FOURTH SECTION

DECISION

Application no. 39137/07 by Władysł aw MATYBA against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 May 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 17 August 2007,

Having regard to the declaration submitted by the respondent Government on 13 February 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 FACTS

The applicant, Mr Władys ł aw Matyba , is a Polish national who was born in 1956 and lives in Katowice . 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.

On 10 February 1995 the applicant was arrested by the police during an altercation in a bar and subsequently taken to a sobering-up centre where he was subsequently detained.

On 8 April 2003 the applicant filed a claim for compensation against the State Treasury for unlawful detention in the sobering-up centre and alleged ill-treatment by the police during his arrest in 1995.

On 14 January 2005 the applicant withdrew the claim with respect to the alleged unlawfulness of his detention and on the same date the Katowice Regional Court gave a judgment granting the applicant compensation in the amount of 15,000 PLN for his ill-treatment by the police.

On 24 November 2005 the Katowice Court of Appeal dismissed the applicant ’ s appeal. The judgment wa s served on the applicant on 23 December 2005.

By a decision of 15 February 2006 the Court of Appeal allowed the applicant ’ s request for a legal-aid lawyer to be assign ed to the case for the purposes of cassation proceedings.

On an unspecified later date a lawyer was assigned by the Regional Bar Council to represent the applicant. The time-limit for the lodging of a cassation appeal was to expire on 23 February 2006.

By a letter of 22 February 2006 the lawyer requested the Regional Bar Council to release him from the obligation to represent the applicant.

On 20 March 2006 the Regional B ar Council assigned a new legal ‑ aid lawyer to represent the applicant in cassation proceedings.

On 22 March 2006 the lawyer informed the applicant that “he must have been aware that the time-limit for lodging the cassation appeal had expired and that therefore it was impossible to do so”.

The applicant filed a motion for retrospective leave to appeal out of time. The court remitted the motion to the applicant ’ s second legal-aid lawyer with a question as to whether he supported it. The lawyer failed to reply and ultimately the cassation appeal was not lodged.

On 20 March 2007 the court informed the applicant that on 19 January 2007 it had decided to return to him his motion for retrospective leave to appeal out of time .

COMPLAINTS

The applicant complain ed under Article 5 of the Convention that h e had been unlawfully detained in the sobering-up centre and that the police had ill-treated him during the arrest.

The applicant further complain ed under Articles 6 and 13 of the Convention that he had been denied an effective access to a court since a cassation appeal had not been prepared and lodged with the Supreme Court.

THE LAW

A. Access to court and the lack of an effective remedy in this respect

The applicant complained of a lack of effective access to a 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 ... hearing ... by [a] ... tribunal...”

By letter dated 13 February 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 this part of the applica tion 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 restriction of the applicant ’ s right of access to a court as guaranteed by Article 6 § 1 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 7,500 PLN, 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”.

In a letter of 9 March 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 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 on account of legal-aid lawyers ’ refusal to prepare cassation appeals (see, for example, Siałkowska v. Poland , no. 8932/05, 22 March 2007 ; Staroszczyk v. Poland , no. 59519/00, 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 examinat ion of the application (Article 37 § 1(c).

Moreover, in light of the above considerations, and in particular given the clear and 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 the unlawfulness of his detention in the sobering-up centre and the ill ‑ treatment by the police during his arrest .

The Court notes that this issue was the subject of the proceedings described above and that the applicant was granted compensation in the amount of PLN 15 , 000 from the State Treasury. Under these circumstances, the Court is satisfied that the applicant was afforded adequate redress for the measures complained about. Consequently, the applicant cannot claim any more to be a victim of any violation of the rights guaranteed by the Convention.

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

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 concerning denial of the applicant ’ s right of access to a court 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