FOURTH SECTION

DECISION

Application no . 80564/12 Jesus Yesid SARRIA against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 October 2015 as a Committee composed of:

Faris Vehabović, President, Krzysztof Wojtyczek, Yonko Grozev, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 30 November 2012,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jesus Yesid Sarria, is a Venezuelan national, who was born in 1974 and lives in Cali-Valle, Colombia.

The Polish Government (“the Government”) were represented by their Agent, Mrs Justyna Chrzanowska of the Ministry of Foreign Affairs.

A. The circumstances of the case

1. The period of the applicant ’ s detention

The applicant was detained in Warszawa Mokotów Remand Centre from 18 February 2009 to 22 January 2010 and in Warszawa Służewiec Remand Centre from 22 January 2010 to 28 February 2012.

2. The conditions of the applicant ’ s detention

The applicant submitted that during his detention in Warszawa Mokotów Remand Centre he had been held in overcrowded cells in which the space per person had been inferior to the Polish statutory minimum standard of 3 m 2 for a total of 180 days.

From 21 February until 23 February 2009 (3 days) he had been detained in cell no. 1 (pavilion B-II) together with 2 other inmates, having 2.48 square metres (m 2 ) of floor space for himself.

From 23 February until 1 June 2009 (99 days), from 15 June until 23 June 2009 (9 days), from 13 July until 30 July 2009 (18 days) and from 3 August until 22 September 2009 (51 days) he had been held in a cell no. 4 (pavilion C-III) which had been shared by 4 detainees including the applicant, leaving each of them 2.43 m 2 of personal floor space. In the above cells the toilet annex was not separated from the living area.

The above facts were also acknowledged by the domestic courts.

The applicant submitted that in the above-mentioned periods, his cells had had insufficient heating, ventilation and lighting. The cells were dirty, infested with mould, rats and cockroaches. There were frequent power cuts and only cold running water was provided. The applicant also claimed that the food and medical assistance in the remand centre had been inadequate. He further complained that he was discriminated against by the authorities as he was Venezuelan and a Jehovah witness.

The domestic courts found that the applicant ’ s allegations, as summarised above, were too general and that the remand centre ’ s records did not confirm them.

It appears that the applicant had one hot shower per week and an hour of an outdoors exercise per day.

3. Civil proceedings against the State Treasury

On 13 April 2010 the applicant brought a civil action for infringement of his personal rights on account of the inadequate living conditions in Warszawa Mokotów Remand Centre. He argued that he had been detained in overcrowded cells below the minimum social standard. He claimed 400,000 Polish zlotys (PLN – 100,000 euros (EUR) ) in comp ensation .

On 16 November 2011 the Warszawa Regional Court ( Sąd Okręgowy ) granted the applicant compensation in the amount of PLN 1.000 (EUR 250) (case no. XXIV C 376/10). The domestic court found that the applicant had been detained in overcrowded cells no. 1 (pavilion B-II) and no. 4 (pavilion C-III) between 21 February and 23 February 2009 (3 days) , 23 February and 1 June 2009 (99 days), 15 June and 23 June 2009 (9 days), 13 July and 30 July 2009 (18 days) and between 3 August and 22 September 2009 (51 days). The court also established that the toilet annex had not been separated from the cells ’ living area. The domestic court considered the above elements unlawful. It was concluded, however, that the applicant had failed to demonstrate properly his damage. On 13 January 2012 the Warszawa Regional Court dismissed the remainder of the applicant ’ s action and ordered the State Treasury to pay the applicant ’ s counsel the legal-aid fees in the amount of PLN 7.200 (EUR 1.800) plus VAT and PLN 103,50 (EUR 25).

On 10 October 2012 the Warszawa Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant ’ s appeal, holding the findings of facts and law made by the first-instance court (case no. I ACa 337/12).

4. Correspondence

From 22 January 2010 to 28 February 2012 the applicant was detained in the Warszawa-Służewiec Remand Centre.

On 5 December 2011 the applicant brought a civil action against the State Treasury - the President of the Warsaw District Court - for infringement of his personal rights in Warsaw Remand Centre, claiming that from 2 November 2010 to 5 September 2011 twenty-five of his private letters to and from family and friends and twenty-five official letters had been indefinitely seized by the prison authorities. In addition, he alleged that the letters sent to him from Colombia had been withheld for 2 to 6 months and a number of letters had been delivered to him stamped as “censored”.

On 26 September 2012 the Warsaw Regional Court ( Sąd Okręgowy ) (case no. I C 1232/11) dismissed the applicant ’ s claim, finding that the applicant had been charged with drug trafficking and he had been detained on remand. Therefore, the part of the applicant ’ s correspondence had been seized under court ’ s order to be translated and, if necessary, censored on the basis of Article 217(a) of the Code of Execution of Criminal Sentences. The applicant ultimately received his correspondence after it had been censored and translated. The court did not find any infringement of the applicant ’ s right to correspondence as the prison authorities ’ activities had been lawful.

On 23 May 2013 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant ’ s appeal, holding that the first-instance court had correctly established the circumstances of the case, had properly assessed the evidence and had correctly applied the law (case no. I ACa 1502/12)

B. Relevant domestic law and practice

1. Conditions of detention.

A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court ’ s pilot judgments in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) adopted on 22 October 2009 (see §§ 75-85 and §§ 45 ‑ 88 respectively). More recent developments are described in the Court ’ s decision in the case of Łatak v. Poland (no. 52070/08) adopted on 12 October 2010 (see §§ 25-54).

2. Seizure of correspondence

Rules relating to the control of 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.

The relevant part of Article 103 § 1 of the Code provides as follows:

“Convicts ... 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.”

Article 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(a) § 1 reads, 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 § 6 reads as follows:

“The supervision of correspondence shall mean the opening of the letter and controlling its content.”

Article 242 § 7 reads as follows:

“The censorship of correspondence shall mean acquainting oneself with its wording and expunging part of the text or making it [the text] illegible.”

COMPLAINTS

The applicant complained under Article 3 of the Convention about overcrowding and inadequate living conditions during his detention in Warsaw Remand Centre.

He also complained under Article 8 of the Convention about the alleged seizure and censorship of his correspondence by prison authorities.

THE LAW

A. Conditions of detention

On 13 September 2013 the Court received the following declaration from the Government:

“ I, Justyna Chrzanowska, Agent of the Government, declare that the Government of Poland offer to pay to Jesus Yesid Sarria, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights PLN 12,680 ( twelve thousand six hundred eighty Polish zlotys) to cover any and all pecuniary and non ‑ pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant. The sum referred to above includes PLN 5,280 ( five thousand two hundred eighty Polish zlotys), which is to cover costs and expenses of the proceedings before the domestic courts and which are payable by the applicant to the State Treasury on account of the judgments of the Warszawa Court of Appeal of 1 October 2012 (case no. I ACa 337/12 ).

The payment is intended to provide the applicant with redress for the systemic violation of Article 3 of the Convention on account of the conditions of his detention, in particular overcrowding, as identified by the Court in the pilot judgment given in the case of Orchowski v. Poland (no. 17885/04) on 22 October 2009 (see paragraphs 135 and 147 et seq.).

This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case. ”

On 16 December 2013 the Court received the following declaration signed by the applicant:

“I, Jesus Yesid Sarria, note that the Government of Poland are prepared to pay me, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, PLN 12,680 (twelve thousand six hundred eighty Polish zlotys), to cover any and all pecuniary and non ‑ pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to me. The sum referred to above includes PLN 5,280 (five thousand two hundred eighty Polish zlotys) which is to cover costs and expenses of the proceedings before the domestic courts and which are payable by us to the State Treasury on account of the judgments of the Warszawa Court of Appeal of 1 October 2012 (case no. I ACa 337/12).

I further note that the payment constitutes redress for the systemic violation of Article 3 of the Convention on account of the conditions of my detention, in particular overcrowding, as identified by the Court in the pilot judgment given in the case of Orchowski v. Poland (no. 17885/04) on 22 October 2009 (see paragraphs 135 and 147 et seq.).

This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to these applications. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application. In view of the above, it is appropriate to strike the case out of the list.

B. Seizure of correspondence

The applicant complained that the seizure of his correspondence during his pre-trial detention was in breach of his right to respect for his family life under Article 8 of the Convention, which in its relevant parts reads as follows:

“1. Everyone has the right to respect for his ... family life ...

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.”

1. The parties ’ submissions.

The applicant alleged that between 2 November 2010 and 5 September 2011 twenty-five of his private letters to and from family and friends and twenty-five official letters had been indefinitely seized by the prison authorities. In addition, he claimed that the letters sent to him from Colombia had been withheld for 2 to 6 months and a number of letters had been delivered to him stamped as “censored”.

The Government argued that the applications should be declared inadmissible as manifestly ill-founded. In support of this argument, the Government stated that the applicant had been charged with drug trafficking in cooperation with other foreigners. Furthermore, they indicated that from February to July 2010 the applicant had sent 25 and received 44 official letters from different domestic and international bodies. Not a single letter of the official correspondence had been seized, monitored or censored. The Government also stated that between November and September 2010 only two sent and three received private letters had been seized and censored. Two of them had been posted from abroad by persons of unknown relation with the applicant (from certain N.C.C. from Spain and A.G. from Italy); the third one had been sent from Konin by an unknown person. The Government underlined that the seizure and censorship in those five cases had been conducted in the course of criminal proceedings against the applicant before the Warsaw Regional Court (case no. XII K 56/12) on the basis of Article 217(a) of the Code of Execution of Criminal Sentences. The Government submitted the list of the applicant ’ s sent and received correspondence.

2. The Court ’ s assessment.

The Court notes that five applicant ’ s private letters were seized and censored by the prison authorities.

The Court reiterates that detention, like any other measure depriving a person of his liberty, entails inherent limitations on private and family life. Such restrictions as seizure of correspondence in order to translate and censor it and, if so justified by the nature of the offence, subjection of a detainee to a special prison regime or special arrangements for visits constitute an interference with his rights under Article 8 but are not, by themselves, in breach of that provision (see Kucera v. Slovakia , no. 48666/99, §§ 127-128, 17 July 2007 and Lorsé and Others v. the Netherlands , no. 52750/99, § 72, Kulikowski v. Poland , no. 18353/03, §§ 72-78, 19 May 2009 ). However, it is an essential part of a detainee ’ s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see, mutatis mutandis , Messina v. Italy (no. 2) no. 25498/94, § 61, 28 September 2000).

Any restriction of that kind must be “in accordance with the law”, pursue one or more legitimate aims listed in paragraph 2 and, in addition, must be justified as being “necessary in a democratic society”.

In the instant case, the contested measures were applied under Article 217(a) of the Code of Execution of Criminal Sentences. This provision, as applicable at the material time, gave the relevant authority the power to seize and censor the correspondence. The interference was thus in accordance with the law.

The Court further observes that the impugned measure can be considered as having been taken in pursuance of “the prevention of disorder and crime”, which is a legitimate aim under Article 8.

Lastly, in the light of the information before it the Court considers that the authorities struck a fair balance between the need to secure the process of obtaining evidence in the applicant ’ s case and his right to respect for his private and family life while in detention. It has not been shown that the measure complained of went beyond what was necessary in a democratic society “to prevent disorder and crime” in the context of seizure and censorship of correspondence in prison during pre-trial detention and an on-going investigation concerning drug trafficking. In fact, the applicant sent and received all his official correspondence and only five private letters were seized and censored. As it was underlined by the Government the applicant was charged with offences concerning drug trafficking in cooperation with other foreigners and three of those letters were sent from unknown individual from Italy, Spain and Konin. Therefore, it was necessary to examine the content of the letters as they might have been connected with the applicant ’ s charges. Lastly, the applicant received the correspondence after it had been censored and translated.

For these reasons, the Court, unanimously,

Declares the complaint under Article 8 of the Convention inadmissible;

Decides to strike the remainder of the application out of its list of cases in accordance with Article 39 of the Convention.

Done in English and notified in writing on 5 November 2015 .

FatoÅŸ Aracı Faris Vehabović              Deputy Registrar President