FOURTH SECTION

Application no. 36646/09 Andrzej SZWED against Poland lodged on 30 June 2009

STATEMENT OF FACTS

The applicant , Mr Andrzej Szwed , is a Polish national who was born in 1959 and is currently detained in Piotrków Trybunalski Remand Centre.

A. The circumstances of the case

The facts of the case , as submitted by the applicant and evident from the documents in the case file , may be summarised as follows.

1. The period of the applicant ’ s detention

The applicant was detained in Łódź Remand Centre from 16 January to 6 August 2008 and from 6 May 2009 until an unspecified date , presumably no later than 8 August 2009.

It appears that between the applicant ’ s two terms in Łódź Remand Centre , he was detained in Kamińsk Prison.

2. The conditions of the applicant ’ s detention

During the first period of the applicant ’ s detention in Łódź Remand Centre he was held in six different cells.

From 16 January until 8 April 2008 he was detained in cell no. 156 in Wing A , which had 12 square metres (“m²”) of floor space, including 1.2 m² taken up by the toilet annex.

From 16 January until 23 March 2008 the cell was shared by three to four prisoners , including the applicant (from 4 m² to 3 m² of floor space/from 3.6 m² to 2.7 m² of living space per prisoner). From 24 to 27 March 2008 five people , including the applicant , shared that cell (2.4 m² of floor space/2.16 m² of living space per person). From 28 March to 8 April 2008 the number of cellmates ranged from three to four, including the applicant (from 4 m² to 3 m² of floor space/from 3.6 m² to 2.7 m² of living space per person).

From 8 to 14 April 2008 the applicant was detained in cell no. 10 in Wing B. The cell measured 12 m², including 1.2 m² for the toilet annex , and it was shared by the applicant and another inmate (6 m² of floor space/5.43 m² of living space per person).

From 14 to 15 April 2008 the applicant was detained in cell no. 125 in Wing B, which measured 12 m² , including 1.2 m² for the toilet annex. The cell was shared by five prisoners , including the applicant (2.4 m² of floor space/2.16 m² of living space per person).

From 15 April until 5 May 2008 he was committed to cell no. 119 in Wing B. The cell measured 12 m² , including 1.2 m² for the toilet annex. The occupancy rate fluctuated between four and five people , including the applicant (from 3 m² to 2.4 m² of floor space/ from 2.7 m² to 2.16 m² of living space per person).

From 6 May until 15 May 2008 the applicant was detained in cell no. 4 in Wing C , which measured 12 m² , including 1.2 m² for the toilet annex , and was shared by six prisoners (2 m² of floor space/1.8 m² of living space per person).

On 15 May 2008 the applicant was transferred to cell no.8 in Wing C, where he remained until 6 August 2008. The cell measured 12 m² , a toilet annex took up 1.2 m² of its space , and the occupancy rate ranged from four to six prisoners , including the applicant (from 3 m² to 2 m² of floor space/from 2.7 m² to 1.8 m² of living space per person).

During the second period of his detention in Łódź Remand Centre the applicant was first assigned to cell no. 65 where he remained from 6 until 11 May 2009. That cell measured 5.56 m² of floor space , including approximately 1.2 m² for the toilet annex. It was shared by two inmates, including the applicant (2.28 m² of floor space/2.03 m² of living space per person).

Subsequently the applicant was detained in cell no.50 of Wing C, which measured 12 m² of floor space , including 1.5 m² for the toilet annex. In the applicant ’ s submission, the occupancy of the cell was as follows:

- from 15 until 21 May 2009 the cell was shared by six detainees, including the applicant (2m² of floor space/1.75 m² of living space per person);

- from 22 until 28 May 2009 a total number of five inmates, including the applicant, shared the cell (2.4 m² of floor space/2.1 m² of living space per person);

- from 5 to 22 June 2009 the cell was shared by four prisoners , including the applicant (3 m² of floor space/2.62 m² of living space per person);

- from 23 to 24 June 2009 five prisoners were detained in the cell (2.4 m² of floor space and 2.1 m² of living space per person);

- finally, from 23 to 28 June 2009 four prisoners were detained in the cell (3 m² of floor space/2.62 m² of living space per person).

3. The applicant ’ s request for a vegetarian diet

Upon being admitted to Łódź Remand Centre on 17 January 2008, the applicant requested to be served vegetarian meals in prison, reasoning that such a diet would help him to feel better. On 29 January 2008 the Governor of Łódź Remand Centre ( Dyrektor Aresztu Śledczego w Łodzi ) refused to grant him such a diet. He stated that a doctor who had examined the applicant had considered that there were no medical grounds for a vegetarian diet. The applicant did not give any other reasons for his request, such as religion or personal beliefs.

4. Civil proceedings for infringement of personal rights

On 27 October 2008 the applicant brought a civil action against the State Treasury and Łódź Remand Centre, seeking 180 , 000 Polish zlotys (PLN) (approximately EUR 45 , 000) in compensation for suffering which he claimed to have experienced in Łódź Remand Centre due to overcrowding, inadequate sanitary conditions and the lack of a vegetarian diet.

On 17 June 2009 the Łódź Regional Court ( Sąd Okręgowy ) dismissed the action. The domestic court examined the applicant ’ s claim under Articles 23 and 24 of the Civil Code, in conjunction with Article 448 of that Code. It acknowledged the fact that from 6 May until 6 August 2008 the applicant had been detained in cells in which the statutory minimum standard of 3 m² of space per person had not been respected. The domestic court reasoned , however , that because the applicant had frequently been rotated between cells, he had not been subjected to overcrowding other than temporarily. It was also considered that the overall living and sanitary conditions in the applicant ’ s cells had been adequate. It was held that the applicant had failed to sufficiently demonstrate that any of his personal rights had been breached as a result of his being detained in the conditions complained of. The Łódź Regional Court concluded that placing the applicant in conditions below the minimum standard established by Article 110 § 2 of the Code on the Execution of Criminal Sentences had not been unlawful, as it was regulated by Article 248 of that Code .

The applicant ’ s claim about the lack of a vegetarian diet was also dismissed. The Łódź Regional Court found that the applicant had not had any medical condition requiring a special diet, and that his request had not been motivated by the requirements of his religion.

In sum, the domestic court held that the applicant ’ s claims were unsubstantiated and refused to award him any compensation.

On 18 November 2009 the Łódź Court of Appeal ( Sąd Administracyjny ) dismissed an appeal by the applicant.

By a letter of 4 February 2010 the applicant was informed by his legal aid lawyer that the latter had not found any grounds on which to lodge a cassation appeal.

B. Relevant domestic law and practice

A detailed description of the relevant domestic law and practice concerning the 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. The applicant complains under Article 3 of the Convention about the allegedly inadequate conditions of his detention in Łódź Remand Centre. In particular , he complains that the cells lacked proper ventilation and lighting, that the toilet was not separated from the living area and that the statutory minimum cell space of 3 m² per person was not provided.

2. Relying on Article 14 of the Convention, the applicant complains that he was not provided with a vegetarian diet during his detention in Łódź Remand Centre.

QUESTION TO THE PARTIES

In so far as the applicant complains of overcrowding and inadequate living and sanitary conditions in Łódź Remand Centre , was he subjected to inhuman or degrading treatment within the meaning of Article 3 of the Convention?