Information Note on the Court’s case-law No. 134
October 2010
Łomiński v. Poland (dec.) - 33502/09
Decision 12.10.2010 [Section IV]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Claim for compensation for infringement of personal rights under Articles 24 and 448 of the Civil Code on account of prison overcrowding: effective remedy
[This summary also covers the decision in the case of Łatak v. Poland, no. 52070/08, 12 October 2010]
Facts – In its pilot judgments of 22 October 2009 in the cases of Orchowski v. Poland and Norbert Sikorski v. Poland (nos. 17885/04 and 17559/05, Information Note no. 123), the Court concluded that from 2000 until at least mid-2008 there had been a structural problem of overcrowding in Polish prisons and remand centres. It went on to require the respondent State to take general measures under Article 46 of the Convention to solve the problem and to provide redress for past violations.
The issue of overcrowding also came before the domestic authorities giving rise to a series of landmark judgments by both the Supreme and Constitutional Courts and to legislative reform. Thus, in a judgment of 28 February 2007 the Supreme Court had acknowledged for the first time a detainee’s right to lodge a claim against the State for compensation for infringement of his personal rights under Articles 24 and 448 of the Civil Code on account of overcrowding and conditions of detention. Following a series of diverging interpretations of that decision by the lower courts, it reaffirmed that principle in a further judgment of 17 March 2010. In a separate development, the Constitutional Court had ruled on 26 May 2008 that Article 248 of the Code of Execution of Criminal Sentences, which effectively allowed the indefinite and arbitrary placement of detainees in cells below the statutory minimum size, was unconstitutional and would lose its binding force within eighteen months. As a result, the Code was amended on 9 October 2009 so as to restrict the period for which detainees could be temporarily held in undersized cells to ninety days in emergencies and fourteen days in other, specified, circumstances. Provision was also made for prison sentences to be suspended where the prison population exceeded overall capacity.
The applications in the instant cases were lodged in October 2008, before the delivery of the pilot judgments in Orchowski and Norbert Sikorski. The Court accepted that both applicants had been held in overcrowded conditions for various periods ending on 26 November 2009 (in the case of Mr Łatak) and 6 December 2009 (Mr Łomiński). In all, there are some 270 similar cases currently pending before the Court.
Law – Article 35 § 1: The Government argued that both applicants had failed to exhaust domestic remedies as, in their submission, they could have (a) lodged a claim for compensation under Articles 24 and 448 of the Civil Code or (b) used the remedies available under the Code of Execution of Criminal Sentences.
(a) Claim for compensation under Articles 24 and 448 of the Civil Code – Since this remedy had been made available following the Court’s pilot judgments in Orchowski and Norbert Sikorski relating to similar complaints, its effectiveness was to be assessed by reference to the current situation, not to the date the applications were lodged. The Court had noted in those judgments that the domestic civil courts’ practice allowing prisoners to claim compensation was only just beginning to take shape and that there were divergences of interpretation. However, following the delivery of the Supreme Court’s second judgment of 17 March 2010 a fully consolidated, consistent and established civil-court practice regarding the interpretation and application of Articles 24 and 448 of the Civil Code in overcrowding cases had emerged that unambiguously confirmed the effectiveness of that remedy. Not only had that judgment reaffirmed the principles stated in the Supreme Court’s 2007 ruling it had also, and more importantly, given supplementary guidance as to how the civil courts should verify and assess the justification for any reduction in the statutory minimum cell space.
However, given that that remedy could not be considered effective until the Supreme Court’s judgment of 17 March 2010, only those applicants in respect of whom the three-year domestic limitation period had not yet expired and who still had adequate time to prepare and bring a claim under Articles 24 and 448 of the Civil Code could reasonably be required to make use of it. In practical terms, this meant that in all cases in which the alleged violation had come to an end in or after June 2008, either through the applicant’s release or transfer to Convention-compliant conditions, he or she would be required to bring a civil action for compensation under Articles 24 and 448. In selecting that date, the Court was guided by the need to apply Article 35 § 1 with a degree of flexibility, by the fact that overcrowding had continued until at least mid-2008 by which time the Constitutional Court had itself identified the systemic violation of Article 3 and, lastly, by the need for applicants to have adequate time to have realistic recourse to the remedy bearing in mind the three-year domestic time-limit. As the violations alleged in both Mr Łatak’s and Mr Łomiński’s cases had ceased after June 2008, they were required to exhaust the remedy.
Conclusion: inadmissible (non-exhaustion).
(b) Code of Execution of Criminal Sentences – The remedy under the original legislation could not be considered effective for the reasons stated in the pilot judgments. As to the remedy under the amended legislation, the Court was not required to pronounce on its effectiveness as the applicants had already been moved into suitable cells by the time it came into force. However, with respect to the potential general impact of the remedy on the handling of future similar applications, the Court noted that the amended provisions not only specified the circumstances in which the minimum-space requirement could be reduced and set time-limits, they also afforded detainees a new legal means of contesting decisions to reduce cell space. Accordingly, without prejudice to the examination of the procedure in the particular circumstances of subsequent applications, it could not be excluded that applicants would be required to use the new complaints system in future cases.
Conclusion: preliminary objection dismissed (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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