FOURTH SECTION

Application no. 47643/09 Patrycjusz GERTER against Poland lodged on 30 July 2009

STATEMENT OF FACTS

The applicant, Mr Patrycjusz Gerter , is a Polish national, who was born in 1963 and lives in Jelenia Gora .

The facts of the case, as submitted by the applicant, may be summarised as follows.

Since 1996 the applicant has been serving a sentence of 25 years ’ imprisonment.

In 2006 and 2007 the applicant contacted the press about alleged corruption and other wrongdoing on the part of the penitentiary authorities of the different prisons in which he had been serving his sentence. He was subsequently transferred to the Nowy Wisnicz Prison located 400 km from his family.

On 26 April 2007 the applicant sent a letter, about twelve pages long, to his wife in which he conveyed some of his complaints about the penitentiary authorities. It appears that he alleged in particular that the Director of the Prison had been drunk at work. The letter was censored by the prison authorities which considered that it contained vulgar and insulting expressions about the Director of the Nowy Wisnicz Prison and other officials of the prison administration in Warsaw and Krakow .

On 27 April 2007 the Director of the Nowy Wisnicz Prison decided to impose on the applicant a disciplinary penalty for having insulted and defamed ( pomówił i oczernił ) public officials. The director also decided to seize the letter in question. He justified his decision by the need to preserve public order in the prison and based it on the prohibition on the use of vulgar and insulting words by prison ers (Articles 105 (4) and 116a (2) of the Code of Execution of Criminal Sentences). The penalty imposed consisted of a prohibition on visits involving direct conta ct with a visiting person for a period of three months. The penalty immediately entered into force.

The applicant lodged an appeal against the decision, submitting that the letter reflected his manner of expressing himself, had been addressed to his wife, and had had no public character. The applicant also complained that the director of the prison had taken a decision in the case in which he, the director, had been the alleged victim, which raised doubts as to his independence.

On 27 June 2007 the Tarnow Regional Court upheld the decision of the Prison Director to seize the letter and to impose a disciplinary punishment on the applicant. The court noted that it could only assess the legality of the impugned decision. It further considered that the applicant had not been punished for expressing critical opinions about the prison officers but for the manner in which he had done so. The Regional Court underlined that according to the Code of Execution of Criminal Sentences prisoners were not allowed to use vulgar and insulting language.

The applicant applied to the Bochnia District Court for a legal-aid lawyer to be appointed for the purpose of lodging a constitutional complaint . The request was granted on 24 July 2007.

In September and October 2007 the applicant ’ s lawyer contacted the Tarnow Regional Court asking for copies of the decision of the Director of the Nowy Wisnicz Prison and the applicant ’ s letter to his wife for which he had been punished. It does not appear that the lawyer received the requested documents.

On 15 October 2007 the applicant ’ s lawyer lodged a cassation appeal with the Constitutional Court on the applicant ’ s behalf. In her appeal she submitted that the Prison Director had taken a decision in his own case as he had been one of the allegedly insulted persons. Moreover, there was no effective appeal against the director ’ s decision because it was enforceable immediately and the court could only examine questions of law and not the facts.

On 14 July 2009 the Constitutional Court sitting in a single judge formation decided not to entertain the constitutional complaint. It considered that the complaint had been based on an incorrect interpretation of legal provisions and on the absence of a regulation, both matters being excluded from the jurisdiction of the Constitutional Court . The court noted that to consider that the use of vulgar expressions in a private letter posed a danger to the prison safety or public order indicated that the provisions in question had been wrongly applied but not that they had been unconstitutional.

The applicant appealed against the decision.

On 8 October 2009 the Constitutional Court upheld its decision and dismissed the appeal.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that the disciplinary proceedings had been unfair in that the decision had been taken by the Director of the Nowy Wisnicz Prison who had not been independent and no effective appeal lay against his decision as the sanction became immediately enforceable.

2. The applicant further complains under Article 8 of the Convention about the facts of this case and that the correspondence with his wife has been censored ever since his imprisonment.

3. Finally, he complains that his right to freedom of expression wa s violated in breach of Article 10 of the Convention.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in the present case?

If yes, did the applicant have a fair hearing by an independent tribunal, in accordance with Article 6 § 1 of the Convention?

2. Has there been a violation of the applicant ’ s right to respect for his correspondence, contrary to Article 8 of the Convention? Reference is made to the facts that the applicant ’ s letter of 26 April 2007 was seized by the authorities and to the alleged general censorship of the applicant ’ s correspondence with his wife during his imprisonment.

3. Has there been an interference with the applicant ’ s right to freedom of expression , within the meaning of Article 10 § 1 of the Convention?

4. The Government are invited to submit a copy of the decision of the Director o f the Nowy Wisnicz Prison of 27 April 2007 and of the applicant ’s letter of 26 April 2007 addressed to his wife which was joined to his personal file as a prisoner.