FOURTH SECTION
DECISION
Application no. 19054/03
by Krzysztof KINDZIERSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 3 March 2009 as a Chamber composed of:
and Fatoş Aracı, Deputy Section Registrar
Having regard to the above application lodged on 12 May 2003,
Having deliberated, decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, Mr Krzysztof Kindzierski, is a Polish national who was born in 1973 and lives in Lubartów. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A.  The applicant's pre-trial detention and criminal proceedings against him
On 5 October 2002 the applicant was arrested.
On 8 October 2002 the Lubartów District Court (Sąd Rejonowy) remanded him in custody on suspicion of robbery.
Subsequently, the applicant's pre-trial detention was extended by decisions of the Lubartów District Court of apart from unspecified dates, 29 April and 28 July 2003 (the latter upheld by the Lublin Regional Court on 28 August 2003), 2 October 2003 (upheld on 20 October 2003) and by decisions of the Lublin Regional Court (Sąd Okręgowy) of 19 February 2004 (upheld by the same court on 15 March 2004) and 27 May 2004 (upheld on 21 June 2004). Finally, the applicant's detention was extended by a decision of the Lubartów District Court of 16 December 2004.
Initially, the domestic courts justified the applicant's pre‑trial detention by the existence of strong evidence against him and the likelihood that a severe penalty would be imposed in the case. At a later stage, in addition to the original reasons, the authorities relied on the fact that the applicant had already been convicted by the first-instance court.
Meanwhile, the Lubartów District Court, in its decisions of 30 September, 14 and 31 October 2003, 28 November and 10 December 2003, 9 January and 11 February 2004 refused the applicant's requests for his release. Similarly, on 1 March and 22 April 2004 the Lublin Regional Court decided not to lift the preventive measure in question, as sought by the applicant.
Meanwhile, on 17 February 2003 the Lubartów District Court convicted the applicant as charged and sentenced him to three and a half years' imprisonment.
On 4 July 2003 the Lublin Regional Court quashed that judgment and remitted the case on the ground that the first-instance court had failed to sufficiently establish that the offence committed by the applicant ought to have been classified as robbery rather than theft.
On 16 December 2003 the Lubartów District Court convicted the applicant of robbery and sentenced him to three and a half years' imprisonment.
On 4 June 2004 the Lublin Regional Court upheld that judgment on appeal.
On 20 June 2004 the applicant's legal-aid lawyer informed him that she had not found any grounds to lodge a cassation appeal in the case.
B.  Conditions of the applicant's detention
It appears that on 5 October 2002 the applicant was committed to Lublin Remand Centre.
As a non-smoker the applicant was initially held in non-smoking cell no. 6 in wing VII A. However, before the end of the month, he was transferred to cell no. 14 in wing III and subsequently to cell no. 12. In both cells all of the applicant's fellow inmates smoked cigarettes. In addition the cells in question were overcrowded. The applicant did not specify how large his cells were. He submitted, however, that the standard of three square metres per person had been significantly reduced and that on one occasion he had been detained together with fourteen persons and had had to sleep on the floor. On another occasion he shared a four square-metre cell with one person but the space was still restricted because in the middle of the cell there was a table with stools fixed permanently to the floor. A toilet cubicle was also situated in the middle of the cell. It was not separated or covered to offer any privacy. The applicant's cell was not equipped with any cupboards or shelves. There was only cold water in the tap.
Moreover, the sanitary conditions in Lublin Remand Centre were inadequate. Detainees were not supplied with a broom or any detergents to keep their cell clean. Towels, sheets, blankets and mattresses at the detainees' disposal were old, dirty and damp. On an unspecified date during his detention in Lublin Remand Centre, the applicant had a fungal infection. In this connection, the applicant submitted that the medical care offered to him had been insufficient.
From 8 a.m. until 3 p.m. the applicant worked at the remand centre book bindery shop. As a result, on weekdays he was deprived of his scheduled one hour of outdoor exercise which coincided with his working hours. The applicant submitted that the complaints he lodged in this connection with the remand centre staff had been to no avail. On the other hand, his complaint to the Governor of the Lublin Remand Centre (Dyrektor) resulted in his transfer to another detention establishment. The applicant also claimed that the management of Lublin Remand Centre had delayed the payment of his salary from the book bindery shop. It appears that the applicant's salary was paid only after he complained to the Lublin Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej), although, as the applicant asserted, the inspectorate had never issued an official reply to his query.
On 4 March 2003 the applicant was transferred to Chełm Prison, where he was detained until an unspecified date in October 2003.
The applicant complained about inadequate living and sanitary conditions in this detention establishment. In particular, he submitted that he had been detained in overcrowded and dirty cells without access to hot water. The applicant submitted copies of letters by which the Governor of Chełm Prison informed the relevant penitentiary authorities about the existing overcrowding. It transpires from these documents that at the material time the area of a cell varied between 1.8 and 3 square metres per person. In addition the applicant asserted that blankets, towels and sheets available at the remand centre had been old and shabby but he had not been allowed to bring his own clean sheets from home. Detainees wore their own clothes, which they had to wash in cold water inside the cell. Although they were entitled to have one hot shower per week, in fact the water was usually cold and the applicant often missed his shower because of his frequent transfers between different wings. As a result he went without a shower for several weeks in a row and was mocked by his fellow inmates. Similarly, despite the fact that detainees were entitled to air their blankets once a week, in reality they could only do so once a month. The yard where the applicant had his one hour of outdoor exercise was small and surrounded by high concrete walls. There was no air circulation.
Furthermore, the applicant complained that, in addition to unbearable living and sanitary conditions, his detention had been made difficult by the policy of harassment and excessive internal rules. The applicant was subjected to routine strip-searches each time he left his cell. Warders opened and searched through the items which he purchased in the remand centre canteen. He was not allowed to participate in sports activities. Each week he was transferred between different cells and wings for no reason. Moreover, detainees were not allowed to bring any drinks to the outdoor yard, even though in the summertime it was very hot there. Finally, each time the applicant was escorted to attend a court hearing, he went all day without any food because he had to skip the meals served at the remand centre, and the packed lunch which he received instead consisted of canned products which he could not open without a tin opener.
The applicant maintained that his complaints to the remand centre staff or management had only resulted in his increased persecution by the warders.
From an unspecified date in October 2003 until, presumably, 15 January 2004 the applicant was again detained in Lublin Remand Centre.
Subsequently, he was transferred to Chełm Prison, where he remained until an unspecified date in July 2004.
For one month between unspecified dates in July and August 2004 the applicant was detained in Warszawa Białołęka Prison.
From an unspecified date in August until an unspecified date in September 2004 he was serving his sentence in Bydgoszcz Prison and from an unspecified date in September 2004 until an unspecified date in April 2006, in Czarne Prison.
Having served his prison sentence the applicant was released.
The applicant lodged numerous complaints with the penitentiary authorities about various aspects of his detention in different remand centres and prisons. They were all to no avail.
By a letter of 16 January 2004 the Governor of Lublin Remand Centre informed the applicant that his complaint about inadequate living and sanitary conditions during his detention had been considered ill-founded. At the material time the applicant was held in cell no. 2, which measured 8.2 square metres. He shared it with only one person. The cell in question was sufficiently clean and the fact that the applicant was diagnosed with a fungal infection when he was held in Lublin Remand Centre did not mean that he had necessarily been infected in that establishment.
C.  Monitoring of the applicant's correspondence
The applicant submitted that on 9 April 2003 one of his incoming private letters had been opened by a warder at Chełm Prison and that the telephone cards which were inside the envelope had been confiscated.
In this connection the applicant lodged two complaints with the Regional Inspectorate of the Prison Service. They were both referred to the Chełm Remand Centre Governor who considered the complaints ill-founded.
In addition, a criminal investigation was opened into the allegations that the warder in question had committed the offence of infringement of the secrecy of the applicant's correspondence.
On 15 March 2004 the Chełm District Prosecutor (Prokuratura Rejonowa) discontinued the proceedings due to the lack of elements of a criminal offence (brak znamion czynu zabronionego). On 27 July 2004 the Chełm District Court upheld the prosecutor's decision and terminated the proceedings.
The authorities relied on the testimony of several witnesses and held that the applicant's letter had not been checked by the prison staff. It was noted that the letter in question had been censored by the competent penitentiary court prior to being delivered to the applicant. That procedure was in compliance with the domestic law which authorised the judicial authorities to monitor the correspondence of persons in pre-trial detention. The investigation revealed that the warder at Chełm Prison had not seen the contents of the applicant's letter as he had merely opened the envelope to remove the telephone cards showing through the envelope. The authorities concluded that in those circumstances no infringement of the secrecy of correspondence had occurred.
In addition, the applicant submitted a letter from his lawyer dated 8 January 2004. The letter had originally been sent to the applicant's address in Lublin Remand Centre and it was forwarded by the authorities to Chełm Prison, where the applicant had been transferred in the meantime.
The envelope of the letter in question bears the stamp “Censored (Cenzurowano) – Day (Dnia) – Signature (Podpis)”. The empty spaces in the stamp are filled with an illegible signature and a handwritten date: “19.01.04”.
The applicant claimed that the letter had been delivered to him opened.
D.  Proceedings concerning the applicant's registration
On 20 August 2003 the Lubartów Municipality (Urząd Miasta) decided to delete the applicant's name from the register of persons living in a certain flat at Armii Krajowej Street no. 3/1 (wymeldowanie), where the applicant had lived with his grandmother until 2001. The decision was delivered as a result of administrative proceedings initiated upon the request of the applicant's grandmother, who submitted that the applicant had abandoned his place of residence. The authorities granted the right to the flat in question to another family and assigned a different flat to the applicant and his grandmother (at Słowackiego Street no. 16/5); however, the applicant never registered at the new address.
That decision was upheld on 30 October 2003 by the Lubelski Governor (Wojewoda) and on 1 July 2004 by the Lublin Regional Administrative Court (Wojewódzki Sąd Amidnistracyjny).
On an unspecified date soon afterwards the applicant's legal-aid lawyer informed the applicant that he had not found any grounds to lodge a cassation appeal in the case.
COMPLAINTS
The applicant complained under Article 3 of the Convention of the inadequate conditions and medical care in Lublin Remand Centre and Chełm Prison. In particular, he complained of overcrowding, poor sanitary conditions, the practice of mixing smoking and non-smoking detainees, routine strip-searches and a policy of harassment.
The applicant also complained under Article 5 § 3 of the Convention of the allegedly unreasonable length of his pre-trial detention.
Moreover, he complained under Article 6 § 1 of the Convention of the allegedly incorrect classification of charges by the domestic courts and that his prison sentence had been too long.
He also complained under the same provision of the unreasonable length of the impugned criminal proceedings.
The applicant complained under Article 8 of the Convention of the revocation of registration of the flat in which he had lived with his grandmother prior to his detention.
He also complained, without invoking any provision of the Convention, that the authorities had refused to grant him early release from prison on parole or a short break in the enforcement of his sentence.
  Finally, the applicant complained under Article 8 of the Convention that two of his letters had been opened and checked by the staff of Lublin Remand Centre and the judicial authorities respectively.
LAW
By letter dated 23 May 2008 the Government's observations were sent to the applicant, who was requested to submit any observations together with any claims for just satisfaction in reply by 3 July 2008.
By letter dated 9 December 2008, sent by registered post to the applicant's home address in Lubartów, the applicant was notified in Polish that the period allowed for submission of his observations had expired on 3 July 2008 and that no extension of time had been requested. Moreover, the applicant's attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. The letter was claimed by the applicant on 12 December 2008. However, the applicant has not to date resumed correspondence with the Court in the instant case.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
	Fatoş Aracı	Nicolas Bratza
	Deputy Registrar	President