FOURTH SECTION

DECISION

This version was rectified on 20 November 2012

under Rule 81 of the Rules of Court

Application no . 58485/11 Mieczysł aw BIADOŃ against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 September 2012 as a Committee composed of:

George Nicolaou , President, Ledi Bianku , Vincent A. D e Gaetano , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 5 September 2011,

Having regard to the declaration submitted by the respondent Government on 11 July 2012 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 Mieczysław Biadoń, is a Polish national, who was born in 1951 and lives in Koszalin.

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

COMPLAINTS

The applicant complained under Article 3 of the Convention about the conditions of his detention in Włocławek Prison, in particular about overcrowding and poor sanitary conditions.

He further complained without invoking any Article of the Convention that he had not been released from Koszalin Remand Centre on 8 September 2007 but rather on 10 September 2007.

THE LAW

A. Conditions of detention

The applicant complained about the conditions of his detention . 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 11 July 2012 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:

“ . .. 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 to the applicant the amount of PLN 15 , 600 (fifteen thousand six hundred Polish zlotys) , which they consider to be reasonable in the light of the Court ’ s case law. The sum referred to above includes PLN 12 , 000 which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses in the proceedings before the Court. Moreover , according to the well-established Court ’ s case law the injured party is entitled to receive the reimbursement of costs and expenses borne in the course of domestic proceedings if those costs and expenses were incurred in order to seek , through the domestic legal order , prevention or redress of a violation (see the Zimmermann and Steiner v. Switzerland judgment of 13 July 1983 , Series A no. 66 , § 6 , p.36). Therefore the amount of PLN 15 , 600 includes the sum of PLN 3 , 600 which is to cover costs and expenses of the proceedings before the domestic courts , which the applicant owes to the State Treasury on account of the judgment of the Szczecin Court of Appeal of 23 March 2011 [1] , case no. I ACa 76/11 (see Trojak v. Poland , case no. 60606/09, decision of 10 May 2012).

The above-mentioned sum 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 for the Protection of 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 23 July 2012 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably 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 violation of one ’ s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69 ‑ 98, ECHR 2006 ‑ ... .; Majewski v. Poland , no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland , no. 56026/00, 10 May 2007).

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 complaint

The applicant further complained that he had been detained in Koszalin Remand Centre unlawfully for two days in September 2007. In particular , he stated that the period of his imprisonment sentence had come to an end on Sunday, 9 September 2007 but he had been released on Monday10 September 2007. The applicant argued that he should have been released a day before the end of his sentence , that is on Saturday , as provided by Article 168 of the Code of the Enforcement of Criminal Sentences. However , from the documents produced by the applicant it appears that his imprisonment sentence was scheduled to end on 10 September 2007 and he was released accordingly. Even assuming that the applicant complied with the six months rule by raising this issue in the course of civil proceedings , this part of the application is manifestly ill ‑ founded and must be rejected pursuant to 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 George Nicolaou Deputy Registrar President

[1] 1. Rectified on 20 November 2012: the text originally read “ 23 March 2009 ” .