FOURTH SECTION

DECISION

Application no. 61983/00 by Jerzy WERBICKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 1 March 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 30 November 1999 ;

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 friend ly settlement of the case;

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jerzy Werbicki , is a Polish national who was born in 1932 and lives in Warszawa.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 8 February 1995 the applicant filed with the Warsaw Regional Court an action in which he claimed damages for an infection with jaundice during an operation carried out in a public hospital.

On 22 March 1995 he was summoned to provide certain additional information and documents.

On 5 April 1995 the court exempted the applicant from court costs.

On 31 May 1995 and 8 May 1996 hearings were held. The court ordered an expert opinion. On 8 July 1996 the expert submitted his opinion.

On 13 January 1998 the court held a further hearing, at which it ordered another expert opinion.

It held hearings on 4 October 1999 and 2 February 2000 .

On 16 February 2000 the court gave judgment. It awarded the applicant PLN 21,100 with interest and found the State Treasury, represented by the Mazowsze Governor, liable for any future consequences of the infection. The applicant and the Governor lodged an appeal against that judgment.

On 24 May 2001 the Regional Court rejected the applicant ' s appeal as having been lodged out of the prescribed time-limit. On 28 March 2002 the Warsaw Court of Appeal dismissed the appeal lodged by the defendant.

THE LAW

On 31 January 200 2 the Court decided to communicate the application to the Government.

On 17 January 2005 the Court received the following declaration from the Government:

“I , Jakub Wo ł ąsiewicz , Agent of the Government before the ECHR, declare that the Government of Poland offer to pay PLN 12 ,000 to M r Jerzy Werbicki with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, and it will be payable within three months from the date of notification of the judgment by the Court pursuant to the Article 39 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.

This payment will constitute the final resolution of the case.

The Government further undertake not to request that the case be referred to the Grand Chamber under Article 43 § 1 of the Convention.”

On 18 January 2005 the Court received the following declaration signed by the applicant :

“I , Jerzy Werbicki , note that the Government of Poland are prepared to pay me the sum of PLN 12 ,000 with a view of securing a friendly settlement of the above mentioned case pending before the European Court of Human Rights.

This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses and will be payable within three months from the date of notification of the judgment by the Court pursuant to the Article 3 9 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 declare that the applicant waives any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final settlement of the case related to Article 6 of the Convention . ”

The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).

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

Declares to discontinue the application of Article 29 § 3 o f the Convention;

Dec ides to strike the application out of its list of cases.

Michael O ' Boyle Nicolas Bratza Registrar President