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MICHALEK v. POLAND

Doc ref: 25480/94 • ECHR ID: 001-2074

Document date: February 22, 1995

Inbound citations: 1
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Cited paragraphs: 0
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Outbound citations: 0

MICHALEK v. POLAND

Doc ref: 25480/94 • ECHR ID: 001-2074

Document date: February 22, 1995

Cited paragraphs only

SUR LA RECEVABILITÉ

Application No. 25480/94

by Ryszard MICHALEK

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 February 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 27 January 1994

by Ryszard MICHALEK against Poland and registered on 25 October 1994

under file No. 25480/94;

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 facts of the case as submitted by the applicant may be

summarised as follows:

The applicant is a Polish citizen born in 1952. He is serving

a prison sentence in Strzelce Opolskie prison.

In 1993 the applicant twice requested the Strzelce Opolskie

District Prosecutor to institute criminal proceedings against the

prison guards relating to allegations of theft of the applicant's

personal belongings. On 24 June and 5 June 1993 the Prosecutor refused

on the ground that he considered the allegations unfounded.

On 9 January 1994 the applicant complained to the Minister of

Justice that the Strzelce Opolskie District Prosecutor was cooperating

with the prison guards in that he was coverig up various criminal

offences committed by the guards to the disadvantage of the prisoners.

On 27 January 1994 the applicant asked to be let out of his cell

as he wished to take his letters and complaints addressed to various

authorities to a guard supervisor for mailing. The prison guard opened

the door, ordered the applicant to go to the common room and to get

undressed. The applicant states that he was subsequently taken to the

"safe cell" ("cela zabezpieczaj*ca") where he was assaulted and beaten

by the prison guards; later in the afternoon he was beaten again.

On 28 January 1994 the prison physician allegedly refused to

record accurately the applicant's health in the medical documents and

to authorise the applicant to have an X-ray. An X-ray was apparently

made 17 days later.

On 3 February 1994 the applicant requested the Strzelce Opolskie

District Prosecutor to institute criminal proceedings against the

prison guards concerned.

By a letter of 10 March 1994, the Opole Regional Prosecutor

informed the applicant that his complaint to the Minister of Justice

of 9 January 1994 had been transmitted to him for examination.

Accordingly the files of the enquiries conducted in 1993 by the

Strzelce Opolskie District Prosecutor had been examined. It had been

established that enquiries had been properly conducted and the refusals

to institute criminal proceedings were thus well-founded. Moreover,

the applicant had not appealed against these refusals.

On 14 March 1994 the Strzelce Opolskie District Prosecutor

rejected the applicant's request of 3 February 1994 to institute

criminal proceedings against the guards concerned. The Prosecutor had

regard to the findings of his enquiry, in which he had examined the

medical documents and the minutes prepared on the use of force. In

particular it had been established therein that on 27 January 1994 the

applicant had asked to be let out of the cell and had been taken to his

supervisor. He was subsequently required to undergo a bodily search,

whereupon he had became aggressive. The prison guards had taken him

by force to the "safe cell". On 27 and 28 January the applicant had

been examined by two different physicians, who had not established any

external injuries which would normally have appeared if the applicant

had been beaten. The Prosecutor considered that in the light of these

findings, the applicant's statements as to ill-treatment were not

credible. He concluded that no criminal offence had been committed.

On the same day the Strzelce Opolskie District Prosecutor refused

to institute criminal proceedings with regard to the earlier complaint

about theft of the applicant's personal belongings by the prison

guards, finding that no theft had been committed. He stated that

certain objects, for instance razors, were placed in the applicant's

deposit, and others had been given back to the applicant, who had

signed a receipt to this effect.

COMPLAINTS

The applicant complains that he was beaten by the prison guards.

He complains that the guards had stolen his personal belongings and

beaten him, yet no criminal proceedings were brought against them.

The applicant does not invoke any provisions of the Convention.

THE LAW

The applicant complains, without reference to any provisions of

the Convention, that he was beaten by the prison guards, that his

personal belongings were taken away and that his criminal complaints

remained unsuccessful.

However, the Commission is not required to decide whether or not

the facts submitted by the applicant in support of his complaint

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, both in relation to his allegations of theft

and as regards his alleged ill-treatment, the applicant requested the

institution of criminal proceedings. The Strzelce Opolskie District

Prosecutor refused these requests, finding no basis for criminal

charges. Against these refusals, the applicant could have appealed

to the Opole Regional Prosecutor, but he failed to do so.

It follows that 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.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

LEXI

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