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FOURTH
SECTION
CASE OF KOCUREK v. POLAND
(Application
no. 20520/08)
JUDGMENT
STRASBOURG
26
October 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Kocurek v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Vincent Anthony de
Gaetano, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 5 October 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20520/08) 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 Józef Kocurek
(“the applicant”), on 8 April 2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign
Affairs.
- The
applicant complained, in particular, that he had been deprived of
access to the Supreme Court.
- On
21 September 2009 the President of the Fourth Section decided to
communicate this complaint to the Supreme Court to the Government. It
was also decided that the Committee would rule on the admissibility
and merits of the application at the same time (Article 29 § 1
of the Convention).
- In
accordance with Protocol No. 14, the application was allocated to a
Committee. The Government objected to the examination of the
application by a Committee. After having considered the Government's
objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Bielsko - Biała.
- On
8 June 2006 the Bielsko-Biała Social Security Board refused to
grant the applicant a disability pension. On 20 March 2007 the
Bielsko Biała Regional Court dismissed his appeal against
that decision. On 9 October 2007 the Katowice Court of Appeal
dismissed the applicant's further appeal. The judgment was served on
the applicant on 15 November 2007 and two-month time-limit for
lodging of a cassation appeal started to run on that date.
- On
9 November 2007 the applicant requested that a legal aid lawyer
be assigned to the case for the purposes of lodging a cassation
appeal with the Supreme Court. On 27 November 2007 the Katowice
Court of Appeal granted his request for legal aid and requested the
Katowice Bar Association to assign a lawyer to the case.
Subsequently, as the first lawyer assigned by the Bar Association
suffered from certain health problems at that time, on 23 January
2008 the Katowice Bar Association assigned another lawyer, Mr J.R.,
to the case. He was served with the letter informing him of the
assignment on 28 January 2008.
- Subsequently
the lawyer requested the Court of Appeal to serve on him its judgment
of 9 October 2007. The judgment with the written grounds was served
on him on 14 February 2008.
- In
a letter to the applicant dated 29 February 2008 the lawyer
explained in detail why he had found no grounds on which to prepare a
cassation complaint in the case.
II. RELEVANT DOMESTIC LAW AND PRACTICE
-
The relevant domestic law and practice concerning the procedure for
lodging cassation appeals with the Supreme Court against judgments of
the appellate courts are stated in the Court's judgments in the cases
of Siałkowska v. Poland, no. 8932/05, 22 March 2007;
Staroszczyk v. Poland, no. 59519/00, 22 March 2007; Smyk
v. Poland, no. 8958/04, 28 July
2009; Zapadka v. Poland, no. 2619/05, 15
December 2009; Bąkowska v. Poland,
no. 33539/02, 12 January 2010.
12. On
5 February 2005 amendments to the Code of Civil Procedure, adopted on
22 December 2004 (Ustawa o zmianie
ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju
sądów powszechnych),
entered into force. Under the amended text of Article 398 1 §
5, the time-limit for lodging a cassation appeal with the Supreme
Court was extended from thirty to sixty days.
- The
Supreme Court has repeatedly held that a request for leave to appeal
out of time was the only method by which a cassation appeal submitted
after the expiry of the time limit could be admitted for
examination (21 April 1997, II CZ 38/97; 27 September 2001,
II UZ 51/01). In a further series of decisions the Supreme Court
considered that it would be unfair for the legally-aided party to be
penalised for the fact that legal aid applications could not be
processed quickly enough to make it possible for a cassation appeal
to be lodged within a period of thirty days counted from the day of
service of the judgment on the party. The parties waiting for
legal-aid services cannot be held at fault for shortcomings in the
system. A party who was obliged to have recourse to legal aid should
not be put in a worse situation than that of a person who did not
seek it. A request to appeal out of time should therefore be
submitted within seven days from the date on which the legal-aid
lawyer could obtain effective access to the case file or had an
effective possibility of drafting an appeal (4 March 2005, II UZ
72/04; 27 June 2000, I CZ 62/00), or from the date when the
lawyer was informed that he had been assigned to the case by the
local Bar Association (11 October 2001, IV CZ 163/01;
17 November 1998, II UZ 122/98; 11 October 2001, IV CZ
163/01;
- In
a resolution adopted by a bench of seven judges of the Supreme Court
on 17 February 2009 (III CZP 117/08) that court acknowledged that
there had been discrepancies in the manner in which the beginning of
the seven-day time limit for submitting an application for leave to
appeal out of time by legally-assisted parties had been determined.
The court was of the view that applications for leave served the
purpose of making access to the Supreme Court for legally-aided
parties genuine and effective. Hence, the beginning of the time-limit
could not be determined in a mechanical manner in all cases. The
courts should instead examine the circumstances of individual cases
as a whole and determine that date bearing in mind the genuine
possibility for a lawyer to examine the case and prepare a cassation
appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had been denied access to the Supreme Court.
Article 6
§ 1 reads, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
relevant domestic remedies. He should have brought a civil action for
compensation against the legal aid lawyer. They were of the view
that a civil action was an effective remedy where a lawyer, either
legal aid or privately hired, was negligent in carrying out his or
her duties regarding legal representation in judicial proceedings.
They also referred to a complaint to the local Bar Association under
Article 28 of the Bar Act.
The
applicant disagreed.
-
The Court observes that the remedies referred to by the Government
were merely of a retrospective character. They could only, and if the
applicant had been successful, have resulted either in the courts
granting damages or in the Bar Association finding the lawyer at
fault. Such retrospective measures alone were not sufficient to
ensure effective access to a court competent to determine the
applicant's civil rights and obligations. The Court therefore rejects
the Government's
objection (see Zapadka
v. Poland, referred to above, § 50; Bąkowska
v. Poland, referred to above, §
36).
- The
Court further 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
1. The parties' arguments
-
The applicant submitted that he had been unfairly deprived of access
to the Supreme Court.
- The
Government first submitted that Article 6 of the Convention did not
explicitly guarantee a right to obtain legal assistance under
legal-aid scheme in all civil cases. In any event, in the present
case the applicant had received such assistance free of charge and
his request for legal aid had been processed with all requisite
diligence.
- They
further argued that the applicant's case had been examined at two
levels of jurisdiction. Neither the Convention nor domestic law
guaranteed a right to have a civil case heard at three levels of
jurisdiction. The right to a court was not absolute and could
therefore be subject to certain limitations, in so far as they did
not impair the very essence of that right. In particular, the
criteria of admissibility of appeals to be lodged with the highest
courts could be strict and the procedure more formal than that before
the lower courts, without the requirements of Article 6 of the
Convention being breached thereby. The mere fact that it was
necessary for a cassation appeal to be lodged by a qualified
representative was not open to criticism.
- They
further referred to the resolution of the Supreme Court given in
September 2000. That court had held that a lawyer assigned to a case
under a legal aid scheme was entitled to refuse to lodge a
cassation appeal in civil proceedings, if he or she was of the view
that this remedy offered no reasonable prospects of success. The
Government stressed that the notion of legal aid was not to be
understood as providing legal representation in proceedings in all
cases. It also comprised the provision of legal advice on the
prospects of success offered by a given legal remedy in the
particular context of each case. The lawyers' tasks could not be
perceived as following their clients' instructions and wishes
uncritically and lodging remedies against their better judgment. Nor
was it the role of the State to compel lawyers to do so. Hence, the
lawyer's refusal had served the purpose of securing the proper
administration of justice by the Supreme Court, including ensuring
that the case load of that court would not be unreasonably increased
by unmeritorious cassation appeals.
- The
Government further submitted the case law of the Polish civil
courts indicated that retrospective leave to appeal out of time could
be granted where legal aid for the purposes of lodging a cassation
appeal had been given, but the legal aid lawyer could not comply
with all the relevant formalities within that time-limit. Had the
applicant requested such leave, it was likely that her request would
have been granted.
2. The Court's assessment
- The
Court has already had occasion to set out at length the relevant
principles derived from its case-law in this area (Staroszczyk v.
Poland, Siałkowska v. Poland, Smyk v. Poland, Bąkowska v.
Poland, Zapadka v. Poland, referred to above). It adopts those
principles for the purposes of the instant case.
- The
Court first observes that where a party to civil proceedings is
represented by a lawyer, the procedural time-limits set by the Code
of Civil Procedure start to run on the date of the service of
judicial decisions on the lawyer (see Smyk v. Poland,
referred to above, § 63). In such situations no
difficulties arise in connection with establishing the date on which
the thirty-day time-limit for lodging a cassation appeal, applicable
at the material time, is to expire.
- The
situation is significantly different where, as in the present case, a
party is granted legal aid only after the second instance
judgment has been given.
The
case-law of the Supreme Court provides that the time-limit for
lodging a cassation appeal starts to run from the date on which the
judgment of the appellate court has been served on the
non-represented party. A party who is subsequently granted legal aid
is thereby put in a difficult position, because at the time of
service the time-limit has already started to run. The courts have
repeatedly held that his or her request for legal aid does not affect
the running of the time limit. A lawyer subsequently assigned to
the case has therefore less time to examine the case and decide,
still within the time-limit, whether a cassation appeal offers
prospects of success and to prepare it.
- The
Court further notes that the applicable domestic regulations do not
specify the time-frame within which the applicant should be informed
about the refusal to prepare a cassation appeal (see Siałkowska,
cited above, § 114, Smyk v. Poland, cited above, §
60). In the present case the second instance judgment, together
with its written grounds, was served on the applicant on 15 November
2007. It was on that date that the sixty-day time-limit for lodging
the cassation appeal started to run. Subsequently, the applicant's
request for legal aid of 9 November 2007, was granted on 27 November
2007. However, the decision on the grant of legal aid did not affect
the running of the time-limit, which was to expire on 15 January
2008. The Court further observes that the second legal-aid lawyer,
who was assigned to the case after the first one had requested the
court to release him from the obligation to represent the applicant,
informed the applicant of his refusal by a letter of 29 February
2008. The applicant was therefore left with no realistic opportunity
of having his case brought to and argued before the Supreme Court by
the legal-aid lawyer within the time-limit provided for by law (see
Siałkowska v. Poland, no. 8932/05, §§ 115-116,
22 March 2007).
-
The Court further notes that it has already dealt with the question
of whether legally-aided parties finding themselves in such situation
were left with no other procedural possibilities to have cassation
appeals lodged in the context of criminal as well as civil procedure.
As far as the former is concerned, it was established that –
under the established case-law of the Supreme Court – the
time-limit for lodging a cassation appeal should run de novo
from the day when the applicant has been informed of the legal-aid
lawyer's refusal to lodge a cassation appeal. This approach was found
to satisfy Convention standards, provided that the applicant has been
properly informed about his/her procedural rights at the time when
the lawyer's refusal was communicated to him or her (Kulikowski
v. Poland, no. 18353/03, § 69-71,
ECHR 2009 ... (extracts); Antonicelli
v. Poland, no. 2815/05,
§ 44-45, 19 May 2009).
- In
the context of civil procedure the Court has found that the civil
courts' approach to the calculation of the time-limit for submitting
a cassation appeal was stricter. Thus, the service on the party of
information that a legal-aid lawyer refused to prepare the appeal
does not trigger the running of the time-limit de novo. That
approach was regarded by the Court as being incompatible with
Convention standards, save for situations where the refusal of the
legal-aid lawyer was notified to the applicant well before the
deadline was due to expire (see Smyk v. Poland,
no. 8958/04, §§ 63-65, 28 July 2009).
- The
Court further observes that the existing case-law only offers a
certain, albeit uncertain, solution to the situation where a
legal-aid lawyer is ready to prepare a cassation appeal, but the
deadline for doing so has already expired (see paragraph 13 above).
The Government were unable to provide information on consistent and
established judicial practice addressing situations where, as in the
applicant's case, the legal-aid lawyer refused to lodge a cassation
appeal well after the original deadline had expired.
- This produces a situation of legal uncertainty for
legally-aided applicants as to whether after legal-aid lawyer's
refusal they had had any possibility to pursue the proceedings. In
that context, it should be stressed that uncertainty – be it
legislative, administrative or arising from practices applied by the
authorities – is an important factor to be taken into account
in assessing the State's conduct (see, among other authorities, Beian
v. Romania (no. 1),
no. 30658/05, § 33, ECHR 2007-... (extracts); Plechanow
v. Poland, no. 22279/04, §
103, 7 July 2009). The Court is of the view that this uncertainty is
sufficient for a finding of a violation of the applicant's right of
access to court on account of the absence of clear rules governing
the consequences of the legal-aid lawyer's refusal occurring after
the deadline for lodging a cassation appeal had already expired.
- Having
regard to the above considerations, the Court concludes that in the
present case there has been a violation of Article 6 § 1
of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained about the length and the outcome of the
proceedings. He further complained, invoking Article 13 of the
Convention, that he was deprived of effective remedies as all his
appeals had been dismissed.
- In
so far as the applicant complains about the outcome of the
proceedings, 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 Schenk
v. Austria, judgment of
12 July 1988, Series A no. 140, §§ 45-46, and Garcia
Ruiz v. Spain, no.
30544/96, Reports of
Judgments and Decisions
1999-I, § 28).
35. In so far as the
applicant complained about the length of the proceedings concerned,
the Court observes that the applicant failed to show that he had
lodged a complaint about the excessive length of the
proceedings under the 2004 Act on complaints about a breach of the
right to a trial within a reasonable time. The Court has examined
that remedy for the purposes of Article 35 § 1 of the
Convention and found it effective in respect of complaints about the
excessive length of judicial proceedings in Poland (see Michalak
v. Poland (dec.) no. 24549/03, §§ 37-43).
- In
so far as the applicant relies on Article 13 of the Convention, in
the light of all the materials in its possession, and in so far as
the matters complained of are within its competence or have not
already been addressed in the context of the above finding of a
breach of Article 6 § 1 of the Convention, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols (see also
Šidlová v. Slovakia, no. 50224/99, § 77,
26 September 2006 and Boyle and Rice v. the
United Kingdom, judgment of 27 April 1988, Series A no.
131, p. 23, § 52).
- It
follows that this part of the application 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, costs and expenses
-
The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage. He did not submit his claims in respect of costs and
expenses.
- The
Government did not submit their comments.
- The
Court, having regard to awards made in similar cases against Poland,
referred to above (see paragraph 11), it awards the applicant
EUR 1,000 in respect of non-pecuniary damage.
B. 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 application partially admissible;
- 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 EUR 1,000 (one 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 on 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 amounts 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 26 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta
Deputy
Registrar President
