European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2010/2126.html
Cite as: [2010] ECHR 2126
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FOURTH SECTION
DECISION
Application no.
1237/07
by Jan GRABIŃSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 30 November 2010 as a Chamber composed of:
Nicolas
Bratza, President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having regard to the above application lodged on 15 December 2006,
Having regard to the declaration submitted by the respondent Government on 10 May 2010 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jan Grabiński, is a Polish national who was born in 1952 and lives in Zagórów. He was represented before the Court by Mrs M. Moś, a lawyer practising in Poznań. 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.
The applicant emigrated to Canada in 1989. In 1993 he obtained Canadian nationality, while still retaining his Polish passport. In June 1997 he visited his family in Poland. On an unknown date, the prosecution authorities instituted an investigation in respect of the applicant on charges of credit card fraud.
On 6 August 1997 the Konin District Prosecutor imposed a preventive measure on the applicant and prohibited him from leaving the territory of Poland. It also seized his Canadian and Polish passports.
On 30 December 1997 the applicant was indicted before the Konin District Court on charges of credit card fraud.
On an unknown date the applicant asked the court to waive the prohibition on leaving the territory of Poland. He further requested the return of his passports, submitting that he did not have any other identity document. On 9 September 1998 the court dismissed the applicant’s request. It considered that the applicant was resident in Canada, and therefore it was necessary to seize his passports in order to secure the proper conduct of the proceedings.
On 14 October 1998 the Konin District Court convicted the applicant as charged. It sentenced him to one year and three months’ imprisonment, suspended for a period of four years. The applicant appealed. On 5 October 1999 the Konin Regional Court quashed the first-instance judgment and remitted the case to the prosecution authorities for further investigation.
On 3 July 2003 the Konin District Prosecutor discontinued the investigation on the grounds that no elements of a criminal offence had been found in the applicant’s conduct. It also lifted the prohibition on leaving Poland.
On 15 April 2004 the applicant sued the State Treasury before the Poznań Regional Court for compensation for the damage that he had allegedly suffered as a result of the imposition of the preventive measure on him. On 4 May 2005 the Konin Regional Court dismissed the applicant’s claim. The court considered that the preventive measure imposed on the applicant had been justified by the charges against him. The applicant appealed. On 16 February 2006 the Poznan Court of Appeal upheld the first instance judgment. The court held that the preventive measure had been imposed with a view to securing the proper conduct of the proceedings since the applicant did not permanently reside in Poland. On 26 September 2006 the Supreme Court refused to examine a cassation appeal by the applicant.
B. Relevant domestic law and practice
The 1997 Code of Criminal Procedure defines a prohibition on leaving the country (zakaz opuszczania kraju) as one of its “preventive measures” (środki zapobiegawcze). Those measures are, in addition to a prohibition on leaving the country, pre-trial detention (tymczasowe aresztowanie), bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), and a temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności).
Article 277 § 1 of the Code provides, in so far as relevant, as follows:
“A prohibition on leaving the country may be imposed if there is a reasonable risk that an accused will abscond or go into hiding; this prohibition may be combined with withholding the accused’s passport or other travel document or with a prohibition on issuing such a document ...”
COMPLAINTS
THE LAW
A. Restriction on the applicant’s freedom of movement
The applicant complained about the restriction on his right to leave Poland. He relied on Article 2 § 2 of Protocol No. 4 to the Convention which, in so far as relevant, provides as follows:
Article 2 § 2
“Everyone shall be free to leave any country, including his own.”
By letter dated 10 May 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the fact that the length of the restriction on the applicant’s freedom to leave Poland between 6 August 1997 and 3 July 2003 was not compatible with Article 2 § 2 of Protocol No. 4 to the Convention and the restriction was not proportionate. Consequently, the Government are prepared to pay the applicant PLN 15,000, 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 of 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 the rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points”
In a letter of 5 June 2010 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application or part thereof 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 or part thereof 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 one’s right to leave a Contracting State (see, for example, Riener v. Bulgaria, no. 46343/99, 23 May 2006; A. E. v. Poland,
no. 4480/04, 31 March 2009; Ivanov v.Poland (dec.), no. 38204/02, 23 October 2007).
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 this part 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 this part of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. Remaining complaints
The applicant further complained under Article 6 § 2 of the Convention that despite the fact that the proceedings against him had been discontinued, the courts had dismissed his claim for compensation on the grounds that the preventive measure was justified by the charges against him. Lastly, he alleged a breach of Article 6 § 2 on the ground that his claim for compensation had been dismissed.
The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a breach of the Convention. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 2 § 2 of Protocol No. 4 to the Convention about restrictions on the applicant’s freedom of movement, and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza
Registrar President
