FOURTH SECTION

DECISION

Application no . 33038/08 Jan NOWACKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 4 December 2012 as a Committee composed of:

Päivi Hirvelä , President, Zdravka Kalaydjieva , Paul Mahoney , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 29 June 2008,

Having regard to the declaration submitted by the respondent Government on 30 August 2012 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 Jan Nowacki, is a Polish national, who was born in 1957 and lives in Warszawa.

The Polish Government (“the Government”) were represented by their Agent, Ms Justyna Chrzanowska of the Ministry of Foreign Affairs.

The part of the application concerning the applicant ’ s complaint under Article 6 § 1 in conjunction with Article 6 § 3 (c) about refusal to appoint a legal aid lawyer in the cassation proceedings, had been communicated to the Government .

A. The circumstances of the case

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

1. The criminal proceedings against the applicant

In November 2005 the applicant was charged with causing serious bodily harm.

On 11 July 2007 the Radomsko District Court ( SÄ…d Rejonowy ) convicted the applicant as charged and sentenced him to a prison term of twelve years. During the first-instance proceedings the applicant was represented by a legal aid lawyer.

On 18 December 2007 the Piotrków Trybunalski Regional Court ( S ą d Okr ę gowy ) partially upheld the above-mentioned judgment on appeal. During the second-instance proceedings the applicant was also represented by a legal-aid lawyer. The appellate court held that the applicant was to be exempted from all costs of the appellate proceedings, including legal assistance.

On an unknown date the applicant filed an application for legal aid in the cassation proceedings.

On 17 January 2008 the Piotrków Trybunalski Regional Court rejected the applicant ’ s application for legal aid. The court considered that the applicant had failed to prove that he could not afford such assistance.

Subsequently, the applicant on several occasions asked the Prosecutor General to file a cassation appeal on his behalf.

On 18 June 2008 the Prosecutor General considered that there were no grounds to file a cassation appeal on the applicant ’ s behalf.

2. Other proceedings

The applicant on numerous occasions unsuccessfully attempted to institute criminal proceedings against various persons. In particular he referred to the following proceedings.

On 30 April 2008 the Łódź District Prosecutor refused to institute criminal proceedings against the police officers who participated in the applicant ’ s arrest (allegations of theft). This decision was upheld by th e Łódź District Court on 10 September 2009.

On 14 October 2008 the Radomsko District Prosecutor refused to institute criminal proceedings against the witnesses who testified in the in the applicant ’ s trial (giving false testimony). This decision was upheld by th e Radomsko District Court on 19 December 2008.

On 5 May 2007 the Radomsko District Prosecutor refused to institute an investigation into an alleged breach of professional duties by the police officers conducting a search of the applicant ’ s house. On 13 July 2007 the Radomsko District Court upheld the prosecutor ’ s decision.

B. Relevant domestic law and practice

The legal provisions applicable at the material time and questions of practice are set out in paragraphs 26-29 of the judgment delivered by the Court on 13 September 2011 in the case of Wersel v. Poland ( no. 30358/04 , 13 September 2011).

COMPLAINTS

1. The applicant complained without invoking any provisions of the Convention that the refusal to grant him legal assistance in connection with the preparation of a cassation appeal had infringed his right to defend himself.

2. He further complained about the alleged ill-treatment on the day of his arrest and the subsequent refusal to institute criminal proceedings against the persons concerned.

3. Lastly, he complained about the outcome of criminal proceedings against him, alleged that he had not had a fair trial and that the sentence imposed on him had been disproportionate.

THE LAW

A. Access to legal aid

The applicant complained without invoking any provisions of the Convention that the refusal to grant him legal assistance in connection with the preparation of a cassation appeal. The Court considers that this complaint should be examined under Article 6 § 1 in connect ion with Article 6 § 3 (c).

By letter dated 30 August 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the applica tion in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government hereby wish to express – by way of unilateral declaration – their acknowledgement of the violation of the applicant ’ s right of access to the Supreme Court, provided by Article 6 § 1 of the Convention, by the refusal to appoint a legal-aid lawyer with a view to filing a cassation appeal in his name. In these circumstances, the Government declare that they offer to pay to the applicant the sum of EUR 2,000 which they consider to be reasonable in the light of the Court ’ s case-law in similar cases (...) as well as the particular circumstances of the case. The sum 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 periods 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.”

In a letter of 21 September 2012 the applicant objected to the unilateral declaration and to having his case struck out of the list of cases.

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 will examine 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, including those brought against Poland, its practice concerning complaints about the refusal to grant legal aid in connection with cassation proceedings (see, for example, R.D. v. Poland , nos. 29692/96 and 34612/97, 18 December 2001 and Wersel v. Poland , cited above).

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 examinat ion 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 p art of the application (Article 37 § 1 in fine ).

Accordingly, it should be struck out of the list.

B. Other complaints

Without invoking any provisions of the Convention the applicant also complained about alleged ill-treatment on the day of his arrest.

Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be reje cted in accordance with Article 35 §§ 3 and 4 of the Convention.

Lastly, he maintained that the criminal proceedings against him had not been fair and that the sentence eventually imposed on him was disproportionate.

The Court considers that this complaint is manifestly ill ‑ founded, being of a fourth-instance nature , and must be reje cted in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration under Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein ;

Decides to strike the application out of its list of cases in so far as it relates to the above compl aint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President