FIRST SECTION
DECISION
Application no. 74228/12
Mariusz Andrzej SZUBRYCH
against Poland
The European Court of Human Rights (First Section), sitting on 6 November 2018as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 6 November 2012,
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 Mariusz Andrzej Szubrych, is a Polish national, who was born in 1957 and lives in Poznań.
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.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. During various periods between 1 September 2003 and 8 March 2011 the applicant was employed while serving his prison sentence. In accordance with Article 123 § 2 of the 1997 Code of Execution of Criminal Sentences (Kodeks Karny Wykonawczy – “the Code”) he received a salary in the amount of half of the statutory minimum wage guaranteed to other employees.
5. The situation ended on 8 March 2011, the date on which Article 123 § 2 of the Code was amended, and the minimum wage of convicted persons was aligned with the minimum wage guaranteed to other employees.
6. As of 8 March 2011 the salary of convicted persons was subject to a new deduction of 25 %, which had been added to the existing one for the Post-Prison Aid Fund. On the same date the existing deduction for Post‑Prison Aid Fund decreased from 20% to 10%. The applicant complained about those deductions to the Ombudsman. On 20 April 2012 the complaint was dismissed as unfounded.
B. Relevant domestic law and practice
7. The relevant domestic law and practice are set out in the Court’s decision in the case Dobrowolski and others v. Poland (dec.) (no. 45651/11, §§ 10-15, 13 March 2018).
COMPLAINTS
8. The applicant complained under Article 14 of the Convention that lowering his remuneration below the statutory minimum wage, on the basis of his status as prisoner, had been discriminatory.
9. In addition, he complained under Article 1 of Protocol No. 1 to the Convention about a new deduction from his salary for a Fund aimed at helping convicted people to become professionally active and the development of enterprises within prisons, introduced on 8 March 2011.
THE LAW
A. Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1
10. The applicant firstly complained that setting his remuneration below the statutory minimum wage had been discriminatory. He relied in substance on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
11. The Government raised a preliminary objection, maintaining that the applicant had not exhausted the domestic remedies available to him, as required by Article 35 § 1 of the Convention. According to the Government, there were several types of remedies effective in the situation at hand. In particular, the applicant should have complained to the Regional Inspectorate of the Prison Service, lodged a constitutional complaint and afterwards a civil action under Article 4171 § 1 of the Civil Code. Moreover, the Government considered that since the applicant had failed to use any remedy, and the situation complained of had ended on 8 March 2011, the application should be rejected for non-compliance with the six-month rule.
12. The applicant in general disagreed with the Government’s submissions and argued that there had been a breach of his rights protected by the Convention.
13. The Court does not find it necessary to examine the Government’ s objections on non-compliance with the six-month requirement and failure to exhaust domestic remedies, the present case being in any event inadmissible, for the following reasons (see, Dobrowolski and others, cited above, § 31).
14. In Dobrowolski and others against Poland, a case raising identical issues, the Court concluded that the applicants could not argue that they had a “possession” within the meaning of Article 1 of Protocol No. 1 and therefore the facts of the cases did not fall within the ambit of Article 1 of Protocol No. 1 (see, Dobrowolski and others, cited above, § 29).
Those findings are applicable to the present case. Having regard to the fact that Article 14 of the Convention is not autonomous, and concluding that the facts of the cases do not fall within the ambit of Article 1 of Protocol No. 1, the Court considers that Article 14 cannot apply in the instant case.
15. It follows that the complaint under Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
B. Other complaint
16. The applicant additionally complained under Article 1 of Protocol No. 1 about a new deduction from his salary which had been introduced on 8 March 2011.
17. In respect of this complaint the Government also raised a preliminary objection on non-exhaustion of domestic remedies. The applicant did not comment on the matter.
18. The Court does not find it necessary to examine the Government’ s objection on failure to exhaust domestic remedies, the present case being in any event inadmissible, for the same reasons as in Dobrowolski and others against Poland (cited above, § 33). In particular, the applicant submitted no evidence to show that such a deduction was arbitrary or incompatible with the general interest, within the meaning of Article 1 of Protocol No. 1
19. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
20. Accordingly, this part of 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 29 November 2018.
Abel CamposKsenija Turković
RegistrarPresident
Full & Egal Universal Law Academy