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FOURTH
SECTION
CASE OF KOTOWSKI v. POLAND
(Application
no. 12772/06)
JUDGMENT
STRASBOURG
29
September 2009
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 Kotowski 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,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Lawrence Early, Section
Registrar,
Having deliberated
in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 12772/06) 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 Marek Kotowski (“the applicant”), on 12
March 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr Jakub Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
25 March 2008 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1964 and lives in Bydgoszcz.
A. Criminal proceedings
against the applicant and his detention on remand
- On
13 July 2005 the applicant was arrested on suspicion of physical and
mental cruelty towards his common-law wife. On 16 July 2005
he was detained on remand. The court relied on the reasonable
suspicion that the applicant had committed the offence with which he
had been charged, which was supported by evidence from witnesses and
documents. The court also relied on the risk that he might tamper
with evidence, since the victim was his next of kin.
- On
12 October 2005 the Bydgoszcz District Court (Sąd Rejonowy)
extended his detention until 13 January 2006. It referred
to the likelihood of a severe sentence of imprisonment being
imposed on the applicant. It also relied on the risk that he might
tamper with evidence.
- On 4 January 2006 the court extended the applicant's
detention until 13 April 2006. On 10 April 2006
it ordered that the term should be extended until 13 July 2006.
The court referred to the grounds for detention listed in the
previous decisions.
- In
the meantime, the District Court had proceeded with the trial.
The hearings were held on 29 November 2005, 4 January,
6 February and 8 May 2006. The court heard evidence
from 12 witnesses and in the course of the proceedings two expert
reports were given.
- In the course of the proceedings the applicant made
numerous, unsuccessful applications for release and appealed,
likewise unsuccessfully, against refusals to release him and
decisions extending his detention.
- On 11 May 2006 the Bydgoszcz District Court convicted
the applicant as charged and sentenced him to 3 years'
imprisonment. He appealed.
- The
applicant's detention was subsequently extended on several occasions.
- On
5 January 2007 the Bydgoszcz Regional Court (Sąd Okręgowy)
upheld the trial court's judgment.
- On
17 August 2007 the Supreme Court (Sąd Najwyższy)
dismissed the applicant's cassation appeal as being manifestly
ill-founded.
B. Censorship
of the applicant's correspondence
- On
2 October 2006 the applicant complained that the Court's letter of
15 September 2006 had been censored by the authorities. The
envelope of this letter, produced by the applicant, bears a red stamp
that read: “Censored” (Cenzurowane).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law concerning censorship of detainees'
correspondence is set out in the Court's judgment in the case
of Kliza v. Poland,
no. 8363/04, §§ 29-34, 6 September 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention that during
his detention his correspondence was censored by the authorities. The
relevant part of this provision reads as follows:
“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 in that he had failed to bring
an action under Article 24 §§ 1 and 2 in conjunction
with Articles 417, 448 and 23 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 Śrem
District Court's judgment of 21 December 2005 in which a prisoner had
been awarded 3,000 Polish zlotys (PLN) in damages from the State
Treasury for a breach of secrecy of his correspondence with the
European Court of Human Rights. The judgment was partly amended
on 19 May 2006 by the Poznań Regional Court,
which reduced the amount of damages granted to the claimant.
- Further,
the Government provided an example of the judgment delivered by the
Warsaw Regional Court on 27 November 2006 in which a prisoner
had been awarded PLN 5,000 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 correspondence was one of the personal rights
protected under Article 23 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 judgment was upheld by the Warsaw
Court of Appeal on 28 June 2007.
- The
applicant did not comment.
- The
censorship in the present case concerned one Court letter
of 15 September 2006.
- The
Court welcomes the case-law developments cited by the Government.
However it considers that the two examples of domestic case-law
provided by the Government do not constitute evidence
of a sufficiently established judicial practice to show
that a claim for damages under Article 24 §§ 1 and 2
in conjunction with Articles 417, 448 and 23 of the Civil Code
was an effective remedy available in theory and
practice at the date of introduction of the instant
application. It is true that in its decision in the case of
Sobolewski v. Poland (no.1), (no. 39655/05, 16 December 2008),
the Court noted that the applicant prisoner had obtained compensation
for the interference with his correspondence and had thus obtained
adequate redress. However, in that case, the question concerned not
the effectiveness of the remedy under the relevant provisions of the
Civil Code but the separate issue of whether the applicant could
still be considered a victim. The Court did not pronounce on the
issue of exhaustion. As to the decision of the Warsaw Court of Appeal
of 28 June 2007 invoked by the Government, the Court observes that it
was delivered after the date of introduction of the application, and
on that account cannot be held against the applicant.
- In
the circumstances of the case, it cannot therefore be said that any
attempt by the applicant to seek redress by lodging such an action
would have provided reasonable prospects of a successful outcome.
- 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.
B. Merits
- The
Court notes that an envelope in which a Court letter of 15 September
2006 was sent to the applicant bears a stamp indicating that the
letter had been censored (see paragraph 14 above).
- 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, and Pisk-Piskowski
v. Poland, no. 92/03, § 26, 14 June 2005
and Michta v. Poland, no. 13425/02, § 58,
4 May 2006).
- It
follows that in respect of the applicant's letter there was
“interference” with his right to respect for his
correspondence under Article 8.
- 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 notes that the interference with the applicant's right
to respect for his correspondence took place on one occasion
when the applicant was detained in a remand centre.
- The
Court observes that, according to Article 214 of the Code
of Execution of Criminal Sentences, persons in detention 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,
and Kwiek v. Poland, no. 51895/99, §
44, 30 May 2006).
Thus,
censorship of the Court's letter 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”.
- 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. OTHER ALLEGED VIOLATION OF THE CONVENTION
A. The lawfulness of the applicant's detention
- The
applicant complained under Article 5 § 1 of the Convention that
he was unjustifiably held in detention on remand. Moreover, he
complained that during his pre-trial detention no consideration had
been given to the possibility of imposing on him other,
less severe, preventive measures.
- The
Court notes that the applicant's detention was based on Article 249
§ 1 of the 1997 Code of Criminal Procedure. In this case the
applicant was detained on a reasonable suspicion of having committed
physical and mental cruelty towards his common-law wife. The decision
to place him in custody had a legal basis and was issued by the
appropriate judicial authority. There is nothing to suggest that the
legal basis for his detention was not clearly defined or lacked the
necessary foreseeability required under the Convention. It follows
that in that sense, the applicant's detention was “lawful”
within the meaning of Article 5 § 1 of the Convention.
- Consequently,
this complaint is manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Unfairness of the criminal proceedings
- The
applicant also complained under Articles 6 of the Convention
that the criminal proceedings in his case were unfair.
- 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 to respect his right to a fair hearing on the part
of the relevant courts. Indeed, his complaints are limited to
challenging 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 part of the application 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.”
A. Damage
- The
applicant claimed 7,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court awards the applicant EUR 500 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant submitted no claim for 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 censorship 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 500 (five
hundred 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 29 September 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
