CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 décembre 2010

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Poland (no.   17599/05) delivered on 22 October 2009, in particular to the finding under Article 46 of the Convention that overcrowding in Polish prisons and remand centres revealed a structural problem, Having regard to the decisions to declare the applications Łatak   v.   Poland (no. 52070/08) and Łomiński v. Poland (no. 33502/09) inadmissible for non-exhaustion of domestic remedies, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Andrzej Górski, is a Polish national who was born in   1977 and lives in Wrocław. The Polish Government (“the Government”) were represented by their Agent, Mr   J.   Wołąsiewicz of the Ministry of   Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as   follows. 1.     Period of the applicant’s detention On 6 December 2006 the applicant was committed to Międzyrzecz Remand Centre and then continuously detained in several penitentiary facilities. On 6 April 2009 he was released. 2.     Conditions of the applicant’s detention The applicant submitted that throughout his detention he had been held in   overcrowded cells in conditions which did not comply with the basic standards of hygiene. The Government submitted that they could not confirm whether during his stay in Międzyrzecz Remand Centre the applicant had been detained in   cells with a surface area of at least 3 m² per person. However, they acknowledged that during the applicant’s detention, the remand centre had been overcrowded. The Government did not comment on the conditions of   the applicant’s detention in the remaining penitentiary facilities. 3.     The applicant’s actions concerning the conditions of his detention The applicant lodged several complaints with the penitentiary authorities regarding the conditions of his detention. None of them was considered well-founded. On 31 October 2007 the applicant brought a civil action in tort against the State Treasury to seek compensation for the infringement of his personal rights. However, he failed to submit any information as to its outcome. B.     Relevant domestic law and practice A detailed description of the relevant domestic law and practice concerning general rules governing 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 given in   the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v.   Poland (no. 17599/05) 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) on 12 October 2010 (see §§ 25-54). COMPLAINTS   1.     The applicant complained in substance under Articles 3 and 8 of the Convention of overcrowding and the inadequate conditions of his detention. 2.     He also complained under Article 14 of the Convention of   discrimination by the remand centre staff on the ground of his religion. THE LAW A.     Alleged violation of Articles 3 and 8 of the Convention 1.     The Government’s objection based on exhaustion of domestic remedies Article 35 § 1 of the Convention reads, in so far as relevant, as follows: “1.     The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...” The Government submitted that the applicant was released on   6   April   2009. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and he should bring a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code in order to seek compensation for the past violation. In that regard they relied, in particular, on the Orchowski judgment, reiterating that the Court, having regard to the principle of subsidiarity, had held that in cases where the alleged violation of Article 3 no longer continued and could not be eliminated with retrospective effect, the only means of redress for the applicant was pecuniary compensation. In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to   Article   35   §   1 of the Convention. 2.     The applicant’s position The applicant in general disagreed with the above arguments. 3.     The Court’s conclusion The Court already examined a similar objection based on exhaustion of   domestic remedies raised by the Government in the above-mentioned cases of Łatak v. Poland and Łomiński v. Poland and considered their arguments not only in the context of those two individual applications but also in respect of other actual or potential applicants with similar cases (see   Łatak v. Poland no. 52070/08 and Łomiński v. Poland no. 33502/09 (dec.), 12   October 2010, §§ 71-85 and §§ 62-76 respectively). In so doing, the Court had regard to the fact that on the date of the adoption of its decisions there were 271 cases pending before it where the applicants had raised complaints similar in substance, alleging a violation of   Article 3 in that at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells (ibid. § 84 and § 75 respectively). Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17   March 2010 and having regard to the 3-year limitation period for lodging such an action, the Court held that essentially in all cases in which in   June   2008 the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned should bring a civil action for the infringement of personal rights and compensation (ibid. § 85 and § 76 respectively). In the present case, the applicant lodged a civil claim against the State Treasury to seek compensation for the infringement of his personal rights but has failed to inform the Court about the outcome of the proceedings. Having no knowledge to the contrary, the Court assumes that the above proceedings are still pending. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. B.     Other alleged violations of the Convention As to the applicant’s complaint under Article 14 of the Convention the Court has examined it as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to   substantiate his complaint. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Fatoş Aracı   Nicolas Bratza   Deputy Registrar   President