Last Updated on April 24, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 46605/13
Paweł Wiesław ŁUCZAJ
against Poland
The European Court of Human Rights (First Section), sitting on 12 February 2019 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 12 July 2013,
Having regard to the declaration submitted by the respondent Government on 17 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 Paweł Wiesław Łuczaj, is Polish national, who was born in 1978 and is detained in Warsaw – Białołęka Detention Centre. He was represented before the Court by Mr J. Brydak, a lawyer practising in Warsaw.
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 under Article 5 § 4 of the Convention about lack of access to the case file during the investigative stage of the proceedings.
4. The application had been communicated to the Government.
THE LAW
5. After the failure of attempts to reach a friendly settlement, by a letter of 17 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.
6. The declaration provided as follows
“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the fact that the principle of equality of arms, as guaranteed by Article 5 § 4 of the Convention, was not respected in the proceedings relating to the imposition and prolongation of the applicant’s pre-trial detention, as it relates to lack of access of the applicant’s lawyer to the investigation files in the initial phase of the proceedings (…).
Simultaneously, the Government declare that they are ready to pay the applicant the sum of PLN 5,000 (five thousand Polish zlotys) to cover any pecuniary and non-pecuniary damage as well as costs and expenses plus any tax that may be chargeable to the applicant. The Government consider the above sum to be reasonable in the light of the Court’s case-law (…). It will be payable within three months from the date of notification of the final ruling taken by the Court pursuant to Article 37 § 1 of the Convention. 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.
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.”
7. By a letter of 24 October 2018 the applicant indicated that he was not satisfied with the terms of the unilateral declaration, since the amount proposed had only partially covered the costs of representation.
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 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).
11. The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of Article 5 § 4 (see, for example (Młodzieniak v. Poland (dec.), case no. 28592/03, 21 September 2010), Jankowski v. Poland (dec.), no. 25049/12, 05 December 2013).
12. 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)).
13. 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).
14. 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).
15. 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 5 § 4 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 14 March 2019.
Renata Degener Ksenija Turković
Deputy Registrar President
Leave a Reply