European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 12138/04
by Andrzej LAMPE
against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 October 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,

and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 2 January 2004,

Having regard to the declaration submitted by the respondent Government on 1 April 2008 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 Andrzej Lampe, is a Polish national who was born in 1939 and lives in Nowy Tomyśl. He was represented before the Court by Mrs M. Moś, a lawyer practising in Poznań. 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.

The applicant was a shareholder of the Wielkopolska Spółka Drobiarska DRÓB S.A., a joint stock company.

On 17 July 2002 the applicant sued the company before the Poznań Regional Court. He sought annulment of a resolution adopted at the company's general meeting.

The applicant also requested the Regional Court to exempt him from court fees. On 3 October 2002 the court granted that request in respect of the fees related to the filing of his action.

On 1 April 2003 the Regional Court dismissed the applicant's claim. Having regard to the applicant's financial situation and principles of equity, it exempted him as the losing party pursuant to Article 102 of the Code of Civil Procedure from the obligation to pay the legal fees borne by the defendant company. It observed in this respect that the applicant had filed his claim acting – in his view – in the interest of the company.

The applicant appealed and requested the court to exempt him from court fees related to the filing of his appeal. On 12 May 2003 the Regional Court granted that request.

On 9 July 2003 the Poznań Court of Appeal dismissed the applicant's appeal. Like the first instance court, it applied Article 102 of the Code of Civil Procedure to the applicant.

The applicant lodged a notice of cassation appeal and requested the Court of Appeal to serve on him the written reasons for its judgment.

On 11 July 2003 the applicant requested the Court of Appeal to appoint a legal aid lawyer with a view to filing a cassation appeal. He submitted that he had been exempted from court fees by the Regional Court and that the assistance of a lawyer was necessary in the cassation appeal proceedings.

On 2 August 2003 the applicant was served the written reasons for the Court of Appeal's judgment. He was instructed that he could lodge a cassation appeal with the Supreme Court, which had to be prepared by a lawyer.

On the same day the applicant was served with the Court of Appeal's decision of 30 July 2003 dismissing his request for appointment of a legal aid lawyer. The Court of Appeal held as follows:

“the indispensable condition for the appointment of an advocate for a party exempted (entirely or partly) from court fees is the need for his participation in the case, which has not been met here.

In the course of the proceedings the claimant has shown diligence in preparation of his pleadings. Invoking legal provisions also indicates that he is not unfamiliar with the legal issues...”

The applicant appealed. However, on 16 September 2003 the Court of Appeal rejected his appeal as inadmissible in law. That decision was served on him on 24 September 2003.

B.  Relevant domestic law and practice

Legal provisions concerning compulsory legal representation in cassation appeal proceedings applicable at the material time are set out in paragraphs 27 31 of the Court's judgment in the case of Laskowska v. Poland, no. 77765/01, 13 March 2007.

COMPLAINT

Relying on Article 6 §§ 1 and 3 (c) the applicant complained that the Court of Appeal wrongly dismissed his application for the appointment of a legal aid lawyer in the cassation appeal proceedings and thus deprived him of a possibility to have his case examined by the Supreme Court.

THE LAW

The applicant complained about lack of access to a court. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing...by [a] ... tribunal established by law...”

By letter dated 17 March 2008 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 a unilateral declaration – their acknowledgement that the refusal to appoint a lawyer for the applicant with a view to filing a cassation appeal was not compatible with his right of access to a court guaranteed by Article 6 § 1 of the Convention.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of EUR 2,000.

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from 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 for the Protection of Human Rights and Fundamental Freedoms. 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.

The Government would respectfully suggest that the above declaration 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.

(...)”

In a letter of 10 April 2008 the applicant expressed the view that the sum mentioned in the Government's declaration was in principle acceptable. However, in addition to it he asked for the costs of his legal representation in the amount of 2,000 PLN including VAT.

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 similar complaints relating to lack of access to a court (see, for example, Tabor v. Poland, no. 12825/02, 27 June 2006, Bobrowski v. Poland no. 64916/01 17 June 2008 Laskowska v. Poland cited above).

Having regard to the nature of the admissions contained in the Government's declaration, as well as the global sum 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 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 the application (Article 37 § 1 in fine).

The Court's strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for the alleged lack of access to a court.

Accordingly, the application should be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government's declaration under Article 6 § 1 of the Convention 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 accordance with Article 37 § 1 (c) of the Convention.

Lawrence Early Nicolas Bratza
Registrar President