Last Updated on April 24, 2019 by LawEuro
FIRST SECTION
DECISION
Application no.74409/16
Grzegorz DOLATA
against Poland
The European Court of Human Rights (First Section), sitting on 5 March 2019 as a Chamber composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 30 November 2016,
Having regard to the declaration submitted by the respondent Government on 26 March 2018 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
1. The applicant, Mr Grzegorz Dolata, is a Polish national, who was born in 1965 and lives in Mińsk Mazowiecki. He was represented before the Court by Mr M. Skwarzyński, a lawyer practising in Lublin.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
3. The applicant complained that his conviction for defamation constituted an unjustified and disproportionate interference with his freedom of expression under Article 10 of the Convention.
The application had been communicated to the Government.
THE LAW
4. The applicant complained that his conviction for defamation, by virtue of the judgment of Świebodzin District Court of 19 January 2016, upheld by the ZielonaGóra Regional Court on 30 May 2016, constituted an unjustified and disproportionate interference with his freedom of expression. He relied on Article 10 of the Convention.
5. After the failure of attempts to reach a friendly settlement, by a letter of 26 March 2018 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.
6. The declaration provided as follows:
“…The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of a violation of Article 10 of the Convention (in the context of the applicant’s conviction for defamation and the interference with his freedom of expression).
Simultaneously, the Government declare that they are ready to pay the applicant the sum of EUR 4,500 which they consider to be reasonable in the light of the Court’s case-law in similar cases. 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.
…
… [t]he Government’s unilateral declaration contains an unconditional acknowledgement that in the present case there was a violation of their obligations arising under Article 10 of the Convention with respect to the applicant’s freedom of expression.
… As transpires from the Government’s unilateral declaration, they accepted paying to the applicant the sum of EUR 4,500 as just satisfaction 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.”
7. By a letter received on 9 November 2018 (dated 30 April 2018), the applicant’s representative indicated that the applicant was not satisfied with the terms of the unilateral declaration on the ground that he feared that the Court’s decision striking a case out of its list of cases would not constitute grounds under the applicable domestic law for the re-opening of his criminal case for defamation.
8. 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”.
9. 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.
10. To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the TahsinAcar 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).
11. The Court notes that the Government’s unilateral declaration, in addition to the obligation to pay compensation to the applicant – which sum the Court finds consistent with its Article 41 awards in similar cases (see, Sroka v. Poland (strike-out), no. 42801/07, 6 March 2012; Szczerbiak v. Poland (strike-out), no. 23665/09, 15 November 2011 and Kopeć v. Poland (strike-out), no. 34681/10, 19 November 2013) – contains an unconditional acknowledgement that the criminal conviction of the applicant for making statements that had defamed W.R. between 9 June 2012 and 26 February 2013 was a violation of Article 10 of the Convention.
12. The Court further notes that Article 540 § 3 of the Polish Code of Criminal Procedure allows for the re-opening of domestic proceedings if “such a need results from a decision (rozstrzygnięcie) of an international body acting on the basis of an international agreement ratified by the Republic of Poland”. This provision does not expressly limit the possibility of re-opening domestic proceedings to “judgments” (compare and contrast Hakimi v. Belgium, no. 665/08, 29 June 2010; and Kessler v. Switzerland, no. 10577/04, 25 January 2011).
13. With that in mind, the Court understands that the applicant, if he so requests, can seek the re-opening of the domestic proceedings. It notes in this connection that the applicant, following his unjustified prosecution and conviction, has a criminal record with all the implications which that has for his professional and private life. There is also the matter of the fine imposed on him.
14. In light of the above considerations, and in particular given the fact that – according to the wording of the relevant provisions of the Polish Code of Criminal Proceedings – the applicant may seek re-opening of the domestic proceedings on the basis of the Court’s decision, 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, seeSroka, cited above).
15. The Court considers that the amount proposed in the Government’s unilateral declaration should be converted into Polish zlotys at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, 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.
16. 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).
17. 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 10 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 28 March 2019.
Renata Degener KsenijaTurković
DeputyRegistrar President
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