FOURTH SECTION

DECISION

Application no . 59739/08 Marek GLIŃSKI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 11 February 2014 as a Committee composed of:

Ledi Bianku, President, Paul Mahoney, Krzysztof Wojtyczek, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 3 December 2008 ,

Having regard to the declaration submitted by the respondent Government on 9 September 2013 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

The applicant, Mr Marek Gliński , is a Polish national, who was born in 1961. He is currently detained in Pozna ń prison.

He was represented before the Court by Mr M. Michalski , a lawyer practising in Włocławek .

The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

A. The circumstances of the case

On 26 August 1997 the Poznań Regional Court ( Sąd Okręgowy ) convicted the applicant of murder and sentenced him to twenty-five years ’ imprisonment. On 13 November 1997 that judgment was upheld by the Poznań Court of Appeal. On 10 December 1998 the Supreme Court dismissed the cassation appeal lodged by the applicant.

The applicant is to finish serving his sentence on 13 June 2020.

The domestic courts tried the applicant on the basis of the 1969 Criminal Code ( Kodeks Karny ) (“the 1969 Code”), which was in force at the relevant time. On 1 September 1998 the 1969 Code was replaced by the new Criminal Code (“the 1997 Code”).

On an unspecified date in 2008 the applicant applied for early conditional release. He asked the penitentiary court to apply the provisions of the 1969 Code.

By a decision of 29 December 2008 the Włocławek Regional Court discontinued the proceedings concerning the applicant ’ s request for early conditional release. It observed that under Article 78 § 3 of the 1997 Code a person who had been sentenced to twenty-five years ’ imprisonment was eligible for early release after serving fifteen years of his or her sentence. In the applicant ’ s case that date was 13 June 2010 and he was therefore not eligible to apply. The Włocławek Regional Court noted that the transitional provisions of the 1997 Code did not allow for the application of the 19 69 Code in respect of the application for early conditional release.

Subsequently, the penitentiary courts refused to allow his applications for early conditional release on 10 Septembe r 2010, 28 February 2011 and 22 September 2011. The courts held that the substantive conditions for early conditional release had not been met. They considered, inter alia , that the applicant had been assessed by the prison services as likely to commit further offences if released and that his conduct in prison had not allowed to accept that the objectives of prison sentence, including the resocialisation purposes, had been reached.

The applicant appealed against the decisions. On 19 October 2010, 13 April 2011 and 23 November 2011 the appellate courts dismissed his appeals, endorsing the reasoning and conclusions of the first ‑ instance courts.

B. Relevant domestic law

Under Art. 91 (1) the 1969 Criminal Code, the persons sentenced under that code had a right to apply to the penitentiary court for an early conditional release having served a half of their sentence towards which the period of detention on remand was to be counted as a matter of law.

Under Article 78 (3) of the 1997 Code , persons sentenced to 25 years ’ imprisonment acquire a right to apply to the penitentiary court for such release having served 15 years of their sentence .

Under Article 14 (4) of the Transitional Provisions to the 1997 Code, this Code governs, from the day of its entry into force, the procedural and substantive issues of early conditional release in respect of persons sentenced under the 1969 Code prior to the 1997 Code ’ s entry into force .

A person whose application for an early conditional release has been allowed can be imprisoned again to serve the remainder of the sentence if he or she commits a new offence before the date on which the original sentence would have ended. The period between the date of release and the latter date is referred to by Aricle 80 (1) of the 1997 Code as a trial period ( okres próby ).

COMPLAINTS

The applicant complained under Article 3 of the Convention about the overcrowding and allegedly inadequate living co nditions during his detention. He further complain ed under Article 9 of the Convention that the authorities had failed to provide him with sufficient opportunity to practise his religion in prison.

He further complained that even though he was convicted under the 1969 Criminal Code, the conditions of his early conditional release were regulated by the 1997 Code. Had the 1969 Code had remained in force, he would have been eligible to apply for early release on 13 December 2007. Instead, under the currently applicable 1997 Code , that date was set for 13 June 2010.

The applicant complain ed about the refusals of different domestic authorities to grant him short leave from prison or a pardon. He further complain ed about the Supreme Court ’ s refusal to reopen his criminal case.

THE LAW

A. Condition of the applicant ’ s detention

The applicant complained , in particular, under Article 3 of the Convention about the overcrowding and inadequate living co nditions during his detention.

After the failure of attempts to reach a friendly settlement, by a letter of 9 September 2013 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 further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ ... T he Government hereby wish to express – by way of the unilateral declaration – t heir acknowledgement of the violation of Article 3 of the Convention by failure to afford [to] the applicant adequate conditions of his detention. Simultaneously, the Government declare that they are ready to pay the applicant the sum of PLN 15,000 which they consider to be reasonable in the light of the Court ’ s case-law in similar cases (see, inter alia , Dokupi ł v. Poland application no. 10121/05, decision of 8 February 2012; Ulatowski v. Poland application no. 29848/11, decision of 6 March 2012 ; Jurgielewicz v. Poland application no. 70795/11, decision of 9 October 2012).

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 Convention . 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, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention... ”

By a letter of 8 October 2013 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration .

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application” .

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court examine d carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003 ‑ VI ; WAZA Spółka z o.o. v. Poland (dec.) , no. 11602/02, 26 June 2007; and SulwiÅ„ska v. Poland (dec.) , no. 28953/03).

The Court has established in a number of cases, including those brought against Poland , its practice concerning complaints about conditions of detention (see, for example, Orchowski v. Poland , no. 17885/04 ; Norbert Sikorski v. Poland , no. 17599/05 ; and Łatak v. Poland (dec.), no. 52070/08) .

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases - the Court considers that it is no longer justified to continue the examination of th is part of th e application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

B. Remaining complaints

The applicant made various other complaints concerning his detention. In particular, he complained that even though he had been convicted under the 1969 Criminal Code, the conditions of his early conditional release had been regulated by the 1997 Code. Had the 1969 Code remained in force, he would have been eligible to apply for an early conditional release on 13 December 2007. Instead, under the currently applicable 1997 Code , that date was set for 13 June 2010.

Being master of the characterisation to be given in law to the facts of the case (see , among many other authorities, Guerra and Others v. Italy , judgment of 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I, p. 223, § 44), the Court considers that the applicant ’ s complaints fall to be examined under Article 7 of the Convention .

The Court reiterates its established case ‑ law on the distinction drawn between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of a “penalty”. Article 7 of the Convention applies only to the former, while a change in the conditions of release relates to the execution of a sentence and thus excludes application of that Article (see Kafkaris v. Cyprus [GC], no. 21906/04 , § 142 , ECHR 2008 and Grava v. Italy , no. 43522/98, § 51, 10 July 2003).

In the present case the issue raised by the applicant concerns solely the differences in the manner in which the domestic law determined the date on which he acquired a right to apply for an early conditional release. Under the 1997 Criminal Code the applicant acquired a right to apply for such a release to a penitentiary court, dealing with the execution of criminal sentences, later tha n it would have been the case under the 1969 Code. However, the Court notes that the penalty of twenty-five years ’ imprisonment imposed on him remained the same under the 1969 and 1997 Criminal Code (see Giza v. Poland (dec.), no. 1997/11, § 31, 23 October 2012, mutatis mutandis ). Mor eover , at no time had the applicant acquired an entitlement to be released as of right, but only the right to apply for an early conditional release (compare and contrast, Del Rio Prada v. Spain [GC], no. 42750/09 , § 101, ECHR 2013). Further, under the applicable provisions of the domestic law, the released person can be imprisoned again to serve the remainder of the sentence if he or she commits a new offence before the date on which the original sentence comes to end. That period is referred to by Art. 80 (1) of the 1997 Code as a trial period (compare and contrast, Del Rio Prada , cited above, § 101 , where the sentence was fully and finally discharged on the date of early release approved by the sentencing court.)

In the light of its case ‑ law the Court thus concludes that, in the circumstances of the present case, the matter of early conditional release concerns the execution of the sentence and Article 7 of the Convention is therefore not applicable. Moreover, the Court notes that the applicant failed to appeal against the decision of 29 December 2008 to a higher court and that he did not raise this complaint in his later applications for early conditional release.

It follows that this part of th e application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

As to the remainder of the application, the Court, h aving regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaint under Article 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Ledi Bianku Deputy Registrar President