FOURTH SECTION
DECISION
Application no. 29956/09
by Krystyna SIAŁKOWSKA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 15 June 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 27 May 2009,
Having regard to the declaration submitted by the respondent Government on 21 April 2010 requesting the Court to strike the application out of the list of cases and the applicant's response thereto,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Krystyna Siałkowska, is a Polish national who was born in 1950 and lives in Wrocław. She was represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. 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.
On 12 December 2008 the applicant submitted an application to the Social Insurance Authority, requesting to be granted a widow's pension. She referred, inter alia, to the Court's judgment in her case (Siałkowska v. Poland, no. 8932/05, 22 March 2007) and argued that her entitlement to the pension should be re-examined, given, in particular, that the Court had acknowledged that she had been denied access to the Supreme Court. She further submitted certain new evidence and argued that her entitlement should be reconsidered under Article 114 of the 1989 Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund.
On 4 January 2008 the Social Insurance Authority refused, finding that the applicant did not comply with the applicable legal requirements for a reconsideration of her rights and for a pension to be granted.
The applicant appealed. On 8 September 2008 the Wrocław Regional Court dismissed her appeal. It first noted that the fact that the applicant's right to a widow's pension had already been determined in the first set of social insurance proceedings did not prevent her from requesting that the same issue be determined afresh in new proceedings. However, the court essentially shared the reasoning of the administrative authority. It further noted that the judgment of the European Court of Human Rights given in the applicant's case was concerned only with the manner in which the legal-aid system had operated in the proceedings previously conducted before the Polish courts and did not affect her substantive rights under the social insurance legislation.
The applicant's appeal was dismissed by the Wrocław Court of Appeal by a judgment of 9 April 2009. The court noted that the Regional Court should not have examined the merits of the applicant's appeal because her case had already been terminated by a final decision. However, as the first-instance court had examined the merits of the applicant's social insurance claim, the appellate court was also obliged to examine them. The appellate court shared the conclusion of the lower court that the applicant did not meet the legal requirements for a widow pension.
The applicant was instructed that she could lodge a cassation appeal (skarga kasacyjna), which had to be prepared by a lawyer, with the Supreme Court. She was served with the written reasons for the judgment on an unspecified later date.
On 4 May 2009 the applicant requested the court to assign a legal‑aid lawyer with a view to lodging a cassation appeal with the Supreme Court. She submitted that she was unemployed and that she had been registered with the local Labour Office as unemployed and disabled. She had no right to social insurance benefits and lived essentially on social assistance. She declared that she had no other income. She submitted a number of documents issued by the local social assistance services concerning her financial situation.
On 12 May 2009 the court dismissed the applicant's request for the appointment of a legal-aid lawyer. The decision contained no reasons.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention that she had been denied an effective access to the cassation court.
THE LAW
The applicant complained that the court's refusal, without giving reasons, to grant her legal assistance for the purposes of lodging a cassation appeal against the judgment of the Wrocław Court of Appeal had infringed her right to a fair hearing, guaranteed by Article 6 § 1 of the Convention, which provides as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
By letter dated 21 April 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.
The declaration provided as follows:
“The Government hereby wish to express – by way of the unilateral declaration- their acknowledgement of the infringement of the applicant's right of access to a court, guaranteed by Article 6 § 1 of the Convention, due to refusal, without giving reasons, to appoint a lawyer for the applicant with a view to filling a cassation appeal against the Court's of Appeal judgment.
Consequently, the Government are prepared to pay to the applicant the sum of PLN 8,200 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 objected, submitting that the amount proposed by the Government 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 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 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 complaints about the violation of one's right of acces 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 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).
Accordingly, it should be struck out of the list.
For these reasons, the Court
Takes note of the terms of the respondent Government's declaration 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 accordance with Article 37 § 1 (c) of the Convention.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy