FOURTH SECTION
DECISION
Application no. 38204/02
by Anatoly IVANOV
against Poland
The European Court of Human Rights (Fourth Section), sitting on 23 October 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 7 October 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the formal declarations accepting a friendly settlement of the case.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Anatoly Ivanov, is an Ukrainian national who was born in 1959 and lives in Lviv, Ukraine. 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.
I. Criminal proceedings against the applicant
On 28 August 1995 the applicant was detained on charges of forgery and aiding and abetting. On 1 September 1995 the Częstochowa Regional Prosecutor (Prokurator Wojewódzki) ordered his detention on remand. On 27 August 1996 the Częstochowa Regional Prosecutor ordered the release of the applicant from custody under police supervision. He also prohibited the applicant from leaving the territory of Poland.
On 19 October 1998 the investigation in the applicant’s case was terminated and a bill of indictment was lodged with the Lubliniec District Court (Sąd Rejonowy).
On 26 April 2000 the applicant asked the court to waive the prohibition on leaving the territory of Poland. He submitted that the investigation in his case had lasted 3 years, and that the trial had already lasted one and a half years and was still pending. He could not work and therefore help to support his family.
On 21 June 2000 the Lubliniec District Court gave judgment and convicted the applicant as charged. The applicant appealed.
On 23 June 2000 and 9 October 2000 the applicant asked the Częstochowa Regional Court to lift the ban of 27 August 1996. He further claimed that as he did not have an identity document he could not benefit from medical care or any kind of social assistance.
On 1 February 2001 the Częstochowa Regional Court gave judgment. It quashed the first-instance conviction and remitted the case to the District Court.
On 24 May 2001 the Lubliniec District Court again dismissed the applicant’s motion to lift the prohibition on leaving Poland. The court stressed that the applicant was a Ukrainian national and the only way to secure the proper conduct of the proceedings was to prohibit him from leaving Poland.
On 10 December 2002 the Lubliniec District Court lifted the prohibition on leaving Poland.
On 30 June 2003 the Lubliniec District Court gave judgment and convicted the applicant as charged. It sentenced the applicant to one year and six months’ imprisonment.
On 17 December 2003 the Gliwice Regional Court upheld the first‑instance judgment.
It appears that the applicant did not lodge a cassation appeal.
2. Proceedings concerning the applicant’s identity document
On an unknown date in 1995 the applicant lost his passport. On 23 September 1996 the Częstochowa Regional Prosecutor issued a certificate stating that the applicant did not have any identity documents.
On 11 June 1997 the applicant was informed by the Ukrainian Consulate in Warsaw that he could obtain a new passport in Ukraine. The consulate could only issue a special certificate allowing him to cross the border.
On 16 September 1998 the Częstochowa Governor’s Office refused to issue a travel document to the applicant (dokument podróży). It held that pursuant to the prosecutor’s decision of 27 August 1996 the applicant was prohibited from leaving Poland. Upon the applicant’s appeal, on 28 November 1998 the Minister of Interior (Minister Spraw Wewnętrznych i Administracji) upheld the first‑instance decision.
On 9 February 1999 the applicant applied to the Silesia Governor to be granted a temporary residence permit in Poland. He stressed that since 1996 he was prohibited from leaving Poland, he did not have any identity documents and therefore his rights were seriously restricted. On 17 June 1999 the Governor refused his request finding that there were no grounds for granting him a residence permit. On 4 October 1999 the Minister of Interior upheld the first‑instance decision. On 8 September 1999 the Supreme Administrative Court (Naczelny Sąd Administracyjny) rejected the applicant’s further appeal against this decision, as inadmissible in law.
3. Proceedings relating to social assistance
On 16 March 1998 the Częstochowa Social Assistance Centre (Miejski Ośrodek Pomocy Społecznej) refused to grant the applicant a special allowance (zasiłek celowy) on the ground that only Polish citizens and persons in possession of a Polish residence permit were entitled to receive it. On 6 May 1998 the Częstochowa Self‑Government Board of Appeal (Samorządowe Kolegium Odwoławcze) upheld this decision. On 3 October 2000 the Supreme Administrative Court dismissed the applicant’s further appeal.
In 2001 the applicant again applied to the Lubliniec Social Assistance Centre for the special allowance. He claimed that he did not have a work permit nor any identity documents. Therefore, he was not able to work and to support himself. On 2 April 2001 the Centre refused his request.
COMPLAINTS
1. The applicant asserted under Article 3 that as a result of the travel ban imposed on him he had been subjected to inhuman and degrading treatment contrary to Article 3 of the Convention.
2. The applicant alleged a breach of his right to respect for family and private life, as guaranteed under Article 8 of the Convention. In particular, he stressed that he had not been allowed to visit his terminally‑ill mother in Ukraine, who had died without seeing him. In addition, during the time the ban had been in force, he had not had any contact with his children.
3. He further complained under Article 13 of the Convention that he had not had enough time to look through the trial files.
4. The applicant also submitted under Article 14 that he had been discriminated against on the ground of his nationality.
5. Lastly, he complained under Article 2 § 2 of Protocol No. 4 about a restriction on his right to leave Poland. In his view, the prohibition had been unlawful, unjustified and arbitrary.
THE LAW
On 8 June 2007 the Court received the following declaration signed by the Applicant:
“I, Anatoly Ivanov, note that the Government of Poland are prepared to pay me the sum of PLN 16,000 with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, 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 and 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
On 4 September 2007 the Court received the following declaration from the Government:
“I declare that the Government of Poland offer to pay PLN 16,000 to Anatoly Ivanov with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, 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 and 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 period plus three percentage points. The payment will constitute the final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties and considers that the matter has been resolved (Article 37 § 1 (b) 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 examination of the application to be continued. Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy