FOURTH SECTION

DECISION

Application no . 8802/12 Hassan AL-ZUBAIDI against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 October 2015 as a Committee composed of:

Faris Vehabović, President, Krzysztof Wojtyczek, Yonko Grozev, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 2 February 2012 ,

Having regard to the declaration submitted by the respondent Government on 2 June 2015 requesting the Court to strike the application out of the list of cases and the applicant ’ s wife ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Hassan Al-Zubaidi, was a Polish national, who was born in 1969 and lived in Warsaw . On 6 October 2013 the applicant died and the applicant ’ s lawyer informed the Court that the applicant ’ s wife Ms Izabela Al-Zubaidi wished to pursue the application.

The applicant and, subsequently, his wife, were represented before the Court by Mr P. Florek, a lawyer practising in Warsaw .

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

The application had been communicated to the Government .

The circumstances of the case

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

On 26 August 2002 the applicant was arrested under the suspicion of, in particular, having led an organised criminal group which aimed at fraudulent sale of shares in a limited liability company.

On 28 August 2002 the Gorzów Wielkopol s ki Distric t Court detained the applicant on remand for three months, until 28 November 2002. The detention was subsequently extended on several occasions and the applicant remained in detention until 19 November 2003.

On 19 November 2003 the Szczecin District Court released the applicant from detention and imposed on him other preventive measures: bail of 100,000 Polish zlotys (PLN), police supervision and prohibition on leaving Poland combined with withholding his passport.

On 6 April 2005 the applicant, along with other accused, was indicted and since then the proceedings have been pending before the Szczecin Regional Court.

The first request for the preventive measure to be lifted was lodged on 12 April 2006. He has lodged numerous requests ever since.

In 2009 the applicant tried to have the preventive measure lifted because of his father ’ s serious illness and subsequently because of his father ’ s death. The courts refused to lift the measure finding that a bail itself would not be sufficient to secure the proper conduct of the proceedings.

On 31 May 2011 the Szczecin Regional Court refused the applicant ’ s further request to lift the measure. The court found, in particular, that the excessive length of proceedings did not allow the court to resign from securing their proper conduct. The court also found that the applicant had tried to obtain a new passport without the court ’ s knowledge.

The applicant appealed. As regards the fact that he requested issuance of a new passport, he submitted that his seized passport was no longer valid and that he needed a new passport in case the preventive measure applied to him was lifted.

On 2 August 2011 the Szczecin Regional Court upheld the challenged decision. The court found that there was no need to repeat the previous argument which opposed the preventive measure being lifted. It concluded that the numerous applications to lift the measure lodged by the applicant made it clear that he wanted to leave Poland and that this could not change the court ’ s attitude that the applicant would be banned from leaving Poland until the proceedings were terminated.

On 6 October 2013 the applicant died and the application was pursued before the Court by his wife.

COMPLAINTS

Relying on Article 2 of Protocol No. 4 to the Convention, the applicant complained that the preventive measures imposed on him for such an unreasonably long time had amounted to a violation of his right to freedom of movement.

He further complained under Article 8 of the Convention that his family rights had been violated because for twelve years he could not visit his brothers and sisters and he could not attend the funeral of his father who had died in 2009.

THE LAW

The applicant complained about imposition of a preventive measure on him. He relied on Article 2 of Protocol No. 4 to the Convention and on Article 8 of the Convention.

After the failure of attempts to reach a friendly settlement, the Government informed the Court by letter of 2 June 2015 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 acknowledgement of the violation of Article 2 of Protocol No. 4 to the Convention due to the excessive length of the preventive measures imposed on the applicant prohibiting him to leave the country.

Simultaneously, the Government declare that they are ready to pay the applicant the sum of PLN 20,000 (twenty thousand Polish zloty s ) which they consider to be reasonable in the light of the Court ’ s case-law in similar cases (see, inter alia , Riener v. Bulgaria , no. 46343/99, ( ... ) , 23 May 2006, Gochev v. Bulgaria , no. 34383/03 , ( ... ) , 26 November 2009, Miażdżyk v. Poland , no. 23592/07 , ( ... ) , 24 January 2012, Prescher v. Bulgaria , no. 6767/04 , ( ... ) , 7 June 2011). 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 of 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 period plus three percentage points.

Having in mind the abovementioned unilateral declaration of the Government acknowledging violation of Article 2 of Protocol No. 4 to the Convention in the circumstances of the case, the Government would like to invite the Court not to examine the same facts and decisions also under Article 8 of the Convention. As already stated in the jurisprudence of the Court in similar cases, it is not necessary to scrutinize separately the complaint under Article 8 of the Convention in respect of the prohibition of leaving the country imposed on the applicant (see, inter alia, Riener v. Bulgaria , no. 46343/99, § 134, 23 May 2006, A. E. v. Poland , no. 14480/04, §§ 53 ‑ 54, 31 March 2009 , Prescher v. Bulgaria , no. 6767/04 , § 56, 7 June 2011). Therefore the Government respectfully suggest not to examine the application under Article 8 of the Convention.

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 ...”

By letter of 29 June 2015, the applicant ’ s lawyer indicated that the applicant ’ s wife was not satisfied with the terms of the unilateral declaration. He basically repeated the complaints contained in the application and additionally raised the problem of length of the relevant proceedings, whi ch was not communicated to the G overnment.

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 paragrap h 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 re iterates that in certain circumstances, it may strike out an application or part thereof 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.

To this end, the Court has examined the declaration carefully 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, 18 September 2007 ).

The Court has established in a number of cases, including those brought against Poland , its practice concerning complaints about the violation of Article 2 of Protocol No. 4 (see, for example, Riener v. Bulgaria , Gochev v. Bulgaria , Miażdżyk v. Poland and Prescher v. Bulgaria , all cited above).

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 the present application (Article 37 § 1 (c)).

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 this application (Article 37 § 1 in fine ).

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).

As regards the complaint communicated under Article 8 of the Convention, the Court considers that in view of the Government ’ s acknowledgement of a violation of Article 2 of Protocol No. 4 to the Convention, it is no longer necessary to examine the facts of the case also under Article 8 of the Convention (see Riener v. Bulgaria , § 134, A. E. v. Poland , §§ 53 and 54 , and Prescher v. Bulgaria , no. 6767/04 , § 56, all cited above).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 2 of Protocol No. 4 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Holds that it is no longer necessary to examine separately the present application under Article 8 of the Convention;

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 5 November 2015 .

Fatoş Aracı Faris Vehabović Deputy Registrar President