FOURTH SECTION
DECISION
Application no. 32420/07
M.S.-D. and I.D.
against Poland
The European Court of Human Rights (Fourth Section), sitting on 22 October 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens‑Passos, Section Registrar,
Having regard to the above application lodged on 26 July 2007,
Having regard to the declaration submitted by the respondent Government on 11 February 2013 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:
FACTS AND PROCEDURE
1. The applicants, Ms M.S.-D. and Ms I.D., are Polish nationals, who were born in 1973 and 2006 respectively and live in Kraków. They were represented before the Court by Mr M. Grzybowski, a lawyer practising in Katowice.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Mrs J. Chrzanowska.
3. The first applicant complains essentially under Article 3 of the Convention about her arrest at a very late stage of pregnancy, interrogation lasting the whole day and subsequent transport overnight to the detention center as well as interrogation by officers while being in labour. Additionally, she complains that she was not permitted to see her husband during the whole period of detention, even after their first baby was born. The first applicant complains also under Article 5 § 4 that the proceedings for judicial review of the legality of her detention were not speedy. Both applicants complain under Article 8 that their right to respect for family life was violated as they were separated from their husband and father respectively.
4. The part of the application concerning Articles 3, 5 § 1 (c), 5 § 4 and 8 had been communicated to the Government.
THE LAW
5. The applicants complained about inhuman and degrading treatment, lawfulness of detention, speed of examining the lawfulness of detention and right to respect for family life. They relied on Articles 3, 5 § 1 (c), 5 § 4 and 8 of the Convention.
6. After the failure of attempts to reach a friendly settlement, by a letter of 11 February 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
7. The declaration provided as follows:
“(...) I wish to inform you that the Government decided to submit the unilateral declaration.
That being the case, the Government hereby wish to express - by way of the unilateral declaration - their acknowledgement of the violation of Article 3 of the Convention taking into consideration procedural protection from torture and inhuman or degrading treatment and on account of the first applicant’s manner of arrest and detention (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VI. p. 2699. § 22: Z and Others v. the United Kingdom IGC], no. 29392/95, 73‑75. ECHR 2001‑V: E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002). Also the Government give recognition to the violation of Article 5§ l (c) concerning the fact of first applicant’s detention in connection with its factual necessity for the proper conduct of investigation and violation of Article 5 § 4 regarding to insufficiency in providing a prompt access to judicial proceedings to determine the legality of first applicant’s detention (see Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 19‑20, § 45; Baranowski v. Poland, judgment of 28 March 2000 no. 28358/95, §§ 50‑52 and 68‑70). Further, with respect to both applicants and their right to respect for family life, the Government wish to acknowledge the violation of Article 8 of the Convention.
Consequently, the Government are prepared to pay to the applicants the total sum of PLN 40,000 (forty thousand Polish zlotys) 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 on 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 a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.
The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
Article 37 of the Convention provides that the Court may decide to strike an application out of its list of cases at any stage of the proceedings where the circumstances lead to one of the conclusions specified under (a), (b) or (c).
Pursuant to Article 37 § 1 (c), to which the Government is referring in their declaration, the Court may strike a case out for any reason established by the Court if it is no longer justified to continue the examination of the application.
The Government take notice of criteria emerging from the Court’s case‑law as to when it is appropriate to decide to strike out the application with reference to Article 37 § 1 (c) on the basis of the unilateral declaration made by the Government even if the applicant wishes the examination of the case to be continue (see Tahsin Acar v. Turkey [GC] (preliminary objection), no. 26307/95, §§ 75‑77, ECHR 2003‑VI; and also Haran v. Turkey, no. 25754/94, judgment of 26 March 2002, Akman v. Turkey (striking out), no. 37453/97, ECHR 2001‑VI, Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005, Aleksentseva and 28 Others v. Russia (restoring), no. 75025/01, 26 March 2006, Van Houten v. the Netherlands (striking out), no. 25149/03, 29 September 2005, Denu v. the Netherlands, no. 32321/03 (striking out), 4 May 2006).
In the first place the Court requires that the facts should not be in dispute between the parties. In this regard the Government agree with the statement of facts surrounding the present application as it was prepared by the Registry of the Court and enclosed to the letter informing the Government that the above application is pending before the Court.
Secondly, the Court demands an admission of responsibility or liability for the alleged violations of the Convention. The Government’s unilateral declaration contains an unconditional acknowledgement of the violation of Articles 3, 5 § 1 (c), 5 § 4 and 8 of the Convention in respect of the first applicant, as well as an unconditional acknowledgement of the violation of Article 8 of the Convention in respect of the second applicant.
Eventually, the Court takes into consideration the manner in which the Government intend to provide redress to the applicants. As transpires from the Government’s unilateral declaration the Government accepted paying to the applicants the total sum of PLN 40,000 (forty thousand Polish zlotys) in the event of the Court’s striking the case out of its list.
Consequently, the Government are of the opinion that the circumstances of the above application may lead to the conclusion set out in sub‑paragraph (c) of article 37 § 1 of the Convention, thus that it is no longer justified to continue the examination of the application in the light of the Government’s unilateral declaration.”
8. By a letter of 8 March 2013, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the ground that the Government did not undertake to adopt necessary measures to ensure respect for human rights and to avoid the violation of the Convention in the future. Especially, the Government did not take appropriate steps against persons responsible for the violation.
9. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application 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”.
10. 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.
11. 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] (preliminary objection), no. 26307/95, §§ 75‑77, ECHR 2003‑VI).
12. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).
13. 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).
14. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
15. Referring to Article 5 of the Convention, the second applicant complains also that she was unlawfully detained.
Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.
It follows that this part of the application is manifestly ill‑founded and 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 under Articles 3, 5 § 1 (c), 5 § 4 and 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy