by Paweł SIENKIEWICZ
The European Court of Human Rights (Fourth Section), sitting on 19 May 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 29 May 2003,
Having regard to the declaration submitted by the respondent Government on 24 July 2008 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 Paweł Sienkiewicz, is a Polish national who was born in 1974 and lives in Wrocław. 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 parties, may be summarised as follows.
On 13 March 2001 the applicant was arrested on suspicion of aggravated theft. By a decision of the Jaworze District Court of 16 March 2001 he was remanded in custody.
On 29 June 2001 a bill of indictment against the applicant was laid before the Legnica Regional Court. Hearings in the case were held on 24 July, 26 September, 9 October and 7 November 2001. On 14 November 2001 the Legnica Regional Court found the applicant guilty as charged and sentenced him to five years’ imprisonment. The applicant appealed.
On 13 December 2002 the Wroclaw Court of Appeal upheld the contested judgment.
By a decision of 23 January 2003 the court assigned P.G. to represent the applicant for the purposes of drafting a cassation appeal. The applicant asserts that the second-instance judgment was served on the lawyer shortly afterwards, but that he is unable to submit a document certifying the date of service as it has never been communicated to him.
By a letter of 3 March 2003 a lawyer assigned to represent the applicant for the purposes of cassation proceedings informed the court that he had found no grounds on which to lodge a cassation appeal against the second-instance judgment. This letter was forwarded to the applicant by the court’s registry on an unspecified later date.
The applicant complained, invoking Article 6 of the Convention, that the proceedings had been unfair in that the courts had wrongly assessed evidence, erred in establishing the facts of the case and incorrectly applied applicable domestic law.
He further complained that his detention on remand had lasted too long.
He submitted that he could not lodge a cassation appeal against the judgment of the appellate court as his legal aid lawyer had refused to do so.
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
On 24 June 2008 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 complaint in accordance with Article 37 of the Convention.
The declaration provided as follows:
“ (...) the Government hereby wish to express – by way of the unilateral declaration – its acknowledgment of the denial of access to a court in the determination of the criminal charges against the applicant[within] the meaning of Article 6 § 1 of the Convention, 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.
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 2,000 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 period plus three percentage points.”
In a letter of 17 October 2008 the applicant stated that he disagreed with the proposal.
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 thereof 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).
Having regard to the nature of the admissions contained in the Government’s declaration, the amount of compensation proposed and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, 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). It notes in this connection that it has already addressed the issue giving rise to the instant case (see Siałkowska v. Poland, no. 8932/05, 22 March 2007; Kulikowski v. Poland, no. 18353/03, 2815/05 Antonicelli v. Poland, 19 May 2009).
Accordingly, this part of the application should be struck out of the list.
The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the complaints to not give rise to any appearance of breaches of the Articles relied on. 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 by a majority
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention 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 accordance with Article 37 § 1 (c) of the Convention in so far as it related to the applicant’s complaint concerning denial of access to a court;
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza