FOURTH SECTION

DECISION

Application no. 22698/02 by Krzysztof BUDYCH against Poland

The European Court of Human Rights ( Fourth Section), sitting on 15 January 2008 as a Chamber composed of:

Nicolas Bratza , President, Josep Casadevall , Stanislav Pavlovschi , Lech Garlicki , Ljiljana Mijović , Ján Šikuta , Päivi Hirvelä , judges, Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 20 May 2002,

Having regard t o 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 Krzysztof Budych , is a Polish national who was born in 1974. He is currently serving a prison sentence in Wołów prison. The respondent Government are represented by their Agent, Mr J. Woląsiewicz 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 15 December 1999 the applicant was arrested on suspicion of rape and aggravated assault. On 15 December 1999 he was remanded in custody.

Hearings in his case were held on 9 October, 13, 20, 27, 30 November 2000, 4 and 5 January, 8 February, 8 March, 12 April and 10 May 2001 before the Åšwidnica Regional Court.

On 10 May 2001 the Świdnica Regional Court found the applicant guilty of several counts of assault, gang rape and coercion. It sentenced him to 12 years ’ imprisonment.

The applicant filed an appeal against this judgment with the WrocÅ‚aw Court of Appeal. He maintained in particular that some witnesses had radically changed their statements during t he proceedings before the first ‑ instance court and that therefore his guilt could not be regarded as “beyond any doubt and fully confirmed by the witnesses”. He requested that the judgment be quashed and the case remitted to the regional court for re-examination.

On an unspecified date the applicant requested to be brought in person before the Court of Appeal. Subsequently, the Court refused to do so, indicating that the applicant had been represented by a lawyer throughout the proceedings.

On 18 October 2001 the Wrocław Court of Appeal amended the judgment under appeal in that it reduced the sentence to 11 years and 6 mo n ths ’ imprisonment . It dismissed the rem ai nder of the appeal. The applicant was represented by a legal-aid lawyer.

The Court of Appeal found that the Regional Court had thoroughly assessed the evidence and had carefully considered the question of the applicant ’ s guilt. It found that the applicant had tendentiously assessed the evidence , motivated by his wish to avoid conviction , and considered the applicant ’ s objections to the assessment of facts by the first-instance court to be unfounded.

The applicant requested that legal aid be granted to him.

By a decision of 22 November 2001 the court allowed his request and assigned lawyer Z.K. to represent him for the purpose of cassation proceedings.

By a letter dated 9 December 2001 the legal-aid lawyer informed the court that, having read the case file, she had not found any grounds on which to lodge a cassation appeal against the judgment of the appellate court. This letter was deliver ed to the Court of Appeal on 21 December 2001.

COMPLAINT S

The applicant complained under Article 6 of the Convention about the unfairness of the proceedings. In particular he alleged that the courts had lacked impartiality and that they had disregarded the evidence on his behalf, reached untenable conclusions as to the facts and, as a result, gave wrong decisions.

The applicant alleged that his absence at the hearing before the appellate court had made it impossible for him to defend himself in person, which had rendered the appellate proceedings unfair.

The applicant complained that the legal-aid lawyer had refused to bring a cassation appeal on his behalf, which had made it impossible for him to have the procedural shortcomings in the proceedings rectified.

THE LAW

On 22 May 2007 the Court received the following declaration from the Government, signed by their Agent:

“I declare that the Government of Poland offer to pay PLN 7,650 [1] to Mr Krzysztof Budych 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. I t will be payable within three months from the date of notification of the decision taken b y 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 3 January 2008 the Court received the following declaration signed by the applicant:

“ I, Krzysztof BUDYCH , note that the Government of Poland are prepared to pay me the sum of PLN 7,650 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. I t will be payable within three months from the date of notification of the decision taken b y 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 discont inue 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

[1] approximately EUR 2,143