FOURTH SECTION

DECISION

Application no . 41358/10 Andrzej TUROSIŃSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 February 2014 as a Committee composed of:

George Nicolaou, President, Zdravka Kalaydjieva, Faris Vehabović, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 19 July 2010,

Having regard to the comments 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 Andrzej Turosiński, is a Polish national, who was born in 1935 and is currently detained in Białystok Remand Centre.

2 . The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, 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. The period of the applicant ' s detention

4 . On 3 October 2008 the applicant was committed to Nowy Wiśnicz Prison. On 6 July 2009 he was transferred t o another penitentiary facility, which is not the subject of this application. On 11 August 2009 the applicant was transferred to Wołów Pr ison where he remained until 28 October 2009.

2. The conditions of the applicant ' s detention

5 . While in Nowy Wiśnicz Prison, from 7 October 2008 to 7 July 2009, the applicant was detained in cell no. 5 of a semi-opened wing. The cells of that wing were opened all day from 5:40 a.m. to 8:00 p.m. The applicant ' s cell measured 29.14 m² and at its peak was occupied by 12 inmates (2.43 m² of floor space per person) . A toilet annex was properly separated from a living area. During his entire detention in Nowy Wiśnicz Prison, the applicant attended classes at the prison ' s vocational school apparently as a full-time student. Moreover, between November 2008 and February 2009, the applicant was employed.

6 . The applicant further submitted that when detained in Wołów Prison he had been held in overcrowded cells. According to the official statistics obtained from the Central Board of the Prison Services ( Centralny Zarząd Służby Więziennej ) the occupancy rate in that facility between August and October 2009 ranged from 100.6% to 111.3%.

3. Civil proceedings for infringement of personal rights

7 . On 25 November 2009 the applicant brought a civil action against the State Treasury and Nowy Wiśnicz Prison, seeking 5,000 Polish zlotys (PLN) (approximately EUR 1,200) in compensation for suffering which he claimed to have experienced in Nowy Wiśnicz Prison due to the overcrowding and inadequate sanitary conditions.

8 . On 25 March 2010 the Bochnia District Court ( Sąd Rejonowy ) dismissed the applicant ' s action. The domestic court examined the applicant ' s complaint about conditions of detention under Articles 23 and 24 of the Civil Code, in conjunction with Article 448 of that Code. The District Court acknowledged that during the applicant ' s detention in Nowy Wiśnicz Prison a space available per person was less than the statutory minimum standard of 3 m² of space per person. On the other hand, it was noted that the applicant had been detained in the semi-opened wing and the overall sanitary conditions had been good. The domestic court concluded that the applicant ' s personal rights had not been infringed and refused to award him any compensation .

9 . On 27 January 2011 the Tarnów Regional Court ( Sąd Okręgowy ) dismissed the applicant ' s appeal essentially restating the District Court ' s reasoning.

4. Incident of 16 September 2009

10 . On 16 September 2009, during the school workshops in Wołów Prison, the applicant was beaten up by some members of the prison subculture. It appears that he requested the prison authorities to investigate the incident. On 20 November 2009 he received the letter from the prison ' s administration confirming the incident and informing him that the perpetrators had been banned from attending the classes. Apparently no further complaint was made.

B. Relevant domestic law and practice

11 . 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).

COMPLAINTS

12 . The applicant complained under Article 3 of the Convention that during his detention in Nowy Wiśnicz and Wołów Prisons he was detained in overcrowded cells, in which the sanitary conditions were poor .

13 . He further complained that while in Wołów Prison he had been beaten up by the inmates.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

14 . The applicant complained about the conditions of his detention in Nowy Wi ś nicz and Wołów Prisons . He relied on Article 3 of the Convention, which reads as follows:

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

15 . Examining the present case, the Court notes that the applicant was held in allegedly burdensome conditions on two occasions. As he was transferred in-between to another penitentiary facility where detention conditions apparently improved, his detention is not regarded as a “continuing situation” but rather as two distinct periods.

A. The complaint concerning the conditions of detention in Wołów Prison

16 . The Government objected that the applicant had not exhausted domestic remedies, that the complaint did not comply with the six ‑ month rule and that the applicant had not suffered any significant disadvantage. The Court agrees with the Government as regards the non ‑ exhaustion objection, therefore it does not find it necessary to examine other objections.

17 . T he Government, pleading non-exhaustion of domestic remedies, stated that an action for compensation was available for the applicant under Article 417 of the Civil Code, as well as under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code, which at the relevant time was already considered an effective remedy.

18 . Lastly, the Government drew the Court ' s attention to the fact that indigent plaintiffs were free to apply for a waiver of court fees under section 102 of the Act of 28 July 2005 on Court Fees in Civil Proceedings.

19 . In view of the foregoing, the Government invited the Court to reject the complaint for non-exhaustion of domesti c remedies, pursuant to Article 35 § 1 of the Convention.

20 . The applicant did not comment on the Government ' s preliminary objection.

21 . The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Assenov and Others v. Bulgaria , 28 October 1998, §85, Reports of Judgments and Decisions 1998-VIII).

22 . The Court further notes that it is up to the applicant to prove that an appropriate and effective domestic remedy was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case (see for example, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V).

23 . The Court fully confirmed that position in a number of recent cases brought against Poland in the context of prison overcrowding and inadequate detention conditions (see, among others, Łatak , cited above, §§ 77-85). More importantly, however, in these recent cases, the Court found that as from 17 March 2010 a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purpose of Article 35 § 1 of the Convention. Having regard to the three-year statute of limitation for lodging such an action, the Court held that in essentially all cases in which, in June 2008 or later, 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 claim compensation (see, in particular, Łatak , cited above, § 85).

24 . The Court considers that the applicant had at his disposal an action for compensation which is a remedy used for claiming pecuniary and non ‑ pecuniary damages and which was effective. Moreover, the applicant did not dispute or even comment on the Government ' s allegations about the existence of the remedy or its effectiveness. Furthermore, the applicant did not refer to any special circumstances, which might have amounted to reasons absolving him from exhausting the remedy. It is also to be noted that the applicant lodged a civil ac tion for compensation in regard to the conditions of detention in Nowy WiÅ›nicz Prison. Therefore, the applicant was aware of that remedy and simply failed to pursue it in respect of Wołów Prison.

25 . As the applicant did not exhaust an action for compensation as regards the complaint about conditions of his detention, this part of the application must be rejected on the ground that the effective remedy available under domestic law has not been exhausted as required by Article 35 § 1 of the Convention.

26 . In the light of the above, the Court does not find it necessary to examine the Government ' s objections concerning the issue of compliance with the six-month rule.

B. The complaint concerning the conditions of detention in Nowy Wiśnicz Prison

27 . Insofar as the applicant complained about the overcrowded cells in Nowy WiÅ›nicz Prison it is to be noted that during his entire detention in that facility he had been detained in a semi-opened wing which was opened from 5:40 to 20:00. Moreover the applicant attended school and work. In result, the scarce amount of space was compensated for by his enjoyment of freedom of movement outside the cell (see ValaÅ¡inas v. Lithuania , no. 44558/98, ECHR 2001 ‑ VIII, § 107). That leads to the conclusion that in the present case the overcrowding complained about did not meet the threshold of severity required by the Article 3. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Remaining complaint

28 . The applicant finally complained that on 16 September 2009, during his detention in Wołów Prison, he was beaten up by his fellow inmates. His complaint with the prison authorities resulted in the letter of 20 November 2009 and apparently no further complaint was made. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons the Court unanimously

Declares the application inadmissible .

Fatoş Aracı George Nicolaou Deputy Registrar President