CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 mars 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s11709F00 { margin-top:6pt; margin-bottom:0pt; text-align:center } .s304E8EB8 { margin-top:6pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s7BE5FA78 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s812E622E { width:191.97pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FOURTH SECTION             CASE OF POROWSKI v. POLAND   (Application no. 34458/03)       JUDGMENT               STRASBOURG   21 March 2017     FINAL   21/06/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Porowski v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Vincent A. De Gaetano,   András Sajó,   Nona Tsotsoria,   Krzysztof Wojtyczek,   Egidijus Kūris,   Gabriele Kucsko-Stadlmayer, judges, and Marialena Tsirli, Section Registrar , Having deliberated in private on 28 February 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 34458/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Dariusz Porowski (“the applicant”), on 26 November 2001. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, who was succeeded by Ms   J.   Chrzanowska of the Ministry of Foreign Affairs. 3.     The applicant alleged that his detention on remand had been unlawful and had exceeded a “reasonable time”. He also complained of the censorship of his correspondence with his lawyer and of the alleged unfairness and unreasonable length of three sets of criminal proceedings against him and against third persons. 4.     On 14 September 2006 the Court decided to give notice of the application to the Government. On 17 February 2009 the case was communicated to the Government for supplementary observations on an additional complaint which was introduced by the applicant on 20   January   2003. THE FACTS 5.     The applicant was born in 1964 and lives in Otwock. I.     THE CIRCUMSTANCES OF THE CASE A.     First set of criminal proceedings against the applicant and his detention on remand (no. II K 414/02) 6.   The applicant was arrested on 11 July 2000. 7.     On 12 July 2000 the Jarosław District Court ( Sąd   Rejonowy ) remanded him in custody on suspicion that, together with two accomplices, he had attempted to extort money from J.G. and M.G. by depriving the alleged victims of their liberty and threatening to kill them. 8.     Subsequently, the applicant’s detention on remand was extended by the Jarosław District Court on 9 October and 29   December   2000 and 3   April, 25 June, 18 September and 29   October   2001. Interlocutory appeals brought by the applicant against those decisions were rejected. The Jarosław District Court justified its decisions to impose and, later, to extend the preventive measure with reference to the strong evidence against the applicant, the severe punishment which was likely to be imposed if he was convicted and the risk that he would abscond or go into hiding if released. In the domestic court’s opinion, the latter risk was real in the light of the fact that in the past, the applicant had rarely lived at his permanent address. 9.     On 13 December 2001 the Jarosław District Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The period which he had already spent in detention, namely one year, five months and three days (from 11   July 2000 until 13 December 2001), was deducted from his sentence. 10.     On 23 April 2002 the Krosno Regional Court ( Sąd Okręgowy ) quashed that judgment and remitted the case to the first-instance court. 11.     The applicant’s detention was continued by the Krosno Regional Court on 22 March 2002 and the Jarosław District Court on 4 June and 8   October 2002 and 9 January, 3 April, 7 July and 9 October 2003. At this stage of the proceedings the domestic courts referred to the original grounds for the applicant’s detention. They also noted that the trial was pending and that delays had occurred for reasons not attributable to the court. Interlocutory appeals against those decisions were rejected, as were requests for release lodged by the applicant and his lawyer. 12.     On 7 November 2003 the Jarosław District Court convicted the applicant as charged and sentenced him to five years’ imprisonment. The time which he had already spent in detention, namely three years, three months and twenty seven days (from 11   July 2000 to 7 November 2003), was deducted from his sentence. 13.     On 23 March 2004 the Krosno Regional Court upheld the first ‑ instance judgment in respect of the applicant. 14.     On 9 December 2004 the Supreme Court dismissed the applicant’s cassation appeal. 15.     Throughout the entire proceedings the applicant was represented by two lawyers of his choice. 16.     The applicant did not lodge any complaint about the length of these proceedings under the Law of 17 June 2004 on complaints of a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”) B.     Second set of criminal proceedings against the applicant and his detention on remand (no. II K 46/06) 17.     On 10 November 2000 the Mińsk Mazowiecki District Court remanded the applicant in custody on the grounds that there was a reasonable suspicion that he had committed armed robbery and deprived the victims of their liberty. The court also considered that the measure was justified by the severity of the punishment which was likely to be imposed if he was convicted and the need to ensure the proper conduct of the proceedings. The applicant lodged an interlocutory appeal. On 29   November 2000 the Siedlce Regional Court upheld the detention order. 18.     The applicant lodged several applications for release. He claimed that his mother suffered from a “back illness” and required his personal care. All those applications were dismissed, both at first instance and on appeal. 19.     On 29 January 2001 the Siedlce Regional Prosecutor (Prokurator Rejonowy) lodged an indictment against the applicant and two co-accused, charging them with armed robbery and false imprisonment. At that stage the prosecutor ordered that nine witnesses be heard. 20.     Subsequently, the applicant’s detention on remand was extended by the Mińsk Mazowiecki District Court on 6 February, 11   April, 12 July and 15 October 2001, and on 10 January 2002. Three of these decisions were upheld by the Siedlce Regional Court on 1 March, 29   August and 7   November 2001 respectively. The domestic courts referred to the same grounds as previously, noting that prior to his arrest the applicant had not lived at his permanent address and that his whereabouts were unknown. It was also observed that the trial had still not begun because the applicant had challenged the judges who would be hearing his case. 21.   On 14 June 2002 the Mińsk Mazowiecki District Court dismissed a request by the applicant for release. 22.   Meanwhile, on 2 April 2002 the applicant’s case was severed from that of his co ‑ accused, to be dealt with in a different trial. The first hearing was scheduled for 18 June 2002 but was ultimately adjourned. The subsequent hearing was likewise adjourned. 23.     Subsequently, the Mińsk Mazowiecki District Court further extended the applicant’s detention on 9 April and 12 July 2002. The earlier decision was upheld by the Siedlce Regional Court on 8 May 2002. The courts reiterated the grounds previously given for the applicant’s continued detention, also noting that there was a real risk that he would obstruct the proceedings if released in the light of the fact that many of his alleged accomplices were still at large. 24.     On 30 July and 29 August 2002 the trial court held the first two hearings in the case and on 27 August 2002 it ordered that the applicant undergo psychiatric observation. 25.     On 6   September 2002 the Mińsk Mazowiecki District Court extended the applicant’s detention on remand. This decision was upheld by the Siedlce Regional Court on 2 October 2002. Both courts referred to the original grounds, also noting that the applicant’s case had not yet reached the trial stage since proceedings against him before a different criminal court were pending at the time and there was a need to obtain an expert report which, in turn, required him to undergo psychiatric observation in a specialist institution. 26.     On 22 October 2002 the Siedlce Regional Court rejected an application by the applicant to have his detention on remand replaced with a different preventive measure. 27.     On the same date, as the period of the applicant’s detention on remand was approaching two years, the trial court lodged an application with an appellate court under Article 263 § 4 of the Code of Criminal Procedure ( Kodeks postępowania karnego  hereinafter, “the Code”), seeking to extend the preventive measure for another five months. 28.     On 30 October 2002 the Lublin Court of Appeal ( Sąd Apelacyjny ) declared that it lacked jurisdiction and transferred the applicant’s remand file to the Mińsk Mazowiecki District Court. The appellate court referred to the uniform and well-established line of interpretation given to Article 263 of the Code by the Supreme Court. It reiterated that the statutory time-limit of two years for detention on remand was considered to run only in so far as a person had been effectively deprived of his or her liberty in the particular case in the framework of which the preventive measure had been applied (see paragraphs 73 and 74 below). The appellate court concluded that since the applicant had been deprived of his liberty, either on remand or after conviction, from 12 July 2000 onwards in the first criminal case, the term of his “effective detention on remand” in the second criminal case had not yet begun. 29.     On 5 November 2002 the Mińsk Mazowiecki District Court once more extended the applicant’s detention. On 4 December 2002 the Siedlce Regional Court upheld that decision. Both courts held that the three original grounds for the applicant’s detention and the need for him to undergo psychiatric observation were sufficient to extend the preventive measure in question even though the proceedings had not yet reached the trial stage. In addition, the second-instance court addressed the arguments which had been raised in an interlocutory appeal brought by the applicant against the District Court’s decision. To that effect, the Regional Court reiterated the view of the Lublin Court of Appeal that the applicant’s detention on remand was not effective because he had been first deprived of his liberty within the framework of the first criminal case. It also considered that only the most severe preventive measure and not bail, as the applicant had suggested, could ensure the proper conduct of the proceedings. 30.     On 17 December 2002 the Mińsk Mazowiecki District Court stayed the proceedings pending the enforcement of the court’s decision of 27   August 2002 ordering the applicant to undergo psychiatric observation (see paragraph 24 above). On 5 February 2003 the Siedlce Regional Court dismissed an interlocutory appeal brought by him against this decision. It was observed that he could not at that stage be placed under psychiatric observation because his presence was necessary in the court before which his other criminal case was pending and because that court had not authorised the measure. 31.     In the meantime, on 28 January 2003 the Mińsk Mazowiecki District Court once again extended the applicant’s detention on remand, referring to the risk that he might attempt to obstruct the proceedings if released. 32.     On 27 February 2003 the Siedlce Regional Court quashed that decision and ordered the applicant’s release from custody. The court found that the grounds for his detention were no longer valid in the light of the fact that the proceedings had been stayed. 33.     The Government submitted that on 3 March 2003 the applicant had actually been released to his home. He on the other hand maintained that he had remained in custody as he had concurrently been in detention on remand in connection with his first criminal trial, pending at the time before the Jarosław District Court (see paragraphs 6-13 above). 34.     On 12 November 2003 the Mińsk Mazowiecki District Court barred the applicant from leaving the territory of Poland. 35.     On 11 December 2003 the Jarosław District Court ordered that the applicant undergo psychiatric observation in the psychiatric wing of the Warszawa-Mokotów Remand Centre. 36.     On 30 December 2003 the Mińsk Mazowiecki District Court resumed the proceedings in the applicant’s case in view of that decision and the fact that the psychiatric observation could be scheduled to start in March 2004. On the same date the court again remanded him in custody on the grounds that the evidence showed a significant probability that he had committed armed robbery. It also had regard to the severity of the punishment that could be expected and the need to ensure the proper conduct of the proceedings. 37.     On 28 January 2004 the Siedlce Regional Court dismissed an interlocutory appeal brought by the applicant against this decision. The appellate court acknowledged that the applicant had not to date attempted to obstruct the proper course of the proceedings. Nevertheless, the likelihood that a severe punishment would be imposed if he were convicted was considered to be sufficient reason for his continued detention. 38.     On 6 February 2004 the applicant applied to the Mińsk Mazowiecki District Court for the preventive measure to be changed. On 24   February   2004 the court dismissed his request. 39.     On 23 March 2004 the Mińsk Mazowiecki District Court further extended the applicant’s detention on remand. The court gave the argument that strong evidence had been obtained against him, that it was likely that a severe sentence would be imposed in the case, and that, if released, he would attempt to persuade witnesses to give false evidence or would, by other unlawful means, try to obstruct the proceedings, especially in the light of the fact that the psychiatric observation was underway. 40.   Appealing against the latter decision, the applicant’s lawyer argued that his client had already been detained for almost four years and that the District Court did not have jurisdiction to decide on the preventive measure. Moreover, it was argued that since the applicant had never attempted to obstruct the proceedings, there was no risk that he would try to do so in the current stage of the case. 41.     On 28   April   2004 the Siedlce Regional Court dismissed that appeal. It was observed that the actual period of the applicant’s detention on remand in the case in question had not reached two years because he had been concurrently deprived of his liberty in the framework of the first set of criminal proceedings. As to the grounds for extending his detention on remand, the appellate court held that, even though he had not attempted to obstruct the proper course of the proceedings, the likelihood that a severe punishment would be imposed if he were to be convicted was sufficient reason to uphold the preventive measure in question. 42.     On 24 June 2004 the Mińsk Mazowiecki District Court again decided to extend the applicant’s detention on remand in view of the reasonable suspicion that he had committed armed robbery and the severity of the punishment that could be expected. This decision was upheld on 15   July 2004 by the Siedlce Regional Court. 43.     On 23 August 2004 the Mińsk Mazowiecki District Court rejected a request by the applicant for release, relying on the same grounds as in the decision described above. 44.     Subsequently, the applicant’s detention on remand was extended by the Mińsk Mazowiecki District Court on 9 September and 22   December   2004 and 24 March and 23 June 2005. The decisions were upheld by the Siedlce Regional Court on 29 September 2004, on an unspecified date and on 13 April and 28 July 2005 respectively. All the decisions in question were based on the grounds that there was strong evidence against the applicant, that a severe punishment would be imposed if he were convicted and, since the court proceedings were only at the initial stage, that if released, he would attempt to persuade witnesses to give false evidence or, by other unlawful means, obstruct the proper course of the proceedings. It was also stressed in the earlier decisions that the trial court had not yet started its examination of the applicant’s case on the merits. 45.     On 1 September 2005 the Mińsk Mazowiecki District Court convicted the applicant as charged and sentenced him to six years’ imprisonment. The period he had already spent in detention on remand, namely one month and twenty-one days (from 11 July until 1   September 2005), was deducted from his sentence. The remainder of his incarceration was considered to have comprised the prison sentence which had been imposed by the Jarosław District Court in the separate criminal case (see paragraph 12 above). It appears that the first-instance court held fourteen and adjourned five hearings. It decided applications by the applicant challenging the judges, opposing the psychiatric observation and requesting a fresh examination of the case. 46.     On 10 February 2006 the Siedlce Regional Court quashed the judgment of 1 September 2005 (see paragraph 45 above) and remitted the case to the first-instance court, ordering it to gather additional evidence. 47.     On 7 March 2006 the Mińsk Mazowiecki District Court extended the applicant’s detention. That decision was upheld on 29 March 2006. The domestic courts considered that the actual period of detention on remand in the framework of the second case had only started running on 11 July 2005, when he was no longer deprived of his liberty in connection with the first criminal case. The courts also referred to the two original grounds for the applicant’s continued detention, namely a reasonable suspicion that he had committed armed robbery and the severity of the punishment that could be expected. In the courts’ view, the latter element in turn created a presumption that the applicant would attempt to obstruct the proper conduct of the proceedings if released. 48.     On 29 March 2006 the Siedlce Regional Court fully adhered to the reasoning of the first-instance court and upheld the above-mentioned decision. 49.     On 11 April 2006 the case was transferred to the Siedlce Regional Court as the competent court because, in the meantime, the charges against the applicant had been modified. 50.     Pending trial the applicant’s detention was extended by the Siedlce Regional Court on 31 May and 21 June 2006, on an unspecified date and on 13   November 2006 and 19 January 2007. The decisions were upheld by the Lublin Court of Appeal. The domestic courts reiterated the original grounds for the applicant’s detention on remand and stressed that the preventive measure in question had not lasted more than two years, regard being had to the fact that from 7   November 2003 to 11 July 2005 he had been serving a prison sentence imposed in the first set of criminal proceedings. 51.     The first hearing took place on 29 June 2006. 52.     On 6 July 2007 the Siedlce Regional Court convicted the applicant as charged and sentenced him to six years’ imprisonment. It appears that the court held seven hearings in the case. The period the applicant had already spent in detention on remand, namely one year, eleven months and twenty five days (from 11 July 2005 until 6 July   2007) was deducted from his sentence. 53.     On 9 April 2008 the Lublin Court of Appeal quashed that judgment, lifted the preventive measure and remitted the case to the lower courts. The following day the applicant was released from the remand centre. He has remained at liberty ever since. 54.     On 23 October 2009 the Siedlce Regional Court convicted the applicant on a number of charges and sentenced him to six years’ imprisonment. It held fourteen hearings in the case. Two years and nine months of the applicant’s detention on remand (from 11 July 2005 to 10   April 2008) were deducted from his sentence. It appears that he was not ordered to serve the remainder of his sentence. 55.   On 12 February 2010 the applicant appealed. 56.     On an unspecified date before March 2011 the Lublin Court of Appeal upheld the first-instance judgment. 57.     The applicant did not wish to take his case to the Supreme Court, believing that a cassation appeal would not have any prospects of success. 58.     He did not lodge a complaint about the length of the second set of criminal proceedings under the   2004 Act. C.     The applicant’s constitutional complaint 59.     On 29 November 2006 the applicant made a constitutional complaint ( skarga konstytucyjna ) under Article   191, read in conjunction with Article   79 of the Constitution (see paragraph 86 below), asking for Article   263 §§ 3 and 4 of the Code (see paragraph 73 below) to be declared unconstitutional (SK 39/07). He alleged that the provision infringed, inter alia , the right to personal inviolability and security under Article 41 § 1 of the Constitution (see paragraph 71 below). On 30   January 2007 the applicant finalised his complaint. The applicant challenged two aspects of Article 263 of the Code of Criminal Procedure. 60.     Firstly, he alleged that Article 263 §§ 3 and 4 were unconstitutional in so far as, under the legal principle ( zasada prawna ) of the Supreme Court (see paragraph 74 below), they concerned only effective detention on remand, that is to say only the actual period of deprivation of liberty on the basis of a detention decision issued in a particular case because they denied a detainee sufficient protection of his liberty if he had earlier been convicted or otherwise deprived of his liberty on the basis of decisions issued in another set of proceedings. 61.     Secondly, the applicant challenged Article 263 § 3 in so far as it defined a maximum statutory period for the length of detention on remand only until the delivery of a first judgment by the trial court. Consequently, people such as him who remained in detention while their criminal proceedings were pending de novo after the quashing of the first judgment of the first-instance trial court, were not protected against unreasonably lengthy detention on remand. Article 263 § 3 of the Code was silent in that respect and because of that, the authorities could extend the preventive measure for an indefinite period following the quashing of the first judgment of a trial court. 62.     On 15 January 2008 the Ombudsman joined the proceedings, asking that Article 263 § 3 of the Code be declared unconstitutional in so far as it left a legal loophole which was filled in by an erroneously developed well ‑ established court practice not to include in the calculation of the statutory two-year period of detention on remand (prior to the first judgment of the first-instance court) periods of the detainee’s concurrent deprivation of liberty on the basis of a criminal sentence. 63.     On 10 March 2009 the Constitutional Court discontinued the application under section 39 of the Constitutional Court Act of 1   August   1997, which provided for such a possibility in the event a ruling was considered to be redundant ( zbędne ). 64.     It was observed that, despite the obvious differences in scope, the essence of the first part of the applicant’s complaint, concerning Article   263   §§ 3 and 4 of the Code (see paragraph 60 above), had already been examined on the merits by the Constitutional Court in case no.   SK   17/07. The provision had been declared unconstitutional in so far as it was interpreted to the effect that the statutory maximum period of two years allowed for a person’s detention on remand prior to the first judgment of the first-instance court had not comprised the term of the prison sentence the detainee was serving in another case, concurrently to his detention on remand, thus allowing for an extension of the preventive measure beyond two years by a first-instance court on general grounds (see paragraphs 77 ‑ 81 below). 65.     In connection with the second part of the complaint (see paragraph   61 above), the Constitutional Court held that the applicant did not have the standing to challenge Article 263 § 3 of the Code because this provision had not been applicable to his detention in the relevant period. The preventive measure in question had been extended during the proceedings which had been pending before the first-instance court de novo , after the original judgment had been quashed by the appellate court. In these circumstances, the legal basis for extending the applicant’s detention was Article   263 § 7 of the Code (see paragraph 74 below). D.     Criminal proceedings against prison staff 66.     On 8 June 2001 the applicant informed the Przemyśl prosecutor’s office about an offence allegedly committed by staff of Przemyśl Prison. He claimed that they had been selling alcohol, cigarettes and drugs to prisoners. On 29   November   2002 the Przemyśl prosecutor’s office discontinued the criminal investigation against the alleged culprits. This decision was upheld by the Przemyśl District Court on 27 February 2003. E.     Monitoring of the applicant’s correspondence 1.     Correspondence with the lawyer 67.     When, on 26 November 2001, the applicant lodged his application with the Court he had been detained on remand in relation to the first and second sets of criminal proceedings against him. On 31   July and 30   November 2001 and on 10   and 14 March 2003 he sent letters to his defence lawyer, W.J. The envelopes bear the stamp “Jarosław District Court” and a handwritten note stating “censored on...” ( ocenzurowano   dn. ). 68.     On 18 July 2003 the Lubaczów District Prosecutor discontinued criminal proceedings against several judges of the Jarosław District Court who, in the applicant’s view, had monitored his correspondence with his lawyer. The court held that none of the individuals concerned had opened and read the applicant’s correspondence. This decision was upheld by the Lubaczów District Court on 25 November 2003. The court found that the applicant’s correspondence had not been read and the words “censored” had been automatically stamped on the applicant’s letters. 2.     Correspondence with the Court 69.     On 4   December   2001, the Registry of the Court received its first letter from the applicant, dated 26   November   2001. The envelope bears the stamp “Jarosław District Court” and a handwritten note stating “Censored on 30   November 2001” ( Cenzurowano dn. 30 XI 2000 ). 70.     On 8 August 2002 the Registry of the Court received another letter from the applicant, dated 22 July 2002. It was delivered in an envelope bearing the stamp “Jarosław District Court” and a handwritten note stating “Censored on 26   July   2002” ( Cenzurowano dn. 26 VII 2002 ). II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Preventive measures, including detention on remand 1.     General provisions 71.     Article 2 of the Constitution reads as follows: “The Republic of Poland shall be a democratic State ruled by law and implementing the principles of social justice.” Article 41 of the Constitution, in its relevant part, provides: “1. Personal inviolability and security shall be ensured to everyone. Any deprivation or limitation of liberty shall be imposed only in accordance with principles and under procedures specified by statute....” 72.     The Code defines detention on remand as one of the “preventive measures” ( środki zapobiegawcze ). The others are bail ( poręczenie majątkowe ), police supervision ( dozór policji ), a guarantee by a responsible person ( poręczenie osoby godnej zaufania ), a guarantee by a social entity ( poręczenie społeczne ), a temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and a ban on leaving the country ( zakaz opuszczania kraju ). Article 249, as applicable at the relevant time, set out the grounds for imposing preventive measures: “1.     Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, to prevent an accused committing another serious offence; they may be imposed only if the evidence shows a significant probability that the accused has committed an offence.” ... 3.     Before preventive measures are applied, the court or the prosecutor shall hear the accused, unless it is impossible due to [him or her] being in hiding or abroad...” Article 258 lists the grounds for detention on remand. It provided at the material time, 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 where his identity cannot be established or where he has no permanent residence [in Poland]; (2)     there is a reasonable risk that an accused will attempt to persuade [witnesses or co ‑ defendants] to give false evidence or 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 [eight] years’ imprisonment, or if a court of first instance has sentenced him to at least [three] years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be established by the likelihood that a severe punishment will be imposed. ...” The Code sets out the extent of the courts’ discretion to continue a specific preventive measure. Article 257 § 1 reads: “1.     Detention on remand shall not be imposed if another preventive measure is sufficient.” Article   259 § 1 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.” Article   259 § 3 provides: “3.     Detention on remand shall not be imposed if an offence attracts a sentence of imprisonment not exceeding one year.” Article   259 § 4 specified at the relevant time that Article 259 § 3 is not applicable where the accused attempts to evade justice or persistently fails to comply with a summons or where his identity cannot be established. 2.     Statutory time-limits for detention on remand (a)     Article 263 73.     Article 263 §§ 3 and 4 of the Code provided at the material time: “3.     The cumulative length of detention on remand until the first judgment issued by the trial court shall not exceed two years. 4.     Detention on remand may be extended for a fixed period exceeding the periods provided for in paragraphs 2 and 3 by an appellate court ... at the request of the court dealing with a case ... if ...: the criminal proceedings have been adjourned, the accused is under prolonged psychiatric observation, preparation of the expert’s opinion is protracted, evidence has to be obtained in a particularly complicated case or from abroad, the accused has caused a delay in the proceedings, or there are other important obstacles which cannot be overcome.” 74.     As derived from the practice of the Polish courts and legal writing, Article   263 §§ 3 and 4 of the Code ceases to apply once the first-instance court has ruled on the merits of the criminal case in which detention on remand has been ordered. In the event that the first-instance judgment is quashed on appeal and the detention is again pending trial before the first-instance court, the preventive measure is to be extended even if it takes it beyond the total time of two years by the trial court under the general conditions (see the Warsaw Court of Appeal’s decision of 4   February 2003 no. II AKz 61/03 and the Constitutional Court’s decision of 10   March 2009 (SK 39/07) as described in paragraph 65 above and the Commentary to the Code by P.   Hofmański, C.H. Beck). Polish law does not therefore set out a maximum time-limit in the event it is necessary to continue detention on remand after the delivery of the first judgment by the first-instance court. Article 263 § 7 only regulates the maximum frequency with which such a measure can be extended. Until the amendment which took effect on 1 July 2003, each extension of detention on remand in such circumstances had to be ordered for no longer than three months. That period was thereafter increased to six months. (b)     Detention on remand running concurrently with another measure of detention of remand 75.     At the material time and still today, in the light of a uniform practice of the domestic courts and legal writing, the period of detention on remand within the meaning of Article 263 § 3 is considered to comprise only “effective detention”, that is to say the time of the actual deprivation of liberty imposed on the sole basis of a detention decision given in the course of that particular set of proceedings. This approach was confirmed and further defined in the Supreme Court’s ( Sąd Najwyższy ) resolution of 29   January   1998 (no. I KZP 29/97), given by a bench of seven judges. “... In the event that decisions to impose detention on remand [on] a particular person have been given in two or more sets of proceedings, the [calculation of the] duration of this measure ... shall not include the term of the person’s deprivation of liberty under the decision on detention on remand [which had been] given in the other set of proceedings ... “ (c)     Detention on remand running concurrently with a prison sentence 76.     A similar line of reasoning was applied, at the relevant time, to situations in which a measure of detention on remand ran concurrently with a measure of deprivation of liberty after conviction. This approach was confirmed in the Supreme Court’s decision of 28   January   1997 (IV   KO   35/96) and in the Supreme Court’s resolution given by seven judges on 30   October 1997 (no. I KZP 17/97). This interpretation was changed following a judgment issued by the Constitutional Court in 2008 (see paragraphs 77-80 below) and the related legislative amendment in 2009 (see paragraph 81 below). 77.     On 10 June 2008 the Constitutional Court ruled in a case resulting from a constitutional complaint lodged by a former detainee on 20   July   2007 challenging the constitutionality of Article 263 § 3 of the Code (SK   17/07). 78.     The following preliminary remark was made in the judgment: “... [the Constitutional Court] does not examine the correctness of the interpretation of law provisions made by the courts .... However, because the actual content of many legal provisions [becomes] formulated only in the process of their implementation, the [Constitutional] Court, when [assessing their] constitutionality, takes as a point of departure, such understanding [of these legal provisions] as functions commonly in the jurisprudence”. Article 263 § 3 of the Code was therefore examined in its “uniform and authoritative” meaning which was given by the Supreme Court (see paragraph 76 above). 79.     The provision was declared, inter alia , in breach of the principle that any deprivation or restriction of liberty could only arise from an act of law ( zasada wyłączności ustawy ) and had to be in accordance with clearly formulated and coherent legal provisions ( zasada poprawnej legislacji ) (Article 41 of the Constitution, cited in paragraph 71 above). The Constitutional Court held: “The legislative flaw of Article 263 § 3 of the Code ... is its ambiguity which made it necessary to formulate through case-law ... a rule of law resolving [the issue] of calculating the period of detention on remand if it [runs concurrently with] a sentence of imprisonment [which had been] imposed in another case, in such a way that the statutory maximum length of detention on remand, prior to the judgment of the first-instance court, does not include the periods during which a detainee is concurrently serving a prison sentence imposed in another case, allowing the first-instance court to extend the detention on remand on general grounds beyond two years.” 80.     The Constitutional Court observed that a direct consequence of its ruling was the derogation of the unconstitutional rule of law by virtue of the judgment itself and at the date of its publication. It was further stated that the judgment in question allowed the domestic courts to start interpreting and implementing the impugned provision of the Code in compliance with the Constitution as indicated by the Constitutional Court. The last paragraph of the judgment contained a general clause, reiterating that under Article   190 of the Constitution and other provisions as applicable (see   paragraph 86 below) a judgment of the Constitutional Court declaring unconstitutionality of a particular rule of law, served as a basis for the reopening of proceedings in cases in which a final and enforceable judicial decision, a final administrative or other decision had been issued on the basis of the normative act declared unconstitutional. 81.     As a result, on 12 February 2009 the following amendment was introduced to Article 263 of the Code. It entered into force on 19 February 2009. “3   (a) Where ... detention on remand is concurrent with the execution of a sentence of imprisonment imposed in another case, the relevant period[s] under paragraph ... 3, shall include the period a detainee has served of [his] sentence of imprisonment”. 82.     On 24 July 2006 the Constitutional Court, in a case in which it examined jointly two constitutional complaints lodged by former detainees in 2003 and 2004, declared Article 263 § 4 of the Code unconstitutional in so far as it related to the investigation stage of criminal proceedings (no.   SK   58/03). The provision in question provided that the detention measure could be extended beyond two years if the pre-trial proceedings could not be completed because of “important obstacles” which could not be overcome (see paragraph 73 above). It did not set any statutory time ‑ limit for extending the detention measure. The Constitutional Court considered that the provision, by its imprecise and broad wording, could lead to arbitrary decisions by the courts on detention on remand and thus infringe the very essence of constitutional rights and freedoms. Referring to other grounds for extraordinary extensions of detention on remand under Article 263 § 4, namely where the criminal proceedings have been suspended, the accused is under prolonged psychiatric observation, preparation of an expert opinion in protracted, evidence has to be collected in a particularly complex case or in a foreign country, or the accused has intentionally caused a delay in the proceedings, the Constitutional Court stated that although those criteria were to some extent also vague, their constitutionality could be ensured through their precise definition formulated through practice and by reference, inter alia , to the settled case-law of the European Court of Human Rights as regards violations of Article   5 § 3 of the Convention. The Constitutional Court ruled that the provision in the part which had been declared unconstitutional was to be repealed within six months of the date of the publication of the judgment in the Journal of Laws ( Dziennik Ustaw ). On 16 February 2007 the “important obstacles” clause was reformulated in a new Article 263 § 4(a) of the Code. B.     Compensation for unlawful detention on remand 83.     Chapter 58 of the Code, entitled “Compensation for wrongful conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him. Article   552 provides, in so far as relevant: “1.     An accused who, as a result of the reopening of the criminal proceedings against him or of a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage he has suffered in consequence of having served all or part of the sentence initially imposed on him. ... 4.     Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly wrongful arrest or detention on remand.” In the light of well-established domestic practice, the requirements for compensation for manifestly unlawful detention on remand under Article   552 § 4 shall comply cumulatively with the requirements stemming from paragraph 1 of that provision (see, in particular, Supreme Court’s resolution no. IKZP 27/99 of 15 September 1999 and the Supreme Court’s decision no. WZ 26/01 of 28 June 2001). Pursuant to Article 555, an application for compensation for manifestly wrongful detention on remand has to be lodged within one year of the date on which the decision terminating the criminal proceedings in question became final. It follows that proceedings related to an application under Article   552 §   4 are subsequent to and dependent on the outcome of the original criminal proceedings in which the detention was ordered. The claimant may only retrospectively seek a ruling as to whether his detention was in compliance with the applicable procedure or justified. He cannot, however, test the lawfulness of his continued detention on remand and obtain release. Moreover, if compensation is sought for manifestly wrongful detention on remand, this remedy is only available if the claimant has been acquitted or the relevant criminal investigation against him or his criminal court proceedings have been discontinued. 84.     Admittedly, allegations that detention on remand is manifestly wrongful because of procedural breaches in imposing the measure are examined not in the light of the ultimate outcome of the claimant’s criminal case, but in view of the circumstances existing at the time when the measure was imposed, that is to say when the decision was issued in breach of procedure. On the other hand, the State will not be held liable for manifestly wrongful detention if the pecuniary or non-pecuniary damage suffered by the claimant had been completely redressed, for example, by means of deducting the length of the claimant’s detention on remand from the sentence imposed by the court in the related or other criminal trial (see the Supreme Court’s resolution no.   IKZP 27/99, cited above; the Supreme Court’s decision of 20   September 2007 given by seven judges (IKZP28/7, OSNKW 2007/10/07); the Supreme Court’s decision of 15   November 2007 (IV KK 82/07, OSNwSK 2007/1/2610), and the Supreme Court’s judgment of 2 April 2001 (V KKN 481/99, OSNKW 2001, nr 7-8, poz. 66). 85.   The above lex specialis remedy excludes the applicability of the provisions of civil law and general principles of the State’s liability in tort as regulated in Article 417 et seq. of the Civil Code unless it is for the purpose of seeking redress for further damage which occurred as an indirect result of the wrongful detention on remand (see the Supreme Court’s decision of 7   February 2007 (V KK 61/06, OSNKW 207, Nr 3, poz. 28) and the Rzeszów Court of Appeal’s judgment of 13 March 2014 (II AKa 16/14); compare with the Wrocław Regional Court’s judgment of 23   April 2013 (I   C 40/12)). C.     Constitutional complaint and its consequences 86.   Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” Article   190 of the Constitution, in so far as relevant, provides as follows: “1.     Judgments of the Constitutional Court shall be universally binding and final. 2.     Judgments of the Constitutional Court ... shall be published without delay. 3.     A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. This time-limit may not exceed [eighteen] months in relation to a statute or [twelve] months in relation to any other normative act ... 4.     A judgment of the Constitutional Court on non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decis