Kazimierz LEWANDOWSKI v Poland - 12526/02 [2008] ECHR 780 (1 July 2008)

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The European Court of Human Rights (Fourth Section), sitting on 1 July 2008 as a Chamber composed of:

Giovanni Bonello, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
Ledi Bianku, substitute judge,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the Court’s decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),

Having regard to the declaration submitted by the respondent Government on 20 February 2008 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

The applicant, Mr Kazimierz Lewandowski, is a Polish national who was born in 1955 and lives in Pełczyce. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

On 7 September 1992 the applicant had an industrial accident. On 23 September 1993 the applicant was granted compensation pursuant to the Industrial Accidents Act for the 20% damage to his health resulting from the industrial accident. On an unspecified date in September 1994 the applicant filed a claim against his former employer (company) with the Szczecin District Court, seeking compensation and a supplementary allowance for damage suffered as a result of the industrial accident.

On 30 April 1999 the Szczecin Regional Court gave judgment. It partly granted the applicant’s claims.

The applicant and the former employer appealed against the first-instance judgment. On 13 July 1999 the Regional Court rejected the applicant’s appeal on procedural grounds as being lodged out of time. However, on 23 September 1999 it granted the applicant retrospective leave to appeal.

On 8 December 1999 the Poznań Court of Appeal gave judgment and dismissed the appeal of the defendant company. It also rejected the applicant’s appeal, finding that it had been lodged outside the time-limit.

The applicant and the defendant company appealed against the second-instance judgment. On 13 January 2000 the Court of Appeal rejected the applicant’s cassation appeal on procedural grounds since it had not been prepared and signed by a lawyer.

On an unspecified date the applicant complained to his legal-aid lawyer about her refusal to lodge a cassation appeal. In a letter dated 8 March 2000 the applicant’s legal-aid lawyer informed him that she had not found any grounds on which a cassation appeal could be based.

On 14 September 2000 the Supreme Court dismissed the defendant company’s cassation appeal. The Supreme Court’s judgment was served on the applicant on 19 October 2000.

The applicant complained about the length of the proceedings. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

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

By letter dated 18 February 2008 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 application in accordance with Article 37 of the Convention.

“(...) the Government hereby wish to express – by way of a unilateral declaration – their acknowledgement of the unreasonable duration of domestic proceedings in which the applicant was involved.

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of PLN 8,000.

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from 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 for the Protection of Human Rights and Fundamental Freedoms. 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 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 29 February 2008 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low and objected to the settlement proposal.

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 or part of 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 Sulwińska 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 violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ....; and Majewski v. Poland, no. 52690/99, 11 October 2005).

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 applicant further complained under Articles 3, 5 § 1, 8 and 13 of the Convention.

The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the applicant has failed to substantiate his complaints. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 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 complaint in accordance with Article 37 § 1 (c) of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Kazimierz LEWANDOWSKI v Poland - 12526/02 [2008] ECHR 780 (1 July 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/780.html Cite as: [2008] ECHR 780