FOURTH SECTION
DECISION
Application no. 40373/07
by Włodzimierz Edward GIZIŃSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 24 November 2009 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 30 July 2007,
Having regard to the declaration submitted by the respondent Government on 13 August 2009 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 Włodzimierz Edward Giziński, is a Polish national who was born in 1954 and lives in Elbląg. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
By a judgment of 1 June 2006 the Elbląg Regional Court dismissed the applicant’s claim against his employer for compensation for alleged discrimination at work.
The applicant’s appeal was dismissed on 16 November 2006 by the Gdańsk Court of Appeal.
On 1 March 2007 the applicant was served with the judgment with its written grounds and informed about the sixty-day time-limit to lodge a cassation appeal.
On 10 April 2007 the Court of Appeal assigned the applicant a legal-aid lawyer for the purposes of lodging a cassation appeal.
On 16 April 2007 the local Bar Association informed the applicant that a legal-aid lawyer had been assigned to his case.
By a letter of 14 May 2007 to the Court of Appeal the lawyer refused to lodge the cassation appeal, finding no points of law on which it could be based.
The applicant was informed by the court about the legal‑aid lawyer’s opinion of 14 May 2007 on 29 May 2007.
COMPLAINTS
The applicant complained about the outcome of the proceedings.
The applicant further complained that he had been denied an effective access to a court since the legal‑aid lawyer had refused to prepare and file a cassation complaint with the Supreme Court. He submitted that the lawyer’s opinion had not been sent to him within a reasonable time.
THE LAW
A. Access to a court
The applicant complained that he had been denied an effective access to a court since the legal‑aid lawyer had refused to prepare a cassation complaint to the Supreme 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 within a reasonable time by [a] ... tribunal...”
By letter dated 13 August 2009 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 unilateral declaration — its acknowledgement of the fact that the applicant’s right to effective access to a court guaranteed under Article 6 § 1 of the Convention was restricted.
In these circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of 8,800 PLN.
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 of 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 Government would suggest that the above declaration might 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 dated 17 September 2009 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 of 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 or part thereof 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 its practice concerning complaints about the violation of one’s right of access to the Supreme Court in civil proceeding (see Staroszczyk v. Poland no. 59519/00 and Siałkowska v. Poland, no. 8932/05, 22 March 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 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 complaint
The applicant further complained under Article 6 of the Convention about the outcome of the proceedings. The Court considers that the material in its possession does not disclose any appearance of a violation of this provision of the Convention.
Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court
Takes note unanimously of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention concerning access to court and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides by a majority 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 unanimously the remainder of the application inadmissible;
Refuses unanimously to grant the applicant’s request for anonymity.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy