(Application no. 8713/03)
21 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 Janus v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 30 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Criminal proceedings against the applicant and his detention pending trial
7. The applicant was arrested by the police on 12 September 2001 on a charge of murder and by a decision of the Bytów District Court of 14 September 2001 he was detained on remand.
2. Censorship of the applicant's correspondence
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including pre-trial detention
B. Relevant statistical data
III. MEASURES TAKEN BY THE STATE TO REDUCE THE LENGTH OF PRE-TRIAL DETENTION
A. Recent amendments to the relevant legislation
B. Other measures
21. On 17 May 2007 the Cabinet (Rada Ministrów) adopted the “Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland” (Program Działań Rzqdu w sprawie wykonywania wyroków Europejskiego Trybunału Praw Człowieka). By virtue of that document the Minister of Justice was obliged to disseminate among judges and prosecutors on a regular basis information on the standards concerning the length of pre-trial detention stemming from the Convention and the case-law of the Court in Polish cases and to include this topic in the programmes of workshops and seminars for judges.
IV. RELEVANT COUNCIL OF EUROPE DOCUMENTS
A. The Committee of Ministers
B. The Council of Europe's Commissioner for Human Rights
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
II. 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.”
1. Period to be taken into consideration
As from that date he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and, consequently, that period of his detention falls outside the scope of Article 5 § 3 (cf. Kudła, cited above, § 104).
On 5 September 2002 the Gdańsk Court of Appeal quashed the applicant's conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 16 September 2003 when the applicant was again convicted. On 10 February 2004 the Gdańsk Court of Appeal again quashed the applicant's conviction. Following that date his detention was again covered by Article 5 § 3. It continued until 7 February 2005 when the applicant was again convicted.
2. The Court's assessment
(a) General principles
(b) Application of the above principles in the present case
There has accordingly been a violation of Article 5 § 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
This Article, 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.”
The Government's plea of non-exhaustion of domestic remedies
41. The Government submitted that the applicant had not exhausted all available domestic remedies. They alleged that he had failed to bring an action under Articles 24 and 23 in conjunction with Article 448 of the Civil Code. These provisions would have allowed the applicant 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.
42. 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 in damages from the State Treasury for a breach of the confidentiality of his correspondence with the Central Board of the Prison Service and the Central Electoral Office. The Regional Court had held that the confidentiality of one's correspondence was one of the personal rights protected under Article 23 of the Civil Code and that in the event of its breach a claimant could be entitled to an award for non-pecuniary damage.
44. The Court notes that the alleged interference with the applicant's correspondence occurred in 2002, whereas the Government relied on the Warsaw Regional Court's judgment of 27 November 2006 and on the Gorzów Wielkopolski Regional Court's judgment of 2 April 2009. Any relevance that the latter judgments might possibly have in respect of the present case is therefore reduced by the fact that that they were given after the relevant time and the latter one after the applicant's death (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 IX).
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
It follows that censoring of the applicant's letter with the Court amounted to 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”
Consequently, the Court finds that there has been a violation of Article 8 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
“60. The Court thus concludes, as the Committee of Ministers did, that for many years, at least as recently as in 2007, numerous cases have demonstrated that the excessive length of pre-trial detention in Poland reveals a structural problem consisting of “a practice that is incompatible with the Convention” (see mutatis mutandis Broniowski v. Poland [GC], no. 31443/96, §§ 190-191, ECHR 2004-V; Scordino v. Italy (no. 1) [GC], no. 36813.
VI. 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's mother, Mrs Stefania Janus, 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 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 21 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Early Nicolas Bratza