MOCNY v. POLAND
Inadmissible
Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
The applicant, Mr Romuald Mocny, is a Polish national who was born in 1966 and lives in Kalisz. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 December 1989 the Ostrów Wielkopolski District Prosecutor made a seizure order in respect of the applicant’s salary in the amount of 60,297.50 old Polish zlotys in the context of criminal proceedings against him. In accordance with the then applicable rules the seized amount was placed on a court deposit. On an unspecified date in 1990 the applicant was convicted of a criminal offence. On an unspecified date in 2009 the applicant requested the Ostrów Wielkopolski District Court to return the seized amount. On 28 April 2009 the court allowed his request. The amount to be returned was 6 new Polish zlotys following the change in the denomination of the national currency which had taken place on 1 January 1995. The applicant appealed and claimed that the amount of 60,297.50 PLN should have been returned to him. On 24 June 2009 the Kalisz Regional Court dismissed his appeal. It found that there were no regulations providing for placement of the seized amount on a bank deposit or that the returned amount should have been index-linked. Accordingly, following the change in the denomination the applicant was due to receive 6 PLN. The envelope in which the applicant’s application form was sent to the Court from the Rawicz Prison bears a stamp “Censored” (Ocenzurowano) and a stamp of the Ostrów Wielkopolski Regional Prosecution Service dated 18 August 2009 and signed by a prosecutor E.M. It also bears a stamp of the Rawicz Prison indicating that the letter was received on 12 August 2009. It appears that the envelope was cut open and subsequently resealed with adhesive tape. 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) of 1 September 1998. Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows: “Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.” Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”. Article 217 § 1 reads, in so far as relevant: “... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.” Pursuant to 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 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 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides: “The prohibition of censorship shall also mean the prohibition on acquainting oneself with the contents of a letter.” Article 23 of the Civil Code sets out a non-exhaustive list of the socalled “personal rights” (dobra osobiste) in the following way: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.” Article 24 § 1 reads as follows: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” Article 448 provides: “The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” Article 442¹ of the Civil Code sets out limitation periods in respect of various claims based on tort, including actions for the infringement of personal rights. Article 442¹, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows: “1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”