FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38340/04
by Marian GRACZYK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 15 May 2007 as a Chamber composed of:
	Sir 	Nicolas , President,
	Mr	 ,
	Mr	 ,
	Mr	 ,
	Ms	 ,
	Mr	 	Mrs	  judges
and Mr , Section Registrar,
Having regard to the above application lodged on 15 October 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Marian Graczyk, is a Polish national who was born in 1952 and lives in Bielsko‑Biała in Poland, where he owns a car garage and is licensed to practise amateur sport shooting.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  The applicant’s detention on remand
On 25 August 2002 the applicant was arrested on suspicion of illegal possession of weapons. On 26 August 2002 the Katowice District Court (Sąd Rejonowy) ordered his detention on remand. The court stated that there existed strong evidence indicating that the applicant possessed firearms and ammunition without a licence and that it was likely that a heavy sentence would be imposed for the offence in question. This decision was upheld by the Katowice Regional Court (Sąd Okręgowy) on 11 September 2002. The applicant’s detention was subsequently extended by virtue of several decisions delivered by the Katowice Regional Court on the following dates: 18 November 2002 (upheld by the Katowice Court of Appeal on 18 December 2002), 3 February 2003, 5 May 2003, 13 October 2003, and 23 February 2004 (upheld by the Katowice Court of Appeal on 7 April 2004). In the meantime, on 29 May 2003 and on 25 August 2003 the Katowice Regional Court refused to lift the preventive measure in question as requested by the applicant. The former decision was upheld by the same court on 7 July 2003.
On 4 June 2004 the Katowice Regional Court lifted the applicant’s detention.
2.  Conditions of the applicant’s detention
Throughout the entire pre‑trial detention between 26 August 2002 and 4 June 2004, the applicant was held in the Sosnowiec Remand Centre, where he was placed in a number of different cells. As emerges from the letter of the Sosnowiec Remand Centre’s Director of 17 June 2005, the applicant was held in the following cells:
Time period	Ward and cell number	Size in
sq. metres	Average occupancy	
26 August 2002 –
28 August 2002	“transitional cell”	-	-	
28 August 2002 –
29 November 2002	II /14	21	8-9
persons	
9 December 2002 –
17 July 2003	III/24	41.1	16-17
persons	
17 July 2003 –
2 September 2003	III/8	13.9	7-8
persons	
2 September 2003 –
5 September 2003	III/25	9.6	2 persons	
5 September 2003 –
8 September 2003	III/21	9.9	2 persons	
8 September 2003 –
13 February 2004	III/24	41.1	16-17
persons	
13 February 2004 –
4 June 2004	IV/44	22.2	11-12
persons	

In the applicant’s own submission, however, the size of some of those cells was smaller and the occupancy rate was higher than indicated in the above letter. For example, cell no. 24 measured only 32.5 square metres and was occupied by 18 detainees at a time.
There was no hot water inside the cells and a bath was allowed once a week. The outdoor prison yard measuring 25 square metres was used by 50 detainees at a time. Loud music was played continuously throughout the day in all cells via an internal broadcasting system.
The majority of cells in the Sosnowiec Remand Centre were occupied by smokers. As a result, the applicant, who is a non‑smoker, shared his cell with inmates who smoked, in total, up to 500 cigarettes per day. The applicant further submits that the detainees often smoked hand‑made cigarettes of tobacco mixed with tea or coffee dregs, rolled in printed sheets of paper torn from the Bible. The smoke was unbearable and caused the applicant’s health to deteriorate, causing him headaches and a sore throat. It was only after a medical examination by the in‑house physician that the applicant was placed in a non‑smoking cell no. 8 for the period between 17 July 2003 and 2 September 2003.
In addition, the applicant submits that the toilet in cell no. 24 was broken and the inmates’ excrement leaked out onto the floor. For over six months his repeated complaints brought no results and a new toilet was installed only when the detainees expressly broke the old one into pieces.
Numerous complaints to the administration of the Sosnowiec Remand Centre lodged by the applicant in connection with the overall conditions in the detention facility were either to no avail or they resulted in his transfer to a worse cell. The applicant maintains that he has never received any relevant reply in writing to his complaints.
3.  Criminal proceedings against the applicant
On an unspecified date the applicant was charged with handling stolen property, namely with aiding the sale of a stolen car. On 2 September 2002 he was additionally charged with illegal possession of a pistol and ammunition.
On 2 January 2003 the Katowice Regional Prosecutor filed an indictment against the applicant and 25 other persons. The latter were indicted on many counts of interconnected robberies, burglaries, car thefts, as well as handling stolen property. The applicant was indicted on charges of illegal possession of weapons and of aiding the sale of a stolen car. In addition, he was charged with intentional purchase of three stolen cars, an offence with which he had not previously been charged and in connection with which he had not been questioned as a suspect in the pre‑trial proceedings.
On 3 March 2003 the Katowice Regional Court decided to try the applicant separately on charges of aiding the sale of a stolen car and purchasing three stolen cars and to refer this case to the Gliwice District Court (see b. Second set of criminal proceedings).
By virtue of the same decision, the charge of illegal possession of weapons was to be determined by the Katowice Regional Court and examined in a joint‑trial against the applicant and 11 other defendants, the latter facing different charges. The applicant requested the trial court to severe the charges against him. On 6 October 2003, however, the Katowice Regional Court refused to handle the applicant’s case individually and decided instead to open two separate trials: the first in connection with the remaining count of illegal possession of weapons against the applicant and the charges against 9 other defendants (see a. First set of criminal proceedings), and the second, against two other defendants facing the most serious charges.
(a)  First set of criminal proceedings
Upon the opening of the case against the applicant and 9 other defendants, the applicant asked the trial court to summon as a witness for the defence a certain Major T.S., an agent of the Internal Security Agency (Agencja Bezpieczeństwa Publicznego). The applicant asked that the witness be heard in camera because during the hearing he might reveal information which should otherwise be kept secret in order to protect the security of the State. It appears that the Katowice Regional Court agreed to summon the witness and to hear him in camera. However, for unknown reasons, the applicant withdrew his motion.
On 4 June 2004 the Katowice Regional Court convicted the applicant on a count of illegal possession of weapons and sentenced him to 2 years’ imprisonment (case no. V K 2/03). The period of the applicant’s pre‑trial detention between 25 August 2002 and 4 June 2004 was deducted from the term of imprisonment imposed.
It appears that in the appellate proceedings the applicant renewed his request to call Major T.S. as a witness for the defence and to hear him in camera. The court rejected the applicant’s motion.
On 17 February 2005 the Katowice Court of Appeal (Sąd Apelacyjny) upheld the first‑instance judgment in the part relating to the applicant (no. II AKa 411/04). No cassation appeal was lodged against the latter judgment. Instead, soon afterwards, the applicant made an attempt to have the case re-opened (see 5. Proceedings for reopening).
(b)  Second set of criminal proceedings
After the applicant’s case concerning the sale of stolen property had been assigned to a separate set of proceedings, the Gliwice District Court found that the information gathered in the investigation was insufficient and, consequently, on 24 March 2004 remitted the case to the prosecution for a further investigation.
As a result of the additional investigation, on 30 April 2004 the Katowice Regional Prosecutor (Prokurator Okręgowy) cleared the applicant of the charge of purchasing three stolen cars and discontinued the proceedings in this respect (no. V Ds. 30/04/S).
Starting on 5 April 2005, the applicant lodged three consecutive complaints to the Minister of Justice and the Katowice Prosecutor of Appeal (Prokurator Apelacyjny) against the actions of the prosecutor who indicted him of purchasing three stolen cars without previously charging him with this offence. In response to these complaints, on 20 July 2005 the Katowice Appeal Prosecutor acknowledged the prosecutor’s error and referred the matter to the Katowice Regional Prosecutor. On 12 August 2005 the Katowice Regional Prosecutor admitted that the applicant had indeed been charged with the intentional purchase of three stolen cars without having been charged with this particular offence. It was explained further that the evidence gathered initially in the investigation had not been sufficient to lead to the applicant’s indictment. Consequently, the proceedings were discontinued and the applicant was cleared of the charge. Based on these findings, the Katowice Regional Prosecutor decided to institute disciplinary proceedings against the prosecutor in question and to exclude him from the further proceedings against the applicant.
The applicant did not lodge a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) either in respect of the first or the second set of criminal proceedings.
(c)  Third set of criminal proceedings
Another consequence of the additional investigation carried out in connection with the second set of criminal proceedings was that the applicant was indicted, presumably on 31 December 2004, on a charge of aiding a certain Z.J. to sell a stolen car. These proceedings continued until 10 March 2005, when the applicant was acquitted by the Gliwice District Court (case no. III K 633/04). That judgment was upheld by the Gliwice Regional Court on 2 September 2005 (file no. VI Ka 459/05). A cassation appeal was not available.
4.  Proceedings for reopening
On 6 June 2005 the applicant’s counsel applied for the re‑opening of the first set of the impugned criminal proceedings on account of the fact that new evidence had come to light, indicating that the applicant had not illegally possessed any weapons. The new evidence consisted of the Gliwice District Court’s verdict of acquittal of 10 March 2005, as well as the testimony of a new witness, Major T.S., an agent of the Internal Security Agency. Having examined the relevant material and having heard the witness, on 20 February 2006 the Supreme Court decided to dismiss the application for re‑opening. It held that the analysis of the newly submitted evidence did not lead to the conclusion that the applicant had not committed the offence of illegal possession of weapons, of which he had been previously convicted.
5.  Search of the applicant’s premises
Irrespective of the aforementioned criminal proceedings against the applicant, on an unspecified date a criminal inquiry was opened into a burglary committed on 28 March 2005 in Olkusz. In this connection, on 1 April 2005 the applicant’s private and business premises were searched by the local police acting upon search warrant no. NZ 394386. This action was approved ex post facto by the Olkusz District Prosecutor’s decision of 5 April 2005. Upon the applicant’s appeal, the latter decision was upheld by the Cracow Regional Prosecutor on 5 May 2005.
On 12 April 2005 the applicant complained to the prosecution authorities that the search carried out by the police of his private and business premises on 1 April 2005 was unlawful as he had not been served with a search warrant. On 25 May 2005 the Bielsko‑Biała District Prosecutor refused to investigate this matter as the allegations made by the applicant were found to be manifestly ill‑founded.
B.  Relevant domestic law and practice
1.  General conditions of detention
The detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice.
Article 40 of the Constitution reads:
“No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.”
Article 41 of the Constitution, in its relevant part, provides:
“4.  Anyone deprived of liberty shall be treated in a humane manner.”
Article 110 of the Code of Enforcement of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:
“1.  A sentenced person shall be placed in an individual cell or a cell shared with other inmates.
2.  The space of the cell shall be no less than 3 square metres per detainee.”
Article 248 of the Code stipulates:
“1.  In particularly justified cases a governor of a prison or remand centre may decide to place detainees, for a determined period of time, in conditions where the space of the cell is less than 3 square metres per person. Any such decision shall be promptly communicated to a penitentiary judge.
2.  The Minister of Justice will determine, by means of an ordinance, the rules which are to be followed by the relevant authorities in a situation where the number of persons detained in prisons and remand centres exceeds in the country’s scale the overall capacity of these establishments...”
On the basis of Article 248 of the Code, the Minister of Justice issued the Ordinance of 26 October 2000 on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded on the country’s scale the overall capacity of these establishments (Rozporządzenie Ministra Sprawiedliwości w sprawie trybu postępowania właściwych organów w wypadku, gdy liczba osadzonych w zakładach karnych lub aresztach śledczych przekroczy w skali kraju ogólną pojemność tych zakładów) (“the 2000 Ordinance”). On 26 August 2003, the Minister of Justice passed a new ordinance under the same title (“the 2003 Ordinance”), which replaced the previous ordinance. It entered into force on 1 September 2003.
Paragraph 1.1 of this Ordinance provided:
“In case the number of detainees placed in prisons and remand centres, as well as in the subordinate internal wards, further referred to as “establishments”, exceeds in the country’s scale the overall capacity of these establishments, the Director General of the Prison Service, within 7 days from the day the capacity is exceeded, will convey the relevant information to the Minister of Justice, the regional directors of prison service and the directors of the penitentiary establishments...”
Paragraph 2 of the Ordinance read:	
“1.  Having received the relevant information, the regional director of the prison service and the director of the penitentiary establishment are under a duty, each within their own sphere of competence, to take actions in order to adapt quarters not otherwise included in the establishment’s [accommodation] capacity, to comply with the conditions required for a cell.
...
3.  In case the establishment’s capacity is exceeded detainees will be placed in supplementary cells for a determined period of time.
4.  In case the additional accommodation in the supplementary cells is used up, detainees may be placed in conditions where the space of a cell is less than 3 square metres per person.”
On 13 December 2005 the Ombudsman made an application under Article 191, read in conjunction with Article 188 of the Constitution, to the Constitutional Court, asking for the 2003 Ordinance to be declared unconstitutional. More specifically, the Ombudsman asked for it to be declared incompatible with Articles 40 and 41 of the Constitution and Article 3 of the European Convention on Human Rights. In particular, the Ombudsman challenged paragraph 2 (4) of the 2003 Ordinance, which allowed the prison authorities to place a detainee in a cell where there were less than 3 square metres per person, for an indefinite period of time. This, in his opinion, was contrary to the interim nature of Article 248 of the Code of the Enforcement of Criminal Sentences and led to the legitimisation of the chronic overcrowding in detention facilities.
 On 18 April 2006 the Ombudsman limited the scope of his initial application, asking the Constitutional Tribunal to declare the provision of paragraph 2 (4) of the 2003 Ordinance to be in breach of Article 41 of the Polish Constitution.
On 19 April 2006, a day before the date set for the Constitutional Court’s hearing, the Minister of Justice abolished the impugned Ordinance in its entirety and passed a new one under the same title and with immediate effect (“the 2006 Ordinance”). The provisions of the new 2006 Ordinance remain the same as in the previous instrument, except for paragraph 2 (4) which currently reads as following:
“In case the additional accommodation in the supplementary cells is used up, detainees may be placed, for a determined period of time, in conditions where the space of a cell is less than 3 square metres per person.”
As a consequence of these changes, on 19 April 2006 the Ombudsman withdrew his application.
 On 7 November 2006 a certain A.L., who is a detainee, made an application under Article 191, read in conjunction with Article 79 of the Constitution, to the Constitutional Court, asking for Articles 110 § 2 and 248 of the Code of Enforcement of Criminal Sentences and the 2006 Ordinance to be declared unconstitutional. The applicant alleged that the invoked provisions infringed his right to respect of his dignity, right not to be subjected to torture or to inhuman or degrading treatment, right to respect of his privacy and the right to have his health protected. The 2006 Ordinance was challenged in particular as far as it allowed for the placement of detainees in a cell where the space was below the statutory cell size for an undetermined period of time and as far as it did not set a minimum space allowed. The application is currently pending before the Constitutional Court.
2.  Tobacco use in detention establishments
The issue of tobacco use in prisons and remand centres is governed by the Law of 9 November 1995 on protection of health against the consequences of tobacco use (Ustawa o ochronie zdrowia przed następstwami używania tytoniu i wyrobów tytoniowych) (“the 1995 Law”). The 1995 Law places all authorities of government and self‑government administration under the duty to take action aimed at the protection of health from the consequences of tobacco use. According to Article 3 of the 1995 Law, such health protection is to be accomplished through inter alia, protection of the right of non‑smokers to live in an environment free from tobacco‑smoke.
On the basis of the 1995 Law, the Minister of Justice issued the Ordinance of 26 November 1996 on the principles for the permitted use of tobacco in closed establishments under the Minister of Justice (Rozporządzenie w sprawie określenia zasad dopuszczalności używania wyrobów tytoniowych w obiektach zamkniętych podległych Ministrowi Sprawiedliwości). This Ordinance provided persons detained in remand centres and prisons with the possibility of smoking in their cells, on the condition that they were placed in separate cells for smokers.
3.  Remedies for the excessive length of judicial proceedings
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12‑23, ECHR 2005‑V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005‑VIII.
COMPLAINTS
1.  The applicant complains that the conditions of his detention in the Sosnowiec Remand Centre were in breach of Article 3 of the Convention.
2.  The applicant also complains under Article 6 § 1 of the Convention about the unreasonable length of the first set of criminal proceedings, terminated by the Katowice Court of Appeal’s judgment of 17 February 2005, and about the unreasonable length of the third set of criminal proceedings, terminated by the Gliwice District Court’s judgment of 10 March 2005.
3.  Moreover, in relation to the first set of the impugned criminal proceedings, the applicant complains:
a)  under Article 6 § 1 of the Convention about the outcome of the proceedings;
b)  under Article 6 § 2 of the Convention that he was considered guilty of the offence which was the subject of separate proceedings pending at the relevant time before the Gliwice District Court;
c)  under Article 6 § 3 (b) about inadequate facilities for the preparation of his defence, in that he was asked to pay an excessive fee for copies of the case files;
d)  under Article 6 § 3 (d) of the Convention that the relevant domestic courts refused to hear one of the witnesses for the defence and that one of the co‑defendants refused to give testimony in the applicant’s favour, taking advantage of the right not to incriminate himself.
4.  In addition, the applicant invokes Article 5 § 2 of the Convention to complain about the breach of his right to have adequate time and facilities for preparation of his defence in the course of the second set of criminal proceedings, in that the scope of his indictment was broader than the charges he had faced in the investigation.
5.  Finally, the applicant alleges a violation of Article 8 of the Convention since his private and business premises were searched on 1 April 2005 without a search warrant.
THE LAW
1.  The applicant complains about the conditions of his detention.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  The applicant also complains under Article 6 § 1 of the Convention about the unreasonable length of the first set of criminal proceedings, terminated by the Katowice Court of Appeal’s judgment of 17 February 2005, and about the length of the third set of criminal proceedings, terminated by the Gliwice District Court’s judgment of 10 March 2005.
However, pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”
The Court observes that it was open to the applicant to lodge a complaint about the unreasonable length of both sets of impugned proceedings with the relevant domestic court in accordance with the provisions of the 2004 Act.
The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland. In particular, it considered that it was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that has already occurred (see Charzyński  v. Poland (dec.), no. 15212/03, §§ 36‑42).
However, the applicant, failed to avail himself of this remedy.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.

3.  Furthermore, the applicant complains under Article 6 §§ 1, 2 and 3 about certain procedural shortcomings and the outcome of the first set of criminal proceedings terminated by the Katowice Court of Appeal’s judgment of 17 February 2005.
However, the Court notes that the exhaustion rule stated in Article 35 § 1 of the Convention, cited above, has not been complied with. The Court observes, in particular, that the applicant did not lodge a cassation appeal against the Katowice Court of Appeal’s judgment of 17 February 2005. The subsequent request for the reopening of the case cannot be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention.
Consequently, the applicant did not exhaust domestic remedies within the meaning of this provision and this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

4.  In addition, the applicant complains about the breach of his right to have adequate time and facilities for the preparation of his defence in the course of the second set of criminal proceedings terminated by the Gliwice District Court’s judgment of 10 March 2005, in that the scope of his indictment was broader than the charges presented in the pre‑trial proceedings.
This complaint falls to be examined under Article 6 § 3 (b) of the Convention, which in its relevant part provides:
“§ 3  Everyone charged with a criminal offence has the following minimum rights:...
b)  to have adequate time and facilities for preparation of his defence.”
The Court observes that the applicant was acquitted in the course of the impugned proceedings and that he no longer can be considered a victim within the meaning of Article 34 of the Convention. Consequently, this complaint must be rejected as manifestly ill‑founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
5.  Finally, the applicant complains that his private and business premises were searched on 1 April 2005 without a search warrant, in violation of Article 8 of the Convention, which in its relevant part provides:
“1.  Everyone has the right to respect for his private and family life, his home ...
2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime...”
The Court considers that this complaint lacks any substance since the authorities, contrary to the applicant’s submissions, acted on a search warrant and the interference in question was justified under paragraph 2 of the invoked provision.
It follows that the remainder of the application must be rejected as manifestly ill‑founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the complaint concerning the conditions of the applicant’s detention;
Declares the remainder of the application inadmissible.
	T.L. 	Nicolas 
	Registrar	President