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FOURTH
SECTION
CASE OF MAKSYM v. POLAND
(Application
no. 14450/02)
JUDGMENT
STRASBOURG
19
December 2006
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 Maksym v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 28 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14450/02) 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 Maciej Maksym (“the applicant”), on 25 April
2000.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
9 May 2006 the Court declared the application partly inadmissible and
decided to communicate ex officio the issue of the possible
monitoring of the applicant's correspondence to the Government. Under
the provisions of Article 29 § 3 of the Convention, it
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 1971 and lives in Gliwice, Poland.
A. The criminal proceedings against the applicant
5. The
applicant was the owner of a company in Gdańsk (Agencja
Rozwoju Przedsiębiorczości i Inwestycji w Gdańsku). On
8 April 1999 he was arrested on suspicion of fraud. On 10 April
1999 the Gdańsk District Court (Sąd Rejonowy)
ordered his detention on remand.
- On
21 May 1999 the applicant began serving a 3 years and 10 months'
prison sentence, which resulted from another conviction.
- On
9 January 2000 the Gdańsk District Court convicted the applicant
as charged and sentenced him to 3 years and 6 months' imprisonment.
- On
18 October 2001 the Gdańsk Regional Court upheld the applicant's
conviction.
- On
9 May 2002 the applicant was again arrested on suspicion of fraud. On
10 May 2002 the Olsztyn District Court ordered his detention on
remand. On 16 September 2002 the Olsztyn District Court
convicted the applicant as charged and sentenced him to 3 years'
imprisonment.
- Upon
the applicant's appeal, the Olsztyn Regional Court amended the
first instance judgment on 30 January 2003. The applicant
filed a cassation appeal. On 1 March 2004 the Supreme Court
dismissed the applicant's cassation appeal as manifestly ill founded.
B. The monitoring of the applicant's correspondence
- At
the time of lodging his application with the Court the applicant had
been detained on remand in the course of criminal proceedings against
him. At the same time, as of 21 May 1999 he was serving a prison
sentence imposed in the course of another set of criminal proceedings
against him.
- On 6 June 2000, the Registry of the Court
received the applicant's letter dated 12 April 2000. Both
the letter and the envelope bear a stamp “Censored on...
judge” and no signature (Cenzurowano dn... sędzia.).
The envelope had been opened and then sealed with adhesive tape.
- On
13 February 2001, the Registry of the Court received another letter
from the applicant (dated 29 December 2000). It was delivered in
an envelope bearing a stamp “Censored on ... judge”
and no signature (Cenzurowano dn... sędzia.). It also
bears a red stamp “Remand Centre in Gdańsk” (Areszt
Śledczy w Gdańsku).
- On
25 June 2001, the Registry of the Court received another letter from
the applicant, dated 24 July 2000 (sent on 13 June 2001).
It was delivered in an envelope bearing a stamp “Censored
on... judge” and no signature (Cenzurowano dn...
sędzia.). The envelope had been sealed with adhesive tape.
It also bears a handwritten note: “letter admitted to
transport sealed with adhesive tape” (list
przyjęty do przewozu oklejony taśmą).
II. RELEVANT DOMESTIC LAW
A. The Code of Execution of Criminal Sentences 1997
- Rules
relating to means of controlling correspondence of persons involved
in criminal proceedings are set out in the Code of Execution of
Criminal Sentences (Kodeks karny wykonawczy) which entered
into force on 1 September 1998.
- The
relevant part of Article 103 § 1 of the Code provides
as follows:
“Convicted persons ... 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 censored.”
- Article 214 § 1 reads as follows:
“Unless exceptions are provided for in the present
Chapter, a detainee shall enjoy at least the same rights as are
secured to a convicted person serving a sentence of imprisonment
under the ordinary regime in a closed prison. No restrictions shall
be applied to him except such as are necessary to secure the proper
conduct of criminal proceedings, to maintain order and security in a
remand centre and to prevent demoralisation of detainees.”
- Article 217 § 1 reads, in so far as relevant, as
follows:
“... detainee's correspondence shall be censored
by [the authority at whose disposal he remains], unless the authority
decides otherwise.”
Article
242 § 5 reads as follows:
“The prohibition of censorship shall also mean the
prohibition of acquainting oneself with the content of the letter.”
B. The Rules of Detention on Remand 1998
19. On
1 September 1998 the Rules of Detention on Remand (Rozporządzenie
Ministra Sprawiedliwości w sprawie regulaminu wykonywania
tymczasowego aresztowania) entered into
force.
§ 36
of the Rules provides:
“The
detainee's correspondence, including the correspondence with the
international institutions for the protection of human rights, which
act on the basis of international agreements ratified by the Republic
of Poland, with the Ombudsman and public and local government
institutions, is mailed through the intermediary of the organ at
whose disposal he remains.”
§ 38
provides:
“2. Censorship shall mean deleting a
part of text or making it illegible, whereas seizing correspondence
shall mean not transmitting it to a detainee and placing it in his
file”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8 and 34 OF THE
CONVENTION
- The
Court considered it appropriate to raise ex officio the issue
of Poland's compliance with Article 8 (right to respect for
correspondence) and Article 34 (effective exercise of the right
to file individual applications) on account of indications that the
applicant's correspondence with the Court had been monitored.
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.”
Article
34 of the Convention reads as follows:
“The Court may receive applications from any
person, non governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. Admissibility
- 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. The submissions before the Court
- The
applicant submitted in general terms that the circumstances of his
case disclosed a breach of the Convention.
- The
Government, having regard to the particular circumstances of the case
and the Court's case law, refrained from expressing their
opinion on the merits of the application. However, they argued that
there had been no interference with the applicant's letters of
12 April 2000, 9 December 2000 and 24 July 2000. On no
occasion had the applicant's correspondence with the Court been
stopped or intercepted, nor had the delivery of his letters been
postponed. The Government concluded that the applicant had not been
in any way hindered in the exercise of his right of petition.
2. The Court's assessment
(a) Existence of an interference
- The
Court first observes that the applicant's letter of 12 April
2000 bears stamps “censored on...judge” and no
signature. The stamps appear on the third page of the letter and on
the envelope. Similar stamps appear on the envelopes of the
applicant's letters of 29 December 2000 and 24 July 2000
(see paragraphs 11 - 13 above).
- The
Court further notes that the applicant's letter of 24 July 2000
was posted with almost one year's delay; in addition, the envelope
had been opened and sealed with adhesive tape (see paragraph 13
above).
- It
follows that the opening, reading and delaying of the applicant's
letters to the Court amounted to an “interference” with
his right to respect for his correspondence under Article 8.
(b) Whether the interference was “in
accordance with the 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,
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).
- The
Court observes that the Government did not indicate a concrete legal
basis in the domestic law for the impugned interference. It further
notes that the impugned interference took place on three occasions
between 12 April 2000 and 25 June 2001 when the
applicant had been detained on remand or was serving a prison
sentence.
- The
Court 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
same Code, which expressly relates to convicted persons, was also
applicable to detained persons (see Michta v. Poland
no. 13425/02, § 61, 4 May 2006; Kwiek v. Poland,
no. 51895/99, § 44, 30 May 2006). 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”.
- Accordingly,
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.
(c) Whether the applicant could
effectively exercise his right to file an individual application
- The Court recalls that it is of utmost importance for
the effective operation of the system of individual application
instituted by Article 34 that applicants should be able to
communicate freely with the Court without being subjected to any form
of pressure from the authorities to withdraw or modify their
complaints. In this context, “pressure” includes not only
direct coercion and flagrant acts of intimidation, but also other
improper indirect acts or contacts designed to dissuade or discourage
applicants from using a Convention remedy (see Aydın v. Turkey,
judgment of 25 September 1997, Reports of Judgments and
Decisions 1997-VI, §§ 115-117). The interception
or delaying of letters by prison authorities can also hinder
applicants in bringing their cases to the Court (see
Klyakhin v. Russia, no. 46082/99, § 119,
30 November 2004, Matwiejczuk v. Poland,
no. 37641/97, § 104-106, 2 December 2003,
Drozdowski v. Poland, no. 20841/02, §§
27-31, 6 December 2005).
- In
the present case the Government claimed that the delivery of the
applicant's letters had not been postponed and that no interference
with the contents of his letters had been established (see paragraph
23 above). In this respect, the Court notes that the Government have
failed to submit any details of the movement of the applicant's
correspondence, in particular copies of prison records relating to
the applicant's letter dated 24 July 2000 which was eventually
posted only on 13 June 2001.
- In
the absence of any explanation from the Government as to the one year
delay in posting the applicant's letter, the Court finds that there
has also been a violation of Article 34 of Convention.
II. 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 15,000 euros (EUR) in respect of
pecuniary and non pecuniary damage.
- The
Government submitted that the applicant's claim was excessive. They
asked the Court to rule that a finding of a violation of Article 8
constituted in itself sufficient just satisfaction. In the
alternative, they invited the Court to assess the amount of just
satisfaction on the basis of its case law in similar cases and
having regard to national economic circumstances.
- 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 considers that the applicant has suffered
non pecuniary damage 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 submitted no claim 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 remainder of the application
admissible;
- Holds that there has been a violation of
Article 8 of the Convention;
- Holds that there has been a violation of Article
34 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, 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
T.L. Early Nicolas Bratza
Registrar President
