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FOURTH
SECTION
CASE OF LEWAK v. POLAND
(Application
no. 21890/03)
JUDGMENT
STRASBOURG
6
September 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 Lewak 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 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21890/03) 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 Jerzy Lewak (“the
applicant”), on 23 May 2003.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
14 September 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 1965 and lives in Rejowiec Fabryczny.
A. The alleged ill-treatment of the applicant
- It
appears that in November 2002 the Chełm District Prosecutor
charged the applicant with armed robbery. On an unspecified date in
November 2002 the court ordered his detention on remand. He was
detained in the Chełm Prison. In connection with the criminal
investigation against the applicant, the District Prosecutor ordered
the applicant to provide a sample of his body odour.
- According
to the applicant, on 13 March 2003 he was called to the interrogation
room in the Chełm Prison where he was informed that he was to
provide the required samples. However, the applicant stated that he
would provide them only in the presence of his lawyer. According to
the applicant, he was then knocked over and kicked by two police
officers and a prison guard. During that time he also lost his gold
neck chain. Subsequently, the applicant agreed to provide the
samples.
- The
applicant claimed that as a result of the beating he had bruises on
his abdomen, his back and his waist. He also had pain in his spine.
- On
24 March 2003 the applicant filed a criminal complaint with the Chełm
District Prosecutor, alleging that he had been beaten on 13 March
2003 by two police officers and a prison guard. He further alleged
that his gold chain had been stolen during the incident.
- On
24 April 2003 the District Prosecutor opened an investigation. She
heard the applicant and the two police officers and prison guard
involved in the alleged incident. She also heard two other police
officers who had been working in a neighbouring room at the time of
the alleged incident.
- The
District Prosecutor established that the applicant had been told to
provide the samples and, if he refused, that they would be taken
against his will. After some persuasion, the applicant had agreed to
provide the samples. All the officers confirmed that version of
events and stated that force had not been used.
- The
District Prosecutor obtained other relevant evidence which did not
corroborate the applicant's allegations of ill-treatment. Between
13 March and 1 April 2003 the applicant was seen by a prison
doctor on five occasions. He did not report any injuries linked to
his alleged ill-treatment and no such injuries were detected. On 27
March 2003 an ambulance was called for the applicant since he had
complained about pain in his abdomen. On that occasion, the applicant
did not mention any injuries related to his alleged ill-treatment and
had received pain killers.
- As
regards the missing neck chain, the District Prosecutor found that at
the time of his admission to the prison the applicant had not
declared any valuables. Nor had he reported the loss of his neck
chain to the prison administration.
- Having
regard to the foregoing considerations, on 30 June 2003 the District
Prosecutor discontinued the investigation. She held that there was no
evidence to support the view that the offences of assault and theft
as alleged by the applicant had been committed.
- The applicant appealed against that decision to the
Lublin Regional Prosecutor. On an unspecified date the Regional
Prosecutor upheld the decision of 30 June 2003 and transmitted the
applicant's appeal to the Chełm District Court for review.
- On
20 October 2003 the Chełm District Court upheld the decision of
30 June 2003.
- Meanwhile,
on 12 September 2003 the Chełm District Prosecutor had
discontinued the investigation against the applicant concerning the
charge of armed robbery. She held that the evidence obtained in the
course of the investigation, including the samples of his body odour,
did not confirm that the applicant had taken part in the armed
robbery.
B. The alleged censorship of the applicant's
correspondence with the Court
- The
envelope in which the applicant sent his first letter from the Chełm
Prison to the Court dated 21 May 2003 bears the following stamps:
“censored” (ocenzurowano) and “the Chełm
District Court” (Sąd Rejonowy w Chełmie). It
also bears a stamp confirming that the applicant's letter was
received for dispatch by the prison administration on 23 May 2003.
However, according to the postal stamp the letter was posted only on
3 June 2003. It also appears that the envelope had been cut open
and subsequently resealed with adhesive tape.
- The
envelope in which the applicant sent his application form from the
Chełm Prison to the Court dated 27 October 2003 bears the
following stamps: “censored” (ocenzurowano) and
“the Chełm District Court” (Sąd Rejonowy w
Chełmie). It also bears a stamp confirming that the
applicant's letter was received for dispatch by the prison
administration on 3 November 2003. However, according to the
postal stamp the letter was posted only on 13 November 2003. It
also appears that the envelope had been cut open and subsequently
resealed with adhesive tape.
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.”
A. Admissibility (exhaustion of domestic remedies)
- The
Government submitted that the applicant had not exhausted all
available domestic remedies. He had failed to bring an action under
Article 23 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 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
one's 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
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 ex officio. The two letters at issue were sent by
the applicant to the Court and he could not have been aware that they
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 complained about the censorship of his
letters to the Court, it has to be noted that the alleged
interference with the applicant's correspondence occurred in 2003,
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 that it was given after the relevant time (see, for
example, V. v. the United Kingdom [GC], no. 24888/94,
§ 57, ECHR 1999 IX). Furthermore, the Court observes
that the judgment relied on by the Government was given by a
first-instance court. There is no indication that it has been
reviewed by higher courts and that it has became final.
- 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
1. Existence of an interference
- The
Court notes that the envelope in which the applicant's first letter
of 21 May 2003 was sent to the Court from the Chełm Prison bears
two stamps that read: “censored” (ocenzurowano)
and “the Chełm District Court” (Sąd Rejonowy
w Chełmie). Similarly, the envelope in which the applicant's
application form dated 27 October 2003 was sent to the Court from the
Chełm Prison bears similar stamps. It appears that both
envelopes had been cut open and subsequently resealed with adhesive
tape.
- The
Court considers that, even if there is no separate stamp on the
letters as such, there is a reasonable likelihood that the envelopes
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 in respect of both of the applicant's
letters there was an “interference” with his 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 on two occasions when the applicant had been
detained on remand or was serving a prison sentence.
- 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 two letters 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 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated by police officers
and a prison guard during the taking of samples of his body odour. He
also alleged that he had lost his gold chain during that incident.
The applicant did not rely on any provision of the Convention. The
Court considers that this complaint falls to be examined under
Article 3 of the Convention.
- The
Court observes that on 24 March 2003 the applicant filed a criminal
complaint against the alleged perpetrators and the District
Prosecutor opened an investigation. The prosecutor heard the
applicant and the officers who denied that the applicant had been
beaten. The prosecutor established that between 13 March and 1 April
2003 the applicant had been seen by a prison doctor on five occasions
and that he had not reported any injuries. There was no medical
certificate attesting to any of the injuries allegedly sustained by
the applicant. Subsequently, on 30 June 2003 the District Prosecutor
discontinued the case against the police officers and the prison
guard for lack of evidence. On 20 October 2003 the District Court
upheld that decision.
- Having
regard to the above findings of the domestic authorities, the Court
considers that the applicant has not made out his case under
Article 3 of the Convention. As regards the substantive aspect
of Article 3, it is not possible to establish whether the applicant
was subjected to treatment prohibited by that provision. As regards
the procedural aspect, the Court notes that the authorities carried
out a prompt, independent and effective investigation. They took into
account all available evidence and concluded that there was no proof
of the applicant's ill-treatment. Having regard to the procedural
requirements of Article 3 (for which, see Labita v. Italy
[GC], no. 26772/95, § 131, ECHR 2000 IV and
Dzwonkowski v. Poland, no. 46702/99, §§
61-62, 12 April 2007), the Court finds that there were no discernible
shortcomings in the investigation.
- 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 33,000 Polish zlotys (PLN) in respect of
non-pecuniary damage.
- The Government argued that the applicant's claims were
exorbitant. They asked the Court to rule that a finding of a
violation of Article 8 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 by the
finding of a violation of Article 8 of the Convention. Considering
the circumstances of the case, the Court awards the applicant EUR 500
under this head.
B. Costs and expenses
- The
applicant submitted no claim in respect of 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
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;
- 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 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
