FOURTH SECTION
DECISION
Application no. 40048/07
by Barbara WINKLER
against Poland
The European Court of Human Rights (Fourth Section), sitting on 26 May 2009 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 17 August 2007,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Barbara Winkler, is a Polish national who was born in 1958 and lives in Wrocław. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 March 2002 the Wrocław Social Security Board (Zakład Ubezpieczeń Społecznych) gave a decision and terminated the applicant’s right to a disability pension, holding that she had failed to fulfil one of the necessary requirements, that is that she had not worked for five years within the last ten years prior to her request for granting the right in question.
On an unspecified date the applicant appealed against that decision.
On 15 March 2005 the Wrocław Regional Court (Sąd Okręgowy) dismissed the appeal.
On an unspecified date the applicant lodged an appeal against the Regional Court’s judgment.
On 25 January 2007 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal.
On 2 March 2007 the applicant requested the Wrocław Court of Appeal to appoint a legal-aid lawyer with a view to a cassation appeal being lodged on her behalf with the Supreme Court (Sąd Najwyższy). She enclosed a declaration of means with her request.
On 29 March 2007 she requested again that the same court appoint a legal-aid lawyer for her.
The Wrocław Court of Appeal gave two decisions, on 13 March 2007 and on 3 April 2007, in which it dismissed the applicant’s requests. The decisions did not contain any reasoning.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning granting legal aid and lodging of cassation appeals are stated in the Court’s judgment of Tabor v. Poland, no. 12825/02, §§ 16-23, 27 June 2006
Article 871 of the Code of Civil Proceedings lays down the principle of mandatory assistance of a lawyer in cassation appeal proceedings.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention of a violation of her right of access to a court on the grounds that the Wrocław Court of Appeal had refused to appoint a legal-aid lawyer who would lodge a cassation appeal on her behalf and that the court’s decisions had contained no reasoning.
THE LAW
On 6 February 2009 the Court received the following declaration signed by the applicant:
“I, Barbara Winkler, note that the Government of Poland are prepared to pay me the sum of PLN 8,000 (eight thousand Polish zlotys) 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 at the rate applicable on the date of payment, and will be free of any taxes that may be applicable and 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 21 April 2009 the Court received the following declaration from the Government:
“I, Jakub Wołąsiewicz, Agent of the Government of Poland, declare that the Government of Poland offer to pay PLN 8,000 (eight thousand Polish zlotys) to Ms Barbara Winkler 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 and 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 friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyNicolas Bratza Registrar President
Full & Egal Universal Law Academy