FOURTH SECTION

DECISION

Application no. 1882/08 by Bolesł aw WOJTASIK against Poland

The European Court of Human Rights (Fourth Section), sitting on 22 June 2010 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Mihai Poalelungi , judges , and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 17 December 2007,

Having regard to the declaration submitted by the respondent Government on 21 April 2010 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bolesł aw Wojtasik, is a Polish national who was born in 1949 and lives in D ą browa. He was rep resented before the Court by Mr W. Manikowski, a lawyer practising in Bydgoszcz . 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 an unspecified date a limited liability company A. sued the applicant for compensation. By a decision of 20 October 2005 the court exempted the applicant from court fees.

By a judgment of 2 January 2006 the Gdańsk Regional Court found in favour of the plaintiff and ordered the applicant to pay PLN 4.786.418,50.

The applicant appealed. By a judgment of 14 June 2006 the Gdańsk Court of Appeal dismissed his appeal.

On an unspecified later date the applicant requested the Court of Appeal for an exemption from court fees for the cassation proceedings. He also asked the court to appoint a legal-aid lawyer with a view to filing a cassation appeal.

On 11 October 2006 the Gdańsk Court of Appeal refused the applicant ' s request for an exemption from court fees. It also refused to assign a legal-aid lawyer to the case, the latter decision being an automatic result of the first. That decision did not contain any reasons.

On an unspecified later date the Gdańsk Court of Appeal requested the applicant to pay PLN 239,291 by a way of court fees for bringing a cassation appeal which the applicant ' s privately hired lawyer had lodged on an unspecified earlier date. On 14 December 2006 the court rejected the appeal as the applicant had not paid the fee.

The applicant lodged an interlocutory appeal against this decision. By a decision of 26 March 2007 the Gdańsk Court of Appeal quashed the decision.

On 30 March 2007 the court again requested the applicant to pay the court fees. By a decision of 24 May 2007 it rejected the applicant ' s cassation appeal as the court fee had not been paid. The applicant ' s lawyer appealed. By a decision of 12 June 2007 the court rejected his appeal. This decision was served on the applicant on 19 June 2007 at the earliest.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that he had been denied an effective access to the cassation court. Despite the fact that he had been exempted from court fees for the purposes of the proceedings before the first two judicial instances, the appellate court, by an unreasoned decision, refused to maintain this exemption for the purposes of lodging a cassation appeal. The refusal was unjustified as his financial situation had not improved.

THE LAW

The applicant alleged that he had been deprived of access to 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 his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

By letter dated 21 April 2010 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 the unilateral declaration- their acknowledgement of the infringement of the applicant ' s right of access to a court guaranteed by Article 6 § 1 of the Convention since it was restricted by the court ' s refusal, without giving reasons, of exemption from the court fees with a view to fi l ing a cassation appeal.

...

The Government declare that they offer to pay to the applicant the sum of PLN 8,800 (eight thousand eight hundred 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 did not submit any comments in reply.

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, including those brought against Poland, its practice concerning complaints about the violation of one ' s right of access to the court (see, for example, Tabor v. Poland , no. 12825/02, 27 June 2006; Mirosław Orzechowski v. Poland , no. 3526/07, § 13 January 2009; Bobrowski v. Poland , no. 64916/01, 17 June 2008).

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 applicati on (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 unanimously to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Lawrence Early Nicolas Bratza Registrar President