CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 18 juin 2019

.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 } .s3B53EBCC { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; 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 } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s6DD35890 { width:19.77pt; display:inline-block } .s7C2C4941 { width:149.75pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 8127/17 Mirosław KUŹMICZ against Poland   The European Court of Human Rights (First Section), sitting on 18 June 2019 as a Committee composed of:   Aleš Pejchal, President,   Tim Eicke,   Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above application lodged on 21 February 2017, 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 1.     The applicant, Mr Mirosław Kuźmicz, is a Polish national who was born in 1968 and is detained in Białystok prison. 2.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. The circumstances of the case 3.     On 18 October 2010 the applicant brought a civil action against the State Treasury for infringement of his personal rights and for compensation for his detention in overcrowded cells in several penitentiary facilities. He claimed 100,000   Polish Zlotys (PLN – approximately 25,000   euros (EUR)) as just satisfaction. 4.     On 8 September 2014 the Warsaw Regional Court (Sąd Okręgowy) dismissed the applicant’s action. Due to the fact that the applicant’s claim in respect of the period before 18 October 2007 had become time-barred, the court took into consideration his detention after that date. Eventually, the court found that the applicant had occasionally been detained in overcrowded cells only during his stay in Bytom Remand Centre between 8   July and 31 August 2008. It held, however, that overcrowding in Bytom Remand Centre had not differed from that in the rest of the country, since it had been a general problem in Polish detention facilities at that time. 5.     Regarding the conditions of detention, the domestic court established that the overall conditions in cells had been adequate. Cells had been equipped in compliance with the relevant rules; they had been properly ventilated and the toilet area had been separated from the rest of the living space. 6.     On 17 August 2016 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal. The court confirmed that between 8 July and 31 August 2008 the applicant had been detained in overcrowded cells in Bytom Remand Centre. However, it further stated that this situation could not have amounted to a violation of his personal rights. Relevant domestic law and practice 7.     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. COMPLAINT 8.     The applicant complained under Article 3 of the Convention that during his detention in Bytom Remand Centre from 8 July until 31 August 2008 he had been committed to overcrowded cells. THE LAW 9.     The applicant complained that the conditions of his detention and the overcrowding in Bytom Remand Centre, where he had been held from 8   July to 31 August 2008, 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.” The parties’ submissions 10.     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. 11.     They submitted that during his detention in Bytom Remand Centre from 8 July to 31 August 2008 the applicant had been detained in an overcrowded cell only for a period of 13 days. In this respect the Government provided the Court with a copy of the document sent by the Governor of Bytom Remand Centre to the Warsaw Regional Court. According to that document, from 8 July to 7 August 2008 the applicant had been detained in a cell in the Remand Centre’s hospital unit, where his personal space varied from 5 to 12 sq. m. During the remaining period the applicant had been detained in a cell of 18.08 sq. m where on three occasions, from 14 to 21 August 2008 (8 days), from 25 to 26 August 2008 (2 days) and from 29 to 31 August 2008 (3 days) his personal space had been reduced to 2.58 sq. m. 12.     Moreover, the Government submitted that the applicant’s placement in an overcrowded cell had been non-consecutive and he had had a right to a daily walk of one hour. He also had the possibility to participate in cultural and educational classes and apply for a job, although he had never made any request in this respect. They also submitted that the applicant had never complained at the domestic level of lack of outdoor exercise or insufficient time for free movement. 13.     The applicant submitted that the overcrowding in prison and conditions of his detention had fallen short of standards compatible with Article 3 of the Convention. The Court’s assessment 14.     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 Orchowski (cited above, §§ 119-131) Norbert Sikorski (cited above, §§ 126-141)), and in the case of Muršić v.   Croatia [GC], no. 7334/13, §§ 102-141, 20 October 2016. 15.     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   sq. m in multi-occupancy accommodation. 16.     This presumption can be rebutted only where the following 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). 17.     The Court observes that the domestic courts found that, during the applicant’s detention in Bytom Remand Centre between 8 July and 31   August 2008, he had occasionally been detained in overcrowded cells. 18.     Relying on the document provided by the Government (see   paragraph 12 above), the Court notes that the relevant reductions in the applicant’s personal space to below 3 sq. m concerned three non ‑ consecutive periods of eight, two and three days during which he had at his disposal a personal space of 2.58 sq. m. The Court has no reason to doubt the authenticity of this document and the information it contains. The Court considers that such a reduction of personal space should be considered as short, occasional and minor (compare Fetisov and Others v.   Russia , nos.   43710/07 and 5 others, §§ 134-138, 17 January 2012, where a prisoner had at his disposal approximately 2 sq. m of floor space for nineteen days and the case Kurkowski v. Poland , no. 36228/06, §§ 66-67, 9   April 2013, where the applicant had approximately 2.1 sq. m of floor space available for four days and then, subsequently, 2.6 sq. m of floor space for another four days). 19.     With regard to the question of freedom of movement and out-of-cell activities, the Court notes the Government’s submissions concerning the applicant’s amenities in Bytom Remand Centre. The Government indicated that the applicant had had a right to a one-hour daily walk. He could also benefit from cultural and educational classes and he could apply for a job (see paragraphs 10-12 above). The Court notes that the applicant, when invited to comment on the Government’s observations, did not contest their submissions in this respect (see paragraph 13). It further observes that the possibility of free out-of-cell movement and the facilities available to the applicant in Bytom Remand Centre could be seen as alleviating factors in relation to the allocation of limited personal space. 20.     Finally, the Court observes that the domestic courts, which were called to examine the conditions of the applicant’s detention, held that the material conditions of the applicant’s detention had been appropriate, cells had been equipped in compliance with the relevant rules and the toilet area had been separated from the rest of the living space in the cell. 21.     In view of the foregoing, the Court finds that the Government have rebutted the presumption of a violation of Article 3 as regards the applicant’s detention in an overcrowded cell for 13 days. Those non ‑ consecutive periods can be regarded as short and minor reductions in personal space, during which sufficient freedom of movement and out ‑ of ‑ cell activities were available to the applicant. Moreover, he was detained in what was, viewed generally, an appropriate detention facility. 22.     In the light of the above, the Court concludes that the conditions of the applicant’s detention in Bytom Remand Centre from 8 July until 31   August 2008 do not disclose a violation of Article 3 of the Convention. It follows that this complaint is manifestly ill-founded and must be declared inadmissible 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 11 July 2019.   Renata Degener   Aleš Pejchal   Deputy Registrar   President