Resolution CM/ ResDH ( 2013)228 Fifty-eight cases against Poland

Execution of the judgments of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

31583/96

KLAMECKI No. 2

03/04/2003

03/07/2003

43120/05

ANDRULEWICZ

03/04/2007

31038/06

ANDRYSIAK

20/08/2008

13637/03

BARTOSIŃSKI

13/10/2009

13/01/2010

42332/06

BEREZA No. 2

20138/03

BOBEL

22/04/2008

24205/06

BOGUSLAW KRAWCZAK

31/08/2011

26846/05

ĆWIERTNIAK

22/07/2008

22/10/2008

31622/07

DOCHNAL

18/11/2012

20841/02

DROZDOWSKI

06/12/2005

06/03/2006

35833/03

DZITKOWSKI

27/02/2008

31116/03

FELIŃSKI

07/07/2009

06/11/2009

55470/00

FERLA

20/05/2008

20/08/2008

44025/08

FRIEDENSBERG

27/04/2010

27/07/2010

38816/97

G.K.

20/01/04

20/04/04

39631/06

GRADEK

08/06/2010

08/09/2010

34907/05

HINCZEWSKI

05/10/2010

05/01/2011

36161/05

JAKUBIAK

08/01/2008

07/07/2008

20251/04

JANULIS

04/11/2008

04/02/2009

8713/03

JANUS

21/10/2009

23623/07

JARKIEWICZ

06/07/2010

06/10/2010

72976/01

JASIŃSKI

06/12/2007

06/03/2008

26744/02

KISILEWSKI

07/07/2009

07/10/2009

8363/04

KLIZA

06/09/2007

06/12/2007

31820/06

KNYTER

01/02/2011

01/05/2011

44521/04

KOŁODZIŃSKI

08/01/2008

07/07/2008

12772/06

KOTOWSKI

29/12/2009

10816/02

KOZIMOR

12/04/2007

12/07/2007

12269/02

KOZŁOWSKI ERYK

04/11/2008

04/02/2009

49128/06

KRAWIECKI

09/06/2009

09/09/2009

51895/99

KWIEK

30/08/2006

19218/07

LESIAK

01/02/2011

01/05/2011

21890/03

LEWAK

06/09/2007

31/03/2008

73988/01

ŁUCZKO

03/10/2006

03/01/2007

14450/02

MAKSYM

19/12/2006

19/03/2007

37641/97

MATWIEJCZUK

02/12/2003

02/03/2004

41656/02

MAZGAJ

21/09/2010

21/12/2010

8403/02

MGŁOSIK

16/10/2009

42083/98

MIANOWSKI

16/12/2003

16/03/2004

43837/06

MISIAK

03/06/2008

03/09/2008

62323/00

NAJDECKI

06/02/2007

06/05/2007

6390/03

NOWICKI

27/02/2007

27/05/2007

46859/06

NURZYNSKI

21/12/2010

21/03/2011

8260/04

OCHLIK

29/07/2008

29/10/2008

64284/01

OLEKSY

28/02/2007

10381/04

OWSIK

16/10/2007

16/01/2008

24322/02

PANUSZ

03/06/2008

01/12/2008

42785/06

PASTERNAK

16/07/2009

10/12/2009

39840/05

PAWLAK

15/04/2008

PISK-PISKOWSKI

14/06/2005

14/09/2005

6820/07

PRZYJEMSKI

05/10/2010

29366/03

STĘPNIAK

29/01/2008

29/04/2008

64283/01

TOMCZYK PROKOPYSZYN

28/03/2006

28/06/2006

38007/02

WARSIŃSKI

04/12/2007

04/03/2008

63905/00

WASILEWSKI

06/12/2005

06/03/2006

141/07

WEGERA

19/01/2010

19/04/2010

45133/06

ZBOROWSKI

15/01/2008

15/04/2008

39519/05

ZBOROWSKI No. 3

22/04/2008

22/07/2008

(Adopted by the Committee of Ministers on 20 November 2013

at the 1185th (Budget) meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)1123 );

Noting, however, that the issue the excessive length of detention on remand continues to be under the supervision of the execution in the context of the Trzaska v. Poland group of cases (judgment of 11/07/2000);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

A ction report [1]

Information about the measures to comply with the judgments in the

Klamecki against Poland (No. 2) group of cases

Case description

These cases concern, primarily, interferences with the applicants ’ right to respect for their correspondence while they were detained on remand (violations of Article 8 of the Convention).

Some of them concern the monitoring of the applicants ’ correspondence before 01/09/98 (the date of entry into force of the 1997 Code of the Execution of Criminal Sentences) . [2] In the these cases, the European Court found that the monitoring of the applicants ’ correspondence with various correspondents (including their la wyers) was not “provided by law” , as the relevant Polish law in force at that time did not indicate with reasonable clarity the scope and manner of the exercise of discretion conferred on public authorities in this field.

Later cases concern the monitoring of the applicants ’ correspondence after 01/09/1998. The cases concern the fact that the applicants ’ correspondence with the organs of the Convention, was marked “censored” , which was found by the European Court as “not in accordance with law” . [3] According to the European Court, the prohibition of censorship of correspondence with the European Court of Human Rights in the Code of Execution of Criminal Sentences which , at the material time, expressly related to convicted persons, was also applicable to detained persons. Thus, censorship of the letters to and from the Registry of the Court was contrary to the domestic law. The same conclusion was made by the European Court with regards to correspondence with: the Chancellery of the Senate [4] , the Ombudsman [5] , a lawyer [6] , the Constitutional Court [7] , tax authorities [8] , domestic court [9] , prosecutor [10] , Council of Europe Information Bureau [11] , NGOs [12] , the CPT [13] and also other domestic institutions [14] . Moreover, in several cases the European Court found “not necessary in a democratic society” monitoring of the applicants` correspondence with: the European Court [15] , the NGOs: Amnesty International, Transparency International [16] and a bank [17] .

In some of the cases, additionally, taking into account the fact that the applicants ’ letters were sent with significant delays, the Court also found a violation of Article 34 of the Convention . [18]

In addition, refusals of family visits in detention in some cases were found by the European Court to be in violation of Article 8 of the Convention as they were “not in accordance with law” , [19] while in other cases [20] the European Court found that they were “not necessary in a democratic society” having regard to the circumstances of particular cases, duration and the nature of the restrictions (violations of Article 8 of the Convention).

While declaring that the refusals of family visits were “not in accordance with law”, the European Court noted that these decisions h ad been issued on the basis of A rticle 217§1 of the Code of Execution of Criminal Sentences and that this provision, as applicable at the material time, gave the relevant authority (prosecutor or court) the power to grant permission for family visits in prison. The law, however, provided no details as regards the conditions for granting such permission, no guidance as to how the authorities might decide whether the prohibition of visiting rights was merited in a particular case, and what factors might be relevant to that decision. It further did not provide for a possibility to appeal against the refusal of visits. The decision was left to the authorities ’ absolute discretion. Thus, A rticle 217§ 1 of the Code of Execution of Criminal Sentences did not indicate with reasonable clarity the scope and manner of the exercise of any discretion conferred on the relevant authorities to restrict visiting rights.

Moreover, in some cases the European Court found that the applicants ’ pre-trial detention was excessively long [21] and that, in the Klamecki No. 2 case, the detention was ordered by a public prosecutor in breach of the applicant ’ s right to be promptly brought before a “judge or other officer authorised by law to exercise judicial functions” (violations of Article 5§3 of the Convention).

In addition, in a number of cases the European Court found other violations of the Convention which are summarized in the Appendix II. Those cases are examined in the context of other groups of cases pending supervision of execution.

The European Court granted just satisfaction in respect of non-pecuniary damage in most of these cases. No just satisfaction was granted in the cases of Cwiertniak , Dzitkowski , Gradek , Krawiecki , Nowicki , Ochlik and Owsik , Finding of a violation by the European Court was declared sufficient just satisfaction in Pisk-Piskowski .

Just satisfaction awarded by the European Court was paid in due time in all the cases of this group, except for three of them where there was a delay: cases of Bereza No. 2, Drozdowski and Jasinski (see the table in appendix). However the payment in the latter cases was made under terms which appear to have been accepted by the applicants.

Failure to respect detainees ’ right for correspondence (violation of Article 8) and the right of individual application (violation of Article 34): In most of the cases, the applicants were no longer detained on remand when the European Court delivered its judgments and thus the restrictions at issue on their right to respect for correspondence could no longer be applied.

Moreover, in accordance with rece nt domestic case law, applicants and persons who claim infringement of their right to respect for their correspondence may claim compensation from the State Treasury under Article 448 read in conjunction with Article 24§2 of the Civil Code (for example, see judgment of the Warsaw Regional Court of 27/11/2006).

Violations of the right to respect for family life (Article 8): The applicants ’ pre-trial detention came to an end and thus there are no longer any restrictions on the applicants ’ family life.

For information on individual measures concerning other violations of the Convention see Annex Ia.

In these circumstances, no other individual measure appears necessary.

a) The Code of Execution of Criminal Sentences of 1997, with respect to the issue of monitoring of correspondence of persons deprived of their liberty was amended in September 2003 and in January 2012.

Under the legislation currently in force:

- the correspondence of convicted persons with their lawyers cannot be censored, monitored or seized and should be transmitted to the recipient without undue delay (Article 8a§2 of the Code). The same rule applies to correspondence with: investigating and justice authorities, other State organs, organs of municipalities, the Ombudsman, the Ombudsman for Children and organs established on the basis of international treaties ratified by Poland concerning human rights protection (so, also – the European Court). According to Article 102 , point 11, a prisoner has a right to exchange correspondence with abovementioned bodies;

- as far as individuals detained on remand are concerned, Article 217b§2 of the Code provides that, as a rule, their correspondence with the Ombudsman, the Ombudsman for Children and organs established on the basis of international treaties ratified by Poland for the human rights protection must be sent directly to the recipients without censorship.

This rule also applies to correspondence with investigating authorities, judicial authorities, other State organs and organs of municipalities, in exceptionally justified circumstances of a particular case, when the organ at whose disposal the person remains decides . The abovementioned provision has never been criticised by the European Court and, as the Convention has a direct effect in the domestic legal system, this kind of limitation shall be applied in line with the requirements provided by Article 8 of the Convention;

- the correspondence of individuals detained on remand with their lawyers, as a rule, is not subject to censorship (Article 73§1 of the Code of Criminal Procedure). Exceptionally, and only during the investigation period and for no longer than 14 days from the day the person was detained, a prosecutor, in specifically justified situations, may reserve a right to control a correspondence between the suspect and his lawyer (Article 73§3). However, the European Court never found this provision to be in violation of Article 8 of the Convention. Thus, the amendment of the abovementioned provision is not strictly necessary to execute this group of judgments. However, it should be noted that in its judgment of 10/12/2012 , the Polish Constitutional Tribunal found Article 73§3 of the Code of Criminal Procedure to be in contravention with relevant provisions of the Constitution as it did not specify the grounds for a prosecutor to reserve a right of control of the correspondence between a suspect and a lawyer. In consequence , the provision in question will lose its binding force on 10/12/2013. The legal amendment currently discussed in Parliament to execute the judgment of the Constitutional Tribunal completely eliminates the possibility for the control (and censorship) of correspondence between a lawyer and a detained person.

b) the applicants at the domestic level may also make use of the domestic remedy in situations in which the censorship of their correspondence violated their personal rights. Since the judgment of the Warsaw Court of Appeal of 28/06/2007 , it is open to persons affected by the censorship of correspondence to bring an action for protection of their personal rights under Articles 23 and 24 in conjunction with Articles 417 and 448 of the Civil Code on account of the infringement of the right to respect for their correspondence and to claim the compensation. The European Court found this remedy effective in several cases . [22]

c) Concerning practical arrangements, on 16/11/2007 an instruction was issued by the Director General of the Prison Service (amended on 12/02/2008) covering , inter alia , the installation of special letter boxes specifically for prisoners ’ correspondence with the European Court and other international bodies in all prisons and detention centres in Poland and establishing a detailed procedure on how to deal with this kind of correspondence. In all facilities concerned , such letter boxes were installed.

d) Further, the Ministry of Justice, in the letters to the presidents of all courts of appeal (of 10/01/2005, 09/09/2005), underlined the need to take measures to guarantee respect for detainees ’ correspondence.

e) The Ministry of Justice sent a letter to the presidents of all the courts of appeal (of 28/06/2005) making a reference to the relevant jurisprudence of the European Court, and underlining the necessity to eliminate a practice of censoring (or even marking envelopes of the correspondence as “censored”) of the correspondence with the European Court. Presidents of all courts of appeal were asked to disseminate this lette r among all the criminal courts ’ judges and all the courts ’ administrative personnel.

f) On the website of the Ministry of Justice , two short guidelines on the standards in the jurisprudence of the European Court with regards to the issue of monitoring of the correspondence were published: The European Court of Human Rights standards on the monitoring of detainees ’ correspondence and The European Court of Human Rights standards with regards to cases of persons deprived of liberty .

g) Moreover, the Ministry of Justice prepared a publication: “Standards of human rights protection in the law of European Convention of Human Rights” (“ Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka ” ), concerning , inter alia , the detainees ’ right to respect for correspondence.

h) The problem of monitoring of correspondence of persons deprived of liberty was also included in training for judges and prosecutors.

i) The European Court ’ s judgments in cases: Klamecki No.2, Matwiejczuk , Lewak , Jasinski , Pawlik , Wenerski , Miernicki , Bereza No.2, Hinczewski , Przyjemski , Lesiak and Miroslaw Zielinski were translated into Polish and published on the website of the Ministry of Justice: ( www.ms.gov.pl ).

2) Violations of the right to respect for family life on account of refusals of family visits in the detention (Article 8):

a) Article 217 § 1 of the Code of Execution of Criminal Sentences of 1997, as applicable at the material time, provided as follows:

A detainee is allowed to receive visitors, provided that he obtains permission from the authority at whose disposal he remains [investigating prosecutor at the investigative stage or from the trial court once the trial has begun]. If the detainee remains at the disposal of several authorities, it is necessary to obtain permission from all of them unless they decide otherwise.

b) Following the judgments of the European Court, on 2 July 2009 the Constitutional Court, in case no. K 1/07, gave a judgment, following a constitutional complaint lodged by the Ombudsman, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences had been incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the ECHR and Article 37 of the UN Convention of the Rights of the Child. The Constitutional Court ’ s judgment became effective on 8 July 2009, on the date of its publication in the Journal of Laws ( Dziennik Ustaw ). The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusal of family visits in pre-trial detention, was incompatible with the above provisions. The Constitutional Court held that this provision did not indicate with sufficient clarity the limitations on a detainee ’ s constitutional right to protection of private and family life. The Constitutional Court also considered that Article 217 § 1 was incomp atible with the Constitution inso far as it did not provide for a possibility to appeal against the prosecutor ’ s decision to refuse a family visit in pre-trial detention. In its reasoning , the Constitutional Court, while declaring the unconstitutionality of the provision in question, made a direct reference to standards contained in the jurisprudence of the European Court, in particular to judgments in cases: Klamecki No. 2, Ferla and Eryk Kozłowski .

c) On 05/11/2009 , the Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences, which entered into force on 08/06/2010. In particular, subparagraphs 1a -1f were added. These provisions provide in particular that a detainee is entitled to at least one family visit per month. In addition, they indicate clearly the conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal.

Currently, refusal of a family visit may be given only if there exist justified concerns that a visit will be used with the aim to obstruct the course of criminal proceedings or to commit a crime, in particular – to incite to a crime. The order, containing a refusal of a family visit, may be appealed by the detained person and the person applying for such a family visit. Moreover , Article 217 § 3 of the Code of Execution of Criminal Sentences was amended also on 11/09/2011. According to that amendment , a visit ( widzenie ) could be organi s ed in a way of direct contact of detainee and visiting person.

d) Short guidelines on the standards in the jurisprudence of the European Court with regards to the issue of prisoners ’ rights were published on the website of the Ministry of Justice a : The European Court of Human Rights standards with regards to cases of persons deprived of liberty .

e) Moreover, the Ministry of Justice prepared a publication: “Standards of human rights protection in the law of European Convention of Human Rights” (“ Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka ” ), concerning , inter alia , a right to family visits in detention. This issue was also included in the trainings for judges and prosecutors.

f) The European Court ’ s judgments in cases: Klamecki No.2, Ferla , Eryk Kozlowski, Mazgaj , Knyter and Bogusław Krawczak were translated into Polish and published on the website of the Ministry of Justice: ( www.ms.gov.pl ).

In these circumstances, no other general measure appears necessary .

III. Conclusions of the responding State

The government considers that further individual measures are not necessary in the present case and that the general measures adopted are sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 8 of the Convention.

Appendix I

The Klamecki No 2 and G.K . cases also concern the non-adversarial character of the procedure for reviewing the lawfulness of the applic ants ’ detention, since neither the applicants nor their lawyers were given the possibility to participate in the procedure for the review of the lawfulness of detention (violation of Article 5§4 of the Convention). Violation of the same provision of the Convention was also found in the case of Dochnal , as the applicant could not effectively exercise his defence rights in the proceedings concerning the review of the lawfulness of his pre ‑ trial detention due to the restriction on his access to the case files.

In GK , the European Court also found that the applicant ’ s detention between 1 and 24 January 1997 was unlawful due to the fact that the application for the applicant ’ s detention to be prolonged was lodged outside the relevant time-limit, in breach of section 10(a) of the 1995 Interim Law (violation of Article 5§1 of the Convention) .

In addition, the European Court found that criminal proceedings brought against the applicants in the cases of Abramczyk and Matwiejczuk , as well as civil proceedings dealing with the applicant ’ s compensation claims (in the Mianowski ) case were unreasonably long (violations of Article 6§1 of the Convention).

Finally, in Wenerski and Mirosław Zieliński the European Court found violation of Article 3 of the Convention on account of inhuman and degrading treatment of the applicants due to imprisonment in inadequate conditions, particularly – overcrowding ( Mirosław Zieliński ) or inadequate medical assistance ( Wenerski ).

Appendix Ia

1) Violations of Article 3: applicants are no longer detained in conditions not c ompatible with Article 3 and Mr Wenerski was provided with necessary medical assistance.

2) Violations of Article 5§1, 5§3 and 5§4: the pre-trial detentions at issue are over.

3) Excessive length of the civil proceedings (in the Mianowski case) and criminal proceedings (in Matwiejczuk case) – violations of Article 6§1 : the domestic proceedings have been ended. The criminal proceedings in Abramczyk case have not been ended yet. The proceedings are currently stayed but the applicant is not detained any more.

Appendix II

1) Inhuman and degrading treatment due to inadequate medical assistance in prison facilities (Article 3): this case presents similarities to that of Kaprykowski (23052/05), pending before the Committee of Ministers for supervision of general measures;

2) Inhuman and degrading treatment due to imprisonment in ovecrowding (Article 3): this case presents similarities to that of Orchowski (17885/04), pending before the Committee of Ministers for supervision of general measures;

3) Violations of the right to be brought promptly before a judge (Article 5§3) and to participate in proceedings to challenge the lawfulness of detention (Article 5§4) and violations of the right to respect for correspondence in cases concerning monitoring of detainees ’ correspondence before 01/09/1998: these cases present similarities to that of Niedbała (judgment of 04/07/2000), closed by the Resolution ResDH (2002)124, following the reform of the Code of Criminal Procedure;

5) Excessive length of detention on remand (Article 5§3): these cases present similarities to that of Trzaska (25792/94), pending before the Committee of Ministers for supervision of general measures;

6) Excessive length of civil and criminal proceedings (Article 6§1): these cases present similarities to a number of other cases concerning the length of judicial proceedings pending before the Committee of Ministers for supervision of general measures, in particular Podbielski (27916/95) and Kudła (30210/96).

[1] Information submitted by the Polish authorities on 11 October 2013.

[2] Klamecki No 2, Kwiek and Matwiejczuk

[3] Abramczyk , Andrysiak , Bartosiński , Ćwiertniak , Dzitkowski , Feliński , G.K., Hinczewski , Jakubiak , Janulis , Janus, Jasiński , Kisielewski , Kliza , Kołodziński , Kotowski , Kozimor , Krawiecki , Kwiek , Lesiak , Lewak , Łuczko , Maksym , Mianowski , Matwiejczuk , Mgłosik , Miernicki , Nowicki , Ochlik , Oleksy , Owsik , Panusz , Pasternak, Pawlak , Pisk-Piskowski , Przyjemski , Stępniak , Tomczyk Prokopyszyn , Warsiński , Wasilewski , Wenerski , Mirosław Zieliński

[4] Kozimor

[5] Hinczewski , Misiak

[6] Pawlak , Kozimor , Kwiek , Najdecki , Zborowski , Andrulewicz , Bobel , Zborowski No. 3

[7] Kwiek

[8] Bobel

[9] Jarkiewicz , Bereza No. 2, Misiak

[10] Bereza No. 2

[11] Zborowski

[12] Misiak

[13] Misiak

[14] Misiak , Zborowski , Friedensberg

[15] Drozdowski

[16] Warsiński

[17] Friedensberg

[18] Maksym , Drozdowski

[19] Dochnal , Gradek , Mazgaj , Nurzyński , Knyter , Wegera

[20] Klamecki No. 2, Eryk Kozlowski , Ferla , Bogusław Krawczak

[21] ( Abramczyk , Dochnal , Feliński , G.K., Janus , Janulis , Jarkiewicz , Klamecki No 2, Knyter , Bogusłw Krawczak , Matwiejczuk , Mgłosik , Najdecki , Ochlik , Oleksy , Owsik and Wegera .

[22] Past ernak, Friedensberg and Biśta , A pplication No. 22807/07, judgment of 12/01/2010 .