FIRST SECTION
DECISION
Application no. 62321/13
Michał MARZECKI
against Poland
The European Court of Human Rights (First Section), sitting on 12 February 2019 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 3 September 2013,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Michał Marzecki, is a Polish national, who was born in 1981 and is currently detained in Wrocław Prison.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 10 April 2008 a police station in Gdynia (Komisariat Policji) commenced a search for the applicant pursuant to wanted notices issued by the Mińsk Mazowiecki District Court (Sąd Rejonowy) and three other courts.
4. On 24 and 25 November 2008 the wanted notices for the applicant including his photograph and name were published on the websites of the Gdynia police headquarters, a local newspaper Gazeta Świętojańska and on the Internet portal, .
5. On 16 December 2008 the applicant was arrested and detained in Gdansk Remand Centre.
6. On 18 December 2008 the courts revoked the wanted notices.
7. In July 2010 the applicant’s father successfully requested the Gdynia police headquarters to remove the wanted notice from its website as well as from other websites.
8. On 6 August 2010 the applicant lodged a claim against the State Treasury – the head authority of the Gdynia police station – with the Gdańsk Regional Court (Sąd Okręgowy) for protection of his personal rights. He sought an order requiring the defendant to publish an official apology on the police website and awarding him compensation for non-pecuniary damage. The applicant argued that the failure to remove the wanted notice following his arrest had been unjustified and had exposed him and his family to ridicule.
9. On 27 April 2012 the Gdańsk Regional Court dismissed the applicant’s claim. It held that the wanted notice had been issued in compliance with Articles 279 and 280 of the Code of Criminal Procedure. The applicant did not challenge the fact that he had committed the offences in respect of which he had been wanted by the police or that he had gone into hiding. Moreover, the court held that even though the wanted notices for the applicant had remained on the Internet sites after his arrest, potential readers must have regarded them as archived information because they had not been updated. Additionally, the court underlined that the failure to remove the wanted notice after the applicant’s arrest had not been intentional but had resulted from non-compliance with police internal procedures. It held, lastly, that the failure to remove the wanted notice had not infringed his personal rights.
10. The applicant lodged an appeal against the judgment and requested the appellate court to uphold his claims.
11. On 5 December 2012 the Gdańsk Court of Appeal (Sąd Apelacyjny) amended the first-instance court’s judgment and ordered the head of the Gdynia police headquarters to publish an apology to the applicant on the police website. It agreed with the facts established by the lower court. However, it found that failure to remove the wanted notice after 18 December 2008 had been unlawful and as such had infringed the applicant’s personal rights. The court noted that the officers of the Gdynia police headquarters had failed to remove the wanted notice from the Internet site even after having been notified by the courts on 18 December 2008 that the wanted notices had been revoked. Regarding the applicant’s claim for non-pecuniary damages, the court found it unjustified. It held that the applicant had failed to prove that he had suffered non-pecuniary damage resulting from the failure to remove the wanted notice to an extent justifying financial compensation. In that connection it stated that publication of the wanted notice until July 2010 could not have influenced the social perception of the applicant given that he was serving a prison sentence which was due to come to an end in 2025.
12. The text of the apology to be published by the head of the Gdynia police headquarters on the police website read as follows:
“The head of the Gdynia police headquarters declares that the failure to remove the wanted notice for the applicant from the police website after 18 December 2008 was unlawful and infringed his personal rights, image and dignity, for which the head offers his apology to the applicant”.
13. On 15 November 2013 the Supreme Court refused to entertain a cassation appeal lodged by the applicant’s lawyer.
B. Relevant domestic law and practice
14. Article 23 of the Civil Code sets out a non-exhaustive list of “personal rights” (dobra osobiste) as follows:
“An individual’s personal rights, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, the inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
15. Article 24 § 1 of the Civil Code reads:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of an infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to eliminate the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask a court to award an appropriate sum for the benefit of a specific public interest.”
16. Article 448 of the Civil Code provides:
“The court may grant anyone whose personal rights have been infringed an appropriate sum as pecuniary compensation for any non-material damage (krzywda) suffered. Alternatively, the person concerned, irrespective of a claim for any other relief that may be necessary to eliminate the consequences of the infringement, may ask the court to award an appropriate sum for the benefit of a specific public interest ...”
COMPLAINT
17. The applicant complained under Article 8 of the Convention that the failure to remove the wanted notice between 18 December 2008 and July 2010 had violated his right to respect for his private life.
THE LAW
18. The applicant complained that the failure to remove the wanted notice had breached Article 8 of the Convention. This provision reads, in so far as relevant:
“1. Everyone has the right to respect for his private and family life, ...
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.”
19. The Court considers that the measure complained of amounted to interference with the applicant’s right to respect for his private life. However, it does not have to examine the justification for that interference because, in the circumstances of the case, the Court has to first determine whether the applicant can still claim to be a victim of the alleged violation of Article 8.
20. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany, 15 July 1982, §§ 69 et seq, Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996 III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 VI).
21. In the present case the Court notes that the Gdańsk Court of Appeal, in its judgment of 5 December 2012, expressly stated that the applicant’s personal rights, namely his image and dignity, had been infringed as a result of the failure to remove the wanted notice from the police headquarters’ website after 18 December 2008 (see paragraph 11 above). Accordingly, the Court finds that the domestic authority acknowledged in substance the breach of the applicant’s rights under Article 8 of the Convention.
22. The nature of the redress which is appropriate and sufficient to remedy a breach of a Convention right at the national level will depend on the circumstances of the case, having regard, in particular, to the nature of the Convention violation at issue (see M.A. v. the United Kingdom (dec.), no. 35242/04, ECHR 2005 VIII; Niedźwiedź v. Poland (dec.), 1345/06, 11 March 2008; and Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010 ). Furthermore, an applicant may lose his victim status even when the authorities provide no pecuniary award for a breach of his Convention rights (see Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005 in the context of an alleged breach of the principle of the presumption of innocence). The Court has also held that States have a margin of appreciation in deciding how to effectively protect the right to privacy, and that a victim of a violation cannot expect that if he or she does not receive a certain amount of pecuniary compensation this will entail a breach of Article 8 (see, mutatis mutandis, Kahn v. Germany, no. 16313/10, § 75, 17 March 2016).
23. With regard to the redress offered to the applicant, the Court notes that the Court of Appeal ordered the head of the Gdynia police headquarters to publish an apology on the police website from which the wanted notice had not been removed. The Court is satisfied that the domestic court was aware of the significance which publication to the general public on the Internet could have for the effective protection of individual rights.
24. The Court notes that the domestic court refused to award non-pecuniary damages to the applicant on the grounds that he had failed to prove that he had suffered significant damage as a result of the failure to remove the wanted notice. The Court observes that Article 448 of the Civil Code provides that pecuniary compensation for non-pecuniary damage is discretionary and depends on all the pertinent circumstances, such as the degree of severity of the harm, the nature of the breach of the applicant’s rights and the adverse consequences of any distress caused by the breach.
25. The Court observes, moreover, that the facts of the present case do not lead to the conclusion that the authorities deliberately omitted to remove the wanted notice for the applicant after 18 December 2008. The breach of the right to respect for the applicant’s private life resulted rather from the police officers’ failure to comply with internal procedures (see, mutatis mutandis, Armstrong v. the United Kingdom (dec.), no. 48521/99, 25 September 2001 in respect of inadvertent interferences with the prisoner’s right to respect for his correspondence). Having regard to the reasons given by the Court of Appeal, the Court finds that the redress offered to the applicant was appropriate and sufficient.
26. In these circumstances, the Court concludes that the applicant can no longer claim to be a victim of the alleged violation of Article 8 of the Convention within the meaning of Article 34 of the Convention.
27. It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 March 2019.
Renata DegenerKsenija Turković
Deputy RegistrarPresident
Full & Egal Universal Law Academy