FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37774/97 by P.K. against Poland

The European Court of Human Rights (First Section), sitting on 13 March 2003 as a Chamber composed of

Mr C.L . Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , Mr L. Garlicki , judges , and Mr S. Nielsen Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 15 March 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 applicant, Mr P. K., is a Polish national, who was born in 1972 and lives in Szydłowiec, Poland. He is represented before the Court by Mr P. Sendecki , a lawyer practising in Lublin, Poland. The respondent Government are represented by their Agent, Mr K. Drzewicki, 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. Facts relating to the applicant’s pre-trial detention

On 17 January 1995 the applicant was arrested by the police on suspicion of robbery. On 18 January 1995 the Przysucha District Prosecutor ( Prokurator Rejonowy ) charged him with robbery and detained him on remand on the ground that there was a reasonable suspicion that he had committed the offence in question. The prosecutor also relied on the serious nature of the offence and the fact that the applicant had previous convictions for similar offences.

On 19 January 1995 the applicant appealed against the detention order. On 1 February 1995 the Radom Regional Court ( Sąd Wojewódzki ) dismissed the appeal. The court ruked that evidence obtained during the investigation, in particular evidence given by the applicant’s co-suspect and the victim, justified the existence of a reasonable suspicion that the applicant had committed the robbery. The court further found that the applicant’s deed represented a serious danger to society ( “znaczny stopień społecznej szkodliwości czynu” ) and, given the severity of the injuries suffered by the victim, the applicant’s previous criminal record and the fact that he was intoxicated at the time of the offence, there were sufficient reasons to hold him in detention. Lastly, the court observed that there were no special circumstances, as defined in Article 218 of the Code of Criminal Procedure, which would justify his release.

On 13 March 1995 the Przysucha District Prosecutor lodged a bill of indictment with the Radom Regional Court. The prosecution asked the court to hear evidence from 25 witnesses.

On 17 June 1995 the applicant applied to the trial court for release. He maintained that his co-defendant had revoked his previous confession and, in the light of evidence given by witnesses, the charge laid against him no longer had a sufficient basis. The application was dismissed on 5 July 1995. The court found that evidence obtained from the victim and the applicant’s co-defendant supported the existence of a reasonable suspicion that the applicant had committed the offence in question. Referring to the applicant’s argument that his co-defendant had revoked his confession, the court stated that it would be premature at that stage to assess the evidential value of the testimony given by his co-defendant and witnesses.

The applicant appealed. He pointed out that there had been numerous shortcomings in the investigation and generally challenged the credibility of the evidence adduced by the prosecution.

On 11 August 1995 the Warsaw Court of Appeal ( SÄ…d Apelacyjny ) dismissed the appeal. The court held that it was premature to assess evidence, especially in the framework of the proceedings concerning the lawfulness of his detention. It considered, however, that there was sufficient evidence to justify the existence of a reasonable suspicion that the applicant had committed the offence with which he had been charged.

The applicant’s trial began on 17 August 1995. After that date, the Regional Court held hearings on 15 September and 6 December 1995, 22 January, 5 and 26 February, 4 and 18 March, 9 and 30 April, 13 and 24 May and 11 July 1996.

In the meantime, on 20 November 1995 the applicant had again asked the court to release him pending trial. The Regional Court dismissed the application on 24 November 1995. It found, firstly, that the evidence heard so far supported the existence of a reasonable suspicion that the applicant had committed the offence with which he had been charged. Secondly, the court stressed that it would soon determine the charge against him and, in consequence, would decide whether he should be further detained or released. Finally, the court found that there were no exceptional circumstances, as listed in Article 218 of the Code of Criminal Procedure, which would justify his release.

On 25 April 1996 the applicant filed yet another application for release. He argued that his detention had already lasted over 15 months and that its length amounted to a violation of Article 5 § 3 of the Convention.

On 16 May 1996 the Regional Court dismissed the application, holding that there were no special circumstances which militated in favour of the applicant’s release, especially as the trial would very soon be terminated.

On 11 July 1996 the Radom Regional Court convicted the applicant as charged and sentenced him to 4 years’ imprisonment. On 16 April 1997, on the applicant’s appeal, the Warsaw Court of Appeal amended that judgment in part and reduced the sentence to 3 years’ and 6 months’ imprisonment.

On 17 July 1998 the applicant was released from prison.

2. Facts relating to the conditions of the applicant’s detention

On an unspecified date the applicant was detained in Radom Remand Centre ( Areszt Åšledczy ). On 18 September 1995 he was placed in a cell of 12.49 square metres together with 5 other prisoners, all of whom were heavy smokers. There was no running water, no sewage system, no toilet and insufficient natural lighting. The glow-lamps were switched on from morning to night. The cell lacked adequate ventilation. The detainees were given two buckets of drinking water and one extra bucket, which was used as a toilet by all of them.

From February 1996 to July 1996 the applicant sent numerous letters to the Governor of Radom Remand Centre, the Chief Board of Prisons ( Centralny Zarząd Zakładów Karnych ), the Radom Regional Court and the Ombudsman ( Rzecznik Praw Obywatelskich ), complaining about the conditions of his detention and, in particular, the fact that he had been placed together with heavy smokers.

On 12 March 1996 the Governor of Radom Remand Centre informed the applicant that all efforts to place him in a cell with non-smokers were to little avail. He acknowledged that the prison conditions were difficult since the prison building was very old and the prison was constantly overcrowded by 20%. For that reason, most of the cells had to be shared and it was not possible for the prison administration to place non-smoking detainees in separate cells. It was, however, possible to put the applicant in another cell, where the majority of his cellmates were non-smokers.

On 15 April 1996 the applicant complained to the Central Board of Prisons about the conditions of his detention, in particular the size of his cell and the fact that he was detained together with heavy smokers. He also asserted that he was deprived of any opportunity to exercise in the open air since detainees were only allowed a daily walk in a well in the prison building. Later, on 28 May 1996, the applicant asked the Governor of Radom Remand Centre to allow him to have an extra walk in the prison yard because his health had deteriorated (in particular, the applicant complained about constant headaches and difficulty in breathing). He stressed that his cell was overcrowded, lacked ventilation and that he was still placed with smokers (2 out of 5 cellmates). According to the applicant, this was his second request to be permitted an extra walk. There is no information whether, and if so, how the authorities reacted to those requests.

On 28 May 1996 the Governor informed the applicant in writing that Radom Remand Centre was one of the oldest prisons in Poland. He admitted that it could be the case that six prisoners had to share a cell of some 12 square metres and that, as a result, they suffered from a certain level of discomfort. He acknowledged that the applicant’s complaints were well-founded, but stressed that the prison administration could not be held responsible for the situation.

Subsequently, the applicant received a letter from the Ombudsman. In that letter, dated 29 May 1996, the Ombudsman stated that there could be no doubt that the conditions in Radom Remand Centre were difficult, especially in view of the lack of a water supply and a sewage system. However, he assured the applicant that the prison administration had undertaken “definite efforts to diminish the prisoners’ discomfort”. The Ombudsman also expressed his hope that the situation would considerably improve after a new prison building had been constructed.

3. The applicant’s correspondence with the Commission

(a) Facts as established on the basis of the material in the Court’s file

On 15 March 1995 the applicant’s wrote his first letter to the European Commission of Human Rights. He described in detail the above-mentioned conditions of his detention in Radom Remand Centre. The letter was opened by the authorities. In the top left hand corner of the letter there was a stamp, which read: “censored” ( “ ocenzurowano ” ). The stamp was followed by an illegible signature.

On 2 October 1996 the Secretariat of the Commission sent an application form to the applicant. On 5 March 1997 the applicant wrote a letter enquiring whether the Commission had received his application which – he claimed – he had handed over to a prison officer on 25 November 1996. This application never reached the Secretariat of the Commission. On 23 April 1997 a new application form was sent to the applicant.

(b) Facts as related by the Government

The Government submitted that the applicant had dated his first letter wrongly. The material date was in fact 15 March 1996.

The Government further submitted that, already on 22 January 1995, the Director of the Chief Board of Prisons had instructed the authorities of Radom Remand Centre that correspondence with the Commission should not be censored.

Moreover, the authorities did not have such a stamp. The only stamp which was used to censor detainees’ correspondence, and this for security reasons, read “tutor-censored”. The signature next to the stamp did not match any of the signatures of the officers from Radom Remand Centre.

The Government enquired into the circumstances surrounding the censoring of the applicant’s letter. They submitted that an employee of the Radom Regional Court had – by mistake – stamped the applicant’s letter “censored”. The employee in question was an inexperienced clerk who had been unfamiliar with the rules governing the censorship of correspondence. When the judge responsible for controlling detainees’ correspondence learnt that the letter to the Commission had been opened, he refused to read it and instructed the clerk to put her signature on the letter.

As regards the letter that the applicant handed to a prison officer on 25 November 1996, the Government submitted that receipt of the letter had been registered in the prison records. The letter had been posted on 29 November 1996.

B. Relevant domestic law and practice

1. Preventive measures, in particular detention on remand

At the material time the 1969 Code listed as “preventive measures” ( środki zapobiegawcze ), inter alia , detention on remand, bail and police supervision.

(a) Imposition of detention on remand

Article 210 § 1 of the 1969 Code read (in the version applicable until 4 August 1996):

“Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.”

Article 222 (in the version applicable until 4 August 1996) stated, in so far as relevant:

“1. The prosecutor may order detention on remand for a period not exceeding three months.

2. When, in view of the particular circumstances of the case, the investigation cannot be terminated within the period referred to in paragraph 1, detention on remand may, if necessary, be prolonged by:

(1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year;

(2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigation.”

(b) Grounds for applying preventive measures

Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision (as it stood at the material time) provided:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far as relevant:

“Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or

(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or

(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or

(4) an accused has been charged with an offence which creates a serious danger to society.”

On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision read:

“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or

(2) [as it stood before 1 January 1996].”

Paragraph 2 of Article 217 then read:

“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

The 1969 Code set out the margin of discretion as to the continuation of a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme form of preventive measure, should not be imposed if more lenient measures were adequate.

Article 213 § 1 provided:

“A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”

Article 225 stated:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”

The provisions of the 1969 Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above.

Finally, Article 218 provided:

“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:

(1) o it may seriously jeopardise the life or health of the accused; or

(2) o it would entail excessively burdensome effects for the accused or his family.”

2. Rules concerning the placement of a detainee in prison

Under paragraph 13 of the Ordinance of the Minister of Justice of 15 April 1992 on receiving, registering, placing and releasing persons detained on remand, convicted or fined (“the 1992 Ordinance”), the authorities, when placing a detainee in a cell, had to take into account the need to secure the proper conduct of criminal proceedings, the need to ensure order and security in prison, the need to prevent demoralisation as well as medical and psychological factors.

That provision also listed categories of persons who had to be separated during their detention (e.g. men and women; juveniles and adults; detainees on remand and convicts; first offenders and repeaters).

3. Censorship of a detainee’s correspondence and rules concerning his contact with the outside world

Articles 82-90 of the Code of Execution of Criminal Sentences of 1969 (the Code is no longer in force; it was repealed and replaced by the “new” Code of Execution of Criminal Sentences of 6 July 1997, which entered into force on 1 September 1998) concerned the execution of detention on remand. Pursuant to Article 89 § 2 of the Code, all correspondence of a detainee was, as a rule, censored, unless a prosecutor or a court decided otherwise. There were no legal means whereby a detainee could appeal against or contest the censoring of his correspondence or the scope of that measure (cf. Niedbała v. Poland , no. 27915/95, judgment of 4 July 2000, §§ 33-36).

COMPLAINTS

1. The applicant first complained that the conditions of his detention in Radom Remand Centre had been inhuman and degrading. He invoked Article 3 of the Convention.

2. Under Article 5 § 3 of the Convention the applicant complained that the length of his detention had exceeded a “reasonable time” and that he had not been released pending trial.

3. The applicant further submitted that the Polish authorities had interfered with his right to respect for his correspondence, contrary to Article 8 of the Convention.

4. As regards the control of the applicant’s correspondence, the Court, having regard to Articles 1 and 34 of the Convention, considered it appropriate to raise ex officio the issue of Poland’s compliance with Article 34 of the Convention.

In the course of the further proceedings before the Court, the applicant did not plead a breach of Article 34.

THE LAW

1. The applicant complained that the conditions of his detention in Radom Remand Centre had been inhuman and degrading. He invoked Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government accepted that the conditions of the applicant’s detention had been difficult. However, they had not been so severe as to amount to a breach of Article 3 of the Convention.

It was true, they added, that on 15 September 1995 the applicant had been placed in a cell with 5 other cellmates who were all heavy smokers. However, he had been kept in that cell only until 7 October 1995 when, at his request, he had been taken to a cell where there had been only 2 smokers out of 5 inmates. Although regrettable, the authorities had had to obey the rules governing the placement of inmates in prison, especially the provisions of the 1992 Ordinance.

The Government admitted that the conditions in Radom Remand Centre had indeed been difficult. The prison had been built in the 17 th century and had been in a very bad state. There had been no running water in cells, no sewage system, no toilets and the lighting had been very poor. However, detainees had been given drinking water in any given amount. There had also been enough water to maintain proper personal hygiene. As regards toilet facilities, detainees had been given a bucket, which had been emptied twice a day and on request. Every day detainees could use toilets and showers, which had been located outside their wards.

In view of the foregoing, the Government considered that the treatment complained of had not attained the minimum level of severity required to ground a breach of Article 3 of the Convention.

The applicant opposed that contention and maintained that placing him in a cell of 12.49 square metres together with 5 inmates, all heavy smokers, and keeping him there without running water, ventilation, toilet facilities (the only “facility” being a bucket), a sewage system and sufficient lighting had constituted inhuman and degrading treatment within the meaning of Article 3 of the Convention.

He further pointed out that, during the entire period of his detention in Radom Remand Centre, that is to say, for some 1 year, he had been placed together with smokers; the only difference being their number. In consequence, he had had serious health problems. In particular, he had suffered from constant headaches and breathing problems. In addition, he had been deprived of any opportunity to exercise in the open air.

In sum, the applicant asked the Court to find a violation of Article 3 of the Convention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Under Article 5 § 3 of the Convention the applicant complained that the length of his detention had exceeded a “reasonable time”.

Article 5 § 3 reads, in so far as relevant:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government submitted that the period of the applicant’s detention falling within the scope of Article 5 § 3 lasted from 17 January 1995, when he was detained on remand, until 11 July 1996, when he was convicted at first instance. It accordingly amounted to 1 year, 5 months and 24 days. Having regard to the criteria for the “reasonableness of detention” established by the Court’s case-law, this period could not be considered excessive.

The Government also stressed that there had been valid reasons for holding the applicant in custody. First of all, there had been a reasonable suspicion that he had committed a robbery, which was a serious offence. Secondly, the applicant already had a previous criminal record. That, in turn, had given a sufficient basis to believe that, had he been released, he might have committed another offence or obstructed the obtaining of evidence. The authorities had therefore rightly considered that keeping him in detention had been necessary to ensure the proper conduct of the proceedings.

The authorities, the Government added, had shown due diligence in handling the case. Given the complexity of the issues involved and, in particular, the number of witnesses involved in the proceedings, they had shown diligence in dealing with the case. Neither at the investigation nor at the trial stage had there been any discernible delays that might be attributed to the authorities.

In conclusion, the Government maintained that there had been no breach of Article 5 § 3.

The applicant replied that the period he spent in detention was not compatible with the “reasonable time” requirement.

He considered that the authorities had failed to give “sufficient” and “relevant” grounds for his detention. He accepted that the existence of a suspicion of his having committed the offence in question could initially suffice to warrant his detention. However, with the passage of time, that ground had inevitably become less relevant. In his submission, the courts had not found any other specific circumstances which would have justified holding him in custody for such a considerable period.

The applicant also stressed that the fact that he had been in detention in itself required special diligence on the part of the authorities. In his view, the time that he had spent in detention awaiting the first-instance judgment was too lengthy and showed that the authorities had failed to act with all due diligence.

In sum, the applicant asked the Court to find a violation of Article 5 § 3 of the Convention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant further submitted that the Polish authorities had interfered with his right to respect for his correspondence, contrary to Article 8 of the Convention. That Article, 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, 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.”

The Government first addressed the issue of the alleged interception of the applicant’s letter of 25 November 1996. They considered that there was no proof that the authorities could be held responsible for the disappearance of that letter. The prison officers had confirmed receipt of his correspondence. They had then posted it on 29 November 1996, which had been duly confirmed by the relevant post office. Accordingly, the fact that that letter had never been delivered to the Commission could not be attributed to the authorities.

As regards the letter which the applicant had dated 15 March 1995, the Government stressed that the proper date was 15 March 1996. They further contended that the opening and stamping of that letter was a purely technical, unintentional mistake made by an inexperienced court clerk and that it did not disclose any breach of the applicant’s right to respect for his correspondence.

The applicant disagreed. He submitted that the authorities had interfered with his correspondence in a manner contrary to Article 8 of the Convention. In his opinion, there was no doubt that his letter had been opened and controlled by the state official and that his original application had never been delivered to the Commission.

In that regard, the applicant stressed that the opening of correspondence with the Strasbourg institutions had undoubtedly given the authorities an opportunity to read it and created the risk of reprisals by prison staff.

He concluded that there had been a violation of Article 8 of the Convention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. As regards the control of the applicant’s correspondence, the Court, having regard to Articles 1 and 34 of the Convention, also considered it appropriate to raise ex officio the issue of Poland’s compliance with Article 34 of the Convention. Article 34 reads:

“The Court may receive applications 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 the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government, referring to the arguments that they submitted in the context of the complaint under Article 8, maintained that the Polish authorities had not interfered with the applicant’s right of individual petition.

The applicant did not address the issue and did not plead a breach of Article 34.

In the circumstances, the Court does not consider it necessary to pursue an examination of the issue under Article 34 of the Convention.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos R ozakis              Deputy Registrar President