Resolution CM/ResDH(2008) 56 [1]

Execution of the judgment of the European Court of Human Rights

Berliński against Poland

(Applications No. 27715/95 and 30209/96, judgment of 20/06/2002, final on 20/09/2002)

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the deprivation of the right to defence due to the public prosecutor ' s inactivity following the applicants ' request for legal aid (violation of Articles 6§§1 and 3c) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Poland ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2008)56

Information about the measures taken to comply with the judgment in the case of Berliński against Poland

Introductory case summary

The case concerns the prosecutor ' s inactivity following the request for legal aid lodged by the applicants, who were consequently deprived of counsel for more than a year, between 1993 and 1994, at the stage of pre ‑ trial investigation and the first stage of judicial proceedings (violation of Articles 6§§1 and 3c).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

4 000 EUR

-

4 000 EUR

Paid on 28/11/2002

b) Individual measures

In the proceedings at issue, the applicants were convicted by a final judgment of 17/12/1996 and sentenced respectively to a year and a year and a half of imprisonment. These sentences were suspended for three years.

Under Article 76§1 of the P olish Criminal Code, suspended prison sentences are automatically removed from criminal records after 6 months have elapsed since the end of the probationary period.

Moreover, under Article 540§3 of the Code of Criminal P rocedure, the applicants may request the reopening of the criminal proceedings concerning them, by invoking the finding of a violation of the Convention by the European Court .

II. General measures

The European Court ' s judgment was published on the website of the Ministry of Justice www.ms.gov.pl and sent out to the offices of all public prosecutors attached to appeal courts with a request to communicate it to all public prosecutors and to take it into account in the training of the subordinate prosecutors ' offices.

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 25 June 2008 at the 1028th meeting of the Ministers’ Deputies