CASE OF MATWIEJCZUK v. POLAND
Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8 with regard to monitoring of correspondence;Not necessary to examine Art. 34;No violation of Art. 8 with regard to delay of correspondence;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Matti Pellonpää
9. The applicant was born in 1966 and is currently detained in the Radom prison. 10. In July 1996 the applicant was released from prison. On 11 September 1996 the police arrested him. The police suspected that on 10 September 1996 the applicant had committed an armed robbery and rape. At the same time, the police enforced a warrant for the arrest of the applicant issued on 28 August 1996 by the Pruszków District Court (Sąd Rejonowy) in the criminal proceedings against the applicant pending before that court. 11. On 13 September 1996 the Warsaw District Court remanded the applicant in custody on charges of armed robbery and sexual assault. The court took into account the fact that the applicant was of no fixed abode and that his accomplices had not been arrested. 12. On 8 November 1996 the Warsaw Regional Court (Sąd Wojewódzki) dismissed the applicant's appeal against the District Court's decision to remand him in custody. The Regional Court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him, the risk of collusion, the fact that he was of no fixed abode and was unemployed. In addition, the court observed that the police failed to apprehend the applicant's accomplices and that there was a risk that he would go into hiding. Finally, the court was of the view that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. 13. On 10 December 1996 the Warsaw Regional Court extended the applicant's detention until 11 March 1997. 14. The applicant made an application for release but it was dismissed on 19 December 1996 by the Warsaw Regional Court. It referred to the gravity of the charges brought against the applicant and the existence of serious evidence of his guilt. 15. Between 20 January and 27 February 1997 the prosecution service decided that it would seek evidence from five expert witnesses and requested the applicant's medical file from a psychiatric hospital in which he had been treated. 16. On 4 March 1997 the Warsaw Regional Court appointed legal aid counsel to defend the applicant. 17. On 5 March 1997 the prosecution service received two expert opinions. On 7 March 1997 the District Prosecutor interviewed the victim of rape. 18. On 10 March 1997 the Warsaw Court of Appeal (Sąd Apelacyjny) allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 May 1997. The court referred to the gravity of the charges against the applicant and the grounds for detention provided in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. Moreover, it noted that one of the co-accused was still in hiding and that immediately after the commission of the alleged crime “there had been an attempt to contact the victim [of the assault]”. The court also agreed with the submissions of the prosecutor that the investigation was not finished because certain forensic tests still had to be carried out, the applicant and another co-accused were still under psychiatric observation, whereas the police was trying to apprehend the third accused. The applicant appealed against that decision to the Supreme Court (Sąd Najwyższy). 19. Between 8 and 18 April 1997 the prosecution service received two expert opinions and decided to request DNA tests. 20. On 24 April 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 10 March 1997. It referred to the charges against the applicant and observed that there existed serious evidence of his guilt. 21. On 29 April 1997 the Warsaw-Ochota Deputy District Prosecutor (Zastępca Prokuratora Rejonowego) replied to the applicant's letter of 23 April 1997 in which he complained about the censorship of his correspondence with the European Commission of Human Rights. The prosecutor advised the applicant about domestic legislation, which allowed the authorities to censor his correspondence. 22. On 9 May 1997 the Warsaw Court of Appeal allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 July 1997. The court relied on the existence of serious evidence of the applicant's guilt and the nature of charges against the applicant. It also considered that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. Finally, the court noted that the prosecution service was awaiting an expert opinion from a forensic expert and that one of co-accused was still in hiding. The applicant appealed against that decision. 23. On 16 May 1997 the prosecution service received the results of DNA tests. On 18 June 1997 the District Prosecutor interviewed the applicant and decided to modify charges against him. 24. On 27 June 1997 the prosecuting authorities filed with the Warsaw Regional Court a bill of indictment against the applicant. 25. On 7 July 1997 the Warsaw Regional Court extended the applicant's pretrial detention until 11 September 1998. 26. On 9 July 1997 the trial court dismissed the applicant's challenge to the prosecutor who worked on his case. During the two following days the applicant was consulting the case-file. 27. On 10 July 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 9 May 1997. The Supreme Court relied on the gravity of charges against the applicant, the existence of serious evidence of his guilt and the grounds for detention listed in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. It also pointed out that the Warsaw Regional Court's decision of 7 July 1997 extending the applicant's detention had been taken before the Supreme Court had the opportunity to decide his appeal against the Warsaw Court of Appeal's decision of 9 May 1997 and therefore constituted “an inappropriate practice”. 28. On 15 July 1997 the applicant's counsel appealed to the Warsaw Court of Appeal against the Regional Court's decision of 7 July 1997. On 25 July 1997 the appellate court rejected the appeal. It pointed out that at the time of his arrest the applicant had been of no fixed abode and had been the subject of the arrest warrant. 29. In the meantime, on 22 July 1997 the applicant lodged with the Warsaw Court of Appeal an appeal against the Regional Court's decision of 7 July 1997. On 5 September 1997 the Warsaw Court of Appeal dismissed the applicant's appeal. The court relied on a medical opinion confirming that the applicant's medical problems could be treated in prison. 30. In the meantime, on 20 August 1997 the applicant made an application for release. On 16 October 1997 the Warsaw Regional Court dismissed the application. It relied on a medical opinion. The applicant's appeal against that decision was rejected because it was not provided by law. 31. On 24 March 1998 the Warsaw Regional Court was informed that the applicant had tried to smuggle a message to his accomplices. However, it was seized by the prison service and included in the court's case-file. 32. Between 25 November 1997 and 19 May 1998 the applicant on six occasions attended hearings before the Pruszków District Court in the criminal proceedings against him pending before that court. 33. On 19 June 1998 the Warsaw Regional Court decided to stop the applicant's letter in which he made threats against one of the prisoners. The letter was included in the court's case-file. 34. On 22 July 1998 the Warsaw Regional Court requested the Supreme Court to extend the applicant's pre-trial detention under Article 222 § 4 of the Code of Criminal Procedure which empowered the Supreme Court to prolong detention beyond two years. The request was based, inter alia, on Articles 209 and 217 § 2 of the Code of Criminal Procedure and referred to the gravity of charges against the applicant, the existence of serious evidence of his guilt and the inability to schedule hearings because of holidays and workload of judges involved in the applicant's case. The request also referred to the fact that the next hearing could not be fixed before evidence is taken from an anonymous witness who could not testify before 3 November 1998. 35. On 22 July 1998 the first hearing was held before the Warsaw Regional Court. The applicant and his co-accused asked that the hearing be adjourned as they had not been able to prepare their defence. The court allowed the request and adjourned the hearing until 3 November 1998. The court took into account heavy workload of judges, the holiday period and the fact that an anonymous witness could not be heard before that date. 36. On 28 August 1998 the Supreme Court allowed the Regional Court's request of 22 July 1998 and extended the applicant's pre-trial detention until 15 December 1998. It pointed out that difficulties in fixing hearings caused by holidays and workload of judges could not be considered as grounds for extending pre-trial detention. Furthermore, the Supreme Court agreed with the Regional Court that the applicant's case disclosed the existence of grounds for detention provided in Articles 209 and 217 § 2 of the Code of Criminal Procedure. The Supreme Court concluded that the inability to take evidence from an anonymous witness before 3 November 1998 justified the extension of the applicant's detention under Article 222 § 4 of the Code of Criminal Procedure. 37. On 3 November 1998 the Warsaw Regional Court held the second hearing in the applicant's case. It took evidence from the victim of sexual assault. The court also made arrangements for taking evidence from an anonymous witness. 38. On 17 November 1998 evidence was taken from an anonymous witness. 39. On 19 November 1998 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The Regional Court considered that the fact that the judges were female did not deprive the applicant of a fair trial on charges of sexual assault. 40. On 23 November 1998 the hearing was adjourned because the prosecution service and witnesses had not been informed about it. 41. The applicant made a further application for release at the hearing held on 1 December 1998 but it was dismissed by the Warsaw Regional Court on 2 December 1998. The court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him and the fact that he had been of no fixed abode at the time of his arrest. Moreover, the court observed that it had not finished taking evidence from certain witnesses. The applicant's appeal against that decision was rejected because it was not provided by law. 42. On 2 December 1998 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 4 December 1998 the Supreme Court allowed that request and prolonged the detention until 15 February 1999. The Supreme Court referred to its decision of 28 August 1998 and observed that the trial court still had to take evidence form certain witnesses. In addition, the trial court did not know the address of one of those witnesses, whereas another witness had to be transported to the court from the Łódź Prison. 43. On 17 December 1998 a hearing took place before the Warsaw Regional Court. 44. On 22 December 1998 evidence was taken from an anonymous witness. 45. The applicant made a fresh application for release but it was dismissed on 4 January 1999 by the Warsaw Regional Court. It referred to the nature and the gravity of charges against the applicant and noted that his trial was in the final stage. 46. On 7 January 1999 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The applicant's appeal against that decision was rejected because it was not provided by law. 47. On 12 January 1999 the police informed the Warsaw Regional Court that one of the witnesses for the defence was dead. 48. On 21 January 1999 a hearing was held before the Warsaw Regional Court. It was adjourned until 3 February 1999 because one of the judges was ill. 49. On 25 January 1999 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 10 February 1999 the Supreme Court allowed that request and prolonged the detention until 31 March 1999. It referred to the reasoning of its decision of 4 December 1998. The Supreme Court also noted the difficulties the trial court experienced in taking evidence from one of the witnesses. Moreover, the court considered that because the applicant had been of no fixed abode at the time of his arrest he could interfere with the proceedings if released from detention. 50. The hearing held on 3 February 1999 was adjourned because the applicant requested that evidence be taken from a new witness. 51. The next hearing was held on 19 February 1999. 52. During the hearing held on 15 March 1999 the applicant applied for release from detention but the court dismissed it. The applicant's appeal against that decision was rejected because it was not provided by law. 53. On 25 March 1999 the Supreme Court prolonged the applicant's detention until 31 May 1999. 54. During the hearing held on 7 April 1999 the Warsaw Regional Court dismissed the applicant's request that the case be remitted to the prosecution service for further investigation. 55. The last hearing before the trial court was held on 28 April 1999. 56. On 4 May 1999 the Warsaw Regional Court convicted the applicant of armed robbery and sexual assault and sentenced him to five years' imprisonment. The applicant appealed against that judgment to the Warsaw Court of Appeal. 57. On 9 November 1999 the Warsaw Court of Appeal held a hearing. The court dismissed the appeal except for the conviction for armed robbery, which it qualified as robbery without the use of arms. 58. The Court's case-file contains the following documents pointing to the monitoring of the applicant's correspondence: (i) the applicant's letters of 5, 22 and 31 January and 7 February 1997 addressed to the European Commission of Human Rights are marked with a handwritten note: “Censored” (Ocenzurowano) and an illegible signature and also bear a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” (Asesor Prokuratury Rejonowej Warszawa Ochota Grażyna Garboś-Jędral); (ii) the applicant's letters of 8, 21 and 24 April 1997 addressed to the European Commission of Human Rights are marked with a handwritten note: “Censored” and an illegible signature; (iii) the applicant's letters of 5 March, 16 May and 3 September 1997 as well as an undated letter received on 19 March 1997 addressed to the European Commission of Human Rights are marked with an illegible signature; (iv) an envelope mailed by the applicant on 5 September 1997 to the European Commission of Human Rights is marked with a handwritten note: “Censored” and an illegible signature; (v) a flap of an envelope with the logo of the Council of Europe bears on the inside a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” and an illegible signature; (vi) an envelope mailed by the European Court of Human Rights on 23 February 1999 to the applicant bears a stamp: “Censored on, signature” (Ocenzurowano dn. podpis), a hand-written date: 5 March and an illegible signature. 59. The Code of Criminal Procedure 1969, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows: “Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.” 60. Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows: “A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.” Article 225 of the Code provided: “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.” Article 217 of the Code, before it was amended on 1 January 1996, provided insofar 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 his identity cannot be established or he has no permanent domicile, or 2. there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or 3. the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or 4. the accused was charged with the commission of an act which constituted significant danger to society.” Article 218 provided: “If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when: 1. it may seriously jeopardise the life or health of the accused; or 2. it would entail excessively burdensome effects for the accused or his family.” 61. Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage. Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided insofar as relevant: “3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years. 4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.” Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”. 62. On 1 September 1998 the Code of Criminal Procedure 1997 replaced the 1969 Code. Article 263 of the new Code, insofar as relevant, provides: “§ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months. § 2. If the special circumstances of a case made it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by: the trial court – for up to 6 months, the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months. § 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years. § 4. Detention on remand may be prolonged for a fixed period exceeding periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”. 63. Article 89 § 2 of the Code of Execution of Criminal Sentences 1969 provided, in so far as relevant, as follows: “(...) [the detainee's] correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.” 64. Rule 33 of the Rules on Detention on Remand 1989, as amended on 29 December 1995, provided, in so far as relevant, as follows: “(1) A detainee has a right to correspond. (2) Detainee's correspondence shall be censored by the organ at whose disposal he remains (...). (3) Correspondence with the Ombudsman and international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, is mailed through the intermediary of [that] organ (...).” 65. On 1 September 1998 the Code of Execution of Criminal Sentences 1997 replaced the 1969 Code. The relevant part of Article 103 § 1 of the 1997 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 105 § 4 provides: “The prison governor shall make decisions concerning the stopping or censorship of the correspondence if it is required by the prison security considerations [and] shall inform about it the penitentiary judge and the convict.” Article 209 “The provisions concerning the execution of sentences shall apply accordingly to the execution of detention on remand, subject to changes resulting from this chapter.” Article 214 § 1 “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 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 reads, in so far as relevant, as follows: “(...) detainee's correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.” Article 242 § 5 of reads as follows: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.” 66. On 1 September 1998 the Rules of Detention on Remand 1998 entered into force. § 36 of the Rules provides: “The detainee's correspondence, including the 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 organ at whose disposal he remains.” § 37 provides: “1. If the organ 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 prison administration when necessary in the interest of protecting social interest, the security of a detention centre or 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 be only subjected to the control of its content, which shall take place in the presence of a detainee.” § 38 provides: “1. Detainee's correspondence shall be censored or seized by the prison administration in the case referred to in Article 105 § 4 of the Code [of Execution of Criminal Sentences]. 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. 3. The decision to censor or to seize correspondence shall be taken by a Governor, who shall inform a detainee about the reasons for censorship or for seizure. 4. For controlling purposes a copy of the correspondence before it was censored shall be placed in the detainee's personal file; if the detainee consults the file, copies of the correspondence before it was censored and the seized correspondence shall not be made available [to him].”