by Lucyna KWIATKOWSKA
The European Court of Human Rights (Fourth Section), sitting on 24 November 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 27 December 2007,
Having regard to the declaration submitted by the respondent Government on 7 August 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, Ms Lucyna Kwiatkowska, is a Polish national who was born in 1955 and lives in Janowo. 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 parties, may be summarised as follows.
On 8 November 2006 the Olsztyn Regional Court dismissed the applicant’s claim for compensation against a doctor for medical malpractice.
The judgment was upheld on 23 February 2007 by the Białystok Court of Appeal.
On 28 March 2007 the Court of Appeal served the judgment with its written grounds on the applicant and informed her that she had sixty days to lodge a cassation appeal.
In her written opinion of 29 May 2007, the applicant’s legal- aid lawyer found no points of law on which a cassation appeal could be based.
The applicant complained about the outcome of the proceedings. She submitted that the courts failed to assess the evidence correctly and refused to call certain experts proposed by her. The applicant further alleged that the courts disregarded some of her submissions and arguments and wrongly applied provisions of domestic law.
The applicant further complained that she was denied an effective access to a court since the legal aid lawyer had refused to prepare and file a cassation complaint with the Supreme Court. She stated that the lawyer’s opinion was not served on her within a reasonable time and that it was exceedingly succinct.
A. Access to a court
The applicant complained that she 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. She relied on Article 6 § 1 of the Convention.
By letter dated 7 August 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 denial of access to a court in the determination of the applicant’s civil rights and obligations within the meaning of Article 6 § 1 of the Convention, regard being had to the fact that the legal-aid lawyer refused to file a cassation appeal with the Supreme Court against the judgment of the appellate court.
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 PLN 8,800 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 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 her view on the Government’s declaration. She objected to the amount to be paid to her which was, in her view, too low.
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 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 her case had been unfair.
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
Takes note unanimously of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention concerning access to court and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides by a majority 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 unanimously the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza