FOURTH SECTION

DECISION

Application no . 21131/11 Zbigniew KIJOWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 December 2012 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 25 March 2011,

Having regard to the declaration submitted by the respondent Government on 28 August 2012 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zbigniew Kijowski , is a Polish national, who was born in 1980 and is currently detained in Strzelce Opolskie Prison.

The Polish Government (“the Government”) were represented by their Agents, 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

On 17 October 2007 the applicant was arrested. He was committed to various penitentiary facilities. In particular , the applicant was detained:

- from 17 October 2007 to 6 February 2008 in Wojkowice Prison,

- from 6 February to 6 October 2008 in Częstochowa Remand Centre ,

- from 6 October 2008 to 28 April 2011 in Opole Remand Centre.

Subsequently, the applicant continued to be detained in unspecified penitentiary facilities. On 3 August 2011 he was transferred to Wronki Prison. On unspecified date in May 2012 the applicant was transferred to Strzelce Opolskie Prison, where he is currently detained.

2. The conditions of the applicant ’ s detention

The applicant complained that during his detention in Wojkowice Prison and in Częstochowa and Opole Remand Centres , he had been detained in cells in which the statutory minimum standard of 3 square metres (“m²”) per person had not been respected. The applicant further maintained that a toilet annex had not been properly separated from the living area. A shower was available once a week.

While in Wronki Prison the applicant had access to medical care , including specialists , such as neurologist. The statutory minimum standard of 3 square metres (“m²”) per person was respected in the applicant ’ s cells.

3. Alleged ill-treatment in Opole Remand Centre

The applicant claimed that on 29 September 2009 he was insulted and slapped in the face by one of the remand centre ’ s guards. On 1 October 2009 the applicant lodged a complaint with the prison administration about the guard ’ s alleged misconduct. An investigation which was subsequently carried out confirmed that on a relevant date the applicant and the guard had had a disagreement but did not confirm the applicant ’ s allegations. On 23 September 2010 the applicant notified the prosecutor ’ s office about the incident. By the decision of 26 October 2010 the Opole District Prosecutor refused to open an investigation for the lack of substantiation.

4. Civil proceedings for infringement of personal rights

The applicant brought a number of civil actions against the State Treasury and penitentiary facilities , seeking compensation for the suffering which he claimed to have experienced in those facilities due to the overcrowded and insanitary conditions. The domestic courts each time concluded that the applicant ’ s personal rights had not been breached and his civil actions were dismissed.

(a) The civil proceedings against the State Treasury and Wojkowice Prison

( i ) First set of proceedings (case no. I C 425/09)

On 20 October 2009 the applicant lodged a civil action against the State Treasury and Wojkowice Prison. On 8 June 2010 the Będzin District Court dismissed the applicant ’ s action. No appeal was lodged.

(ii) Second set of proceedings (case no. I C 433/10)

On an unspecified date the applicant lodged another civil action against the State Treasury and Wojkowice Prison. On 16 June 2011 the Będzin District Court rejected the civil action holding that its subject matter had become a res iudicata .

The applicant ’ s interlocutory appeal against that decision was dismissed on 8 September 2011 by the Katowice Regional Court .

(b) The civil proceedings against the State Treasury and Częstochowa Remand Centre

( i ) First set of proceedings (case no. I C 783/09 and VI Ca 776/10)

On an unspecified date the applicant lodged a civil action against the State Treasury and Częstochowa Remand Centre.

On 12 July 2010 the Częstochowa District Court dismissed the civil action.

On 8 December 2010 the Częstochowa Regional Court dismissed an appeal by the applicant.

By a letter of 8 February 2011 the applicant was informed by his legal ‑ aid lawyer that the latter had not found any grounds to lodge a cassation appeal.

(ii) Second set of proceedings (case no. I C 46/11)

On 4 February 2011 the applicant brought another action against the State Treasury and Częstochowa Remand Centre. On 29 February 2012 the Częstochowa Regional Court rejected the applicant ’ s action as res iudicata and ordered him to pay the costs of proceedings in amount of PLN 3,600.

(c) The civil proceedings against the State Treasury and Opole Remand Centre

( i ) First set of proceedings (case no. I C 440/09 and I ACa 19/11)

On 13 August 2009 the applicant brought a civil action against the State Treasury and Opole Remand Centre.

On 21 October 2010 the Opole Regional Court dismissed the civil action and ordered the applicant to pay the proceedings costs in amount of PLN 3,600.

On 9 February 2011 the Wrocław Court of Appeal dismissed the applicant ’ s application for a retrospective leave to lodge an appeal out of time and rejected his appeal.

(ii) Second set of proceedings (case no. I C 322/11)

On 4 July 2011 the applicant brought another civil action against the State Treasury and Opole Remand Centre.

On 26 October 2011 the Opole Regional Court dismissed the applicant ’ s action on the merits and obliged him to pay PLN 7 , 200 proceedings costs. It appears that no appeal was lodged.

5. Proceedings under the 2004 Act

The applicant lodged several complaints under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) in regard to the civil proceedings described above. Consequently , the following decisions were given:

a) on 7 October 2010 the Częstochowa Regional Court dismissed the complaint about length of proceedings before the Częstochowa District Court ( case no. I C 783/09 ); the domestic court held that the impugned proceedings were conducted in a timely manner;

b) on 12 October 2010 the Katowice Regional Court dismissed the complaint about length of proceedings before the Będzin District Court ( case no. I C 425/09 ); it was held that the proceedings had not been lengthy; on 26 October 2011 the Katowice Regional Court dismissed the applicant ’ s second complaint regarding proceedings no . I C 425/09 as being lodged after the impugned proceedings had ended;

c) on 14 April 2011 the Wrocław Court of Appeal rejected the applicant ’ s complaint about length of the proceedings before the Opole Regional Court ( case no. I C 440/09 ) reasoning that the complaint had been lodged after the impugned proceedings had ended.

B. Relevant domestic law and practice

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

1. Relying on Articles 3 and 8 of the Convention, the applicant complained about inadequate conditions of his detention in Wojkowice and Wronki Prisons and Częstochowa and Opole Remand Centres. He also complained about quality of medical care provided in Wronki Prison.

2. The applicant further complained that while in Opole Remand Centre , on 29 September 2009 , he had been mistreated by a prison guard.

3. Invoking Article 6 of the Convention , the applicant complained about the alleged unfairness and length of the first set of proceedings against the State Treasury and Wojkowice Prison ( case no. I C 425/09 ), the first set of proceedings against the State Treasury and Częstochowa Remand Centre ( case no. I C 783/09 and VI Ca 776/10 ) and the first set of proceedings against the State Treasury and Opole Remand Centre ( case no. IC 440/09 and I ACa 19/11 ).

THE LAW

A. Complaints under Article 3 about the conditions of detention in Wojkowice Prison and Częstochowa and Opole Remand Centres

The applicant complained about the conditions of his detention in Wojkowice Prison and Częstochowa and Opole Remand Centres . He relied on Article 3 of the Convention which provides as follows:

Article 3

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

By letter dated 28 August 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue concerning the conditions of the applicant ’ s detention in Wojkowice Prison and Częstochowa and Opole Remand Centres 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:

“... The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement that the conditions of the applicant ’ s detention violated Article 3 of the Convention.

Consequently, the Government declare that they offer to pay the applicant the amount of PLN 13 , 000 (thirteen 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...”

The applicant failed to comment on the Government ’ s 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 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 this part of the application (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

B. Remaining complaints

1. Complaints under Article 3 concerning the conditions of detention and medical care provided in Wronki Prison

The applicant further complained about the conditions of his detention and medical care provided in Wronki Prison.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Alleged ill-treatment in Opole Remand Centre

Moreover , the applicant complained that on 29 September 2009 he had been ill-treated by a prison guard of Opole Remand Centre. The Court notes , however , that the applicant has failed to provide any evidence in support of his claim. The complaint is therefore wholly unsubstantiated .

3. Complaints under Article 6 regarding the civil proceedings

The applicant finally relied on the Article 6 of the Convention and complained about the below listed sets of proceedings.

( a) The proceedings against the State Treasury and Wojkowice Prison ( case no. I C 425/09 ) terminated on 8 June 2010

In his letter of 29 December 2011 the applicant complained that the proceedings before the Będzin District Court had been unfair and the judgment of 8 June 2010 had been served two months after its announcement.

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.

He further complained that the impugned proceedings had been excessively lengthy. The Court notes that the applicant ’ s complaint under 2004 Act had been examined on 12 October 2010.

It follows that the applicant introduced this issue before the Court out of time and it must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

( b) The proceedings against the State Treasury and Częstochowa Remand Centre ( case no. I C 783/09 and VI Ca 776/10 )

The applicant complained about the outcome of civil proceedings. He did not, however, allege any particular failure on the part of the relevant courts to respect his right to a fair hearing. Indeed, his complaint was limited to challenging the result of the proceedings and the Court finds no indication that the impugned proceedings were conducted unfairly.

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

The applicant further alleged that the proceedings before the first ‑ instance court had been lengthy. The Court notes that the proceedings complained about lasted approximately one year and two months and considers that they were not unduly long. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

( c) The proceedings against the State Treasury and Opole Remand Centre ( case no. IC 440/09 and I ACa 19/11 )

The applicant further challenged the result of the proceedings against the State Treasury and Opole Remand Centre. From the circumstances of the case the Court, however, finds no indication that the impugned proceedings were conducted unfairly.

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

The applicant finally alleged that the impugned proceedings had been lengthy. The Court notices that the applicant failed to lodge a complaint under the 2004 Act in accordance with formal requirements. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaints under Article 3 of the Convention concerning the conditions of the applicant ’ s detention in Wojkowice Prison and Częstochowa and Opole Remand Centres 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 Päivi Hirvelä Deputy Registrar President