European Court of Human Rights

FOURTH SECTION

FINAL DECISION

Application no. 53713/00
by Marek ANDRZEJCZAK
against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 November 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 with the European Commission of Human Rights on 28 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having regard to the Court’s partial decision of 16 December 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marek Andrzejczak, is a Polish national who was born in 1967. He was represented before the Court by Ms. B. Słupska Uczkiewicz, a lawyer practising 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 25 February 1998 the Kalisz Regional Court found the applicant guilty of aggravated theft and sentenced him to five years’ imprisonment. The applicant, who was represented by a legal-aid lawyer, appealed.

On 3 June 1998 the Łódź Court of Appeal upheld the contested judgment. On 19 June 1998 the court sent a copy of the judgment to the applicant.

By a letter of 25 September 1998 a legal-aid lawyer assigned to represent the applicant for the purposes of cassation proceedings informed the court that he had found no legal grounds on which to lodge a cassation appeal against the second-instance judgment. The registry of the court forwarded that letter to the applicant who was at that time serving his sentence on 28 September 1998. The letter was ultimately served on the applicant on 2 October 1998. The time-limit for lodging the cassation appeal expired on 3 October 1998.

COMPLAINTS

The applicant complained, invoking Article 6 of the Convention, that the proceedings had been unfair in that the courts had wrongly assessed evidence, erred in establishing the facts of the case and incorrectly applied applicable domestic law.

He submitted that he could not lodge a cassation appeal against the judgment of the appellate court as his legal aid lawyer had refused to do so and that he had thereby been deprived of access to a court.

THE LAW

On 14 August 2008 the Court received the following declaration from the Government:

“I declare that the Government of Poland offer to pay 4,000 euros to Mr Marek Andrzejczak 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 converted into Polish zloty, at the rate applicable on the date of payment, and 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.”

On 23 January 2008 the Court received the following declaration signed by the applicant:

“I, Marek Andrzejczak, note that the Government of Poland are prepared to pay me the sum of 4,000 euros 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 converted into Polish zloty, at the rate applicable on the date of payment, and 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.”

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 discontinue the application of Article 29 § 3 and 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 Early Nicolas Bratza
Registrar President