FOURTH SECTION

DECISION

Application no . 9409/09 Tomasz PIELAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 25 September 2012 as a Committee composed of:

Päivi Hirvelä , President, Ledi Bianku , Zdravka Kalaydjieva , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 1 February 2009,

Having regard to the declaration submitted by the respondent Government on 12 June 2012 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

PROCEDURE

The applicant, Mr Tomasz Pielak, is a Polish national, who was born in 1981 and lives in Morecambe, the United Kingdom .

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

The application had been communicated to the Government .

THE LAW

The applicant complained that on 27 January 2009 he was refused a compassionate leave from prison in order to attend a funeral of his father. He relied on Article 8 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 12 June 2012 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 unilateral declaration – their acknowledgement of the violation of the applicant ’ s right to respect for his private an family life within the meaning of Article 8 of the Convention. Simultaneously, the Government declare that they are ready to pay to the applicant the sum of PLN 8,000 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 periods 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. ”

By a letter of 26 April 2012 the applicant rejected the Government ’ s friendly settlement proposal and failed to comment specifically to the Government ’ s 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 will examine 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 detainees ’ right to respect for private and family life on account of the refusal of compassionate leave from prison (see, for example, Płoski v. Poland , no. 26761/95 , §§ 32-39, 12 November 2002; Czarnowski v. Poland , no. 28586/03, §§ 25-33, 20 January 2009; Krym v. Poland (dec.), no. 26938/05, 7 October 2008; Wadielac v. Poland (dec.), no. 14260/09, 25 May 2010; Jurga v. Poland (dec.), no. 30540/09, 22 June 2010; and Giszczak v. Poland , no. 40195/08, §§ 36-41, 29 November 2011).

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 8 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 ca ses in accordance with Article 37 § 1 (c) of the Convention.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President