CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 novembre 2019

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s58FE0B8B { margin-top:14pt; margin-left:24.1pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Communicated on 3 November 2019   FIRST SECTION Application no. 39052/18 Michał WARDASZKO against Poland lodged on 1 August 2018 STATEMENT OF FACTS The applicant, Mr Michał Wardaszko, is a Polish national who was born in 1987 and is detained in Rzekuń. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In the period from 12 November 2012 to 5 December 2014 the applicant was serving a prison sentence in Włocławek Prison. On two occasions, on 12 November 2014 and 21 November 2014, he received letters from a lawyer representing him in civil cases. Those letters were opened by the prison guards. The applicant complained to the prison authorities. On 8 January 2015 the Director of the Bydgoszcz Regional Inspection of Prison Services ( Okręgowy Inspektorat Służby Więziennej ) held that the applicant’s complaint was unfounded. He concluded that the first letter (received on 12   November 2014) had been opened by a prison officer in the applicant’s presence, by mistake. Once the officer realised his mistake, he had immediately given the letter to the applicant without reading it or inspecting its content. As to the second letter (received on 21   November 2014) the Director of the Bydgoszcz Regional Inspection of Prison Services established that there was no record of any correspondence received by the applicant on that date. On 15 April 2015 the applicant lodged a civil action against the State Treasury for protection of his personal rights. Relying on Articles 23 and 24   of the Civil Code ( Kodeks cywilny ) and Article 8 of the Convention, he sought 5,000 Polish zlotys (PLN; approximately 1,250 euros [EUR]) in compensation for violation of the confidentiality of his correspondence with his lawyer. On 14 March 2017 the Włocławek District Court ( Sąd Rejonowy ) held that the applicant’s personal rights had been violated and awarded him compensation of PLN 1,000 (approximately EUR 250). On the basis of documents and witness statements the domestic court established that on both occasions – on 12 and 21 November 2014 - the applicant had received correspondence from his lawyer. On 12 November 2014 the prison officer opened the letter, looked at the documents and – after a minute or two, when he realised that they came from a law firm – gave the letter to the applicant. On 21 November 2014 the applicant received a bigger parcel with documents. The prison guard opened it, flicked through the documents and – after approximately five minutes – gave it to the applicant. The Włocławek District Court held that the actions of the prison officers had infringed the applicant’s right to respect for his correspondence as guaranteed by the Constitution and the Convention and were contradictory to the express provisions of the Code of Execution of Criminal Sentences ( Kodeks karny wykonawczy ), which exempted correspondence with the inmates’ lawyer from being censored, controlled or retained. When determining the amount of compensation to be awarded to the applicant, the domestic court took into consideration that, although the infringement of the applicant’s rights had been unlawful, it had not been committed with any malice and had not resulted in revealing any personal information about the applicant’s life. Both the applicant and the State Treasury appealed against the judgment. On 12 April 2018 the Włocławek Regional Court ( Sąd Okręgowy ) amended the above-mentioned judgment and dismissed the applicant’s claim for compensation. The court of second instance agreed with the conclusions concerning the facts of the case as established by the District Court, as well as with the assessment that the actions of the officers of the prison guard were unlawful. However, it held that the applicant had not suffered any disadvantage as a result of those actions. It indicated in particular that the infringement of the secrecy of the applicant’s correspondence had been of short duration, had taken place in his presence and concerned official correspondence related to facts already known to the prison administration. Consequently, the Regional Court dismissed the applicant’s claim for compensation. Relevant domestic law Article 49 of the Constitution provides: “The freedom and privacy of communication shall be ensured. Any limitations thereon may be imposed only in cases and in a manner specified by statute”. According to Article 8a (1), of the Code of Execution of Criminal Sentences, the correspondence of a convicted inmate is subject to censorship and control unless otherwise provided by the law. Paragraph 2 of this provision provides: “the correspondence of a convicted inmate with his defender or representative, who is an attorney ( adwokat ) or legal advisor ( radca prawny ), will not be subject to censorship, control or retention and shall be immediately transferred to the recipient ...” Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” ( dobra osobiste ). This provision states: “The personal rights of an individual, such as health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [and] inventions and improvements, shall be protected under civil law, regardless of the [degree of protection] laid down in other legal provisions.” Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person faced with the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity in question, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia , request that the wrongdoer make an apology in an appropriate form, or demand satisfaction from him or her. If an infringement of personal rights causes financial loss, the person concerned may seek damages. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation or ask the domestic court to award a sum of money to a charity. That provision, in its relevant part, reads: “The court may grant a suitable sum as pecuniary compensation for non-pecuniary damage [ krzywda ] suffered by anyone whose personal rights have been infringed. Alternatively, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement, the person concerned may ask the court to award a suitable sum for the benefit of a specific social interest. ...” COMPLAINT The applicant complains under Article 8 § 1 of the Convention of the infringement of his right to respect for his correspondence. He argues, in particular, that the interference with his Article 8 right was unlawful as the relevant provisions of the Code of Execution of Criminal Sentences exempt an inmate’s correspondence with his lawyer from being censored, controlled or retained.     QUESTIONS TO THE PARTIES 1.     Bearing in mind the decisions of the domestic courts declaring that the applicant’s right to respect for his correspondence was infringed, can he still claim to be a victim of a violation of the Convention, within the meaning of Article 34?   2.     If so, has there been a violation of the applicant’s right to respect for his correspondence, contrary to Article   8 of the Convention? In particular, was the interference with the applicant’s right to respect for his correspondence “in accordance with the law” within the meaning of Article   8 § 2?