FOURTH SECTION
DECISION
Application no. 35819/06
by Grzegorz GRZESIKIEWICZ
against Poland
The European Court of Human Rights (Fourth Section), sitting on 10 May 2011 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Sverre Erik Jebens,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 26 July 2006,
Having regard to the declaration submitted by the respondent Government on 17 November 2010 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Grzegorz Grzesikiewicz, is a Polish national who was born in 1974 and lives in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. First set of criminal proceedings
On 18 December 2001 the applicant was arrested by the police. On 20 December 2001 the Warsaw District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had stolen a Toyota Land Cruiser car as a member of an organised criminal gang.
The applicant’s pre-trial detention was extended on several occasions. The applicant appealed against some of those decisions and applied to be released from detention, but to no avail.
On 18 December 2004 the applicant was convicted of, inter alia, numerous counts of car robberies, illegal possession of arms and leading an organised criminal group. He appealed against the judgment.
On 22 November 2006 the Warsaw Regional Court (Sąd Okręgowy) upheld the first instance judgment.
2. Second set of criminal proceedings
On 3 February 2004 the Warsaw District Court decided to place the applicant in pre-trial detention in the course of a second set of criminal proceedings against him. The applicant was suspected of having stolen several cars as a member of an organised criminal group. The applicant’s detention was subsequently extended on several occasions.
On 31 January 2007 the Warsaw District Court convicted the applicant as charged.
On his appeal, on 19 March 2008 the Regional Court quashed the first-instance judgment and remitted the case. The case was subsequently transferred to the Warsaw Regional Court as the court of first instance. The proceedings are still pending.
Meanwhile, the applicant’s detention was lifted and he terminated serving his sentence ordered in the first set of criminal proceedings.
On 19 June 2009 the applicant was set free.
3. Monitoring of the applicant’s correspondence
At the time of lodging his application with the Court the applicant had been detained in the course of criminal proceedings against him.
On 31 August 2006 the Registry of the Court received the applicant’s first letter. The envelope had been sealed with adhesive tape. It bears a handwritten note “contents checked on 9 August 2006” (sprawdzono zawartość) and an illegible signature.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning the censorship of prisoners’ correspondence are set out in the Court’s judgments in the cases of Mocny v. Poland (dec.), no. 47672/09, 30 November 2010 and Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007.
COMPLAINTS
1. The applicant claimed that the length of his pre-trial detention was excessive.
2. The applicant further submitted that for a period of six months following 18 December 2001 he had not been allowed to be visited by his wife in prison. In addition, when he was finally allowed to see his wife, those visits were always supervised.
3. In respect of the monitoring of the applicant’s correspondence, the Court raised ex officio an issue of a possible breach of Article 8 of the Convention.
THE LAW
A. Monitoring of the applicant’s correspondence with the Court
In respect of the monitoring of the applicant’s correspondence, the Court raised ex officio an issue of a possible breach of Article 8 of the Convention. This provision, in so far as relevant, provides as follows:
Article 8
“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.”
By letter dated 17 November 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“...the Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the infringement of the right guaranteed by Article 8 of the Convention due to monitoring of the applicant’s correspondence.
In these circumstances and having regard to the particular facts of the case, the Government are prepared to pay to the applicant the sum of PLN 3,000, which they consider to be reasonable in the light of the Court’s case law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus [the] three percentage points.
The Government would suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention. ...”
In a letter of 7 December 2010 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low. He requested that the examination of his application be continued.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints under Article 8 of the Convention about the monitoring of the prisoner’s correspondence (see, for example, among many other authorities, Matwiejczuk v. Poland, no. 37641/97, 2 December 2003, Pisk-Piskowski v. Poland, no. 92/03, 14 June 2005, Michta v. Poland, no. 13425/02, 4 May 2006, Kliza v. Poland, cited above, Friedensberg v. Poland, no. 44025/08, 27 April 2010, and Mocny v. Poland (dec.), cited above).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. Remaining complaints
The applicant complained, in substance under Article 5 § 3 of the Convention, that the length of his pre-trial detention was excessive.
He further submitted that for a period of six months following 18 December 2001, he had not been allowed to be visited by his wife in prison. The applicant claimed that when he was finally allowed to see his wife, those visits were always supervised.
As to the complaint under Article 5 § 3 of the Convention, the Court notes that the applicant was detained on remand in two different sets of criminal proceedings against him.
With regard to the first set of proceedings, the applicant’s detention started on 18 December 2001, when he was arrested on suspicion of having stolen a car as a member of an organised criminal group. As to the second set of criminal proceedings, the applicant’s pre-trial detention started on 3 February 2004, when he was arrested on suspicion of having stolen several Toyota cars acting as a member of an organised criminal group.
On 18 December 2004 the Warsaw District Court, in the first set of proceedings, convicted the applicant of numerous counts of car robberies, illegal possession of arms and leading an organised criminal group. He was sentenced to 12 years’ imprisonment.
As from that date until his release on 19 June 2009, the applicant 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).
The Court considers that the six-month time-limit set down by Article 35 § 1 of the Convention began to run on 18 December 2004, being the end of the situation of which the applicant complains (see Andrzej Graban v. Poland (dec.), no. 13851/02, 5 July 2005). Since the application was introduced on 26 July 2006, it has been presented more than six months after the date on which relevant period to be considered under Article 5 § 3 came to an end.
It follows that this complaint has been introduced outside the 6-month time-limit and must therefore be rejected in compliance with Article 35 §§ 1 and 4 of the Convention.
As to the complaint concerning the visits of the applicant’s wife in prison, the applicant has failed to substantiate his allegations.
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.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy