Resolution CM/ResDH(2008) 15 [1]

Execution of the judgment of the European Court of Human Rights

Shamsa against P oland

(Applications Nos 45355/99 and 45357/99, judgment of 27/11/2003, final on 27/02/2004)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 lack of legal basis for the keeping of the applicants, Libyan nationals, in detention in the transit zone at Warsaw airport between 25/08/1997 and 03/10/1997, beyond the statutory time-limit (violation of Article 5§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with P oland ' 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) and considering the decision taken at the 966th meeting of the Ministers ' Deputies (21 June 2006), 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)15

Information about the measures taken to comply with the judgment in the case of Shamsa against P oland

Introductory case summary

This case relates to the lack of legal basis for the keeping of the applicants, Libyan nationals, in detention in the transit zone at Warsaw airport between 25/08/1997 and 03/10/1997, beyond the statutory time-limit (violation of Article 5§1). According to the legislation in force at the material time, detention based on prosecutor ' s decision, which might be challenged before a court, could not be extended beyond 90 days following the alien ' s placement in detention, if the deportation order had not been enforced in the meantime. Before the European Court , the P olish authorities argued that the applicants ' in detention during the period at issue was based on the internal rules of the Warsaw airport border police. However, the European Court found that these internal rules did not meet the criteria of precision and predictability required by Article 5§1 of the Convention.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

8 000 €

3 000 €

11 000 €

P aid on 18/05/2004

b) Individual measures

The applicants having been released, no other additional measure is necessary.

II. General measures

Since 01/09/2003, proceedings concerning the detention of aliens against whom a deportation order has been issued are governed by the new Law on Aliens enacted on 13/06/2003. This law provides among other things that the initial detention may not exceed 90 days. This period may be extended up to one year. P lacement in detention and its extension must be based on a judicial decision, which is subject to appeal in accordance with the provisions of the Code of Criminal P rocedure. The new law also provides for the award of compensation to foreigners who have been detained illegally.

The judgment of the European Court was published in the Bulletin of the Council of Europe Information Centre , issue No. 3/2004, and on the Internet site of the Ministry of Justice, www.ms.gov.pl . Moreover, t he presidents of courts of appeal and prosecutors at appeal courts sent it out to all judges of criminal courts and prosecutors under their administrative jurisdiction.

Finally, the judgment was also sent out to officials of the frontier police and questions relating to this judgment are raised during seminars organised for these officials in the framework of their vocational training.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, similar violations and that P oland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 27 March 2008 at the 1020th meeting of the Ministers’ Deputies