CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 28 mai 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .sC6B6F7B3 { width:150.43pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 48781/19 Zbigniew KOSTKA against Poland   The European Court of Human Rights (First Section), sitting on 28   May   2024 as a Committee composed of:   Péter Paczolay , President ,   Alena Poláčková,   Gilberto Felici , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   48781/19) 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”) on 9 March 2020 by a Polish national, Mr Zbigniew Kostka (“the applicant”), who was born in Jawor and is detained in Wołów; the decision to give notice of the complaint concerning the applicant’s exposure to passive smoking to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the protection against passive smoking in prison. 2.     The applicant is serving a sentence of twenty-five years’ imprisonment. Between 12 March and 23 May 2018, the applicant (who, at the time, had declared to be a non-smoker) was detained in Wronki Prison. Between 23   March and 23 May 2018, the applicant shared a cell with a prisoner, K.O., who smoked. Their cell was officially classified as a non-smoking one. 3.     In April 2018 the applicant initiated civil proceedings against the prison authorities on account of the infringement of his personal rights by numerous aspects of his detention. On 3 February 2019 he extended the scope of his action, inter alia, by claiming compensation for the exposure to passive smoking during the time spent in the cell shared with K.O. 4.     On 5 September 2019 the Szamotuły District Court dismissed the claim in its entirety, having found that the applicant had failed to prove nearly all of his factual claims. As for the passive smoking, it found that while K.O., heard by the court, had confirmed occasionally smoking in the cell, the applicant nevertheless failed to prove the actual frequency, intensity, and negative effects thereof on his health. The applicant appealed. 5.     The proceedings were terminated on 24 January 2020 when the Poznań Regional Court dismissed the appeal. 6.     The applicant was heard during the domestic proceedings and declared that he had become an active smoker. There is no indication that the applicant at any time relied on his detention in Wronki Prison as a reason for becoming a smoker. 7.     Relying on Articles 3 and 8 of the Convention the applicant complained that placing him in a cell in Wronki Prison with a smoker amounted to torture. THE COURT’S ASSESSMENT 8.     The Government considered that the applicant had failed to exhaust all the available domestic remedies and that he suffered no significant disadvantage. The Court finds it unnecessary to rule on the Government’s preliminary objections since it considers the applicant’s complaint to be in any event manifestly ill‑founded for the following reasons. 9.     The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among others, Bouyid v. Belgium [GC], no.   23380/09, § 86, ECHR 2015, with further references). Furthermore, while a measure falling short of treatment prohibited by Article 3 may fall foul of Article 8 of the Convention (see Szafrański v. Poland , no. 17249/12, §   34, 15   December 2015), it is still for the applicant to prove the actual degree of interference with his rights. 10.     Turning to the instant case, the Court notes that the applicant: (i)   appeared to have tolerated the smoking as he did not prove that he had lodged any smoking-related complaints with the prison authorities during his detention in Wronki Prison; (ii) only raised the issue of exposure to passive smoking within the civil proceedings almost nine months after his transfer to another prison; (iii) within the domestic proceedings did not raise factual allegations, let alone evidentiary initiative, regarding the actual intensity of passive smoking or the alleged negative effects on his physical or mental well-being; (iv) is currently an active smoker and does not link this fact to his detention in Wronki Prison in any way. 11.     On the basis of the above findings the Court considers that not only has it not been shown that the authorities’ treatment of the applicant during his detention in Wronki Prison attained the minimum level of severity necessary to bring Article 3 of the Convention into play, but the applicant has also failed to demonstrate that K.O.’s occasional smoking constituted anything more than an occasional, passing inconvenience which he tolerated. For the same reasons the Court concludes that the level of seriousness associated with that inconvenience does not give rise to any issues under Article 8 of the Convention. 12.     Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 20 June 2024.     Liv Tigerstedt   Péter Paczolay   Deputy Registrar   President