CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 18 octobre 2018

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POLAND   (Application no. 33946/15)                           JUDGMENT         STRASBOURG   18 October 2018       This judgment is final but it may be subject to editorial revision. In the case of Walasek v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Aleš Pejchal, President,   Krzysztof Wojtyczek,   Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 25 September 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 33946/15) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Sebastian Walasek (“the applicant”), on 6 July 2015. 2.     The applicant was represented by Mr P. Rał, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, who was later replaced by Ms   A.   Mężykowska, the Co-Agent, of the Ministry of Foreign Affairs. 3.     The applicant alleged that the conditions of his detention had amounted to inhuman and degrading treatment. 4.     On 23 November 2016 the complaint concerning the conditions of his detention in Kielce Remand Centre from 6 September to 4 October 2012 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1985 and lives in Łatanice. 6.     The facts of the case may be summarised as follows. A.     The period of the applicant’s detention 7.     The applicant was detained in Kielce Remand Centre from 6   September to 4 October 2012 (28 days). B.     The conditions of the applicant’s detention 8.     The applicant submitted that throughout his detention in Kielce Remand Centre, he had been held in overcrowded cells in which the space per person had been below the Polish statutory minimum standard of 3 m². 9.     In their observations, the Government admitted that the applicant had been detained in an overcrowded cell. However, they emphasised that the space in each cell had exceeded 2 m² per person and that the hardship caused by staying in an overcrowded cell had been compensated by adding 30   minutes to his daily walk as well as additional cultural and educational classes or sports activities. 10.     In the course of civil proceedings instituted by the applicant, the domestic courts established that for twenty-eight days the applicant had been detained in an overcrowded cell (see also paragraph 13 below). 11.     Regarding the conditions of detention, the domestic courts established that the overall conditions in cells were adequate. Cells were equipped in compliance with the relevant law; they were properly ventilated and the toilet area had been separated from the rest of the living space in the cells. C.     Civil proceedings against the State Treasury 12.     On 12 August 2013 the applicant brought a civil action against the State Treasury for infringement of his personal rights and for compensation on account of his detention in overcrowded cells in various penitentiary facilities. He claimed 35,000 Polish zlotys (approximately 8,750 euros) in just satisfaction. 13.     On 28 May 2014 the Warsaw Regional Court ( Sąd Okręgowy ) dismissed the applicant’s action. It confirmed, however, that temporarily (from 6 September to 4 October 2012) the applicant had been detained in cells in which the space per person had been below the Polish statutory minimum standard of 3 m², but not below 2 m². 14.     On 1 April 2015 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant’s appeal. II.     RELEVANT DOMESTIC LAW AND PRACTICE 15.     A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland, and domestic remedies available to detainees alleging that the conditions of their detention were inadequate, is 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, 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, 12 October 2010, §§   25-54. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 16.     The applicant complained that the conditions of his detention and the overcrowding in Kielce Remand Centre, where he had been held from 6   September to 4 October 2012 (28 days), had amounted to inhuman and degrading treatment under Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 17.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 18.     The applicant submitted that the overcrowding and conditions of his detention had fallen short of standards compatible with Article 3 of the Convention. 19.     The Government argued that the conditions of the applicant’s detention did not reach the threshold of severity required to consider his treatment to be inhuman or degrading under Article 3 of the Convention. 20.     They confirmed the domestic courts’ findings that for a period of twenty-eight days the applicant had been detained in an overcrowded cell in which the space per person had been below the Polish statutory minimum standard of 3 m². They argued, however, that the space allocated to the applicant during his detention in an overcrowded cell exceeded 2 m². The Government submitted that the applicant’s placement in an overcrowded cell had been a relatively short and isolated event in the entire period of imprisonment. Moreover, the applicant had been provided with sufficient freedom of movement outside his cell. He had been granted an extra half hour for his daily walk and, from 27 September 2012, his cell had been opened during the day as he was serving his sentence in a semi-open penitentiary institution. The Government emphasised that the general conditions of the applicant’s detention in Kielce Remand Centre had been very good and there had been no other aggravating aspects of his imprisonment. The Government relied on the judgments Vladimir Belyayev v.   Russia , no. 9967/06, 17 October 2013, and Muršić v. Croatia [GC], no.   7334/13, ECHR 2016. 21.     A restatement of the general principles concerning the examination of conditions of detention under Article 3 may be found in the Court’s pilot judgments against Poland (see Orchowsk i (cited above, §§ 119-131) Norbert Sikorski (cited above, §§ 126-141)) and in Muršić (cited above, §§   102-141). 22.     The Court reiterates that in a substantial number of cases, when the allocation of space to a detainee in multi-occupancy accommodation fell below 3 m², it found the overcrowding so severe as to justify the finding of a violation of Article 3 (see Orchowski , cited above, § 122 and further authorities). 23.     The Court has already found a strong presumption of a violation of Article 3 arising when the personal space available to a detainee falls below 3   m² in multi-occupancy accommodation, a presumption which can be rebutted only where the requirements are cumulatively met, namely where short, occasional and minor reductions of personal space are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities and confinement in what is, when viewed generally, an appropriate detention facility (see, Muršić, cited above, § 138). 24.     The Court observes that in the case relied on by the Government Vladimir Belyayev v. Russia (cited above) the applicant disposed of 2.97   m² of personal space in overcrowded cells during his detention lasting twenty ‑ six days. The Court also observes that in the case of Muršić (cited above), it found a violation of Article 3 in respect of a period of twenty ‑ seven days during which the space available to the applicant in his cell was 2.62 m². In the case at hand the Government submitted that the space allocated to the applicant during his detention in an overcrowded cell exceeded 2 m². However, they failed to provide the Court with more precise information in that respect. 25.     The Court notes that the hardship caused to the applicant by staying in an overcrowded cell was partly compensated by longer daily walks as well as additional cultural and educational classes or sports activities and no other aggravating circumstances arose with regard to the general conditions of his detention. However, having regard to the fact that the Government failed to provide precise information in respect of personal space in accordance with standards set in the Muršić judgment, the Court finds that in these circumstances the reduction of the required personal space cannot be considered as “short, occasional and minor” within the meaning of the Court’s case-law (see Muršić , cited above, § 130). 26.     It follows that in the present case the strong presumption of a violation of Article 3 cannot be rebutted. 27.     Taking into account all the above circumstances, the Court finds that in the present case the applicant’s detention in a cell in which personal space was less than 3 m² for a period of twenty-eight days amounted to inhuman and degrading treatment. 28.     Consequently, the Court dismisses the Government’s preliminary objection and holds that there has been a violation of Article 3 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 29.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 30.     The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 3 of the Convention. Done in English, and notified in writing on 18 October 2018, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Renata Degener   Aleš Pejchal Deputy Registrar   President