Published on 6 December 2021

FIRST SECTION

Application no. 53780/20 Mirosław SZAL against Poland lodged on 23 November 2020 communicated on 17 November 2021

STATEMENT OF FACTS

1. The applicant, Mr Mirosław Szal, is a Polish national, who was born in 1961 and who lives in Tczew.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant was a prisoner. In August 2019 the Sztum Prison Governor referred him to work in an external company, namely the Polish Factory of Water and Heat Meters “Fila”, on a full-time basis. The applicant received remuneration for his work.

4. On 16 March 2020 the applicant was informed that he would no longer be allowed to leave the prison for work due to Covid-19 restrictions. The applicant stopped being paid. His employment was not formally terminated.

5. On 29 June 2020 the applicant filed with the Labour Section of the GdaÅ„sk Regional Court a document entitled “lawsuit” ( pozew ), seeking the payment of outstanding remuneration from 16 March 2020 onwards. The applicant argued that he was eligible for payment by virtue of the Covid ‑ 9 measures that the public authorities had put in place for regular employees. He asked for equal treatment between prisoner-workers and employees in general.

6. On 3 August 2020 the Gdańsk Regional Court informed the applicant in writing that his letter ( pismo ) of 29 June 2020 concerning his appeal ( odwołanie ) for remuneration against the Polish Factory of Water and Heat Meters “Fila” had been transmitted to the Penitentiary Section of the Gdańsk Regional Court.

7. On 14 September 2020 a penitentiary judge informed the applicant by letter that, given the Covid-19 pandemic, all prisoner ‑ employment by external companies had been put on hold and would be resumed once the sanitary situation improved.

8. The Penitentiary Section of the Gdańsk Regional Court has not examined the applicant’s case.

9. Prisoners in Poland can be employed under two different legal regimes: (i) referral to work ( skierowanie do pracy ) by prison governors or (ii) a civil or labour-law contract signed by the prisoner with the authorisation of his/her prison governor (Article 121 §§ 2, 8 and 9 of the Code of Execution of Criminal Sentences, Kodeks karny wykonawczy ; “the Code”).

10. Prisoners referred to work (like the applicant) are not considered as employees. Under this regime, all employment-related matters are considered criminal or administrative in nature and, as such, are regulated by the Code and are within the jurisdiction of a penitentiary court. The jurisdiction of such a court is restricted to the assessment of the legality of impugned acts or decisions. The regime in question is based on the premise that prisoner employment constitutes an element of serving a sentence and of prisoner rehabilitation.

11. Prisoners under contract can lodge civil lawsuits against their employers and rely, to a certain extent, on the provisions of the Labour Code ( Kodeks Pracy ).

12. Irrespective of the above, all prisoners in Poland are entitled to payment for work which has been performed or for work which they had been ready but unable to perform for reasons attributable to the employer.

COMPLAINT

The applicant complains that the lack of access to a civil court to pursue his labour ‑ law claim breached his rights guaranteed by Articles 6 and 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

2. Has the applicant suffered discrimination in the enjoyment of his Convention rights, contrary to Article 14 taken in conjunction with Article 6 of the Convention?