Last Updated on May 3, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 8938/04
Zbigniew FARMUS
against Poland
The European Court of Human Rights (First Section), sitting on 11 December 2018 as a Chamber composed of:
KsenijaTurković, President,
Krzysztof Wojtyczek,
PauliineKoskelo, judges,
and Renata Degener, DeputySection Registrar,
Having regard to the above application lodged on 24 February 2004,
Having regard to the declaration submitted by the respondent Government on 12 September 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 ZbigniewFarmus, is a Polish national, who was born in 1949 and lives in Warszawa. He was represented before the Court by Mr B. Bąk, a lawyer practising in Legionowo.
The Polish Government (“the Government”) were represented by their Agents, Ms J. Chrzanowska and, subsequently, Mr J. Sobczak, of the Ministry of Foreign Affairs.
2. The applicant complained under Articles 5 § 3, 6 § 1 of the Convention and Article 2 of Protocol No. 4 to the Convention.
The application had been communicated to the Government.
THE LAW
3. The applicant complained about the length of his detention on remand, unfairness of criminal proceedings against him and restrictions on his liberty of movement imposed upon his release from detention. He relied on Articles 5 § 3 and 6 § 1 of the Convention and Article 2 of Protocol No. 4 to the Convention.
4. After the failure of attempts to reach a friendly settlement, by a letter of 12 September 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.
The declaration provided as follows:
“I. THE GOVERNMENT’S UNILATERAL DECLARATION
The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the violations arising from the facts of the preset case which were the object of the Court’s communication. Simultaneously, they declare that they are ready to pay the applicant the sum of EUR 13000 (thirteen thousand euros) which they consider to be reasonable in the light of the individual circumstances of the present case, as well as the Court’s case-law in similar cases (see, among others, Mierzejewski v. Poland, application no. 2916/13, judgment of 04.11.2014; Chojnacki v. Poland, application no. 62076/11, judgment of 20.07.2017 in respect of the breach of Article 5 5 3 of the Convention and Gał v. Poland, application no. 43485/07, decision of 06.09.2011; Kobiz v. Poland, application no. 13571/10, decision of 10.03.2015 in respect of the breach of Article 2 of Protocol no. 4 of the Convention).
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.”
5. By a letter of 15 October 2018, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the sum proposed was inadequate.
6. 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”.
7. 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 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).
8. The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of Convention rights invoked by the applicant (see, for example, De Tommaso v. Italy[GC], no. 43395/09, §§ 110-127, 23 February 2017;Miażdżyk v. Poland, no. 23592/07, §§ 29-42, 24 January 2012; Kauczor v. Poland, no. 45219/06, §§42-47, with further references to the Court’s case-law, 3 February 2009; A. E.v. Poland, no. 14480/04, §§ 46-50, 31 March 2009; and Matyjek v. Poland, no. 38184/03, §§ 55-65, 24 April 2007). 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 application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive 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).
9. 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 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 10 January 2019.
Renata Degener KsenijaTurković
Deputy Section Registrar President
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