SUR LA RECEVABILITÉ
Application No. 25480/94
by Ryszard MICHALEK
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 February 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 January 1994
by Ryszard MICHALEK against Poland and registered on 25 October 1994
under file No. 25480/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the applicant may be
summarised as follows:
The applicant is a Polish citizen born in 1952. He is serving
a prison sentence in Strzelce Opolskie prison.
In 1993 the applicant twice requested the Strzelce Opolskie
District Prosecutor to institute criminal proceedings against the
prison guards relating to allegations of theft of the applicant's
personal belongings. On 24 June and 5 June 1993 the Prosecutor refused
on the ground that he considered the allegations unfounded.
On 9 January 1994 the applicant complained to the Minister of
Justice that the Strzelce Opolskie District Prosecutor was cooperating
with the prison guards in that he was coverig up various criminal
offences committed by the guards to the disadvantage of the prisoners.
On 27 January 1994 the applicant asked to be let out of his cell
as he wished to take his letters and complaints addressed to various
authorities to a guard supervisor for mailing. The prison guard opened
the door, ordered the applicant to go to the common room and to get
undressed. The applicant states that he was subsequently taken to the
"safe cell" ("cela zabezpieczaj*ca") where he was assaulted and beaten
by the prison guards; later in the afternoon he was beaten again.
On 28 January 1994 the prison physician allegedly refused to
record accurately the applicant's health in the medical documents and
to authorise the applicant to have an X-ray. An X-ray was apparently
made 17 days later.
On 3 February 1994 the applicant requested the Strzelce Opolskie
District Prosecutor to institute criminal proceedings against the
prison guards concerned.
By a letter of 10 March 1994, the Opole Regional Prosecutor
informed the applicant that his complaint to the Minister of Justice
of 9 January 1994 had been transmitted to him for examination.
Accordingly the files of the enquiries conducted in 1993 by the
Strzelce Opolskie District Prosecutor had been examined. It had been
established that enquiries had been properly conducted and the refusals
to institute criminal proceedings were thus well-founded. Moreover,
the applicant had not appealed against these refusals.
On 14 March 1994 the Strzelce Opolskie District Prosecutor
rejected the applicant's request of 3 February 1994 to institute
criminal proceedings against the guards concerned. The Prosecutor had
regard to the findings of his enquiry, in which he had examined the
medical documents and the minutes prepared on the use of force. In
particular it had been established therein that on 27 January 1994 the
applicant had asked to be let out of the cell and had been taken to his
supervisor. He was subsequently required to undergo a bodily search,
whereupon he had became aggressive. The prison guards had taken him
by force to the "safe cell". On 27 and 28 January the applicant had
been examined by two different physicians, who had not established any
external injuries which would normally have appeared if the applicant
had been beaten. The Prosecutor considered that in the light of these
findings, the applicant's statements as to ill-treatment were not
credible. He concluded that no criminal offence had been committed.
On the same day the Strzelce Opolskie District Prosecutor refused
to institute criminal proceedings with regard to the earlier complaint
about theft of the applicant's personal belongings by the prison
guards, finding that no theft had been committed. He stated that
certain objects, for instance razors, were placed in the applicant's
deposit, and others had been given back to the applicant, who had
signed a receipt to this effect.
COMPLAINTS
The applicant complains that he was beaten by the prison guards.
He complains that the guards had stolen his personal belongings and
beaten him, yet no criminal proceedings were brought against them.
The applicant does not invoke any provisions of the Convention.
THE LAW
The applicant complains, without reference to any provisions of
the Convention, that he was beaten by the prison guards, that his
personal belongings were taken away and that his criminal complaints
remained unsuccessful.
However, the Commission is not required to decide whether or not
the facts submitted by the applicant in support of his complaint
disclose any appearance of a violation of the Convention as Article
26 (Art. 26) of the Convention provides that the Commission "may only
deal with a matter after all domestic remedies have been exhausted".
In the present case, both in relation to his allegations of theft
and as regards his alleged ill-treatment, the applicant requested the
institution of criminal proceedings. The Strzelce Opolskie District
Prosecutor refused these requests, finding no basis for criminal
charges. Against these refusals, the applicant could have appealed
to the Opole Regional Prosecutor, but he failed to do so.
It follows that the application must be rejected for non-
exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy