FOURTH SECTION
DECISION
Application no. 1551/08
by Krzysztof PASEK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 14 December 2010 as a Committee composed of:
Ján Šikuta, President,
Lech Garlicki,
Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 21 December 2007,
Having regard to the declaration submitted by the respondent Government on 15 September 2010 and 29 November 2010 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 Krzysztof Pasek, is a Polish national who was born in 1957 and lives in Częstochowa. 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.
The applicant was a party to civil proceedings for payment.
The final judgment was given by the Częstochowa Regional Court on 16 May 2007. It was served on the applicant on 8 June 2007.
On 6 July 2007 the Częstochowa Regional Court granted the applicant legal aid for the purposes of lodging a cassation appeal against the final judgment.
The legal-aid lawyer assigned to the case refused to lodge a cassation appeal for lack of reasonable prospects of success, of which the applicant was informed in a letter dated 7 August 2007. According to the applicant’s submissions, this letter was served on him around 25 September 2007.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the refusal of his legal-aid lawyer to lodge a cassation appeal had deprived him of effective access to the Supreme Court.
He also complained that the proceedings in his case were unfair in that the courts were disposed more favourably towards the other party to the dispute.
THE LAW
A. Access to the Supreme Court
The applicant complained under Article 6 § 1 of the Convention that the refusal of his legal-aid lawyer to lodge a cassation appeal had deprived him of effective access to the Supreme Court.
By a letter dated 15 September 2010 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. By a further letter of 29 November 2010 the Government made technical and editorial amendments to the initial declaration.
The declaration provided as follows:
“(...) The government wish to express – by way of unilateral declaration – its acknowledgment of the fact that delay in informing the applicant about refusal of his legal-aid lawyer to lodge a cassation appeal with the Supreme Court put him in a position in which his efforts to have access to a cassation procedure under the legal aid system failed. Accordingly, there has been a breach of Article 6 § 1 of the Convention. (...) Consequently, the Government are prepared to pay to the applicant the sum of PLN 7,500 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 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 rate of the European Central Bank during the default periods plus three percentage points.”
In a letter of 1 October 2010 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low and that respect for human rights required that the Court continue to examine his application.
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 a 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).
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 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.
B. Remaining complaints
The applicant further complained that proceedings in his case were unfair in that the courts were disposed more favourably towards the other party to the dispute.
However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 concerning access to the Supreme Court 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 so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıJán ŠikutaDeputy Registrar President
Full & Egal Universal Law Academy