by Walentyna SAWKO
The European Court of Human Rights (Fourth Section), sitting on 31 March 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 28 September 2003,
Having regard to the declaration submitted by the respondent Government on 11 February 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 Walentyna Sawko, is a Polish national who was born in 1942 and lives in Białystok. She was represented before the Court by Mr T. Śliwiński, a lawyer practising in Bialystok. 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.
From 1 August 1989 to 30 November 1997 the applicant worked in the PKO Bank as a bookkeeper computer operator. Since 1 December 1997 she has been in receipt of a retirement pension. In 1997 the applicant started having serious health problems.
On 25 November 1997 she lodged an action against her former employer with the Białystok District Court, claiming compensation for damage to her health which was, in her view, work related.
By a decision of 16 January 1998 the court stayed the proceedings, which were subsequently resumed on 27 June 2000.
By a judgment of 23 December 2002 the court dismissed the applicant’s claim. It found, having examined the evidence including the applicant’s medical records, that her health problems had not been caused by her working conditions. The applicant appealed.
By a judgment of 21 March 2003 the Białystok Regional Court dismissed the appeal, finding it ill founded.
On an unspecified later date the applicant requested the court to be served with the written grounds of this judgment. She also requested to be granted the assistance of a legal-aid lawyer for the purpose of lodging a cassation appeal with the Supreme Court.
By a decision of 31 March 2003 the court granted her request for legal aid. On an unspecified later date it requested the Bialystok Bar to assign a lawyer to the case.
On 8 May 2003 the written grounds of the judgment were served on the applicant. By a letter of 14 May 2003 the local Bar Association informed the applicant that a legal-aid lawyer had been assigned to her case. On 15 May 2003 the applicant met with the lawyer and gave her the documents concerning the case, including the second instance judgment together with its written grounds.
On 5 June 2003 the lawyer informed the court that she had not found any legal grounds on which to prepare a cassation appeal. The applicant received a copy of this letter on the same day.
The deadline for lodging the cassation appeal expired on 15 June 2003.
The applicant submitted, referring to Article 6 § 1 of the Convention, that the legal aid lawyer’s refusal to prepare a cassation appeal against the judgment of the appellate court had infringed her right to a fair trial and resulted in her irrevocably losing an opportunity to institute cassation proceedings.
The applicant complained that her right to a fair hearing had been breached because the authorities dealing with her case had given wrong and unlawful decisions.
The applicant submitted, referring to Article 6 § 1 of the Convention, that the legal aid lawyer’s refusal to prepare a cassation appeal against the judgment of the appellate court had resulted in her irrevocably losing an opportunity to institute cassation proceedings.
Article 6 § 1 of the Convention, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
By letter dated 11 February 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 the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government’s endeavour to secure a friendly settlement of the matter has remained unsuccessful. That being the case, the Government hereby wish to express - by way of the unilateral declaration – [their] acknowledgement of the fact that the applicant was denied access to a court 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. At the same time, the Government admit that in the particular circumstances of the applicant’s case the applicant can claim to be a victim of violation of her right to a fair trial in the meaning of Article 6 § 1 of the Convention.
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 EURO 2,500, 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 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 periods plus three percentage points.”
In a letter of 4 March 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably 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 thereof 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 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 of an application, 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 proceedings on account of legal-aid lawyers’ refusals to prepare cassation appeals (Siałkowska v. Poland, no. 8932/05, 22 March 2007; Staroszczyk v. Poland, no. 59519/00, 22 March 2007).
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 its 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 complaints
The applicant complained that her right to a fair hearing had been breached because the authorities dealing with her case had given incorrect and unlawful decisions.
The Court has examined the remainder of the complaints as submitted by the applicant. It reiterates that, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140, and García Ruiz v. Spain [GC], no. 30544/96, ECHR 1999 I, § 28). Moreover, there is nothing to indicate that the proceedings were unfair or that the decisions given were arbitrary.
It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention concerning the cassation proceedings and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides 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 the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza