Resolution CM/ResDH(2013)83

Miernicki against Poland

Execution of the judgment of the European Court of Human Rights

(Application No. 10847/02, judgment of 27/10/2009, final on 10/05/2010)

(Adopted by the Committee of Ministers on 7 May 2013 at the 1170th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)317E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report [1]

Information about the measures to comply with the judgment in the case of

Miernicki against Poland

Case description

Miernicki, Application No. 10847/02, judgment of 27/10/2009, final on 10/05/2010

This case concerns violation of Article 5 § 1 of the Convention, as the applicant ’ s appeal against the extension of his detention was examined and dismissed on 16 September 2002 by the Wroclaw Court of Appeal, which was composed of three judges, including one who had given the first-instance decision. The next decision extending the applicant ’ s detention was given on 15 January 2003. The Court therefore concluded that during the period starting with the defective decision of 16 September 2002 and ending on 15 January 2003, when the decision “in accordance with a procedure prescribed by law” was given, the applicant ’ s detention was unlawful. It followed that the requirement under Article 5 § 1 of the Convention to comply with a procedure prescribed by law had not been observed and for that reason there had been a violation of that provision.

The case also concerns a violation of the applicant ’ s right to respect for his correspondence in that five letters sent by him to the Court in 2002 were opened and marked “censored” (violation of Article 8 of the Convention).

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1 500 EUR

-

1 500 EUR

Paid on 30/07/2010

The Court awarded the applicant just satisfaction in respect of non-pecuniary damage.

In these circumstances, no other individual measure appears necessary .

The violation of Article 5 § 1 of the Convention in the present case was rather of an isolated nature and resulted from failure of a national court to comply with a procedure prescribed by the domestic law.

Article 40 § 1 of the Code of Criminal Procedure provides that a judge is ex lege disqualified from his participation in a case, if, inter alia , he has participated, in a lower court, in the delivery of a decision subject to an appeal, or has himself delivered a ruling subject to an appeal. This provision applies not only to judgments but also to all procedural decisions during the criminal proceedings, such as, the imposition of detention on remand.

Therefore, it seems that publication and dissemination of the Court ’ s judgment would be appropriate in order to avoid similar violations in the future.

In this context, it should be noted that the Court ’ s judgment was translated into Polish and published on the website of the Ministry of Justice ( www.ms.gov.pl ).

General measures as to the violation of Article 8 of the Convention are examined in the context of the Klamecki (No. 2) group of cases (Application No. 31583/96).

In these circumstances, no other general measure appears necessary .

The government considers that other individual measures are not necessary in the present case and that the general measures adopted, in particular publication and dissemination of the judgment of the European Court of Human Rights, will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Information submitted by the Polish authorities on 20 March 2013.