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FOURTH
SECTION
CASE OF MIROSŁAW ORZECHOWSKI v. POLAND
(Application
no. 13526/07)
JUDGMENT
STRASBOURG
13 January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mirosław Orzechowski
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13526/07) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Mirosław Orzechowski
(“the applicant”), on 19 March 2007.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
14 January 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Szydłowiec.
- On
7 June 2005 the applicant lodged a civil claim for compensation
against the court's bailiff and the Przysucha District Court.
Subsequently, the case was transferred to the Radom District Court
(Sąd Rejonowy).
- On
1 January 2006 the Radom District Court exempted the applicant from
court fees. The court considered that the applicant had substantiated
his difficult financial situation. He was unemployed, received no
unemployment benefit and thus could not pay court fees.
- On
31 July 2006 the Radom District Court dismissed the applicant's
claim. The applicant lodged an appeal against the judgment.
- On
9 November 2006 the Radom Regional Court (Sąd Okręgowy)
dismissed the appeal. On 27 December 2006 the applicant was served
with the written reasons for the judgment. He was instructed that he
could lodge a cassation appeal (skarga kasacyjna), which had
to be prepared by a lawyer, with the Supreme Court.
- On
12 January 2007 the applicant requested the Regional Court to appoint
him a legal-aid lawyer who would lodge on his behalf the cassation
appeal.
- On
18 January 2007 the court dismissed the applicant's request for
appointment of a legal-aid lawyer. The decision contained no reasons.
- The
applicant appealed against this decision and requested the court to
prepare written reasons for it.
- On
1 February 2007 the Radom Regional Court dismissed the applicant's
request to prepare the reasons for the decision of 18 January 2007
and for those reasons to be delivered to him. The decision contains
no reasons.
- The
applicant appealed against the decision of 1 February 2007 but on
15 February 2007 the Radom Regional Court rejected the appeal as
inadmissible in law.
II. RELEVANT DOMESTIC LAW
- Article
871 of the Code of Civil Proceedings
lays down the principle of mandatory assistance of a lawyer in
cassation appeal proceedings. Legal provisions concerning compulsory
legal representation in cassation appeal proceedings applicable at
the material time are set out in paragraphs 27-31 of the Court's
judgment in the case of Laskowska v. Poland,
no. 77765/01, 13 March 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION CONCERNING REFUSAL OF LEGAL AID
- The
applicant complained that the court's refusal, without giving
reasons, to grant him legal assistance in connection with filing of
the cassation appeal against the Regional Court's judgment of 9
November 2006 had infringed his right to a fair hearing, guaranteed
by Article 6 § 1 of the Convention which, in so far as
relevant, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court will examine whether the applicant's right of access to a court
was respected in the cassation appeal proceedings before the Supreme
Court in connection with the refusal to provide him with legal
assistance in those proceedings.
- It
firstly notes that Polish law requires that a party to civil
proceedings be represented by a lawyer in the preparation of his or
her cassation appeal against a judgment given by a second-instance
court, and that an appeal drawn up by the party, without legal
representation, will be rejected by the court (see paragraph 14
above).
- The
Court reiterates that the requirement that an appellant be
represented by a lawyer before the court of cassation cannot in
itself be seen as contrary to Article 6, such a requirement being
clearly compatible with the characteristics of the Supreme Court as
the highest court examining appeals on points of law. This
requirement cannot be regarded as imposing on the domestic courts an
unqualified obligation to grant free legal assistance to a person
wishing to institute cassation proceedings. However, while the manner
in which Article 6 is to be applied to courts of appeal or of
cassation depends on the special features of the proceedings in
question, there can be no doubt that a State which does institute
such courts is required to ensure that persons amenable to the law
shall enjoy before them the fundamental guarantees of fair hearing
contained in that Article (see Tabor v. Poland,
no. 12825/02, § 42, 27 June 2006). In discharging that
obligation, the State must, moreover, display diligence so as to
secure to those persons the genuine and effective enjoyment of the
rights guaranteed under Article 6 (see R.D. v. Poland,
nos. 29692/96 and 34612/97, § 44, 18 December
2001).
- The
Court observes that in its decision of 1 January 2006 the Radom
District Court found that the applicant's financial situation was
such as to justify granting him full exemption from the court fees
(see paragraph 7 above). Nevertheless, on 18 January 2007 the court
dismissed his request to appoint him a legal-aid lawyer who would
lodge on his behalf the cassation appeal. That decision contains no
reasons and the court refused to prepare the written reasons for it.
In the absence of such grounds it is difficult for the Court to
understand the reasons for which the Regional Court considered that
in the circumstances of the case the grant of legal aid had not been
justified.
- In
conclusion, the Court finds that the denial of legal aid to the
applicant in the cassation appeal proceedings, which made it
impossible for him to lodge a cassation appeal with the Supreme
Court, infringed the very essence of the applicant's right of access
to a court. The Court thus sees no ground to depart from its case-law
set out in the Tabor case, cited above, and finds that there
has been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION CONCERNING THE OUTCOME OF THE PROCEEDINGS
- The
applicant complained that the civil proceedings in his case had been
unfair in violation of Article 6 of the Convention. He submitted that
his civil action for compensation had been well-founded as the
court's bailiff's actions had been illegal and had resulted in his
losing his job.
- However,
the Court reiterates that, according to Article 19 of the Convention,
its duty is to ensure the observance of the engagements undertaken by
the Contracting Parties to the Convention. In particular, it is not
its function to deal with errors of fact or law allegedly committed
by a national court unless and in so far as they may have infringed
rights and freedoms protected by the Convention.
Moreover, while Article 6 of the Convention guarantees the
right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see García Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999-I, with further references).
- In
the present case the applicant did not allege any particular failure
on the part of the relevant courts to respect his right to a fair
hearing. Indeed, his complaints are limited to challenging the result
of the proceedings. The Court finds no indication that the impugned
proceedings were conducted unfairly.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 125,000 Polish zlotys (PLN) in respect of pecuniary
damage. He did not claim any particular sum in respect of
non pecuniary damage leaving the matter for the Court's
assessment.
- The
Government considered that his claims had been groundless and
irrelevant.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant 2,000 euros (EUR) in respect
of nonpecuniary damage.
B. Costs and expenses
- The
applicant did not claim any sum for the costs and expenses incurred
before the domestic courts or before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the unreasoned
refusal to grant legal aid in the cassation proceedings and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 January 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
