FOURTH SECTION

FINAL DECISION

Application no. 34087/96 by Marek DÄ„BROWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 29 January 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 16 October 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 6 July 1999,

Having regard to the observations submitted by the respondent Government and to the fact that the applicant did not submit his observations on the admissibility and merits of the application,

Having deliberated, decides as follows:

THE FACTS

The applicant, Marek DÄ…browski, is a Polish national, who was born in 1965 and lives in Gliwice , Poland.

In the proceedings before the Court the applicant was not represented by a lawyer. The respondent Government were represented by their Agent, Mr K. Drzewicki , of the Ministry of Foreign Affairs.

The facts of the case may be summarised as follows.

A. Criminal proceedings against the applicant

On 18 March 1995 the applicant was arrested by the police. On 19 March 1995 he was brought before T. Ż., a district prosecutor from the Gliwice District Prosecutor’s Office ( Prokuratura Rejonowa ), charged with burglary and with assault of a “hooligan character” ( o charakterze chuligańskim ) and detained on remand until 17 April 1995.

On an unknown date in June 1995 the Gliwice District Prosecutor ( Prokurator Rejonowy ) indicted the applicant in the Gliwice District Court ( SÄ…d Rejonowy ).

On 20 February 1996 the District Court convicted the applicant as charged and sentenced him to sixteen months’ imprisonment.

The applicant appealed.

The Katowice Regional Court ( Sąd Wojewódzki ) heard, and dismissed, the appeal on 21 May 1996.

The applicant filed a notice of cassation appeal.  Later, on 21 June 1996, he asked the Regional Court to grant him free legal assistance for the preparation of a cassation appeal to the Supreme Court ( Sąd Najwyższy ). The applicant stressed that he could not himself prepare that appeal because, pursuant to the relevant provisions of the Code of Criminal Procedure, a cassation appeal had to be filed and signed by an advocate, on pain of it being rejected.  He maintained that he had no means (especially as he was not employed in prison) and could not bear the costs of legal representation of his own choice.

On 10 July 1996 the Katowice Regional Court rejected the application.

B. Events that took place after the case was communicated

On 12 July 1999 the Registrar sent a letter to the applicant, informing him that the Court (former Fourth Section) had decided to give notice of his complaints under Article 5 § 3 and Article 6 § 3 (c) of the Convention to the Polish Government. He informed the applicant of the possibility of obtaining free legal aid from the Council of Europe.

On 24 November 1999 the Government submitted their written observations on the admissibility and merits of the case. On 25 November 1999 the applicant was invited to file his pleading by 14 January 2000.

On 20 January 2000 the Registry received the applicant’s letter dated 10 January 2000, in which he asked for an extension of the time-limit fixed for the submission of his observations until 14 February 2000. He explained that he had to commission a translation of the Government’s observations since they had been written in English, a language he did not understand. He also informed the Registrar that he was going to apply for free legal and asked him for the necessary forms.

On 1 February 2000 the applicant was informed that he had been granted the extension requested.  He was provided with the legal aid forms and advised what were the criteria for obtaining a grant of free legal assistance.

On 26 June 2000 the applicant informed the Court that he had meanwhile changed his address (that letter was received at the Registry on 12 July 2000). He complained that he could not file his reply to the Government’s observations because they were in English and that he did not have sufficient means to pay for the translation he commissioned.

On 1 August 2000 the Registrar sent, by registered mail, a letter informing the applicant that the Polish Government, despite the reminder to that effect, had to date failed to submit the Polish translation of their pleading. The Registrar further indicated that, as it had already been mentioned in his letter of 1 February 2000 (a copy of that letter was enclosed herewith), the applicant could seek to obtain legal representation under the Court’s legal aid scheme and that, in the event he encountered difficulties in finding a suitable lawyer, the Registrar would be prepared to assist him in finding an English-speaking counsel.

That letter was delivered to the applicant’s address on 8 August 2000.

As the applicant had not responded for several months, the Registrar sent (again by registered mail) a subsequent letter, asking for an explanation of the applicant’s failure to observe the procedure fixed in his case and informing of the terms of Article 37 § 1 of the Convention. The applicant was warned that if he failed to respond to that letter by 25 June 2001, the Court might conclude that he was no longer interested in pursuing his application and apply that Article.

The applicant replied on 6 June 2001 (that letter was received at the Registry on 10 July 2001), explaining that, on 4 September 2000, there had been a housebreaking into his flat and that all the Court’s letters and other documents concerning his case had been stolen. He asked the Registrar to serve a copy of the Government’s observations on him. He presented, however, his declaration of means.

Since that declaration had not been certified by “the appropriate domestic authority” as required under Rule 93 § 1 of the Rules of Court, the Registrar sent it back to the applicant on 16 July 2001.  The applicant was asked to return the certified declaration by 20 August 2001. He was also informed that the President of the Chamber extended the time-limit fixed for the submission of his observations until 3 September 2001.

The applicant did not comply with the time-limit. Nor did he submit the certified declaration of means.

On 5 October 2001 the Registrar reminded the applicant about the terms of Article 37 § 1 of the Convention and warned that, given his repeated failure to observe the procedure fixed in his case, the Court might apply that provision and strike his application out of its list of cases.

That letter was sent by registered mail. It emerges from the relevant acknowledgement of receipt (signed by the applicant) that the letter was delivered to him on 10 October 2001.

The applicant has not to date resumed his correspondence with the Court.

COMPLAINTS

Invoking Article 5 § 3 of the Convention, the applicant complained that, after having been arrested, he had not been brought promptly before a judge but before the investigating prosecutor, who had lacked impartiality and independence required under that provision.

He also alleged a breach of Article 6 § 3 (c) of the Convention in that he had arbitrarily been refused free legal assistance for the preparation of a cassation appeal.

THE LAW

Relying on Article 5 § 3 of the Convention, the applicant contested impartiality and independence of the prosecutor who had ordered his detention. He further alleged that the refusal to grant him free legal assistance in cassation proceedings had been in breach of Article 6 § 3 (c) of the Convention.

The respondent Government made an alternative plea. They invited the Court to reject the application either for non-compliance with the admissibility requirements laid down in Article 35 § 1 of the Convention or as being manifestly ill-founded.

However, the Court, having regard to the events that occurred after the Government had submitted their observations on the admissibility and merits of the case, considers that Article 37 § 1 of the Convention should be applied.

That provision, in its relevant part, reads:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application;  ....

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

In that context, the Court notes that the applicant on several occasions failed to observe the procedure fixed in his case.  In particular, he did not comply with the time-limits set for the submission of his observations and has not submitted them up to the present day, which is some two years after the original deadline.

It is true that the applicant claimed that he was unable to prepare his pleading because the Government’s observations had been written in English, a language he did not understand. He also alleged that he did not have sufficient means to afford the costs of translation.

The Court observes, however, that the Registrar repeatedly informed the applicant by registered mail of the possibility of obtaining free legal aid from the Council of Europe. In the event the applicant encountered difficulties in finding a suitable lawyer, the Registrar offered him assistance in that matter and provided him with all the relevant forms and instructions. Yet, despite the Registrar’s reminder to that effect, the applicant did not certify his declaration of means as required under Rule 93 § 1 of the Rules of Court and has not taken advantage of seeking legal representation under the Court’s legal aid scheme. Lastly, the applicant has not reacted to the Registrar’s registered letter of 5 October 2001, informing him of the terms of Article 37 § 1 and warning that the Court might apply that provision in his case.

In the circumstances, the Court concludes that the applicant does not intend to pursue his application and that it is no longer justified to continue the examination of his case. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine , that would require it to continue the proceedings by virtue of that provision.

For these reasons, the Court unanimously

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

Michael O’Boyle Nicolas Bratza Registrar President