FOURTH SECTION

DECISION

Application no. 11409/04 by Paweł ZALEWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 March 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Ján Šikuta , Päivi Hirvelä , Ledi Bianku , judges and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 16 November 2000,

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 f riendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The appli cant, Mr Paweł Zalewski , is a Polish national who was born in 1971 . He is currently serving a prison sentence in Wołów prison . The Polish Government (“the Government”) were r epresented 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 applicant can be summarised as follows:

1. The first set of criminal proceedings

On 18 December 2001 the Bydgoszcz Regional Court convicted the applicant, together with three other accused, of several counts of assault and aggravated theft and sentenced him to f ive years ’ imprisonment. The applicant ’ s lawyer appealed, arguing that the first-instance court had erred in the assessment of the evidence. A lawyer representing one of the other convicted persons submitted that the proceedings had been unfair because the victims o f the crime had been questioned at the investigation stage by a court inferior to the court competent to deal with the merits of the case.

On 22 October 2002 the Gdansk Court of Appeal dismissed the appeals. In connection with the complaint made by the applicant ’ s co ‑ accused, it noted that immediately after the accused had been arrested , the prosecutor requested the Åš wiecie District Court to examine immediately the victims as witnesses, having regard to the fact that they were Bulgarian and that it was likely that there would be no opportunity later for the courts dealing with the case to hear them. Accordingly, two victims and two witnesses to the incident were heard by that court. Later, the judicial proceedings were conducted by the Bydgoszcz Regional Court , which was competent to give a ruling in the case. The court observed that it was not open to doubt that a judgment in criminal proceedings should be given by a competent court. However, the mere fact that certain evidence had been taken by another court in order to avoid the possibility that it might later become impossible to obtain that evidence did not automatically entail a breach of the applicable provisions of the criminal law , requiring the judgment under appeal to be quashed . This was so because the accused had actively taken part in the hearing before the Åš wiecie District Court at which th e evidence had been taken and had put questions to the witnesses.

Th e applicant and another accused lodged a cassation appeal with the Supreme Court against this judgment.

On 2 0 January 2004 the Supreme Court dismissed their appeal, finding that there was no indication of any unfairness in the proceedings

2. The second set of criminal proceedings

On 24 April 2003 the Grudziądz District Court convicted the applicant of uttering threats, coercion and battery and sentenced him to four years and eight months ’ imprisonment. The applicant and the prosecution appealed.

On 1 July 2004 the Toruń Regional Court partly amended the judgment and reduced the applicant ’ s sentence to three years and six months ’ imprisonment.

On 30 May 2005 the Toruń Bar assigned Mr L.L. to represent the applicant for the purpose of preparing a cassation appeal. On 1 June 2005 the judgment of the appellate court , together with its written grounds , was served on the lawyer.

By a letter dated 24 Jun e and served on the court on 30 June 2005 the lawyer informed the court that he had not found any grounds on which to prepare a cassation appeal in his case. This letter was forwarded to the applicant, who was serving a prison sentence at that time, and served on him on an unspecified later date.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he had been denied an effective access to the cassation court in the second set of criminal proceedings because his legal-aid lawyer refused to prepare and lodge a cassation appeal on the last day of the time-limit provided for by law. He was informed of this refusal after the time-limit had expired. This gave rise to an infringement of his right to a fair hearing and resulted in his irrevocably losing an opportunity to institute cassation proceedings.

He further complained that in the first set of proceedings his defense rights had been breached because during the investigation certain evidence crucial for the outcome of the case had been taken by the District Court, although it had been the Regional Court which was competent to examine with the case.

THE LAW

On 11 February 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 Paweł Zalewski 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 19 February 2008 the Court received the following declaration signed by the applicant:

“ I, Paweł Zalewski , 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 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.

Lawrence Early Nicolas Bratza Registrar President