FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4612/03 by Andrzej OTOMAŃSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 16 October 2007 as a Chamber composed of:

Mr J. Casadevall , President , Mr G. Bonello , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 13 January 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applican t, Mr Andrzej Otomański, is a Polish national who was born in 1956 and presently is detained in Rawicz Prison , Poland . The Polish Government were represented by their Agent, Mr J. 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. The criminal proceedings

On 6 November 1997 the applicant, who was a police officer, was arrested by the police and detained on remand on a charge of murder.

On 4 August 2000 the Poznań Regional Court ( Sąd Okręgowy ) convicted the applicant as charged and sentenced him to 25 years ’ imprisonment.

The applicant appealed.

On 3 July 2001 the Poznań Court of Appeal ( Sąd Apelacyjny ) upheld the impugned judgment.

On 3 September 2002 the Supreme Court ( SÄ…d Najwyższy ) dismissed the applicant ’ s cassation appeal as being manifestly ill ‑ founded.

2. The interference with the applicant ’ s correspondence

The applicant submitted copies of envelopes addressed to the Rawicz Prison Governor ( Dyrektor Zakładu Karnego, Rawicz ) but which, apparently, contained letters concerning official correspondence in the applicant ’ s cases pending before the domestic courts.

Two envelopes from the Poznan Court of Appeal ( Sąd Apelacyjny w Poznaniu ) concerning cases no I AK 521/01 and IIWKK 180/01: posted on 16 October 2001 and delivered to the Rawicz Prison on 17 October 2001; posted on 25 October 2001 and delivered to the Rawicz Prison on 26 October 2001. Both envelopes also bear a handwritten note: “ Otomański ”. An envelope from the Supreme Court in Warsaw , Criminal Chamber ( Sąd Najwyższy, Izba Karna, Warszawa ) concerning case no. VKK 15/02 (the applicant ’ s cassation proceedings) posted on 23 July 2002 and delivered to the Rawicz Prison on 25 July 2002.

An envelope from the Poznań Court of Appeal concerning case no. I AKZ 656/02 sent on 24 July 2002 and delivered to the Rawicz Prison on 26 July 2002. An envelope from the Poznań Court of Appeal concerning case no. IIAKZ 901/02 sent on 10 October 2002 and delivered to the Rawicz Prison on 14 October 2002.

An envelope from the Poznan Court of Appeal concerning case no. IIAKZ 446/03 sent on 14 May 2003 and delivered to the Rawicz Prison on 16 May 2003.

The following envelopes from the Poznan Regional Court ( Sąd Okręgowy w Poznaniu ) and concerning proceedings no. IIIK 248/01: posted on 27 February 2003; posted on 10 March 2003; posted on 20 March 2003 and delivered to the Rawicz Prison on 24 March 2003; posted on 22 April 2003 and delivered to the Rawicz Prison on 24 April 2003.

B. Relevant domestic law

Article 102 §11 of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) of 6 June 1997 (“the 1997 Code”) provides that convicted persons are entitled to uncensored correspondence with the judicial authorities and other State authorities.

Article 242 § 5 of the 1997 Code reads as follows:

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

COMPLAINTS

1. The applicant complained under Article 5 of the Convention about his detention on remand, in particular that it had been unreasonably lengthy.

2. He further complained under Article s 6, 9, 10 and 13 of the Convention and under Article 2 of Protocol No. 7 to the Convention that the proceedings in his case had been “unfair” .

3. The applicant complained under Article 8 of the Convention that his correspondence with his lawyer in 2001 had been censored by the authorities. The applicant also complained, in his letter of 30 June 2003, that his correspondence with the domestic courts has been interfered with as all letters concerning his cases had been addressed to the Governor of the Rawicz Prison and not to him directly. Therefore, those letters had automatically been opened in violation of Article 102 § 11 of the Code of Execution of Criminal Sentences according to which correspondence with the judicial authorities shall not be censored.

THE LAW

1. The applicant submitted that the length of his pre ‑ trial detention had been unreasonable.

However, pursuant to Article 35 § 1 of the Convention:

“1. The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken...”

The Court notes that the applicant ’ s pre ‑ trial detention ended on 4 August 2000, the date of his conviction by the trial court , thus more than six months before the date on which this complaint was submitte d to the Court.

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant further complained that in the criminal proceedings he did not have a “fair trial”. The complaint falls to be examined under Article 6 § 1 of the Convention.

However, the Court reiterates that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

The Court observes that the applicant does not allege any particular failure to respect his right to a fair hearing. Assessing the criminal proceedings against the applicant as a whole, it finds no indication that they were unfairly conducted.

It follows that t his complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 3 5 §§ 3 and 4 of the Convention.

3. The applicant complained under Article 8 of the Convention that his correspondence with his lawyer in 2001 had been censored by the authorities. The applicant also complained, in his letter of 30 June 2003, about the alleged interference with his correspondence, in violation of the domestic law, as his letters from the Regional, Appeal and Supreme Courts must have been censored by the prison authorities since they had been addressed to the prison governor and not to him directly.

Article 8 of the Convention , in its relevant part, 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, pub lic 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.”

The Government submitted that the applicant had not exhausted all available domestic remedies. He had failed to bring an action under Article 23 in conjunction with Article 448 of the Civil Code . These provisions would have allowed him to assert that by censoring his correspondence the authorities had breached his personal rights protected by the Civil Code a nd claim non ‑ pecuniary damages.

In this connection, the Government relied on the Warsaw Regional Court ’ s judgment of 27 November 2006 in which a prisoner had been awarded PLN 5,000 in damages from the State Treasury for a breach of secrecy of his correspondence with the Central Board of the Prison Service and the Central Electoral Office. The Regional Court held that secrecy of one ’ s correspondence was one of the personal rights protected under Article 23 of the Civil Code and that in the case of its breach a claimant may be entitled to an award of non ‑ pecuniary damages.

The applicant submitted that he was not aware of a possibility to claim compensation from a domestic court. He also stated that he had lost trust in the Polish judiciary and that he did not believe that he could obtain justice and compensation from them .

The Court first notes that it cannot examine the alleged censorship of the applicant ’ s correspondence with his lawyer which had taken place in 2001, as this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

With regard to the Government ’ s objection, the Court notes that the alleged interference with the applicant ’ s correspondence occurred in 2003, whereas the Government relied on the Warsaw Regional Court ’ s judgment of 27 November 2006. Any relevance that the latter judgment might possibly have in respect of the present case is therefore reduced by the fact that it was given after the relevant time (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX).

The Court observes that the applicant submitted several envelopes, or copies of them, which were addressed to the Governor of the Rawicz Prison but which apparently concerned his official correspondence from the domestic courts. The envelopes did not bear a stamp “censored” and the applicant did not submit any other evidence that his correspondence had been opened, censored or delayed by the authorities. The Court cannot speculate as to why the letters concerning the applicant had been addressed by the registries of the domestic courts to the prison governor and not directly to the applicant. However, even assuming that those envelopes had been opened by the prison administration in order to establish the identity of the recipient, it appears that the authorities acted as a mere post ‑ box. There is no evidence before the Court that would enable it to establish that the authorities acquainted themselves with the contents of those letters. In consequence, it is impossible to establish to any degree of certainty whether the applicant ’ s correspondence with the domestic courts had been censored by the prison authorities.

In view of the above, the Court finds that in the particular circumstances of the case the complaint has not been substantiated and does not disclose any appearance of a violation of Article 8 of the Convention (see P łoski v. Poland (dec.), no 26761/95, 4 December 2001 and Piotr Kuc v. Poland , no. 37766/02, § 42, 19 December 2006 ).

It follows that this part of the application is manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

4. In view of the above conclusions, Article 29 § 3 of the Convention should no longer apply to the case.

For these re asons, the Court by a majority

Declares the application inadmissible.

T.L. Early Josep Casadevall Registrar President