FOURTH SECTION

DECISION

Application no. 12947/04 by Antoni WOJCIECHOWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 April 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Mihai Poalelungi , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 23 March 2004,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Antoni Wojciechowski, is a Polish national who was born in 1940 and lives in Debrzno. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs .

A. The circumstances of the case

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

On 25 September 2001 the applicant lodged a civil claim for payment against the Military Housing Agency (Wojskowa Agencja Mieszkaniowa) with the Bydgoszcz District Court (SÄ… d Rejonowy).

On 15 November 2001 following a request by the applicant, the Bydgoszcz District Court partly exempted the applicant from court fees for his claim.

On 25 June 2002 the Bydgoszcz District Court gave judgment and partly granted the claim.

Both parties appealed against this judgment.

On 12 December 2002 the Bydgoszcz Regional Court (Są d Okręgowy) amended the judgment, dismissed the applicant ’ s claim and dismissed his appeal. The Regional Court ’ s judgment was served on the applicant on 18 May 2003.

On 20 May 2003 the applicant requested the Bydgoszcz Regional Court to appoint a legal-aid lawyer to lodge a cassation appeal on his behalf and to exempt him from court fees for the cassation appeal.

It appears that the time-limit to lodge a cassation appeal expired on 19 June 2003 (that is, one month after the date on which the second-instance court judgment with reasons was served on the applicant).

On 11 August 2003 the Bydgoszcz Regional Court dismissed the applicant ’ s request. The decision contained no reasons. However, a note (pouczenie) was attached , according to which a cassation appeal would not in any event have been available in law due to the amount in dispute.

On 21 August 2003 the applicant appealed. In his view the court had wrongly calculated the amount in dispute and therefore a cassation appeal should have been available.

On an unspecified date the applicant received a letter dated 5 September 2003, signed by a judge of the Bydgoszcz Regional Court informing him that the decision of 11 August 2003 was not appealable and that in his case a cassation appeal had in fact been available. It also informed the applicant that the examination of his requests of 20 May 2003 for a legal-aid lawyer to be assigned and exemption from court fees had not stopped the running of the time for the lodging of a cassation appeal. In consequence the applicant had to request the court for retrospective leave to submit his cassation appeal out of time.

On 18 September 2003 the applicant lodged a request for retrospective leave to submit a cassation appeal with the Bydgoszcz Regional Court as well as a request for extension of the time-limit for submitting a request for a legal-aid lawyer to lodge a cassation appeal on his behalf and for exemption from court fees for the cassation appeal. The applicant justified his request by pointing to the mistake made by the Regional Court , which had wrongly assumed that in his case a cassation appeal was not available and had therefore dismissed his request of 20 May 2003.

On 25 November 2003 the Bydgoszcz Regional Court ordered the applicant to rectify the procedural shortcomings in his request by lodging another copy of it and enclosing a cassation appeal. The court relied on Article 169 of the Code of Civil Procedure, according to which a party to proceedings may ask for reinstatement of the time-limit for lodging an appeal or a pleading provided that the appeal or pleading is lodged at the same time as the request.

On the same day, 25 November 2003, the Bydgoszcz Regional Court rejected the applicant ’ s requests for an extension of the time-limit, for a legal-aid lawyer and exemption from court fees.

On 8 March 2004 the Bydgoszcz Regional Court returned the request for retrospective leave to submit a cassation appeal to the applicant.

B . Rele vant domestic law and practice

The relevant domestic law and practice concerning issues raised by the present application are set out in the Court ’ s judgment of Siałkowska v. Poland , no. 8932/05 , §§ 20-47, 22 March 2007 .

COMPLAINTS

Relying on Article 6 § 1 of the Convention the applicant complained that the domestic court had wrongly dismissed his application for the appointment of a legal-aid lawyer in the cassation appeal proceedings and thus had deprived him of the opportunity to have his case examined by the Supreme Court. He complained that this had violated his right of access to a court.

He also complained that the Regional Court ’ s decision refusing to exempt him from court fees and to grant him a legal-aid lawyer, as well as the further decisions of that court, had amounted to a violation of his right to an effective remedy guaranteed by Article 13 of the Convention.

The applicant further complained, under Article 14 of the Convention, that he had been discriminated against.

THE LAW

On 18 February 2009 the Court received the following d eclaration from the Government:

“I , Jakub Wołąsiewicz, Agent of the Polish Government, declare that the Government of Poland offer to pay PLN 8,6 00 ( eight thousand six hundred Polish zlotys) to Mr Antoni Wojciechowski with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Hu man Rights.

This sum, 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 and 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 payment will constitute the final resolution of the case.”

On 26 February 2009 the Court received the following declaration signed by the applicant:

“ I, Antoni Wojciechowski, note that the Government of Poland ar e prepared to pay me the sum of PLN 8,6 00 ( eight thousand six hundred Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, 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 and 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Nicolas Bratza Registrar President