European Court of Human Rights
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Cite as: [2009] ECHR 1968
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FOURTH SECTION
DECISION
Application no.
17206/03
by Michał WOJCIECHOWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 3 November 2009 as a Chamber composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 15 May 2003,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Michał Wojciechowski, is a Polish national who was born in 1960 and lives in Warszawa. The respondent Government are represented by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1997 the applicant’s wife filed for divorce. Before the first instance court the applicant was represented by a privately hired lawyer. On 12 December 2001 the Warsaw Regional Court issued a divorce decree.
On a later unknown date the applicant requested the court to assign a legal-aid lawyer to his case. In September 2002 the court allowed his request. On an unspecified later date the applicant appealed against the first instance judgment.
On 8 January 2003 the Warsaw Court of Appeal dismissed his appeal. It appears that the operative part of the judgment was served on the applicant’s lawyer. However, he did not appear at the court’s hearing and failed to inform the applicant about the delivery of the judgment. The applicant learned about the judgment from the plaintiff on 30 April 2003.
On 5 May 2003 the applicant requested the court to grant him retrospective leave to file a motion to have the written reasons of the judgment served on him. Under the applicable provisions of domestic law the requirement to file such a motion, and subsequently, the delivery of the written reasons of the judgment on a party, was a formal condition for lodging a cassation appeal with the Supreme Court. He submitted that he had not been informed about the delivery of the judgment by his legal-aid lawyer. The applicant further requested the court to assign a new legal-aid lawyer to the case pointing out the unprofessional conduct of the lawyer.
On 23 July 2003 the Warsaw Court of Appeal dismissed the applicant’s request finding that he had been properly represented by his lawyer. The court also refused to assign a new legal-aid lawyer. The decision with its written reasons was served on the applicant’s lawyer on 1 October 2003. The lawyer did not inform the applicant about the court’s ruling.
On 5 November 2003 the applicant requested the court to accelerate the proceedings concerning his request of 5 May 2003. In a letter dated 14 November 2003 the Warsaw Court of Appeal informed him that its decision had already been sent to his lawyer.
In the meantime, on 19 September 2003 the applicant lodged a complaint about the lawyer’s conduct with the Warsaw Bar Association.
On 1 December 2003 the applicant requested the Court of Appeal to re-open the proceedings on the grounds that he had not been informed about the delivery of the judgment of 8 January 2003 and had not been able to appeal against it.
On an unspecified later date in January 2004 the applicant’s legal-aid lawyer sent a letter to him with a copy of the second-instance judgment. He also informed the applicant that he had not found any grounds on which to prepare a cassation appeal in his case in January 2003.
On 9 January 2004 the applicant filed an interlocutory appeal against the decision of the Warsaw Court of Appeal of 23 July 2003.
On 9 January 2004 the applicant also requested the Warsaw Court of Appeal to prepare for him all documents concerning his case in the Braille alphabet. In a letter dated 13 January 2004 the court refused his request on the ground that this was technically not possible. In a letter to the court dated 12 February 2004 the applicant submitted that he was unable to read the court’s documents concerning cassation proceedings and that he was discriminated against by the court because of his disability. On 23 February 2004 the court upheld its former decision.
On 2 February 2004 the Warsaw Court of Appeal rejected on formal grounds the applicant’s request to have the proceedings re-opened. On 19 February 2004 the applicant appealed against the above-mentioned decision. On 16 March 2004 the Court of Appeal rejected the applicant’s further interlocutory appeal on formal grounds as such an interlocutory appeal should have been lodged by a lawyer.
In the meantime, on 9 February 2004 the applicant’s lawyer lodged a cassation appeal together with a motion for retrospective leave to file a cassation appeal. On 16 March 2004 the Warsaw Court of Appeal rejected the cassation appeal on formal grounds. The court found that the applicant had failed to request the written reasons of the second-instance judgment to be prepared within the one week time-limit from the date of delivery of that judgment.
In a letter to the Disciplinary Representative of the Warsaw Bar Association dated 20 May 2004 the applicant submitted that his lawyer had misinformed him that he had been present at the second-instance hearing. On 22 August 2005 the Disciplinary Representative informed the applicant that disciplinary proceedings had been instituted against the lawyer. In a letter dated 5 May 2006 the Warsaw Bar Association informed the applicant that it had reprimanded his legal-aid lawyer.
COMPLAINTS
The applicant complained that the proceedings in his case had been unfair and he had been denied an effective access to a court. He submitted that the legal-aid lawyer had failed to inform him about the delivery of the second instance judgment and had failed to lodge a cassation appeal in his case. He submitted that the court had refused to prepare documents concerning his case in the Braille alphabet, which had deprived him of an opportunity to participate in the proceedings effectively. His lawyer had also failed to represent him properly before the court and failed to inform him about the conduct of the proceedings. He invokes Articles 6 § 1 and 8 of the Convention.
The applicant complained about the length and the outcome of the proceedings.
The applicant complained under Article 3 of the Convention that as a result of the courts’ judgments he had been obliged to pay maintenance in an amount which exceeded his financial means.
The applicant also invokes Articles 13 and 14 of the Convention without further specification.
On 31 August 2009 the Court received the following declaration signed by the applicant:
“I, Michał Wojciechowski, note that the Government of Poland are prepared to pay me the sum of PLN 17,500 (seventeen thousand five hundred Polish zlotys) 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 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.”
On 4 August 2009 the Court received the following declaration from the Government:
“I declare that the Government of Poland offer to pay PLN 17,500 (seventeen thousand six hundred Polish zlotys) to Mr Michał Wojciechowski 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 free of any taxes that may be applicable and 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.”
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 strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş Aracı Nicolas Bratza Deputy Registrar President