FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14450/02 
by Maciej MAKSYM 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 May 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki, 
 Ms L. Mijović, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 25 April 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Maciej Maksym, is a Polish national who was born in 1971 and lives in Warsaw, Poland

A.  The circumstances of the case

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

1. Criminal proceedings against the applicant.

The applicant was the owner of a company in Gdańsk (Agencja Rozwoju Przedsiębiorczości i Inwestycji w Gdańsku)

On 8 April 1999 he was arrested on suspicion of fraud.

On 10 April 1999 the Gdańsk District Court (Sąd Rejonowy) ordered his detention on remand for three months.

Upon the applicant’s appeal, on 11 May 1999 the Gdańsk Regional Court (Sąd Okręgowy) upheld the detention order. The court held that keeping the applicant in custody had been necessary to ensure the proper conduct of the proceedings. In addition, there had been reasonable grounds to believe that he had committed the offence with which he had been charged.

The applicant lodged several applications for release. All those applications were dismissed, both at first instance and on appeal.

During the investigation and the first-instance trial, the applicant’s detention was prolonged on several occasions; the last of the relevant decisions was given on 8 October 1999 and extended the applicant’s detention until 8 April 2000.

Meanwhile, on 21 May 1999 the applicant began serving a 3 years and 10 months’ prison sentence, which resulted from another conviction.

On 9 January 2000 the Gdańsk District Court convicted the applicant as charged and sentenced him to 3 years and 6 months imprisonment.

On 10 May 2000 the Gdansk District Court imposed a fine on the applicant in the amount of PLN 1,000 for contempt of court. The court considered that the applicant in his written pleadings of 28 April 2000 had used abusive language and undermined public confidence in the domestic courts.

On 20 November 2000 the president of the Katowice Court of Appeal (Sąd Apelacyjny) refused the applicant’s request to be granted a legal aid lawyer in order to prepare a motion for the reopening of another set of criminal proceedings. The president considered that the applicant had been working in prison and that he had sufficient means to pay a lawyer’s fee.

On 18 October 2001 the Gdańsk Regional Court upheld the first instance conviction.

On 9 May 2002 the applicant was again arrested on suspicion of fraud. On 10 May 2002 the Olsztyn District Court ordered his detention on remand until 28 June 2002. On 28 June 2002 the District Court prolonged the applicant’s detention, this time until 28 September 2002.

On 16 September 2002 the Olsztyn District Court convicted the applicant as charged and sentenced him to 3 years’ imprisonment.

Upon the applicant’s appeal, the Olsztyn Regional Court amended the first instance judgment on 30 January 2003.

The applicant filed a cassation appeal. On 1 March 2004 the Supreme Court gave a decision and dismissed the applicant’s cassation appeal as manifestly ill-founded.

2. Civil proceedings

On 4 occasions in 2000 the applicant lodged claims for payment against four different defendants: the State treasury and the Gdańsk District prosecutor, D.S., L.R, D and J.S. He also asked to be exempted from court fees. In all four cases the first-instance court refused his request on the ground that the applicant’s financial situation was very good: he owned three cars, two trucks and a 100m2 flat. The courts referred to the applicant’s earnings in 1999, when he had been running his own company. Accordingly, his motions had been considered as an abuse of the “law of the poor” (prawo ubogich). All decisions were upheld on appeal, on 20 November 2000, 14 December 2000, 15 January 2001 and 15 December 2001 respectively.

3. Monitoring of the applicant’s correspondence

At the time of lodging his application with the Court the applicant had been detained on remand in the course of criminal proceedings against him. At the same time, as of 21 May 1999 he was serving a prison sentence imposed in the course of another set of criminal proceedings against him.

On 6 June 2000, the Registry of the Court received the applicant’s letter dated 12 April 2000. Both the letter and the envelope bear a stamp “Censored on... judge” and no signature (Cenzurowano dn... sędzia.).

On 13 February 2001, the Registry of the Court received another letter from the applicant (dated 29 December 2000). It was delivered in an envelope bearing a stamp “Censored on... judge” and no signature (Cenzurowano dn... sędzia.). It also bears a red stamp “Remand Centre in Gdańsk” (Areszt Śledczy w Gdańsku).

On 25 June 2001, the Registry of the Court received another letter from the applicant, dated 24 July 2000 (sent on 13 June 2001). It was delivered in an envelope bearing a stamp “Censored on... judge” and no signature (Cenzurowano dn... sędzia.). It also bears a handwritten note: “letter admitted to transport sealed with an adhesive tape” (list przyjęty do przewozu oklejony taśmą).

B.  Relevant domestic law and practice

1. The acts on legal structure of the courts.

Section 43 § 1 of the Act of 20 June 1985 (“the 1985 Act”) on the legal structure of the courts (Prawo o ustroju sądów powszechnych), provides, inter alia, that the court may impose a disciplinary penalty, a fine or a prison sentence, on a person who, at a court session, behaves in an abusive manner or disturbs the public order.

Under Section 44 § 1 of the Act, no appeal is available against a decision to impose such a penalty.

On 1 October 2001 the new act on the legal structure of the courts entered into force. According to Section 50 of the new act it is possible to file an appeal against a decision to impose a penalty for contempt of court.

On 3 July 2002 the Constitutional Court gave judgment (No. SK 31/01) and declared unconstitutional Section 44 § 1 of the 1985 Act. It found that this provision was not in compliance with article 78 (right to appeal) and article 176 § 1 (right to two court instances) of the Constitution.

2.  The Code of Execution of Criminal Sentences 1997

Rules relating to the 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.

At the material time, Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provided as follows:

“Convicted persons (...) 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.”

Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.

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.”

Article 217 § 1 read, 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.”

On 1 September 2003 an amendment to the Code of Execution of Criminal Sentences of 24 July 2003 entered into force. Article 217 was rephrased and new articles 217a-b concerning monitoring of detainees correspondence were added.

Article 217a reads in so far as relevant:

“§ 1. Detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise (...)

§.2 If the authority at whose disposal a detainee remains does not decide on censoring his correspondence, such a decision may be taken by the director of the detention centre. The director shall notify the detainee concerned, a penitentiary judge and the authority at whose disposal the detainee remains about the reasons for censoring the correspondence (...). “

Article 217b reads in so far as relevant:

“(...)

2. Detainee’s correspondence, including the correspondence with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights, the Ombudsman, state and self-government institutions shall be sent to the addressee through the authority at whose disposal he remains. “

3. The Rules of Detention on Remand 1998

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:

“A detainee’s correspondence, including 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 authority at whose disposal he remains.”

§ 37 provides:

“1.  If the authority 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 administration of the detention centre when necessary in the interest of protecting the social interest, the security of a detention centre or the 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 only be subjected to the control of its content [kontrola zawartości], which shall take place in the presence of a detainee.”

§ 38 provides:

“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.”

COMPLAINTS

1. The applicant complains under Article 5 § 4 that his appeal against the arrest on 8 April 1999 was not examined “speedily”.

2. The applicant further alleges a breach of Article 5 § 3 in that his detention on remand had been excessive.

3. He further complains under Article 10 and 13, that the imposition of fine for contempt of court was in his case entirely unjustified and therefore in violation of Article 10. He further invokes Article 13 of the Convention, alleging that he did not have a remedy to complain about the court’s decision to impose a fine on him.

4. He complains under Article 6 § 1 about lack of access to a court in view of the fact that he was not exempted from court fees in proceeding with his civil claims.

5. Lastly, he alleges a breach of Article 6 § 3 ( c ) because of the refusal to grant him an officially appointed lawyer to file a motion for the reopening of the criminal proceedings against him.

THE LAW

1. The applicant complained under Article 5 § 4 that his appeal against the arrest on 8 April 1999 had not been examined “speedily”.

In this connection the Court observes that the applicant has failed to submit any evidence to substantiate this complaint.

In addition, the Court notes that the applicant appealed against the detention order of 10 April 1999 and his appeal was examined by the Gdańsk Regional Court on 11 May 1999.

There are therefore no grounds on which to find that the proceedings, concerning the review of the lawfulness of the applicant’s detention, examined as a whole, fell short of the requirements of this provision of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

2.  The applicant alleged under Article 5 § 3 that the length of his detention on remand had been excessive.

The Court observes that the applicant was arrested on 8 April 1999. However, on 21 May 1999 the applicant began serving a prison sentence which resulted from another conviction. The applicant was then convicted at first instance on 9 January 2000 and his conviction was upheld on appeal.

According to the Convention organs’ case-law, a person convicted at first instance and detained pending an appeal by him cannot be considered to be detained “for the purposes of bringing him before the competent legal authority on reasonable suspicion of having committed an offence” within the meaning of Article 5 § 3 of the Convention (see Fiecek v. Poland, no 27913//95 Commission decision of 2 July 1997, unreported). Furthermore, the period between 21 May 1999 and 9 January 2000 must be subtracted from the total period of the applicant’s detention since during this time he was serving a sentence resulting from another conviction.

In these circumstances, the period of the applicant’s detention on remand to be considered under Article 5 §3 of the Convention must be calculated from 8 April 1999 to 21 May 1999 and from 9 May 2002 to 16 September 2002. Accordingly, it lasted five months and three weeks. The Court has examined the applicant’s complaints in the light of the criteria relating to the determination of the “reasonableness of the length of detention on remand” set out in the Convention organs’ case-law (see, for instance, Jabłoński v. Poland, no. 33492/96, § 80, 21 December 2000). In this respect, the Court finds that the overall length of the applicant’s detention did not exceed a “reasonable time” within the meaning of Article 5 § 3 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  The applicant further complained under Article 10 about the decision to impose a fine on him for contempt of court. He also submitted under Article 13 that no appeal laid against such a decision in the domestic law.

Under Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted. In this respect the Court observes, that although the Act on legal structure did not provide for a possibility to appeal against such a decision, the applicant had the possibility to lodge a constitutional complaint with the Constitutional Court. Consequently, a constitutional complaint filed by the applicant in the present case could have been considered an effective remedy within the meaning of the Convention (see, Wiacek v. Poland (dec.), no. 19795/02, 17 January 2006).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

As regards the complaint under Article 13, the Court, having regard to its conclusion concerning Article 10, finds that no separate issue arises under this provision.

4. The applicant complained under Article 6 § 1 that the fact that he had not been exempted from court fees required from him for proceeding with his civil claims, had amounted to a disproportionate restriction on his access to a court.

The Court notes that the “right to a court” under Article 6 § 1 is not absolute but may be subject to various limitations, including financial ones. However, the limitations applied must not restrict or reduce the access afforded to the applicant in such a way or to such an extent that the very essence of that right is impaired (see, Kreuz v. Poland, no. 28249/95, §§ 53, 54, ECHR 2001-VI).

In the present case, the Court observes, that from the documents submitted by the applicant it does not appear that the courts were arbitrary in assessing the applicant’s financial situation. Therefore, there is no indication that the limitations imposed on the applicant constituted a disproportionate restriction on the applicant’s access to a “tribunal”.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The applicant complained under Article 6 (3) about a refusal to grant him a legal aid lawyer to file a motion for the reopening of the criminal proceedings against him.

In this respect the Court recalls that the guarantees of Article 6 of the Convention do not apply to proceedings in which the re-opening of proceedings terminated by a final decision is sought (see, among many other authorities, Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001; Wierciszewska v. Poland, no. 41431/98, § 35, 25 November 2003). The Court therefore concludes that Article 6 of the Convention is not applicable to this part of the proceedings.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

6.  In respect of the monitoring of the applicant’s correspondence, the Court raises ex officio a complaint about a breach of Article 8 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaint concerning the monitoring of the applicant’s correspondence;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

MAKSYM v. POLAND DECISION


MAKSYM v. POLAND DECISION