FOURTH SECTION

DECISION

Application no. 12171/02 by Mirosław PALACZ against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 September 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr G. Bonello , Mr K. Traja , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä, judges , and Mrs F. Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 28 August 2001,

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 Mirosław Palacz, is a Polish national who was born in 1962 and lives in Wronki . 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 applicant , may be summarised as follows.

On 13 October 1999 the applicant was arrested on suspicion of burglary.

On 29 December 1999 the Racibórz District Court refused to grant legal aid to the applicant. The court stressed that the applicant ’ s financial situation was good since he could afford to pay the legal fees for his defence in another set of criminal proceedings before the Jastrzębie District Court. At a hearing held on 21 March 2000 the applicant again asked to be granted free legal aid. He claimed that he was not able to afford the costs of legal assistance. The court refused his request on the ground that the applicant had not substantiated that his financial situation made it impossible for him to pay the costs of legal assistance.

On 19 April 2000 the Racibórz District Court gave judgment convicting the applicant .

On 2 September 2000 the applicant asked to be granted legal aid in the appeal proceedings. He claimed that he was not able to bear the costs of a lawyer. He had been in custody for nearly one year, he did not work and he had no income. His family was poor and they were not able to help him. In addition, the case was relatively complex. On 22 September 2000 the applicant again asked for legal aid. It appears that the court refused his requests on a later unspecified date.

On 5 October 2000 the Katowice Regional Court ( S ąd Okręgowy ) gave judgment and upheld the conviction. The applicant submits that he was present at the appeal hearing. However, he was not represented by a lawyer.

On 21 November 2000 the Katowice Regional Court granted free legal assistance to the applicant in connection with his intended cassation appeal.

On 5 January 2001 the applicant ’ s officially appointed lawyer filed a cassation appeal in the applicant ’ s name. He maintained that the refusal to grant the applicant free legal assistance had affected his defence rights in a manner contrary to the requirements of a “fair trial”.

On 31 May 2001 the Supreme Court ( Sąd Najwyższy ) dismissed the applicant ’ s cassation appeal. That decision did not contain any reasons.

B. Relevant domestic law and practice

Pursuant to Article 78 § 1 of the 1998 Code of Criminal Procedure, an accused who had proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family ’ s standard of living”) could ask the trial court to appoint him a defence counsel.

Article 80 of the Code lays down the principle known as “compulsory assistance of an advocate” ( przymus adwokacki ). That Article provides, in so far as relevant:

“An accused must have an officially appointed lawyer when a regional court is competent to deal with his case as a court of first instance, a crime is involved within the meaning of the Criminal Code, or the individual is detained on remand. The counsel must take part in the main hearing; he must also take part in any appellate hearing if the president of the court or the court itself has found this necessary.”

COMPLAINTS

1. The applicant complain ed under Article 6 of the Convention that he had been refused legal aid during the proceedings before the first and second ‑ instance courts.

2. He further alleged under Article 13 that he had not had an effective remedy, and even in the appeal proceedings he had not been granted free legal assistance.

3. Lastly, he alleged under Article 14 that he had been discriminated against as a previously convicted person.

THE LAW

On 12 June 2007 the Court received the following declaration from the Polish Government:

“I declare that the Government of Poland offer to pay PLN 10,000 to Mr Miroslaw Palacz 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 it will be payable within three months from the date of the 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 18 June 2007 the Court received the following declaration signed by the applicant :

“I, Miroslaw Palacz, note that the Government of Poland are prepared to pay me the sum of PLN 10,000 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 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 of this application. I declare that this constitutes a final settlement of the case.”

The Court takes note of the friendly settlement reached between the parties and considers that the matter has been resolved (Article 37 § 1 (b) of the Convention). Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

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

FatoÅŸ Aracı Nicolas Bratza              Deputy Registrar President