FOURTH SECTION

DECISION

Application no. 39507/04 by Sebastian GUSTAW against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 November 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 15 October 2004,

Having regard to the declaration submitted by the respondent Government on 26 August 2008 req uesting 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:

THE FACTS

The applicant, Mr Sebastian Gustaw, is a Polish national who was born in 1977 and lives in Strzelin. The Polish Government (“the Government”) were represented by their Agent, Mr J.Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by th e parties, may be summarised as follows.

On 15 March 2004 the applicant was informed that his father had died on 14 March 2004 and that the funeral would take place on 17 March 2004. The applicant immediately made an application for leave to attend the funeral of his father.

On 16 March 2004 the Penitentiary Judge of the Wrocław Regional Court refused his request. The judge considered that:

“ There are no especially important conditions, as speci fied in Article 141a § 1 of the Code of Execution of Criminal Sentences. In ad dition, given the nature of the offence of which he was convicted and a long sentence, such leave would have been possible only under police escort. From the information provided by the Oleśnica prison, it appears that it would not be possible to provide transport and a police escort to the convict [the applicant] on 17 March 2004. ”

The applicant appealed.

On 30 April 2004 the Wrocław Regional Court dismissed his appeal. The court held that there had been no breach of law as regards the decision of 16 March 2004. Furthermore, the Penitentiary Judge had not overstepped his margin of appreciation since the fact that no police escort had been available for that day was an objective circumstance justifying the refusal of the applicant ’ s motion.

B. Relevant domestic law and practice

Article 141a § 1 of the 1997 Code of Execution of Criminal Sentences reads as follows:

“In cases which are especially important for a convicted person, he or she may be granted permission to leave prison for a period not exceeding 5 days, if necessary under the escort of prison officers or other responsible persons (osoby godnej zaufania).”

COMPLAINTS

1. The applicant complain ed under Article s 7 and 8 of the Convention that the refusal to attend his father ’ s funeral had amounted to a violation of his private and family life.

2. He further invoked Article 13 alleging that his application for leave and then his appeal against the refusal were examined by the same court –the Wrocław Regional Court .

3. Lastly, he alleged a breach of Article 14, since the Regional Court in its decision of 16 March 2004 had referred to the nature of offence with which the applicant was charged.

THE LAW

A. Family life

The applicant complained about a violation of his right to respect for his private and family life. He relied inter alia on Article 8 of the Convention which, in so far as relevant, provides as follows:

“1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

By letter dated 13 August 2008 the Governm ent informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the applicat ion. They further requested the Court to strike out th is part of the applica tion in accordance with Article 37 of the Convention.

The declaration provided as follows:

“(...) the Government hereby wish to express – by way of a unilateral declaration ‑ its acknowledgement of the fact that the applicant ’ s right to respect his family life guaranteed by Article 8 of the Convention was restricted in connection with the refusal to allow the applicant to attend the funeral of his father.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of EUR 1,000 which they consider to be reasonable in the light of the Court ’ s case law.

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from 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 for the Protection of Human Rights and Fundamental Freedoms. 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 would respectfully suggest that the above declaration be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

(...)”

In a letter of 8 September 2008 the applicant expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably low .

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof out of its list of cases where the c ircumstances 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 recalls that in certain circ umstances, it may strike out an application or part thereof under Arti cle 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 will examine carefully the declaration 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).

The Court notes that it already had occasion to examine a similar complaint in a case against Poland ( see, Ploski v. Poland , no. 26761/95, judgment of 12 November 2002 ).

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 th is part of the application (Article 37 § 1(c) ) .

Moreover, in light of the above considerations, and in particular given the case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protoc ols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

B. Remaining complaints

The applicant further complained under Article 13 that his application for leave and then his appeal against the refusal were examined by the same court – the Wrocław Regional Court . Lastly, he alleged under Article 14 that the Regional Court in its decision of 16 March 2004 had referred to the nature of the offence with which the applicant was charged.

The Court has examined the remainder of the complaint s. H aving regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the facts of the case do not disclose any appearance of a violation of the above-mentioned pro visions. It follows that these complaints are ma nifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration under Article 8 o f the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its l ist of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the complaint under Article 8 of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President