FIRST SECTION
\nDECISION<\/p>\n
Application no.74409\/16
\nGrzegorz DOLATA
\nagainst Poland<\/p>\n
The European Court of Human Rights (First Section), sitting on 5 March 2019 as a Chamber composed of:<\/p>\n
Ksenija Turkovi\u0107, President,
\nKrzysztof Wojtyczek,
\nArmen Harutyunyan, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 30 November 2016,<\/p>\n
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\u2019s reply to that declaration,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
FACTS AND PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Grzegorz Dolata, is a Polish national, who was born in 1965 and lives in Mi\u0144sk Mazowiecki. He was represented before the Court by Mr M. Skwarzy\u0144ski, a lawyer practising in Lublin.<\/p>\n 2.\u00a0\u00a0The Polish Government (\u201cthe Government\u201d) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.<\/p>\n 3.\u00a0\u00a0The applicant complained that his conviction for defamation constituted an unjustified and disproportionate interference with his freedom of expression under Article 10 of the Convention.<\/p>\n The application had been communicated to the Government.<\/p>\n THE LAW<\/strong><\/p>\n 4.\u00a0\u00a0The applicant complained that his conviction for defamation, by virtue of the judgment of \u015awiebodzin District Court of 19 January 2016, upheld by the ZielonaG\u00f3ra 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.<\/p>\n 5.\u00a0\u00a0After 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.<\/p>\n 6.\u00a0\u00a0The declaration provided as follows:<\/p>\n \u201c…The Government hereby wish to express \u2013 by way of the unilateral declaration \u2013 their acknowledgement of a violation of Article 10 of the Convention (in the context of the applicant\u2019s conviction for defamation and the interference with his freedom of expression).<\/p>\n 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\u2019s 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 \u00a7 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.<\/p>\n …<\/p>\n … [t]he Government\u2019s 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\u2019s freedom of expression.<\/p>\n … As transpires from the Government\u2019s unilateral declaration, they accepted paying to the applicant the sum of EUR 4,500 as just satisfaction in the event of the Court\u2019s striking the case out of its list.<\/p>\n …<\/p>\n 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 \u00a7\u00a01 of the Convention, thus that it is no longer justified to continue the examination of the application in the light of the Government\u2019s unilateral declaration.\u201d<\/p>\n 7.\u00a0\u00a0By a letter received on 9 November 2018 (dated 30 April 2018), the applicant\u2019s representative indicated that the applicant was not satisfied with the terms of the unilateral declaration on the ground that he feared that the Court\u2019s 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.<\/p>\n 8.\u00a0\u00a0The Court reiterates that Article\u00a037 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\u00a037\u00a0\u00a7\u00a01\u00a0(c) enables the Court in particular to strike a case out of its list if:<\/p>\n \u201cfor any other reason established by the Court, it is no longer justified to continue the examination of the application\u201d.<\/p>\n 9.\u00a0\u00a0It also reiterates that in certain circumstances, it may strike out an application under Article\u00a037\u00a0\u00a7\u00a01\u00a0(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.<\/p>\n 10.\u00a0\u00a0To 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.\u00a026307\/95, \u00a7\u00a7 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no.\u00a011602\/02, 26 June 2007; and Sulwi\u0144ska v. Poland (dec.), no.\u00a028953\/03, 18\u00a0September 2007).<\/p>\n 11.\u00a0\u00a0The Court notes that the Government\u2019s unilateral declaration, in addition to the obligation to pay compensation to the applicant \u2013 which sum the Court finds consistent with its Article 41 awards in similar cases (see,\u00a0Sroka v. Poland (strike-out), no. 42801\/07, 6 March 2012; Szczerbiak v.\u00a0Poland (strike-out), no. 23665\/09, 15 November 2011 and Kope\u0107 v.\u00a0Poland (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.<\/p>\n 12.\u00a0\u00a0The Court further notes that Article 540 \u00a7 3 of the Polish Code of Criminal Procedure allows for the re-opening of domestic proceedings if \u201csuch a need results from a decision (rozstrzygni\u0119cie) of an international body acting on the basis of an international agreement ratified by the Republic of Poland\u201d. This provision does not expressly limit the possibility of re-opening domestic proceedings to \u201cjudgments\u201d (compare and contrast Hakimi v. Belgium, no. 665\/08, 29 June 2010; and Kessler v. Switzerland, no.\u00a010577\/04, 25 January 2011).<\/p>\n 13.\u00a0\u00a0With 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.<\/p>\n 14.\u00a0\u00a0In light of the above considerations, and in particular given the fact that \u2013 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\u2019s 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 \u00a7 1 in fine, seeSroka, cited above).<\/p>\n 15.\u00a0\u00a0The Court considers that the amount proposed in the Government\u2019s 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\u2019s decision issued in accordance with Article\u00a037 \u00a7 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.<\/p>\n 16.\u00a0\u00a0Finally, 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 \u00a7 2 of the Convention (Josipovi\u0107 v. Serbia (dec.), no. 18369\/07, 4 March 2008).<\/p>\n 17.\u00a0\u00a0In view of the above, it is appropriate to strike the case out of the list.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Takes note of the terms of the respondent Government\u2019s declaration under Article 10 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;<\/p>\n Decides to strike the application out of its list of cases in accordance with Article\u00a037\u00a0\u00a7\u00a01\u00a0(c) of the Convention.<\/p>\n Done in English and notified in writing on 28 March 2019.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 KsenijaTurkovi\u0107
\nDeputyRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n