CASE OF MATWIEJCZUK v. POLAND

FOURTH SECTION

CASE OF MATWIEJCZUK v. POLAND

(Application no. 37641/97)

JUDGMENT

STRASBOURG

2 December 2003

FINAL

02/03/2004

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 Matwiejczuk v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

MrM. Pellonpää, President,
MrsV. Strážnická,
MrM. Fischbach,
MrJ. Casadevall,
MrR. Maruste,
MrL. Garlicki,
MrsE. Fura-Sandström, judges,

and Mr M. O'Boyle, Section Registrar,

Having deliberated in private on 13 November 2003,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 37641/97) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Tomasz Matwiejczuk (“the applicant”), on 7 November 1996.

2.  The applicant, who had been granted legal aid, was represented by Mr W. Hermeliński, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki.

3.  The applicant alleged, in particular, that the facts of his case disclosed a violation of Articles 5 § 3, 6 § 1, 8 and 34 of the Convention.

4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5.  The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

6.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1) . This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

7.  The applicant and the Government each filed observations on the merits (Rule 59 § 1).

8.  By a decision of 4 June 2002, the Court declared the application partly admissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

9.  The applicant was born in 1966 and is currently detained in the Radom prison.

A.  The applicant's detention on remand and trial

1.  The arrest and detention on remand

10.  In July 1996 the applicant was released from prison. On 11 September 1996 the police arrested him. The police suspected that on 10 September 1996 the applicant had committed an armed robbery and rape. At the same time, the police enforced a warrant for the arrest of the applicant issued on 28 August 1996 by the Pruszków District Court (Sąd Rejonowy) in the criminal proceedings against the applicant pending before that court.

11.  On 13 September 1996 the Warsaw District Court remanded the applicant in custody on charges of armed robbery and sexual assault. The court took into account the fact that the applicant was of no fixed abode and that his accomplices had not been arrested.

12.  On 8 November 1996 the Warsaw Regional Court (Sąd Wojewódzki) dismissed the applicant's appeal against the District Court's decision to remand him in custody. The Regional Court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him, the risk of collusion, the fact that he was of no fixed abode and was unemployed. In addition, the court observed that the police failed to apprehend the applicant's accomplices and that there was a risk that he would go into hiding. Finally, the court was of the view that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.

13.  On 10 December 1996 the Warsaw Regional Court extended the applicant's detention until 11 March 1997.

14.  The applicant made an application for release but it was dismissed on 19 December 1996 by the Warsaw Regional Court. It referred to the gravity of the charges brought against the applicant and the existence of serious evidence of his guilt.

15.  Between 20 January and 27 February 1997 the prosecution service decided that it would seek evidence from five expert witnesses and requested the applicant's medical file from a psychiatric hospital in which he had been treated.

16.  On 4 March 1997 the Warsaw Regional Court appointed legal aid counsel to defend the applicant.

17.  On 5 March 1997 the prosecution service received two expert opinions. On 7 March 1997 the District Prosecutor interviewed the victim of rape.

18.  On 10 March 1997 the Warsaw Court of Appeal (Sąd Apelacyjny) allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 May 1997. The court referred to the gravity of the charges against the applicant and the grounds for detention provided in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. Moreover, it noted that one of the co-accused was still in hiding and that immediately after the commission of the alleged crime “there had been an attempt to contact the victim [of the assault]”. The court also agreed with the submissions of the prosecutor that the investigation was not finished because certain forensic tests still had to be carried out, the applicant and another co-accused were still under psychiatric observation, whereas the police was trying to apprehend the third accused. The applicant appealed against that decision to the Supreme Court (Sąd Najwyższy).

19.  Between 8 and 18 April 1997 the prosecution service received two expert opinions and decided to request DNA tests.

20.  On 24 April 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 10 March 1997. It referred to the charges against the applicant and observed that there existed serious evidence of his guilt.

21.  On 29 April 1997 the Warsaw-Ochota Deputy District Prosecutor (Zastępca Prokuratora Rejonowego) replied to the applicant's letter of 23 April 1997 in which he complained about the censorship of his correspondence with the European Commission of Human Rights. The prosecutor advised the applicant about domestic legislation, which allowed the authorities to censor his correspondence.

22.  On 9 May 1997 the Warsaw Court of Appeal allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 July 1997. The court relied on the existence of serious evidence of the applicant's guilt and the nature of charges against the applicant. It also considered that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. Finally, the court noted that the prosecution service was awaiting an expert opinion from a forensic expert and that one of co-accused was still in hiding. The applicant appealed against that decision.

23.  On 16 May 1997 the prosecution service received the results of DNA tests. On 18 June 1997 the District Prosecutor interviewed the applicant and decided to modify charges against him.

2.  The bill of indictment

24.  On 27 June 1997 the prosecuting authorities filed with the Warsaw Regional Court a bill of indictment against the applicant.

25.  On 7 July 1997 the Warsaw Regional Court extended the applicant's pre‑trial detention until 11 September 1998.

26.  On 9 July 1997 the trial court dismissed the applicant's challenge to the prosecutor who worked on his case. During the two following days the applicant was consulting the case-file.

27.  On 10 July 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 9 May 1997. The Supreme Court relied on the gravity of charges against the applicant, the existence of serious evidence of his guilt and the grounds for detention listed in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. It also pointed out that the Warsaw Regional Court's decision of 7 July 1997 extending the applicant's detention had been taken before the Supreme Court had the opportunity to decide his appeal against the Warsaw Court of Appeal's decision of 9 May 1997 and therefore constituted “an inappropriate practice”.

28.  On 15 July 1997 the applicant's counsel appealed to the Warsaw Court of Appeal against the Regional Court's decision of 7 July 1997. On 25 July 1997 the appellate court rejected the appeal. It pointed out that at the time of his arrest the applicant had been of no fixed abode and had been the subject of the arrest warrant.

29.  In the meantime, on 22 July 1997 the applicant lodged with the Warsaw Court of Appeal an appeal against the Regional Court's decision of 7 July 1997. On 5 September 1997 the Warsaw Court of Appeal dismissed the applicant's appeal. The court relied on a medical opinion confirming that the applicant's medical problems could be treated in prison.

30.  In the meantime, on 20 August 1997 the applicant made an application for release. On 16 October 1997 the Warsaw Regional Court dismissed the application. It relied on a medical opinion. The applicant's appeal against that decision was rejected because it was not provided by law.

31.  On 24 March 1998 the Warsaw Regional Court was informed that the applicant had tried to smuggle a message to his accomplices. However, it was seized by the prison service and included in the court's case-file.

32.  Between 25 November 1997 and 19 May 1998 the applicant on six occasions attended hearings before the Pruszków District Court in the criminal proceedings against him pending before that court.

33.  On 19 June 1998 the Warsaw Regional Court decided to stop the applicant's letter in which he made threats against one of the prisoners. The letter was included in the court's case-file.

34.  On 22 July 1998 the Warsaw Regional Court requested the Supreme Court to extend the applicant's pre-trial detention under Article 222 § 4 of the Code of Criminal Procedure which empowered the Supreme Court to prolong detention beyond two years. The request was based, inter alia, on Articles 209 and 217 § 2 of the Code of Criminal Procedure and referred to the gravity of charges against the applicant, the existence of serious evidence of his guilt and the inability to schedule hearings because of holidays and workload of judges involved in the applicant's case. The request also referred to the fact that the next hearing could not be fixed before evidence is taken from an anonymous witness who could not testify before 3 November 1998.

3.  The first hearing

35.  On 22 July 1998 the first hearing was held before the Warsaw Regional Court. The applicant and his co-accused asked that the hearing be adjourned as they had not been able to prepare their defence. The court allowed the request and adjourned the hearing until 3 November 1998. The court took into account heavy workload of judges, the holiday period and the fact that an anonymous witness could not be heard before that date.

36.  On 28 August 1998 the Supreme Court allowed the Regional Court's request of 22 July 1998 and extended the applicant's pre-trial detention until 15 December 1998. It pointed out that difficulties in fixing hearings caused by holidays and workload of judges could not be considered as grounds for extending pre-trial detention. Furthermore, the Supreme Court agreed with the Regional Court that the applicant's case disclosed the existence of grounds for detention provided in Articles 209 and 217 § 2 of the Code of Criminal Procedure. The Supreme Court concluded that the inability to take evidence from an anonymous witness before 3 November 1998 justified the extension of the applicant's detention under Article 222 § 4 of the Code of Criminal Procedure.

37.  On 3 November 1998 the Warsaw Regional Court held the second hearing in the applicant's case. It took evidence from the victim of sexual assault. The court also made arrangements for taking evidence from an anonymous witness.

38.  On 17 November 1998 evidence was taken from an anonymous witness.

39.  On 19 November 1998 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The Regional Court considered that the fact that the judges were female did not deprive the applicant of a fair trial on charges of sexual assault.

40.  On 23 November 1998 the hearing was adjourned because the prosecution service and witnesses had not been informed about it.

41.  The applicant made a further application for release at the hearing held on 1 December 1998 but it was dismissed by the Warsaw Regional Court on 2 December 1998. The court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him and the fact that he had been of no fixed abode at the time of his arrest. Moreover, the court observed that it had not finished taking evidence from certain witnesses. The applicant's appeal against that decision was rejected because it was not provided by law.

42.  On 2 December 1998 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 4 December 1998 the Supreme Court allowed that request and prolonged the detention until 15 February 1999. The Supreme Court referred to its decision of 28 August 1998 and observed that the trial court still had to take evidence form certain witnesses. In addition, the trial court did not know the address of one of those witnesses, whereas another witness had to be transported to the court from the Łódź Prison.

43.  On 17 December 1998 a hearing took place before the Warsaw Regional Court.

44.  On 22 December 1998 evidence was taken from an anonymous witness.

45.  The applicant made a fresh application for release but it was dismissed on 4 January 1999 by the Warsaw Regional Court. It referred to the nature and the gravity of charges against the applicant and noted that his trial was in the final stage.

46.  On 7 January 1999 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The applicant's appeal against that decision was rejected because it was not provided by law.

47.  On 12 January 1999 the police informed the Warsaw Regional Court that one of the witnesses for the defence was dead.

48.  On 21 January 1999 a hearing was held before the Warsaw Regional Court. It was adjourned until 3 February 1999 because one of the judges was ill.

49.  On 25 January 1999 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 10 February 1999 the Supreme Court allowed that request and prolonged the detention until 31 March 1999. It referred to the reasoning of its decision of 4 December 1998. The Supreme Court also noted the difficulties the trial court experienced in taking evidence from one of the witnesses. Moreover, the court considered that because the applicant had been of no fixed abode at the time of his arrest he could interfere with the proceedings if released from detention.

50.  The hearing held on 3 February 1999 was adjourned because the applicant requested that evidence be taken from a new witness.

51.  The next hearing was held on 19 February 1999.

52.  During the hearing held on 15 March 1999 the applicant applied for release from detention but the court dismissed it. The applicant's appeal against that decision was rejected because it was not provided by law.

53.  On 25 March 1999 the Supreme Court prolonged the applicant's detention until 31 May 1999.

54.  During the hearing held on 7 April 1999 the Warsaw Regional Court dismissed the applicant's request that the case be remitted to the prosecution service for further investigation.

55.  The last hearing before the trial court was held on 28 April 1999.

4.  The conviction

56.  On 4 May 1999 the Warsaw Regional Court convicted the applicant of armed robbery and sexual assault and sentenced him to five years' imprisonment. The applicant appealed against that judgment to the Warsaw Court of Appeal.

57.  On 9 November 1999 the Warsaw Court of Appeal held a hearing. The court dismissed the appeal except for the conviction for armed robbery, which it qualified as robbery without the use of arms.

B.  The monitoring of the applicant's correspondence

58.  The Court's case-file contains the following documents pointing to the monitoring of the applicant's correspondence:

(i)  the applicant's letters of 5, 22 and 31 January and 7 February 1997 addressed to the European Commission of Human Rights are marked with a hand‑written note: “Censored” (Ocenzurowano) and an illegible signature and also bear a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” (Asesor Prokuratury Rejonowej Warszawa Ochota Grażyna Garboś-Jędral);

(ii)  the applicant's letters of 8, 21 and 24 April 1997 addressed to the European Commission of Human Rights are marked with a hand‑written note: “Censored” and an illegible signature;

(iii)  the applicant's letters of 5 March, 16 May and 3 September 1997 as well as an undated letter received on 19 March 1997 addressed to the European Commission of Human Rights are marked with an illegible signature;

(iv)  an envelope mailed by the applicant on 5 September 1997 to the European Commission of Human Rights is marked with a hand‑written note: “Censored” and an illegible signature;

(v)  a flap of an envelope with the logo of the Council of Europe bears on the inside a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” and an illegible signature;

(vi)  an envelope mailed by the European Court of Human Rights on 23 February 1999 to the applicant bears a stamp: “Censored on, signature” (Ocenzurowano dn. podpis), a hand-written date: 5 March and an illegible signature.

II.  RELEVANT DOMESTIC LAW

A.  The pre-trial detention

1.  The Code of Criminal Procedure 1969

59.  The Code of Criminal Procedure 1969, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows:

“Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

60.  Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows:

“A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”

Article 225 of the Code provided:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”

Article 217 of the Code, before it was amended on 1 January 1996, provided insofar as relevant:

“Detention on remand may be imposed if:

1.  there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or

2.  there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or

3.  the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or

4.  the accused was charged with the commission of an act which constituted significant danger to society.”

Article 218 provided:

“If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when:

1.  it may seriously jeopardise the life or health of the accused; or

2.  it would entail excessively burdensome effects for the accused or his family.”

61.  Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage.

Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided insofar as relevant:

“3.  The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.

4.  In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”

Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.

2.  The Code of Criminal Procedure 1997

62.  On 1 September 1998 the Code of Criminal Procedure 1997 replaced the 1969 Code.

Article 263 of the new Code, insofar as relevant, provides:

“§  1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months.

§  2. If the special circumstances of a case made it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by:

the trial court – for up to 6 months,

the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months.

§  3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years.

§  4. Detention on remand may be prolonged for a fixed period exceeding periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”.

B.  Monitoring of correspondence

1.  Provisions in force before 1 September 1998

63.  Article 89 § 2 of the Code of Execution of Criminal Sentences 1969 provided, in so far as relevant, as follows:

“(...) [the detainee's] correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.” 

64.  Rule 33 of the Rules on Detention on Remand 1989, as amended on 29 December 1995, provided, in so far as relevant, as follows:

“(1)  A detainee has a right to correspond.

(2)  Detainee's correspondence shall be censored by the organ at whose disposal he remains (...).

(3)  Correspondence with the Ombudsman and international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, is mailed through the intermediary of [that] organ (...).”  

2.  Provisions in force since 1 September 1998

(a)  The Code of Execution of Criminal Sentences 1997

65.  On 1 September 1998 the Code of Execution of Criminal Sentences 1997 replaced the 1969 Code. The relevant part of Article 103 § 1 of the 1997 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 censored.”

Article 105 § 4 provides:

“The prison governor shall make decisions concerning the stopping or censorship of the correspondence if it is required by the prison security considerations [and] shall inform about it the penitentiary judge and the convict.”

Article 209

“The provisions concerning the execution of sentences shall apply accordingly to the execution of detention on remand, subject to changes resulting from this chapter.”

Article 214 § 1

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 217 § 1 reads, in so far as relevant, as follows:

“(...) detainee's correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.”

Article 242 § 5 of reads as follows:

“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.”

(b)  The Rules of Detention on Remand 1998

66.  On 1 September 1998 the Rules of Detention on Remand 1998 entered into force.

§ 36 of the Rules provides:

“The detainee's correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.”

§ 37 provides:

“1.  If the organ at whose disposal [a detainee] remains ceases to censor correspondence, it shall be subject to the supervision or censorship by the prison administration, except for cases referred to in Article 73 of the Code of Criminal Procedure and Articles 102 (11) and 103 of the Code [of Execution of Criminal Sentences].

2.  The correspondence of a detainee shall be supervised by the prison administration when necessary in the interest of protecting social interest, the security of a detention centre or requirements of personal re-education.

3.  The supervision referred to in paragraph 2 shall be executed by controlling the content of the correspondence and acquainting oneself with its wording.

4.  The correspondence referred to in Articles 8 § 3, 102 (11) and 103 § 1 of the Code [of Execution of Criminal Sentences] may be only subjected to the control of its content, which shall take place in the presence of a detainee.”

§ 38 provides:

“1.  Detainee's correspondence shall be censored or seized by the prison administration in the case referred to in Article 105 § 4 of the Code [of Execution of Criminal Sentences].

2.  Censorship shall mean deleting a part of text or making it illegible, whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file.

3.  The decision to censor or to seize correspondence shall be taken by a Governor, who shall inform a detainee about the reasons for censorship or for seizure.

4.  For controlling purposes a copy of the correspondence before it was censored shall be placed in the detainee's personal file; if the detainee consults the file, copies of the correspondence before it was censored and the seized correspondence shall not be made available [to him].”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

67.  The applicant complained that the length of his pre-trial detention was in breach of Article 5 § 3, which in so far as relevant provides:

“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.”

68.  The Government contended that the facts of the case disclosed no breach of that provision.

A.  Period to be taken into consideration

69.  The applicant did not comment on the period to be taken into consideration. The Government submitted that the relevant period began on 13 September 1996 and ended on 4 May 1999.

70.  The Court agrees that the end of the relevant period fell on 4 May 1999, as under its case-law the end of period referred to in Article 5 § 3 is the day on which the charge is determined, even if only by a court of first instance (see the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 23, § 9). However, it considers that the period began on 11 September 1996, when the applicant was taken into custody (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, § 145, ECHR 2000-IV).

71.  The period to be taken into consideration therefore lasted two years, seven months and twenty-two days.

B.  The reasonableness of the length of detention

1.  Arguments before the Court

72.  The applicant agreed that his pre-trial detention was initially justified by reasonable suspicion that he had committed the offence with which he was charged. However, with the lapse of time it could not justify his prolonged detention. The courts relied on the gravity of the charges against the applicant and the evidence of his guilt to prolong his detention. However, these grounds were not “relevant” and “sufficient”. He pointed out that the investigation in his case ended on 27 June 1997 when the prosecution service lodged with the trial court a bill of indictment against him. In spite of this, the case lay dormant for over one year, i.e. until the date of the first hearing on 22 July 1998.

73.  The Government submitted that the applicant's pre-trial detention satisfied the requirements of Article 5 § 3. It was justified by “relevant” and “sufficient” grounds. One of those grounds was the fact that the applicant went into hiding and therefore obstructed criminal proceedings against him pending before the Pruszków District Court. Moreover, he was of no fixed abode and could try to collude with his accomplices who were not arrested because the police could not find them. The charges laid against him carried out a severe penalty.

74.  Furthermore, the Government pointed out that “immediately after the commission of the alleged crime there had been an attempt to contact the victim of rape”. What is more, the applicant tried to smuggle a message out of the prison and tried to send a letter containing threats against one of the prisoners. Finally, the Government observed that domestic courts on twenty‑three occasions issued decisions concerning the applicant's pre‑trial detention and the Supreme Court four times prolonged the detention.

2.  The Court's assessment

(a)  Principles established under the Court's case-law

75.  Under the Court's case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30).

76.  It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention.

77.  The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see the Labita judgment cited above, § 153).

(b)  Application of the principles to the circumstances of the present case

78.  The Court firstly notes that it appears that the parties agree that the applicants pre-trial detention was initially justified by reasonable suspicion that he had committed the offence with which he was charged. It sees no reason to hold otherwise. Moreover, the Court considers that, in the particular circumstances of the instant case, the grounds given by judicial authorities satisfied the requirement of being “relevant” and “sufficient”. It follows that the Court must ascertain whether the competent national authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant (see paragraph 77 above).

79.  In this connection, the Court notes that no hearing took place during a period of almost thirteen months between 27 June 1997, when the bill of indictment was lodged with the trial court and 22 July 1998 (see paragraphs 24-35 above). The Court is not convinced that such a long period without a hearing can be explained by a fact that the applicant on six occasions appeared before the Pruszków District Court in separate criminal proceedings against him. In addition, two days needed by the applicant for consulting a case-file and the necessity to consider his challenge to a prosecutor and applications for release do not justify such a delay. It follows that the domestic authorities did not display “special diligence” in the conduct of the proceedings.

There has therefore been a violation of Article 5 § 3 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

80.  The applicant also complained that the criminal proceedings in his case were not concluded within a reasonable time, contrary to Article 6 § 1 of the Convention, which in so far as relevant provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

81.  The Government contended that the facts of the case disclosed no breach of that provision.

A.  Period to be taken into consideration

82.  The Court notes that the period to be taken into consideration began on 11 September1996, when the applicant was taken into custody and ended on 9 November 1999, when the Warsaw Court of Appeal dismissed his appeal (see paragraphs 10 and 57 above). Accordingly, the proceedings lasted almost three years and two months.

B.  Reasonableness of the length of the proceedings

1.  Arguments before the Court

83.  The applicant submitted that the case was not complex and that he did not contribute to the delay. He also pointed to the period of inactivity of the trial court between 27 June 1997 and 22 July 1998. Furthermore, the applicant contested the Government's explanation that the inactivity resulted from the fact that the applicant on six occasions was brought before the Pruszków District Court. In this connection, he stated that such an explanation was “unacceptable because of a simple reason: the hearings took only six days as the whole year consists of 365 days”.

84.  The Government submitted that the proceedings were concluded within reasonable time. They averred that the length of the proceedings could be explained by the complexity of the case, difficulties in taking evidence from witnesses and the conduct of the applicant. In this respect, the Government pointed out that the trial court could not take evidence from the anonymous witness before 3 November 1998. Another witness could not be found by the police until 12 January 1999, when his dead body was discovered. Furthermore, the Government observed that the applicant on three occasions filed appeals against decisions dismissing his applications for release, despite the fact that such a remedy was not provided by law. Consequently, the case-file had to be transmitted between different courts.

85.  Finally, with respect to the period of inactivity between 27 June 1997 and 22 July 1998, the Government pointed out that during that time the applicant on six occasions was brought before the Pruszków District Court, which conducted separate criminal proceedings against him.

2.  The Court's assessment

86.  The Court recalls its finding that domestic authorities did not display “special diligence” in the conduct of the criminal proceedings against the applicant (see paragraph 79 above). In this connection, it notes that although the overall length of the proceedings may not seem excessive, the period of eighteen months without a hearing in a criminal case shows the lack of diligence required in such cases. It therefore considers that the length of the proceedings assessed from the angle of the “reasonable time” requirement under Article 6 § 1 did not meet that requirement.

There has therefore been a violation of Article 6 § 1.

III.  ALLEGED VIOLATION OF ARTICLES 8 AND 34 OF THE CONVENTION

A.  The monitoring of correspondence

87.  The applicant further complained about a breach of Article 8 (right to respect to correspondence) and Article 34 (effective exercise of the right to file individual applications). Article 8 of the Convention provides, as relevant:

“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.”

88.  The Government contended that the facts of the case disclosed no breach of those provisions.

1.  Arguments before the Court

(a)  Monitoring of the correspondence before 1 September 1998

89.  The applicant submitted that the prosecutor interfered with his correspondence. He referred to the Niedbała judgment, where the Court found a violation of Article 8.

90.  The Government admitted that the prosecutor “had a margin of discretion in deciding whether to censor the correspondence” and “exercised its discretion with reference to a few letters of the applicant”. At the same time, they pointed out that no interference with the text of the letters took place. As the letters of 5 March, 16 May, 3 September 1997 and an undated letter received on 19 March 1997 were only marked with an illegible signature, there was no sufficient evidence of their censorship. The Government also averred that “neither could it be said that a stamp indicating the name of the Public Prosecutor and its illegible signature on the envelope of a letter addressed to the European Commission is a sufficient proof of its censorship”.

91.  The Government reserved their opinion on the alleged breach of Article 8 on account of the censorship of the applicant's correspondence.

(b)  Monitoring of the correspondence since 1 September 1998

92.  The applicant further submitted that the monitoring of the correspondence sent to him by the Court on 23 February 1999 was in breach of Article 8 of the Convention. He pointed out that under Article 103 § 1 of the Code of Execution of Criminal Sentences 1997, which entered into force on 1 September 1998, the prisoner's correspondence should have been delivered to him without delay and was not subject to censorship. Furthermore, contrary to § 37(4) of the Rules of Detention on Remand 1998 the letter of 23 February 1999 was not opened in the applicant's presence.

93.  With respect to the letter of 23 February 1999, the Government averred that the applicant had not submitted “any evidence of the interference into its content”. The fact that an envelope bore a stamp “Censored” did not prove that the correspondence was censored.

2.  The Court's assessment

(a)  Monitoring of the correspondence before 1 September 1998

94.  The Court considers on the evidence before it that the domestic authorities monitored the correspondence listed in points (i), (iv) and (v) in paragraph 58 above. Therefore there was an “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of the applicant's right to respect for his correspondence.

95.  The Court notes that in the judgment of 4 July 2000 in the case of Niedbała v. Poland it found that Polish law concerning the control of correspondence in force before 1 September 1998 did not indicate with reasonable clarity the scope and manner of exercise of discretion conferred on public authorities (see Niedbała v. Poland, no. 27915/95, §§ 81‑82, 4 July 2000).

96.  The Court sees no reason to distinguish the present case from the Niedbała case. It follows that the monitoring of the applicant's correspondence was not “in accordance with the law”.

There has therefore been a breach of Article 8 of the Convention.

(b)  Monitoring of the correspondence since 1 September 1998

(i)  Principles established under the Court's case-law

97.  An “interference by a public authority” with the exercise of the right to respect for his correspondence will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and furthermore is “necessary in a democratic society” in order to achieve them (see, among other authorities, the Labita judgment cited above, § 179).

98.  The expression “in accordance with the law” requires that the interference in question must have some basis in domestic law. A law must be adequately accessible: the citizen must be able to have an indication that is adequate, in the circumstances, of the legal rules applicable to a given case. Moreover, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen 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. Finally, a law which confers discretion must indicate the scope of that discretion. However, the Court has recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity (see, among other authorities, Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, p. 33, §§ 86-88).

(ii)  Application of the principles to the circumstances of the present case

(α)  Existence of an interference

99.  The Court notes that an envelope mailed to the applicant on 23 February 1999 bears a stamp: “Censored on, signature” (Ocenzurowano dn. podpis), a hand-written date: 5 March and an illegible signature (see paragraph 58 above). It considers that even if there is no separate stamp on the letter as such, there is, in the particular circumstances of the case, a reasonable likelihood that the envelope was opened by the domestic authorities. In coming to such a conclusion, the Court takes into account that, in the Polish language, the word ocenzurowano means that a competent authority, after having controlled the content of a particular communication, decides to allow its delivery or expedition. Consequently, as long as the domestic authorities continue the practice of marking the detainees' letters with a simple ocenzurowano stamp, the Court would have no alternative but to presume that those letters have been opened and their contents read. It is the matter for the domestic authorities, to elaborate a procedure of giving clearance for delivery and expedition of letters to and from the European Court of Human Rights in a way clearly indicating that neither the relevant envelopes have been opened nor the letters have been read. The Court would also point out that the risk of such a stamp being forged by prisoners in order to fabricate evidence in the Strasbourg proceedings is so negligible that it must be discounted. Had domestic authorities been concerned about the risk of fabrication, they could have avoided it by adding to the register of incoming mail information about its condition (see, mutatis mutandis, Campbell v. the United Kingdom, judgment of 28 February 1992, Series A no. 233, p. 22, § 62; Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1016, § 48).

100.  It follows that the monitoring of the Court's correspondence addressed to the applicant constituted an “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of the applicant's right to respect for his correspondence.

(β)  Whether the interference was “in accordance with the law”

101.  The Court notes that the impugned interference was based on the provisions of the Code of Execution of Criminal Sentences 1997 and the Rules of Detention on Remand 1998 (see paragraphs 65-66 above). It considers that these provisions were adequately accessible. Furthermore, bearing in mind impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity, the Court accepts that the provisions were formulated with sufficient precision and indicated the scope of discretion conferred.

102.  The Court further notes that § 37 (4) of the Rules of Detention on Remand 1998 requires that the inspection of detainee's correspondence take place in his presence (see paragraph 66 above). In the present case the Government failed to present any evidence rebutting the applicant's claim that the opening of the Court's letter of 23 February 1999 had not taken place in his presence. It follows that the opening of the letter was not “in accordance with the law”.

There has therefore been a breach of Article 8 of the Convention.

103.  As the Court has found that there has been a breach of Article 8 on account of monitoring of the applicant's correspondence, it does not consider it necessary to examine the applicant's assertion that there was also an interference with the exercise of his right of individual petition pursuant to Article 34 of the Convention (see, mutatis mutandis, Foxley v the United Kingdom, no. 33274/96, § 47, 20 June 2000).

B.  The delaying of correspondence

104.  The applicant further complained under Articles 8 and 34 about the delaying of his correspondence.

105.  The Government disagreed with the applicant. They submitted details of the movement of the applicant's correspondence based on prison records. The Government pointed out that the records showed that the applicant's letters had never been delayed by domestic authorities.

106.  The Court considers that the evidence before it shows that the applicant's correspondence was not delayed. It follows that there has been no violation of Articles 8 and 34 on that account.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

107.  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

108.  The applicant claimed 50,000 Polish zlotys for non‑pecuniary damage.

109.  The Government averred that the applicant's claim was inordinate. They asked the Court to rule that a finding of a violation of the Convention constituted in itself sufficient just satisfaction. Alternatively, the Government requested that the award be made on the basis of case-law in similar cases with reference to domestic economic conditions.

110.  The Court considers that, in the circumstances of this particular case and deciding on an equitable basis, the applicant should be awarded the sum of 2,000 euros (EUR) for non-pecuniary damage.

B.  Costs and expenses

111.  The applicant also claimed EUR 2,000 by way of legal costs and expenses incurred in the preparation and defence of his case before the Court. This included 10 hours' work at an hourly rate of EUR 200.

112.  The Government asked the Court to award the costs and expenses only in so far as they have been actually and necessarily incurred and were reasonable as to quantum.

113.  The Court notes that it was not considered necessary to invite the parties to an oral hearing in Strasbourg. Having regard to the particular circumstances of the present case, it awards the applicant EUR 1,500 together with any value‑added tax that may be chargeable, less EUR 790 already paid by way of legal aid.

C.  Default interest

114.  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

1.  Holds that there has been a violation of Article 5 § 3 of the Convention;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 8 of the Convention as regards the monitoring of the applicant's correspondence;

4.   Holds that it is unnecessary to examine the applicant's complaint that the monitoring of his correspondence constituted an alleged interference with the exercise of his right of individual petition provided in Article 34 of the Convention;

5.  Holds that there has been no violation of Articles 8 and 34 of the Convention as regards the alleged delaying of the applicant's correspondence;

6.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, and EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, less EUR 790 (seven hundred and ninety euros), 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

7.  Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 2 December 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Michael O'BoyleMatti Pellonpää
RegistrarPresident

 

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