FOURTH SECTION
DECISION
Application no. 24377/06
by Jerzy DZIUDA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 16 December 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 7 June 2006,
Having regard to the declaration submitted by the respondent Government on 21 October 2008 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 Jerzy Dziuda, is a Polish national who was born in 1958 and lives in Wrocław. He was represented before the Court by Ms J. Banaszewska, a lawyer practising in Wrocław. 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 applicant was involved in civil proceedings in which he sought to obtain a disability pension. The final decision in this set of proceedings was given on 20 January 2005. On 13 May 2005 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed his request for the appointment of a legal-aid lawyer to lodge a cassation appeal on his behalf.
In the meantime the applicant lodged another request for a disability pension. On 29 December 2003 the Wrocław Social Security Board dismissed the applicant’s motion. The applicant appealed against this decision.
On 20 July 2004 the Wrocław Regional Court (Sąd Okręgowy) dismissed the appeal finding that the applicant should be considered fit to work. The applicant appealed against the judgment.
On 1 December 2005 the Wrocław Court of Appeal dismissed the appeal.
On 17 January 2006 the applicant was served with the written reasons for the Court of Appeal’s judgment.
On 20 January 2006 the applicant requested the Court of Appeal to appoint him a legal-aid lawyer to lodge a cassation appeal on his behalf with the Supreme Court. He also applied for exemption from court fees submitting that he had two children and had been supported by his wife. The applicant worked for an agency for the disabled, earning 600 Polish zlotys (PLN) per month (approximately 160 euros (EUR)).
On 2 February 2006 the Wrocław Court of Appeal dismissed the applicant’s request for the appointment of a legal-aid lawyer. The decision contained no reasons. It is not clear when that decision was notified to the applicant.
B. Relevant domestic law and practice
Legal provisions concerning compulsory legal representation in cassation appeal proceedings applicable at the material time are set out in paragraphs 27‑31 of the Court’s judgment in the case of Laskowska v. Poland, no. 77765/01, 13 March 2007.
COMPLAINT
Relying on Article 6 § 1 of the Convention the applicant complained that the Court of Appeal wrongly dismissed his application for the appointment of a legal‑aid lawyer in the cassation appeal proceedings and thus deprived him of a possibility to have his case examined by the Supreme Court.
In addition the applicant complained about the unfairness of the proceedings.
THE LAW
A. Access to a court
The applicant complained about lack of access to a court. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing...by [a] ... tribunal established by law...”
By letter dated 10 October 2008 the Government informed the Court 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 out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“(...) the Government hereby wish to express – by way of a unilateral declaration – their acknowledgement of the fact that the applicant’s right of access to a court was restricted in the cassation proceedings before the Supreme Court in connection with the refusal to provide him with legal assistance in those proceedings. At the same time, the Government admit that in the particular circumstances of the applicant’s case, the applicant’s complaint about refusal to provide him with legal assistance has not been redressed at the domestic level as required by Article 13 of the Convention and the applicant can claim to be a victim of violation of his right of access to a court within the meaning of Article 6 § 1 of the Convention.
In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of EUR 2,000 which they consider 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 from 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 for the Protection of Human Rights and Fundamental Freedoms. 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 periods plus three percentage points.
The Government would respectfully suggest that the above declaration be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”
In a letter of 12 November 2008 the applicant expressed the view that the sum mentioned in the Government’s declaration was not acceptable. Moreover, the applicant’s representative asked to be awarded reimbursement of the costs and expenses for the proceedings before the Court in the amount of PLN 6,017.
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 similar complaints relating to lack of access to a court (see, for example, Tabor v. Poland, no. 12825/02, 27 June 2006, Bobrowski v. Poland no. 64916/01 17 June 2008 Laskowska v. Poland cited above).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the global sum 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).
The Court’s strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for the alleged lack of access to a court.
Accordingly, this part of the application should be struck out of the list.
B. Remaining complaints
The applicant further complained that the proceedings in his case had been unfair.
However, the Court considers that this complaint lacks substantiation. It follows that the remainder of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Costs and expenses
Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. ...”
The applicant claimed PLN 6,017 for legal costs and expenses. That sum included the costs of his legal representation before the Court according to a statement of costs issued by his representative dated 6 June 2008.
The Government considered that the claim was excessive.
According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court notes that although the Strasbourg proceedings were not complex and resulted in a decision to strike part of the case out of its list, the applicant’s representative had submitted her observations on the admissibility and merits of the case as well as other pleadings. The Court thus accepts that some of these costs were actually and necessarily incurred (see mutatis mutandis, Ahmed v United Kingdom (dec), no. 31668/05, 14 October 2008). Regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 850 covering the costs of the proceedings before the Court.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention concerning lack of access to a court and of the modalities for ensuring compliance with the undertakings referred to therein;
Holds
(a) that the respondent State is to pay the applicant EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that 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;
Decides to strike the application out of its list of cases in so far as it relates to the above access to court complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy