FIRST SECTION

DECISION

Application no. 62187/15 Grzegorz GIEŁZAK against Poland

The European Court of Human Rights (First Section), sitting on 14 May 2019 as a Committee composed of:

Aleš Pejchal, President, Tim Eicke, Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 27 November 2015,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Grzegorz Giełzak, is a Polish national who was born in 1974 and is detained in Ż ytkowice Prison. He was rep resented before the Court by Ms K. Morawiec, a lawyer practising in Warsaw.

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.

A. The circumstances of the case

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

1. Period of the applicant ’ s detention

4. The applicant, who has been in detention since 2000, was held in Warsaw- Białołęka Remand Centre from 20 December 2 005 to 20 December 2007, from 3 July to 12 August 2008, from 9 to 14 October 2008 and from 23 December 2008 to 27 March 2009.

2. Conditions of the applicant ’ s detention

5. According to the applicant, during his detention in Warsaw-Białołęka Remand Centre the cells were overcrowded, the toilet annexes were not adequately separated from the living areas in the cells, the cells were mouldy, the heating was inadequate and there were no toiletries and cleaning products. He could not participate in sports activities and had only one hour for outside exercise a day. He also stated that there had been no cells for non-smokers.

6. The domestic courts, in the proceedings summarised below, found that an action by the applicant in respect of the period until 26 March 2006 had become time-barred under the three-year statute of limitations. Therefore, the courts took into account the period after 26 March 2006.

7. The courts established that from 1 January to 30 September 2007 and from 1 January to 30 September 2008 there had been overcrowding in Warsaw-Białołęka Remand Centre. The applicant had been held in cells with a capacity of two or six people.

8. In the six-person cells the toilet annexes had been separated by walls (in renovated cells) or by boards that had been hung from two-metre-high scaffolding (in cells that had not been renovated). Owing to security reasons, there had been no doors. The entrances had been isolated by means of plastic curtains, but sometimes the applicant had had to cover them with his own bed sheet. The ventilation had worked properly and it had been possible to open the windows, but they were not well insulated, which had caused low temperatures in winter. The six-person cells had measured approximately 15 sq. m, which meant that there had been 2.5 sq. m per person. The applicant had had access to cold running water. The electricity had been turned on from 9 a.m. to midday and from 1 to 3 p.m. during which time the inmates could use electric kettles or immersion heaters to warm water up. The walls had damp and mould had grown on them. When reported, the prison staff had removed the mould and dried the walls.

9. In the cells for two persons, the toilet annexes had been separated by a board hung from scaffolding. The applicant had had to use his bed sheet to cover the entrance. As in the six-person cells access to electricity had been limited and the cells had also been damp and prone to mould. Those cells had measured approximately 5 sq. m, which had meant that there had been approximately 2.5 sq. m per person.

3. Civil proceedings against the State

10. On 27 March 2009 the applicant brought a civil action against the State for infringement of his personal rights, seeking compensation for his detention in overcrowded cells and unsatisfactory sanitary conditions in Łowicz Prison and Warsaw-Białołęka Remand Centre, as well as for obstacles to family visits caused by the distance of the Sztum Prison (where he had also been held) from his family ’ s residence. He claimed 150,000 Polish zlotys (PLN) in compensation (approximately 37,500 euros (EUR)).

11. On 4 June 2014 the Warsaw-Praga Regional Court ( Sąd Okręgowy ) partially allowed the applicant ’ s action, awarding him in total PLN 2,000 (approximately EUR 500). The court established that the applicant had been for many months held in overcrowded cells which had not been properly ventilated or heated, the windows had not been well-insulated yet had been unopenable, and that the cells had not offered sufficient artificial light owing to the limitations on electricity use. This, in the court ’ s opinion, had infringed the applicant ’ s personal rights and had amounted to unlawful, inhuman treatment. The court did not find that the placement of the applicant in overcrowded cells could be explained by exceptional circumstances.

12. On the other hand, the court established that despite the lack of doors to the toilet annexes and the use of curtains or bedsheets as partitions, the applicant ’ s privacy had been adequately secured. It found the lack of doors had been justified as a security measure. It also stated that the mould had appeared owing to the fact that the prisoners had washed themselves and their clothes and had dried them in the cells, but they had failed to inform the prison staff when the fungus had appeared on the walls, while timely drying could have prevented its growth.

13. The Regional Court ordered the applicant to pay the costs of proceedings, totalling PLN 700 (approximately EUR 175), of which PLN 400 (approximately EUR 100) was in relation to the claims that were not time-barred.

14 . On 29 May 2015 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed appeals by the applicant and the State. However, it found that the windows in the cell could have been opened, contrary to the findings of the Regional Court. It also corrected an error in the Regional Court ’ s judgment as to the name of one of the defendants and ordered the applicant to pay the State PLN 5,400 (approximately EUR 1,350) for costs of proceedings before the second instance. These costs were reduced by the Warsaw Court of Appeal on 17 February 2016 to PLN 120 (approximately EUR 30).

15. Throughout the proceedings the applicant was represented by professional legal counsel appointed under the legal-aid scheme.

B. Relevant domestic law and practice

16. A detailed description of the relevant domestic law and practice concerning general rules governing the 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 in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05), adopted 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), adopted on 12 October 2010 (see §§ 25-54).

17. The provisions governing lodging of a cassation appeal in civil cases are set out in the Court ’ s decision of Hołownia v. Poland (no. 10824/11, §§ 27-34, 10 February 2015).

COMPLAINT

18. The applicant complained under Article 3 of the Convention that during his detention in Warsaw-Białołęka Remand Centre he had been held in overcrowded cells and in insanitary conditions. He also complained of a lack of proper partitioning of the toilet annexes.

THE LAW

19. The Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that the applicant had failed to lodge a cassation appeal even though it had been available to him, since he had claimed 150,000 Polish zlotys in compensation.

20. The Government pointed out that the applicant had been represented by professional legal counsel and t hat he had been informed of the possibility to lodge a cassation appeal. He could th erefore either have appointed a lawyer to lodge such an appeal or lodged an application for the appointment of a legal aid lawyer to lodge such an appeal on his behalf.

21. 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.

22. The applicant submitted that the judgment of 29 May 2015 (see paragraph 14 above) had been final and non-revisable and that the lawyer appointed by the court had represented him only until the date that judgment had become final.

23. The Court reiterates that it is paramount that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States, whose responsibility is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Hołownia , cited above, § 48, and the authorities cited therein).

24. The rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many other authorities, Antoni Lewandowski v. Poland , no. 38459/03, § 61, 2 October 2012).

25. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement. Mere doubts regarding the effectiveness of the relevant remedy, if not supported by material evidence, such as examples from the established domestic practice, are not sufficient to absolve an applicant from his or her duty under Article 35 § 1 (see Pikielny and Others v. Poland (dec.), no. 3524/05, 18 September 2012, § 57).

26. The Government argued that the applicant should have brought a cassation appeal to the Supreme Court.

27. The Court notes that in its case of Hołownia (cited above, §§ 56-62) it examined in detail availability and accessibility of the cassation appeal in civil cases.

28. In particular, the Court reiterates that the issue of the applicant ’ s representation is identical to the issue in the case of Hołownia – while the legal aid expired after the judgment of the appellate court became final, no arguments have been submitted to the Court to explain why a further legal-aid request was not submitted or to demonstrate that such a request would have offered no prospects of success.

29. In the absence of the applicant ’ s explanation as to his failure to lodge a cassation appeal, the Court sees no reason to depart from its conclusions in the case of Hołownia .

30. Having regard to the above, the Court finds that it would be inconsistent with the subsidiarity principle to accept the application for substantive examination without requiring the applicant to first submit the substance of his Convention complaint to the Supreme Court by way of a cassation appeal.

31. It follows that 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,

Declares the application inadmissible.

Done in English and notified in writing on 6 June 2019 .

Renata Degener Aleš Pejchal Deputy Registrar President