European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16190/04
by Gerard WIŚNIEWSKI
against Poland

The European Court of Human Rights (Fourth Section), sitting on 12 May 2009 as a Chamber composed of:

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

Having regard to the above application lodged on 18 April 2004,

Having regard to the declaration submitted by the respondent Government on 9 March 2009 requesting the Court to strike part of the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gerard Wiśniewski, is a Polish national who was born in 1949 and lives in Żukowo. 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 1 October 2001 the applicant lodged with the Gdańsk Regional Court an action for damages against the State Treasury. He requested compensation for suffering and damage to his health resulting from an occupational injury, which had occurred on 6 March 2000. He had at that time been working while serving a prison sentence.

By a judgment of 19 September 2003 the Gdańsk Regional Court dismissed the applicant’s action, finding it ill founded. The court considered evidence and reports of experts assigned to examine the circumstances of the occupational accident. It found that the accident had been caused by the applicant’s negligence.

The applicant appealed, arguing that the court had failed to assess all the relevant circumstances of the case.

By a judgment of 9 April 2004 the Gdańsk Court of Appeal upheld the first-instance judgment. In the written grounds of this judgment the court stressed that no errors of law or fact had been committed by the lower court.

On 16 April 2004 the applicant’s legal aid lawyer requested the court to be served with the written grounds of the judgment. The judgment together with its written grounds was sent to the lawyer by the registry on 27 April 2004 and was served on him on 29 April 2004.

By a letter of 16 May 2004 the lawyer informed the court that he had not found any grounds on which to prepare a cassation appeal.

On 16 June 2004 the applicant, who was serving a prison sentence at that time, sent a letter to the President of the Gdańsk Regional Court, complaining about the lawyer’s negligence in the conduct of his case. He submitted that the lawyer had failed to attend the hearing before the appellate court.

By a letter of 2 July 2004 the President informed the applicant that there had been no indication of any negligence on the part of the lawyer. He had informed the court on 18 May 2004 that he had found no grounds on which to lodge a cassation appeal. The court further informed the applicant that the judgment had become final on 29 May 2004.

COMPLAINTS

The applicant complained, invoking Article 6 § 1 of the Convention, that the proceedings in his case had been unfair as the court failed to assess the evidence correctly, disregarded the applicant’s submissions and arguments and infringed his right to a fair trial.

He further complained that he had been denied an effective access to a court. The applicant submits that the legal-aid lawyer had failed to inform him in writing and within a reasonable time about his refusal to prepare a cassation appeal.

THE LAW

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 his 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 9 March 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 this part of the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The endeavours to secure a friendly settlement of the matter have remained unsuccessful. The Government refused by a letter of 21 October 2008 to accept the friendly settlement on terms proposed by the Court. ... 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. Hence, the Government admit that the applicant can claim to be a victim of violation of his 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 EUR 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 his reply the applicant contested the sum proposed by the Government.

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 complaint

The applicant complained that his right to a fair hearing had been breached because the authorities dealing with his 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 as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

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 denial of access to the Supreme Court, 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.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President