FOURTH SECTION
DECISION
Application no. 43485/07
by Maria and Sabina GAŁ
against Poland
The European Court of Human Rights (Fourth Section), sitting on 6 September 2011 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 25 September 2007,
Having regard to the declaration submitted by the respondent Government on 1 December 2010 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Maria and Sabina Gał, are Polish nationals who were born in 1965 and 1996 respectively and live in Leśnica. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In January 2006 the first applicant applied to the Canadian Embassy in Warsaw for a Canadian visa for herself and her daughter (the second applicant). She submits that the passports were subsequently seized by the Canadian Embassy.
On 23 March 2006 the first applicant asked the Embassy to return the passports to her.
On 7 June 2006 the police officer in charge of investigating a case of alleged bribery considered the applicants’ passports to be evidence in the proceedings. The decision provided for the possibility to appeal. However, the first applicant submits that she was not informed about this decision and it was served on her only in October 2007.
On 19 June 2006 the Warsaw District Prosecutor, in the context of an investigation into alleged bribery amongst the Canadian Embassy staff, ordered the first applicant to hand in all documents relating to the procedure for obtaining a Canadian visa.
On 29 June 2006 the first applicant asked the Ministry of Foreign Affairs for help in recovering the passports from the Canadian Embassy. In reply, on 17 July 2006 she was informed that the passports had been sent to the Warsaw City Police Headquarters (Komenda stołeczna).
On 6 July 2006 the applicants’ flat was searched and the first applicant was questioned by the police. She submits that she was not informed about any charges against her. On 9 August 2006 the first applicant filed a complaint about the actions taken by the police.
On 9 January 2007 the Warsaw District Prosecutor ordered the first applicant’s arrest. She was charged with bribery. On 11 January 2007 at 6 a.m. she was arrested by the police at her home in Bukowina Tatrzańska and transported to Warsaw, 500 km away. She was also served with the arrest warrant.
The following day she was informed about the charges against her and interviewed by the prosecutor who gave a decision ordering the seizure of her passport (which had been in the possession of the Warsaw Prosecution Services since June 2006) and prohibited her from leaving the country.
The first applicant appealed against both decisions on 15 January 2007.
On 19 January 2007 she was informed about the charges against her: offering 14,000 USD to an unidentified employee of the Canadian Embassy in Warsaw in exchange for entry visas for herself and her daughter. The police gave the following reasons:
“The evidence collected in the present case indicates the probability that the suspect [the applicant] committed the offence in question and also that the charge is reasonable.”
The first applicant’s appeal against her arrest was dismissed on 27 February 2007.
On 24 May 2007 the second applicant’s passport was returned to her.
On 30 July 2007 she complained to the Warsaw Regional Prosecutor that her appeal against the imposition of preventive measures (prohibition on leaving the country) had not yet been examined.
The first applicant’s appeal against the decision to impose the preventive measures was examined only on 3 September 2007. On that date the Warsaw District Court lifted the preventive measures. The court considered that there was no evidence in support of the charges against the first applicant.
On 11 September 2007 the first applicant asked the Warsaw District Prosecutor to return her passport. It was finally returned to her on 9 October 2007.
On 31 May 2008 the Warsaw District Prosecutor discontinued the criminal proceedings against the first applicant as regards the charges of bribery. The prosecutor considered that she had not committed the offence with which she had been charged and that no elements of a criminal offence had been found in her conduct.
B. Relevant domestic law and practice
1. Preventive measures
The 1997 Code of Criminal Procedure defines a prohibition on leaving the country (zakaz opuszczania kraju) as one of its “preventive measures” (środki zapobiegawcze). In addition to a prohibition on leaving the country, those measures are pre-trial detention (tymczasowe aresztowanie), bail (poręczenie majątkowe), police supervision (dozór policji), a guarantee by a responsible person (poręczenie osoby godnej zaufania), a guarantee by a social entity (poręczenie społeczne), and a temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności).
In so far as relevant, Article 277 § 1 of the Code provides:
“A prohibition on leaving the country may be imposed if there is a reasonable risk that an accused will abscond or go into hiding; this prohibition may be combined with withholding the accused’s passport or other travel document or with a prohibition on issuing such a document ...”
2. Length of investigation
On 1 May 2009 the Act of 20 February 2009 came into force. It amended the 2004 Act on complaints about a breach of the right to a trial within a reasonable time in that it allowed complaints not only against excessive length of judicial proceedings but also against the length of investigations. In its section 2 the Act of 20 February 2009 contained a transitional provision according to which a complaint against the excessive length of an investigation was available to those complainants who, as with the applicant in the present case, had lodged an application with the Strasbourg Court alleging a violation of Article 6 of the Convention on account of the unreasonable length of the proceedings, provided that their application to the Court had been lodged in the course of the investigation and that the Court had not yet adopted a decision concerning the admissibility of their case. The complaint under the transitional provisions had to be lodged within six months of the entry into force of the amended provisions, even if the proceedings in question had meanwhile been terminated.
COMPLAINTS
1. The first applicant complained, without relying on any provisions of the Convention, about the restrictions on her and her daughter’s freedom of movement and delays in informing her about the charges against her.
2. She further generally complained that the criminal proceedings against her had been lengthy and there had been delays in examining her appeals.
THE LAW
A. Restrictions on the applicants’ freedom of movement
The applicants complained about the restriction on their right to leave Poland. The first applicant also complained about the delay in informing her about the reasons for the decision imposing preventive measures. They relied on Article 5 § 2 of the Convention and Article 2 § 2 of Protocol No. 4 to the Convention which, in so far as relevant, provide as follows:
Article 5 § 2
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
Article 2 § 2
“Everyone shall be free to leave any country, including his own.”
By letter dated 1 December 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement that the arrest of the applicant Maria Gal did not meet the standard to be informed promptly of the reasons of her arrest and of any charge against her, as required by Article 5 § 2 of the Convention. The Government also admit the restriction on the applicant’s freedom to leave Poland between January 2006 3 September 2007 was not compatible with Article 2 § 2 of Protocol No. 4 to the Convention.
In these circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicants the amount of PLN 18,000 which they consider to be reasonable in the light of the Court’s case law.
The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention of Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at the rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points”
In a letter of 4 January 2011 the applicants expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of one’s right to leave a Contracting State (see, for example, Riener v. Bulgaria, no. 46343/99, 23 May 2006; A. E. v. Poland, no. 4480/04, 31 March 2009; Ivanov v.Poland (dec.), no. 38204/02, 23 October 2007).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. Remaining complaints
The first applicant complained without invoking any provisions of the Convention that the criminal proceedings against her had been lengthy and that her appeals had been examined with delays.
The Court firstly notes that the applicant did not exhaust the remedy available to her under Polish law. In particular she failed to lodge a complaint under the transitional provisions of the 2009 Amendment.
It follows that this part of the application is inadmissible for non-exhaustion and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention
The Court has further examined the remainder of the complaints as submitted by the applicant. However, having regard to 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 breach of the Convention. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the applicants’ complaints under Article 5 § 2 and Article 2 § 2 of Protocol No. 4 to the Convention about restrictions on their freedom of movement, and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaints in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy