FOURTH SECTION
DECISION
Application no. 43619/08
by Stefan WILCZYŃSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 27 April 2010 as a Chamber composed of:
Nicoals Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Ján Šikuta,
Mihai Poalelungi,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 25 August 2008,
Having regard to the declaration submitted by the respondent Government on 1 February 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 Stefan Wilczyński, is a Polish national who was born in 1954 and lives in Ruda Śląska. 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 14 September 2007 the Tychy District Court allowed the applicant's claim against his former employer for additional compensation for an occupational accident which he had had in 1986. The applicant appealed, contesting the amount of the award.
On 17 January 2008 the Katowice Regional Court dismissed the applicant's appeal. On 19 February 2008 the applicant was served with the judgment with its written grounds. On 19 March 2008 a legal‑aid lawyer was assigned to the case for the purposes of lodging a cassation appeal with the Supreme Court.
In her written opinion, served on the applicant on 15 April 2008 the legal‑lawyer found no points of law on which a cassation appeal could be based. The time-limit for lodging the appeal expired on 19 April 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 and file a cassation complaint with the Supreme Court.
THE LAW
By letter dated 1 February 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 unilateral declaration — its acknowledgement of denial of access to a court in the determination of the applicant's civil rights and obligations within the meaning of Article 6 § 1 of the Convention.
Consequently, the Government are prepared to pay to the applicant 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”.
In a letter of 2 March 2010 the applicant expressed the view that the sum mentioned in the Government's declaration 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 its practice concerning complaints about the violation of one's right of access to the Supreme Court in civil proceeding (see Staroszczyk v. Poland no. 59519/00, Siałkowska v. Poland, no. 8932/05, 22 March 2007 and Smyk v. Poland 8958/04, 28 July 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 its 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