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FOURTH
SECTION
CASE OF HINCZEWSKI v. POLAND
(Application
no. 34907/05)
JUDGMENT
STRASBOURG
5
October 2010
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 Hinczewski v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34907/05) 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 Leszek Hinczewski (“the
applicant”), on 18 September 2005.
- The
applicant was represented by Mr J. Zaleski, a lawyer practising in
Katowice. The Polish Government were represented by their Agent,
Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that he was prevented from voting
in the 2005 Parliamentary Elections in Poland.
- On
6 November 2007 the Court decided to give notice of the application
to the Government. It 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 1971 and lives in Jastrzębie Zdrój.
A The criminal proceedings
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- On
2 May 1990 the applicant was arrested by the police and detained on
remand.
- On
31 May 1991 the Katowice Regional Court (Sąd Wojewódzki)
convicted the applicant of homicide and sentenced him to twelve
years' imprisonment and a fine, to be paid to a charity. The court
also sentenced the applicant to four years' deprivation of his civic
rights.
- The
applicant appealed. On 17 December 1991 the Katowice Court of Appeal
(Sąd Apelacyjny) dismissed his appeal.
- The
applicant served the twelve-year sentence during the following
periods: from 2 May 1990 to 14 February 1993; from
17 February 1993 to 20 June 1993; from 18 September 1993 to
31 January 1995; from 12 April 1995 to 22 May 1999;
and from 10 October 2001 to 6 March 2005.
- On
22 September 1994 the applicant was convicted of burglary by the
Dąbrowa Górnicza District Court (Sąd Rejonowy)
and sentenced to two years and three months' imprisonment. That
judgment was partly upheld on appeal by the Katowice Regional Court
on 22 December 1994. The applicant served this sentence between
7 May 2005 and 7 August 2007.
B. Elections
- On
25 September 2005 the applicant, who was at that time serving his
sentence in the Katowice Detention Centre, unsuccessfully attempted
to vote in the parliamentary elections. On the same date he wrote a
“declaration” in which he complained to the Katowice
Local Electoral Commission (Obwodowa Komisja Wyborcza) about
not being allowed to vote. The following handwritten note,
accompanied by a stamp of the Katowice Local Electoral Commission and
an illegible signature, was made on the applicant's declaration:
“On 25 September 2005 Mr Leszek Hinczewski came to
cast his vote. He did not vote, however, because he was still
deprived of his civic rights and his name had been deleted from the
list of voters. The Municipal Office was consulted and confirmed that
it had been notified by the Katowice Regional Court [about the
applicant's conviction in] case IVK 165/90. The date of notification:
22 August 2005.”
C. Monitoring of correspondence
- On 9 July 2006 the applicant sent the Court a letter
from the Sosnowiec Detention Centre. The envelope in which the letter
was delivered to the Registry bears the following stamp: “Będzin
District Court Censored” (Sąd Rejonowy w Będzinie
Cenzurowano) and an illegible signature. An identical stamp
“Bedzin District Court Censored” with an illegible
signature can be found on the second page of the applicant's letter
addressed to the Registrar. The envelope bears signs of having been
opened: its right side has been cut open and then resealed with
sellotape.
- The
applicant submitted that his letter from the Ombudsman had been
interfered with by the authorities. He provided the original envelope
in which the letter was delivered to him. The envelope bears the
stamp of the sender, the Office of the Ombudsman in Warsaw, and is
postmarked 27 July 2005. According to other stamps, it appears
that the letter arrived at the Sosnowiec Detention Centre on 1 August
2005 (Areszt Śledczy w Sosnowcu), and was then sent to
the Dabrowa Gornicza District Prosecutor (Prokuratura Rejonowa...
Dabrowa Gornicza), who returned it to the Detention Centre on 11
August 2005. On the stamp of the Dabrowa Gornicza District Prosecutor
there is a handwritten note: “Censored” (Ocenzurowano)
and an illegible signature. The envelope bears signs of having been
opened: the top has been cut open and then resealed with sellotape.
II. RELEVANT DOMESTIC LAW
A Elections
- Article
62 of the Constitution of Poland provides as follows:
“1. If, no later than on the day of
vote, he has attained 18 years of age, a Polish citizen shall have
the right to participate in a referendum and the right to vote for
the President of the Republic of Poland as well as representatives to
the Sejm and Senate and organs of local government.
2. Persons who, by a final judgment of a
court, have been subjected to legal incapacitation or deprived of
civic or electoral rights, shall have no right to participate in a
referendum or to vote.”
- Article
79 § 1 of the Constitution provides as follows:
“In accordance with principles specified by
statute, everyone whose constitutional freedoms or rights have been
infringed, shall have the right to appeal to the Constitutional Court
for a judgment on the conformity with the Constitution of a statute
or another normative act on the basis of which a court or an
administrative authority has issued a final decision on his freedoms
or rights or on his obligations specified in the Constitution.”
- Under
the Criminal Code of 1996 (Kodeks Karny) (“the old
Code”) deprivation of civic rights was one of the penal
measures that could be ordered by a court. This law is no longer in
force as it was repealed and replaced by the so-called “New
Criminal Code” of 6 June 1997 (“the 1997 Code”),
which entered into force on 1 September 1998. However, the provisions
relevant to the instant case were included in the 1997 Code with only
minor modifications.
- Article
39 of the old Code (presently Article 40 § 1 of the 1997 Code)
reads as follows in so far as relevant:
“The deprivation of civic rights shall include the
loss of the right to vote and to be elected to the Sejm ....”
- Article
44 §1 of the old Code (presently Article 43 § 1 of the 1997
Code), in its relevant part, provides as follows:
“[The deprivation of civil rights and other
interdictions...] shall be imposed in terms of years for a period
ranging from 1 to 10 years.”
- Article
45 of the old Code (presently Article 43 § 2 of the 1997 Code)
provides:
“The deprivation of rights or an interdiction
imposed by the court shall take effect from the time the sentence
becomes final; the period for which they were imposed does not run
during the serving of a penalty of deprivation of liberty, even if
the latter has been imposed for another offence.”
- According
to Article 40 § 2 of the 1997 Code deprivation of civic rights
can be ordered together with a sentence of deprivation of liberty for
a period longer than three years for a crime committed with
particularly reprehensive motives.
- Section 15 of the Law of 12 April 2001 on Elections to
the Sejm and the Senate of the Republic of Poland (Ordynacja
wyborcza do Sejmu Rzeczypospolitej Polskiej i do Senatu
Rzeczypospolitej Polskiej) (“the 2001 Elections Act”)
provides in so far as relevant as follows:
“1. Everyone has a right to lodge a
complaint with the mayor of a district (or the president of a town)
about irregularities in the register of voters, and in particular:
1) the omission of a voter from the register;
...
2. The complaint shall be lodged in writing
or orally for the record.
3. A mayor of a district (or president of a
town) shall examine the complaint within three days from when it was
lodged and give a decision on the merits.
4. A reasoned decision shall be served on the
complainant and, when applicable, on other persons whom the decision
concerns.
5. The complainant has a right to appeal
against the decision ... dismissing his complaint within three days
from the delivery of the decision. The appeal shall be lodged with
the relevant District Court ...”
- Section
20 of the 2001 Elections Act provides:
“3. The list of voters in prisons and
detention centres ... shall be drawn up on the basis of the registers
of persons housed there on the day of elections ...
5. Persons who are deprived of civic rights
by the final decision of a court shall not be included in the list
referred to in § 3.”
B Monitoring of correspondence
- Rules relating to the means of monitoring the
correspondence of persons involved in criminal proceedings are set
out in the Code of Execution of Criminal Sentences (Kodeks karny
wykonawczy) (“the 1997 Code of Execution of Criminal
Sentences”) which entered into force on 1 September 1998.
Article 102 (11) of the 1997 Code of Execution of Criminal Sentences
provides that convicted persons are entitled to have private and
confidential correspondence with the State authorities and with the
Ombudsman, which shall not be interfered with.
The
relevant part of Article 103 § 1 of the Code provides
as follows:
“Convicts (...) have a right to lodge complaints
with institutions established by international treaties ratified by
the Republic of Poland concerning the protection of human rights.
Correspondence in those cases (...) shall be sent to the addressee
without delay and shall not be interfered with.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that his letter from the Ombudsman was
interfered with in breach of Article 8 of the Convention. In addition
the Court raised of its own motion a complaint under Article 8 of the
Convention in respect of the applicant's correspondence with the
Registry of the Court. This Article reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and 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 raised an objection, claiming non-exhaustion of domestic
remedies. They decided not to comment on the merits of the complaint.
A. Admissibility
- The
Government submitted that the applicant had not exhausted all
available domestic remedies. He had failed to bring an action under
Article 24 § 2 read in conjunction with Article 448 of the Civil
Code. These provisions would have allowed him both to assert that by
interfering with his correspondence the authorities had breached his
personal rights protected by the Civil Code and to claim compensation
for non-pecuniary damage.
- The
applicant's lawyer did not comment.
- The
Court has held that applicants with similar complaints based on
interferences which occurred after 28 June 2007 are required to avail
themselves of the provisions of Articles 23 and 24 § 1
read in conjunction Article 448 of the Civil Code, failing which they
will be considered to have failed to exhaust domestic remedies, as
required by Article 35 § 1 of the Convention (see Biśta
v. Poland,
no. 22807/07, § 49, 12 January 2010).
- However, the alleged
interference with the applicant's correspondence occurred in 2005 and
in July 2006, that is, before 28 June 2007, the date on which
the Warsaw Court of Appeal gave its judgment granting compensation
for the infringement of the confidentiality of a prisoner's
correspondence on account of interference with it (ibid, § 47).
Moreover,
the complaint under Article 8 of the Convention concerning the
alleged interference with the applicant's correspondence with the
Registry of the Court was raised of the Court's own motion. The
letter at issue was sent by the applicant to the Court and he could
not have been aware that it had been intercepted by the authorities.
Moreover, at the relevant time the applicant did not have at his
disposal an effective remedy (see paragraph 29 above).
- For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed (see Lewak
v. Poland, no. 21890/03, § 25, 6 September 2007, and
Wenerski v. Poland, no. 44369/02, § 71, 20 January 2009).
- 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. Principles established under the Court's case-law
- 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 and with
specific reference to prisoners' correspondence, 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).
- As
to the expression “in accordance with the law”, the Court
has established three fundamental principles. The first one is that
the interference in question must have some basis in domestic law.
The second principle is that “the law must be adequately
accessible”, a person must be able to have an indication that
is adequate, in the circumstances, of the legal rules applicable to
his case. The third principle is that “a norm cannot be
regarded as a 'law' unless it is formulated with sufficient precision
to enable a person to regulate his conduct; he must be able - if need
be with appropriate advice - to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given
action may entail” (see Silver, cited above, §§
86-88).
- It
is important to respect the confidentiality of applicant prisoners'
correspondence with the Court since it may concern allegations
against prison authorities or prison officials. The opening of
letters both to and from the Convention organs undoubtedly gives rise
to the possibility that they will be read and may conceivably, on
occasion, also create the risk of reprisals by prison staff against
the prisoner concerned (see Campbell, cited above, p. 22, §
62). No compelling reasons have been found to exist for monitoring or
delaying an applicant's correspondence with the Court (see Campbell,
cited above, §§ 48 and 62; and Peers v. Greece, no.
28524/95, § 84, ECHR 2001-III; and Drozdowski v. Poland,
no. 20841/02, §§ 27-31, 6 December 2005).
2. Application of the principles to the circumstances of the
present case
- The
applicant's letter of 9 July 2006 addressed to the Court bears signs
of having been opened and then resealed. The envelope and the second
page of the letter bear stamps: “Bedzin District Court
Censored”. Moreover, the letter from the Ombudsman of 27 July
2005 addressed to the applicant was apparently intercepted by the
Dabrowa Gornicza District Prosecutor (see paragraphs 14 and 15
above).
- 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
(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, no. 13425/02, § 58,
4 May 2006). That is even more so if there is a separate stamp
on the letter, as in the present case.
- It
follows that the monitoring of the applicant's correspondence with
the Court and the Ombudsman amounted to an “interference”
with the applicant's right to respect for his correspondence under
Article 8.
- The
Court notes that the interference took place while the applicant was
serving a prison sentence (see paragraph 11 above).
- As
regards the interference with the applicant's right to respect for
his correspondence with the Court, it observes that Article 103 of
the 1997 Code expressly prohibits the monitoring of correspondence
with the European Court of Human Rights (see Michta, cited
above, § 61, and Kwiek, no. 51895/99, § 44, 30 May
2006). Similarly, interference with an applicant's correspondence
with a State authority, including the Ombudsman, was contrary to the
statutory prohibition laid down in Article 102 (11) of the 1997 Code.
Thus,
the interference with the letters from the Ombudsman to the applicant
and from him to the Registry of the Court was contrary to the
domestic law.
- It
follows that the interference with the applicant's correspondence
with the Court and the Ombudsman 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 PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that he had been deprived of the right to vote
in the parliamentary elections of September 2005. He relied on
Article 3 of Protocol No. 1 to the Convention, which reads as
follows.
“The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.”
- The
Government contested that argument and considered that the applicant
had also failed to exhaust the available domestic remedy for his
Article 3 of Protocol No.1 complaint. Firstly, it had been open to
the applicant to lodge a complaint about the absence of his name on
the electoral list under section 15 of the 2001 Election Act. In
addition, the Government considered that a constitutional complaint
should be considered an effective remedy in the present case.
- The
Court has to determine whether the specific remedy referred to by the
Government could be considered effective in the circumstances of the
present case. It reiterates that the only remedies which Article 35
of the Convention requires to be exhausted are those that relate to
the breaches alleged and which at the same time are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness; it falls to
the respondent State to establish that these various conditions are
satisfied (see, among other authorities, Selmouni v. France
[GC], no. 25803/94, § 75, ECHR 1999-V).
- The
Court firstly notes that it was indeed open to the applicant to lodge
a complaint about the absence of his name on the electoral list as
provided by section 15 of the 2001 Election Act. Such a complaint was
to be examined within three days by the mayor of the relevant
district or the president of the relevant town and later, upon an
appeal, by a District Court (see paragraph 23 above). Had the
applicant had recourse to this remedy and obtained a final decision
in his case, another legal avenue would have opened itself in that he
could have lodged a constitutional complaint alleging that the
decision to exclude his name from the electoral list had been adopted
in direct application of an unconstitutional provision of national
legislation.
- The
Court reiterates that it has already dealt with the question of the
effectiveness of a constitutional complaint in Poland and found that
the constitutional complaint was an effective remedy for the purposes
of Article 35 § 1 of the Convention in situations where: 1) the
individual decision which allegedly violated the Convention, had been
adopted in direct application of an unconstitutional provision of
national legislation; and 2) procedural regulations applicable to the
revision of such individual decisions provided for the reopening of
the case or the quashing of the final decision in consequence of the
judgment of the Constitutional Court in which unconstitutionality had
been found (see Szott-Medyńska v. Poland
(dec.), no. 47414/99, 9 October 2003; subsequently among many other
authorities Pachla v. Poland (dec.), no. 8812/02,
8 November 2005 and Liss v. Poland (dec.), no.14337/02,
16 March 2010 and Urban v. Poland (dec.), no. 29690/06, 7
September 2010).
- Consequently,
the Court finds that by failing to lodge a complaint about the
absence of his name on the electoral list which could have enabled
him to seize the Constitutional Court, the applicant failed to
exhaust the remedies provided for by Polish law. The Government's
objection in the instant case is therefore well-founded.
It follows that this part of the application must be rejected
pursuant to Article 35 §§ 1 and 4 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant complained about the outcome of two sets
of criminal proceedings. However the first of them ended on 17
December 1991, while the recognition by Poland of the right of
individual petition took effect on 1 May 1993. It follows that this
complaint is incompatible ratione temporis with the provisions
of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
-
The Court notes that the second set of criminal proceedings about
which the applicant complained ended on 22 December 1994. It follows
that this complaint has been introduced out of time and must be
rejected in accordance with Article 35 §§ 1 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 220,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 500 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant, who was represented by a lawyer, did not claim any sum 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 as regards the interferences with the applicant's
correspondence with both the Court and the Ombudsman;
- 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), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Polish zlotys at the rate
applicable at the date of settlement;
(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 5 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
