CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 4 juillet 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s21B97EC1 { width:25.99pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s76CF415B { page-break-before:always; clear:both } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sDD67E0A9 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:center } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     505   4.7.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF NIEDBAŁA v. POLAND     The European Court of Human Rights has today notified in writing judgment in the case of Niedbała v. Poland. The Court held unanimously that there had been a violation of Article 5 §§ 3 and 4 (right to liberty and security) and of Article 8 (right to respect for private life) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 12,800 Polish zlotys for non-pecuniary damage and for legal costs and expenses.   1.   Principal facts   The applicant, Maciej Niedbała, a Polish   national, was born in 1969 and lives in Jastrzębie Zdrój, Poland.   On 2 September 1994 Mr Niedbała was remanded in custody by the prosecutor on suspicion of stealing a car and on 20 March 1995 he was convicted of possession of stolen goods and released from detention on remand. He was re-arrested on 21 April 1995 and was again detained on remand on suspicion of the attempted theft of a car. On 5 September the Katowice Court of Appeal amended the judgment of 20 March 1995, finding the applicant guilty of aiding and abetting the sale of stolen goods.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 5 February 1995. Having declared the application partly admissible, the Commission adopted a report on 1 March 1999, in which it expressed the unanimous opinion that there had been a violation of Article 5 § 3, 5 § 4 and 8 of the Convention. It referred the case to the Court on 4 June 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Elisabeth Palm (Swedish), President , Wilhelmina Thomassen (Dutch), Jerzy Makarczyk (Polish), Riza Türmen (Turkish), Josep Casadevall (Andorran), Boštjan Zupančič (Slovenian), Tudor Panţîru (Moldovan), judges,   and also Michael O’Boyle , Section Registrar.   3.   Summary of the judgment [1]   Complaints   The applicant complained that his right to liberty and security, guaranteed under Article 5 § 3 of the European Convention on Human Rights had been breached in that he had been deprived of liberty by a decision of a prosecutor who had not been a judge or other officer authorised by law to exercise judicial power. He further alleged a breach of Article 5 § 4 of the Convention in that the proceedings concerning review of his detention on remand had not been truly adversarial, and of Article 8 of the Convention in that his correspondence with the Ombudsman had been intercepted and delayed.   Decision of the Court   Article 5 § 3   The Court recalled that the role of the officer referred to in Article 5   §   3 is to review the circumstances militating for and against detention and to decide, by reference to legal criteria, whether there are reasons to justify detention and to order release if there are no such reasons. Before an “officer” can be said to exercise “judicial power” within the meaning of this provision, he or she must satisfy certain conditions providing a guarantee to the person detained against any arbitrary or unjustified deprivation of liberty. Thus, the “officer” must be independent of the executive and of the parties. In this respect, objective appearances at the time of the decision on detention are material: if it appears at that time that the “officer” may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality are capable of appearing open to doubt.     The Court observed that Polish constitutional law provided for the separation of legislative, executive and judicial powers. In particular, the administration of justice was entrusted solely to the independent courts. The Court further noted that prosecutors in Poland were at the material time, and, indeed, still are, subordinate to the Prosecutor General, who at the same time carried out the function of the Minister of Justice. It was therefore indisputable that the prosecutors, in the exercise of their functions, were subject to supervision of an authority belonging to the executive branch of the Government.   The Court noted that in the criminal proceedings the prosecutors perform investigative and prosecuting functions and, therefore, their position as provided for by law as it stood at the material time, must be seen as that of a party to these proceedings. It is also noted that it was not in dispute that Polish law as applicable at the relevant time did not offer any safeguards against the risk that the same prosecutor who decided on the applicant’s detention on remand might later take part in the prosecution.   The Court concluded that there had been a violation of Article 5 § 3 of the Convention.   Article 5 § 4   The Court recalled that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty. Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required.   In particular, in the proceedings in which an appeal against detention order is being examined, “equality of arms” between the parties, the prosecutor and the detained person must be ensured.   In the case under consideration it was not contested that the law, as it stood at the relevant time, did not entitle either the applicant himself or his lawyer to attend the court session at which the lawfulness of the detention order was examined. Moreover, the applicable provisions did not require that the prosecutor’s submissions in support of the applicant’s detention be communicated either to the applicant or to his lawyer. Consequently, the applicant did not have any opportunity to comment on those arguments in order to contest the reasons invoked by the prosecuting authorities to justify his detention. Furthermore, under applicable laws it was open for the prosecutor to be present at any of court sessions in which the court examined the lawfulness of the applicant’s detention and that on one occasion the prosecutor was so present.   In conclusion, the Court found that there had been a violation of Article 5 § 4.   Article 8   The Court considered that the intercepting and delaying of the applicant’s letter to the Ombudsman, alleging ill treatment by the prison guards, amounted to “interference by a public authority” with the exercise of the applicant’s right to respect for his correspondence, guaranteed by paragraph 1 of Article 8. Such an interference contravenes Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and furthermore is “necessary in a democratic society” in order to achieve them.   The expression “in accordance with the law” does not only necessitate compliance with domestic law, but also relates to the quality of that law. Domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities so as to ensure to individuals the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society.   The Court first noted absence of provisions of domestic law, which could serve as a legal basis for effectively lodging a complaint against censorship of correspondence of persons detained on remand.   The Court went on to state that Polish law, as it stood at the material time, allowed for automatic censorship of prisoners’ correspondence by the authorities conducting criminal proceedings. These provisions did not draw any distinction between the different categories of persons with whom the prisoners could correspond. Consequently, the correspondence with the Ombudsman was also subject to censorship. Moreover, the relevant provisions had not laid down any principles governing the exercise of this censorship. In particular, they failed to specify the manner and the time-frame within which it should be effected. As the censorship was automatic, the authorities were not obliged to give a reasoned decision specifying grounds on which it had been effected.   The Court concluded that Polish law as it stood at the material time, did not indicate with reasonable clarity the scope and manner of exercise of discretion conferred on the public authorities in respect of control of prisoners’ correspondence. It follows that the interference complained of was not “in accordance with the law”.   Consequently, the Court concluded that there has been a violation of Article 8.   Article 41   The Court considered that it could not speculate as to whether the applicant would have been detained on remand had the procedural guarantees of Article 5 §§ 3 and 4 been respected in his case. Consequently, the Court considered that any non-pecuniary damage sustained by the applicant in respect of a breach of the provisions of Article 5 of the Convention, is adequately compensated by the finding of a violation of these provisions. The Court further considered that the applicant also sustained non-pecuniary damage on account of the delayed dispatch of his correspondence with the Ombudsman, and awarded him a sum of 2,000 Polish zlotys under this head.   The Court further awarded the applicant a sum of PLN 10,800 for costs and expenses.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] This summary by the Registry does not bind the Court.