FOURTH SECTION
DECISION
Application no. 57374/09
Henryk Kazimierz BEDNAREK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 25 August 2015 as a Committee composed of:
Ledi Bianku, President,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 22 October 2009,
Having regard to the declaration submitted by the respondent Government on 28 April 2015 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:
PROCEDURE
The applicant, Mr Henryk Kazimierz Bednarek, is a Polish national, who was born in 1959 and lives in Wrocław.
The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
The applicant complained under Article 6 § 1 of the Convention that he had been deprived of the right to access to court on account of the legal‑aid lawyer’s refusal occurring three days before the time limit for lodging a cassation appeal.
THE LAW
After the failure of attempts to reach a friendly settlement, the Government informed the Court by letter of 28 April 2015 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike 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 acknowledgment of the fact that the applicant was denied access to the domestic court in the determination of his civil right and obligations within the meaning of Article 6 § 1 of the Convention due to refusal of the legal aid lawyer to lodge a cassation appeal, 3 days before the time limit for lodging a cassation appeal.
Having regard to the applicant’s distress he allegedly suffered as a result of upper-mentioned violation of Article 6 § 1 of the Convention the Government declare that they offer to pay the applicant the amount of PLN 8,000 (eight thousand Polish zlotys), which is to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant, which they consider to be reasonable in the present circumstances of the case. The above sum 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 of the European Central Bank during the default periods plus three percentage points.”
The applicant questioned the Government’s declaration specifying that he would prefer the examination of the case to be continued.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application 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 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 has examined the declaration carefully 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, 18 September 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 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 the application (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the Government’s declaration under Article 6 § 1 of the Convention 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 accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 17 September 2015.
Fatoş AracıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy