European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 42783/06
by Tomasz HANUS
against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 January 2009 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 16 October 2006,

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tomasz Hanus, is a Polish national who was born in 1937 and lives in Skoczów. He was represented before the Court by Mr J. Szawara, a lawyer practising in Cieszyn. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1975 property belonging to the applicant and situated in Skoczów was expropriated by way of an administrative decision. In 1989 the competent administrative body declared that the property had become redundant for the purposes of the State-owned enterprise and its possession was transferred to the local municipality.

On 4 February 1989 the applicant submitted a request for the restoration of the ownership of his former property. Before a decision concerning his request was given, a competent administrative authority transferred, by a decision given in 1992, possession of the land to a coal mine “Marcel”. In 1997 a part of the property was restored to the applicant, but another part remained, under the 1992 decision, in the possession of the coal mine.

On 21 May 1999 the Supreme Administrative Court quashed a second instance administrative decision by which the administrative authority had refused to declare null and void the 1992 decision by which certain plots had been given to the mine. The court considered that the decision was unlawful in so far as the applicable law clearly provided that former owners had priority to have their former property restored to them if it had become redundant for the original purpose for which it had been expropriated.

On 31 March 2000 the Cieszyn Sheriff (starosta) refused to restore the plots to the applicant. On 25 May 2000 the Slask Governor upheld this decision. On 27 February 2002 the Supreme Administrative Court dismissed the applicant’s appeal.

On 6 August 2003 the Katowice Governor gave a decision by which the coal mine obtained a right of perpetual use of the land concerned.

Subsequently, the applicant requested that this decision be declared null and void. His requests were unsuccessful. Ultimately, by a judgment of 7 February 2006 the Regional Administrative Court dismissed his appeal. This judgment, with its written grounds, was served on the applicant on 7 March 2006.

On 14 March 2006 the applicant was granted, by a decision of an official of the court’s registry, legal aid for the purposes of lodging a cassation appeal with the Supreme Administrative Court.

On 5 May 2006 the registry of that court sent a letter to the local Bar Association requesting it to assign a legal-aid lawyer to the case. On 12 May 2006 the Warsaw Bar informed Mr M.J. that he had been assigned to the case. The written grounds for the judgment were served on him shortly afterwards.

On 27 May 2006 the applicant gave the lawyer documents concerning the case.

By a letter of 9 August 2006 the lawyer informed the applicant that he saw no grounds on which to prepare a cassation appeal in his case and to prepare a request to the court for retrospective leave to lodge the cassation appeal out of time.

In reply to the applicant’s letter of 28 August 2006, on 8 September 2006 Mr M.J. reiterated his position and explained in a detailed manner the legal context of the case and the reasons for which he was of the view that a cassation appeal offered no prospects of success.

On 15 September 2006 the applicant again requested him to prepare a cassation appeal. In reply, on 22 September 2006 M.J. again refused to represent the applicant for the purposes of the cassation appeal.

On 16 November 2006 the applicant complained to the Warsaw Bar about the lawyer’s refusal, arguing that since he had been granted legal aid by a decision of the court, the lawyer should be obliged to pursue the case in compliance with his client’s wish. By a letter of 2 February 2007 the Warsaw Regional Bar informed the applicant that his complaint was unfounded.

In a letter to the Regional Warsaw Bar of 5 February 2007 the applicant expressed the view that the lawyer’s refusal to represent him for the purposes of a cassation appeal amounted to a serious breach of the obligations of a legal aid lawyer. There was no reply to this letter.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the proceedings in his case had been unfair in that he had been denied an effective access to a court since the legal-aid lawyer had refused to prepare a cassation complaint to the Supreme Administrative Court.

He further complained, invoking Article 1 of Protocol No. 1 to the Convention, that the decisions given in the case had been in breach of his right to the peaceful enjoyment of his possessions.

THE LAW

On 19 December 2008 the Court received the following declaration from the Government:

“I declare that the Government of Poland offer to pay 2,000 (two thousand) euros to Mr Tomasz Hanus 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 converted into Polish zlotys at the rate applicable on the date of payment, and 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 period plus three percentage points. The payment will constitute the final resolution of the case.”

On 17 December 2008 the Court received the following declaration signed by the applicant:

“I, Tomasz Hanus, note that the Government of Poland are prepared to pay me the sum of 2,000 (two thousand) euros 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 converted into Polish zlotys at the rate applicable on the date of payment, and 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.”

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.

Lawrence Early Nicolas Bratza
Registrar President