FIFTH SECTION
DECISION
Application no. 11642/11
Aleksander SOKOLOW
against Germany
The European Court of Human Rights (Fifth Section), sitting on 21 February 2017 as a Committee composed of:
Faris Vehabović, President,
Carlo Ranzoni,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 17 February 2011,
Having regard to the declaration submitted by the respondent Government on 4 July 2016 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Aleksander Sokolow, is a German national, who was born in 1946 and lives in Bitburg. He was represented before the Court by Mr F. Obst, a lawyer practising in Koblenz.
The German Government (“the Government”) were represented by one of their Agents, Mr H. J. Behrens, of the Federal Ministry of Justice and Consumer Protection.
The European Prison Litigation Network, who were granted leave to intervene in the written procedure under Article 36 § 2 of the Convention, were represented by Mr H. de Suremain, General Coordinator.
The applicant complained, in particular, under Article 8 of the Convention about the domestic courts’ refusal to provide him with a copy of his whole prison medical record.
The applicant’s complaint under Article 8 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE LAW
The applicant complained about the failure of the domestic courts to secure him effective access to information concerning his treatment in the prison hospital. He relied on Article 8 of the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 4 July 2016 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 Federal Government therefore wishes to acknowledge – by way of a unilateral declaration – that the applicant has suffered a violation of his right to respect for his private life arising from Article 8 of the Convention as a result of the decisions of the domestic courts on his application for full access of his health file.
If the Court strikes this case from its list, the Federal Government is willing to accept a claim for compensation in the amount of EUR 4,500. This sum of EUR 4,500 would be deemed to settle all claims on the part of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany and the Land of Rhineland-Palatinate, including in particular compensation for non-pecuniary damage, costs and expenses.
The amount of EUR 4,500 shall be payable within three months of the Court’s decision to strike the case out of its list becoming final. (...)
The Federal Government therefore requests that this Application be struck out of the Court’s list of cases pursuant to Article 37 (1) c) of the Convention. (...)”
By a letter of 12 September 2016, the applicant referred to Article 37 § 1 in fine and indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the compensation offered was too low.
The Court reiterates 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”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
The Court has established in a number of cases its practice concerning complaints about the violation of Article 8 of the Convention by non-compliance of the respondent State with its positive obligation to provide effective access to relevant documents concerning a person’s health (see, with further references, K.H. and Others v. Slovakia, no. 32881/04, § 46, ECHR 2009 (extracts)).
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 the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear 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 the application (Article 37 § 1 in fine).
The Court considers that in the event of failure to settle the above amount within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the Convention, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
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).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 8 of the Convention 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 accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 16 March 2017.
Anne-Marie DouginFaris Vehabović
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy