FIRST SECTION

DECISION

Application no. 63821/16 Piotr WIERZBICKI against Poland

The European Court of Human Rights (First Section), sitting on 17 November 2020 as a Committee composed of:

Alena Poláčková , President, Péter Paczolay , Gilberto Felici, judges,

and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 20 October 2016,

Having regard to the declaration submitted by the respondent Government on 30 September 2019 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 Piotr Wierzbicki , is a Polish national who was born in 1982 and lives in Szczecin. He was represented before the Court by Ms K. Czostek , residing in Warsaw.

2 . The Polish Government (“the Government”) were represented by their Agent Mr J. Sobczak , of the Ministry of Foreign Affairs.

3 . The applicant complained under Articles 3 and 8 of the Convention about the manner in which strip searches had been carried out by the prison guards. In particular he alleged that the video of his strip searches had been transmitted to the guards ’ duty room where it could have been viewed by other persons.

4 . The application had been communicated to the Government .

THE LAW

5 . The applicant complained of the monitoring of strip searches to which he had been subjected while detained in Goleniów Prison. He relied on Articles 3 and 8 of the Convention.

6 . However, the Court, being the master of the characterisation to be given in law to the facts of a case (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012, and Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013), considers that the above ‑ mentioned complaint should be examined solely under Article 8 of the Convention (see SzafraÅ„ski v. Poland , no. 17249/12, §§ 27-28, 15 December 2015). Article 8 reads, in so far as relevant:

“1. Everyone has the right to respect for his private ... 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.”

7 . After the failure of attempts to reach a friendly settlement, by a letter of 30 September 2019 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.

8 . The declaration provided as follows:

“The Government hereby wish to express – by way of the unilateral declaration ‑ their acknowledgment of violation of Article 8 § 1 of the Convention due to an interference by the public authority with the exercise of the applicant ’ s right to respect for his private life. Such interference did not meet the test of proportionality. Simultaneously, they declare that they are ready to pay the applicant the sum of the EUR 1,800 (one thousand eight hundred euros) 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 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, as a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points...”

9 . By a letter of 7 November 2019, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

10 . The Court re iterates 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”.

11 . 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.

12 . 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).

13 . The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about prison conditions and the right to r espect for private life (see, mutatis mutandis , Belevitskiy v. Russia , no. 72967/01, §§ 73-79, 1 March 2007; ValaÅ¡inas v. Lithuania , no. 44558/98, § 104, ECHR 2001 ‑ VIII; and SzafraÅ„ski v. Poland , cited above) .

14 . 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)).

15 . Moreover, in the 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 ).

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 8 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 10 December 2020 .

Renata Degener Alena Poláčková Deputy Registrar President