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PAWLAK v. POLAND - 39840/05 [2008] ECHR 35 (15 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/35.html
Cite as:
[2008] ECHR 35
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FOURTH
SECTION
CASE OF PAWLAK v. POLAND
(Application
no. 39840/05)
JUDGMENT
STRASBOURG
15
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 Pawlak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza, President,
Giovanni
Bonello,
Kristaq Traja,
Lech Garlicki,
Liljana
Mijović,
Jan Šikuta,
Päivi Hirvelä,
judges,
and Lawrence
Early, Section Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 39840/05) 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”) on 24
October 2005 by B. Pawlak, the applicant, represented by
Ms M. Gąsiorowska, a lawyer practising in Warsaw.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
On
6 June 2006 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 1974 and lives in Ząbki.
In
2001 the police conducted an operation to
disband several organised criminal
gangs that were acting in and around Warsaw, stealing luxury cars
with a view to selling them
in the countries of the former Soviet Union. There were about five
such groups, cooperating closely with each other and closely
connected with Poland's most dangerous armed criminal groups: the
Pruszków mafia and the Wołomin mafia.
The
applicant was arrested on
18 December 2001
on suspicion of
thefts, robberies committed with
extreme brutality and membership of a criminal
gang. He was remanded in custody by the decision of
the Warsaw District
Court of 20 December 2001.
At
that time the Warsaw Regional Prosecutor was conducting an
investigation in respect of more than
fifty other members of the criminal gangs mentioned above. Forty-two
of them were held in custody. The investigation was complex and
time-consuming, given that the criminal gangs collaborated closely
with many persons who were to be questioned by the prosecutors, for
example, receivers of stolen goods, persons hiding stolen cars or
persons tracking cars which were to be stolen, among others.
In
addition, the prosecutor opened an investigation in respect of
several police officers from Warsaw and surrounding towns on charges
of corruption and
helping the criminal groups' members to evade the law.
On
5 December 2002 a bill of indictment
against the applicant and fifty-nine other co-accused (members of
five cooperating criminal gangs) was lodged with the Warsaw District
Court. The evidentiary material was presented in 99 case files. The
applicant was charged with membership of a criminal gang,
carrying out multiple robberies and thefts
committed with extreme brutality. The criminal gang, of which the
applicant was a member, was known for its
violence and ruthlessness and for the illegal trafficking of
firearms.
On
6 January
2003 the Warsaw District Court held the first hearing. The following
hearings were held by the District Court:
In
2003, on: 23 and 30 May; 23 and 24
June; 1, 4, 7, and 8 July; 13, 18, 22,
and 25 August; 5, 12, 15, and 19 September; 10, 20,
21, 23, 24, and 31 October; 17 November; 5, 22, and 23 December
2003;
In
2004, on: 5
and 26
January; 16, 17, 19, and 20 February; 8 and 9 March;
1 and 9 April;
14, 18, 21, and 25 May; 3, 7, 14, and
23 June; 5 July;10, 25, and 31 August;
3 and 6 September; 7, 8, and 15 October; 2 and 9 November;
7, 8, 10, 13, and 18 December 2004. In
total, sixty hearings were held by the District Court.
During
the trial the District Court examined a wide range of evidentiary
material, ordered medical expert opinions on the accuseds' mental
health and expert opinions in the
field of dactyloscopy, conducted inquiries in the accuseds'
respective neighbourhoods, inspections of the crime scenes and
garages where the stolen cars had been hidden and assessments of the
accuseds' assets.
The proceedings involved taking evidence from a considerable number
of witnesses and victims and from one key witness.
The
applicant's pre-trial detention was prolonged several times by the
District Court.
The decisions were
issued, inter alia,
on 15 March,
17 June, 13
December 2002; 23 May, 25 August,
17 November, 5 December, 15 December
2003; 20 February, 7 June, 6 September,
9 November,
18 December 2004; 16 March, 15 July, 30 September,
14 November 2005; 13 February, 8 May
and 2 August 2006. In its decisions
the court underlined that there was a strong likelihood that the
applicant had committed the crimes, confirmed in particular by the
testimonies of a key witness and a co-accused, and considered that
there was a reasonable risk that the applicant would tamper with the
evidence, given that he had had close connections with the other
co-accused. The court also made reference
to the investigative acts already carried out and gave a precise
indication of the evidence that still had to be taken. Consequently,
it decided that it was indispensable to separate the applicant from
the other suspects, the witnesses and the evidence which had not yet
been secured. The court also relied on the serious nature of the
charges against the applicant and the severity of the penalty he
faced. No special circumstances dictated
the lifting of the detention.
The
applicant unsuccessfully appealed against the above mentioned
decisions.
From
29 May 2002 to 14 June 2004 the applicant served a prison sentence
imposed on him in separate proceedings.
On
18 December 2004
the District Court imposed a sentence on
fifty of the co-accused. The applicant was
found guilty of
most of the charges laid against
him and sentenced
to 9 years' imprisonment.
16. The
applicant's lawyer lodged an appeal against the judgment on
5 December 2006.
On
6 June 2006 the case file, comprising 149 volumes, was transferred to
the second-instance court. On 22 November 2006 the Court of
Appeal partly amended the judgment, sentencing the applicant to 8
years' imprisonment.
On
4 September 2007 the Supreme Court dismissed the cassation appeal.
The monitoring of the applicant's correspondence
The
applicant submitted that while in detention on remand in the course
of the above-mentioned proceedings, his correspondence had been
censored. As proof thereof he provided a copy of an envelope dated
14 December 2005 of a letter sent to him by his lawyer and
bearing a stamp “censored on 23 December 2005”
(“ocenzurowano, 23.12.2005”) and an illegible
signature, and a copy of the envelope of the letter from the Court
dated 14 November 2005 with several stamps of the penitentiary
institution on it, however with no clear indication of censorship.
II. RELEVANT DOMESTIC LAW
The
relevant domestic law concerning the imposition of detention on
remand (aresztowanie tymczasowe), the grounds for its
prolongation, release from detention and rules governing other
so-called “preventive measures” (środki
zapobiegawcze) is set out in the Court's judgments in the cases
of Gołek v. Poland, no. 31330/02, §§ 27 33,
25 April 2006, and Celejewski v. Poland,
no. 17584/04, §§ 22 23, 4 August 2006.
The
judgment Bąk v. Poland, no. 7870/04,
§§ 38 40, 16 January 2007, addresses
more specifically the issue of domestic practice in the area of
pre-trial detention and organised crime.
For the relevant domestic law and practice concerning
the available remedies against excessive length of proceedings, see
Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005;
Rybczyńscy v. Poland, no. 3501/02, judgment of
3 October 2006, and Białas v. Poland,
no. 69129/01, judgment of 10 October 2006.
The
relevant domestic law concerning monitoring of detainees'
correspondence is set out in Matwiejczuk v. Poland,
no. 37641/97, judgment of 2 December 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
The
applicant complained that the length of his pre-trial detention had
breached Article 5 § 3, which, in so far as relevant,
provides:
“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.”
A. Admissibility
The
Government submitted in the first place that the applicant had not
exhausted the remedies provided for by Polish law as regards his
complaint under Article 5 § 3 of the Convention, in
that he had failed to appeal against certain decisions prolonging his
detention.
The
Court reiterates that it is well established in its case-law that an
applicant must first make use of those domestic remedies which are
likely to be effective and sufficient. When a remedy has been
attempted, use of another remedy which has essentially the same
objective is not required (see Yaşa v. Turkey,
judgment of 2 September 1998, Reports of Judgments
and Decisions 1998 VI, p. 2431, § 71).
In
the present case the applicant lodged appeals against most of the
decisions prolonging his detention, including the decisions taken in
the final stage of the proceedings, when the length of the detention
had reached its most critical point. He also lodged requests for the
detention measure to be lifted or for a more lenient preventive
measure to be imposed. The applicant's aim in using the remedies was
to obtain a review of his detention pending trial and to obtain his
release. In the circumstances of the case these remedies constituted
adequate and effective remedies within the meaning of Article 35
of the Convention.
The
Court further notes that the arguments raised by the Government are
similar to those already examined and rejected in previous cases
against Poland (see Grzeszczuk v. Poland,
no. 23029/93, Commission decision of 10 September 1997,
and Buta v. Poland, no. 18368/02, §§ 23 27,
28 November 2006,) and that the Government have not drawn
attention to any new circumstances which would lead the Court to
depart from its previous findings.
It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Submissions of the parties
The
Government pointed out that the evidence obtained in the proceedings
indicated that there was a strong likelihood that the applicant had
committed the crimes in question. The charges brought against him
concerned such serious offences as committing robberies and thefts
while acting as a member of a criminal gang. Thus, bearing in mind
the severity of the charges and the scale of the criminal activity,
the applicant's detention was justified, in the Government's opinion,
by a genuine public-interest requirement which, notwithstanding the
presumption of innocence, outweighed the rule of respect for
individual liberty.
Moreover,
given the fact that the applicant had tried to pass illegal
correspondence out of custody, the Government concluded that only the
isolation of the members of the group from each other could prevent
their colluding and coordinating their testimonies or exerting
unlawful pressure on the witnesses or the suspects who were
cooperating with the prosecution authorities.
The
Government argued that the circumstances justifying the applicant's
detention had remained valid throughout its duration. Moreover, in
the course of the proceedings the prolongation of his detention had
been justified by the need, which had arisen during the preparatory
proceedings, to extend the personal and material scope of the
investigation. New circumstances had come to light when other
perpetrators had been detained and examined. It was necessary to
examine the files of the relevant inquires, to obtain new pieces of
evidence, expert opinions and documents, and to take further
investigatory measures. A need had arisen to take evidence from
further witnesses and persons involved in the activities of the
criminal gang, and from police officers in the criminals' pay. Since
not all these persons had been located and questioned, it was
necessary to prevent contact between them and other members of the
gang.
The
Government also submitted that the courts had not applied the
pre-trial detention measure automatically, but had based their
decisions on a careful consideration of each individual case. The
courts had decided to release four co-defendants as soon as they had
found that the reasons justifying their detention had ceased to
persist.
The
Government drew attention to the high quality of the prosecutor's
applications for the prolongation of the applicant's detention. In
his comprehensive applications the prosecutor had indicated in detail
and in respect of each of the detainees what investigatory measures
had to be taken and what evidence had been taken since the previous
decision to prolong the detention.
As
to the complexity of the case, the Government argued that it was
extremely complex. In this connection the Government submitted that
in the period from 2000 to 2003 the number of persons serving a
sentence for involvement in organised criminal activities had
remained relatively stable in Poland, representing on average only
0.016% of all those serving a sentence at that time. Since 2004,
there had been a significant increase in the number of sentences
relating to organised criminal activities. In the period up to 2000
the total number of those serving a sentence for organised criminal
activities had been significantly lower. For example, in 1998 and
1999 only seven and eighteen persons respectively had been given a
prison sentence for such crimes. According to the Government, several
procedural problems tended to arise in cases relating to organised
criminal activities. Such cases were complex by nature, as they
typically involved the investigation of an activity carried out by a
gang, and that in turn involved the examination of offences committed
by several persons. The trial and pre-trial material was often
voluminous and the legal and factual assessment required considerable
time and effort. In many such cases evidence had to be taken from
anonymous witnesses. The trial court had to guarantee both the
anonymity of such witnesses and the rights of the accused. There were
often problems due to the presence at the hearings of the accused or
their legal representatives, including defence counsel and witnesses,
as they were often interested in slowing down the process and, as a
consequence, the trial court could not carry out the appropriate
measures as planned. There were also many logistical problems, as the
witnesses and accused, mostly belonging to the same or competing
gangs of organised criminals in detention, required isolation both
within the relevant detention facility and while being transported.
Their relatively large number, coupled with the need to provide
appropriate security, meant that they had to be placed in different
detention centres. Even persons detained in the same facility had to
be transported and brought to the courtroom separately, requiring
additional manpower and equipment. In addition, not all courts had at
their disposal appropriate facilities both to ensure the isolation of
those being brought to court and to allow the police to guarantee the
security of all the parties involved. This was particularly true of
many district courts.
With
respect to the present case, the Government pointed out that both the
prosecutor and the trial court had conducted extensive evidentiary
proceedings, as was typical for proceedings in cases concerning
organised crime. The case
file of the investigation in the applicant's case contained
99 volumes. In the course of the judicial proceedings, a further
49 volumes were added. A huge number of investigatory measures
were taken in respect of numerous suspects and dozens of stolen
vehicles. The witnesses were questioned on at least 100 occasions and
many expert opinions and reports were obtained (in the area of
dactyloscopy, psychiatrists' opinions). Operations with the
participation of key witnesses were carried out. Dozens of searches,
inspections, and procedures for the identification of individuals,
including identity parades, and objects were carried out. The
prosecution obtained voluminous documentary evidence from various
subjects. The first-instance court held 60 hearings and examined
59 co accused. The judgment numbered 190
pages.
According
to the Government, hearings had been held regularly during the
proceedings and had been fixed at regular intervals. In their
submission, the proceedings had been concluded with reasonable speed
and without any undue delays.
Lastly,
the Government concluded that the applicant's pre-trial detention in
the present proceedings had coincided with a prison sentence imposed
on him in other proceedings and thus the applicant had effectively
been detained only for 11 months and 17 days.
The
applicant did not address the issue of the complexity of the case. He
stated, however, that the length of the proceedings had been
excessive. He argued, in particular, that it had taken 6 months for
the first-instance court to pass the files to the second-instance
court and, additionally, 11 months had elapsed before the
written grounds of the judgment were prepared.
The
applicant did not address the issue of the prison sentence which he
had served at the same time as his detention on remand. He simply
alleged that the length of his detention had been unreasonable.
2. Principles established under the Court's case-law
According
to the Court's case-law, the issue of whether a period of detention
is reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified in a given case only if there are specific indications
of a genuine requirement of public interest which, notwithstanding
the presumption of innocence, outweighs the rule of respect for
individual liberty (see, among other authorities, W.
v. Switzerland, judgment of 26 January 1993, Series A
no. 254 A, p. 5, § 30).
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the
established facts mentioned by the applicant in his appeals that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see
McKay v. the United Kingdom, [GC], no. 543/03, § 43,
ECHR 2006).
The
persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita v. Italy, no. 26772/95, § 153,
ECHR 2000 IV).
3. Application of the principles to the circumstances
of the present case
(a) Period to be taken into consideration
The
Court notes that the applicant's detention lasted from 18 December
2001 until 18 December 2004, the date on which the
first-instance judgment was given. During that time the applicant's
detention coincided with his prison sentence imposed in separate
criminal proceedings against him and lasting from 29 May 2002 to
14 June 2004.
The
Court reiterates that, in view of the essential link between
Article 5 § 3 of the Convention and
paragraph 1 (c) of that Article, a person convicted at first
instance cannot be regarded as being detained “for the purpose
of bringing him before the competent legal authority on reasonable
suspicion of having committed an offence”, as specified in the
latter provision, but is in the position provided for by Article 5
§ 1 (a), which authorises deprivation of liberty “after
conviction by a competent court” (see, for example, B.
v. Austria, judgment of 28 March 1990, Series A
no. 175, pp. 14 16, §§ 36 39).
The
Court cannot take into account the applicant's detention during this
period for the purpose of assessing the reasonableness of the length
of his detention under Article 5 § 3 of the
Convention, as it coincided with his detention after conviction in
separate criminal proceedings. Such detention cannot be considered on
the same footing as a detention under Article 5 § 1 (c),
with which Article 5 §3 is solely concerned, as it applies
only to persons in custody awaiting their trial (see Wemhoff
v. Germany, judgment of 27 June 1968, Series A
no. 7, pp. 23 24, § 9 and Bąk v. Poland,
no. 7870/04, judgment of 16 January 2007,
§ 54).
The
Court consequently finds that the period to be taken into
consideration lasted from 18 December 2001 to
29 May 2002 and from 15 June 2004 to 18 December 2004 and
amounted to approximately 11 months.
(b) Reasonableness of the length of
detention
The
Court notes that detention pending trial was imposed on the applicant
in view of the severity of the charges against him, the fact that he
had been a member of the criminal gang and the resulting risk that he
would obstruct the proceedings. Thus, it was a classic example of a
case relating to organised crime, by definition presenting more
difficulties for the investigating authorities and, later, for the
courts in determining the facts and the degree of responsibility of
each member of the gang. Accordingly, longer periods of detention
than in other cases may be reasonable (see Bąk, cited
above, § 56).
In
assessing the conduct of the authorities in the present case the
Court will take into account the special circumstances deriving from
the fact that it concerned a member of a criminal gang (see
Celejewski,
Buta,
and Bąk,
all cited above).
The
Court observes that in their decisions to remand the applicant in
custody the judicial authorities relied on the following principal
grounds: the reasonable suspicion against the applicant, the serious
nature of the offences with which he had been charged, the risk of
his influencing the testimonies of witnesses and of the co-accused
and the need to obtain extensive evidence (see paragraph 12
above).
The
suspicion that the applicant had committed the offences was confirmed
in particular by the testimonies of a key witness and a co-accused.
The Court would emphasise that there is a general rule that the
domestic courts, in particular the trial courts, are better placed to
examine all the circumstances of the case and take all the necessary
decisions, including those in respect of pre-trial detention. The
Court may intervene only in situations where the rights and liberties
guaranteed under the Convention have been infringed.
Therefore,
the only question which remains is whether and when the continuation
of his detention ceased to be warranted by “relevant” and
“sufficient” reasons.
The
Court considers that the authorities were faced with the difficult
task of determining the facts and the degree of alleged
responsibility of each of the defendants. In these circumstances, the
Court also accepts that the difficulties in obtaining evidence
deriving from the fact that, at the same time, the
prosecutor was conducting an investigation
in respect of more than fifty other members
of several closely cooperating criminal gangs and police officers in
their pay, constituted relevant and sufficient grounds for
prolonging the applicant's detention for the time necessary to
complete the investigation, draw up the bill of indictment and hear
evidence from the witnesses and the accused.
It
must be noted that the domestic courts, in ordering the prolongation
of the applicant's pre-trial detention, referred to the continuing
need for that measure and did not merely rely on the grounds
previously given (see paragraphs 33 and 34 above).
The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant's pre-trial detention were
“relevant” and “sufficient” to justify
holding him in custody for the entire period in issue. That being
said, the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct
of the criminal proceedings against the applicant.
The
Court observes that the proceedings were of considerable complexity,
regard being had to the number of defendants, the need to separate
them during the extensive evidentiary proceedings and to implement
special measures on account of the connections between the criminal
gangs. The length of the investigation and of the trial was justified
by the exceptional complexity of the case. It should not be
overlooked that, while an accused person in detention is entitled to
have his case given priority and conducted with particular
expedition, this must not stand in the way of the efforts of the
judges to clarify fully the facts in issue, to provide both the
defence and the prosecution with all necessary facilities for putting
forward their evidence and stating their case and to give judgment
only after careful reflection on whether the offences were in fact
committed and on the sentence to be imposed (see, Bąk,
mentioned above, § 64). The hearings in the applicant's case
were held regularly and at reasonable intervals.
For
these reasons, it considers that the domestic authorities cannot be
criticised for a failure to observe “special diligence”
in the handling of the applicant's case.
Having
regard to the foregoing and to the fact that the applicant was
effectively detained within the meaning of
Article 5 § 3 of the Convention for about eleven
months, the Court concludes that there has been no violation of that
provision.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant also complained under Article 8 that his
correspondence with his lawyer and with the Court was monitored while
he was detained on remand.
Article 8
of the Convention provides, as relevant:
“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.”
The
Government refrained from taking a position on that matter.
The
Court's assessment
(i) Principles
established under the Court's case-law
An
“interference by a public authority” with the exercise of
the right to respect for his correspondence will contravene Article 8
unless it is “in accordance with the law”, pursues one or
more of the legitimate aims referred to in paragraph 2 and
furthermore is “necessary in a democratic society” in
order to achieve them (see, among other authorities, the Labita
judgment cited above, § 179).
The
expression “in accordance with the law” requires that the
interference in question must have some basis in domestic law. A law
must be adequately accessible: the citizen must be able to have an
indication that is adequate, in the circumstances, of the legal rules
applicable to a given case. Moreover, a norm cannot be regarded as a
“law” unless it is formulated with sufficient precision
to enable the citizen 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. Finally, a law which confers discretion must
indicate the scope of that discretion. However, the Court has
recognised the impossibility of attaining absolute certainty in the
framing of laws and the risk that the search for certainty may entail
excessive rigidity (see, among other authorities, Silver and
Others v. the United Kingdom, judgment of 25 March 1983,
Series A no. 61, p. 33, §§ 86 88,
Kozimor v. Poland, no. 10816/02, § 48,
12 April 2007).
(ii) Application of the principles to the
circumstances of the present case
(α) Existence of an interference
The
Court notes that an envelope containing a letter mailed to the
applicant by his lawyer on 14 December 2005 bears a stamp:
“Censored on, signature” (Ocenzurowano dn. podpis),
a hand-written date: 23 December 2005 and an illegible signature (see
paragraph 18 above). It can only be concluded
that the envelope was opened by the domestic authorities. In coming
to such a conclusion, the Court takes into account that, in the
Polish language, the word ocenzurowano
means that a competent authority, after having controlled the content
of a particular communication, decides to allow its delivery or
expedition. Consequently, the Court presumes that this letter has
been opened and its 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).
Further,
the applicant provided an envelope containing a letter sent to him
from the Court and dated 14 November 2005, which bears several
stamps of the penitentiary institution. It has not been marked with
the “censorship” stamp. It cannot be established solely
on the basis of the applicant's submissions whether the letter was
indeed opened and read. Nonetheless, in view of the fact 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 and in the light of the Court's case-law
indicating that the Polish authorities continue the practice of
censoring and marking detainees' letters, the Court has no
alternative but to presume that this letter has likewise been
subjected to monitoring.
It
follows that the monitoring of the Court's correspondence addressed
to the applicant constituted an “interference by a public
authority”, within the meaning of Article 8 § 2, with the
exercise of the applicant's right to respect for his correspondence.
(b) Whether the interference was “in
accordance with the law”
The
Government did not indicate a concrete legal basis in the domestic
law for the impugned interference. The Court notes that the
interference took place between November and December 2005 after the
first-instance judgment had been given. However, under the applicable
domestic law the applicant's legal status was governed by the
provisions concerning detention on remand pending the delivery a
judgment by an appellate court.
As
regards the interference with the right to respect for the
applicant's correspondence with the Court, 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, cited above, § 61, Kwiek
v. Poland, no. 51895/99, § 44, 30 May 2006).
Thus, monitoring of the letter from the Registry of the Court to the
applicant was contrary to the domestic law.
As
regards the censorship of the letter from the applicant's lawyer, the
Court reiterates that the confidentiality of the applicant's letters
addressed to and sent by his legal counsel must be respected, save
for reasonable cause. It is clearly in the general interest that any
person who wishes to consult a lawyer should be free to do so under
conditions which favour full and uninhibited discussion. It is for
this reason that the lawyer-client relationship is, in principle,
privileged. Similar considerations apply to a prisoner's
correspondence with a lawyer concerning contemplated or pending
proceedings where the need for confidentiality is equally pressing.
That such correspondence be susceptible to routine scrutiny, is not
in keeping with the principles of confidentiality and professional
privilege attaching to relations between a lawyer and his client. In
the Campbell v the United Kingdom judgment of 25 March
1992 Series A no. 233, par. 48, the Court found no
reason to distinguish between the different categories of
correspondence with lawyers which, whatever their purpose, concern
matters of a private and confidential character. In the present case,
regard being had to the explicit prohibition of censorship of
detained persons' correspondence with their lawyers, provided for in
Article 73 of the Code of Criminal Procedure, the Court
considers that the interference complained of was contrary to the
domestic law.
It
follows that the interference with the applicant's correspondence
with the Court and his lawyer 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
The
applicant claimed damages for pecuniary and non pecuniary damage in
the sum of 5,000 euros [EUR] with respect to the alleged
violation of Article 5 § 3 of the Convention and EUR
5,000 with respect to his complaint under Article 8.
The
Government did not address the issue.
The
Court recalls that it has only found a breach of Article 8 of the
Convention in the applicant's case. As to the applicant's claim for
pecuniary damage, the Court does not discern any causal link between
the violation found and the damage alleged; it therefore rejects this
claim. On the other hand, it considers that the applicant has
suffered non-pecuniary damage on account of the interference with his
correspondence which is not sufficiently compensated by the finding
of a violation of the Convention. Considering the circumstances of
the case, and making its assessment on an equitable basis, the Court
awards the applicant EUR 500 under this head.
B. Costs and expenses
The
applicant, who was represented by a lawyer before the Court and was
not granted legal aid, asked for reimbursement of costs and expenses
incurred in connection with the proceedings in the amount of EUR 488.
The
Government did not express an opinion on the matter.
According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the requested sum of EUR 488
for the proceedings before the Court.
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 application admissible;
Holds that there has been no violation of
Article 5 § 3 of the Convention;
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 488 (four hundred and eighty eight euros) in respect of
costs and expenses, plus any tax that may be chargeable on the
above amount, to be converted into Polish zlotys at the date of the
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;
5. Dismisses
the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 15 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas
Bratza
Registrar President
