FOURTH SECTION

DECISION

Application no. 78205/11 Maria OSUCH against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 8 April 2014 as a Committee composed of:

Nona Tsotsoria , President, Paul Mahoney , Krzysztof Wojtyczek , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 14 December 2011 ,

Having regard to the declaration submitted by the respondent Government on 8 January 2014 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:

THE FACTS

The applicant, Ms Maria Osuch , is a Polish national, who was born in 1930 and lives in Warszawa . She was represented before the Court by Ms J. Metelska , 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 facts of the case, as submitted by the applicant , may be summarised as follows.

On the night of 8 November 2005 the body of the applicant ’ s son, K., was found in Warsaw, near to the house w h ere he had lived. The applicant ’ s son was fifty years old and had lived permanently in South Africa where he worked as a university professor. He usually spent three months per year in Poland , giving lectures at Warsaw Polytechnic University . During his stays in Poland he lived with his parents. The applicant submits that her son was in conflict with some neighbours as he had testified against them in court in cases concerning appropriation of plots of land in Warsaw . Before his death the applicant ’ s son had received threats.

A security guard who had found the body noticed a white car leaving the crime scene but the police failed to follow it.

On 10 November 2005 an autopsy was carried out which revealed that the applicant ’ s son had been shot and severely beaten. The autopsy discarded the assumption made by the police that the death had been caused by an attack by a dog. The applicant submits that that assumption led to the loss of a great deal of evidence from the crime scene which had not subsequently been collected.

Two persons who allegedly had been in conflict with the applicant ’ s son and threatened him were heard by the pro secutor in January and December 2006.

During the investigation the prosecutor in charge of the case changed on eight occasions; most of the time the case was dealt with by junior prosecutors, assessors. On many occasions the investigation was prolonged.

On 28 February 2008 the prosecutor J. W-P decided to have an expert examine the hard drive of the victim ’ s laptop computer.

On 3 July 2008 the assessor A.M. decided to have an expert examine some brown stains found on the victim ’ s clothes and shoes and to compare them with DNA samples collected in the case.

In 2009 the prosecutor requested mobile phone operators to inform him about the calls made from the victim ’ s phone after his death. It appears that some persons were identified as having used the mobile phone after the murder. However, most of the data could not be retrieved due to the lapse of time.

Finally, on 31 March 2011 the Warsaw District Prosecutor discontinued the investigation, given the impossibility to establish the identity of the perpetrators.

The applicant lodged an appeal. She complained in particular about the shortcomings in the investigation and submitted that many investigative measures had not been carried out or had been carried out too late. The applicant maintained that the expert opinions had been contradictory and had not been able to establish important matters such as the number of perpetrators, the type of firearms used, and the distance from which the victim had been shot.

On 4 July 2011 the Warsaw Regional Court ( Sąd Okręgowy ) dismissed the appeal.

COMPLAINT

The applicant complained about the authorities ’ failure to conduct an effective investigation capable of elucidat ing the crime. She alleged that the investigation had been lengthy and had had many procedural flaws.

THE LAW

By letter dated 8 January 201 4 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 of the violation of Article 2 of the Convention on account of the fact that the investigation (no 1 Ds. 1017/05) being conducted by the Warszawa- Mokotów District Prosecutor for a period of time as in the above-mentioned case (i.e. between 15 November 2005 and 31 March 2011 that equals almost 5 years and 5 months) does not meet the requirements of an effective and efficient proceedings.

Consequently, the Government are prepared to pay to the applicant the sum of PLN 50,000 (fifty 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 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 Artic le 37 § 1 (c) of the Convention ...”

In a letter of 20 February 2014 the applicant ’ s representative expressed the view that the acknowledgment of the violation contained in the Government ’ s declaration had not been complete. The applicant considered that there had been many shortcomings on the part of the prosecutors and the courts which should have been acknowledged by the Government in order to reflect the essence of the breach of Article 2 in the present case.

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 applicants wish the examination of the case to be continued.

To this end, the Court carefully examine d 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 Akman v. Turkey (striking out), no. 37453/97, § 31, ECHR 2001 ‑ VI ).

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 (see Gil v. Poland ( dec. ), no. 46161/11 , 4 June 2013 ; Gawlak v. Poland ( dec. ), no. 27886/10, 15 November 2011) – 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 ).

Accordingly, it should be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declarat ion in respect of the complaint under Article 2 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 Nona Tsotsoria              Deputy Registrar President