Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22558/93

by J. M.

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 29 June 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 June 1993 by

J.M. against Poland and registered on 31 August 1993 under file

No. 22558/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows:

The applicant, a Polish citizen, born in 1956, is currently

serving a prison sentence in Plock prison in Poland.

On 21 December 1984 the Olsztyn Regional Court sentenced the

applicant to eight years' imprisonment on account of robbery. On

5 August 1985, upon the Public Prosecutor's appeal, the Supreme Court

increased the sentence to 12 years. In 1991, the applicant was

conditionally released. In 1992 he was arrested again on suspicion of

robbery.

On 10 February 1993 the Olsztyn Regional Court convicted the

applicant of robbery and sentenced him to six years' imprisonment.

On 8 November 1993 the Minister of Justice refused leave for an

extraordinary appeal against the judgment of 1985 on the grounds that

this judgment was in conformity with the law.

According to Article 30 para. 2 of the Rules of Execution of

Sentences of Imprisonment, the prisoner may correspond with foreign

institutions and organisations only with a permission of a prison

governor.

According to Article 31 para. 1 the correspondence of a prisoner,

with the exception of letters to and from legislative and

administrative authorities, the judiciary and the police and other

state authorities, shall be subjected to censorship by the prison

governor.

PROCEEDINGS BEFORE THE COMMISSION

On 7 May 1993 the applicant wrote a letter to the Commission in

which he complained about his conviction in 1985.

Subsequently the applicant sent to the Commission letters dated

24 June, 10 July, 25 July, 27 July 1993 and two undated ones. The

Secretariat of the Commission replied to his letters on 17 June and

22 July.

The application was registered on 31 August 1993.

On 22 September 1993 the applicant informed the Secretariat that

the prison authorities had opened a letter to him from the Commission.

Subsequently the applicant wrote 9 letters to the Commission,

submitting new information and complaints. He received altogether 10

replies from the Secretariat of the Commission.

COMPLAINTS

The applicant complains that the sentence imposed on him in 1984

was increased on appeal. He also submits that he was maltreated by the

police; that the authorities were biased against him; and that the

police intimidated witnesses. He relies on Articles 3, 6, 7, 10 and

14 of the Convention.

In respect of his conviction of 10 February 1993 the applicant

complains inter alia of bias of the authorities, of a breach of defence

rights and he maintains that he is actually not criminally responsible

on psychiatric grounds. The applicant also complains that the Minister

of Justice refused leave for an extraordinary appeal. The applicant

relies on Articles 3, 6 paras. 2 and 3, subparas. (a), (b) and (d), 13

and 14 of the Convention.

The applicant also complains under Article 8 of the Convention

that the prison administration opened a letter to him from the

Commission.

THE LAW

1. The applicant raises various complaints concerning the fairness

and the outcome of the two sets of criminal proceedings against him,

which resulted in two convictions, one on 5 August 1985 and the other

on 10 February 1993.

The Commission observes that these complaints relate to the

period prior to 1 May 1993. However, the Convention only governs, for

each Contracting Party, facts subsequent to its entry into force with

respect to that Party. Poland recognised the competence of the

Commission to receive individual applications "from any person,

non-governmental organisation or group of individuals claiming to be

a victim of a violation by Poland of the rights recognised in the

Convention through any act, decision or event occurring after

30 April 1993". It follows that this part of the application is

outside the competence ratione temporis of the Commission and therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

2. Insofar as the applicant complains of a refusal of leave for an

extraordinary appeal against the judgment in 1985, the Commission notes

that the Convention does not guarantee a right to institute

extraordinary appeal proceedings. It follows that this complaint is

incompatible ratione materiae with the provisions of the Convention

within the meaning of Article 27 para. 2 (Art. 27-2).

3. The applicant also complains under Article 8 (Art. 8) of the

Convention that the prison authorities opened a letter from the

Commission to him.

Article 8 (Art. 8) of the Convention, insofar as relevant, reads:

"1. Everyone has the right to respect for his private...life,

... and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

According to the Convention organs' case-law, the control by

prison authorities of a prisoner's correspondence with the European

Commission of Human Rights may raise an issue under Article 8 (Art. 8)

of the Convention. Thus, "it is of importance to respect the

confidentiality of mail from 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" (see Eur. Court H.R., Campbell judgment of

25 March 1992, Series A no.233, para. 62).

In the present case, however, even assuming that the applicant

has complied with the requirement as to the exhaustion of domestic

remedies, he has failed sufficiently to substantiate this complaint.

Thus, he did not indicate which of the ten letters from the Commission

to him was opened. He also did not provide any information as to when

this was supposed to have happened or any other details concerning the

circumstances of the incident. This complaint is therefore manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

The Commission has examined this complaint also under Article 25

para. 1 (Art. 25-1) of the Convention which 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."

The Commission notes that the applicant sent 16 letters to the

Commission and has apparently received all the letters which the

Commission sent to him in reply. There is also no indication that the

letter which was opened was read or delayed. As a result the

Commission considers that the applicant has not been hindered in the

effective exercise of the right to lodge an application as guaranteed

in Article 25 para. 1 (Art. 25-1) in fine of the Convention.

For these reasons, the Commission, unanimously

DECLARES the application inadmissible; and by a majority

DECIDES to take no further action in respect of the alleged

interference with the effective exercise of the right of

individual petition.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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J.M. v. POLAND

J.M. v. POLAND

LEXI