by Waldemar BATOR
The European Court of Human Rights (Fourth Section), sitting on 15 September 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 4 March 2001,
Having regard to the partial decision of 5 January 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the declaration submitted by the respondent Government on 13 July 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 Waldemar Bator, is a Polish national who was born in 1954 and lives in Plock. He is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warszawa. 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.
1. Proceedings concerning the appointment of a liquidator
The applicant was a 19% shareholder in the limited liability company “Capital”. Z.B. owned the remaining 81% of the shares and was also the owner of an American company. After “Capital” had been dissolved, Z.B. was appointed liquidator of the company on the basis of the shareholders’ resolution of 6 November 1995. The applicant voted against the resolution. However, Z.B. was able to carry the vote thanks to his majority shareholding.
On 14 November 1995 the applicant requested the District Court to dismiss Z.B. and to appoint another liquidator. The applicant justified his request on the ground that Z.B. was domiciled in the United States and rarely visited Poland and that his many fraudulent actions had included falsification of the company accounts so as to take over its assets. The applicant maintained that he had a justified interest in ensuring that the company was liquidated correctly and was greatly concerned that his financial interests would be put at risk with Z.B. as liquidator.
On 15 March 1996 the Płock District Court found several serious infringements of company law in the conduct of the liquidator. The court established inter alia that on 20 January 1996 Z.B. had sold the company’s real property by auction, and the buyer turned out to be his wife. The court made the relevant changes in the company register, adding the applicant as the new liquidator and deleting Z.B.’s name.
On 27 May 1996 the District Court, acting ex officio, nullified these changes in the register and instituted rectification proceedings, reasoning that the changes effected on 15 March 1996 had been made without a proper court decision.
On 11 July 1997 the court issued a decision appointing the applicant as liquidator of the company, but failed to order the relevant changes to be made to the register. Z.B. appealed.
On 30 October 1997 the Warsaw Regional Court quashed the decision on the basis that Z.B. had not been properly represented.
On 15 October 1998 the Płock District Court for the third time appointed the applicant as liquidator of the company and ordered the relevant changes to be made to the company register. Z.B.’s appeal was dismissed by the Warsaw Regional Court.
On 16 December 1998 the court deleted the aforementioned changes for an unknown reason. In consequence, the applicant could not represent the company in civil proceedings instituted against Z.B. and the proceedings were eventually discontinued.
On 5 September 2000 the Płock District Court issued ex oficio a decision to amend the company register by deleting the entry “Z.B. – liquidator” and replacing it with “Waldemar Bator – liquidator”. Only after this date was the applicant able to act as the company’s liquidator.
Meanwhile, Z.B. had taken over the company’s property (worth about PLN 2,500,000) and had registered a new company, with the same registered office and under a very similar business name.
The applicant appealed against the decision of 5 September 2000, arguing that he had been entered in the company’s register as liquidator by the decision of 15 October 1998. Thus, the 2000 decision had been issued in breach of the law and implied that the applicant had been appointed liquidator only on that date.
On 28 June 2001 the Warsaw Regional Court quashed the decision of 5 September 2000 and confirmed that the decision of 15 October 1998 to enter the applicant in the register had been final and valid.
2. Proceedings concerning exemption from court fees and appointment of a legal-aid lawyer in cassation proceedings
On 16 March 1999 the applicant lodged a claim for payment against Z.B. (who had formerly been the company’s representative and later the liquidator of “Capital”) and against the State Treasury for compensation for damage he had suffered due to the court bailiff’s conduct in another set of proceedings.
On 9 May 2001 the Płock Regional Court dismissed his action. On 22 May 2002 the Warsaw Court of Appeal upheld the judgment.
On 28 May 2002 the applicant asked for an exemption from court fees and for a legal-aid lawyer to be appointed to assist him in the preparation of a cassation appeal.
On 9 July 2002 the Court of Appeal exempted him from having to pay court costs and asked the District Chamber of Legal Advisers to appoint a lawyer to draft a cassation appeal for the applicant.
On 10 September 2002 the lawyer I.K. informed the applicant that she had been appointed as his legal-aid representative and that the time-limit for lodging a cassation appeal would expire on 10 October 2002.
On 5 October 2002 (a Saturday) the lawyer informed the applicant in writing that she would not lodge a cassation appeal and that he should ask for a new lawyer to be appointed.
On 16 October 2002 the applicant wrote to the Council of Legal Advisers requesting it to institute disciplinary proceedings against I.K. He complained about the conduct of I.K., in particular about the fact that she had not informed him earlier about her opinion; he also alleged that the lawyer had offered to sign the cassation appeal provided he drafted it himself. The applicant further explained in detail why he had not agreed with the lawyer’s arguments concerning the chances of success of his cassation appeal. Apparently, he received no reply to his letter.
On 17 October 2002 the applicant filed a motion with the Court of Appeal asking for retrospective leave to lodge a cassation appeal out of time and for the appointment of a new legal-aid lawyer to draft the cassation appeal. He repeated the arguments contained in his letter to the Council of Legal Advisers.
On 21 October 2002 the Court of Appeal awarded the lawyer I.K. PLN 1,325 for her assistance in the cassation proceedings. The applicant appealed, claiming that he had not received any assistance from the lawyer. On 22 November the court rejected his appeal.
On 23 October 2002, in connection with his request of 17 October 2002, the Court of Appeal summoned the applicant to submit two copies of a cassation appeal signed by a lawyer. The applicant explained that it was impossible for him to do so without the court first allowing his request for a new legal-aid lawyer to be assigned to him.
On 27 November 2002 the court asked the applicant whether he wished to waive his right to free legal assistance. The applicant replied that this was not his intention.
On 14 January 2003 the court asked the applicant whether a new lawyer had been appointed in place of I.K. On 30 January 2003 the applicant inquired whether he should request the Regional Chamber of Legal Advisers to appoint a new legal-aid lawyer or whether a decision of the court was required.
On 12 February 2003 the court informed the applicant that once the court had decided to grant legal aid, the District Chamber of Legal Advisers or the District Bar Association was responsible for assigning a lawyer to the case, and for changing the assigned lawyer. No legal basis was provided for this statement.
On 26 February 2003 the Court of Appeal decided to reject the applicant’s request on formal grounds. The written grounds of the decision read as follows:
On 23 October 2002 the plaintiff was summoned to comply with the formal requirements for a request for leave to lodge a cassation appeal out of time by submitting two copies of a cassation appeal drafted by a lawyer. The summons was served on the applicant because his legal-aid lawyer had refused to lodge a cassation appeal, informing the applicant and the court about this decision. The plaintiff has not complied with the summons (...) and has failed to submit a cassation appeal prepared by a lawyer along with his request. Therefore, the request should be rejected (...)
B. Relevant domestic law and practice
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
The relevant provisions concerning the appointment of a legal-aid lawyer and the formal requirements for lodging a cassation appeal are set out in the Court’s judgments in the cases of Tabor v. Poland, no. 12825/02, § 16-23, 27 June 2006; Staroszczyk v. Poland, no. 59519/00, § 38-72, 22 March 2007 and Siałkowska v. Poland, no. 8932/05, § 20-55, 22 March 2007.
The applicant submitted, referring to Article 6 § 1 of the Convention, that the legal aid lawyer’s refusal to prepare a cassation appeal against the judgment of the appellate court had resulted in his irrevocably losing an opportunity to institute cassation proceedings. He also complained about the unreasonable length of the first set of proceedings.
Article 6 § 1 of the Convention, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
By letter dated 13 July 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 this part of the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government’s endeavour to secure a friendly settlement of the matter has remained unsuccessful. (...)
That being the case, the Government hereby wish to express - by way of the unilateral declaration – their acknowledgement of the violation of the applicant’s right to hearing within reasonable time and access to a court guaranteed by Article 6 § 1 of the Convention.
Consequently, the Government are prepared to pay to the applicant the sum of PLN 15,5001, 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 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 periods plus three percentage points.”
In his reply the applicant contested the conditions proposed by the Government and expressed his wish that the examination of his application be continued.
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 of 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 its practice concerning complaints about the violation of one’s right of access to the Supreme Court in civil proceedings on account of legal-aid lawyers’ refusals to prepare cassation appeals (Siałkowska v. Poland, no. 8932/05, 22 March 2007; Staroszczyk v. Poland, no. 59519/00, 22 March 2007), as well as concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006—V; Majewski v. Poland, no. 52690/99, 11 October 2005 and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007).
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 application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given its 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).
Accordingly, it should be struck out of the list.
For these reasons, the Court by a majority
Takes note of the terms of the respondent Government’s declaration in respect of the complaints 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.
Fatoş Aracı Nicolas
Deputy Registrar President
1 Approximately 3,500 euros