European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 32058/07
by Leokadia GĄSIOREK
against Poland

The European Court of Human Rights (Fourth Section), sitting on 3 February 2009 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 10 July 2007,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Leokadia Gąsiorek, is a Polish national who was born in 1929 and lives in Gniewkowo. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The circumstances of the case

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

By a decision of 16 December 2004 the Social Insurance Board refused to grant the applicant a pension for the period of her deportation to the then Soviet Union between 1940 and 1946.

On 1 August 2005 the decision was upheld by the Bydgoszcz Regional Court.

The applicant’s appeal was dismissed on 28 November 2006 by the Gdańsk Court of Appeal.

On 6 March 2007 the applicant received the judgment with its written grounds. She requested the court to appoint a legal-aid lawyer for the purpose of lodging a cassation appeal. The request was allowed by a decision of 23 April 2007. The decision was subsequently served on the local Bar Association together with the court’s information that the time-limit for lodging a cassation appeal was to expire on 25 April 2007.

On 7 May 2007 the local Bar Association informed the applicant that a legal-aid lawyer had been assigned to her case.

In a letter of 20 May 2007 to the court the lawyer stated that he would not lodge a cassation appeal, finding no grounds to do so.

On 29 May 2007 the Gdańsk Court of Appeal rejected the applicant’s motion for restoration of the time-limit for lodging a cassation appeal as it had not been submitted by a lawyer.

On 15 June 2007 the Gdańsk Court of Appeal rejected the applicant’s request for the re-opening of the proceedings.

COMPLAINT

The applicant complained, invoking Article 6 § 1 of the Convention, that the proceedings in her case were unfair because she had been unlawfully denied an effective access to court. The legal-aid lawyer failed to inform her in a reasonable time that he had not found legal grounds for bringing cassation proceedings.

THE LAW

On 1 February 2008 the Court decided to communicate the application to the Government.

On 4 December 2008 the Court received the following declaration signed by the applicant:

“I note that the Government of Poland are prepared to pay me the sum of 11,000 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 14 January 2009 the Court received the following declaration from the Government:

“I declare that the Government of Poland offer to pay 11,000 PLN to Ms Leokadia Gąsiorek 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. 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.

Lawrence Early Nicolas Bratza
Registrar President