Last Updated on May 23, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 38601/12
Arkadiusz TUROWSKI
against Poland
The European Court of Human Rights (First Section), sitting on 11 September 2018 as a Committee composed of:
AlešPejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 4 June 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by Polish Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr ArkadiuszTurowski, is a Polish national who was born in 1975 and is detained in Nowogard. He was granted legal aid. He was represented before the Court by Mr D.J. Babski, a lawyer practising in Szczecin.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska 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. Between September 2010 and June 2012 the applicant was employed, as a convicted person, while serving his prison sentence in Nowogard Prison. For his work he received a wage, from which various deductions were made.
5. Apart from the mandatory deductions applying to all employees (social insurance and taxes), part of the applicant’s wage was deposited in a so‑called “iron savings box”. Furthermore, between September 2010 and February 2011, 20% of his wage was deducted for the Post-Penitentiary Aid Fund (FunduszPomocyPostpenitencjarnej). As of 8 March 2011 the deduction for the latter Fund was decreased from 20% to 10% and a further 25% of the wage was deducted for the Fund for professional motivation of convicted persons and development of enterprises within prisons (FunduszAktywizacjiZawodowejSkazanychorazRozwojuPrzywięziennychZakładówPracy).
B. Relevant domestic law and practice
1. The 1997 Code of Execution of Criminal Sentences (KodeksKarnyWykonawczy) (“the 1997 Code”)
6. Article 123 (2) of the 1997 Code in its version which had been in force between 1 September 2003 and 8 March 2011, stated that the remuneration of a convicted person employed full-time should be not less than half of the minimum wage in Poland. Persons employed less than full‑time would have their income calculated in proportion to the number of hours worked, taking at least half of the minimum wage as a basis.
7. On 8 March 2011 the amendment to the 1997 Code entered into force (Law of 3 February 2011). The amendment resulted from the judgment of the Constitutional Court of 23 February 2010 (case no. P 20/09) in which that court declared the previous regulation unconstitutional, holding that there were not sufficient reasons to lower the minimum wage with respect to prisoners. The new Article 123 (2) stipulates that convicted persons shall receive at least the minimum statutory wage.
8. The same Law amended Article 125 of the 1997 Code, introducing a new deduction of 25% of the salary of the convicted person for a Fund aiming at professional motivation of convicted persons and development of enterprises within prisons (FunduszAktywizacjiZawodowejSkazanychorazRozwojuPrzywięziennychZakładówPracy). Since 8 March 2011 this deduction has been added to the existing one for the post-penitentiary aid fund (FunduszPomocyPostpenitencjarnej). The deduction for the latter Fund was decreased from 20% to 10% with effect from 8 March 2011.
9. Currently paragraph 1 of Article 125 of the 1997 Code provides that 7% of the salary of a convicted person shall be deducted for the post‑penitentiary aid fund and 45% for the Fund for professional motivation of convicted persons and development of enterprises within prisons. According to paragraph 2, after deductions for income tax, 60% of the salary of a convicted person shall be free from execution proceedings.
2. Provisions relating to the constitutional complaint
10. Article 79 § 1 of the 1997 Constitution provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
11. Article 190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court (…) shall be published without delay (…).
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a legally effective judgment of a court, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings.”
3. The relevant provision of the Civil Code
12. Article 417 § 1 provides as follows:
“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
13. Article 4171§ 1 provides as follows:
“If damage was suffered as a result of the enacting of a statutory act, redress may be claimed after having obtained in the relevant proceedings a statement of non‑conformity of that act with the Constitution, ratified international agreement or act (ustawa).”
COMPLAINT
14. The applicant complained under Article 1 of Protocol No. 1 to the Convention that, during the time of his employment, he received only part of his remuneration because 35% of his wages was deducted for various funds.
THE LAW
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
15. The applicant complained of deductions made from his wages, which in his view amounted to a violation of Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“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.”
A. The parties’ submissions
16. The Government raised a preliminary objection that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. According to the Government, the applicant should first have lodged a penitentiary complaint with the penitentiary court or the Regional Inspectorate of the Prison Service. The decision given after such complaint would constitute a basis for a constitutional complaint by which the applicant could challenge the alleged unconstitutionality of the relevant provisions of the Code of Execution of Criminal Sentences before the Constitutional Court. In the case of a positive outcome to the proceedings before the Constitutional Court, the applicant would have a possibility to seek redress for his loss on the basis of a civil claim under Article 417 1) § 1 of the Civil Code.
17. In support of their statement, the Government produced a copy of a judgment of 2015 delivered in another case in which an applicant had successfully sued the State Treasury under Article 4171 § 1 of the Civil Code, having firstly obtained a Constitutional Court judgment on 13 November 2012 (case no. K 2/12) finding unconstitutionality of a statutory provision which had served as a basis for a decision in that applicant’s case.
18. The Government further submitted detailed data about the amounts received by the applicant for his work and deductions made throughout the whole period of his employment as a prisoner.
19. As regards the merits of the case, in the Government’s view the applicant was entitled to remuneration for his work, which means that he had possessions protected by Article 1 of Protocol No. 1. That provision was thus applicable to the present case. The Government maintained, however, that the deductions applied in the applicant’s case amounted to “control of use of property” which had legal basis in the domestic law and served a legitimate aim.
20. The applicant’s lawyer submitted that the remedies relied on by the Government, namely the penitentiary complaint and civil claim for compensation, cannot be considered effective in the present case since the deductions applied to the applicant’s wages had basis in the domestic law, which means that they were not unlawful.
21. As regards the constitutional complaint, the lawyer submitted that it was not available to the applicant because he had serious difficulties finding a lawyer, and in the proceedings before the Constitutional Court the relevant procedural provisions required compulsory representation by a lawyer.
B. The Court’s assessment
22. In these circumstances the Court has to examine whether the applicant had at his disposal an effective domestic remedy which he should have exhausted before lodging his application.
23. In this context the Court reiterates that it is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to rely on the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Łatak v. Poland (dec.), no. 520070/08, § 75, 12 October 2010; Demopoulos and Others v. Turkey (dec.) [GC], no. 46113/99, § 69, ECHR 2010; and Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).
24. The Court further reiterates that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Demopoulos and Others, cited above, § 70). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Sejdovic v. Italy [CG], no. 56581/00, § 45, ECHR 2006-II; SardinasAlbo v. Italy (dec.), no. 56271/00, ECHR 2004-I; and Akdivar and Others, cited above, § 71).
25. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address allegations of violations of a Convention right and, where appropriate, to afford redress before such an allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, allegations of a violation of a Convention right, it is that remedy which should be used. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give.
26. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others v. Serbia, nos. 17153/11 and 29 others, § 74, 28 August 2012).
27. In principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (Demopoulos and Others, cited above, § 87, and Łatak v. Poland (dec.) no. 52070/08, 12 October 2010). Subsequent changes in the remedy’s effectiveness are not relevant for this assessment.
28. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others, cited above, § 68; Demopoulos and Others, cited above, § 69; McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010; and Vučković and Others, cited above, § 77).
29. The Court notes that the respondent Government indicated the constitutional complaint as an effective remedy in the instant case, opening the way for seeking redress on the basis of a civil claim under Article 4171 § 1 of the Civil Code. In support of their statement, the Government produced a copy of a civil court judgment issued in 2015 granting compensation to an applicant on the basis of the Constitutional Court’s judgment of 2012. The Court notes that, in the instant case, the deduction applied to the applicant’s wages was made in direct application of the 1997 Code. There is no argument as regards the alleged wrong interpretation or wrong application of that provision (see Szott-Medyńska and others v. Poland (dec.) no. 47414/09). In the Court’s view the Government satisfied the burden imposed on it.
30. The applicant submitted that the constitutional complaint was not available to him because the relevant procedure required compulsory representation and he had serious difficulties in finding a lawyer. The Court is not persuaded by that argument. It notes in this respect that the applicant failed to show that he had tried to find a lawyer or have one appointed for him under the legal aid scheme.
31. The Court further observes that the applicant did not argue that, at the material time, the constitutional complaint would have been inadmissible in the circumstances of his case or not capable of remedying the impugned state of affairs.
32. In sum, bearing in mind the principle according to which the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see above), the Court concludes that, at the material time, the applicant did not provide the Polish authorities with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 43, ECHR 2006‑II). The objection that the relevant “effective” domestic remedy was not used by the applicant in the instant case is therefore well-founded.
33. Consequently, the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 in fine of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 October 2018.
RenataDegener AlešPejchal
DeputyRegistrar President
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