by Leszek Henryk NOWASZEWSKI
The European Court of Human Rights (Fourth Section), sitting on 26 January 2010 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 5 March 2008,
Having regard to the declaration submitted by the respondent Government on 20 October 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 Leszek Henryk Nowaszewski, is a Polish national who was born in 1963 and lives in Białystok. 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 25 June 2002 the Białystok Regional Court dismissed the applicant’s claim for payment against his contractor and ordered the applicant to pay the costs of the proceedings.
The judgment was amended in the part concerning costs on 6 July 2007 by the Białystok Court of Appeal.
On 2 August 2007 the applicant was served with the judgment with its written grounds. The Court of Appeal informed him at the same time that he had sixty days as of the date of service of the judgment to lodge a cassation appeal and that the relevant time-limit would expire on 1 October 2007.
On the same date the applicant was assigned a legal aid lawyer for the purposes of lodging a cassation appeal.
In his written opinion of 3 October 2007, the legal lawyer found no points of law on which a cassation appeal could be based.
The applicant complained that had been denied an effective access to a court since the legal aid lawyer had refused to prepare and file a cassation complaint with the Supreme Court. He submitted that the lawyer’s opinion had not been served on him within a reasonable time and that it had been exceedingly succinct.
By letter dated 20 October 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by 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 applicant’s civil rights and obligations within the meaning of Article 6 § 1 of the Convention.
Consequently, the Government are prepared to pay to the applicant PLN 8,800 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”.
In a letter of 16 November 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
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 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 proceeding (see Staroszczyk v. Poland no. 59519/00, Siałkowska v. Poland, no. 8932/05, 22 March 2007 and Smyk v. Poland 8958/04, 28 July 2009).
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 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 the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
For these reasons, the Court
Takes note of the terms of the respondent Government’s declaration 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 accordance with Article 37 § 1 (c) of the Convention.
Lawrence Early Nicolas Bratza