Published on 28 March 2022

FIRST SECTION

Application no. 48781/19 Zbigniew KOSTKA against Poland lodged on 9 March 2020 communicated on 10 March 2022

SUBJECT MATTER OF THE CASE

The application concerns the protection against passive smoking in prison. In 2018, the applicant (a non-smoker) spent two months in a cell with a prisoner who smoked, even though their cell was officially classified as a non-smoking one. He initiated civil proceedings against prison authorities on account of the infringement of his personal rights inter alia by exposure to passive smoking. The first instance court considered the applicant capable of asserting his own rights and refused to grant him a legal-aid lawyer. The case was terminated with a second instance judgment dismissing the applicant’s claims based on the finding that while the fact that he was sharing the cell with a smoker was undisputed, the applicant had failed to show enough evidentiary initiative as to the actual intensity of the passive smoking and the discomfort caused. The applicant invokes Articles 3 and 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the material conditions of the applicant’s detention, in particular the passive smoking that he was exposed to in the cell for two months, amount to inhuman or degrading treatment contrary to Article 3 of the Convention (see Florea v. Romania , no. 37186/03, § 60 ‑ 62, 14 September 2010; Sylla and Nollomont v. Belgium , nos. 37768/13 and 36467/14, § 40-42, 16 May 2017; and Yanez Pinon and Others v. Malta , nos. 71645/13 and 2 others, § 115, 19 December 2017) ?

2. In the alternative, was the applicant’s placement in a prison cell with a smoker for two months compatible with his right to respect for his private life guaranteed by Article 8 of the Convention (see Szafrański v. Poland , no. 17249/12, § 34, 15 December 2015)?

3. Was the domestic court’s decision to refuse the applicant a legal-aid lawyer and the subsequent dismissal of his claims on the basis of his allegedly insufficient evidentiary initiative compatible with the procedural requirements of Article 3 and/or Article 8 of the Convention?