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FOURTH
SECTION
CASE OF NOWICKI v. POLAND
(Application
no. 6390/03)
JUDGMENT
STRASBOURG
27
February 2007
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 Nowicki v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 6 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6390/03) 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 Andrzej Bogusław
Nowicki (“the applicant”), on 28 December 2002.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
19 May 2006 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 1952 and lives in Goleniów.
A. The first set of criminal proceedings against the
applicant
- The
applicant was charged with attempted burglary. On 22 November
2000 the Myślibórz District Court convicted him as
charged and sentenced him to 20 months’ imprisonment, taking
into account that he was a habitual offender. The applicant appealed.
On 6 April 2001 the Gorzów Wielkopolski Regional Court quashed
the first-instance judgment and remitted the case.
- On
20 March 2002 the Myślibórz District Court again
convicted the applicant of attempted burglary and sentenced him to
18 months’ imprisonment. The applicant appealed. On 8 July
2002 the Szczecin Regional Court upheld the District Court’s
judgment, finding that the correctness of the conviction was borne
out by the evidence before the trial court.
- On
26 September 2002 the applicant’s legal-aid counsel
refused to file a cassation appeal in his case for lack of
appropriate grounds. Throughout the proceedings, except for the
retrial, the applicant was represented by a counsel.
B. The second set of criminal proceedings against the
applicant
- In
October 2003 the applicant was arrested and charged with aiding and
abetting the sale of stolen goods. He was remanded in custody from
7 October 2003 to 5 February 2004. On 19 March 2004
the Szczecin District Court convicted the applicant as charged and
sentenced him to 18 months’ imprisonment. It took into account
that the applicant was a habitual offender. The applicant appealed
against the trial court’s judgment.
- On
13 August 2004 the Szczecin Regional Court upheld the first-instance
judgment. The applicant was represented by a counsel. It appears that
he did not lodge a cassation appeal against the Regional Court’s
judgment.
C. The alleged censorship of the applicant’s
correspondence with the Court
- The
envelope in which the applicant’s letter dated 4 December 2003
was sent to the Court from the Szczecin Detention Centre bears two
stamps that read: “censored” (ocenzurowano) and
“Szczecin Detention Centre” (Areszt Śledczy,
Szczecin). It appears that the envelope was cut open and
subsequently resealed with adhesive tape.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law concerning the censorship of 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, 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 notes that the envelope in which the applicant’s letter
of 4 December 2003 was sent to the Court from the Szczecin
Detention Centre bears two stamps that read: “censored”
(ocenzurowano) and “Szczecin Detention Centre”
(Areszt Śledczy, Szczecin). It appears that the envelope
had been cut open and subsequently resealed with adhesive tape.
- The
Court considers that, even if there is no separate stamp on the
letter 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 and Pisk-Piskowski v. Poland, no. 92/03, § 26,
14 June 2005, Michta v. Poland, no. 13425/02, § 58,
4 May 2006). It follows that there was 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 notes that the
interference took place in December 2003 when the applicant had been
detained on remand pending trial.
- 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, no.
13425/02, § 61, 4 May 2006, 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
respect of the first set of criminal proceedings, the applicant
complained that he had been wrongly convicted and that the courts had
relied exclusively on false evidence given by a police officer. In
respect of the second set of criminal proceedings, the applicant
alleged that he had been unjustifiably held in pre-trial detention
and complained about his conditions of detention. In a letter dated
25 July 2005, he further alleged that in the second set of
proceedings he had been convicted although there had been no evidence
against him. The applicant did not invoke 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 15,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage, referring to his allegedly wrongful conviction
in the first set of criminal proceedings and the conditions of his
imprisonment. In respect of the second set of criminal proceedings,
the applicant requested that the term of imprisonment imposed on him
in those proceedings be deemed as served on account of his first
conviction. He further claimed EUR 6,000.
- The
Government observed that the applicant’s claims were limited to
his allegedly wrongful conviction and that he did make any claims in
respect of the complaint under Article 8 of the Convention.
- The
Court notes that it has found a violation of Article 8 and that the
applicant did not submit any claims in this respect. The applicant’s
claims were related to the complaints which the Court declared
inadmissible. In these circumstances, the Court rejects the
applicant’s claims under Article 41.
B. Costs and expenses
- The
applicant submitted no claim in respect of costs and expenses.
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;
- Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 27 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
