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FOURTH
SECTION
CASE OF LESIAK v. POLAND
(Application
no. 19218/07)
JUDGMENT
STRASBOURG
1 February
2011
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 Lesiak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Mihai Poalelungi,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19218/07) 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, Ms Zofia Lesiak (“the
applicant”), on 23 April 2007.
- The
applicant was represented by Mr L. Wójcik, a lawyer
practising in Opole. The Polish Government (“the Government”)
were represented by their Agent, Mr J.Wołąsiewicz of the
Ministry for Foreign Affairs.
- The
applicant alleged, in particular, that the length of her detention
pending trial had been excessive.
- On
19 November 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
- The
applicant was born in 1964 and lives in Zabrze.
- On
27 April 2006 the applicant was remanded in custody by an order of
the Katowice District Court on suspicion of having committed money
laundering while acting in an organised criminal gang.
- The
applicant appealed. On 31 May 2006 the Katowice Regional Court upheld
the decision to remand her in custody.
- Shortly
after her arrival in Lubliniec Detention Centre, the applicant was
examined by the prison doctor. She informed him that she did not
suffer from any illnesses and that she was not taking any special
medication.
- On
2 June 2006 the applicant complained to the prison doctor of pain in
the chest area. The doctor diagnosed vegetative neurosis and
prescribed the appropriate medication.
- On
24 July 2006 the Katowice District Court extended the applicant's
detention, referring to the need to conduct further investigations.
This decision was upheld by the Regional Court on 30 August 2006.
- On
28 July 2006 the applicant again complained of chest pain and was
placed under observation. On 1, 13 and 20 September 2006 she reported
the same symptoms and was prescribed medication.
- On
11 September 2006 the District Court again extended the applicant's
detention. It referred to the likelihood of a severe sentence of
imprisonment being imposed on the applicant. It also relied on the
risk that the applicant might tamper with evidence, given the nature
of the charges against her and the fact that she had acted in concert
with the co-accused. This decision was upheld by the Katowice
Regional Court on 11 October 2006.
- The
applicant submits that in September 2006 she discovered a lump in her
breast during a self-examination. She informed the prison doctor on
27 October 2006. The prison doctor confirmed that there was
a lump in the applicant's left breast and sent her to the Breast
Disease Clinic in Zabrze. During the consultation, which took place
on 12 December 2006, a doctor confirmed the existence of the lump and
ordered that she undergo a mammography.
- The
applicant's detention was subsequently extended on 7 December 2006.
The District Court referred to the reasons previously given.
- The
mammography was performed on 11 January 2007.
- On
16 January 2007 the Katowice Regional Prosecutor refused the
applicant's motion for a change of the preventive measure. He
considered that according to a cardiologist's opinion the applicant
could be kept in detention pending trial. He also stressed that an
expert oncologist had been asked to prepare an opinion on the
applicant's state of health.
- The
applicant subsequently again asked for a change of the preventive
measure. On 7 February 2007 the prosecutor considered that since he
had not yet received the expert oncologist's opinion he could not
decide on the applicant's release. However, he stressed that,
according to the information provided by the expert, the applicant
could, if necessary, be operated on in the surgical ward of the
prison hospital.
- The
expert oncologist submitted his opinion on 16 February 2007. He
stated that the lump should be removed and sent for a
histopathological examination. He confirmed that the operation could
be performed in the surgical ward of the prison hospital. Referring
to the opinion, on 27 February 2007 the prosecutor dismissed the
applicant's motion for a change of the preventive measure.
- On
1 March 2007 the District Court extended the applicant's detention,
referring to the reasons previously given.
- On
15 March 2007 the applicant underwent surgery in the prison hospital.
She had the lump removed from her breast.
- The
applicant's detention was subsequently extended on 25 April 2007, 25
July 2007 and 3 August 2007. The applicant's appeals against those
decisions were dismissed.
- Meanwhile,
on 9 July 2007 the prosecutor considered that there was no reason for
the applicant to be released and that she could be treated in the
prison hospital.
- On
26 July 2007 an act of indictment was filed with the Katowice
Regional Court. The applicant was charged with money laundering
committed while acting in an organised criminal gang. The indictment
concerned fifteen co-accused.
- On
23 November 2007 the Katowice Regional Court ordered the applicant's
release on bail (20,000 Polish zlotys). The court held that keeping
the applicant in custody was no longer necessary to ensure the proper
course of the proceedings.
- It
would appear that the criminal proceedings against the applicant are
pending.
B. Monitoring of the applicant's correspondence
- At
the time of lodging her application with the Court the applicant had
been detained in the course of criminal proceedings against her.
- On
3 May 2007 the Registry of the Court received the applicant's first
letter, an application form dated 20 April 2007. The envelope bears a
handwritten note reading “censored on 25 April 2007”
(ocenzurowano ....) and an illegible signature. It also bears
a stamp reading “Lubliniec prison” (Zakład Karny
w Lublińcu).
C. Circumstances relating to the applicant's contact
with her family
- On
30 August 2006 the Katowice Regional Prosecutor informed the
applicant that her family could visit her every three weeks.
- On
19 March 2007 the applicant was again informed by the Katowice
Regional Prosecutor that her children could visit her every three
weeks.
- During
the investigation, and subsequently once the trial had started, the
applicant's children visited the applicant on average every three
weeks.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the imposition
of pre-trial detention (tymczasowe aresztowanie), the
grounds for its extension, release from detention and rules governing
other “preventive measures” (środki
zapobiegawcze) are set out in the Court's judgments in the cases
of Gołek v. Poland (no. 31330/02, §§ 27-33,
25 April 2006) and Celejewski v. Poland
(no. 17584/04, §§ 22-23, 4 May 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the medical care provided to her in
detention was inadequate and that her health had deteriorated. She
invoked Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment
- The
Government contested that argument.
- The
Government submitted a preliminary objection, claiming that the
applicant had failed to exhaust the domestic remedies available to
her. In particular, they submitted that the applicant could have, but
had not, made use of the remedies of a compensatory nature governed
by the provisions of Articles 23 and 24 of the Civil Code, in
conjunction with Article 445 or Article 448 of the Civil Code, in
order to bring an action for compensation for the alleged damage to
her health sustained as a result of the inadequate conditions of her
detention.
- The
Government further maintained that the evidence gathered did not
indicate that the applicant had suffered inhuman or degrading
treatment throughout the period of her detention. They stressed that
the medical opinions did not indicate that the applicant suffered
from any serious health problems that required hospitalisation
outside the prison hospital. In their opinion, the quality of medical
care within the penitentiary system was similar to non-prison medical
care. Lastly, they noted that the consultation at the Breast Disease
Clinic took place on 12 December 2006 and the mammography was
performed on 11 January 2007, that is, only one month later.
- The
Government concluded that the applicant had received appropriate
treatment given her state of health throughout the entire period of
her detention. Furthermore, her state of health had been carefully
monitored by the authorities.
- The
applicant argued that she had received sporadic and unclear diagnosis
from a prison doctor specialising in orthopaedics. In reply to her
repeated complaints about chest pain, she had been placed under
observation and prescribed medication by the same doctor.
Subsequently, after the prison doctor had confirmed the presence of a
lump in her breast on 27 October 2006 she was sent for a consultation
in the Breast Disease Clinic on 12 December 2006. The mammography had
been performed on 11 January 2007, that is, four months after
the discovery of the lump.
- The
applicant concluded that throughout her detention she had not been
treated by a specialist in the relevant medical field. She had not
been able to choose the method of treatment and her complaints
relating to her health had often been dismissed.
- As regards the Government's preliminary objection as
to the exhaustion of domestic remedies, the Court does not find it
necessary to examine it, as the present complaint is in any event
inadmissible for the following reasons.
- The
Court firstly reiterates that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative: it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and/or mental effects and, in some cases, the sex, age and
state of health of the victim (see, among other authorities, Tekin
v. Turkey, judgment of 9 June 1998, Reports of Judgments and
Decisions 1998-IV, § 52).
- The Court reiterates that although Article 3 of the
Convention cannot be construed as laying down a general obligation to
release detainees on health grounds, it nonetheless imposes an
obligation on the State to protect the physical well-being of persons
deprived of their liberty, for example, by providing them with the
requisite medical assistance (Mouisel v.
France, no. 67263/01, § 40, ECHR 2002 IX, and
Jalloh v. Germany [GC], no. 54810/00, § 69, ECHR
2006-IX).
- The
Court observes that there are three particular elements to be
considered in relation to the compatibility of an applicant's health
with his or her stay in detention: (a) the medical condition of the
prisoner, (b) the adequacy of the medical assistance and care
provided in detention, and (c) the advisability of maintaining the
detention measure in view of his or her the state of health (see
Mouisel, ibid., §§ 40-42; Melnik v. Ukraine,
no. 72286/01, § 94, 28 March 2006; and Rivière
v. France, no. 33834/03, § 63, 11 July 2006).
- Turning to the facts of the present case the Court
observes that it is undisputed that the applicant informed the prison
doctor about the lump in her breast on 27 October 2006. The applicant
had a consultation in a specialised clinic on 12 December 2006 (see
paragraph 13 above). The mammography examination was performed on 11
January 2007 and on 15 March 2007 the applicant underwent
surgery in the prison hospital (see paragraphs 15 and 20 above). In
this respect, the Court reiterates that the Convention does not
guarantee a right to receive medical care which would exceed the
standard level of health care available to the population generally
(see Nitecki v. Poland (dec.), no. 65653/01, 21
March 2002).
- Contrary
to the case of Kaprykowski (see Kaprykowski v. Poland, no.
23052/05, § 72, 3 February 2009) where the medical experts were
of the opinion that the penitentiary system could not offer the
applicant the necessary treatment, in the present case the applicant
was examined on several occasions by experts who confirmed that the
treatment provided to her in prison was adequate and sufficient (see
paragraphs 16 and 18 above).
- The
Court cannot conclude that the national authorities did not ensure
proper medical supervision of the applicant's health. The Court notes
that the applicant failed to explain in a convincing manner why she
considered that the medical treatment she received was inadequate or
in any other way in breach of the guarantees provided for in Article
3 of the Convention.
- It
follows that this part of the application 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 § 3 OF THE
CONVENTION
- The
applicant complained that the length of her pre-trial detention had
been excessive. She relied on Article 5 § 3 of the
Convention, which, in its relevant part, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument.
A. Admissibility
- The Government argued that the applicant had failed to
exhaust the remedies provided for by Polish law as regards her
complaint under Article 5 § 3 of the Convention in that she
should have lodged a constitutional complaint with the Constitutional
Court.
- The
applicant disagreed with the Government's submissions.
51. The
Court reiterates that it is well established in its case-law that an
applicant must make normal use of those domestic remedies which are
likely to be effective and sufficient. When a remedy has been
attempted, use of another remedy which has essentially the same
objective is not required (see Yaşa
v. Turkey judgment
of 2 September 1998, Reports
of Judgments and Decisions 1998-VI,
§ 71).
- In the present case the applicant lodged requests for
the detention order to be lifted or for a more lenient preventive
measure to be imposed. The Court considers that the purpose of the
remedies used by the applicant was to obtain a review of her
detention pending trial. In the circumstances of the case, these
remedies constituted adequate and effective remedies within the
meaning of Article 35 of the Convention, as their aim was to obtain
her release (see Duda v. Poland, no. 67016/01, §
29, 19 December 2006).
- The Court further notes that the arguments raised by
the Government are similar to those already examined and rejected in
previous cases against Poland (see, for example, Feliński v.
Poland, no. 31116/03, § 40, 7 July 2009) and that the
Government have not referred to any new circumstances which would
lead the Court to depart from that finding.
- Moreover, according to the established case-law,
having exhausted the available remedy, the applicant was not required
to embark on another attempt to obtain redress by bringing a
constitutional complaint (see, for example, Cichla v. Poland
no. 18036/03, § 26, 10 October 2006).
- It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
period to be taken into consideration began on 26 April 2006 and
ended on 23 November 2007; it accordingly lasted 1 year and nearly
7 months.
2. The parties' submissions
- The
applicant submitted that her detention had been exceedingly long. She
further stressed that the investigation in her case had amounted to
an analysis of documents and her release would have had no influence
on its course. In addition, there was no indication that the
applicant had attempted to obstruct the proper course of the
proceedings in any way. Lastly, the charges against her had been
based on the testimony of only one of the co accused.
- The
Government maintained that in the present case all the criteria for
the application and extension of pre-trial detention had been met.
3. The Court's assessment
- The
general principles regarding the right “to trial within a
reasonable time or to release pending trial” as guaranteed by
Article 5 § 3 of the Convention have been stated in a number of
the Court's previous judgments (see, among many other authorities,
Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI, and McKay v. the United Kingdom
[GC], no. 543/03, §§ 41-44, ECHR 2006-..., with further
references).
- In
their decisions on the applicant's detention, the authorities, in
addition to the existence of a reasonable suspicion against the
applicant, relied principally on three grounds, namely, the severity
of the penalty to which she was liable, the need to secure the proper
conduct of the proceedings and the risk that the applicant might
tamper with evidence.
- The
applicant was charged with money laundering committed in an organised
criminal gang (see paragraph 6 above). In the Court's view, the fact
that the case concerned a member of such a criminal group should be
taken into account in assessing compliance with Article 5 § 3
(see Bąk v. Poland, no. 7870/04, § 57,
16 January 2007).
- Indeed,
in cases such as the present one concerning organised criminal
groups, the risk that a detainee, if released, might bring pressure
to bear on witnesses or other co-accused or might otherwise obstruct
the proceedings often is, by the nature of things, high.
- The
Court accepts that the reasonable suspicion that the applicant had
committed a serious offence could have initially warranted her
detention. The need to secure the proper conduct of the proceedings,
in particular the process of obtaining evidence from witnesses,
including experts in finance, constituted valid grounds for
maintaining the applicant's detention for the period of one year and
nearly seven months.
- The
Court takes note of the fact that when the authorities could no
longer justify the applicant's detention, they replaced it with a
less stringent preventive measure and released the applicant on bail
(see paragraph 24 above).
- The
foregoing considerations are sufficient for the Court to conclude
that the grounds given for the applicant's pre-trial detention were
“relevant” and “sufficient” to justify
holding her in custody for the entire relevant period, namely one
year and seven months.
- It
therefore remains to be ascertained whether the national authorities
displayed “special diligence” in the conduct of the
proceedings.
- In
this regard, the Court observes that the investigation was of
considerable complexity, regard being had to the number of co-accused
and the implementation of special measures required in cases
concerning organised crime. The Court does not discern any
significant periods of inactivity in the investigation or the initial
phase of the trial. For these reasons, the Court considers that
during the relevant period the domestic authorities handled the
applicant's case with relative expedition.
- Having regard to the foregoing, the Court finds that
there has been no violation of Article 5 § 3 of the Convention
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON
ACCOUNT OF RESTRICTIONS ON FAMILY VISITS
- The
applicant complained that during her detention limitations had been
placed on her contact with her children. She invoked Article 8 of the
Convention, which provides as relevant:
“1. Everyone has the right to respect
for his ... family life...
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 contested that argument.
- The
Government submitted that the limitations placed on the applicant's
contact with her children had not amounted to an interference with
her right to respect for her private life. They stressed that between
1 June 2006 and 7 November 2007 the applicant had been visited
by her daughter, son and sister on 44 occasions. The applicant had
been entitled to a visit every three weeks and she had made full use
of this right. The Government maintained that only on one occasion
had the prosecutor refused permission for a visit, namely when the
applicant's sister had requested permission for exactly the same
period as another family member. They concluded that some limitation
of the applicant's right to contact with her family had been a normal
consequence of her detention.
- The
applicant argued that limitations had been placed on her contact with
her children. She further maintained that the first request for a
visit had been submitted just after her arrest on 26 April 2006;
however, permission to visit her in prison had been granted only on 1
June 2006.
- The
Court reiterates that detention, like any other measure
depriving a person of his liberty, entails inherent limitations on
private and family life. However, it is an essential part of a
detainee's right to respect for family life that the authorities
enable him or, if need be, assist him in maintaining contact with his
close family (see, mutatis mutandis, Messina v. Italy
(no. 2), no. 25498/94, § 61, 28 September
2000).
- Such
restrictions as limitations on the number of family visits,
supervision of those visits and, if so justified by the nature of the
offence, subjection of a detainee to a special prison regime or
special arrangements for visits constitute an interference with his
rights under Article 8 but are not, by themselves, in breach of
that provision (ibid. §§ 62-63; see also Kucera v.
Slovakia, no. 48666/99, §§ 127-128, 17 July 2007).
Nevertheless, any restriction of that kind must be “in
accordance with the law”, must pursue one or more of the
legitimate aims listed in paragraph 2 and, in addition,
must be justified as being “necessary in a democratic
society”.
- Turning
to the circumstances of the present case, the Court observes that the
contested measures were applied under Article 217 of the Code of
Execution of Criminal Sentences. This provision, as applicable at the
material time, gave the relevant authority (prosecutor or court) the
power to grant permission for family visits in prison.
- The
Court notes that on 2 July 2009 the Constitutional Court declared
Article 217 § 1 of the Code of Execution of Criminal Sentences
unconstitutional. The Court further observes that it has already held
that Article 217 § 1 of the Code of Execution of
Criminal Sentences did not indicate with reasonable clarity the scope
and manner of exercise of the discretion conferred on the relevant
authorities to restrict visiting rights (see Wegera v. Poland,
no. 141/07, § 74-75, 19 January 2010). For these reasons the
Court has recently concluded in the case of Gradek v. Poland,
no. 39631/06, § 47, 8 June 2010) that an unreasoned
refusal of family visits in detention was not in accordance with
the law.
- However,
in the present case, contrary to the case of Gradek, where the
prosecutor refused the applicant's wife's requests by making blunt
handwritten notes on her applications, the Court observes that the
applicant failed to submit any documents in support of her
allegations that her children's applications to visit her were
refused. In fact, it appears that the applicant had regular contact
with her family and that she regularly received visits from her
children and her sister.
- It
follows that it has not been established that the applicant has been
prevented from contacting her children and her family.
- Consequently,
this complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON
ACCOUNT OF MONITORING OF THE APPLICANT'S CORRESPONDENCE
- The
Court raised of its own motion an issue under Article 8 of the
Convention on account of the fact that the applicant's correspondence
with the Court had been interfered with. 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.”
A. Admissibility
- The
Government submitted that the applicant had not exhausted all
available domestic remedies. She 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 her both to assert that by
interfering with her correspondence the authorities had breached her
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 with 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 on 20 April 2007, 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, and thereby establishing to the Court's
satisfaction that an effective remedy could be said to exist in
respect of such complaints (see Biśta cited above §
49).
- Accordingly
the remedy was not available to the applicant at the material time
(see Hinczewski v. Poland, no. 34907/05, §
30, 5 October 2010).
- 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 she could
not have been aware that it had been intercepted by the authorities.
- 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).
- It
follows that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. The Court 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 sent her first
letter to the Court on 20 April 2007 bears a handwritten note reading
“censored” (ocenzurowano) and an illegible
signature.
- 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 in respect of the applicant's first letter there was an
“interference” with her right to respect for her
correspondence under Article 8.
2. Whether the interference was in accordance with the
law
- The
Court notes that the interference with the applicant's right to
respect for her correspondence took place when the applicant was
detained pending trial.
- The Court observes that, according to Article 214
of the Code of Execution of Criminal Sentences, persons detained
pending trial should enjoy the same rights as those convicted by a
final judgment. Accordingly, the prohibition on 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 the applicant (see Michta,
cited above, and Kwiek v. Poland, no. 51895/99, §
44, 30 May 2006). Thus, the interference with the
applicant's correspondence with the Court 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 as regards the
applicant's letters to the Court.
V. 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 35,000 euros (EUR) in respect of pecuniary damage
and EUR 65,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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 800 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 500 for the costs and expenses incurred
before the Court.
- The
Government contested this claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 500 for 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 under Article 5 § 3
and Article 8 about the interference with correspondence admissible;
- Declares the complaint under Article 3
inadmissible;
- Declares the complaint under Article 8 as
regards the refusal of family visits inadmissible;
- Holds that there has been no violation of
Article 5 § 3 of the Convention;
- Holds that there has been a violation of Article
8 of the Convention on account of interference with the applicant's
correspondence;
- 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 800 (eight hundred euros) in respect of non-pecuniary
damage and EUR 500 (five hundred euros) in respect of costs and
expenses plus any tax that may be chargeable, 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
amounts 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 1 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
