by Cezary STACHURSKI
The European Court of Human Rights (Fourth Section), sitting on 22 September 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 7 August 2007,
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;
Having deliberated, decides as follows:
The applicant, Mr Cezary Stachurski, is a Polish national who was born in 1965 and lives in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 January 2005 the applicant lodged with the Warsaw Regional Court a compensation claim against the State Treasury. The applicant submitted that the Mazowiecki Governor had failed to enter his name on a list of persons who had been eligible for membership of housing co operatives with a view to obtaining a flat. As a result, he was deprived of an opportunity to acquire a flat and his savings which had been accumulated on a saving-for-housing book lost value.
On 22 November 2005 the Warsaw Regional Court dismissed the applicant’s claim. The court also obliged him to reimburse the litigation costs borne by the defendant.
On 12 January 2007 the Warsaw Court of Appeal dismissed the applicant’s appeal, sharing the conclusions of the lower court. The court also obliged him to reimburse the litigation costs borne by the defendant before the second-instance court.
On a later unknown date the applicant requested that a legal aid lawyer be assigned to the case to prepare a cassation complaint. On 7 March 2007 the Warsaw Regional Court allowed his request. On 12 March 2007 the Warsaw Bar Association assigned a legal-aid lawyer to the case (served on the lawyer on 21 March 2007).
On 3 April 2007 the Warsaw Court of Appeal sent a copy of the judgment with its reasons to the lawyer.
In a letter to the applicant dated 2 June 2007 the lawyer explained in detail why he saw no grounds on which to prepare a cassation complaint in the applicant’s case (served on the applicant on 11 June 2007).
On 29 June 2007 the applicant requested the court to assign a new legal aid lawyer. In a letter to the court dated 2 July 2007 the applicant complained about the delays in assigning a lawyer. In a letter dated 9 July 2007 the Warsaw Court of Appeal informed the applicant that a legal-aid lawyer had been already assigned to him on 7 March 2007 and that the court could not be held responsible for assigning a specific lawyer to the case or for the lawyer’s actions.
On 25 September 2007 the Warsaw Regional Court rejected the applicant’s further request to assign a new legal aid lawyer to draft a cassation complaint.
A. Access to a court
The applicant complained that he had been denied an effective access to a court since the legal aid lawyer had refused to prepare a cassation complaint for examination by the Supreme Court. He relied on Article 6 § 1 of the Convention.
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 hereby wish to express - by way of unilateral declaration — its acknowledgement of the fact that the applicant’s right to effective access to a court guaranteed under Article 6 § 1 of the Convention was restricted.
In these circumstances and having regard to the particular facts of the case, the Government declare that they offer to pay to the applicant the amount of 11,400 PLN.
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 of 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 Government would suggest that the above 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”.
The applicant was requested to express his view on the Government’s declaration. However, he failed to respond to the Registry’s letter within the given time-limit.
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 of 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 or part thereof 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 its practice concerning complaints about the violation of one’s right of access to the Supreme Court in civil proceeding (see, mutatis mutandis, Staroszczyk v. Poland no. 59519/00, Siałkowska v. Poland, no. 8932/05, 22 March 2007 and Smyk v. Poland 8958/04, 28 July 2009).
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 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 complaint
The applicant further complained under Article 6 of the Convention that the proceedings in his case had been unfair and that the courts had obliged him to reimburse the litigation costs to the defendant.
The Court considers that the material in its possession does not disclose any appearance of a violation of this provision of the Convention.
Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court by a majority
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention concerning 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 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