EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 27506/95

Adam Owczarzak

against

Poland

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

27506/95 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 ‑ 15) ................................................ 1

A. The application

(paras. 2 ‑ 4) ........................................... 1

B. The proceedings

(paras. 5 ‑ 10) .......................................... 1

C. The present Report

(paras. 11 ‑ 15) ......................................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 ‑ 28) ............................................... 3

A. The particular circumstances of the case

(paras. 16 ‑ 26) ......................................... 3

B. Relevant domestic law

(paras. 27 ‑ 28) ......................................... 4

III. OPINION OF THE COMMISSION

(paras. 29-48) ....................................................... 5

A. Complaint declared admissible

(para. 29) ..................................................... 5

B. Points at issue

(para. 30) ..................................................... 5

C. As regards Article 8 of the Convention

(paras. 31-41) ................................................. 5

CONCLUSION

(para. 42) ..................................................... 7

D. As regards Article 25 of the Convention

(paras. 43-45) ................................................. 7

CONCLUSION

(para. 46) ..................................................... 8

E. Recapitulation

(paras. 47-48) ................................................. 8

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION .................... 9

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Polish citizen, born in 1972, residing in Gryfice .

3 . The application is directed against Poland.  The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.

4 . The case concerns the stopping of the applicant's letter to the Commission.  It raises issues under Articles 8 and 25 of the Convention.

B. The proceedings

5 . The application was introduced on 7 February 1994 and registered on 2 June 1995.

6 .  On 26 February 1997 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations  on the admissibility and merits of the applicant's complaints under Articles 5 para. 3, 6, 8 and 25 of the Convention.

7 . The Government's observations were submitted on 2 July 1997.  The applicant replied on 27 August 1997.

8 . On 3 December 1997 the Commission declared admissible the applicant's complaint under Article 8 of the Convention.  It further decided to pursue the examination of whether the effective exercise of the applicant's right under Article 25 of the Convention was hindered.  It declared inadmissible the remainder of the application.

9 . The text of the Commission's decision on admissibility was sent to the parties on 16 December 1997 and they were invited to submit such further information or observations on the merits as they wished.

10 . After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11 . The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J. ‑ C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12 . The text of this Report was adopted on 9 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13 . The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14 . The Commission's decision on the admissibility of the application is annexed hereto.

15 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16 . On 8 November 1993 the applicant was arrested by the police. On 10 November 1993 the Gryfice District Prosecutor ( Prokurator Rejonowy ) detained the applicant on remand on suspicion of aggravated theft, considering that the offence concerned was dangerous and the applicant's detention was necessary to guarantee the proper conduct of the investigations.

17 . On 28 December 1993 the Gryfice District Prosecutor lodged an indictment against the applicant with the Gryfice District Court (Sąd Rejonowy ).  The applicant was charged with aggravated theft.

18 . On 8 February 1994 the Gryfice District Court, in other criminal proceedings, convicted the applicant of breaking and entering and theft, and sentenced him to two years and three months' imprisonment.

19 . On 12 April 1994 the applicant handed over a letter addressed to the Commission to the prison authorities for it to be sent.  The letter was subsequently transmitted to the court before which the case was pending.

20 . In a letter of 11 May 1994 the Gryfice District Court informed the applicant that an application to the Commission could be submitted only after domestic remedies had been exhausted.  As his case was still pending before the first-instance court and no final judgment had been pronounced, his letter to the Commission had been included in the case-file.  The letter never reached the Commission.

21 . On 14 June 1994 the applicant sent, apparently through unofficial channels, the Commission a copy of his letter of 12 April 1994, and also informed the Commission of the fact that his previous letter had been intercepted and included in the case-file.

22 . On 21 June 1994 the Szczecin Regional Court (Sąd Wojewódzki ) upheld the judgment of 8 February 1994.

23 . On 6 September 1994 the execution of the prison sentence imposed by the judgment of 8 February 1994 was ordered.

24 . Hearings were held before the Gryfice District Court on 28 February 1995, 7 and 28 March 1995 and 25 April 1995.  The court heard evidence from nine witnesses.  At the hearing on 25 April 1995 the court heard testimony from R.Z.

25 . On 25 April 1995 the Gryfice District Court convicted the applicant of aggravated theft and sentenced him to one year and six months' imprisonment and a fine.  The applicant filed an appeal.

26 . On 5 September 1995 the Szczecin Regional Court upheld the judgment.

B. Relevant domestic law

27 . Pursuant to Article 217 para. 3 of the Code of Criminal Procedure as applicable at the material time, a first-instance court shall order detention on remand, if a prison sentence imposed by that court for a premeditated offence exceeds two years.  Under the provisions of that Code, detention following conviction by a first-instance court is regarded as detention on remand.

28 .    The rights of persons detained on remand as regards their correspondence are set out in Rule 33 of the Rules on Detention on Remand.  They provide that the correspondence of persons detained on remand is subject to censorship by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

29 . The Commission has declared admissible the applicant's complaint that the court intercepted the applicant's letter to the Commission and included it in his case-file.

B. Points at issue

30 . Accordingly, the issues to be determined by the Commission are:

- whether there has been a violation of Article 8 of the Convention, and

- whether the effective exercise of the applicant's right under Article 25 of the Convention has been hindered.

C. As regards Article 8 of the Convention

31 . Article 8 of the Convention, insofar as relevant, reads:

"1. Everyone has the right to respect for his ... correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

32 . The applicant complains that his letter to the Commission of 12 April 1994 was intercepted by the Gryfice District Court and included in his case-file.  He contests the Government's submission that the court, in its letter of 11 May 1994 in which it informed him that his letter had been intercepted, stated that the latter had "temporarily" been included in his case-file.  He submits that he was not informed either of the fact that an internal enquiry had been held concerning the interception of the letter, or of its results.  He emphasises that the District Court had no right to intercept and stop his letter.

33 . The Government submit that the applicant was informed by letter of 11 May 1994 that his letter to the Commission had temporarily been included in his case-file.  They further state that an internal enquiry into the applicant's allegations was conducted.

34 . The Commission recalls that the practice of opening letters from the Commission, whether or not they are read, amounts to an interference with an applicant's right to respect for correspondence which falls to be justified under Article 8 para. 2 of the Convention (Eur. Court HR, Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233, p. 21, para. 57).  Consequently, the fact that the applicant's letter was intercepted and stopped, must a fortiori be regarded as an interference with the applicant's right protected by this provision.

35 . The Commission observes that it is not in dispute between the parties that the applicant's letter of 12 April 1994 was transmitted to the court before which his criminal case was pending.  Neither is it disputed that the court decided to include this letter in the case-file of the criminal proceedings and informed the applicant accordingly, adding that an application to the Commission could be submitted only after domestic remedies had been exhausted.  The court further stated that, given that there had been no final judgment in the applicant's case, his letter would not be forwarded to the Commission.

36 . The Commission further notes the Government's submission that it was stated in the court's above-mentioned letter of 11 May 1994 that the applicant's letter had been "temporarily" included in the case-file.  The Commission observes that, in fact, no such statement is to be found in the relevant letter.  The Commission further emphasises that the applicant's letter of 12 April 1994 never reached the Commission.  Accordingly, the Commission considers that the applicant's right to respect for his correspondence, guaranteed by Article 8 para. 1 of the Convention, was interfered with.

37 . The Commission must therefore examine whether the interference satisfied the conditions set out in para. 2 of Article 8 of the Convention.  In particular, the measure at issue must be "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention.  According to the Convention organs' case-law, the term "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention requires in particular that the contested measure should have a basis in domestic law (see Campbell v. the United Kingdom, op. cit., p. 17, paras. 36 ‑ 37).  In this respect the Commission notes Section 33 of the Rules on Detention on Remand which provides that the correspondence of persons detained on remand is subject to censorship by the authority conducting the criminal proceedings (para. 28 above).  Therefore the Commission considers that the interference concerned can be regarded as "prescribed by law" only insofar as the opening and reading of the applicant's letter to the Commission is concerned, but that it lacked any legal basis as regards the stopping of his letter. This argument is reinforced by the fact that it was not argued by the court that it had stopped the applicant's letter on the ground that it could jeopardise the proper conduct of the criminal proceedings in any manner.

38 . As regards "legitimate aim" within the meaning of Article 8 para. 2 of the Convention, the Commission first observes that the Government do not address this issue.  However, the Commission sees no reason to doubt that the letter was intercepted for "the prevention of disorder or crime".  However, the Commission  is of the view that the stopping of the letter cannot be regarded as pursuing this legitimate aim. In any event, even assuming that the interference complained of was "prescribed by law" and pursued a "legitimate aim", it cannot be regarded as "necessary in a democratic society" for the following reasons.

39 .   The Commission recalls that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is "necessary in a democratic society" regard may be had to the State's margin of appreciation (see Campbell v. the United Kingdom, op. cit., p. 18, para. 44).

40 . The Commission further recalls that the control by prison authorities of a prisoner's correspondence with the European Commission of Human Rights may raise an issue under Article 8 of the Convention.  Thus, it is of importance to respect the confidentiality of mail to the Commission since it may concern allegations against the prison authorities or prison officials.  The opening of letters from the Commission undoubtedly gives rise to the possibility that they will be read and may also conceivably, on occasions, create the risk of reprisals by the prison staff against the prisoner concerned.  Moreover, there is no compelling reason why such correspondence should be opened (see Campbell v. the United Kingdom, op. cit., p. 22, para. 62).

41 . The Commission observes in the present case that no arguments were advanced either by the Gryfice District Court in its letter of 12 May 1994, or by the Government, in order to justify the interference with the applicant's correspondence with the Commission.  The Commission notes that the court, when stopping the applicant's letter, must have relied on its own interpretation of the Convention.  The Commission considers that it is not for the court before which a criminal case is pending to decide whether an accused should be allowed to submit an application to the Commission.  Accordingly, in the circumstances of the present case, the Commission finds that the intercepting and stopping of the applicant's letter to the Commission cannot be regarded as "necessary in a democratic society" within the meaning of Article 8 para. 2 of the Convention.

CONCLUSION

42 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention.

D. As regards Article 25 of the Convention

43 . The Commission has also considered the application under Article 25 of the Convention.

44 . Article 25 of the Convention states:

"1.The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-              governmental organisation or group of individuals claiming to be              the victim of a violation by one of the High Contracting Parties              of the rights set forth in this Convention, provided that the              High Contracting Party against which the complaint has been              lodged has declared that it recognises the competence of the              Commission to receive such petitions.  Those of the High              Contracting Parties who have made such a declaration undertake              not to hinder in any way the effective exercise of this right."

45 . The Commission notes that the interception and stopping of the applicant's letter to the Commission has been found to be in violation of Article 8 of the Convention.  However, Article 25 of the Convention relates to the issue of whether the applicant was hindered in the effective exercise of his right of individual petition.  The Commission observes in this respect that it was only the applicant's letter of 12 April 1994 which was stopped.  The applicant sent a further letter to the Commission, apparently through unofficial channels, on 14 June 1994.  All his subsequent letters to the Commission reached the Secretariat of the Commission with no delays.  It is not alleged that these letters were opened or read.  Likewise, it is not alleged that any of the letters of the Commission's Secretariat to the applicant were tampered with.  The Commission concludes that the applicant has not been hindered in his correspondence with the Commission.

CONCLUSION

46 . The Commission concludes, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 of the Convention.

E. Recapitulation

47 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention (para. 42).

48 . The Commission concludes, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 of the Convention (para. 46).

   M.-T. SCHOEPFER                    J.-C. GEUS

      Secretary                                  President

to the Second Chamber                       of the Second Chamber