FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 23672/07
by Franciszek MISZCZYŃSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 8 February 2011 as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Ljiljana Mijović,
	Päivi Hirvelä,
	Ledi Bianku,
	Zdravka Kalaydjieva,
	Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 23 May 2007,
Having regard to the final pilot judgments in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. 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 Franciszek Miszczyński, is a Polish national who was born in 1959 and lives in Świdnica. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
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
From 16 April 2006 until 25 June 2010 the applicant was detained in Kłodzko Prison. On the latter date he was released.
2.  Conditions of the applicant’s detention
The applicant submitted that he had been held in inadequate living and sanitary conditions. In particular, all the cells which he had occupied were overcrowded.
From 10 May to 25 July 2006 the applicant was detained in cell no. 225, which measured twenty-two square metres and was shared by ten to fourteen people at a time. The cell was furnished with six bunk beds, four tables and a number of stools. A bathroom with a toilet cubicle and a washbasin were accessible from the cell. There was one window, which was partly covered by a bunk bed.
3.  The applicant’s actions concerning the conditions of his detention
The applicant did not make any statements as to whether or not he lodged any complaints with the penitentiary authorities regarding the conditions of his detention or any other aspect of his detention in Kłodzko Prison.
He submitted, however, among other documents, Xerox copies of four letters of reply sent by the Wrocław Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) on 20 July and 6 November 2006, and by the Central Board of the Prison Service (Centralny Zarząd Służby Więziennej) on 29 August and 13 October 2006.
The letters in question have typewritten headings and text. In the space reserved for the name of the addressee and the address the words: “Kłodzko Prison” (Zakład Karny w Kłodzku) or “Prison, Boh. Getta Street no. 16, 570300 Kłodzko (Zakład Karny ul. Boh. Getta 16, 57-300 Kłodzko) are typed in bold letters. The name of the addressee in these letters has been erased and two of the letters in question have an empty space directly above the address. In the remaining two letters, however, the applicant’s own name has been handwritten in the empty space.
The letters in question contain replies of the relevant penitentiary authorities to complaints about irregularities in treating correspondence, which had been made by a prisoner detained in Kłodzko Prison.
 Moreover, the applicant brought a civil action under Article 417 of the Civil Code. He sought compensation on account of overcrowding and resulting from it, inadequate living and sanitary conditions in Kłodzko Prison.
On 9 February 2007 the Kłodzko District Court (Sąd Rejonowy) dismissed the applicant’s claim for compensation. The applicant failed to lodge an appeal in compliance with procedural requirements. On 26 June 2007 the Kłodzko District Court rejected his application for leave to lodge an appeal out of time.
COMPLAINT
The applicant alleged a breach of Article 3 of the Convention in that in Kłodzko Prison he had been detained in overcrowded cells and that the State had failed to secure to him throughout his entire period of detention adequate living conditions, in particular the statutory minimum cell space of 3 m2 per person, as required by national law.
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 cases of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54) and Łomiński v. Poland (no. 33502/09) on 12 October 2010 (see §§ 17-49).
THE LAW
A.  The Government’s preliminary objections
1.  On abuse of the right of an individual application
(a)  The Government
The Government submitted that the applicant’s application to the Court constituted an abuse of the right of individual application under Article 35 § 3 of the Convention in that the applicant had lied to the Court about his use of penitentiary remedies and had forged four letters of the Wrocław Regional Inspectorate of the Prison Service and the Central Board of the Prison Service. The Government submitted copies of the original letters in question, which had in fact been sent to a certain D. S., the applicant’s fellow prisoner.
(b)  The applicant’s position
The applicant submitted that by presenting the Court with those documents he had only intended to demonstrate that any recourse to penitentiary remedies to complain about any aspect of detention was futile. He also explained that the copies of the letters in question had been given to him by his fellow inmate D.S. who had, by himself, removed his name and replaced it with the applicant’s own name.
(c)  The Court’s conclusion
There is no doubt that the four letters concerning complaints to the prison authorities about a prisoner’s correspondence have been submitted by the applicant to the Court in an altered and not in their original form. In the Court’s view, however, whether or not they have been deliberately falsified by the applicant has no bearing because the applicant did not in fact attempt to deceive the Court by relying on these documents. In his application he did not make any statements concerning his correspondence in prison, nor did he claim to have used any penitentiary remedies within the prison.
In these circumstances, the Court does not find it appropriate to declare the application inadmissible as being abusive within the meaning of Article 35 § 3 of the Convention.
2.  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 ...”
(a)  The Government
The Government submitted that as of 26 November 2009 the applicant had been detained in Kłodzko Prison in a cell in which the statutory minimum space of 3 m2 per person had been respected. In these circumstances, the situation giving rise to the alleged breach of Article 3 of the Convention no longer existed and the applicant 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.
(b)  The applicant
The applicant did not make any comments in this respect.
(c)  The Court’s conclusion
The Court has 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 particular applicants but also in respect of other actual or potential applicants with similar complaints. (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).
It appears that in the present case the situation giving rise to the alleged violation of Article 3 ended either on 26 November 2009 when the applicant was placed in a cell in which the statutory minimum space of 3 m2 per person was respected or, ipso facto, on 25 June 2010 when the applicant was released. That being so and having regard to the facts that, in 2007 the applicant did not pursue his civil action under Article 417 of the Civil Code in compliance with procedural requirements and that he still has adequate time to prepare and lodge with the Polish civil courts an action under Article 24 taken in conjunction with Article 448 of the Civil Code, he should, before having his Convention claim examined by the Court, be required to seek redress at domestic level.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Lawrence Early	Nicolas Bratza
	Registrar	President