FOURTH SECTION
DECISION
Application no. 30128/02
by Dariusz TOKAREK
against Poland
The European Court of Human Rights (Fourth Section), sitting on 25 September 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 26 November 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dariusz Tokarek, is a Polish national who was born in 1962 and lives in Płock. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
On 21 September 2000 the Łodź Regional Court found the applicant guilty of robbery. It sentenced him to three years and six months’ imprisonment. The applicant, who was represented by a legal-aid lawyer, appealed against the judgment.
On 6 June 2001 the Łodź Court of Appeal in part dismissed and in part upheld the applicant’s appeal. In particular, it upheld the sentence imposed by the first-instance court. The Court of Appeal considered that the Regional Court had thoroughly assessed the evidence and carefully considered the applicant’s guilt.
The applicant requested that legal aid be granted to him.
By a letter of 14 July 2001 A.W., the lawyer who had represented the applicant before the first- and second-instance court, informed him that he saw no grounds on which to prepare a cassation appeal against the judgment of the appellate court.
By a decision of 22 August 2001 the court allowed the applicant’s request and assigned A.W. to represent him for the purpose of the cassation proceedings.
On 25 July 2001 the applicant submitted his own appeal to the Court of Appeal.
By a letter of 14 September 2001 the lawyer refused to prepare the appeal.
On 18 September 2001 the Łodź Court of Appeal refused to admit the applicant’s appeal, because it had not been lodged by a lawyer. He was informed that an appeal to the Supreme Court lay against this decision and that it should be lodged within a seven-day time-limit by a lawyer.
On 26 September 2001 the applicant appealed against this decision.
On 8 February 2002 the Łodź Court of Appeal summoned the applicant to rectify the shortcoming in his appeal by having it prepared and signed by a lawyer.
On 14 February 2002 the applicant complained that he did not have a lawyer because the lawyer previously assigned to the case had refused to act on his behalf.
On 12 March 2002 the Łodź Court of Appeal granted the applicant legal aid for the purposes of preparing an appeal against the decision of 18 September 2001. The applicant was informed on 18 March 2002 that J.K. had been assigned to the case.
By a letter of 22 April 2002 J.K. refused to prepare an appeal. He indicated that this decision was lawful since the cassation appeal submitted by the applicant had not been prepared and signed by a lawyer. He further noted that in any event there were no grounds on which to lodge a cassation appeal in the case as indicated by the refusal of the previous lawyer.
COMPLAINTS
The applicant complained under Article 6 of the Convention about the unfairness of the proceedings. In particular, he alleged that the courts had lacked impartiality and that they had disregarded evidence on his behalf, had reached untenable conclusions as to the facts and, as a result, had given erroneous decisions.
The applicant complained that the legal-aid lawyer had refused to bring a cassation appeal on his behalf.
THE LAW
On 22 June 2007 the Court received the following declaration signed by the applicant:
“I, Dariusz TOKAREK, note that the Government of Poland are prepared to pay the sum of 11,330 PLN with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
On 20 August 2007 the Court received the following declaration from the Agent of the Government:
“I declare that the Government of Poland offer to pay 11,330 PLN to Mr Dariusz Tokarek with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, 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 period plus three percentage points. The payment will constitute the final resolution of the case.”
The Court takes note of the agreement reached between the parties and considers that the matter has been resolved (Article 37 § 1 (b) of the Convention). Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued.
Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy