Rezoluția CM/ResDH(2013)228 Cincizeci și opt de cauze împotriva Poloniei Executarea hotărârilor Curții Europene a Drepturilor Omului Cerere n Cauza Hotărârea din 31583/96 KLAMECKI n 03/04/2003 03/07/2003 43120/05 ANDRULEWICZ 03/04/2007 24/09/2007 31038/06 ANDRYSIAK 20/05/2008 20/08/2008 13637/03 BARTOSI ElectroluxSKI 13/10/2009 13/01/2010 42332/06 BEREZA n 19/10/2010 20138/03 BOBEL 22/01/2008 22/04/2008 24205/06 BOGUSLAW KRAWCZAK 31/05/2011 31/08/2011 26866/05 08/06/2010 08/09/2010 34907/05 HINCZEWSKI 05/10/2010 05/01/2011 36161/05 JAKUBIAK 08/01/2008 07/07/2008 20211/04 JANULIS 04/11/2008 04/02/2009 8713/03 JANUS 21/07/2009 21/10/2009 23623/07 JARKIEWICZ 06/07/2010 72976/01 JASI 08/01/2008 07/07/2008 12772/06 KOTOWSKI 29/09/2009 29/12/2009 10816/02 KOZIMOR 12/04/2007 12/07/2007 12269/02 KOZŁOWSKI ERYK 04/11/2008 04/02/2009 49128/06 KRAWIECKI 09/06/2009 09/09/2009 51895/99 KWIEK 30/05/2006 30/08/2006 19218/07 LESIAK 01/02/2011 01/05/2011 2180/03 LEWAK 06/09/2007 31/03/2008 73988/01 ŁUCZKO 03/10/2006 03/01/2007 14450/02 MAKSYM 19/12/2006 19/03/2007 37641/97 MATWIEJCZUK 02/12/2003 02/03/2004 41656/02 MAZGAJ 21/09/2010 21/12/2010 8403/02 MGŁOSIK 16/07/2009 16/10/2009 42083/98 MIANOWSKI 16/12/2003 16/03/2004 43837/06 MISIAK 03/06/2008 03/09/2008 62323/00 NAJDECI 06/02/2007 06/05/2007 6390/03 NOWICKI 27/07/2007 27/05/2007 46859/06 NURZYNSKI 21/12/2010 21/03/2011 8260/04 OCHLIK 29/07/2008 29/10/2008 64284/01 OLEKSY 28/11/2006 28/07/2007 10381/04 OWSIK 16/10/2007 16/01/2008 24322/02 PANUSZ 03/06/2008 01/12/2008 42785/06 PASTERNAK 16/07/2009 10/12/2009 39840/05 PAWLAK 15/01/2008 15/04/2008 92/03 PSKOWSKI 14/06/2005 14/09/2005 6820/07 PRZYJEMSKI 05/10/2010 29366/03 ST 19/04/2010 45133/06 ZBOROWSKI 15/01/2008 15/04/2008 39519/05 ZBOROWSKI n 22/04/2008 22/07/2008 (adoptată de Comitetul de Miniștri la 20 noiembrie 2013 în cadrul celei de a 1185-a (Budget) ședințe a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârile finale transmise de Curte Comitetului în aceste cauze și încălcările constatate care reamintesc obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare care au invitat guvernul din statul pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației respective În urma examinării bilanțului de afaceri furnizat de guvern care indică măsurile adoptate în vederea executării hotărârilor, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013)1123 Cu toate acestea, observând că problema duratei excesive a detenției provizorii continuă să facă obiectul unei supravegheri a executării în cadrul grupului de afaceri Trzaska c. Polonia (hotărârea din 11/0 DECLARĂ quasures își îndeplinește funcțiile în temeiul articolului 46 alineatul (2) din Convenție în aceste cazuri și DECIDE d . . acțiune report [1] Engleză numai Informații cu privire la Measures to comply with the judgments in the Klamecki against Poland (No. 2) group of case Case description Acestea se referă, primarily, interferences with the applicants... right to respect for their while they were detained on remand (violations of Article 8 of the Convention). Some of them assessment of the applicants... corespundence before 01/09/98 (The date of entry into force of the 1997 Code of the Execution of Criminal Sentinces). [2] In these cases, the European Court found that the monitoring of the applicants as the relevant Polish law in force at that time did not informate with reasonable clarity the scope and manner of the expercese of discretion conferred on public authorities in this field. Later cases as the this field. Monitoring of the applicants mai târziu, 01/09/1998. The cases in the facts that the applicants mail with the organizations of the convention, was marked According to the European Court, the prohibition of censorship of corelence with the European Court of Human Rights in the Code of Execution of Criminal Sentinces which, at the material time, expressly raported to convicted persons, was also aplicabil to detained persons. Thus, censorship of the letters to and from the Registry of the Court was contrary to the domestic law. The Same Concluzia was made by the European Court with reference with: the Chancellery of the Senat [4] , the Ombudsman [5] , a lawyer [6] , the Constitutional Court [7] , tax authorities [8] , domesticy Court [9] , prosecutor [10] , Council of Europe Information Bureau [11] , NGOs [12] , the CPT [13] and also other domestic institutions [14] . Mai mult, in several cases the European Court found In some of the cases, addially, taking into account thefact that the applicants were simte with semnificant delays, the Court also found a violation of Article 34 of the convention. [18] In adăugire, refuzals of family visitions in detention in some cases were found by the European Court to be in violation of Article 8 of the convention as they were while in other cases [20] the European Court found that they were While declaring that the refuzals of family visitions were The law, însă, provided no details as priveghis the conditions for granting such permision, no ghidance as to how the authorities might decide whether the prohibition of visiting rights meritated in a particular case, and what factors might be relevant to that decision. It further did not provide for a possibility to appeal against the refuzal of visits. The decision was left to the authorities. Thus, Article 217§1 of the Code of Execution of Criminal Sentinces did not informate with reasonable clarity the scope and manner of the execise of any discretion conferred on the relevant authorities to restrict visising rights. Mai mult, in some cases the European Court found that the appicants Pre-trial detention was excesivly long [21] and that, in the Klamecki No. 2 case, the detention was ordered by a public prosecutor in breach of the applicant În plus, in a number of cases the European Court found other viols of the Convention which are summarized in the Appendix II. Thoses are examined in the context of other groups of cases pandaning supervision of execution. Individual measures The European Court granted just satisfaction in respect of moraly damage in most of these cases. No just satisfaction was granted in the cases of Cwiertniak, Dzitkowski, Gradek, Krawiecki, Nowicki, Ochlik and Owsik , Finding of a violation by the European Court was declarad just satisfaction in Pisk-Piskowski Satisfacție echitabilă awarded by the European Court was paid in due time in all the sees of this group, except for three of them where there was a delay: cases of Bereza No. 2, Drozdowski and Jasinski (see the table in appendix). Însă the payment in the latter cases was made under terms which appear to have been acceptd by the aplicants. Failure to respect detainees right for corelence (violation of Article 8) and the right of individual application (violation of Article 34): In most of the cases, the aplicants were no longer detained on reman when the European Court delivered its judgments and thus the restrictions at at issue on their right to respect for could no longer be applied. Mai mult, in acord with rent domestic case law, applicants and persons who claim infringement of their right to respect for their corespondence may claim compensation from the State Treasury under Article 448 reaad in conjunction with Article 24§2 of the Civil Code (for example, see judgment of the Warsaw Regional Court of 27/11/2006). Violențele de drept în ceea ce privește respectarea vieții de familie (art. 8):Aplicațiile de detenție pre-trial came to an end and thus there no longer any restrictions on the applicants. For information on individual measures raporting other viols of the Convention see Annex Ia. In these circumstances, no other individual measure appears necessary. General Measures Failure to respect detainees right to respect for their corelence (art. 8) and the right of individual application (art. 34): The Code of Execution of Criminal Sentinces of 1997, with respect to the issues of monitoring of correctence of persons deprived of their liberty was amended in September 2003 and in January 2012. Under the legislation currently in force: the settlence of persons deprived of their liberty was amended in September 2003 and in January 2012. Convicted persons with their lawyers cannot be censored, Monitored or 16d and should be transmitted to the recipient without undue delay (art. 8a§2 of the Code). The same rule apples to sequence with: investgating and justice authorities, other State organizations, organizations of municipalities, the Ombudsman, the Ombudsman for Children and organizas established on the bazis of international treaties ratified by Poland relativeing umanrights protection (so, also Acording to Article 102, punctul 11, a detentioner has a right to exchange corespondence with abovetioned bodies; as far as individuals detained on reman art. 217b§2 din Codul provides that, as a rule, their corelence with the Ombudsman, the Ombudsman for Children and organizations established on the bazis of international treaties ratified by Poland for the uman rights protection be simte directly to the recepients without censorship. Această ordine also applies to sequence with investgating authorities, judicial authorities, other State organizations and organizas of municipalities, in exceptionally justited circumstances of a particular case, when the organ at whose dispose disposal the person remains decides. The abovement provisioned has never been criticised by the European Court and, as the Convention has a direct effect in the domestic legal system, this kind of limitation shall be applicated in line with the requirements provided by Article 8 of the convention; The corespondence of individuals detained on reman with their lawyers, as a rule, is not subject to censorship (art. 73§1 of the Code of Criminal Procedure). Excepție, și numai during the investigation period and for no longer than 14 days from the day the person was detained, a prosecutor, in specially justid situations, may reserve a right to control a corelence between the suspect and his lawyer (art. 73§3). Însă, the European Court never found this provision to be in incalcare of Article 8 of the Convention. Thas, the amendment of the abovement provisioned is not strictly necessary to execute this group of judgments. Însă, it should be noted that in its judgment of 10/120/2012, the Polish Constitutional Tribunal found Article 73§3 of the Code of Criminal Procedure to be in amendation with aparition of the Constitution as it did not specialy the grounds for a prosecutor to reserve a right of control of the settlence between a suspect and a lawyer. In consecinta, Provizionul in intrebare va pierde its binding force on 10/17/2013. The legal amendment currently discussed in Parliament to execute the judgment of the Constitutional Tribunal completely eliminates the possibility for the control (and censorship) of settlence between a lawyer and a detained person. aplicantele at the domestic level may also make use of the domestic remedy in situations in which the censorship of their corelence violated their personal rights. Since the judgment of the Warsaw Court of Appeal of 28/06/2007, it is open to persons afected by the censorship of corespondence to bringe an action for protection of their personal rights under Articles 23 and 24 in conjunction with Articles 417 and 448 of the Civil Code on account of the infringement of the right to respect for their secondence and to claim the compensation. The European Court found this remedy efectiv in several cases. [22] Concerning Practical aranjaments on 16/11/2007 an instruction was issued by the Director General of the Prison Service (amended on 12/02/2008) covering, inter alia , the instalation of special letterboxes specially for iverers Further, the Ministry of Justice, in the letters to the letters of all scurts of appeal (of 10/01/2005, 09/09/2005), underlined the need to take measures to guarantee respect for detainees The Ministry of Justice simte o letter to the presidents of all the parts of appeal (of 28/06/2005) making a reference to the reference to the jurisprudence of the European Court, and underlining the necessity to eliminate a Practice of censoring (or even marking envelopes of the secondence as Presidents of all scurts of appeal were asked to diseminate this letter among all the crimal pends. Judges and all the pentès administrative personal. On the website of the Ministry of Justice, two short ghidlines on the standards in the jurisprudence of the European Court with priviri to the issue of monitoring of the corelence were publicished: The European Court of Human Rights Standards on the monitoring of detainees În conformitate cu art. 4 alineatul (1) din Regulamentul (CE) nr. The European Court affairs in cases: Klamecki No.2, Matwiejczuk, Lewak, Jasinski, Pawlik, Wenerski, Miernicki, Bereza No.2, Hinczewski, Przyjemski, Lesiak and Miroslav Zielinski were translated into Polish and publicished on the website of the Ministry of Justice: (www.ms.gov.pl. Violări ale dreptului la respect pentru familie pe account of refuzals of family visitions in the detention [art. 8]: art. 217 alineatul (1) din Codul de Execuție al Criminalității Sentinces of 1997, as aplicabil at the material time, provided as follows: A detainee is allowed to receive visitors, provided that he obntins permisions from the authority at whose disposal he remains [investigating prosecutor at the investive stagiar or from the trial scurt once the trial has begun]. If the detainee remains at the disposal of several authorities, it is necessary to obtain permision from all of them unless they hotare otherwise. Following the judgments of the European Court, on 2 July 2009 the Constitutional Court, in case no. K 1/07, gave a judgment, following a constitutional complaint lodged by the Ombudsman, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentinces had been incompatibil with a number of Constituțional provizioane, inclusiv principle of protection of privat and family life (art. 47 din Constituție), principle of proportionality [art. 31 alineatul (3) din Constituție], art. 8 din EHR și art. 37 din UN Convention of the Rights of the Child. The Constitutional Scurt judgment chame efectiv on 8 July 2009, on the data of its publication in the Journal of Laws (Dziennik Ustaw). The Constitutional Court ruled that Article 217 § 1, in so far as it did not specialy the reasons for redundal of family vision in pre-trial detention, was incompatibil with the above provision. The Constitutional Court held that this provision did not informate with sucient clarity the restrictions on a detainee mais constitutional right to protection of privatate and family life. The Constitutional Court also considered that Article 217 § 1 was incompatibil with the Constitution insofar as it did not provide for a possibility to appeal against the prosecutor In its reasoning, the Constitutional Court, while declarang the constitutionality of the Providence in interogare, made a direct reference to standards contained in the jurisprudence of the European Court, in particular to judgments in cases: Klamecki No. 2, Ferla and Eryk Kozłowski. On 05/11/2009, the Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentinces, which entered into force on 08/06/2010. In particulars, subparagraphs 1a -1f were added. These provision provide in particular that a detaine is entitled to at least one family visit per month. În plus, ele indicate clearly the conditions for refuzing a family visition to a detainee and provide an appeal procedure against such a refuzal. Currently, redundal of a family vision may be given only if there exist justid this is a visit will be used with the am to obstruction the course of criminal proceedings or to commit a infraction, in particular to a crimei. The order, containing a refuzal of a family visition, may be appealed by the detained person and the person application for such a family visition. Mai mult, Article 217§ 3 of the Code of Execution of Criminal Sentences was amendad also on 11/09/2011. According to that amendment, a vizitat (widzenie ) could bed in a way of direct contact of detaine and visising person. Short Guidelines on the standards in the jurisprudence of the European Court with priviri to the issue of iverers asrights were publicshed on the website of the Ministry of Justice a: The European Court of Human Rights standards with priviri to cases of persons deprived of Liberty Mai mult, the Ministry of Justice prepared a publication: Concluzii privind respondența Statelor Unite ale Americii The government considers that further individual measures are not necessary in the present case and that the general Measures adopted are sucient to conchide that Poland has commed with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of the Article 8 of the Convention. Appendiz I The Klamecki No 2 and G.K. . secțiunea also referitoare la non-adversarial character of the proces for reviewing the lawfulness of the applicants (Încalcarea articolului 5 alineatul (4) din Convenție). Încălcarea Provizioanelor de la Convenție a avut loc în cazul în care s-a ajuns la un acord, as the applicant could not efectivly exercise his defence rights in the proceseedings review of the lawfulness of his pre trial detention due to the restriction on his access to the case files. GK, the European Court also found that the applicant that detenție between 1 and 24 January 1997 was unlawful due to the fact that the aplication for the aplication of the application between to be prelunged was lodged outside the relevant time-limit, in breach of section 10(a) of the 1995 Interim Law (violation of Article 5§1 of the Convention). In adăugit, the European Court found that criminal procedings brought against the aplicants in the cases of Abramczyk. și Matwiejczuk , as well as civil proceedings dealing with the appicants compensation claims (in the Mianowski ) case were unreasonably long (violations of Article 6§1 of the convention). Finally, in Wenerski and Mirosław Zieliński the European Court found viol of Article 3 of the Convention on account of inuman and degrading treatment overcrowding (Mirosław Zieliński) or inadequate medical asistence (Wenerski Appendix La Violations of Article 3: Applicants are no longer detained in conditions not compatibil with Article 3 and Mr Wenerski was provided with necessary medical asistence. Violations of Article 5§1, 5§3 and 5§4: Excesive length of the civil proceseedings (in the Mianowski case) and criminal proceedings (in Matwiejczuk case) mails of Article 6§1 : the domestic procedeedings have been ended. The criminal procedeedings in Abramczyk case have not been been end yet. The proceseedings are currently stated but the aplicant is not detained any more. Appendix II Inhuman and degrading treatment due to inadequate medicel asistence in inchisoare facilities (art. 3): this case presents similarities to that of Kaprykowski (23052/05), pandaning before the Committee of Ministers for supervision of general Measures; Inhuman and degrading treatment due to imprisonment in ovecrowding (art. 3): this case presents similarities to that of Orchowski (17885/04), pending before the Committee of Ministers for supervision of general measures; Violations of the right to be brought promptly before a judge (art. 5§3) and to participate in procesedings to challenge the lawfulness of detention (art. 5§4) and viols of the right to respect for settlence in cases quality monitoring of detainees mailance before 01/09/1998: Aceste rubrici prezintă similarities to that of Niedbała (judgment of 04/07/2000), clondd by the Resolution ResDH(2002)124, following the reformat of the Code of Criminal Procedure; Violation of the right to challenge the lawfulness of detention on account of restrictions in access to the case files (art. 5§4): this case presents similarities to that of Chruściński (Judgment of 06/11/2007), closed by the Resolution CM/ResDH2011(42), following the amendment to the Code of Criminal Procedure; Excessive length of detention on reman (art. 5§3): these cases present similarities to that of Trzaska (25792/94), pandaning before the Committee of Ministers for supervision of general measures; Excessive length of civil and criminal procesedings (art. 6§1): Aceste rubrici prezintă similarities to a number of other cases refereng the length of judicial proceseedings pandaning before the Committee of Ministers for supervision of general Measures, in particular Podbielski (27916/95) and Kudła (30210/96). [1] Information submitted by the Polish authorities on 11 October 2013. [2] Klamecki No 2, Kwiek and Matwiejczuk [3] Abramczyk, Andrysiak, Bartosiński, Electroluxwiertniak, Dzitkowski, Feliński, G.K., Hinczewski, Jakubiak, Janus, Jasiński, Kisieelewski, Kliza, Kołodziński, Kotowski, Kozimor, Krawiecki, Kwiek, Lesiak, Lewak, Łuczko, Maksym, Mianowski, Matwiejczuk, Mgłosik, Miernicki, Nowicki, Ochilik, Oleksy, Owsik, Panusz, Pasternak, Pawlak, Piskowski, Przyjemski, Stępniak, Tomczyk Prokopyszyn, Warsiński, Wassewski, Mirosław Zieliński, Mirosław [4] Kozimor [5] Hinczewski, Misiak [6] Pawlak, Kozimor, Kwiek, Najdecki, Zborowski, Andrulewicz, Bobel, Zborowski No. 3 [7] Kwiek [8] Bobel [9] Jarkiewicz, Bereza No. 2, Misiak [10] Bereza No. 2 [11] Zborowski [12] Misiak [13] Misiak [14] Misiak, Zborowski, Friedensberg [15] Drozdowski [16] Warsiński [17] Friedensberg [18] Maksym, Drozdowski [19] Dochnal, Gradek, Mazgaj, Nurzzyński, Knyter, Wegera [20] Klamecki No. 2, Eryk Kozlowski, Ferla, Bogusław Krawczak [21] (Abramczyk, Dochnal, Feliński, G.K., Janus, Janulis, Jarkiewicz, Klamecki No 2, Knyter, Bogusłw Krawczak, Matwiejczuk, Mgłosik, Najdecki, Ochilik, Oleksy, Owsik and Wegera. [22] Pasternak, Friedensberg and Biśta, Application No. 22807/07, judgment of 12/01/2010.
Résolution CM/ResDH(2013)228
Cinquante-huit affaires contre Pologne
Exécution des arrêts de la Cour européenne des droits de l’homme
Requête n
o
Affaire
Arrêt du
Définitif le
31583/96
KLAMECKI n
o
2
03/04/2003
03/07/2003
43120/05
ANDRULEWICZ
03/04/2007
24/09/2007
31038/06
ANDRYSIAK
20/05/2008
20/08/2008
13637/03
13/10/2009
13/01/2010
42332/06
BEREZA n
o
2
19/10/2010
20138/03
BOBEL
22/01/2008
22/04/2008
24205/06
31/05/2011
31/08/2011
26846/05
22/07/2008
22/10/2008
31622/07
18/08/2012
18/11/2012
20841/02
06/12/2005
06/03/2006
35833/03
27/11/2007
27/02/2008
31116/03
07/07/2009
06/11/2009
55470/00
FERLA
20/05/2008
20/08/2008
44025/08
27/04/2010
27/07/2010
38816/97
G.K.
20/01/04
20/04/04
39631/06
08/06/2010
08/09/2010
34907/05
05/10/2010
05/01/2011
36161/05
08/01/2008
07/07/2008
20251/04
04/11/2008
04/02/2009
8713/03
JANUS
21/07/2009
21/10/2009
23623/07
06/07/2010
06/10/2010
72976/01
06/12/2007
06/03/2008
26744/02
07/07/2009
07/10/2009
8363/04
KLIZA
06/09/2007
06/12/2007
31820/06
01/02/2011
01/05/2011
44521/04
08/01/2008
07/07/2008
12772/06
29/09/2009
29/12/2009
10816/02
12/04/2007
12/07/2007
12269/02
04/11/2008
04/02/2009
49128/06
09/06/2009
09/09/2009
51895/99
KWIEK
30/05/2006
30/08/2006
19218/07
01/02/2011
01/05/2011
21890/03
LEWAK
06/09/2007
31/03/2008
73988/01
03/10/2006
03/01/2007
14450/02
19/12/2006
19/03/2007
37641/97
02/12/2003
02/03/2004
41656/02
21/09/2010
21/12/2010
8403/02
16/07/2009
16/10/2009
42083/98
16/12/2003
16/03/2004
43837/06
03/06/2008
03/09/2008
62323/00
06/02/2007
06/05/2007
6390/03
27/02/2007
27/05/2007
46859/06
21/12/2010
21/03/2011
8260/04
29/07/2008
29/10/2008
64284/01
28/11/2006
28/02/2007
10381/04
OWSIK
16/10/2007
16/01/2008
24322/02
03/06/2008
01/12/2008
42785/06
16/07/2009
10/12/2009
39840/05
15/01/2008
15/04/2008
92/03
14/06/2005
14/09/2005
6820/07
05/10/2010
29366/03
29/01/2008
29/04/2008
64283/01
28/03/2006
28/06/2006
38007/02
04/12/2007
04/03/2008
63905/00
06/12/2005
06/03/2006
141/07
19/01/2010
19/04/2010
45133/06
15/01/2008
15/04/2008
39519/05
ZBOROWSKI n
o
3
22/04/2008
22/07/2008
(adoptée par le Comité des Ministres le 20 novembre 2013
lors de la 1185e (Budget) réunion des Délégués des Ministres)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «
la Convention
» et «
la Cour
»),
Vu les arrêts définitifs transmis par la Cour au Comité dans ces affaires et les violations constatées
;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe
1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire
:
-
de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par
restitutio in integrum
;
et
-
de mesures générales permettant de prévenir des violations semblables
;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée
;
Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter les arrêts, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document
)
;
Notant, toutefois, que la question de la durée excessive de la détention provisoire continue de faire l’objet d’une surveillance de l’exécution dans le cadre du groupe d’affaires Trzaska c. Pologne (arrêt du 11/07/2000)
;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans ces affaires et
DECIDE d’en clore l’examen.
A
ction report
[1]
(
Anglais uniquement
)
Information about the measures to comply with the judgments in the
Klamecki against Poland (No. 2)
group of cases
Case description
These cases concern, primarily, interferences with the applicants’ right to respect for their correspondence while they were detained on remand (violations of Article 8 of the Convention).
Some of them concern the
monitoring of the applicants’ correspondence before 01/09/98
(the date of entry into force of the 1997 Code of the Execution of Criminal Sentences).
[2]
In the these cases, the European Court found that the monitoring of the applicants’ correspondence with various correspondents (including their lawyers) was not “provided by law”, as the relevant Polish law in force at that time did not indicate with reasonable clarity the scope and manner of the exercise of discretion conferred on public authorities in this field.
Later cases concern the
monitoring of the applicants’ correspondence after
01/09/1998.
The cases concern the fact that the applicants’ correspondence with the organs of the Convention, was marked “censored”, which was found by the European Court as “not in accordance with law”.
[3]
According to the European Court, the prohibition of censorship of correspondence with the European Court of Human Rights in the Code of Execution of Criminal Sentences which, at the material time, expressly related to convicted persons, was also applicable to detained persons. Thus, censorship of the letters to and from the Registry of the Court was contrary to the domestic law. The same conclusion was made by the European Court with regards to correspondence with: the Chancellery of the Senate
[4]
, the Ombudsman
[5]
, a lawyer
[6]
, the Constitutional Court
[7]
, tax authorities
[8]
, domestic court
[9]
, prosecutor
[10]
, Council of Europe Information Bureau
[11]
, NGOs
[12]
, the CPT
[13]
and also other domestic institutions
[14]
. Moreover, in several cases the European Court found “not necessary in a democratic society” monitoring of the applicants` correspondence with: the European Court
[15]
, the NGOs: Amnesty International, Transparency International
[16]
and a bank
[17]
.
In some of the cases, additionally, taking into account the fact that the applicants’ letters were sent with significant delays, the Court also found a violation of Article 34 of the Convention.
[18]
In addition,
refusals of family visits in detention
in some cases
were found by the European Court to be in violation of Article 8 of the Convention as they were “not in accordance with law”,
[19]
while in other cases
[20]
the European Court found that they were “not necessary in a democratic society” having regard to the circumstances of particular cases, duration and the nature of the restrictions (violations of Article 8 of the Convention).
While declaring that the refusals of family visits were “not in accordance with law”, the European Court noted that these decisions had been issued on the basis of Article 217§1 of the Code of Execution of Criminal Sentences and that this provision, as applicable at the material time, gave the relevant authority (prosecutor or court) the power to grant permission for family visits in prison. The law, however, provided no details as regards the conditions for granting such permission, no guidance as to how the authorities might decide whether the prohibition of visiting rights was merited in a particular case, and what factors might be relevant to that decision. It further did not provide for a possibility to appeal against the refusal of visits. The decision was left to the authorities’ absolute discretion. Thus, Article 217§1 of the Code of Execution of Criminal Sentences did not indicate with reasonable clarity the scope and manner of the exercise of any discretion conferred on the relevant authorities to restrict visiting rights.
Moreover, in some cases the European Court found that the applicants’
pre-trial detention was excessively long
[21]
and that, in the
Klamecki No. 2
case,
the detention was ordered by a public prosecutor
in breach of the applicant’s right to be promptly brought before a “judge or other officer authorised by law to exercise judicial functions” (violations of Article 5§3 of the Convention).
In addition, in a number of cases the European Court found other violations of the Convention which are summarized in the Appendix II. Those cases are examined in the context of other groups of cases pending supervision of execution.
Individual measures
The European Court granted just satisfaction in respect of non-pecuniary damage in most of these cases. No just satisfaction was granted in the cases of
Cwiertniak, Dzitkowski, Gradek, Krawiecki, Nowicki, Ochlik
and
Owsik
, Finding of a violation by the European Court was declared sufficient just satisfaction in
Pisk-Piskowski
.
Just satisfaction awarded by the European Court was paid in due time in all the cases of this group, except for three of them where there was a delay: cases of Bereza No. 2, Drozdowski and Jasinski (see the table in appendix). However the payment in the latter cases was made under terms which appear to have been accepted by the applicants.
Failure to respect detainees’ right for correspondence (violation of Article 8) and the right of individual application (violation of Article 34):
In most of the cases, the applicants were no longer detained on remand when the European Court delivered its judgments and thus the restrictions at issue on their right to respect for correspondence could no longer be applied.
Moreover, in accordance with recent domestic case law, applicants and persons who claim infringement of their right to respect for their correspondence may claim compensation from the State Treasury under Article 448 read in conjunction with Article 24§2 of the Civil Code (for example, see judgment of the Warsaw Regional Court of 27/11/2006).
Violations of the right to respect for family life (Article 8):
The applicants’ pre-trial detention came to an end and thus there are no longer any restrictions on the applicants’ family life.
For information on individual measures concerning other violations of the Convention see Annex Ia.
In these circumstances, no other individual measure appears necessary.
General measures
1)
Failure to respect detainees’ right to respect for their correspondence (Article 8) and the right of individual application (Article 34):
a)
The Code of Execution of Criminal Sentences of 1997, with respect to the issue of monitoring of correspondence of persons deprived of their liberty was amended in September 2003 and in January 2012.
Under the legislation currently in force:
-
the correspondence of
convicted persons
with their lawyers cannot be censored, monitored or seized and should be transmitted to the recipient without undue delay (Article 8a§2 of the Code). The same rule applies to correspondence with: investigating and justice authorities, other State organs, organs of municipalities, the Ombudsman, the Ombudsman for Children and organs established on the basis of international treaties ratified by Poland concerning human rights protection (so, also – the European Court). According to Article 102, point 11, a prisoner has a right to exchange correspondence with abovementioned bodies;
-
as far as individuals
detained on remand
are concerned, Article 217b§2 of the Code provides that, as a rule, their correspondence with the Ombudsman, the Ombudsman for Children and organs established on the basis of international treaties ratified by Poland for the human rights protection must be sent directly to the recipients without censorship.
This rule also applies to correspondence with investigating authorities, judicial authorities, other State organs and organs of municipalities, in exceptionally justified circumstances of a particular case, when the organ at whose disposal the person remains decides. The abovementioned provision has never been criticised by the European Court and, as the Convention has a direct effect in the domestic legal system, this kind of limitation shall be applied in line with the requirements provided by Article 8 of the Convention;
-
the correspondence of individuals detained on remand with their lawyers, as a rule, is not subject to censorship (Article 73§1 of the Code of Criminal Procedure). Exceptionally, and only during the investigation period and for no longer than 14 days from the day the person was detained, a prosecutor, in specifically justified situations, may reserve a right to control a correspondence between the suspect and his lawyer (Article 73§3). However, the European Court never found this provision to be in violation of Article 8 of the Convention. Thus, the amendment of the abovementioned provision is not strictly necessary to execute this group of judgments. However, it should be noted that in its judgment of 10/12/2012, the Polish Constitutional Tribunal found Article 73§3 of the Code of Criminal Procedure to be in contravention with relevant provisions of the Constitution as it did not specify the grounds for a prosecutor to reserve a right of control of the correspondence between a suspect and a lawyer. In consequence, the provision in question will lose its binding force on 10/12/2013. The legal amendment currently discussed in Parliament to execute the judgment of the Constitutional Tribunal completely eliminates the possibility for the control (and censorship) of correspondence between a lawyer and a detained person.
b)
the applicants at the domestic level may also make use of the domestic remedy in situations in which the censorship of their correspondence violated their personal rights. Since the judgment of the Warsaw Court of Appeal of 28/06/2007, it is open to persons affected by the censorship of correspondence to bring an action for protection of their personal rights under Articles 23 and 24 in conjunction with Articles 417 and 448 of the Civil Code on account of the infringement of the right to respect for their correspondence and to claim the compensation. The European Court found this remedy effective in several cases.
[22]
c)
Concerning practical arrangements, on 16/11/2007 an instruction was issued by the Director General of the Prison Service (amended on 12/02/2008) covering,
inter alia
, the installation of special letterboxes specifically for prisoners’ correspondence with the European Court and other international bodies in all prisons and detention centres in Poland and establishing a detailed procedure on how to deal with this kind of correspondence. In all facilities concerned, such letterboxes were installed.
d)
Further, the Ministry of Justice, in the letters to the presidents of all courts of appeal (of 10/01/2005, 09/09/2005), underlined the need to take measures to guarantee respect for detainees’ correspondence.
e)
The Ministry of Justice sent a letter to the presidents of all the courts of appeal (of 28/06/2005) making a reference to the relevant jurisprudence of the European Court, and underlining the necessity to eliminate a practice of censoring (or even marking envelopes of the correspondence as “censored”) of the correspondence with the European Court. Presidents of all courts of appeal were asked to disseminate this letter among all the criminal courts’ judges and all the courts’ administrative personnel.
f)
On the website of the Ministry of Justice, two short guidelines on the standards in the jurisprudence of the European Court with regards to the issue of monitoring of the correspondence were published:
The European Court of Human Rights standards on the monitoring of detainees’ correspondence
and
The European Court of Human Rights standards with regards to cases of persons deprived of liberty
.
g)
Moreover, the Ministry of Justice prepared a publication: “Standards of human rights protection in the law of European Convention of Human Rights”
(“Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka”
), concerning,
inter alia
, the detainees’ right to respect for correspondence.
h)
The problem of monitoring of correspondence of persons deprived of liberty was also included in training for judges and prosecutors.
i)
The European Court’s judgments in cases: Klamecki No.2, Matwiejczuk, Lewak, Jasinski, Pawlik, Wenerski, Miernicki, Bereza No.2, Hinczewski, Przyjemski, Lesiak and Miroslaw Zielinski were translated into Polish and published on the website of the Ministry of Justice: (
www.ms.gov.pl
).
2)
Violations of the right to respect for family life on account of refusals of family visits in the detention (Article 8):
a)
Article 217 § 1 of the Code of Execution of Criminal Sentences of
1997, as applicable at the material time, provided as follows:
A detainee is allowed to receive visitors, provided that he obtains permission from the authority at whose disposal he remains [investigating prosecutor at the investigative stage or from the trial court once the trial has begun]. If the detainee remains at the disposal of several authorities, it is necessary to obtain permission from all of them unless they decide otherwise.
b)
Following the judgments of the European Court, on 2 July 2009 the Constitutional Court, in case no. K 1/07, gave a judgment, following a constitutional complaint lodged by the Ombudsman, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences had been incompatible with a number of
constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of
proportionality (Article 31 § 3 of the Constitution), Article 8 of the ECHR and Article 37 of the UN Convention of the Rights of the Child. The
Constitutional
Court’s judgment became effective on 8 July 2009, on the date of its publication in the Journal of Laws (
Dziennik Ustaw
). The Constitutional
Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusal of family visits in pre-trial detention, was incompatible with the above provisions. The Constitutional Court held that this provision did not indicate with sufficient clarity the limitations on a detainee’s constitutional right to protection of private and family life. The Constitutional Court also considered that Article 217 § 1 was incompatible with the Constitution insofar as it did not provide for a possibility to appeal against the prosecutor’s decision to refuse a family visit in pre-trial detention. In its reasoning, the Constitutional Court, while declaring the unconstitutionality of the provision in question, made a direct reference to standards contained in the jurisprudence of the European Court, in particular to judgments in cases: Klamecki No. 2, Ferla and Eryk Kozłowski.
c)
On 05/11/2009, the Parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences, which entered into force on 08/06/2010. In particular, subparagraphs 1a -1f were added. These provisions provide in particular that a detainee is entitled to at least one family visit per month. In addition, they indicate clearly the conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal.
Currently, refusal of a family visit may be given only if there exist justified concerns that a visit will be used with the aim to obstruct the course of criminal proceedings or to commit a crime, in particular – to incite to a crime. The order, containing a refusal of a family visit, may be appealed by the detained person and the person applying for such a family visit. Moreover, Article 217 § 3 of the Code of Execution of Criminal Sentences was amended also on 11/09/2011. According to that amendment, a visit (
widzenie
) could be organised in a way of direct contact of detainee and visiting person.
d)
Short guidelines on the standards in the jurisprudence of the European Court with regards to the issue of prisoners’ rights were published on the website of the Ministry of Justice a :
The European Court of Human Rights standards with regards to cases of persons deprived of liberty
.
e)
Moreover, the Ministry of Justice prepared a publication: “Standards of human rights protection in the law of European Convention of Human Rights”
(“Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka”
), concerning,
inter alia
, a right to family visits in detention. This issue was also included in the trainings for judges and prosecutors.
f)
The European Court’s judgments in cases: Klamecki No.2, Ferla, Eryk Kozlowski, Mazgaj, Knyter and Bogusław Krawczak were translated into Polish and published on the website of the Ministry of Justice: (
www.ms.gov.pl
).
In these circumstances, no other general measure appears necessary.
III.
Conclusions of the responding State
The government considers that further individual measures are not necessary in the present case and that the general measures adopted are sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 8 of the Convention.
Appendix I
The
Klamecki No 2
and
G.K
. cases also concern the non-adversarial character of the procedure for reviewing the lawfulness of the applicants’ detention, since
neither the applicants nor their lawyers were given the possibility to participate in the procedure for the review of the lawfulness of detention
(violation of Article 5§4 of the Convention). Violation of the same provision of the Convention was also found in the case of
Dochnal
, as the applicant could not effectively exercise his defence rights in the proceedings concerning the review of the lawfulness of his pre
‑
trial detention due to the restriction on his access to the case files.
In
GK,
the European Court also found that
the
applicant’s
detention
between 1 and 24 January 1997
was unlawful
due to the fact that the application for the applicant’s detention to be prolonged was lodged outside the relevant time-limit, in breach of section 10(a) of the 1995 Interim Law (violation of Article 5§1 of the Convention).
In addition, the European Court found that
criminal proceedings
brought against the applicants in the cases of
Abramczyk
and
Matwiejczuk
, as well as
civil proceedings
dealing with the applicant’s compensation claims (in the
Mianowski
) case
were unreasonably long
(violations of Article 6§1 of the Convention).
Finally, in
Wenerski
and
Mirosław Zieliński
the European Court found violation of Article 3 of the Convention on account of
inhuman and degrading treatment
of the applicants due to imprisonment in inadequate conditions, particularly – overcrowding (
Mirosław Zieliński
) or inadequate medical assistance (
Wenerski
).
Appendix Ia
1)
Violations of Article 3:
applicants are no longer detained in conditions not compatible with Article 3 and Mr Wenerski was provided with necessary medical assistance.
2)
Violations of Article 5§1, 5§3 and 5§4:
the pre-trial detentions at issue are over.
3)
Excessive length of the civil proceedings
(in the Mianowski case)
and criminal proceedings
(in Matwiejczuk case)
– violations of Article 6§1
: the domestic proceedings have been ended. The criminal proceedings in Abramczyk case have not been ended yet. The proceedings are currently stayed but the applicant is not detained any more.
Appendix II
1)
Inhuman and degrading treatment due to inadequate medical assistance in prison facilities (Article 3):
this case presents similarities to that of
Kaprykowski
(23052/05), pending before the Committee of Ministers for supervision of general measures;
2)
Inhuman and degrading treatment due to imprisonment in ovecrowding (Article 3):
this case presents similarities to that of
Orchowski
(17885/04), pending before the Committee of Ministers for supervision of general measures;
3)
Violations of the right to be brought promptly before a judge (Article 5§3) and to participate in proceedings to challenge the lawfulness of detention (Article 5§4) and violations of the right to respect for correspondence in cases concerning monitoring of detainees’ correspondence before 01/09/1998:
these cases present similarities to that of
Niedbała
(judgment of 04/07/2000), closed by the Resolution ResDH(2002)124, following the reform of the Code of Criminal Procedure;
4)
Violation of the right to challenge the lawfulness of detention on account of restrictions in access to the case files (Article 5§4):
this case presents similarities to that of
Chruściński
(judgment of 06/11/2007), closed by the Resolution CM/ResDH2011(42), following the amendment to the Code of Criminal Procedure;
5)
Excessive length of detention on remand (Article 5§3):
these cases present similarities to that of
Trzaska
(25792/94), pending before the Committee of Ministers for supervision of general measures;
6)
Excessive length of civil and criminal proceedings (Article 6§1):
these cases present similarities to a number of other cases concerning the length of judicial proceedings pending before the Committee of Ministers for supervision of general measures, in particular
Podbielski
(27916/95) and
Kudła
(30210/96).
[1]
Information submitted by the Polish authorities on 11 October 2013.
[2]
Klamecki No 2, Kwiek and Matwiejczuk
[3]
Abramczyk, Andrysiak, Bartosiński, Ćwiertniak, Dzitkowski, Feliński, G.K., Hinczewski, Jakubiak, Janulis, Janus, Jasiński, Kisielewski, Kliza, Kołodziński, Kotowski, Kozimor, Krawiecki, Kwiek, Lesiak, Lewak, Łuczko, Maksym, Mianowski, Matwiejczuk, Mgłosik, Miernicki, Nowicki, Ochlik, Oleksy, Owsik, Panusz, Pasternak, Pawlak, Pisk-Piskowski, Przyjemski, Stępniak, Tomczyk Prokopyszyn, Warsiński, Wasilewski, Wenerski, Mirosław Zieliński
[4]
Kozimor
[5]
Hinczewski, Misiak
[6]
Pawlak, Kozimor, Kwiek, Najdecki, Zborowski, Andrulewicz, Bobel, Zborowski No. 3
[7]
Kwiek
[8]
Bobel
[9]
Jarkiewicz, Bereza No. 2, Misiak
[10]
Bereza No. 2
[11]
Zborowski
[12]
Misiak
[13]
Misiak
[14]
Misiak, Zborowski, Friedensberg
[15]
Drozdowski
[16]
Warsiński
[17]
Friedensberg
[18]
Maksym, Drozdowski
[19]
Dochnal, Gradek, Mazgaj, Nurzyński, Knyter, Wegera
[20]
Klamecki No. 2, Eryk Kozlowski, Ferla, Bogusław Krawczak
[21]
(Abramczyk, Dochnal, Feliński, G.K., Janus, Janulis, Jarkiewicz, Klamecki No 2, Knyter, Bogusłw Krawczak, Matwiejczuk, Mgłosik, Najdecki, Ochlik, Oleksy, Owsik and Wegera.
[22]
Pasternak, Friedensberg and Biśta, Application No. 22807/07, judgment of 12/01/2010.