by Małgorzata GRZYBOWSKA
The European Court of Human Rights (Fourth Section), sitting on 12 May 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 9 January 2007,
Having deliberated, decides as follows:
The applicant, Ms Małgorzata Grzybowska, is a Polish national who was born in 1928 and lives in Warsaw. She was represented before the Court by Mr M. Szczawiński, a lawyer practising in Warsaw. The Polish Government (“the 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 parties, may be summarised as follows.
On 19 January 2004 the applicant lodged with the Warsaw Regional Court a compensation claim against a hospital run by the Foundation of Gastroenterology. She submitted that she had been for a long time under out-patient treatment by doctors working for the Foundation who had entirely failed to make a correct diagnosis of her ailment. As a result, she had been operated in extremis by another hospital. She claimed compensation for an alleged medical malpractice.
On 25 February 2004 the court allowed the applicant’s request for a partial exemption from court fees and dismissed her request to assign a legal-aid lawyer to her case, considering that legal representation was not necessary at that stage of the proceedings.
The applicant appealed. She emphasised her advanced age. On 14 April 2004 the Warsaw Court of Appeal dismissed her appeal. It noted that despite the fact that the applicant was of advanced age, she was well able to represent herself effectively, as shown by her submissions and documents she had submitted to the court. It was further noted that the court was, under Article 5 of the Code of Civil Procedure, under an obligation to give her procedural guidance.
On 8 December 2005 the Warsaw Regional Court dismissed the applicant’s claim, finding, in the light of the applicant’s medical records, an expert opinion and a number of testimonies given by witnesses, that there were no grounds for accepting that the applicant had been wrongly or negligently treated. On 12 December 2005 the applicant requested that a legal aid lawyer be assigned to the case to assist her in drafting an appeal.
On 19 January 2006 the applicant lodged with the Warsaw Regional Court an appeal which she had prepared herself, requesting that it be forwarded to the appellate court.
On 17 March 2006 the Warsaw Regional Court dismissed the applicant’s request for a legal aid lawyer to be appointed, inter alia to draft an appeal against the first instance judgment. It relied on the same reasoning as the Warsaw Regional Court in its decision of 14 April 2004.
On 12 May 2006 the Warsaw Court of Appeal dismissed her appeal, sharing the conclusions of the lower court and having, in addition, observed that the applicant had already prepared an appeal herself.
On 13 July 2006 the Warsaw Court of Appeal dismissed the applicant’s appeal against the first-instance judgment.
On 17 July 2006 the same court allowed the applicant’s request of 13 July 2006 to assign a legal-aid lawyer to the case for the purposes of the cassation proceedings.
On an unspecified later date the applicant contacted the Warsaw Bar Association, complaining that the lawyer had refused to meet her.
On 23 August 2006 the applicant and the lawyer had a telephone conversation.
In a letter to the court dated 24 August 2006 the legal aid lawyer explained in detail why she saw no grounds on which to prepare a cassation complaint in the applicant’s case.
The applicant submits that this letter was served on her by the court very shortly before the time limit for the lodging of a cassation complaint had expired, thus making it impossible for her to find a new lawyer.
The applicant complained under Article 6 § 1 of the Convention that the proceedings had been unfair in that the courts had repeatedly refused to allow her requests for legal aid.
The applicant further complained that she had been denied an effective access to a court since the legal aid lawyer had refused to prepare a cassation complaint to the Supreme Court. This refusal had been communicated to the applicant just before the expiry of the relevant time limit, thus making it impossible for her to find another lawyer who could represent her.
On 16 March 2009 the Court received the following declaration from the Government:
“I declare that the Government of Poland offer to pay PLN 11,300 (eleven thousand three hundred Polish zlotys) to Ms Małgorzata Grzybowska 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.”
On 27 March 2009 the Court received the following declaration from the applicant:
“I, Małgorzata Grzybowska, note that the Government of Poland are prepared to pay me the sum of PLN 11,300 (eleven thousand three hundred 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. 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.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President