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FOURTH
SECTION
CASE OF PANUSZ v. POLAND
(Application
no. 24322/02)
JUDGMENT
STRASBOURG
3 June
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 Panusz 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 13 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24322/02) 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 Ryszard Panusz (“the applicant”),
on 21 October 2001. The applicant was represented by Ms S. Kałka,
a lawyer practising in Racibórz.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
6 October 2006 the
President of the Fourth Section of the Court decided to communicate
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 1967 and lives in Katowice.
A. Criminal proceedings against the applicant and his
detention on remand
5. On 28 June 2000 the applicant was arrested on suspicion of murder.
- On 30 June 2000 the Tychy District Court (Sąd
Rejonowy) ordered his detention on remand.
- The applicant’s detention was subsequently
extended on 28 September, 18 December 2000 and on
26 March 2001.
- On
8 June 2001 the bill of indictment was lodged.
- On
25 June 2001 the Katowice Regional Court (Sąd Okręgowy)
extended the applicant’s detention until 15 January 2002. The
court relied on a strong suspicion that he had committed the offence
in question, which was supported by evidence. It attached importance
to the grave nature of the offence and the likelihood of a severe
sentence of imprisonment being imposed on him. In addition, keeping
him in custody was necessary to ensure the proper conduct of the
proceedings. Lastly, the court stressed that there were 3 co accused
and 26 witnesses involved in the proceedings.
- On
16 November 2001 the trial court held the first hearing. It
subsequently held 7 hearings in the case.
- On
7 January 2002 the Katowice Regional Court extended the applicant’s
detention until 15 May 2002. The court repeated the reasons given
previously. Upon an appeal by the applicant, the Katowice Court of
Appeal (Sąd Apelacyjny) upheld that decision on
6 February 2002.
- On
6 May 2002 the Regional Court again extended the applicant’s
detention. The court stressed that he was likely to receive a
particularly severe sentence.
- On
23 May 2002 the Katowice Regional Court convicted the applicant as
charged and sentenced him to 15 years’ imprisonment. On
10 July 2002 the applicant’s lawyer lodged an appeal.
He was kept in detention pending appeal for the 10 subsequent months.
- On
6 March 2003 the Court of Appeal upheld the first-instance judgment.
- On
18 June 2003 the applicant’s lawyer filed a cassation appeal
(kasacja) with the Supreme Court (Sąd Najwyższy).
- On
24 May 2004 the applicant informed the Registry that his cassation
appeal had been rejected by the Supreme Court.
B. Monitoring of the applicant’s correspondence
- At the time of lodging his application with the Court
the applicant was detained in the course of criminal proceedings
against him.
- On 1 February 2002 the Registry of the Court received
a letter from the applicant dated 28 January 2002. The envelope bears
a stamp “censored on...” (ocenzurowano dn....) and
an illegible signature.
- On 28 May 2002 the Registry of the Court received the
application form from the applicant (dated 16 May 2002). It was
delivered in an envelope bearing a stamp “censored on...”
(ocenzurowano dn....). It also bears an illegible signature
and a handwritten date, 20 May 2002.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Preventive measures, including detention on remand
- The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other
“preventive measures” (środki zapobiegawcze)
are stated 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
August 2006.
B. Monitoring of correspondence
- The
relevant domestic law concerning the means of monitoring the
correspondence of persons involved in criminal proceedings applicable
at the material time 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 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his detention had been
excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, 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 submitted in the first place that the applicant had not
exhausted the remedies provided for by Polish law as regards his
complaint under Article 5 § 3 of the Convention, in that he had
failed to appeal against the decisions extending his detention given
at the initial stage of the proceedings. They further maintained that
he had failed to lodge any applications for release.
-
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 an appeal against the decision
taken at the final stage of the proceedings in 2002, when the length
of the detention had reached its most critical point. The Court
considers that the purpose of the remedy used by the applicant was to
obtain a review of his detention. In the circumstances of the case
this remedy constituted an adequate and effective remedy within the
meaning of Article 35 of the Convention, as its aim was to obtain his
release.
- The
Court further notes that the arguments raised by the Government are
similar to those already examined and rejected in a previous case
against Poland (see Grzeszczuk v. Poland, no. 23029/93,
Commission decision of 10 September 1997) and that the Government
have not submitted any new circumstances which would lead the Court
to depart from that finding.
- It
follows that this complaint cannot be rejected for non-exhaustion of
domestic remedies. The Court further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Period to be taken into consideration
- The
applicant’s detention started on 28 June 2000, when he was
arrested on suspicion of murder. On 23 May 2002 the Katowice Regional
Court convicted him as charged.
As from that date he was detained “after conviction by a
competent court”, within the meaning of Article 5 § 1 (a)
and, consequently, that period of his detention falls outside the
scope of Article 5 § 3 (cf. Kudła v. Poland [GC],
no. 30210/96, § 104, ECHR 2000 XI).
Accordingly, the period to be taken into consideration amounts to 1
year, 10 months and 24 days.
2. The parties’ submissions
(a) The applicant
- The applicant submitted that his detention had been
inordinately lengthy and that the authorities had failed to exercise
all due diligence when dealing with his case.
(b) The Government
- The
Government considered that the applicant’s pre-trial detention
satisfied the requirements of Article 5 § 3. They submitted that
his detention had been duly justified and that during the entire
period the authorities had given relevant and sufficient reasons for
extending it.
- They
further argued that the applicant’s detention had been
justified by the reasonable suspicion that he had committed the
offence with which he had been charged. They emphasised the serious
nature of the charge and the fact that the applicant had been
sentenced to fifteen years’ imprisonment. The Government lastly
submitted that the domestic courts had acted diligently and speedily.
3. The Court’s assessment
(a) General principles
- The
Court recalls that 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 were stated in a
number of its previous judgments (see, among many other authorities,
Kudła v. Poland, cited above, § 110 et seq,
and McKay v. the United Kingdom [GC], no. 543/03, §§
41-44, ECHR 2006-..., with further references).
(b) Application of the above principles in
the present case
- In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
four grounds, namely (1) the serious nature of the offence with which
he had been charged, (2) the severity of the penalty to which he was
liable, (3) the need to secure the proper conduct of the proceedings
and 4) the complexity of the case (see paragraphs 8, 10 and 11
above).
- The
Court accepts that the reasonable suspicion against the applicant of
having committed the offence with which he had been charged could
initially have warranted his detention. However, with the
passage of time, this ground became less and less relevant. The Court
must then establish whether the other grounds adduced by the courts
were “sufficient” and “relevant” (see, Kudła
cited above, § 111).
- In
respect of the subsequent period, the Court notes that the
authorities relied on the likelihood that the applicant would be
given a heavy sentence, given the nature of the charges against him.
In this respect, the Court notes that the severity of the possible
sentence is a relevant element in the assessment of the risk of an
accused absconding or re-offending. Nevertheless, the Court has
repeatedly held that the gravity of charges cannot by itself serve to
justify long periods of detention during judicial proceedings (see
Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81,
26 July 2001).
- The
Court next observes that the judicial authorities relied on the fact
that the applicant had been charged together with other persons. It
can be accepted that in cases involving several accused, the process
of gathering and hearing evidence is often a difficult task. In these
circumstances, and given the need to obtain voluminous evidence from
many sources – twenty-six witnesses were heard - and to
determine the facts and degree of alleged responsibility of each of
the co-defendants, the grounds relied on for keeping the applicant in
detention for a period of one year and ten months can be considered
relevant and sufficient for the purposes of Article 5 § 3 of the
Convention.
- It
remains to ascertain whether the authorities, in dealing with the
applicant’s case, displayed the necessary diligence required
under Article 5 § 3 (see Mc Kay, cited above, §
44).
In
this regard, the Court recalls that the criminal case at issue was of
some complexity, which undoubtedly prolonged its examination and
contributed to the length of the applicant’s detention on
remand.
Secondly,
no periods of inactivity can be imputed to the prosecution
authorities and the trial court. The Court observes that the
investigation was completed by the prosecution authorities within an
acceptable period of time, regard being had to the amount of evidence
involved. It took the trial court five months to prepare the case for
the first hearing. However, the court expedited the examination of
the case. During the six subsequent months the court held
eight hearings at regular intervals and terminated the
first-instance proceedings within an acceptable time-frame (see
paragraphs 9 and 12 above). For these reasons, the Court considers
that the domestic authorities handled the applicant’s case with
relative expedition.
- In
view of the foregoing, the Court concludes that there has been no
violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant further complained under Article 8 of the Convention about
the monitoring of his correspondence.
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
1. The Government’s preliminary objection on
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 24 § 2, 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 to make a claim in
respect of non-pecuniary damage.
- 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 in damages from the State Treasury for a breach
of the confidentiality of his correspondence with the Central Board
of the Prison Service and the Central Electoral Office. The Regional
Court held that the confidentiality of correspondence was a personal
right protected under Article 23 of the Civil Code whose breach
could entitle the claimant to an award in respect of non-pecuniary
damage.
- The
applicant contested the Government’s arguments and submitted
that he had not had at his disposal any effective remedies as regards
the monitoring of his correspondence.
2. The Court’s assessment
- The
Court notes that the alleged interference with the applicant’s
correspondence occurred in 2002, whereas the Government relied on the
Warsaw Regional Court’s judgment of 27 November 2006, which was
confirmed by the Warsaw Court of Appeal on 28 June 2007 and became
final. Any relevance that this judgment might possibly have in
respect of the present case is therefore reduced by the fact that it
was given long 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.
3. Conclusion as to 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 envelopes in which the applicant’s letter
of 28 January 2002 and the application form dated 16 May 2002 were
sent to the Court bear a stamp “censored on...”
(ocenzurowano dn....) and an illegible signature (see
paragraphs 18 and 19 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; Pisk-Piskowski v. Poland, no. 92/03,
§ 26, 14 June 2005; and Michta v. Poland, cited
above, § 58). 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 specific legal basis in domestic law
for the impugned interference. The Court notes that the interference
took place on two occasions when the applicant was in detention.
- The
Court observes that, according to Article 214 of the Code of
Execution of Criminal Sentences, detained persons 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, cited above, §
61, and Kwiek v. Poland, no. 51895/99, § 44, 30
May 2006). Thus, the censorship of the applicant’s two letters
to the Court’s Registry was contrary to 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.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that the proceedings in his case had
been unfair. In particular, he alleged that errors of fact and law
had been committed by the courts. He alleged a breach of Articles 6
§ 3 and 13 of the Convention. This complaint falls to be
examined under Article 6 § 1 of the Convention which,
in its relevant part, reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
- The
Court notes that it appears that the applicant’s cassation
appeal was rejected by the Supreme Court on procedural grounds (see
paragraph 16 above). However, even assuming that the applicant had
exhausted domestic remedies, the Court reiterates that it is not
called upon to deal with errors of fact and law allegedly committed
by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention (see García
Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999-I).
- The
applicant complained that the proceedings in his case had been
unfair. In particular, he complained that he had not been confronted
with co-defendants during the investigation and that the courts had
wrongly assessed evidence.
In
the light of all the material in its possession and in so far as the
applicant’s complaint about the outcome has been substantiated,
the Court observes that the applicant took an active part in the
proceedings, he was represented by a lawyer and he had the
possibility to examine witnesses and verify the testimonies of
co-defendants during the trial. Therefore, 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.
IV. 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 100,000 Polish zlotys (PLN) in
respect of non-pecuniary damage related to the protracted length of
his detention and unfairness of the criminal proceedings.
Furthermore, he claimed PLN 10,000 in respect of non-pecuniary
damage related to the monitoring of his correspondence.
- The
Government did not comment on the applicant’s claims.
- The
Court notes that it has found no violation of Article 5 § 3
and the applicant’s complaint under Article 6 § 1 has been
declared inadmissible. Thus, there is no basis for making any award
under these heads. The Court further considers that in the particular
circumstances of the case, the finding of a violation of Article 8 of
the Convention would not constitute sufficient just satisfaction for
the non pecuniary damage sustained by the applicant. Having
regard to the extent of the violation found, the Court awards the
applicant EUR 1,000 under this head.
B. Costs and expenses
59. The applicant claimed costs and expenses in an unspecified
amount for the proceedings before the Court. However, the Court
observes that neither he nor his lawyer had produced any documents in
support of the claim. In those circumstances, the Court rejects the
claim for costs and expenses (see, Adamiak
v. Poland,
no. 20758/03, § 49, 19 December 2006).
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 complaints concerning the
unreasonable length of detention and the monitoring of the
applicant’s correspondence admissible and the remainder of the
application 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;
- 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 1,000 (one thousand 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 3 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
