European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 34838/07
by Wieslaw CEMBRZYŃSKI
against Poland

The European Court of Human Rights (Fourth Section), sitting on 24 March 2009 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 27 July 2007,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wiesław Cembrzyński, is a Polish national who was born in 1938 and lives in Świdnica. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A.  The circumstances of the case

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

On 22 February 2005 the applicant lodged a request for a disability pension in connection with an accident that had taken place in 1961.

On 6 May 2005 the Wałbrzych Social Security Board dismissed the applicant’s motion. The applicant appealed against this decision.

Subsequently, the applicant was exempted from court fees. On 5 July and 12 October 2005 the Świdnica Regional Court (Sąd Okręgowy) dismissed his requests for legal aid.

On 8 February 2006 the Świdnica Regional Court dismissed the appeal finding that the applicant should be considered fit to work. The applicant appealed against the judgment.

On 23 April 2007 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the appeal.

On an unspecified later date the applicant requested the Court of Appeal to appoint him a legal-aid lawyer to lodge on his behalf a cassation appeal with the Supreme Court.

On 8 May 2007 the Wrocław Court of Appeal dismissed the applicant’s request for the appointment of a legal-aid lawyer. The decision contained no reasons. It is not clear when that decision was notified to the applicant.

B.  Relevant domestic law

Article 87¹ of the Code of Civil Proceedings lays down the principle of mandatory assistance of a lawyer in cassation appeal proceedings. Article 398² § 1 provides a right to lodge a cassation appeal in cases concerning the right to a pension.

COMPLAINT

The applicant complained, inter alia, under Article 6 § 1 of the Convention that the Court of Appeal wrongly dismissed his application for the appointment of a legal aid lawyer in the cassation appeal proceedings and thus deprived him of a possibility to have his case examined by the Supreme Court.

THE LAW

On 9 February 2009 the Court received the following declaration signed by the applicant:

“I, Wiesław Cembrzyński, note that the Government of Poland are prepared to pay me the sum of PLN 8,600 (eight thousand six hundred 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 16 February 2009 the Court received the following declaration from the Government:

“I, Jakub Wołąsiewicz, agent of the Government, declare that the Government of Poland offer to pay PLN 8,600 (eight thousand six hundred zlotys) to Mr Wiesław Cembrzyński 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