FOURTH SECTION

DECISION

Application no . 3090/13 T.T . against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 10 March 2015 as a Committee composed of:

George Nicolaou , President, Nona Tsotsoria , Krzysztof Wojtyczek , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 18 December 2012 ,

Having regard to the declaration submitted by the respondent Government on 17 December 2014 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr T. T. , is a Polish national, who was born in 1964 and lives in C . The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr T. Pado , a lawyer practising in Rzesz ó w .

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 .

A. The circumstances of the case

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

On 19 March 1997 the applicant was deprived of his legal capacity by the Rzesz ó w Regional Court because of his mental disorder .

On 26 June 1997 the Strzyżó w District Court appointed the applicant ’ s father as his guardian ( kurator ).

On 22 April 1999 the Strzyżó w District Family Centre ( Powiatowe Centrum Pomocy Rodzinie ) decided to qualify the applicant to the social care home ( dom pomocy społ ecznej ) as requested by his guardian. However, the admission was suspended as there had been no free places.

On 3 June 2003 the applicant was admitted to the B . Social Care Home where he remains to date. The applicant claims that he was placed in the care home against his will and without any medical necessity. In terms of domestic law the admission was voluntary and did not r equire approval by a court.

After his father ’ s death in 2007 the applicant ’ s sister was appointed as his guardian. Most recent ly, on 30 March 2010 the Strzyżó w District Court appointed the director of the B . Social Care Home as his guardian.

On 7 October 2007 an amendment to the Civil Code entered into force allowing incapacitated person to lodge an application to have a legal incapacitation order quashed or modified. Afterwards the applicant instituted relevant proceedings.

On 17 September 2008 the Rzeszó w Regional Court dismissed a request by the applicant to have his legal capacity restored. The court considered, relying on an expert opinion of 21 July 2008 , that the applicant had a mental disorder and was unable to decide for himself. It appears that the applicant ’ s guardian did not lodge an appeal against the decision.

In 2014 the applicant lodged a fresh application to have his legal capacity restored. The proceedings are pending.

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the placement of a person in a social care home and quashing his incapacitation order are set out in the Court ’ s judgment in the case of Kędzior v. Poland , no. 45026/07 , § 57, 16 October 2012.

COMPLAINTS

The applicant complains about being placed in the social care home against his will and that it has not been possible for him to change this decision.

THE LAW

The applicant ’ s complaints about placing him in the social care home and lack of effective procedure by which he could challenge the lawfulness of his admission to the social care home, and the necessity of his continuing stay in it fall to be examined under Article 5 § § 1 and 4 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 17 December 2014 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:

“T he Government hereby wish to express – by way of the unilateral declaration – their acknowledgement that the applicant was deprived of his liberty in breach of Article 5 § 1 of the Convention and that he did not have at his disposal an effective procedure to challenge the lawfulness of his admission to the social care home, and the necessity of his continuing stay in it, as required by Article 5 § 4 of the Convention .

Simultaneously, the Government are ready to pay to the applicant the sum of PLN 30,000 (thirty thousand Polish zlotys) 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, at a rate equal to the marginal lending rate of the European Central Bank during the default peri od 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 ...”

The applicant failed to comment on the unilateral declaration.

The Court recalls 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”.

It also recalls 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.

To this end, the Court examine d 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 SulwiÅ„ska v. Poland ( dec. ) no. 28953/03).

The Court has established in a number of cases, including those brought against Poland , its practice concerning complaints about the violation of Article 5 § § 1 and 4 of the Convention in context of incapacitated person placed in a social care home (see Shtukaturov v. Russia , no . 44009/05, ECHR 2008, Kędzior , quoted above, and K.C. v. Poland , no. 31199/12 , 2 5 November 2014).

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)).

Moreover, in 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 ).

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).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 5 §§ 1 and 4 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 2 April 2015 .

Fatoş Aracı George Nicolaou Deputy Registrar President