European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 21014/06
by Mieczysław NITKIEWICZ
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,
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 5 September 2006,

Having regard to the declaration submitted by the respondent Government on 4 July 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 Mieczysław Nitkiewicz, is a Polish national who was born in 1951 and lives in Wizna. 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 an unspecified date in 2004 the applicant filed an action in the Łomża Regional Court against the Łomża branch of the BPH S.A. Bank. He sought compensation and an apology, claiming that the bank had obtained money under false pretences and infringed his personal rights. The court partly exempted the applicant from court fees, but refused to appoint a legal-aid lawyer for him.

The applicant requested on three occasions that Judge A.K. withdraw from sitting in the case. He submitted that Judge A.K. had given an unfavourable decision in the earlier case which he had brought against the Łomża District Court's bailiff and had refused to admit evidence which he had sought to adduce. The applicant's requests were dismissed by decisions given by a panel of three judges of the Regional Court on 1 February, 20 May and 2 September 2005 respectively. It found that the applicant's claims of bias had been unsubstantiated. The applicant's appeals were unsuccessful.

On 7 September 2005 the Łomża Regional Court dismissed the applicant's action and ordered him to pay the defendant's costs. The applicant appealed against the first-instance judgment. On 7 November 2005 the Regional Court exempted the applicant from the court fees required for filing his appeal.

The Court of Appeal refused the applicant's request for a legal-aid lawyer to be appointed for him in the appeal proceedings.

On 7 March 2006 the Białystok Court of Appeal dismissed the applicant's appeal and ordered him to pay the defendant's costs.

By a letter dated 27 March 2006 the Court of Appeal served on the applicant its judgment of 7 March 2006.

On an unspecified later date the applicant requested the Court of Appeal to appoint him a legal-aid lawyer with a view to filing a cassation appeal. On 3 April 2006 the Court of Appeal rejected the applicant's request for the appointment of a legal-aid lawyer. Its decision was not reasoned.

Subsequently, the applicant requested the court to serve on him the reasons for the decision of 3 April 2006. That request was rejected on 12 April 2006.

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.

COMPLAINTS

The applicant alleged that the proceedings in his case were unfair, in breach of Article 6 § 1 of the Convention. He submitted in this connection that all his requests for the appointment of a legal-aid lawyer were refused. Similarly, all his requests for Judge A.K. to withdraw were unsuccessful.

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:

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

By letter dated 4 July 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of 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 of the restriction to the fair trial in which the applicant was involved. The Government are prepared to pay the applicant a sum of PLN 7,000 as just satisfaction, which they consider to be reasonable in the light of the Court's case law (see the judgment of 27 June 2006 in the case of Tabor v. Poland, no. 12825/02; decision of 2 October 2007 in the case Soska v. Poland, no. 41170/02).

The Government therefore invite the Court to strike the present case out of the list of cases. They suggest that the present 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.

(...)”

In a letter of 29 May 2008 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 or part thereof 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 or part thereof 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 and Laskowska v. Poland cited above).

The Court notes 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. It understands that the sum proposed by the Government cover pecuniary and non-pecuniary damage, as well as costs and expenses, and will be free from any taxes that may be applicable. It should be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. It further understands that in the event of failure to pay this sum within the said three-month period, the Government should 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.

Accordingly, and on that understanding, the Court considers that it is no longer justified to continue the examination of this part 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 this part 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, this part of the application should be struck out of the list.

B.  Remaining complaints

The applicant further complained that the proceedings in his case were unfair and alleged a lack of impartiality on the part of Judge A.K. of the Łomża Regional Court.

The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government's declaration in respect of the complaint under Article 6 § 1 of the Convention concerning lack of access to a court and of the modalities for ensuring compliance with the undertakings referred to in its decision;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza
Registrar President