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FOURTH SECTION
CASE OF ŁUCZKO v. POLAND
(Application no. 73988/01)
JUDGMENT
STRASBOURG
3 October 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 Łuczko v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr M.
Pellonpää,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
judges,
and Mrs F. Elens-Passos, Deputy Registrar,
Having deliberated in private on 12 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 73988/01)
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
Janusz Łuczko (“the applicant”), on 3 April 2000.
- The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
- On 4 July 2005 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 1962 and lives in Wydminy.
A. The first set of criminal proceedings against the
applicant
- On 8 February 2000 the applicant was arrested on
suspicion of having committed three burglaries. On 10 February 2000
the Giżycko District Court (Sąd Rejonowy) ordered
that the applicant be remanded in custody until 8 May 2000. It found
that there were reasonable grounds for believing that the applicant
had committed the offences in question and that he would obstruct the
proper course of the proceedings. The applicant’s detention was
subsequently prolonged by the District Court on unspecified dates. On
31 August 2000 the bill of indictment was filed with the court.
- On 11 December 2000 the Giżycko District Court
convicted the applicant of six counts of burglary and sentenced him
to five years’ imprisonment. The applicant appealed against
that judgment.
- On 11 April 2001 the Regional Court (Sąd
Okręgowy) quashed the first-instance judgment and ordered a
retrial. The applicant was released on the same day.
- On 19 February 2003 the Giżycko District Court
convicted the applicant of five counts of burglary and sentenced him
to four years’ imprisonment.
B. The second set of criminal proceedings against the
applicant
- On an unspecified date in February 2000 the applicant
was charged with homicide. On 20 March 2000 the Giżycko District
Court ordered that the applicant be detained for three months in view
of the reasonable suspicion that he had committed the offence at
issue. On 30 June 2000 the District Court ordered the applicant’s
release. On 15 November 2000 the criminal proceedings against the
applicant were discontinued.
C. The third set of criminal proceedings against the
applicant
- On 25 March 2002 the applicant was arrested on
suspicion of burglary. On 27 March 2002 the Giżycko District
Court ordered his detention on remand until 25 May 2002. It found
that there was a reasonable suspicion that the applicant had
committed burglary, having regard to the evidence obtained in the
investigation. It also relied on the severity of the likely sentence
given the fact that the applicant was a habitual offender. Lastly, it
held that there was a risk that the applicant would tamper with
evidence.
- On 14 May 2002 the District Court ordered that the
applicant be remanded in custody until 25 June 2002. On 21 June 2002
the applicant’s detention was further prolonged until 25 August
2002. The court relied on the same grounds as given in the original
detention order.
- In June 2002 the bill of indictment was filed with the
District Court. The applicant was charged with two counts of burglary
and intimidation of a witness.
- On 22 August 2002 the District Court prolonged the
applicant’s detention until 25 October 2002. His detention was
further prolonged on 7 October 2002. On 23 January 2003 the
applicant was released.
- On 13 May 2003 the Giżycko District Court
convicted the applicant as charged and sentenced him to 3 years and 2
months’ imprisonment.
4. The censorship of the applicant’s
correspondence with the Court
- The following of the applicant’s letters to the
Court bear a stamp “Judge” (Sędzia) and an illegible
signature:
letter
dated 25 September 2000 received by the Court on 2 October 2000. It
appears that the envelope in which that letter was sent had been cut
open and subsequently resealed with adhesive tape;
letter
dated 18 October 2000 received by the Court on 6 November 2000. That
letter also bears a stamp “Giżycko District Court.
Received 23 October 2000” (Sąd Rejonowy w Giżycku.
Wpłynęło 23.10.2000) and an illegible signature.
The envelope in which the letter was sent bears a stamp “Giżycko
Detention Centre. Received 19 October 2000” (Areszt
Śledczy w Giżycku. Wpłynęło 19.10.00).
According to the postal stamp, the letter was posted on 24 October
2000;
letter
dated 19 October 2000 received by the Court on 30 October 2000. It
appears that the envelope in which that letter was sent had been cut
open and subsequently resealed with adhesive tape;
letter
dated 27 December 2000 received by the Court on 9 February 2001;
letter
dated 8 January 2001 received by the Court on 16 January 2001. The
envelope in which that letter was sent bears a stamp “Giżycko
Detention Centre. Received 8 January 2001” (Areszt Śledczy
w Giżycku. Wpłynęło 08.01.2001). According
to the postal stamp, the letter was posted on 11 January 2001. It
appears that the envelope in which that letter was sent had been cut
open and subsequently resealed with adhesive tape;
letter dated 24 June 2002 received by the Court on 5 July 2002.
Most of the envelopes in which those letters were sent, except for
the letters dated 27 December 2000 and 24 June 2002, bear a
hand-written note “SR Giżycko” (D[istrict]
C[ourt] Giżycko).
II. RELEVANT DOMESTIC LAW
A. Censorship of correspondence
1. 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.”
2. The Rules of Detention on Remand 1998
- 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:
“A detainee’s correspondence, including
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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The Court raised of its own motion a complaint under
Article 8 of the Convention. This provision, 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, having regard to the particular
circumstances of the case and the Court’s case law, refrained
from expressing their opinion on the admissibility and merits of the
complaint.
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. Existence of an interference
- The Court observes that the authorities marked the
applicant’s letters to the Court with the “Judge”
stamp (see paragraph 15 above). It notes the difference between that
and the practice usually encountered in other censorship cases
against Poland, in which the applicants’ letters were marked
with the “censored” stamp or note (see, among others,
Pisk-Piskowski v. Poland, no. 92/03, § 26, 14 June
2005; Michta v. Poland, no. 13425/02, § 57, 4
May 2006), but does not find this difference to be of any substance.
The Court considers that marking the applicant’s letters with
the “Judge” stamp indicates that there was a reasonable
likelihood that the letters had been opened and their contents read.
In the circumstances of the present case, it is not necessary to
consider other indications pointing to the fact that the applicant’s
letters had been opened and/or delayed by the authorities. Having
regard to the above and the lack of explanation provided by the
Government, the Court can only presume that the applicant’s
letters to the Court had been opened and read by the authorities.
- It follows that in respect of all six letters of the
applicant there was an “interference by a public authority”
with his right to respect for his correspondence under Article 8.
2. 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 on six occasions between 25
September 2000 and 24 June 2002 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, cited above, § 61; 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” and that there
has been a violation of Article 8 of the Convention for that reason.
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant also complained about the unlawfulness
of his detention in respect of all three sets of criminal proceedings
against him. In respect of the first and the third set of
proceedings, the applicant alleged that he had been wrongly
convicted. He did not rely on any provision of the Convention.
- The Court, having examined those complaints under
Articles 5 § 1 and 6 § 1 of the Convention, and regardless
of other possible grounds of inadmissibility, finds nothing in the
case file which might disclose any appearance of a violation 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.
III. 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 141,000 Polish zlotys (PLN) in
respect of pecuniary and non-pecuniary damage.
- The Government argued that the applicant’s
claims were excessive and should be rejected. 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, in particular, the number
of instances in which the applicant’s letters to the Court were
censored and making its assessment on an equitable basis, the Court
awards the applicant EUR 2,000 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 complaint concerning the monitoring
of 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;
- 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 2,000 (two thousand euros) in respect of
non-pecuniary damage, to be converted into Polish zlotys at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(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 3 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Nicolas Bratza
Deputy
Registrar President
