendum on Poland’s accession to the EU. He contested the domestic courts’ findings as to the allegedly minor damage sustained by him as a result of having been deprived of the right to vote. He argued that the damages awarded to him had been negligible.

THE LAW

Relying on Article 3 of Protocol No. 1 to the Convention, the applicant complained that he had been deprived of the right to vote in respect of the aforementioned elections. Article 3 of Protocol No. 1 to the Convention provides:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

In so far as the applicant complained that he could not vote in the 2000 presidential elections and the 2003 referendum on accession to the EU, the Court reiterates that the obligations imposed on the Contracting States by Article 3 of Protocol No. 1 are limited to “the choice of legislature” and do not apply to the election of a Head of State (see Habsburg-Lothringen v. Austria, no. 15344/89, Commission decision of 14 December 1989, DR 64, p. 211; Baškauskaitė v. Lithuania, no. 41090/98, Commission decision of 21 October 1998; Guliyev v. Azerbaijan (dec.), no. 35584/02, 27 May 2004, and Boškoski v. the former Yugoslav Republic of Macedonia (dec.), no. 11676/04, 2 September 2004) or to referendums (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Borghi v. Italy (dec.), no. 54767/00, 20 June 2002).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention.

In so far as the applicant complained that he had been excluded from voting in the 2001 parliamentary elections, the Court considers that in the light of the domestic courts’ decisions given in the case the question arises whether the applicant can still claim to be a victim within the meaning of Article 34 of the Convention.

The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 32, §§ 69 et seq.; Amuur v. France, judgment of 25 June 1996, Reports 1996-III, p. 846, § 36; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).

In the present case the Court notes that the Elbląg Regional Court, in its judgment of 25 October 2004, expressly stated that the applicant’s right to vote had been unlawfully breached. This judgment was upheld on appeal. Accordingly, the Court finds that the domestic authorities acknowledged in substance the breach of the applicant’s rights under Article 3 of Protocol No. 1.

It remains to be decided whether the redress provided by the authorities for that breach can be considered appropriate and sufficient. The Court notes that in the domestic proceedings the applicant claimed PLN 150,000 (approximately EUR 37,500) in respect of non-pecuniary damage for the violation of his right to vote. The domestic courts, having examined different factors relevant to the assessment of the damage sustained by the applicant, ruled that the award of PLN 1,000 (approximately EUR 250) would be sufficient in his case to compensate for the breach of his right to vote. The applicant unsuccessfully contested the amount awarded to him by the courts.

The Court reiterates that the nature of the redress will depend on the circumstances of the case (see M.A. v. the United Kingdom (dec.), no. 35242/04, ECHR 2005-...). Furthermore, an applicant may lose his victim status even when the authorities provide no pecuniary award for a breach of his Convention rights (see Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005 in the context of an alleged breach of the principle of the presumption of innocence).

The Court observes that the facts of the present case do not lead to the conclusion that it was the deliberate intention of the authorities to deny the applicant his right to vote in parliamentary elections ensured by Article 3 of Protocol No. 1 to the Convention. The breach of the right to vote at issue resulted rather from an incidental error (see, mutatis mutandis, Armstrong v. the United Kingdom (dec.), no. 48521/99, 25 September 2001 in respect of inadvertent interferences with the prisoner’s right to respect for his correspondence).

The Court further notes that the domestic tribunals decided to award compensation for the breach of the applicant’s personal rights, even though Article 448 of the Civil Code provided that such an award was discretionary. Furthermore, when assessing the amount to be awarded they carefully considered all the pertinent circumstances, such as the degree of intensity of the harm, the inadvertent nature of the breach of the applicant’s rights and the adverse consequences of the latter being limited to the emotional sphere. It further observes that the courts justified their decisions by sufficient reasons. The Court is thus satisfied that the applicant was afforded adequate redress by the domestic authorities.

Lastly, without prejudice to other possible grounds of inadmissibility, the Court notes that it appears that the applicant did not use the procedure under section 28 of the 2001 Elections Act with a view to contesting his exclusion from the list of eligible voters.

In these circumstances, the Court concludes that the applicant can no longer claim to be a victim of the alleged violation of Article 3 of Protocol No. 1 to the Convention within the meaning of Article 34 of the Convention. It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

  Lawrence Early                                                                    Nicolas Bratza
       Registrar                                                                              President