FOURTH SECTION
DECISION
Application no. 40229/11
Danuta MOLENDA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 23 June 2015 as a Committee composed of:
George Nicolaou, President,
Krzysztof Wojtyczek,
Yonko Grozev, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 13 June 2011,
Having regard to the declaration submitted by the respondent Government on 1 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:
FACTS AND PROCEDURE
The applicant, Ms Danuta Molenda, is a Polish national, who was born in 1961 and lives in Bydgoszcz.
The Polish Government (“the Government”) were represented by their Agent, Ms Justyna Chrzanowska of the Ministry of Foreign Affairs.
The applicant complained under Article 6 of the Convention about the refusal of the legal-aid lawyer to submit the cassation appeal to the Supreme Court.
The application had been communicated to the Government.
THE LAW
The applicant complained about the refusal of the legal-aid lawyer to submit the cassation appeal to the Supreme Court. She relied on Article 6 of the Convention.
After failure of attempts to reach a friendly settlement, the Government informed the Court by letter of 31 March 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 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 the unilateral declaration – their acknowledgement that the failure to provide access to the Supreme Court to the applicant violated Article 6 § 1 of the Convention.
Consequently, the Government are prepared to pay to the applicant the sum of PLN 8,000 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 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 respectfully 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”.
By letter of 20 April 2015, the applicant indicated that she was not satisfied with the terms of the unilateral declaration on the ground that the sum proposed by the Government was not adequate to the damage suffered as a result of a violation of the Convention.
The Court reiterates 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 reiterates 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).
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 of access to The Supreme Court (see, for example, Staroszczyk v. Poland, no. 59519/00, 22 March 2007; Siałkowska v. Poland, no. 8932/05, 22 March 2007; Zapadka v. Poland no. 2619/05, 15 December 2009).
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 respondent Government’s declaration under Article 6 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 16 July 2015.
Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy