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FOURTH
SECTION
CASE OF ĆWIERTNIAK v. POLAND
(Application
no. 26846/05)
JUDGMENT
STRASBOURG
22 July
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 Ćwiertniak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26846/05) 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 Wojciech Ćwiertniak
(“the applicant”), on 13 July 2005.
- The
Polish Government were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant alleged unfairness of the criminal proceedings in his case.
- On
16 November 2006 the
President of the Fourth Section decided to give notice of the
application to the Government. It was decided to examine the merits
of the application at the same time as its admissibility (Article 29
§ 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Zamość.
A. The criminal proceedings against the applicant
- On
12 September 2003 the Otwock District Court convicted the applicant
of having committed a series of robberies acting in an organised
criminal group and sentenced him to ten years' imprisonment. The
applicant appealed against the judgment.
- On
21 September 2003 the Warsaw Regional Court partly amended the
judgment. The applicant lodged a cassation appeal with the Supreme
Court.
- On
30 June 2005 the Supreme Court dismissed the cassation appeal as
manifestly ill-founded.
B. The monitoring of the applicant's correspondence
- On
16 August 2005 the applicant sent his application form to the Court.
The envelope in which it was delivered bears several stamps of the
Zamość Prison and a handwritten note: censored, D[istrict]
C[ourt] [ocenzurowano SR]. Two sides of the envelope had been
resealed with sellotape. The envelope itself was delivered in a
plastic cover, apparently sealed by the post office.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law concerning the censorship of prisoners'
correspondence is set out in the Court's judgment in the case of
Michta v. Poland, no. 13425/02, §§ 33-39, 4 May
2006.
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 raised a preliminary objection that the applicant failed
to exhaust domestic remedies. They refrained from expressing their
opinion on the merits of the complaint under Article 8.
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 in conjunction with Article 448 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 claim non-pecuniary damages.
- 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 (PLN) in damages from the State Treasury for a
breach of secrecy of his correspondence with the Central Board of the
Prison Service and the Central Electoral Office. The Regional Court
held that secrecy of one's correspondence was one of the personal
rights protected under Article 24 of the Civil Code and that in
the case of its breach a claimant may be entitled to an award of
non-pecuniary damages.
- The
applicant did not comment.
- The
Court notes that the complaint under Article 8 of the Convention
concerning the alleged censorship of the applicant's correspondence
was raised of its 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 censored by the authorities. In those circumstances, the
applicant cannot be required to bring any domestic proceedings in
order to obtain redress for the alleged breach of his right to
respect for his correspondence.
- Even
assuming that the applicant did complain about the censorship of his
letter to the Court, it has to be noted that the alleged interference
with the applicant's correspondence occurred in 2005, whereas the
Government relied on the Warsaw Regional Court's judgment of 27
November 2006. Any relevance that the latter judgment might possibly
have in respect of the present case is therefore reduced by the fact
that it was given after the relevant time (see, for example, V. v.
the United Kingdom [GC], no. 24888/94, § 57, ECHR
1999 IX).
- 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, § 26, 6 September
2007).
- The
Government further submitted that the applicant's case should be
struck out of the Court's list pursuant to Article 37 § 1(a) of
the Convention. They maintained that the applicant had indicated in
his observations of 19 March 2007 that he did not wish to pursue the
application in so far as it related to the issue of the alleged
interference with Article 8 of the Convention.
- The
Court observes that the applicant expressly indicated in his
observations of 19 March 2007 that he did not have any pecuniary
claims in respect of the issue raised by the Court of its own
motion. He also submitted no financial claims in respect of his main
complaint relating to the alleged unfairness of the criminal
proceedings against him. In view of this, the Court finds no grounds
whatsoever for concluding that the applicant does not intend
to pursue his application and that
it is appropriate to strike the case out of the list.
- 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 notes that the envelope in which the applicant's application
form of 16 August 2005 was sent to the Court from the Zamość
Prison bears several stamps of the Zamość Prison and a
handwritten note: censored, D[istrict] C[ourt] [ocenzurowano SR].
It appears that the envelope had been cut open and subsequently
resealed with adhesive tape. The envelope itself was delivered in a
plastic cover, apparently sealed by the post office.
- The
Court considers that, even if there is no separate stamp on the
application form as such, there is a reasonable likelihood that the
envelope had been opened by the domestic authorities. 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 has been an “interference” with the
applicant's 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 observes that when the
interference took place the applicant had served a sentence of
imprisonment following his final conviction (see paragraph 8 above).
In respect of convicted persons Article 103 § 1 of the
Code of Execution of Criminal Sentences provided a specific statutory
prohibition on censorship of their correspondence with the European
Court of Human Rights (see G.K. v. Poland, no. 38816/97,
§ 110, 20 January 2004, and Kwiek v. Poland,
no. 51895/99, § 44, 30 May 2006).
Thus,
censorship of the applicant's letter 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”.
- 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 6 § 1 OF THE
CONVENTION
- The
applicant complained that the criminal proceedings in his case had
been unfair. He relied on Article 6 of the Convention, which in so
far as relevant provides as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
- However,
the Court reiterates that, according to Article 19 of the Convention,
its duty is to ensure the observance of the engagements undertaken by
the Contracting Parties to the Convention. In particular, it is not
its function to deal with errors of fact or law allegedly committed
by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention.
Moreover, while Article 6 of the Convention guarantees the
right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see García Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999-I, with further references).
- In
the present case the applicant did not allege any particular failure
on the part of the relevant courts to respect his right to a fair
hearing. Indeed, his complaints are limited to challenging the result
of the proceedings leading to his allegedly wrongful conviction.
Assessing the circumstances of the case as a whole, the Court finds
no indication that the impugned proceedings were conducted unfairly.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with 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.”
- The
applicant did not submit a claim for just satisfaction.
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.
Done in English, and notified in writing on 22 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni Bonello
Deputy
Registrar President
