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Cite as: [2010] ECHR 1406

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FOURTH SECTION

CASE OF HINCZEWSKI v. POLAND

(Application no. 34907/05)

JUDGMENT

STRASBOURG

5 October 2010

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 Hinczewski v. Poland,

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

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 14 September 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 34907/05) 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”) by a Polish national, Mr Leszek Hinczewski (“the applicant”), on 18 September 2005.

The applicant was represented by Mr J. Zaleski, a lawyer practising in Katowice. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

The applicant alleged, in particular, that he was prevented from voting in the 2005 Parliamentary Elections in Poland.

On 6 November 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1971 and lives in Jastrzębie Zdrój.

A The criminal proceedings

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

On 2 May 1990 the applicant was arrested by the police and detained on remand.

On 31 May 1991 the Katowice Regional Court (Sąd Wojewódzki) convicted the applicant of homicide and sentenced him to twelve years' imprisonment and a fine, to be paid to a charity. The court also sentenced the applicant to four years' deprivation of his civic rights.

The applicant appealed. On 17 December 1991 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed his appeal.

The applicant served the twelve-year sentence during the following periods: from 2 May 1990 to 14 February 1993; from 17 February 1993 to 20 June 1993; from 18 September 1993 to 31 January 1995; from 12 April 1995 to 22 May 1999; and from 10 October 2001 to 6 March 2005.

On 22 September 1994 the applicant was convicted of burglary by the Dąbrowa Górnicza District Court (Sąd Rejonowy) and sentenced to two years and three months' imprisonment. That judgment was partly upheld on appeal by the Katowice Regional Court on 22 December 1994. The applicant served this sentence between 7 May 2005 and 7 August 2007.

B. Elections

On 25 September 2005 the applicant, who was at that time serving his sentence in the Katowice Detention Centre, unsuccessfully attempted to vote in the parliamentary elections. On the same date he wrote a “declaration” in which he complained to the Katowice Local Electoral Commission (Obwodowa Komisja Wyborcza) about not being allowed to vote. The following handwritten note, accompanied by a stamp of the Katowice Local Electoral Commission and an illegible signature, was made on the applicant's declaration:

“On 25 September 2005 Mr Leszek Hinczewski came to cast his vote. He did not vote, however, because he was still deprived of his civic rights and his name had been deleted from the list of voters. The Municipal Office was consulted and confirmed that it had been notified by the Katowice Regional Court [about the applicant's conviction in] case IVK 165/90. The date of notification: 22 August 2005.”

C. Monitoring of correspondence

On 9 July 2006 the applicant sent the Court a letter from the Sosnowiec Detention Centre. The envelope in which the letter was delivered to the Registry bears the following stamp: “Będzin District Court Censored” (Sąd Rejonowy w Będzinie Cenzurowano) and an illegible signature. An identical stamp “Bedzin District Court Censored” with an illegible signature can be found on the second page of the applicant's letter addressed to the Registrar. The envelope bears signs of having been opened: its right side has been cut open and then resealed with sellotape.

The applicant submitted that his letter from the Ombudsman had been interfered with by the authorities. He provided the original envelope in which the letter was delivered to him. The envelope bears the stamp of the sender, the Office of the Ombudsman in Warsaw, and is postmarked 27 July 2005. According to other stamps, it appears that the letter arrived at the Sosnowiec Detention Centre on 1 August 2005 (Areszt Śledczy w Sosnowcu), and was then sent to the Dabrowa Gornicza District Prosecutor (Prokuratura Rejonowa... Dabrowa Gornicza), who returned it to the Detention Centre on 11 August 2005. On the stamp of the Dabrowa Gornicza District Prosecutor there is a handwritten note: “Censored” (Ocenzurowano) and an illegible signature. The envelope bears signs of having been opened: the top has been cut open and then resealed with sellotape.

II. RELEVANT DOMESTIC LAW

A Elections

Article 62 of the Constitution of Poland provides as follows:

“1. If, no later than on the day of vote, he has attained 18 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 been subjected to legal incapacitation or deprived of civic or electoral rights, shall have no right to participate in a referendum or to vote.”

Article 79 § 1 of the Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

Under the Criminal Code of 1996 (Kodeks Karny) (“the old Code”) deprivation of civic rights was one of the penal measures that could be ordered by a court. This law is no longer in force as it was repealed and replaced by the so-called “New Criminal Code” of 6 June 1997 (“the 1997 Code”), which entered into force on 1 September 1998. However, the provisions relevant to the instant case were included in the 1997 Code with only minor modifications.

Article 39 of the old Code (presently Article 40 § 1 of the 1997 Code) reads as follows in so far as relevant:

“The deprivation of civic rights shall include the loss of the right to vote and to be elected to the Sejm ....”

Article 44 §1 of the old Code (presently Article 43 § 1 of the 1997 Code), in its relevant part, provides as follows:

“[The deprivation of civil rights and other interdictions...] shall be imposed in terms of years for a period ranging from 1 to 10 years.”

Article 45 of the old Code (presently Article 43 § 2 of the 1997 Code) provides:

“The deprivation of rights or an interdiction imposed by the court shall take effect from the time the sentence becomes final; the period for which they were imposed does not run during the serving of a penalty of deprivation of liberty, even if the latter has been imposed for another offence.”

According to Article 40 § 2 of the 1997 Code deprivation of civic rights can be ordered together with a sentence of deprivation of liberty for a period longer than three years for a crime committed with particularly reprehensive motives.

Section 15 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 as follows:

“1. Everyone has a right to lodge a complaint with the mayor of a district (or the president of a town) about irregularities in the register of voters, and in particular:

1) the omission of a voter from the register;

...

2. The complaint shall be lodged in writing or orally for the record.

3. A mayor of a district (or president of a town) shall examine the complaint within three days from when it was lodged and give a decision on the merits.

4. A reasoned decision shall be served on the complainant and, when applicable, on other persons whom the decision concerns.

5. The complainant has a right to appeal against the decision ... dismissing his complaint within three days from the delivery of the decision. The appeal shall be lodged with the relevant District Court ...”

Section 20 of the 2001 Elections Act provides:

“3. The list of voters in prisons and detention centres ... shall be drawn up on the basis of the registers of persons housed there on the day 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.”

B Monitoring of correspondence

Rules relating to the means of monitoring the correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code of Execution of Criminal Sentences”) which entered into force on 1 September 1998. Article 102 (11) of the 1997 Code of Execution of Criminal Sentences provides that convicted persons are entitled to have private and confidential correspondence with the State authorities and with the Ombudsman, which shall not be interfered with.

The relevant part of Article 103 § 1 of the Code provides as follows:

“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 interfered with.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

The applicant complained that his letter from the Ombudsman was interfered with in breach of Article 8 of the Convention. In addition the Court raised of its own motion a complaint under Article 8 of the Convention in respect of the applicant's correspondence with the Registry of the Court. This Article reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and 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 raised an objection, claiming non-exhaustion of domestic remedies. They decided not to comment on the merits of the complaint.

A. Admissibility

The Government submitted that the applicant had not exhausted all available domestic remedies. He had failed to bring an action under Article 24 § 2 read in conjunction with Article 448 of the Civil Code. These provisions would have allowed him both to assert that by interfering with his correspondence the authorities had breached his personal rights protected by the Civil Code and to claim compensation for non-pecuniary damage.

The applicant's lawyer did not comment.

The Court has held that applicants with similar complaints based on interferences which occurred after 28 June 2007 are required to avail themselves of the provisions of Articles 23 and 24 § 1 read in conjunction Article 448 of the Civil Code, failing which they will be considered to have failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention (see Biśta v. Poland, no. 22807/07, § 49, 12 January 2010).

However, the alleged interference with the applicant's correspondence occurred in 2005 and in July 2006, that is, before 28 June 2007, the date on which the Warsaw Court of Appeal gave its judgment granting compensation for the infringement of the confidentiality of a prisoner's correspondence on account of interference with it (ibid, § 47).

Moreover, the complaint under Article 8 of the Convention concerning the alleged interference with the applicant's correspondence with the Registry of the Court was raised of the Court's own motion. The letter at issue was sent by the applicant to the Court and he could not have been aware that it had been intercepted by the authorities. Moreover, at the relevant time the applicant did not have at his disposal an effective remedy (see paragraph 29 above).

For these reasons, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed (see Lewak v. Poland, no. 21890/03, § 25, 6 September 2007, and Wenerski v. Poland, no. 44369/02, § 71, 20 January 2009).

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Principles established under the Court's case-law

The Court reiterates that any “interference by a public authority” with the right to respect for correspondence will contravene Article 8 of the Convention unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve them (see, among many other authorities and with specific reference to prisoners' correspondence, Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34; and Niedbała v. Poland no. 27915/95, § 78).

As to the expression “in accordance with the law”, the Court has established three fundamental principles. The first one is that the interference in question must have some basis in domestic law. The second principle is that “the law must be adequately accessible”, a person must be able to have an indication that is adequate, in the circumstances, of the legal rules applicable to his case. The third principle is that “a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable a person 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” (see Silver, cited above, §§ 86-88).

It is important to respect the confidentiality of applicant prisoners' correspondence with the Court since it may concern allegations against prison authorities or prison officials. The opening of letters both to and from the Convention organs undoubtedly gives rise to the possibility that they will be read and may conceivably, on occasion, also create the risk of reprisals by prison staff against the prisoner concerned (see Campbell, cited above, p. 22, § 62). No compelling reasons have been found to exist for monitoring or delaying an applicant's correspondence with the Court (see Campbell, cited above, §§ 48 and 62; and Peers v. Greece, no. 28524/95, § 84, ECHR 2001-III; and Drozdowski v. Poland, no. 20841/02, §§ 27-31, 6 December 2005).

2. Application of the principles to the circumstances of the present case

The applicant's letter of 9 July 2006 addressed to the Court bears signs of having been opened and then resealed. The envelope and the second page of the letter bear stamps: “Bedzin District Court Censored”. Moreover, the letter from the Ombudsman of 27 July 2005 addressed to the applicant was apparently intercepted by the Dabrowa Gornicza District Prosecutor (see paragraphs 14 and 15 above).

The Court has held on many occasions that as long as the Polish authorities continue the practice of marking 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; Pisk-Piskowski v. Poland, no. 92/03, § 26, 14 June 2005; and Michta v. Poland, no. 13425/02, § 58, 4 May 2006). That is even more so if there is a separate stamp on the letter, as in the present case.

It follows that the monitoring of the applicant's correspondence with the Court and the Ombudsman amounted to an “interference” with the applicant's right to respect for his correspondence under Article 8.

The Court notes that the interference took place while the applicant was serving a prison sentence (see paragraph 11 above).

As regards the interference with the applicant's right to respect for his correspondence with the Court, it observes that Article 103 of the 1997 Code expressly prohibits the monitoring of correspondence with the European Court of Human Rights (see Michta, cited above, § 61, and Kwiek, no. 51895/99, § 44, 30 May 2006). Similarly, interference with an applicant's correspondence with a State authority, including the Ombudsman, was contrary to the statutory prohibition laid down in Article 102 (11) of the 1997 Code.

Thus, the interference with the letters from the Ombudsman to the applicant and from him to the Registry of the Court was contrary to the domestic law.

It follows that the interference with the applicant's correspondence with the Court and the Ombudsman 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.

II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION

The applicant complained that he had been deprived of the right to vote in the parliamentary elections of September 2005. He relied on Article 3 of Protocol No. 1 to the Convention, which reads as follows.

“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.”

The Government contested that argument and considered that the applicant had also failed to exhaust the available domestic remedy for his Article 3 of Protocol No.1 complaint. Firstly, it had been open to the applicant to lodge a complaint about the absence of his name on the electoral list under section 15 of the 2001 Election Act. In addition, the Government considered that a constitutional complaint should be considered an effective remedy in the present case.

The Court has to determine whether the specific remedy referred to by the Government could be considered effective in the circumstances of the present case. It reiterates that the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and which at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999-V).

The Court firstly notes that it was indeed open to the applicant to lodge a complaint about the absence of his name on the electoral list as provided by section 15 of the 2001 Election Act. Such a complaint was to be examined within three days by the mayor of the relevant district or the president of the relevant town and later, upon an appeal, by a District Court (see paragraph 23 above). Had the applicant had recourse to this remedy and obtained a final decision in his case, another legal avenue would have opened itself in that he could have lodged a constitutional complaint alleging that the decision to exclude his name from the electoral list had been adopted in direct application of an unconstitutional provision of national legislation.

The Court reiterates that it has already dealt with the question of the effectiveness of a constitutional complaint in Poland and found that the constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention in situations where: 1) the individual decision which allegedly violated the Convention, had been adopted in direct application of an unconstitutional provision of national legislation; and 2) procedural regulations applicable to the revision of such individual decisions provided for the reopening of the case or the quashing of the final decision in consequence of the judgment of the Constitutional Court in which unconstitutionality had been found (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; subsequently among many other authorities Pachla v. Poland (dec.), no. 8812/02, 8 November 2005 and Liss v. Poland (dec.), no.14337/02, 16 March 2010 and Urban v. Poland (dec.), no. 29690/06, 7 September 2010).

Consequently, the Court finds that by failing to lodge a complaint about the absence of his name on the electoral list which could have enabled him to seize the Constitutional Court, the applicant failed to exhaust the remedies provided for by Polish law. The Government's objection in the instant case is therefore well-founded.

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant complained about the outcome of two sets of criminal proceedings. However the first of them ended on 17 December 1991, while the recognition by Poland of the right of individual petition took effect on 1 May 1993. It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

The Court notes that the second set of criminal proceedings about which the applicant complained ended on 22 December 1994. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“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.”

A. Damage

The applicant claimed 220,000 euros (EUR) in respect of non pecuniary damage.

The Government contested this claim.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 500 in respect of non-pecuniary damage.

B. Costs and expenses

The applicant, who was represented by a lawyer, did not claim any sum in respect of costs and expenses.

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 complaint concerning the interference with the applicant's correspondence admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 8 of the Convention as regards the interferences with the applicant's correspondence with both the Court and the Ombudsman;

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), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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;

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 5 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Nicolas Bratza
Registrar President