FOURTH SECTION
DECISION
Application no. 35345/08
by Wojciech OKSENTOWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 11 May 2010 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 7 July 2008,
Having regard to the declaration submitted by the respondent Government on 9 November 2009 requesting the Court to strike the application out of the list of cases;
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Wojciech Oksentowski, is a Polish national who was born in 1970. He is currently serving a prison sentence in Kwidzyn prison. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
On 16 August 2007 the Elblag District Court convicted the applicant of several counts of theft and sentenced him to four years and six months' imprisonment. On 10 April 2008 the Elblag Regional Court upheld the first-instance judgment.
On 15 May 2005 the applicant requested that a legal‑aid lawyer be assigned to the case to prepare a cassation appeal. On 26 May 2008 the court assigned a legal-aid lawyer to the case.
On 19 June 2008 the lawyer informed the court about her refusal to draw up a cassation appeal. In a letter to the applicant dated 23 June 2008 the Elblag Regional Court informed him about the lawyer's refusal. The court also informed him that the thirty-day time-limit for lodging a cassation appeal was to expire on 29 June 2008.
COMPLAINT
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 appeal to the Supreme Court. He submitted that he had only been left with a few days in which to find a new lawyer and that had made his right illusory.
The applicant further complained under Article 6 of the Convention that the proceedings in his case had been unfair.
THE LAW
1. 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 appeal for examination by the Supreme Court. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
“In the determination of the criminal charges against him ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...”
By letter dated 9 November 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 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 denial of access to a court in the determination of the criminal charges against [the applicant] and therefore [of] a violation of Article 6 § 1 read together with Article 6 § 3 (c ) of the Convention.
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 PLN 4,500 (four thousand five hundred Polish zlotys) 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 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”.
The applicant was requested to express his view on the Government's declaration. He failed to do so.
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 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 criminal proceedings (see Antonicelli v. Poland, no. 2815/05, 19 May 2009; Kulikowski v. Poland, no. 18353/03, ECHR 2009‑... (extracts)).
Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed, 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.
2. The applicant further complained under Article 6 of the Convention that the proceedings in his case had been unfair.
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 of the terms of the respondent Government's declaration in respect of the complaint under Article 6 § 1 of the Convention concerning denial of access to the cassation proceedings 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.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy