CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 février 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          SUR LA RECEVABILITÉ                       Application No. 25480/94                     by Ryszard MICHALEK                     against Poland        The European Commission of Human Rights (Second Chamber) sitting in private on 22 February 1995, the following members being present:             Mr.   H. DANELIUS, President           Mrs. G.H. THUNE           MM.   G. JÖRUNDSSON                J.-C. SOYER                H.G. SCHERMERS                F. MARTINEZ                L. LOUCAIDES                J.-C. GEUS                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY             Mr.   K. ROGGE, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 27 January 1994 by Ryszard MICHALEK against Poland and registered on 25 October 1994 under file No. 25480/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The facts of the case as submitted by the applicant may be summarised as follows:        The applicant is a Polish citizen born in 1952.   He is serving a prison sentence in Strzelce Opolskie prison.        In 1993 the applicant twice requested the Strzelce Opolskie District Prosecutor to institute criminal proceedings against the prison guards relating to allegations of theft of the applicant's personal belongings.   On 24 June and 5 June 1993 the Prosecutor refused on the ground that he considered the allegations unfounded.        On 9 January 1994 the applicant complained to the Minister of Justice that the Strzelce Opolskie District Prosecutor was cooperating with the prison guards in that he was coverig up various criminal offences committed by the guards to the disadvantage of the prisoners.        On 27 January 1994 the applicant asked to be let out of his cell as he wished to take his letters and complaints addressed to various authorities to a guard supervisor for mailing.   The prison guard opened the door, ordered the applicant to go to the common room and to get undressed.   The applicant states that he was subsequently taken to the "safe cell" ("cela zabezpieczaj*ca") where he was assaulted and beaten by the prison guards; later in the afternoon he was beaten again.        On 28 January 1994 the prison physician allegedly refused to record accurately the applicant's health in the medical documents and to authorise the applicant to have an X-ray.   An X-ray was apparently made 17 days later.        On 3 February 1994 the applicant requested the Strzelce Opolskie District Prosecutor to institute criminal proceedings against the prison guards concerned.        By a letter of 10 March 1994, the Opole Regional Prosecutor informed the applicant that his complaint to the Minister of Justice of 9 January 1994 had been transmitted to him for examination. Accordingly the files of the enquiries conducted in 1993 by the Strzelce Opolskie District Prosecutor had been examined.   It had been established that enquiries had been properly conducted and the refusals to institute criminal proceedings were thus well-founded.   Moreover, the applicant had not appealed against these refusals.        On 14 March 1994 the Strzelce Opolskie District Prosecutor rejected the applicant's request of 3 February 1994 to institute criminal proceedings against the guards concerned.   The Prosecutor had regard to the findings of his enquiry, in which he had examined the medical documents and the minutes prepared on the use of force.   In particular it had been established therein that on 27 January 1994 the applicant had asked to be let out of the cell and had been taken to his supervisor.   He was subsequently required to undergo a bodily search, whereupon he had became aggressive.   The prison guards had taken him by force to the "safe cell".   On 27 and 28 January the applicant had been examined by two different physicians, who had not established any external injuries which would normally have appeared if the applicant had been beaten.   The Prosecutor considered that in the light of these findings, the applicant's statements as to ill-treatment were not credible.   He concluded that no criminal offence had been committed.        On the same day the Strzelce Opolskie District Prosecutor refused to institute criminal proceedings with regard to the earlier complaint about theft of the applicant's personal belongings by the prison guards, finding that no theft had been committed.   He stated that certain objects, for instance razors, were placed in the applicant's deposit, and others had been given back to the applicant, who had signed a receipt to this effect.   COMPLAINTS        The applicant complains that he was beaten by the prison guards. He complains that the guards had stolen his personal belongings and beaten him, yet no criminal proceedings were brought against them.        The applicant does not invoke any provisions of the Convention.   THE LAW        The applicant complains, without reference to any provisions of the Convention, that he was beaten by the prison guards, that his personal belongings were taken away and that his criminal complaints remained unsuccessful.        However, the Commission is not required to decide whether or not the facts submitted by the applicant in support of his complaint disclose any appearance of a violation of the   Convention as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with a matter after all domestic remedies have been exhausted".        In the present case, both in relation to his allegations of theft and as regards his alleged ill-treatment, the applicant requested the institution of criminal proceedings.   The Strzelce Opolskie District Prosecutor refused these requests, finding no basis for criminal charges.    Against these refusals, the applicant could have appealed to the Opole Regional Prosecutor, but he failed to do so.        It follows that the application must be rejected for non- exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission unanimously        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber          President of the Second Chamber             (K. ROGGE)                          (H. DANELIUS)