CASE OF DZYRUK v. POLAND
Violation of Art. 5-3;Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
4. The applicant was born in 1963 and he is presently detained in Hrubieszów Prison, Poland. 5. On 21 September 1999 the applicant was convicted of a driving offence by the Board for Administrative Offences at the Włodawa District Court (Kolegium d.s. wykroczeń). He appealed. On 29 November 1999 the Włodawa District Court (Sąd Rejonowy) dismissed his appeal. 6. On 9 March 2001 the applicant was arrested by the police. On 12 March 2001 the Włodawa District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody in view of the existence of a reasonable suspicion that he had committed several offences of fraud. The applicant had allegedly been corresponding with several men from different countries, passing himself off as a lady wishing to meet them. 7. On 3 December 2001 the Włodawa District Court prolonged the applicant’s detention, finding that it was highly probable that he had committed the offences with which he had been charged. The court further found that there was a risk that the applicant might go into hiding or obstruct the proceedings. That decision was upheld on appeal on 17 December 2001. 8. On 31 January 2002 the applicant was indicted on charges of fraud against ten Dutch, French and German nationals who had given him money under false pretences, believing that the applicant was a women interested in meeting and visiting them. In the correspondence with the victims the applicant had been using a false name “Narcissus Flower” (Narcyza Kwiatek) and had obtained from them a total of 270 German Marks and 1,600 US Dollars. 9. The applicant filed an application for release, but on 11 February 2002 the Włodawa District Court dismissed it reiterating the original grounds for the detention. The court further prolonged his detention, finding that the applicant’s place of permanent residence was far from the trial court and, if released, he would obstruct the proper course of proceedings. Simultaneously, the court dismissed the applicant’s request to be released on bail. 10. On 8 March, 6 June and 30 July 2002 the Włodawa District Court prolonged the applicant’s detention on remand. The decisions repeated the same grounds for the applicant’s detention: the reasonable suspicion against him, the severity of the anticipated sentence and the fear that he might go into hiding or otherwise obstruct the proceedings. 11. On 5 August 2002 the Włodawa District Court gave judgment. The applicant was convicted as charged and sentenced to three years’ imprisonment and a fine. 12. The applicant lodged an appeal. 13. On 14 August 2002 the Lublin Regional Court released the applicant on bail. The court found that the original reasons for keeping the applicant in detention had ceased to exist since the applicant had no previous conviction and had a permanent place of residence. 14. On 15 July 2003 the Lublin Regional Court partly amended the judgment. It appears that the judgment is final. 15. The applicant submits that during his detention his correspondence, in particular that with the Court, was censored by the authorities. In March 2001 the Włodawa District Prosecutor decided to obtain and control the correspondence from the applicant’s post office box - apparently during the investigation stage. The applicant’s appeals against those decisions were dismissed by the Lublin Regional Prosecutor. 16. On 4 April 2001 the Registry sent a letter to the applicant addressed to his post office box. The applicant provided the Registry with the original of this letter and complained that it had been censored by the authorities. On the top of the Registry’s letter there is a stamp: “District Prosecutor Bogusław Lechocki” (Prokurator Prokuratury Rejonowej Bogusław Lechocki), a hand-written note: “censored, 12 June 2001” (“Ocenzurowano, 12/06/2001”) and an illegible signature. 17. On 28 February 2002 the Registry received the applicant’s letter of 14 February 2002. The envelope bears a hand-written note: “Włodawa District Court” (S.R. Włodawa). The envelope, which is addressed to the Registrar, the European Court of Human Rights, bears signs of having been opened after being sealed: its right side had been cut open and then resealed with a white self-adhesive paper slip. It is postmarked 18 February 2002. 18. On 19 March 2002 the Registry received the applicant’s letter of 5 March 2002. The envelope, which is addressed to the Registrar, the European Court of Human Rights, bears a hand-written note: “Włodawa District Court” (SR Włodawa). The envelope bears signs of having been opened after being sealed: its right side had been cut open and then resealed with five white self-adhesive paper slips. It is postmarked 8 March 2002. 19. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju). Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused committing another serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” 20. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. 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 when he has no permanent abode [in Poland]; (2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 21. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. 22. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. whole may not exceed 12 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, 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 stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested in the court of appeal within whose jurisdiction the offence in question has been committed. 23. Rules relating to means of controlling 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. 24. 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.” 25. 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.” 26. Article 217 § 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 § 5 reads as follows: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.” 27. On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) 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.” 28. Article 218 of the Code concerns seizure of correspondence by a decision of prosecution authorities. It provides as follows: “1. Offices, institutions and entities operating in post and telecommunications fields, customs houses, and transportation institutions and companies, shall be obligated to surrender to the court or prosecutor upon demand included in their order, any correspondence or transmissions significant to the pending proceedings. Only the court and a prosecutor shall be entitled to open them or to order their opening. 3. Correspondence and transmissions irrelevant to the criminal proceedings should be returned to the appropriate offices, institutions or companies as set forth in § 1, without delay.”