FOURTH SECTION
DECISION
Application no. 65709/09
Jan ZAŁUSKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 26 April 2016 as a Committee composed of:
Vincent A. De Gaetano, President,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 2 December 2009,
Having regard to the declaration submitted by the respondent Government on 26 November 2015 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 Jan Załuska, is a Polish national, who was born in 1946 and lives in Warszawa. He was represented before the Court by Mr H. Gibasiewicz, a lawyer practising in Warszawa.
The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.
The applicant complained under Article 6 § 1 about the length of the criminal proceedings against him, under Article 2 of Protocol No. 4 about excessively long imposition of a ban on his leaving the country which restricted his freedom of movement and under Article 8 of the Convention alleging a breach of his right to a family life on the basis of the above mentioned restrictions on his right to leave Poland.
The complaints referred to above had been communicated to the Government.
THE LAW
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the criminal proceedings against him, under Article 2 of Protocol No. 4 to the Convention about the prolonged imposition of a ban on his leaving the country which restricted his freedom of movement and under Article 8 of the Convention alleging a breach of his right to family life on the basis of the above mentioned restrictions on his right to leave Poland.
After the failure of attempts to reach a friendly settlement, by a letter of 26 November 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues 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 in the present case the length of the criminal proceedings against the applicant was not compatible with the “reasonable time” requirement stipulated in Article 6 § 1 of the Convention and also that the restriction of the applicant’s freedom to leave Poland due to its length was in breach of Article 2 of Protocol No. 4 to the Convention. Simultaneously the Government declare that they are ready to pay the applicant the sum of PLN 50,000 (fifty thousand Polish zlotys) which they consider to be reasonable in the light of the Court’s case-law (see, among others, Miażdżyk v. Poland, no. 23592/07, judgment of 24.01.2012; Prescher v. Bulgaria, no. 6767/04, judgment of 7.06.2011, Riener v. Bulgaria, no. 46343/99, judgment of 23.05.2006). 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 period plus three percentage points.
The Government 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 lists of cases, as referred to in Article 37 § 1 (c) of the Convention.
...
With regard to the complaint under Article 8 of the Convention concerning the applicant’s right to respect his family life, the Government are of the opinion that in the light of the Government’s acknowledgement of violation of Article 2 of Protocol No. 4 to the Convention in the present case it is no longer necessary to examine the complaint concerning the same issues under Article 8 of the Convention. In the previous similar cases before the Court it was found unnecessary to scrutinize essentially the same facts and decisions also under Article 8 of the Convention in respect of the prohibition of movement (see, Riener v. Bulgaria, no. 46343/99, § 134, 23 May 2006, A. E. v. Poland, no. 14480/04, §§ 53‑54, 31 March 2009, Prescher v. Bulgaria, no. 6767/04, § 56, 7 June 2011, A.E. v. Poland, no. 14480/04, § 54, 31 March 2009). The Government respectfully suggest not to depart from the former Court’s jurisprudence in this regard.”
By a letter of 11 December 2015, the applicant’s lawyer indicated that the applicant was not satisfied with the terms of the unilateral declaration. He basically repeated the complaints contained in the application, additionally raised the problem of the alleged breach of the principle of presumption of innocence, which was not communicated to the Government and considered that the Court should not accept the Government’s unilateral declaration in particular because the proceedings against the applicant were still pending and the ban on leaving the country was still in force.
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 or part thereof 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 carefully 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, 18 September 2007).
The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of Article 2 of Protocol No. 4 (see, for example, Riener v. Bulgaria, Gochev v. Bulgaria, Miażdżyk v. Poland and Prescher v. Bulgaria, all cited above).
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 the present 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 this application (Article 37 § 1 in fine).
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).
As regards the complaint communicated under Article 8 of the Convention, the Court considers that in view of the Government’s acknowledgement of a violation of Article 2 of Protocol No. 4 to the Convention, it is no longer necessary to examine the facts of the case also under Article 8 of the Convention (see Riener v. Bulgaria, § 134, A. E. v. Poland, §§ 53 and 54 and Prescher v. Bulgaria, no. 6767/04, § 56, all cited above).
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and Article 2 of Protocol No.4 to 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;
Holds that it is no longer necessary to examine separately the present application under Article 8 of the Convention.
Done in English and notified in writing on 19 May 2016.
Fatoş AracıVincent A. De Gaetano
Deputy RegistrarPresident
Full & Egal Universal Law Academy