(Application no. 42785/06)
16 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 Pasternak v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 23 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The first set of criminal proceedings against the applicant
B. Second set of criminal proceedings against the applicant
C. Censorship of the applicant's correspondence
II. RELEVANT DOMESTIC LAW
I. 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.”
In addition, for the purposes of reviewing whether the rule of exhaustion has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant (see Akdivar, cited above, § 69).
1. The submissions before the court
(a) the applicant
(b) the Government
2. The Court's assessment
(a) Whether there was interference
(b) Whether the interference was “in accordance with the law”
Thus, 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”.
II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 2 OF THE CONVENTION
It follows that this complaint has been introduced out of time and must therefore be rejected in compliance with Article 35 §§ 1 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
The applicant was charged with armed robbery, hostage taking and fraud committed in an organised criminal group (see paragraphs 11 and 12 above). According to the well-established case law of the Court (see, among other authorities, Bąk v. Poland, no. 7870/04, §§ 56-65, 16 January 2007; Chruściński v. Poland, no. 22755/04, §§ 34-42, 6 November 2007; and Tomecki v. Poland, no. 47944/06, §§ 29-37, 20 May 2008) and in view of the seriousness of the accusations and the fact that the case concerned a member of an organised criminal group, it cannot be said that the length of the applicant's detention had been excessive.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
V. 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 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State 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 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza