European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 10251/03
by Wiesław GIL
against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 January 2009 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 12 March 2003,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wiesław Gil, is a Polish national who was born in 1953 and lives in Toruń. He was represented before the Court by Mr R. Szymerowski, a lawyer practising in Toruń. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 18 July 2002 the applicant was detained on remand on charges of uttering threats and assaulting his wife B.G.

On 19 September 2002 the applicant was informed that his father had died that day and that the funeral would take place on 21 September 2002 (a Saturday). The applicant immediately made an application for leave to attend the funeral. He asked the Świecie District Court either to lift the detention on remand or grant him compassionate leave to attend the funeral. The application was registered by the court on 20 September 2002.

On 23 September 2002 the Świecie District Court refused his request. The court considered that it was not possible to release the applicant from detention as there was a serious risk that he might tamper with evidence. In addition, keeping him in detention was the only way to secure the proper conduct of the proceedings. The court did not refer to the applicant's request for compassionate leave.

The applicant did not appeal against this decision as the funeral had already taken place and his request to leave prison had become meaningless.

On 30 October 2002 the applicant was convicted as charged and released from detention. The court sentenced him to two years' imprisonment suspended for five years.

B.  Relevant domestic law and practice

According to Article 214 of the 1997 Code of Execution of Criminal Sentences, persons detained on remand, with some exceptions, should enjoy the same rights as those convicted by a final judgment.

Article 141a § 1 of that code reads as follows:

“In cases which are especially important for a convicted person, he or she may be granted permission to leave prison for a period not exceeding five days, if necessary under the escort of prison officers or other responsible persons (osoby godnej zaufania).”

Article 217 d

“The granting of the special permission described in Article 141a § 1 to a person detained on remand, requires permission from the authority at whose disposal he or she remains.”

COMPLAINT

The applicant complained under Article 8 of the Convention that the refusal to allow him to attend his father's funeral amounted to a violation of his right to respect for his private and family life. He claimed that the District Court had not considered his application for compassionate leave and had merely refused to lift the detention.

THE LAW

On 28 October 2008 the Court received the following declaration from the Government:

“I, Jakub Wołąsiewicz, Agent of the Polish Government, declare that the Government of Poland offer to pay PLN 3,500 (three thousand five hundred Polish zlotys) to Wiesław Gil with a view to securing a friendly settlement of the above mentioned case pending before the European Court of Human Rights.

This sum, 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 and 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 payment will constitute the final resolution of the case.”

On 26 November 2008 the Court received the following declaration signed by the applicant's representative:

“I, Wiesław Gil , note that the Government of Poland are prepared to pay me the sum of PLN 3,500 (three thousand five hundred Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, 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 and 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. 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 period plus three percentage points.

I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Nicolas Bratza Registrar President