FOURTH SECTION

DECISION

Application no . 68713/11 Artur KOTWA against Poland

The European Court of Human Rights (Fourth Section), sitting on 21 May 2013 as a Committee composed of:

Päivi Hirvelä, President, Ledi Bianku, Paul Mahoney, judges , and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 19 October 2011,

Having regard to the declaration submitted by the respondent Government on 15 January 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:

THE FACTS

The applicant, Mr Artur Kotwa, is a Polish national, who was born in 1967 and is currently detained in Włocławek Prison.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, 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 period of the applicant ’ s detention

Since 1994 the applicant has been in continuous detention. Włocławek Prison, to which the applicant was committed most recently, is not a part of his application with the Court.

From 20 October 1994 to 30 March 1995, from 20 June 1995 to 1 June 1999 and from 9 November 2007 to 27 February 2008 the applicant was detained in Warszawa Białołęka Remand Centre.

From 30 March 1995 to 20 June 1995 the applicant was detained in Warszawa Mokotów Remand Centre.

From 1 June 1999 to 9 November 2007 the applicant was detained in Radom Remand Centre.

From 27 February 2008 to 12 May 2009 the applicant was detained in Potulice Prison.

2. The conditions of the applicant ’ s detention

The applicant submitted that during his detention in the above-mentioned facilities he had been held in cells in which the floor space per person had been less that the statutory minimum standard of 3 m 2 per person.

As established by the domestic courts in the course of the civil proceedings against the State Treasury (see below), between 20 October 1994 and 12 May 2009 the applicant had been detained in cells in which the floor spac e per person had repeatedly fallen below the statutory minimum of 3 square metres ( m 2 ) .

The official statistics published by the Prison Service ( Służba Więzienna) reveal that the overcrowding (the degree by which the number of prisoners exceeds the maximum allowed capacity of a particular detention facility, which, in turn, is calculated on the basis of the standard of 3 m² of cell ’ s floor space per prisoner provided for in Polish law ):

- in Radom Remand Centre ranged from 2.3% to 27.7% between August 2000 and October 2007

- in Białołęka Remand Centre ranged from 8.6% to 16.9% between November 2007 and February 2008

- in Potulice Prison ranged from 3.7% to 14.9% between March 2008 and March 2009.

The applicant further submitted that the cells had been damp, dirty and ill-equipped. Toilet annexes were not sufficiently separated from the rest of the cells. The administrations of the penitentiaries failed to provide him with a sufficient amount of toiletries, clean bedding and underwear.

The applicant had a one-hour outdoors exercise per day and one shower per week.

3. The civil proceedings for infringement of personal rights

On 6 November 2009 the applicant lodged a civil action against the State Treasury and the Central Board of the Prison Service ( Centralny Zarząd Służby Więziennej ) seeking 2, 466,000 Polish zlotys (PLN) (approximately EUR 616,000) in compensation for infringement of his personal rights on account of his detention in overcrowded cells and in poor living conditions in the above-mentioned facilities.

On 26 August 2010 the Warszawa Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s civil action.

The domestic court examined the applicant ’ s claim under Article 24 of the Civil Code ( Kodeks cywilny ) in conjunction with Article 448 of that code. The first-instance court established that during the applicant ’ s detention in the facilities in question the floor space per prisoner fell repeatedly below the statutory 3 m 2 . Each time the administration of the relevant facility informed penitentiary judge about overcrowding. Furthermore, penitentiary judges inspected the facilities frequently and did not find any irregularities in their functioning. Cells were well equipped and renovated on a regular basis. According to the regional court the applicant failed to demonstrate that the living conditions in the penitentiaries had been inadequate. Consequently, being detained in overcrowding did not alone infringe on the applicant ’ s personal rights.

The applicant appealed.

On 27 May 2011 the Warszawa Court of Appeal ( Sąd Apelacyjny ) changed the first-instance judgment and awarded the applicant PLN 1,000 (approximately EUR 250). The appellate court found, in a contrary to regional court ’ s conclusion, that being detained in overcrowded cells had alone violated the applicant ’ s personal rights. As the applicant did not prove that his suffering went beyond the ordinary inconvenience of serving a prison sente nce, awarding him more than PLN 1,000 was considered to be unjust and in contradiction to the interest of social justice ( społeczne poczucie sprawiedliwości ).

B. Relevant domestic law and practice

A detailed description of the relevant domestic law and practice 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 in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) adopte d 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).

COMPLAINT

The applicant complained under Article 3 of the Convention that he had been detained in overcrowded and insanitary cells in Warszawa Białołęka, Warszawa Mokotów and Radom Remand Centres and in Potulice Prison.

THE LAW

The applicant complained about the conditions of his detention in Warszawa Białołęka, Warszawa Mokotów and Radom Remand Centres and in Potulice Prison . He relied on Article 3 of the Convention which provides as follows:

Article 3

“No one shall be subjected to torture or to in human or degrading treatment or punishment”

By letter dated 15 January 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by 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:

“... The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the violation of Article 3 of the Convention regarding the conditions of the applicant ’ s detention, in particular overcrowding.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of PLN 30 , 000 (thirty thousand Polish zlotys), 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 , 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...”

In a letter of 16 March 2013 the applicant contested the unilateral declaration submitted by the Government. He expressed the view that the sum mentioned in the Government ’ s declaration was too low.

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 will examine 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 the 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 the 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 the application (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

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 concerning the conditions of the applicant ’ s detention in Warszawa Białołęka, Warszawa Mokotów and Radom Remand Centres as well as in Potulice Prison , 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 accordance with Article 37 § 1 (c) of the Convention.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President