FIRST SECTION

DECISION

Application no. 29657/17 Sebastian BARAN against Poland

The European Court of Human Rights (First Section), sitting on 21 May 2019 as a Committee composed of:

Armen Harutyunyan , President, Krzysztof Wojtyczek , Pere Pastor Vilanova , judges,

and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 11 April 2017,

Having regard to the declaration submitted by the respondent Government on 20 December 2018 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Sebastian Baran , is a Polish national, who was born in 1983. He is currently detained in Cieszyn Prison.

2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

3. The applicant complained under Article 3 of the Convention about the insufficient separation of the sanitary facilities from the rest of the cells during his detention in Sosnowiec Remand Centre, on account of the bad sanitary conditions in cells where he had been detained on remand.

4. On 29 June 2018 notice of the application was given to the Government.

The circumstances of the case

5. The applicant was committed to Sosnowiec Remand Centre, where during various periods between 21 May 2012 and 20 May 2013 he was held in cells nos. 51 and 55.

6. On an unspecified date the applicant brought a civil action against the State for infringement of his personal rights, seeking compensation, inter alia , for his detention in unsatisfactory sanitary conditions in Sosnowiec Remand Centre. He submitted, inter alia, that the toilet annexes had not been sufficiently separated from the cells, which had made it impossible for him to have even a minimum of privacy.

7. On 25 February 2016 the Katowice Regional Court dismissed the applicant ’ s claim. The court established that the cells in Sosnowiec Remand Centre had been regularly renovated and equipped in accordance with the domestic provisions. The detainees were provided with mattresses, blankets, pillows and towels which were appropriate for use. The towels and bed linen were changed every two weeks. The detainees were entitled to a weekly shower and they had access to cold water in their cells. They had basic hygiene products at their disposal. The renovated cells had been properly ventilated and heated. Each cell was equipped with one or two windows which could be opened, and one or two lights. The court also established that, apart from cells nos. 51 and 55, the toilet annexes in Sosnowiec Remand Centre ’ s cells were separated from the cells by a wall up to the ceiling or a wall 1.4 m high, equipped with doors. In cells nos. 51 and 55 the toilet annexes were separated from the cell by a fibreboard partition without a door; there was only a cloth curtain. Moreover, regarding cell no. 55, the court found that the fibreboard partition had not reached the ceiling. Finally, the court held that during his detention in the Sosnowiec Remand Centre the applicant had never been detained in overcrowded cells.

8. The court held that the State Treasury had not acted unlawfully and that there had been no intention to cause harm or damage to the applicant. Moreover, it held that temporary nuisance caused by the situation complained of did not exceed the normal difficulties caused by the very fact of being detained. Therefore the court found that the conditions in Sosnowiec Remand Centre had not been so harsh as to amount to a breach of personal rights.

9. The applicant appealed, arguing that the court had failed to establish the facts of the case correctly.

10. On 6 December 2016 the Katowice Court of Appeal dismissed the applicant ’ s appeal. It fully agreed with the lower court ’ s findings and conclusions. In particular, it was of the view that the nuisance caused by the manner in which cells were fitted with toilet annexes, namely by way of fibreboard partitions, had not exceeded the normal difficulties caused by the very fact of serving a prison sentence.

COMPLAINTS

11. The applicant complained under Article 3 of the Convention that he had been a victim of degrading treatment on account of bad sanitary conditions in cells nos. 51 and 55 of Sosnowiec Remand Centre. The toilet annexes had not been properly separated from the cells and had not provided for even a minimum of privacy.

12. The Court decided to communicate the complaint both under Article 3 and Article 8 of the Convention. In that context, it recalls that it has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018).

THE LAW

A. Complaint under Article 3

13. Relying on Article 3 of the Convention, the applicant complained about the insufficient separation of the sanitary facilities from the rest of the cells nos. 51 and 55. This Article provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

14. The Government admitted that cells nos. 51 and 55 had been in a poor sanitary condition; however, in order to alleviate the resulting discomfort the applicant had been often transferred to other cells. They also argued that the applicant ’ s detention in cells nos. 51 and 55 had not amounted to degrading treatment.

15. The Court notes that in the present case the domestic courts acknowledged that in cells nos. 51 and 55 the partition between the sanitary facilities and the rest of the cells had not been sufficient (see paragraph 7 above), but no other aggravating factors had been found. Thus, it was the only hardship that the applicant had to bear.

16. In view of the foregoing, the Court considers that the circumstances of the applicant ’ s detention in Sosnowiec Remand Centre cannot be found to have caused distress and hardship which went beyond the threshold of severity under Article 3 of the Convention (see Szafra ń ski v. Poland , no. 17249/12, §§ 27-28, 15 December 2015).

17. This complaint is therefore manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 8

18 . The Court communicated the complaint about the insufficient separation of the sanitary facilities in the applicant ’ s cells under Article 8 of the Convention.

19. Article 8 reads, in so far as relevant:

“1. Everyone has the right to respect for his private ... life ...

2 . There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

20. By a letter of 20 December 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They also requested that the Court strike out this part of the application in accordance with Article 37 of the Convention in the light of the declaration.

21. The declaration provided as follows:

“...the Government thereby wish to express – by way of the unilateral declaration ‑ their acknowledgment of violation of Article 8 of the Convention as regards the installation of toilet facilities in cell nos. 51 and 55 of the Sosnowiec Remand Centre where the applicant has been serving his sentence from 22 February 2012 to 21 May 2013 and from 27 March 2014 to 5 April 2014.

... the Government declare that they are ready to pay the applicant the sum of the EUR 700 which they consider to be reasonable in the light of the Court ’ s case-law ... The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, as a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points...”

22. On 18 February 2019 the Court received a letter from the applicant informing the Court that he had agreed to the terms of the Government ’ s declaration.

23. The Court finds that the applicant ’ s express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.

24. It therefore takes note of the friendly settlement reached between the parties in so far as it relates to the above complaint . It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

25. In view of the above, it is appropriate to strike the application out of the list of cases in so far as it relates to the complaint under Article 8 of the Convention .

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases, in so far as it relates to the complaint under Article 8 of the Convention, pursuant to Article 39 of the Convention.

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 13 June 2019 .

Renata Degener Armen Harutyunyan Deputy Registrar President