Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29456/95

by Miroslaw WISNIEWSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 November 1994

by Miroslaw WISNIEWSKI against Poland and registered on 5 December 1995

under file No. 29456/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1958, serves a prison

sentence in Szczecin prison.

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

summarised as follows:

In 1991 the applicant was sentenced to imprisonment. On

19 February 1992 the Warsaw Regional Court (S*d Wojewódzki) released

the applicant on parole.

On 23 December 1992 the Szczecin District Court (S*d Rejonowy)

convicted the applicant of theft and sentenced him to two years'

imprisonment. He served this sentence from 29 February 1992 to

23 August 1993, when he was released on parole.

On 9 August 1993 the Szczecin Regional Court decided to revoke

the applicant's release on parole of 19 February 1992, having regard

to his conviction for theft by the Szczecin District Court.

On 4 January 1994 the applicant was charged with aggravated

theft. On 10 February 1994 he was remanded in custody in another case.

On 16 August 1994 the Szczecin District Public Prosecutor transmitted

a bill of indictment to the Szczecin District Court. On 16 June 1994

the Szczecin District Court convicted him of theft and sentenced him

to two years' imprisonment. On 27 October 1994 the Szczecin Regional

Court dismissed the applicant's appeal.

On 12 October 1994 the Szczecin District Prosecutor terminated

the investigations concerning the applicant's complaint that his

personal belongings had been stolen by a policeman who had arrested him

on 10 February 1994, having found that the applicant's belongings had

been given back to him.

On 16 October 1994 the Szczecin Regional Court dismissed the

applicant's appeal against the judgment of the Szczecin District Court

of 16 June 1994.

On 17 October 1994 the Szczecin Regional Court ordered execution

of the decision of 9 August 1993 by which the applicant's release on

parole had been revoked.

On 28 October 1994 the Drawsko District Prosecutor refused to

institute criminal proceedings concerning the applicant's complaint

that he was being poisoned by the medical services of the Wierzchowo

prison, having established that appropriate medicaments against allergy

had been administered to the applicant.

In a letter of 27 December 1994 the governor of Koszalin District

prison, having examined the applicant's five complaints, concerning

alleged unlawful practices of the prison administration with regard to

various aspects of prison life, informed him that the complaints were

unfounded. In a letter of 30 December 1994 the applicant was informed

that the examination of another seven complaints had not shown that any

irregularities had occurred.

On 5 May 1995 the Minister of Justice refused to lodge an

extraordinary appeal against the judgment of the Szczecin District

Court of 16 June 1994, upheld by the Szczecin Regional Court on

16 October 1994.

On 8 March 1996 the applicant filed a civil action with the

Szczecin Regional Court against the State Treasury - Regional

Headquarters of the Szczecin police, claiming compensation. He

submitted that during the transport from Czarne prison to the prison

in Szczecin in February 1996 the temperature in the police car had

fallen below zero and so remained throughout the journey. As a result,

he had subsequently fallen ill. The applicant complained thereof to

the Governor of the Szczecin Prison and to the General Police

Headquarters; in reply he was informed that the heating system in the

car had worked on the relevant day, but it was not efficient enough as

the car was old and in bad technical condition. It had been impossible

for the policemen in the convoy to improve the heating. These

proceedings are pending.

On 3 March 1996, in reply to the applicant's complaint, the

governor of Koszalin prison informed him that delay in the mailing of

his letters had been caused by financial difficulties and the

impossibility to buy post stamps. In the subsequent replies to his

further complaints about the alleged delays in mailing his

correspondence he was informed that the internal enquiries had shown

that no irregularities had occurred in this respect.

On 22 March 1996 the Slupsk Regional Court granted exemption

from court fees to the applicant in civil proceedings against the State

Treasury - Czarne prison concerning his claim for protection of his

personal rights, based on Article 24 of the Civil Code.

Apparently proceedings for compensation against the State

Treasury - Wierzchowo Pomorskie prison are pending before the Koszalin

Regional Court.

The applicant filed a number of complaints about all possible

aspects of prison life to various authorities. In the replies he was

informed that his allegations were groundless.

COMPLAINTS

The applicant complains under Article 3 of the Convention about

the conditions in prisons in which he served his sentence. He submits

that the prisons are in very bad technical conditions, that the cells

are overcrowded, that the food and clothing are of unsatisfactory

quality and that the medical care is insufficient. He submits that

these conditions caused his nervous breakdown and that he was

constantly harassed by the prison guards.

The applicant complains under Article 6 paras. 1, 2 and 3 (c) of

the Convention that the last criminal proceedings against him were

unfair in that his officially assigned lawyer remained passive

throughout the court hearings; that he was regarded as being guilty

long before the judgment was pronounced; that his defence rights were

breached in that the court did not allow him to put any questions to

the witnesses and ordered him to reply only "yes" or "no" to the

Court's questions.

He further complains under Article 6 para. 1 that it was not

until 17 October 1994 that the Szczecin Regional Court ordered

execution of the decision of 9 August 1993 by which the applicant's

release on parole had been revoked, which amounted to an unreasonable

delay.

The applicant further complains under Article 1 of Protocol No. 1

that upon his arrest in February 1994 the policeman took from his

apartment a bag containing his personal belongings and that only some

of them were later given back to him.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention about the conditions in the prisons in which he serves his

sentence.

The Commission recalls that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3) of the Convention as established in the case-law of the

Convention organs (cf. Eur. Court HR., Ireland v. United Kingdom

judgment of 18 January 1979, Series A No. 25, p. 65, para. 162).

Having examined the material submitted, the Commission finds no

evidence that the prison conditions complained of raise an issue under

this provision of the Convention.

It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant complains under Article 6 paras. 1, 2 and 3 (c)

(Art. 6-1, 6-2, 6-3-c) of the Convention that the last criminal

proceedings against him were unfair. However, the Commission is not

required to decide whether or not the facts alleged by the applicant

disclose any appearance of a violation of Article 6 (Art. 6) of the

Convention as the judgment complained of was pronounced on 16 October

1994, i.e. more than six months before the date on which the

application was introduced. The applicant has not therefore lodged his

application within the six months' time-limit provided for in Article

26 (Art. 26) of the Convention.

It follows that this complaint is inadmissible within the meaning

of Article 27 para. 3 (Art. 27-3) of the Convention.

3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that it was not until 17 October 1994 that the Szczecin

Regional Court ordered execution of the decision of 9 August 1993 by

which his release on parole had been revoked, which amounted to an

unreasonable delay.

The Commission has examined this complaint under Article 5

para. 1 (a) (Art. 5-1-a) of the Convention, which reads:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a

competent court; ..."

The Commission recalls that the detention or re-detention after

revocation of a parole licence is justified from the outset by the

initial conviction (No. 13183/87, Dec.14.12.1988, D.R. 59, p. 235).

In the present case the applicant was convicted in 1991 and on

19 February 1992 he was released on parole. In view of his subsequent

conviction of 23 December 1992, the Szczecin Regional Court ordered

that the parole licence be revoked and the execution of this decision

was subsequently ordered on 17 October 1994. It should be noted that

the applicant was serving another sentence at that time. The

Commission considers that the revocation of his parole and the

subsequent decision to execute this revocation were justified by the

initial conviction and the lapse of time between the revocation of

release on parole and the decision to execute it did not affect the

lawfulness of the applicant's re-detention.

It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4. The applicant finally complains under Article 1 of Protocol No. 1

(P1-1) that upon his arrest in February 1994 his personal belongings

were stolen by the police. However, the Commission is not required to

examine whether or not the facts submitted by the applicant in support

of this part of the application disclose any appearance of a violation

of the Convention as Article 26 (Art. 26) of the Convention provides

that the Commission "may only deal with a matter after all domestic

remedies have been exhausted".

In the present case the Commission observes that the applicant

filed a request to have criminal proceedings instituted in this

respect. On 12 October 1994 the Szczecin District Public Prosecutor

refused to do so, having established that the belongings that the

applicant had with him at his arrest had been returned to him. The

applicant did not lodge an appeal against this decision with the

Szczecin Regional Public Prosecutor.

It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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WISNIEWSKI v. POLAND

WISNIEWSKI v. POLAND

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