FOURTH SECTION

DECISION

Application no . 11921/09 Dariusz MILCZAREK against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 30 September 2014 as a Committee composed of:

Ledi Bianku , President, Paul Mahoney , Krzysztof Wojtyczek , judge s, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 23 February 2009 ,

Having regard to the declaration submitted by the respondent Government on 26 May 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 Dariusz Milczarek , is a Polish national, who was born in 1973 and lives in Warsaw . He was represented before the Court by Mr J. Brydak , a lawyer practising in Warsaw .

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

The application had been communicated to the Government .

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

On 1 October 1996 the applicant was arrested and beaten up by the police at the police station in Warsaw.

On 2 October 1996 the prosecutor questioned the applicant. He noted in the minutes that the applicant had numerous bruises on his body and that he complained about having been beaten by the police on the previous day.

On the same day the prosecutor requested the court to remand the applicant in custody. During the relevant court session held on 3 October 1996 a judge of the Warsaw-City District Court, having regard to the applicant ’ s injuries and to his submissions about having been beaten up, called the emergency medical services to the courtroom. A doctor summoned by the court submitted that the applicant ’ s condition indicated that he could be suffering from cerebral concussion.

The applicant was admitted to a hospital immediately afterwards. The applicant was discharged from the hospital on 11 October 1996.

On 4 October 1996 the applicant ’ s mother requested the prosecuting authorities to institute an investigation into her son ’ s ill-treatment by the police.

Two medical expert reports prepared for the purposes of the investigation confirmed that the applicant ’ s injuries could have been caused by ill ‑ treatment in the circumstances which he had described during the investigation.

The investigation was discont inued on 11 June 1997, the Warsaw ‑ Wola District Prosecutor being of the view that no criminal offence had been committed as the force used against the applicant had not been excessive. This decision was later quashed by the Warsaw Regional Prosecutor and the case remitted for a further investigation.

On 19 January 1999 the Warsaw Regional Court acquitted the applicant of charges of attempted murder and causing imminent danger of a traffic accident in that on 1 October 1996 he had allegedly failed to stop his car when stopped by the police and tried to knock down one of the officers. It found that on that date the applicant had been arrested and subsequently beaten up by the police officers and that he had suffered multiple injuries. The prosecution appealed.

On 19 October 1999 the Warsaw Court of Appeal dismissed the appeal. It observed that the applicant had been beaten up by the police.

On 10 March 2008 the Warsaw- Wola District Prosecutor discontinued the investigation, finding that the charges of abuse of powers against the officers had become time-barred on 1 October 2001.

The applicant appealed, referring to Article 3 of the Convention.

On 27 August 2008 the Warsaw -Praga Pó łnoc District Court upheld the contested decision. It was of the view that it was lawful as it was not open to doubt that the offence of abuse of official powers had become prescribed five years after the events concerned, in 2001. The court noted that the police had treated the applicant in the manner contrary to Article 3 of the Convention.

COMPLAINT

The applicant complained under Article s 3 and 6 of the Convention that he was ill ‑ treated by the police in 1996. The investigation was exceedingly long and the charges ultimately became time-barred after the investigation which had lasted for over eleven years.

THE LAW

The applicant complained about having been beaten up by the police . He relied on Article 3 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 26 May 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:

“The Government hereby wish to express – by way of the unilateral declaration ‑ their acknowledgement that Article 3 of the Convention was violated in the applicant ’ s case.

Consequently, the Government declare that they offer to pay the applicant the amount of PLN 30,000 (thirty thousand Polish zlotys) , which they consider to be reasonable in the light of the Court ’ s case-law (see, mutatis mutandis , Majkowski v. Poland , application no. 32272/11, decision of 20 November 2012; Karbowniczek v. Poland , application no. 22339/08, judgment of 27 September 2011; Polanowski v. Poland, application no. 16381/05, judgment of 27 April 2010). The sum referred to above is to cover any pecuniary and non ‑ pecuniary damage as well as costs and expenses of proceedings before the Court will be free of any taxes that may be applicable to the applicant.

The above-mentioned sum 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 periods plus three percentage points.”

The applicant failed to respond to the Registry ’ s letter inviting him to submit his comments.

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 o f 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 Sulwińska 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 3 of the Convention (see, for example, Wiktorko v. Poland , no. 14612/02, § 70, 31 March 2009; Polanowski v. Poland , no. 16381/05 , § 71 , 27 April 2010 ; Karbowniczek v. Poland , cited above, § 93 ; Pieniak v. Poland , no. 19616/04, § 66 , 24 February 2009 ) . 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 examinat ion 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 3 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.

FatoÅŸ Aracı Ledi Bianku              Deputy Registrar President