European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 970/06
by Kazimierz KORYTKOWSKI
against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 May 2009 as a Chamber composed of:

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

Having regard to the above application lodged on 17 December 2005,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kazimierz Korytkowski, is a Polish national who was born in 1962 and lives in Śniadowo. He was represented before the Court by Mr Z. Kister, a lawyer practising in Legnica. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

The applicant is a farmer but works as an insurance agent. The Polish law provides for a separate social insurance scheme for farmers. However, under an amendment passed in April 2004, farmers who earn their living through professional activities other than farming and pay taxes under the general tax scheme were excluded from the farmers’ insurance scheme. This amendment was declared unconstitutional by the Polish Constitutional Tribunal in March 2006.

On 27 September 2004 the local farmers’ insurance authority issued a decision stating that the applicant was no longer covered by the farmers’ insurance scheme.

On 25 October 2004 the applicant appealed against the decision. On 16 November 2004 the Łomża Regional Court dismissed his appeal.

On 15 December 2004 the applicant lodged an appeal. The Białystok Court of Appeal held that the Łomża Regional Court had correctly assessed the evidence and applied the law and thus dismissed the appeal on 15 March 2005. Subsequently, the court served the judgment with its written grounds on the applicant. Later, it granted legal aid to him.

On 18 May 2005 the legal aid-lawyer was assigned to the applicant’s case by the Białystok Bar for the purpose of preparing a cassation appeal. She was notified that the time-limit for filing the cassation appeal would expire on 21 June 2005.

In a letter dated 20 June 2005 the lawyer refused to lodge a cassation appeal. The Białystok Court of Appeal received the letter on 22 June 2005. It was served on the applicant on an unspecified later date.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that his right to a fair hearing had been breached because the court dealing with his case had based its decision on a law whose compatibility with the Polish Constitution at the material time had been doubtful.

The applicant further complained that he had been deprived of the right to an effective remedy guaranteed by Article 13 of the Convention in that the law imposed a condition that a cassation appeal had had to be lodged by a lawyer whereas a lawyer could refuse to prepare a cassation appeal.

The applicant also argued under Article 14 of the Convention that he had been discriminated against in that the Polish law provided for no choice as to the form of taxation and had forced him to adopt one which had excluded him from the farmers’ insurance scheme.

THE LAW

On 17 March 2008 the Court decided to communicate the application to the Government.

On 2 September 2008 the Court received the following declaration from the Government:

“I declare that the Government of Poland offer to pay 12,800 PLN to Mr Kazimierz Korytkowski 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 18 April 2009 the Court received the following declaration signed by the applicant:

“I note that the Government of Poland are prepared to pay me the sum of 12,800 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.

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”.

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