FIRST SECTION

DECISION

Application no. 43081/18 Joanna Ewa PRZYDATEK against Poland

The European Court of Human Rights (First Section), sitting on 16 June 2020 as a Committee composed of:

Linos-Alexandre Sicilianos, President, Krzysztof Wojtyczek, Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 28 August 2018,

Having regard to the declaration submitted by the respondent Government on 16 August 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, Ms Joanna Ewa Przydatek , is a Polish and Canadian national, who was born in 1963 and lives in Sopot, Poland and Victoria, Canada. She was represented before the Court by Mr P. KÅ‚adoczny , a lawyer with the Helsinki Foundation of Human Rights.

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 8 and 13 of the Convention about the exhumation of her late father ’ s remains, one of the victims of the Smole ń sk plane crash, which had been carried out against her will. She also complained that the prosecutor ’ s decision ordering exhumation had not been susceptible to any form of review.

4 . The application had been communicated to the Government .

THE LAW

5 . The applicant complained about the exhumation of her late father ’ s remains. She relied on Articles 8 and 13 of the Convention.

6 . After the failure of attempts to reach a friendly settlement, by a letter of 16 August 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.

The declaration provided as follows:

“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgment of an interference with the applicants ’ right to private and family life in breach of Article 8 of the Convention. Simultaneously, they declare that they are ready to pay the applicant the sum of EUR 2,000 (two thousand euros) which they consider to be consonant with the proposal made by the Court ’ s Registry and reasonable in the light of the individual circumstances of the present case, not least taking into account the just satisfaction having been awarded to the applicant ’ s mother Ewa Maria Solska by virtue of the Court ’ s judgment of 20 September 2018 in the case of Solska and Rybicka v. Poland (applications nos. 30491/17 and 31083/17). The sum referred to above, which is to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable.

This sum will be converted into Polish zlotys at the rate applicable on the date of payment and will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. 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 period 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 list of cases, as referred to in Article 37 § 1 (c) of the Convention.”

7 . By a letter of 23 September 2018, the applicant indicated that she was not satisfied with the terms of the unilateral declaration on the ground that the amount proposed by the Government had been disproportionate to the damage suffered by her. Just as she had been beginning to recover from the trauma of her father ’ s death, the prosecutor had decided to order the exhumation of his remains. The damage had been exacerbated by the arbitrary nature of the prosecutor ’ s decision. The circumstances relating to the exhumation also contributed to the applicant ’ s psychological problems.

8 . The applicant further claimed that, although the factual basis of and the complaints raised in her application had been similar to those in the case of Solska and Rybicka v. Poland ( nos. 30491/17 and 31083/17 , 20 September 2018) the sum proposed to her in the unilateral declaration was eight times lower than the amount awarded to Ms Ewa Solska , her mother, in the above-mentioned case. The applicant maintained that her application should have been treated by the Court like the case of her mother, both with regard to the finding of a violation as well as with regard to the amount of compensation awarded.

9 . 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”.

10 . 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.

11 . 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 s p. z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ), no. 28953/0 3, 18 September 2007).

12 . The Court has established in the leading case of Solska and Rybicka v. Poland (cited above), similar to the present application, that the Polish law did not provide sufficient safeguards against arbitrariness with regard to a prosecutorial decision ordering exhumation which, consequently, rendered it incompatible with the requirement that the interference with the right to respect for private and family life had to be carried out in “accordance with the law”. The Court has found a breach of Article 8 of the Convention on that basis. It has further held that it was not necessary to examine separately the complaint under Article 13 of the Convention.

13 . With regard to the applicant ’ s objections regarding the lower amount of compensation in comparison to that awarded to her mother in the leading case, the Court refers to its practice in two similar cases decided subsequently to the leading judgment. In the case of Deresz and Others v. Poland ([Committee] ( dec. ), no. 17570/18, 22 October 2019) brought by three relatives (respectively the husband, the father and the daughter) of the victim of the Smolensk crash, the Court struck out the application out of its list of cases on the basis of the friendly settlement reached between the parties where the amount of EUR 16,000 was to be paid to the three applicants jointly. The Court took a similar decision in the case of Indecki and Indecka v. Poland ([Committee] ( dec. ), no. 45777/18, 22 October 2019) lodged by two relatives (respectively the husband and the daughter) of the victim of the Smolensk crash. Having regard to the above practice and the fact that the applicant ’ s mother was awarded EUR 16,000 in the leading judgment, the Court finds that the applicant in the present case cannot expect to receive comparable compensation.

14 . Having regard to the nature of the admissions contained in the Government ’ s declaration, the fact that the gist of the case concerns Article 8 of the Convention, as well as the amount of compensation proposed – which is reasonable in the particular circumstances of the present case – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

15 . Moreover, in light of the above considerations, and in particular given the clear 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 9 July 2020 .

Renata Degener Linos-Alexandre Sicilianos Deputy Registrar President