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FOURTH
SECTION
CASE OF ANDRYSIAK v. POLAND
(Application
no. 31038/06)
JUDGMENT
STRASBOURG
20 May
2008
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 Andrysiak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31038/06) 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 Radosław Andrysiak
(“the applicant”), on 26 July 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
27 October 2006 the President of the Fourth Section of the Court
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 1976 and lives in Łódź.
- On
19 January 2004 the applicant was arrested on suspicion of attempted
burglary and assault causing bodily harm.
- On
21 January 2004 the Sieradz District Court remanded the applicant in
custody. The applicant was released from detention on 8 July 2004.
- On
20 September 2004 the Sieradz District Court acquitted the applicant
of attempted burglary and convicted him of assault. It sentenced him
to one year's imprisonment. The applicant appealed.
- On
8 December 2004 the Sieradz Regional Court upheld the District Court
judgment. The applicant lodged a cassation appeal.
- On
16 August 2005 the Supreme Court dismissed his cassation appeal as
manifestly ill-founded.
- It
transpires from the case file that in the period from 12 June 2006 to
at least 4 July 2006 the applicant was again remanded in custody in
connection with another set of criminal proceedings against him.
- On
12 June 2006 the applicant sent a request for an application form to
the Court. On 29 June 2006 the Court received his request.
- On
4 July 2006 the Court sent a letter to the applicant containing a
copy of the Convention, an application form and two information
sheets. The envelope from this letter bears a stamp marked
“censored”. The envelope also bears two stamps of the
Łódź Detention Centre with the dates 14 July 2006
and 21 July 2006.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law concerning the censorship of prisoners'
correspondence is set out in the Court's judgments in the cases of
Michta v. Poland, no. 13425/02, §§ 33-39, 4 May
2006 and Kwiek v. Poland, no. 51895/99, § 21-24, 30
May 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE
CONVENTION
A. The monitoring of correspondence
- The
Court raised of its own motion a complaint under Articles 8 and 34 of
the Convention concerning the interference with the applicant's
correspondence. Article 8, 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.”
Article
34 provides:
“ 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.”
1. Admissibility
- The
Government submitted that the applicant had not exhausted all
available domestic remedies because he had failed to bring an action
under Article 24 §§ 1 and 2 and/or Article 23, in
conjunction with Article 448 and 417 of the Civil Code. These
provisions would have allowed him to assert that by censoring his
correspondence the authorities had breached his personal rights
protected by the Civil Code and to make a claim in respect of
non-pecuniary damage.
- In
this connection, the Government relied on the Warsaw Regional Court's
judgment of 27 November 2006 in which a prisoner had been awarded PLN
5,000 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
held that the confidentiality of correspondence was a personal right
protected under Article 23 of the Civil Code, whose breach could
entitle the claimant to an award in respect of non-pecuniary damage.
- The
applicant did not comment.
- The
Court notes that the alleged interference with the applicant's
correspondence occurred in July 2006, whereas the Government relied
on the Warsaw Regional Court's judgment of 27 November 2006. The
judgment was reviewed by the Warsaw Court of Appeal on 28 June 2007
and became final. Any relevance the latter judgment might have to the
present case is therefore reduced by the fact that it was delivered
after the relevant time (see, for example, V. v. the United
Kingdom [GC], no. 24888/94, § 57, ECHR 1999 IX;
Lewak v. Poland, no. 21890/03, § 22 25,
6 September 2007).
- For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
- 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.
2. Merits
- The
applicant submitted that the circumstances of his case disclosed a
breach of the Convention.
- The
Government refrained from expressing their opinion on the merits of
the complaint under Article 8. The Government further submitted that
the applicant was in no way hindered in the exercise of his right of
petition to the Court, therefore, the facts of the case disclosed no
breach of Article 34 of the Convention.
- 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).
a) Existence of interference
- The
Court notes that the authorities marked the applicant's letter to the
Court with the “censored” stamp (see paragraph 12 above).
- The
Court further notes that the impugned interference took place when
the applicant had been detained pending trial.
- The
Court considers that marking the applicant's letter with the
“censored” stamp indicates that there was a reasonable
likelihood that the letter had been opened and their contents read.
The Court has held on many occasions that as long as the Polish
authorities continue the practice of marking detainees' letters with
the “censored” 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, cited above, § 58).
It follows that there was 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” and whether it was justified
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, detained persons 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, is also applicable to persons
in pre-trial detention (see Michta v. Poland
no. 13425/02, § 61, 4 May 2006; and
Kwiek v. Poland, no. 51895/99, § 44,
30 May 2006).
- Therefore,
censorship of the letter of the Court's Registry to the applicant 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. There has consequently been a violation of Article 8.
Having regard to this finding, the Court does not deem it necessary
to examine this complaint under Article 34 of the Convention (see,
Pisk-Piskowski, cited above, § 29).
B. The seizure of correspondence
- The
applicant further complained in substance under Articles 8
and 34 about the seizure by the prison authorities of some of
the documents that contained the Court's Registry letter to the
applicant.
- The
Court considers that the evidence before it does not show that any of
the documents sent by the Court to the applicant were seized by the
prison authorities.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
- The applicant also complained under Article 5 § 1
(c) of the Convention that he was arrested and detained although
there had been no reasonable suspicion that he had committed any
offence.
Article
5 § 1 (c) reads, in so far as relevant, as follows:
“ 1. Everyone has the right to
liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a
procedure prescribed by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;”
- Under
Article 35 § 1 of the Convention, the Court may only deal with
the matter after all domestic remedies have been exhausted.
- The
Court observes that there is no proof in the case file that the
applicant challenged the detention order or any of the decisions
extending his detention.
- It
follows that this complaint must be rejected under
Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
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 50,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government argued that the applicant's claims were exorbitant and as
such should be rejected. They asked the Court to rule that a finding
of a violation 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 finds that the applicant has suffered
non-pecuniary damage which is not sufficiently compensated for by the
finding of a violation of Article 8 of the Convention as regards the
monitoring of the applicant's correspondence. Considering the
circumstances of the case, the Court awards the applicant EUR 500
under this head.
B. Costs and expenses
- The
applicant, who was granted legal-aid but was not eventually
represented by a lawyer in the proceedings before the Court, did not
seek to be reimbursed for any costs or expenses in connection with
the proceedings before the Court.
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 as regards the monitoring of the applicant's
correspondence;
3. Holds that it is unnecessary to examine the
applicant's complaint that the monitoring of his correspondence
constituted an interference with the exercise of his right of
individual petition provided in 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, to be converted
into the national currency of the respondent State 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 20 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
