FOURTH SECTION

PILOT-JUDGMENT PROCEDURE

AS TO THE ADMISSIBILITY OF

DECISION

Application no. 222/05 by Dariusz PISARKIEWICZ and O thers against Poland

The European Court of Human Rights (Fourth Section), sitting on 14 December 2010 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , Vincent A. de Gaetano , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 8 December 2004,

Having regard to the final pilot judgment s in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) delivered on 22 October 2009, in particular to the finding under Article 46 of the Convention that overcrowding in Polish prisons and remand centres revealed a structural problem,

Having regard to the decisions to declare the applications Łatak v. Poland (no. 52070/08) and Ł omiński v. Poland (no. 33502/09) inadmissible for non-exhaustion of domestic remedies,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by two applicant s ,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Dariusz Pisarkiewicz (“the first applicant”) , was a Polish national born in 1957, who died on 6 April 2006. The remaining four applicants, Mr Ryszard Dziedziczak (“the second applicant”), Mr Mieczysław Paturaj (“the third applicant”), Mr Pawe ł Szwajkowski (“the fourth applicant”) and Mr Łukasz Kmiecik (“the fifth applicant”) are Polish national s who live in Strzelce Opolskie , Łódź and Łęczyca respectively . Mr Łukasz Kmiecik , who had been granted legal aid, was represented by Mr J. Skrzydło , a lawyer practising in Łódź . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant s ’ detention

The first applicant was continuously detained in several penitentiary facilities from the date of his arrest on 14 June 1998 to his death on 6 April 2006.

The second and third applicants have been continuously detained in several penitentiaries since an unspecified date. They are currently detained in Strzelce Opolskie Prison and Łódź Remand Centre respectively.

The fourth applicant was committed to Łódź Remand Centre on 19 October 2003 where he remained until 3 July 2008. On that date he was transferred to Płock Prison where he is currently detained.

The fifth applicant was committed to Łódź Remand Centre on 23 September 2004 and then continually detained in several penitentiaries. On 25 June 2009 the applicant was released.

2 . Conditions of the applicants ’ detention

The parties gave partly differing accounts of the conditions of the applicant s ’ detention.

The first, second and third applicants in their initial application submitted that throughout their detention they were held in overcrowded cells in conditions which did not comply with the basic standard s of hygiene.

The fourth applicant maintained that between 19 October 2003 when he had been committed to Łódź Remand Centre and 3 July 2008 when he had been transferred to another penitentiary, he had been detained in cells in which the statutory minimum size of 3 m² per person had not been respected. He further submitted that throughout his detention in that establishment he had been held in conditions which did not comply with basic standards of hygiene.

The fifth applicant maintained that until at least 8 February 2005 he was held in overcrowded cells. He further submitted that throughout his detention he was held in conditions which did not meet the basic standards of hygiene.

The Government acknowledged that during the applicants ’ detention in Łódź Remand Centre they had spent 139 days in cells in which the statutory minimum size of 3 m² per person had not been respected. The Government did not comment on the conditions of the applicants ’ detention in the remaining penitentiaries. Finally, they maintained that the second, third and fourth applicants were currently detained in cells in which the statutory minimum requirement was respected. This submission was not contested by the respective applicants.

3 . The applicants ’ actions concerning the conditions of their detention

On 29 November 2004 the first applicant lodged a complaint with the penitentiary authorities alleging inadequate conditions of his detention. On an unspecified date it was dismissed as ill-founded. None of the remaining applicant s lodge d any complaints with the penitentiary authorities regarding the conditions of their detention. Nor did they bring a civil action in tort to seek compensati on for the infringement of personal rights.

B. Relevant domestic law and practice

A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court ’ s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court ’ s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).

COMPLAINT

The applicant s complained in substance under Article s 3 and 8 of the Convention of overcrowding and the inadequate conditions of their detention.

THE LAW

A. As regards the first applicant

The Court notes that by letter of 15 January 2008, the Government notified the Registry that on 6 April 2006 Mr Dariusz Pisarkiewicz died. The Court notes that no heirs have made themselves known to the Court, expressing a wish to pursue the application.

Having regard to Article 37 § 1 (a) of the Convention, the Court concludes that there is no one who intends to pursue the application in this part. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of this part of the application to be continued. Accordingly, it should be struck out of the list.

B. As regards the remaining applicants

1 . The Government ’ s objections

(a) The Government ’ s objection on compatibility ratione personae

The Government pleaded that in their application for m, the second, third, fourth and fifth applicant s failed to duly complete the part regarding their personal data. Consequently, they were of the opinion that in respect of these applicants the application should be declared inadmissible as being incompatible ratione personae with the Convention.

(b) The Government ’ s objection based on exhaustion of domestic remedies

Article 35 § 1 of the Convention reads, in so far as relevant, as follows:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”

The Government submitted that some applicants had already been released at various dates and those still in detention had been moved to cells in which they had been secured at least the statutory minimum space of 3 m 2 per person shortly after the delivery of the Orchowski and Norbert Sikorski pilot judgments. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and the applicants should bring a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code in order to seek compensation for the past violation.

In that regard they relied, in particular, on the Orchowski judgment, reiterating that the Court, having regard to the principle of subsidiarity , had held that in cases where the alleged violation of Article 3 no longer continued and could not be eliminated with retrospective effect, the only means of redress for the applicant was pecuniary compensation.

In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention.

2 . The applicants ’ position

The second and third applicants did not submit any observations. In their submissions the fourth and fifth applicants in general disagreed with the above arguments and maintained that the remedy suggested by the Government could not be considered “effective” for the purposes of Article 35 § 1 of the Convention.

3 . The Court ’ s conclusion

The Court notes that, even assuming that the application is within its jurisdiction ratione personae , it is in any event inadmissible for the reasons set out below.

The Court has already examined a similar objection based on exhaustion of domestic remedies raised by the Government in the above-mentioned cases of Łatak v. Poland and Łomiński v. Poland and considered their arguments not only in the context of those two individual applications but also in respect of other actual or potential applicants with similar cases (see Łatak v. Poland no. 52070/08 and Łomiński v. Poland no. 33502/09 ( dec .), 12 October 2010, §§ 71-85 and §§ 62-76 respectively).

In so doing, the Court had regard to the fact that on the date of the adoption of its decisions there were 271 cases pending before it where the applicants had raised complaints similar in substance, alleging a violation of Article 3 in that at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells (ibid. § 84 and § 75 respectively).

Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010 and having regard to the 3-year limitation period for lodging such an action, the Court held that essentially in all cases in which in June 2008 the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned should bring a civil action for the infringement of personal rights and compensation (ibid. § 85 and § 76 respectively).

In the present case the situations giving rise to the alleged violation of Article 3 ended at various dates after June 2008. All the applicants were either released or – which was not contested before the Court – placed in prison cells in which the statutory minimum size requirement of 3 m 2 per person was respected. That being so and having regard to the fact that they still have adequate time to prepare and lodge with the Polish civil courts an action under Article 24 taken in conjunction with Article 448 of the Civil Code, they should, before having their Convention claim examined by the Court, be required to seek redress at domestic level.

In any event, as from 6 December 2009, the date on which Article 110 § 2 (f) of the Code of Execution of Criminal Sentences entered into force, a detainee placed in conditions where the area per person is less than the statutory minimum may lodge a complaint with a domestic court and contest a decision of the prison administration to reduce his cell space (see Łatak and Łomiński cited above, §§ 42-43 and 86-87 and §§ 34-35 and 77-78 respectively).

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in so far as it concerns the first applicant;

Declares the remainder of the application inadmissible.

FatoÅŸ Aracı Nicolas Bratza              Deputy Registrar President