FOURTH SECTION

DECISION

Application no . 46161/11 Milena and Andrzej GIL against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 June 2013 as a Committee composed of:

David Thór Björgvinsson , President, Vincent A. D e Gaetano , Krzysztof Wojtyczek , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 19 July 2011,

Having regard to the declaration submitted by the respondent Government on 10 January 2013 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Milena Gil and Mr Andrzej Gil, are Polish nationals, who were born in 1958 and live in Krakow. They were represented before the Court by Ms M. Antoszewska, a lawyer practising in Warszawa.

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 parties, may be summarised as follows.

On 11 December 2001 the Mayor of Krakow gave a decision allowing the removal of seven poplar trees growing along the fence of the children ’ s playground by 31 December 2001. The decision considered that the trees posed a threat to life and property and could fall on the playground or the building of the kindergarten.

The Krakow Municipal Office failed to transfer funding for the purpose of the removal of the trees due to shortage of financial resources and numerous needs.

On 1 August 2003 the applicants ’ 22 ‑ year ‑ old daughter M. died after being hit by a branch from one of the poplar trees growing by the playground. The branch was five metres long and fell on the pavement where the victim was walking.

On 11 August 2003 the Krakow-Nowa Huta District Prosecutor opened an investigation into the incident.

The Krakow Municipal Office paid the equivalent of 700 euros (EUR) for removal of the trees. Between 11 and 14 August 2003 all seven poplar trees were removed and destroyed.

On 1 December 2003 the District Prosecutor stayed the investigation pending receiving documents from the Municipality. The applicants appealed against this decision. The appeal was examined on 27 January 2005. The District Prosecutor allowed it, quashed the decision to stay the proceedings and ordered the police to continue the investigation.

On 30 May 2005 the District Prosecutor decided to discontinue the investigation considering that no offence of unintentionally causing the death of M. had been committed.

The applicants appealed against the decision.

On 10 February 2006 the Krakow District Court allowed the appeal and remitted the case to the prosecutor. The court indicated several investigative measures which needed to be taken by the prosecutor in order to complement the investigation.

On 30 June 2006 the District Prosecutor for the second time discontinued the proceedings. The applicants appealed.

On 18 October 2006 the Krakow Regional Prosecutor allowed the appeal and quashed the decision to discontinue the investigation. The prosecutor pointed, in particular, to the fact that the instructions of the District Court had not been fulfilled and the shortcomings of the investigation had not been remedied.

On 28 December 2006 the Krakow District Prosecutor for the third time discontinued the investigation. The prosecutor after having heard some witnesses and experts considered that the accident could not have been foreseen. The branch that hit the applicants ’ daughter had not appeared particularly fragile and the accident had happened most probably because of harsh weather and the inherent fragility of this type of tree. The applicants appealed.

On 4 March 2007 the Krakow Regional Prosecutor allowed the appeal and quashed the decision to discontinue the investigation. The prosecutor again considered that the District Court ’ s instructions had not been respected.

On 31 December 2007 the District Prosecutor for the fourth time discontinued the investigation. This time the prosecutor indicated that she investigated the following charges: involuntary manslaughter, failure to carry out duties by civil servants in not providing financial resources for the removal of the trees that had been qualified for removal and putting human life and health in danger.

As no further appeal lay against the decision the applicants lodged a private bill of indictment on 7 February 2008. The bill was directed against six persons from the Krakow Municipal Office and the company A specialising in the protection and care of trees and shrubs contracted by the Krakow Municipal Office.

On 14 October 2009 the Krakow District Court gave a judgment in which it acquitted the persons accused. The court considered that the accident could not have been predicted. The branch that hit the applicants ’ daughter had not been rotten and the tree itself had been in a similar state as many other trees in the neighbourhood. Based on an expert opinion, the court considered that there had been no signs that the tree had to be urgently removed. There was therefore no causal link between potential negligence on the part of the accused and the incident. The court concluded that the incident would have obviously been avoided had the tree been removed in 2001 which had not been possible due to lack of funds. Nevertheless, nobody should be held criminally responsible for this unpredictable accident.

The applicant s lodged an appeal against the judgment.

On 26 February 2010 the Krakow Regional Court dismissed the appeal. The appellate court accepted the findings and conclusions of the trial court. The applicants lodged a cassation appeal with the Supreme Court.

On 19 January 2011 the Supreme Court dismissed the cassation appeal.

COMPLAINTS

The applicants complained under several Articles of the Convention that the tragic death of their daughter was caused by negligence and the failure of civil servants responsible for the proper maintenance of trees to carry out their duties. Moreover, they complained that the investigation into the incident had been ineffective, lengthy and had had many procedural flaws.

THE LAW

A. The scope of the case

The applicants complained in substance about the State ’ s failure to fulfil its positive obligation to protect their daughter ’ s life and to carry out an effective investigation into the incident.

The Court considers that the applicants ’ grievances should be examined from the angle of the procedural requirement implicit in Article 2 of the Convention. This provision, in so far as relevant, provides as follows:

“1. Everyone ’ s right to life shall be protected by law ... ”

B. The Government ’ s unilateral declaration

By letter dated 10 January 2013 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 unilateral declaration - their acknowledgement of the fact that having regard to procedural protection of the right to life ( ... ) the criminal proceedings in the present case were in breach of Article 2 of the Convention.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicants the total amount of EUR 14,000 (fourteen thousand euros) which they consider to be reasonable in the light of the Court ’ s case-law (see, inter alia, Byrzykowski , and Ciechonska , cited above ... ). 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 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 ...”

In a letter of 28 January 2013 the applicant s expressed the view that the sum mentioned in the Government ’ s declaration was unacceptably low and that the Court should examine their case on the merits.

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 will carefully examine 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 Lys v. Poland (dec.), no. 41174/08, 5 July 2012; 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.

C. Costs and expenses

Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

The applicant s claimed 20,000 Polish zlotys (PLN) for legal costs and expenses. That sum included EUR 2,500 for the costs of their legal representation before the Court. The applicants ’ lawyer provided copies of invoices confirming payment by the applicant s so far of EUR 1,200 for the proceedings before the Court.

The Government considered that the claim was excessive .

According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Although the proceedings before the Court were not complex and resulted in a decision to strike the case out of its list, the applicants ’ representative had submitted her observations on the admissibility and merits of the case as well as other pleadings. The Court thus accepts that some of these costs were actually and necessarily incurred (see mutatis mutandis , Ahmed v United Kingdom (dec), no. 31668/05, 14 October 2008; and Meriakri v. Moldova (striking out), no. 53487/99, § 33, 1 March 2005 ) . Regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant s the sum of EUR 1,200 covering the costs of the proceedings before the Court.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaints under Article 2 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Holds

(a) that the respondent State is to pay the applicant s, within three months, EUR 1,200 (o ne thousand two hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants , to be converted into Polish zlotys at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default peri od plus three percentage points;

Decides to strike the application out of its list of cases in accordance with Artic le 37 § 1 (c) of the Convention.

Fatoş Aracı David Thór Björgvinsson Deputy Registrar President