by Jacek GŁOGOWSKI
The European Court of Human Rights (Fourth Section), sitting on 30 June 2009 as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 9 August 2008,
Having regard to the declaration submitted by the respondent Government on 8 May 2009 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 applicant, Mr Jacek Głogowski, is a Polish national who was born in 1946 and lives in Czerwonak. 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 20 January 2007 the applicant sued a certain company SIEGENIA AUBI for payment for the alleged failure to comply with the terms of a contract.
On 23 April 2007 the Opole Regional Court gave judgment and dismissed the applicant’s claim.
The applicant appealed and asked to be exempted from court fees.
On 29 June 2007 the Opole Regional Court exempted the applicant from costs due in the proceedings. It further refused to grant legal aid to the applicant.
On 17 October 2007 the Wrocław Court of Appeal upheld the first instance judgment.
On 14 January 2008 the applicant requested the Court of Appeal to appoint a legal-aid lawyer for him with a view to filing a cassation appeal.
On 23 January 2008 the Court of Appeal refused the applicant’s request for a legal-aid lawyer. That decision did not contain any reasons.
On 9 February 2008 the applicant again asked the Court of Appeal to appoint a legal-aid lawyer for him with a view to filing a cassation appeal. On 14 February 2008 the Court of Appeal refused his request. That decision was likewise not reasoned.
On 29 April 2008 the Ombudsman refused to file a cassation appeal on the applicant’s behalf.
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.
A. Complaint under Article 6 § 1
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 8 May 2009 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 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
its acknowledgement of the fact that the applicant’s right of access to a court guaranteed by Article 6 § 1 was restricted. At the same time the Government admit that in the particular circumstances of the applicant’s case, the applicant’s complaint about refusal to provide him with legal assistance has not been redressed at the domestic level as required by Article 13 of the Convention and the applicant can claim to be a victim of violation of his right of access to a court within the meaning of Article 6 § 1 of the Convention.
Consequently, the Government are prepared to accept the applicant’s claims for just satisfaction amounting to PLN 8,200 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 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 29 May 2009 the applicant generally objected to the Government’s declaration.
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).
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 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).
Accordingly, it should be struck out of the list.
B. Remaining complaints
The applicant further complained under Article 6 about the outcome and unfairness of the proceedings. He also alleged under Article 13 that he could not appeal against some of the procedural decisions given in his case.
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 under Article 6 § 1 of the Convention (access to a court) 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 in so far as it relates to the above mentioned complaint.
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza