FOURTH SECTION

DECISION

Application no. 5039/08 by Jadwiga ADAMSKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 22 September 2009 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 15 January 2008,

Having regard to the declaration submitted by the respondent Government on 15 July 2009 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Jadwiga Adamska , is a Polish national who was born in 19 30 and lives in Mys łowice . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wo łą siewicz of the Ministry of Foreign Affairs.

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

In 1955 the property of the applicant ’ s parents was confiscated by the State Treasury. The property was released from administration by the State on 28 November 1997 and returned to the applicant in 2000.

In 2006 the applicant filed a claim against the State Treasury for compensation for damage to the property. On 20 March 2007 the Katowice Regional Court dismissed the claim as being time ‑ barred . The applicant ’ s appeal was dismissed on 20 July 2007 by the Katowice Court of Appeal . The Court of Appeal held that the three-year time-limit for the applicant to claim compensation for the damage to the property had started to run, at the latest, in 2000 when the property had been returned to the applicant, whereas she had submitted her claim to the court in 2006.

On 21 August 2007 the judgment with its written grounds was served on the legal ‑ aid lawyer representing the applicant in the proceedings before the first ‑ and second ‑ instance courts. The grant of legal aid expired on that date.

On 20 September 2007 the Katowice Court of Appeal granted the applicant legal aid for the purpose of lodging a cassation appeal . On 22 October 200 7 the Katowice Bar Association assigned a new legal ‑ aid lawyer to the case.

By a letter to the Court of Appeal of 6 November 2007 the lawyer requested leave to submit an opinion indicating the absence of grounds for lodging a cassation appeal out of time. He explained that the time ‑ limit for lodging a cassation complaint had expired on 21 October 2007, two months after the judgment with its written grounds had been served on the lawyer who had represented the applicant during the proceedings before the first ‑ and second ‑ instance courts. He had been served with the decision assigning him to the case on 25 October 2007 and had access to the case file only on 30 October 2007. He further submitted that he had found no points of law on which a cassation appeal against the judgment of 20 July 2007 could be based.

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 to the Convention about a breach of her property rights resulting from the fact that the damage which the State Treasury had caused to the property had not been compensated .

The applicant further complains in substance under Article 6 § 1 that s he was denied an effective access to a court since the legal ‑ aid lawyer refused to prepare a cassation complaint for submission to the Supreme Court.

THE LAW

A. Length of proceedings

The applicant complained about the legal-aid lawyer ’ s refusal to file a cassation appeal with the Supreme Court. She relied on Article 6 § 1 of the Convention .

By letter dated 15 July 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 the fact that the applicant ’ s right to effective access to a court was restricted in the cassation proceedings before the Supreme Court. At the same time the Government admit that in the particular circumstances of the applicant ’ s case, the applicant ’ s complaint about refusal to provide her with legal assistance has not been addressed at the domestic level as required by Article 13 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 11,400 PLN.

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”.

T he applicant was requested to express his view on the Government ’ s declaration . However, she failed to respond to the Registry ’ s letter within the given time-limit.

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 C ourt in civil proceeding (see Siałkowska v. Poland , no. 8932/05, 22 March 2007 ).

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 t his part of the application (Article 37 § 1(c).

Moreover, in light of the above considerations, and in particular given the clear 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 about a breach of her property rights resulting from the fact that the damage which the State Treasury had caused to the property had not been compensated .

The Court observes that under domestic law it was open to the applicant to seek compensation for the damage caused to the property during the period when the property had been owned by the State Treasury. However, the courts were of the view that the applicant had submitted her compensation claim for adjudication after the expiry of the three-year time-limit for claims based on tort and refused to allow her claim. The Court considers that there is nothing to indicate that the applicant was refused compensation for the acts of the State on the grounds that would have been unreasonable or arbitrary.

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 in respect of the complaint 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 so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President