FOURTH SECTION

DECISION

Application no . 13603/13 Jaroslaw JÄ„CZEK against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 September 2016 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges,

and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 31 January 2013,

Having regard to the declaration submitted by the respondent Government on 23 March 2016 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Jarosław Jączek, is a Polish national, who was born in 1965 and lives in Szczecin. He was represented before the Court by Mr Dariusz Jan Babski, a lawyer practising in Szczecin.

2. The Polish Government (“the Government”) were represented by their Agent, Ms Justyna Chrzanowska, of the Ministry of Foreign Affairs.

3. The applicant complained about a breach of his right to family life under Article 8 of the Convention in that the authorities were helpless in establishing and enforcing his rights to see his daughter. Relying on Article 6 of the Convention, he also complained about the excessive length of the proceedings in which he sought to have access to his daughter.

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 23 March 2016 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues 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:

“... t he Government hereby wish to express by way of the unilateral declaration their acknowledgement that Article 8 with respect to nonfulfillment of the positive obligations as regards the applicant ’ s family life and that Article 6 § 1 of the Convention with respect to the unreasonable length of the proceedings in which the applicant sought to have access to his daughter determined were violated in the applicant ’ s case. Simultaneously, the Government declare that they are ready to pay to the applicant the sum of PLN 16,000 which they consider to be reasonable in the light of the Court ’ s case law and the particular circumstances of the foregoing case. 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 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 the rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The Government would 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.

...

The Government take notice of the criteria stipulated in Rule 62A of the Rules of Court witch need to be fulfilled when lodging a request to strike the application out of the list in accordance with Article 37 § 1 of the Convention. In the first place Rule 62A requires that such request is accompanied by a declaration clearly acknowledging that there has been a violation of the Convention. In this regard the Government ’ s unilateral declaration contains an unconditional acknowledgment that in the present there has been a violation of Article 8 with respect to nonfulfillment of the positive obligation s as regards the applicant ’ s family life and Article 6 § 1 of the Convention with respect to the unreasonable length of the proceedings in which the applicant sought to have access to his daughter determined were violated in the applicant ’ s case. Secondly, a unilateral declaration should contain an undertaking to provide adequate redress for the applicant. As transpires from the Government ’ s declaration, they accepted paying to the applicant the sum of PLN 16 000 as just satisfaction in the event of the Court ’ s striking the case out of its list. Finally, it is necessary that filing of a declaration is made in public and adversarial proceedings conducted separately from and with due respect for the confidentiality of any friendly-settlement proceedings. The latter condition is fulfilled as well.

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 § 1 of the Convention, thus that it is no longer justified to continue the examination of the application in the light of the Government ’ s unilateral declaration.”

7. The applicant did not submit his comments on the Government ’ s declaration within the time-limit fixed by the Court.

8. 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”.

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 or if he does not submit any comments on the said declaration.

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; see also 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. Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

12. 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 ).

13. 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).

14. 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 Articles 8 and 6 § 1 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 20 October 2016 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President