FOURTH SECTION

DECISION

Application no. 31026/06 by Marek SIDOROWICZ against Poland

The European Court of Human Rights ( Fourth Section), sitting on 6 May 2008 as a Chamber composed of:

Nicolas Bratza , President,

Lech Garlicki ,

Giovanni Bonello ,

Ljiljana Mijović ,

David Thór Björgvinsson ,

Ján Šikuta ,

Ledi Bianku , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 19 July 2006,

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

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Marek Sidorowicz , is a Polish national who was bo rn in 1960. He is currently serving a prison sentence in Kłodzko prison. The respondent Government are represented by 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.

1. Criminal proceedings against the applicant

On an unspecified date the applicant was arrested. By a decision of the ZÄ…bkowice ÅšlÄ…skie District Court, given on an unspecified later date, he was remanded in custody.

On 7 June 2005 the ZÄ…bkowice ÅšlÄ…skie District Court found the applicant guilty of assault, uttering threats and aggravated theft and sentenced him to three years ’ imprisonment. The applicant, represented by a legal ‑ aid lawyer, appealed.

On 30 September 2005 the Åšwidnica Regional Court upheld the contested judgment. The applicant was represented by his legal aid lawyer, Mr W. S., during the only hearing held in the appellate proceedings.

Subsequently the applicant repeatedly wrote to his legal-aid lawyer, asking him for advice as to how to proceed further with the case. There was no reply to these letters, except to the last one, dated 7 December 2005. By a letter of 14 December 2005 the lawyer replied that he had refused to prepare a cassation appeal against the second-instance judgment, finding no grounds on which to do so.

This letter was served on the applicant on an unspecified later date.

On 25 September 2007 the applicant, requested by the Registry of the Court to inform it about the date on which the lawyer had been served with the written grounds of the second-instance judgment, requested the ZÄ…bkowice ÅšlÄ…skie District Court to provide him with relevant information. Under applicable provisions of domestic law the thirty-day time-limit for lodging a cassation appeal starts to run on the date of such service.

In a reply of 3 October 2007, he was informed by the court that the legal ‑ aid lawyer had never requested that written grounds of the judgment given by the appellate court be prepared and served on him. Consequently, such grounds had never been prepared and the judgment had never been served.

2. Proceedings concerning allegations of ill-treatment by the police

On 29 December 2004 the Z Ä…bkowice ÅšlÄ…skie District Prosecutor instituted proceedings to investigate allegations that the applicant had been ill-treated by the police during his arr est on 6 November 2004.

On 28 September 2005 the investigations were discontinued, the prosecuting authorities having found no evidence that a criminal offence had been committed.

Apparently later, upon the applicant ’ s appeal, the investigations were reopened following a decision of the higher prosecuting authority.

By a decision of 9 March 2006 the investigations were discontinued, the prosecution finding that no criminal offence had been committed.

COMPLAINTS

The applicant complained, invoking Article 6 of the Convention, that the proceedings had been unfair in that the courts had wrongly assessed evidence, erred in establishing the facts of the case and incorrectly applied applicable domestic law.

He further complained that the criminal proceedings against him had lasted too long.

He submitted that he could not lodge a cassation appeal against the judgment of the appellate court as his legal ‑ aid lawyer had failed to request the court that written grounds of the appellate judgment be served on him. This had made it impossible for the applicant to proceed further with the case and to have it examined by way of a cassation appeal.

He submitted, in his letter of 6 October 2007, that the appellate court had refused to bring him from prison to the courtroom so that he could attend the only hearing held before that court on 30 September 2005.

THE LAW

On 7 April 2008 the Court received the following declaration from the Government:

“I declare that the Government of Poland offer to pay PLN 11,330 (eleven thousand three hundred and thirty Polish zlotys) to Mr Marek Sidorowicz 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 a ny taxes that may be applicable. It will be payable within three months from 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 31 March 2008 the Court received the following declaration signed by the applicant:

“ I, Marek Sidorowicz , note that the Government of Poland are prepared to pay me the sum of PLN 11,330 (eleven thousand three hundred and thirty 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. It will be payable within three months from 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 discontinue the application of Article 29 § 3 of the Convention and 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.

Fatoş Aracı Nicolas Bratza Deputy Registrar President