FOURTH SECTION

DECISION

Application no . 56695/08 Krystian KULIŃSKI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 11 February 2014 as a Committee composed of:

Ledi Bianku, President, Paul Mahoney, Krzysztof Wojtyczek, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 4 November 2008 ,

Having regard to the declaration submitted by the respondent Government on 28 June 2013 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Krystian Kuliński , is a Polish national, who was born in 1973 and lives in Lublin . He was represented before the Court by Ms M. Banach , a lawyer practising in Lublin .

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, 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.

The applicant , a police officer , was involved in an incident at the Kielce night club. He was drunk, aggressive, provoked fights with other customers, threatened them with a firearm and abused them verbally . He was arrested by the police and placed in a sobering-up centre .

On 11 January 2006 disciplinary proceedings against the applicant were instituted. He was charged with a grave violation of the rules of ethics of a police officer in breach of section 132 (1) of the Police Act. Soon after he was suspended from his functions by the Head of the Police ( K omendant Główny Policji ).

In the course of the disciplinary proceedings the applicant was heard and admitted to all charges. He expressed his remorse and apologised to all involved.

On 7 June 2006 the Head of the Police found the applicant guilty as charged and decided to dismiss him from the police. The Head of the Police established that the incident had been a very serious one and that the penalty took into account all the circumstances of the case including the fact that the applicant had been off-duty during the night in question.

The applicant appealed against the decision requesting reconsideration of the case.

On 31 July 2006 the Head of the Police upheld his decision. According to the domestic law the decision was final and enforceable. However, it was open to lodge a complaint on points of law with the Regional Administrative Court ( Wojewódzki Sąd Administracyjny ).

The applicant lodged the complaint .

On 19 January 2007 the Warsaw Regional Administrative Court dismissed the applicant ’ s complaint. The court, which could examine only whether the impugned decision had been issued in accordance with the law, considered that the Head of the Police took his decision after having conducted disciplinary proceedings in a non-arbitrary manner.

The applicant lodged a cassation appeal with the Supreme Administrative Court ( Naczelny Sad Administracyjny ). He and his lawyers underlined that the Head of the Police had not taken into consideration any mitigating circumstances, like his exemplary service and the difficult period in the applicant ’ s personal life (he had felt depressed after his divorce and the death of a friend). In his cassation appeal the applicant ’ s lawyer also complained that in his disciplinary proceedings the applicant had been deprived of the right to be represented by a professional representative i.e. a lawyer. He relied on the Constitutional Court ’ s judgment of 19 March 2007 which had considered unconstitutional the provisions barring a police officer from being represented by a lawyer of his own choosing during disciplinary proceedings.

On 6 May 2008 the Supreme Administrative Court dismissed the applicant ’ s cassation appeal. It considered that the Constitutional Court ’ s judgment had been given after the Regional Administrative Court ’ s judgment and thus could not be applied in the instant case. Moreover, the decisions given in the disciplinary proceedings against the applicant were not based on the unconstitutional provision, and thus it would not be possible to reopen the proceedings following the Constitutional Court ’ s judgment.

On 13 May 2008 the applicant lodged a motion for the reopening of the proceedings in the light of the Constitutional Court ’ s judgment and leave to examine the request out of time.

On 16 June 2008 the Head of the Police refused to restore the time-limit for the purpose of reopening. According to section 135 (3) of the Law on Police an application for reopening of the proceedings that had finally ended shall be made within one month from the date on which the judgment of the Constitutional Court became final. In the instant case the time-limit had expired on 2 May 2008. The Head of the Police considered that the fact that the applicant had been waiting for the Supreme Administrative Court to give a final ruling in his case had not been a justified reason for failing to observe the time-limit.

The applicant appealed but on 12 August 2008 the Head of the Police upheld his own decision. On 14 August 2008 the Head of the Police refused to reopen the proceedings. On 18 September 2008 the Head of the Police upheld his own decision not to reopen the case.

B. Relevant domestic law and practice

Section 135f (1) of the 1990 Police Act, in so far as relevant, read as follows:

“In the course of disciplinary proceedings the accused person shall have the right to:

(4) appoint a defender from among the police officers”

On 19 March 2007 the Constitutional Court gave a judgment following a constitutional complaint lodged by the Ombudsman (K 47/05). The judgment was published on 2 April 2007 and entered into force on the same date. The court considered that section 135f (1) point 4 of the Police Act was unconstitutional in that it unjustifiably limited the right of the accused person to defend himself. The Constitutional Court held for instance that a police officer charged with defending an individual in disciplinary proceedings would not be able to offer the same level of services as a professional representative. Moreover, the representative continued his service as a police officer, and thus the disciplinary body remained his hierarchical superior.

On 4 June 2008 the relevant provision of the Police Act was amended in that an accused police officer could be represented by an advocate or a legal adviser ( Section 135f (1) point 4a) .

COMPLAINT

The applicant complained under Article 6 of the Convention about unfairness of the proceedings in that he had not been represented by a lawyer in his disciplinary proceedings and that the proceedings in his case had not been reopened.

THE LAW

A . The Government ’ s unilateral declaration

The applicant complained in substance about unfairness of his disciplinary proceedings making reference to the exclusion of the legal representation which falls to be examined under Article 6 § 1 of the Convention . That provision , in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

By letter dated 28 June 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application . They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“the Government hereby wish to express - by way of the unilateral declaration - their acknowledgement that the applicant ’ s right to have the fair hearing in the meaning of Article 6 § 1 of the Convention ha s been violated.

Consequently, the Government are prepared to pay to the applicant the sum of EUR 3,000 (three thousand euros) which they consider to be reasonable in the light of the Court ’ s case-law.(...)

The sum of EUR 3,000 referred to above , 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. 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 Government would respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention ...”

The applicant expressed the view that the sum proposed by the Government was unacceptably low .

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court examine d carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003 ‑ VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and SulwiÅ„ska v. Poland (dec.), no. 28953/03).

The Court has established in a number of cases its practice concerning applicability of Article 6 of the Convention under its civil head to the disciplinary proceedings of a civil servant in which the right to continue to exercise a profession is at stake (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II ; and Vanjak v. Croatia , no. 29889/04 , § 33, 14 January 2010) .

As regards other issue s raised by the applicant under Article 6 of the Convention the Court notes that he failed to lodge an application for the re-opening of the proceedings within the time-limit provided by the domestic law. In any event the Court considers that those complaints do not require a separate examinatio n.

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

The Court finally notes that following the judgment of the Constitutional Court of 19 March 2007, Section 135f (1) point 4 of the Police Act was repealed and replaced by point 4a which explicitly allows for professional representation in disciplinary proceedings.

Accordingly, it should be struck out of the list.

B . Costs and expenses

Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

The applicants claimed 4,700 Polish zlotys (PLN) , amounting to approximately EUR 1,200, for costs and expenses incurred in the proceedings before the Court. That sum included costs of legal representation before the Court and translation of documents . The app licant ’ s lawyer provided copies of relevant invoices .

The Government did not comment on this claim .

According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Although the proceedings before the Court were not complex and resulted in a decision to strike the case out of its list, the applicant ’ s representative had submitted his observations on the admissibility and merits of the case as well as other pleadings. The Court thus accepts that some of these costs were actually and necessarily incurred (see mutatis mutandis , Ahmed v United Kingdom (dec), no. 31668/05, 14 October 2008; Meriakri v. Moldova (striking out), no. 53487/99, § 33, 1 March 2005 ; and Gil v Poland (striking out ), no. 46161/11, 4 June 2013) . Regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award t he applicant the sum of EUR 1,2 00 covering the costs of the proceedings before the Court.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaint under Article 6 § 1 the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Holds

(a) that the respondent State is to pay the applicants, within three months, EUR 1, 2 00 (one thousand two hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants, to be converted into Polish zlotys at the rate applicable at the date of settlement;

(b) that 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;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Fatoş Aracı Ledi Bianku Deputy Registrar President