AS TO THE ADMISSIBILITY OF
by Mieczysław PAWLAK
The European Court of Human Rights (Fourth Section), sitting on 12 May 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 11 September 2006,
Having regard to the declaration submitted by the respondent Government on 20 January 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, Mr Mieczysław Pawlak, is a Polish national who was born in 1944 and lives in Osina. He was represented before the Court by Ms G. Koczorowska, a lawyer practising in Szczecin. 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.
By a judgment of 29 September 2005 the Szczecin Regional Court dismissed the applicant’s appeal against a decision of the Social Insurance Authority by which it refused his request for a retirement pension.
On 23 March 2006 the Szczecin Court of Appeal dismissed the applicant’s appeal. On 26 April 2006 this judgment, together with its written grounds, was sent to the applicant by the court’s registry.
On 10 May 2006 that court allowed the applicant’s request to be granted the assistance of a legal aid lawyer for the purpose of bringing cassation proceedings.
Subsequently, the Szczecin Bar Association assigned Ms D.H. to the case.
On 16 June 2006 the judgment of 23 March 2006 was served on her.
By a letter of 17 July 2006 the lawyer informed the applicant that she refused to prepare a cassation appeal, finding no grounds on which to do so.
The applicant complained under Article 6 § 1 of the Convention that the proceedings were unfair in that the courts dismissed his appeal against the decision of the Social Insurance Authority.
The applicant further complained that the proceedings in his case were unfair in that he was denied an effective access to a court since the legal aid lawyer refused to prepare a cassation complaint to the Supreme Court.
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 20 January 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 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 his right to a fair trial [within] 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 complaints
The applicant complained that his right to a fair hearing had been breached in that the courts dismissed his appeal against the decision of the Social Insurance Authority.
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 denial of the applicant’s right of access to a 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