European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 7640/07
by Jacek MICHALAK
against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 January 2010 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 26 January 2007,

Having regard to the declaration submitted by the respondent Government on 22 September 2009 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jacek Michalak, is a Polish national who was born in 1971. He is currently serving a prison sentence in Sztum prison. 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.

By the judgment of 21 November 2005 the Płock Regional Court found the applicant guilty of multiple robberies and sentenced him to 15 years' imprisonment.

The applicant's appeal was dismissed on 7 June 2006 by the Warsaw Court of Appeal.

The appellate judgment, with its written grounds, was served on the applicant on 26 July 2006.

By a letter to the court dated 5 August 2006 the applicant's legal-aid lawyer informed the court that he saw no legal grounds on which he could draft a cassation appeal.

The applicant was served with this letter by the Warsaw Court of Appeal on 23 August 2006. The court at the same time informed him that the time-limit for lodging a cassation appeal was to expire on 25 August 2006.

On 19 September 2006 the Warsaw Court of Appeal dismissed the applicant's motion to have a new legal-aid lawyer appointed and the time-limit for lodging a cassation appeal restored.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he had been denied an effective access to the cassation court because his legal aid lawyer had refused to prepare and lodge a cassation appeal. He had been informed of this refusal two days before the relevant time limit expired.

He further complained that his right to a fair trial was breached because the District Court had failed to hear certain evidence which was crucial for the outcome of the case.

THE LAW

A. Access to a court

The applicant complained that he had been denied an effective access to a court since the legal-aid lawyer had refused to prepare a cassation appeal for examination by the Supreme Court. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“In the determination of the criminal charges against him ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...”

By letter dated 10 November 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 the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government hereby wish to express - by way of unilateral declaration — its acknowledgement of denial of access to a court in the determination of the criminal charges against [the applicant] and therefore [of] a violation of Article 6 § 1 read together with Article 6 § 3 (c ) 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 PLN 8,000 (eight thousand Polish zlotys) 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 of 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 Government would suggest that the above declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court's list of cases as referred to in Article 37 § 1 (c) of the Convention”.

The applicant was requested to express his view on the Government's declaration. He failed to do so.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application 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).

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 criminal proceedings (see Antonicelli v. Poland, no. 2815/05, 19 May 2009; Kulikowski v. Poland, no. 18353/03, ECHR 2009 ... (extracts)).

Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed, 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 the clear and extensive 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 further complained under Article 6 of the Convention that the proceedings in his case had been unfair.

The Court considers that the material in its possession does not disclose any appearance of a violation of this provision of the Convention.

Accordingly, this part of the application is manifestly ill founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court

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 access to the cassation proceedings and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides by a majority 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 unanimously the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza
Registrar President