FOURTH SECTION

CASE OF KISIELEWSKI v. POLAND

(Application no. 26744/02)

JUDGMENT

STRASBOURG

7 July 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 Kisielewski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

and LawrenceEarlySection Registrar,
Having deliberated in private on 16 June 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On  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
4.  The applicant was born in 1960 and lives in Cracow.
1.  First set of criminal proceedings against the applicant
5.  The applicant was charged with handling stolen property and, on an unspecified later date, he was detained on remand.
6.  On 29 November 1993 the Cracow District Court convicted the applicant as charged and sentenced him to 2 years' imprisonment. The applicant appealed.
7.  On 8 April 1994 the Cracow Regional Court upheld the first-instance judgment.
2.  Second set of criminal proceedings against the applicant
8.  The applicant was charged with handling stolen property, forgery of documents and unlawful possession of a firearm and, on an unspecified later date, he was detained on remand.
9.  On 2 March 1995 the Cracow Regional Court convicted the applicant as charged and sentenced him to 3 years and 6 months' imprisonment. Both the applicant and the prosecutor appealed.
10.  On 5 October 1995 the Cracow Court of Appeal amended the first-instance judgment and increased the sentence to 5 years' imprisonment.
11.  On 21 December 1995 the Cracow Regional Court gave a cumulative judgment () and sentenced the applicant to 5 years' imprisonment as cumulative penalties for the former conviction given in the first set of criminal proceedings (see paragraph 7 above) and the latter conviction given on 5 October 1995.

3. Third set of criminal proceedings against the applicant

12.  On an unspecified later date the applicant was charged with handling stolen property.
13.  On 27 February 1997 the Cracow Regional Court convicted the applicant as charged and sentenced him to 2 years and 6 months' imprisonment. The applicant appealed.
14.  On 5 June 1997 the Cracow Court of Appeal upheld the first-instance judgment. A cassation appeal was available.
15.  On 5 June 2002 the applicant requested to have the criminal proceedings against him re-opened. On 18 July 2002 the Supreme Court dismissed his request.
4.  Censorship of the applicant's correspondence
16.  On 14 March 2002 the Court received the applicant's letter of 25 February 2002. The envelope bore the following stamp: “Censored on 28 February 2002” (Ocenzurowano dnia 28.02.2002) and an illegible signature.
II. RELEVANT DOMESTIC LAW AND PRACTICE
17.  The legal provisions concerning monitoring of detainees' correspondence applicable at the material time and questions of practice are set out in paragraphs 65-66 of the judgment delivered by the Court on 2 December 2003 in Matwiejczuk v. Poland case, no. 37641/97.
THE LAW
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
18.  The Court considered it appropriate to raise ex officio the issue of Poland's compliance with Article 8 of the Convention on account of the monitoring of the applicant's correspondence with the Court.
This Article, 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's plea of non-exhaustion of domestic remedies
19.  The Government submitted that the applicant had not exhausted all available domestic remedies. They alleged that he had failed to bring an action under Articles 24 and 23 in conjunction with Article 448 of the Civil Code. These provisions would have allowed the applicant to assert that by censoring his  the authorities had breached his personal rights protected by the Civil Code and to claim compensation for non-pecuniary damage.
20.  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  with the Central Board of the Prison Service and the Central Electoral Office. The Regional Court had held that the confidentiality of one's  was one of the personal rights protected under Article 23 of the Civil Code and that in the event of its breach a claimant could be entitled to an award for non-pecuniary damage.
21.  The applicant disagreed with the Government.
22.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,  [GC], no. 24888/94, § 57, ECHR 1999-IX).
23.  It follows that the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.
24.  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.  The parties' submissions
25.  The applicant argued that the circumstances of his case disclosed a breach of Article 8 of the Convention.
26.  The Government refrained from expressing their opinion on the merits of the complaint.
2.  The Court's assessment
(a)  Existence of an interference
27.  The Court first observes that the applicant's letter of 25 February 2002 to the Court bears a red stamp reading “Censored on 28 February 2002” (Ocenzurowano dnia 28.02.2002) and an illegible signature (see paragraph 16 above).
28.  The Court notes that the Government refrained from taking a position on the question whether there had been an interference with the applicant's right to respect for his correspondence. The Court has held on many occasions that as long as the Polish authorities continue the practice of marking detainees' letters with the ocenzurowano stamp, the Court has no alternative but to presume that those letters have been opened and their contents read, even if there is no separate stamp on the letter as such (see Matwiejczuk v. Poland, no. 37641/97, § 99, 2 December 2003, and Pisk‑Piskowski v. Poland, no. 92/03, § 26, 14 June 2005)
29.  It follows that the censoring of the applicant's correspondence with the Court amounted to an “interference” with his right to respect for his correspondence under Article 8.
(b)  Whether the interference was “in accordance with the law”
30.  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, , 25 March 1983, Series A no. 61, p. 32, § 84; , 25 March 1992, Series A no. 233, p. 16, § 34, and no. 27915/95, § 78).
31. The Court observes that the Government did not indicate a concrete legal basis in the domestic law for the impugned interference. It further notes that the impugned interference took place on 25 February 2002 when the applicant had been detained pending trial or was serving a prison sentence.
32.  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 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. Polandno. 13425/02, § 61, 4 May 2006 Kwiek v. Poland, no. 51895/99, § 44, 30 May 2006. Thus, the censorship of the applicant's letters to the Court was contrary to the domestic law. the interference in the present case was not “in accordance with the law”.
33.  Accordingly, 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.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34.  The applicant complained about unfairness of the above three sets of criminal proceedings and that his appeals had been dismissed (see paragraphs 5-14 above). He alleged a violation of Articles 6 and 13 of the Convention.
35.  The Court considers that the applicant's complaints concerning unfairness of the first, the second and the third sets of criminal proceedings against him and the alleged ineffectiveness of his appeals lodged in these proceedings are inadmissible for non-exhaustion of domestic remedies and failure to comply with the six-month time-limit. It further considers that no arguable claim arises under Article 13 of the Convention.
36.  It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.
37.  The applicant also complained that the refusal to re-open the criminal proceedings against him had been arbitrary (see paragraph 15 above). He alleged a violation of Article 6 of the Convention.
38.  In this respect the Court recalls that the guarantees of Article 6 of the Convention do not apply to proceedings in which the re-opening of proceedings terminated by a final decision is sought (see, among many other authorities,  (dec.), no. 45943/99, 13 September 2001; , § 35, 25 November 2003). The Court therefore concludes that Article 6 of the Convention is not applicable to this part of the proceedings.
39.  It follows that this part of the application is incompatible  with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
40.  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
41.  The applicant claimed just satisfaction in respect of non-pecuniary damage without expressing its amount.
42.  The Government did not express opinion on the matter.
43.  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
44.  The applicant did not make any claim for the costs and expenses incurred in the proceedings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint concerning the censorship of the applicant's correspondence admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 8 of the Convention;

3.  

(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;

4.   the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 7 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Lawrence Early	Nicolas Bratza 
	Registrar	President