FOURTH SECTION

FINAL DECISION

Application no. 358/04 by Bogdan SOBCZYŃ SKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 30 September 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 9 October 2003,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the partial decision of 25 September 2007 ,

Having regard to the declaration submitted by the respondent Government on 10 July 2008 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 Bogdan Sobczyń ski , is a Polish national who was born in 1933 and lives in Łódź . The Polish Government (“the Government”) were re presented 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 17 July 2000 the applicant lodged an action against his former employer, claiming compensation for profits which, he claimed, the defendant had derived from us ing the applicant ' s invention.

By a judgment of 8 April 2001 the Warsaw Regional Court dismissed the applicant ' s claim, finding it time-barred. Further, the court observed th at, in any event, had the action been lodged in time, it would not have been allowed, given that the applicant had failed to submit sufficient evidence to show that his technical invention had indeed been covered by in tellectual property law. The applicant appealed.

By a judgment of 17 April 2003, the Warsaw Court of Appeal dismissed the appeal.

On 18 April 2003 the applicant requested the court for legal aid for the purpose of lodging a cassation appeal with the Supreme Court. The request was allowed by a decision of 16 June 2003.

By a letter of 21 June 2003 the Bar informed the applicant that it ha d assigned a lawyer to the case. Due to a conflict of interest, on the same day the lawyer refused to prepare a cassation appeal. The Bar Association assigned a new lawyer to represent the applicant.

By a letter of 28 July 2003 the new lawyer in formed the applicant that on 23 June 2003 the Bar Association had assigned him to the case. On 8 August 2003 the judgment of the appellate court, together with its written grounds, was served on the lawyer.

On 20 August 2003 and 1 September 2003 the applicant sent detailed letters to the lawyer contai ning his views on the case and indicating relevant legal provisions and cas e ‑ law that could be relied on in the preparation of the cassation appeal.

By a faxed letter of 3 September 2003 the lawyer sent the applicant a list of points to be raised in the final text of the cassation appeal.

By a faxed letter of 4 September 2003 the applicant commented on the draft and suggested certain changes as he was of the view that the document prepared by the lawyer did not meet the necessary requirements for a cassation appeal . He also submitted his own draft, requesting the lawyer to take it into account when preparing a final version.

On 9 September 2003 the lawyer informed the court that he had not found legal grounds on which to prepare the cassation appeal.

On 11 September 2003 the applicant requested the court to assign a new lawyer to the case. He submitted that the lawyer had neither sent him a final version of the cassation appeal nor refused to prepare one .

By a letter of 15 September 2003 the court informed the applicant that the lawyer had not found legal grounds on which to prepare a cassation appeal and that the time -limit had already expired on 8 September 2003.

On 20 September 2003 the applicant requested the Bar Association to assign a new lawyer to the case.

By a letter of 26 September 2003 the Bar Association informed the applicant that the court alone was competent to request the Bar A ssociation to assign a new lawyer to the case.

By a decision of 2 October 2003 the court dismissed the applicant ' s request, on the ground that the former legal- aid lawyer had not found legal grounds on which to prepare a cassation appeal.

On 4 October 2004 the applicant wrote to the local Bar Association , complaining about the lawyer ' s refusal to deal with his case diligently. He emphasised that he had tried to facilitate the lawyer ' s work by indicating in a detailed manner legal provisions and case-law which could be invoked in the cassation appeal. As a result of the lawyer ' s conduct he had been irrevocably deprived of the possibility of lodging a cassation appeal.

By a letter of 1 March 2004 the Warsaw Bar of Legal Counsel informed the applicant that his complaint has been examined and that the lawyer had been requested to submit his version of the facts. It was noted that their accounts differed markedly.

By a letter of 30 March 2004 the applicant reiterated his complaints and stated that the conduct of the lawyer had caused him prejudice as he had been deprived of the possibility of lodging a cassation appeal within the time-limit provided for by law.

By a letter of 5 May 2004 the Dean of the Warsaw Bar of Legal Counsel informed the applicant that the matter had been examined and that there were no grounds on which to find that the lawyer had breached his professional obligations.

COMPLAINT

The applicant complained under Article 6 § 1 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. A lawyer assigned to represent him under the legal-aid scheme had refused to prepare and lodge a cassation appeal. The applicant was informed of this refusal after the relevant time ‑ limit had expired. This had resulted in his irrevocably losing an opportunity to institute cassation proceedings.

T HE LAW

The applicant complained that he had been denied an effective access to the 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 within a reasonable time by [a] ... tribunal...”

By letter dated 10 July 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised 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:

“ [T]he Government hereby wish to express – by way of unilateral declaration – their acknowledgement of the restriction of the fair trial in which the applicant was involved. The Government are prepared to pay the applicant a sum of PLN 10,000 as just satisfaction, which they consider to be reasonable in the light of the Court ' s case-law (see the judgment of 22 March 2007 in the case of Siałkowska v. Poland, no. 8932/05 and the judgment of 22 March 2007 in the case of Staroszczyk v. Poland, no. 59519/00).

The Government therefore invite the Court to strike the present case out of the list of cases. (...) As it transpires from the Government ' s comments on the facts ... the factual circumstances have never been contestable. ... The Government ' s unilateral declaration contains unconditional acknowledgment that the right to the fair trial was violated.”

In a letter of 12 August 2008 the applicant expressed the view that the sum mentioned in the Government ' s declaration was unacceptably low and did not reflect the damage which he had suffered in connection with the domestic proceedings in which he had been involved.

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).

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, 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 ). It notes in this connection that it has already addressed the issue giving rise to the instant case in its Siałkowska v. Poland judgment (no. 8932/05) of 22 March 2007.

Accordingly, it should be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ' s declaration 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 c ases in accordance with Article 37 § 1 (c) of the Convention.

Fatoş Aracı Nicolas Bratza Deputy Registrar President