F OURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

A p p lication no. 14450/02 by Maciej MAKSYM against Poland

The Euro p ean Court of Human Rights (F ourth Section), sitting on 9 May 2006 as a Chamber com p osed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr M. Pellonpää , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović, judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above a p p lication lodged on 25 A p ril 2000 ,

Having deliberated, decides as follows:

THE FACTS

The a p p licant, Mr Maciej Maksym, is a Polish national who was born in 1971 and lives in Wars aw , Poland

A. The circumstances of the case

The facts of the case, as submitted by the a p p licant, may be summarised as follows.

1. Criminal p roceedings against the a p p licant.

The a p p licant was the owner of a com p any in Gdańsk ( Agencja Rozwoju Przedsiębiorczości i Inwestycji w Gdańsku)

On 8 A p ril 1999 he was arrested on sus p icion of fraud.

On 10 A p ril 1999 the Gdańsk District Court ( Sąd R ej o nowy ) ordered his detention on remand for three months.

U p on the a p p licant ’ s a p p eal, on 11 May 1999 the Gdańsk Regional Court ( Sąd Okręgowy ) u p held the detention order. The court held that kee p ing the a p p licant in custody had been necessary to ensure the p ro p er conduct of the p roceedings. In addition, there had been reasonable grounds to believe that he had committed the offence with which he had been charged.

The a p p licant lodged several a p p lications for release. All those a p p lications were dismissed, both at first instance and on a p p eal.

During the investigation and the first-instance trial, the a p p licant ’ s detention was p rolonged on several occasions; the last of the relevant decisions was given on 8 October 1999 and extended the a p p licant ’ s detention until 8 A p ril 2000 .

Meanwhile, on 21 May 1999 the a p p licant began serving a 3 years and 10 months ’ p rison sentence, which resulted from another conviction.

On 9 January 2000 the Gdańsk District Court convicted the a p p licant as charged and sentenced him to 3 years and 6 months imprisonment.

On 10 May 2000 the Gdansk District Court im p osed a fine on the a p p licant in the amount of PLN 1,000 for contem p t of court. The court considered that the a p p licant in his written p leadings of 28 A p ril 2000 had used abusive language and undermined p ublic confidence in the domestic courts.

On 20 November 2000 the p resident of the Katowice Court of A p p eal ( Sąd A p elacyjny ) refused the a p p licant ’ s request to be granted a legal aid lawyer in order to p re p are a motion for the reopening of another set of criminal p roceedings. The p resident considered that the a p p licant had been working in p rison and that he had sufficient means to p ay a lawyer ’ s fee.

On 18 October 2001 the Gdańsk Regional Court u p held the first instance conviction.

On 9 May 2002 the a p p licant was again arrested on sus p icion of fraud. On 10 May 2002 the Olsztyn District Court ordered his detention on remand until 28 June 2002 . On 28 June 2002 the District Court p rolonged the a p p licant ’ s detention, this time until 28 Se p tember 2002 .

On 16 Se p tember 2002 the Olsztyn District Court convicted the a p p licant as charged and sentenced him to 3 years ’ im p risonment.

U p on the a p p licant ’ s a p p eal, the Olsztyn Regional Court amended the first instance judgment on 30 January 2003 .

The a p p licant filed a cassation a p p eal. On 1 March 2004 the Su p reme Court gave a decision and dismissed the a p p licant ’ s cassation a p p eal as manifestly ill-founded.

2. Civil proceedings

On 4 occasions in 2000 the a p p licant lodged claims for p ayment against four different defendants: the State treasury and the Gdańsk District p rosecutor, D.S., L.R, D and J.S. He also asked to be exem p ted from court fees. In all four cases the first-instance court refused his request on the ground that the a p p licant ’ s financial situation was very good: he owned three cars, two trucks and a 100m2 flat. The courts referred to the a p p licant ’ s earnings in 1999, when he had been running his own com p any. Accordingly, his motions had been considered as an abuse of the “law of the poor” ( p rawo ubogich ). All decisions were u p held on a p p eal, on 20 November 2000 , 14 December 2000 , 15 January 2001 and 15 December 2001 res p ectively.

3. Monitoring of the a p p licant ’ s corres p ondence

At the time of lodging his a p p lication with the Court the a p p licant had been detained on remand in the course of criminal p roceedings against him. At the same time, as of 21 May 1999 he was serving a p rison sentence im p osed in the course of another set of criminal p roceedings against him.

On 6 June 2000 , the Registry of the Court received the a p p licant ’ s letter dated 12 A p ril 2000 . Both the letter and the envelo p e bear a stam p “Censored on... judge” and no signature ( Cenzurowano dn... sędzia. ).

On 13 February 2001 , the Registry of the Court received another letter from the a p p licant (dated 29 December 2000 ). It was delivered in an envelo p e bearing a stam p “Censored on... judge” and no signature ( Cenzurowano dn... sędzia. ). It also bears a red stam p “Remand Centre in Gdańsk ” ( Areszt Śledczy w Gdańsku ).

On 25 June 2001 , the Registry of the Court received another letter from the a p p licant, dated 24 July 2000 (sent on 13 June 2001 ). It was delivered in an envelo p e bearing a stam p “Censored on... judge” and no signature ( Cenzurowano dn... sędzia. ). It also bears a handwritten note: “letter admitted to trans p ort sealed with an adhesive ta p e” ( list p rzyjęty do p rzewozu oklejony taśmą ).

B. Relevant domestic law and p ractice

1. The acts on legal structure of the courts.

Section 43 § 1 of the Act of 20 June 1985 (“the 1985 Act”) on the legal structure of the courts ( Prawo o ustroju sądów powszechnych ), provides , inter alia , that the court may impose a disciplinary penalty, a fine or a prison sentence, on a person who, at a court session, behaves in an abusive manner or disturbs the public order.

Under Section 44 § 1 of the Act, no appeal is available against a decision to impose such a penalty.

On 1 October 2001 the new act on the legal structure of the courts entered into force. According to Section 50 of the new act it is possible to file an appeal against a decision to impose a penalty for contempt of court.

On 3 July 2002 the Constitutional Court gave judgment (No. SK 31/01) and declared unconstitutional Section 44 § 1 of the 1985 Act. It found that this provision was not in compliance with article 78 (right to appeal) and article 176 § 1 (right to two court instances) of the Constitution.

2 . The Code of Execution of Criminal Sentences 1997

Rules relating to the means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ) (“the 1997 Code”) which entered into force on 1 September 1998.

At the material time, Article 103 of that Code, which is contained in Cha p ter IV entitled “Rights and duties of convicted p ersons”, p rovide d as follows:

“ Convicted persons (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”

Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Cha p ter XV entitled “Detention on remand”.

A rticle 214 § 1 reads as follows:

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 217 § 1 read, in so far as relevant, as follows:

“(...) detainee ’ s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”

Article 242 § 5 reads as follows:

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

On 1 Se p tember 2003 an amendment to the Code of Execution of Criminal Sentences of 24 July 2003 entered into force. Article 217 was re p hrased and new articles 217a-b concerning monitoring of detainees corres p ondence were added.

Article 217a reads in so far as relevant:

“ § 1. D etainee ’ s corres p ondence shall be censored by [the authority at whose dis p osal he remains], unless the authority decides otherwise (...)

§.2 If the authority at whose dis p osal a detainee remains does not decide on censoring his corres p ondence, such a decision may be taken by the director of the detention centre. The director shall notify the detainee concerned, a p enitentiary judge and the authority at whose dis p osal t he detainee remains about the reasons for censoring the corres p ondence (...). “

Article 217b reads in so far as relevant:

“(...)

2. Detainee ’ s corres p ondence, including the corres p ondence with institutions set u p by international treaties ratified by the Re p ublic of Poland concerning the p rotection of human rights , the Ombudsman, state and self-government institutions shall be sent to the addressee through the authority at whose dis p osal he remains . “

3. The Rules of Detention on Remand 1998

On 1 September 1998 the Rules of Detention on Remand ( Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania ) entered into force.

§ 36 of the Rules provides:

“A detainee ’ s correspondence, including correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland , with the Ombudsman and public and local government institutions, is mailed through the intermediary of the authority at whose disposal he remains.”

§ 37 provides:

“1. If the authority at whose disposal [a detainee] remains ceases to censor correspondence, it shall be subject to the supervision or censorship by the prison administration, except for cases referred to in Article 73 of the Code of Criminal Procedure and Articles 102 (11) and 103 of the Code [of Execution of Criminal Sentences].

2. The correspondence of a detainee shall be supervised by the administration of the detention centre when necessary in the interest of protecting the social interest, the security of a detention centre or the requirements of personal re-education.

3. The supervision referred to in paragraph 2 shall be executed by controlling the content of the correspondence and acquainting oneself with its wording.

4. The correspondence referred to in Articles 8 § 3, 102 (11) and 103 § 1 of the Code [of Execution of Criminal Sentences] may only be subjected to the control of its content [ kontrola zawartości ], which shall take place in the presence of a detainee.”

§ 38 provides:

“2. Censorship shall mean deleting a part of text or making it illegible, whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file.”

C OMPLAINTS

1. The a p p licant com p lains under Article 5 § 4 that his a p p eal against the arrest on 8 A p ril 1999 was not examined “s p eedily”.

2. The applicant further alleges a breach of Article 5 § 3 in that his detention on remand had been excessive.

3. He further com p lains under Article 10 and 13, that the im p osition of fine for contem p t of court was in his case entirely unjustified and therefore in violation of Article 10. He further invokes Article 13 of the Convention, alleging that he did not have a remedy to com p lain about the court ’ s decision to im p ose a fine on him.

4. He com p lains under Article 6 § 1 about lack of access to a court in view of the fact that he was not exem p ted from court fees in proceeding with his civil claims.

5. Lastly, he alleges a breach of Article 6 § 3 ( c ) because of the refusal to grant him an officially appointed lawyer to file a motion for the reopening of the criminal proceedings against him.

THE LAW

1. The a p p licant com p lained under Article 5 § 4 that his a p p eal against the arrest on 8 A p ril 1999 had not been examined “s p eedily”.

In this connection the Court observes that the a p p licant has failed to s ubmit any evidence to substantiate t his com p laint .

In addition, the Court notes that the a p p licant a p p ealed against the detention order of 10 A p ril 1999 and his a p p eal was examined by the Gdańsk Regional Court on 11 May 1999 .

There are therefore no grounds on which to find that the p roceedings, concerning the review of the lawfulness of the a p p licant ’ s detention, examined as a whole, fell short of the requirements of th is p rovision of the Convention.

It follows that this p art of the a p p lication is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected p ursuant to Article 35 § 4.

2. The a p p licant alleged under Article 5 § 3 that the length of his detention on remand had been excessive.

The Court observes that the a p p licant was arrested on 8 A p ril 1999 . However, on 21 May 1999 the a p p licant began serving a p rison sentence which resulted from another conviction. The a p p licant was then convicted at first instance on 9 January 2000 and his conviction was u p held on appeal.

According to the Convention organs ’ case-law, a p erson convicted at first instance and detained p ending an a p p eal by him cannot be considered to be detained “ for the p ur p oses of bringing him before the com p etent legal authority on reasonable sus p icion of having committed an offence” within the meaning of Article 5 § 3 of the Convention (see Fiecek v. Poland , no 27913//95 Commission decision of 2 July 1997, unre p orted). Furthermore, the p eriod between 21 May 1999 and 9 January 2000 must be subtracted from the total p eriod of the a p p licant ’ s detention since during this time he was serving a sentence resulting from another conviction.

In these circumstances, the p eriod of the a p p licant ’ s detenti o n on remand to be considered under Article 5 §3 of the Convention must be calculated from 8 A p ril 1999 to 21 May 1999 and from 9 May 2002 to 16 Se p tember 2002 . Accordingly, it lasted five months and three weeks. The C ourt has examined the a p p licant ’ s com p laints in the light of the criteria relating to the determination of the “ reasonableness of th e length of detention on remand” set out in the Convention organs ’ case-law (see, for instance, Jabłoński v. Poland , no. 33492/96, § 80, 21 December 2000). In this res p ect, the Co urt finds that the overall length of the a p p licant ’ s detention d id not exceed a “ reasonable time ” within the meaning of Article 5 § 3 of the Convention.

It follows that this com p laint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The a p p licant further com p lained under Article 10 about the decision to im p ose a fine on him for contem p t of court. He also submitted under Article 13 that no a p p eal laid against such a decision in the domestic law.

Under Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted. In this res p ect the Court observes, that although the Act on legal structure did not p rovide for a p ossibility to a p p eal against such a decision, the a p p licant had the p ossibility to lodge a constitutional com p laint with the Constitutional Court . Consequently, a constitutional com p laint filed by the a p p licant in the p resent case could have been considered an effective remedy within the meaning of the Convention (see, Wiacek v. Poland (dec.), no. 19795/02, 17 January 2006 ).

It follows that this com p laint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

As regards the com p laint under Article 13, the Court, having regard to its conclusion concerning Article 10, finds that no se p arate issue arises under this p rovision.

4. The a p p licant com p lained under Article 6 § 1 that the fact that he had not been exem p ted from court fees required from him for p roceeding with his civil claims, had amounted to a dis p ro p ortionate restriction on his access to a court.

The Court notes that the “right to a court” under Article 6 § 1 is not absolute but may be subject to various limitations, including financial ones. However, the limitations applied must not restrict or reduce the access afforded to the applicant in such a way or to such an extent that the very essence of that right is impaired (see, Kreuz v. Poland , no. 28249/95, §§ 53, 54, ECHR 2001-VI).

In the present case, the Court observes, that from the documents submitted by the applicant it does not appear that the courts were arbitrary in assessing the applicant ’ s financial situation. Therefore, there is no indication that the limitations imposed on the applicant constituted a disproportionate restriction on the applicant ’ s access to a “tribunal”.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The a p p licant com p lained under Article 6 (3) about a refusal to grant him a legal aid lawyer to file a motion for the reopening of the criminal p roceedings against him.

In this res p ect the Court recalls that the guarantees of Article 6 of the Convention do not a p p ly to p roceedings in which the re-opening of proceedings terminated by a final decision is sought (see, among many other authorities, Rudan v. Croatia (dec.), no. 45943/99, 13 Se p tember 2001; Wierciszewska v. Poland , no. 41431/98 , § 35, 25 November 2003). The Court therefore concludes that Article 6 of the Convention is not a p p licable to this p art of the p roceedings.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

6. In res p ect of the monitoring of the a p p licant ’ s corres p ondence, the Court raises ex officio a com p laint about a breach of Article 8 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this com p laint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this p art of the a p p lication to the res p ondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the com p laint concerning the monitoring of the a p p licant ’ s corres p ondence ;

Declares the remainder of the a p p lication inadmissible.

Michael O ’ Boyle Nicolas Bratza Registrar President