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FOURTH
SECTON
CASE OF NOWASZEWSKI v. POLAND
(Application
no. 7272/09)
JUDGMENT
STRASBOURG
27 March
2012
This
judgment is final but it may be subject to editorial revision.
In the case of Nowaszewski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Päivi Hirvelä,
President,
Ledi Bianku,
Zdravka Kalaydjieva,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 6 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7272/09) 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 Leszek Henryk Nowaszewski (“the applicant”), on
2 April 2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
31 May the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Rutki Kossaki.
- The
facts of the case, as submitted by the parties, can be summarised as
follows.
A. Domestic proceedings
- By
a judgment of 19 February 2007 the Gliwice District Court
found the applicant guilty of fraud and sentenced him to one year and
three months’ imprisonment.
- The applicant appealed against the judgment, arguing,
inter alia, that the first instance court had not examined his
request for the questions put to the witnesses to be written down in
the minutes. He further complained that he had not had a possibility
to have his questions put to certain witnesses that he had called.
- On
26 September 2007 the Gliwice Regional Court dismissed the
appeal. While examining the applicant’s particular complaints,
the court noted that there was no indication in the minutes of the
hearings held by the first-instance court to the effect that the
applicant had ever requested this court to note down the questions
put to the witnesses. In this connection, the court noted that the
applicant had not sought to challenge the content of the minutes of
the relevant court hearings, although he had had such a possibility.
Moreover, the court observed that the testimonies of the witnesses
called by the applicant had been read out in the applicant’s
presence and that neither the applicant nor his lawyer had raised any
complaint concerning the manner in which the witnesses had been
heard.
- On
28 September 2007 the applicant requested to be granted
legal aid with a view to having a cassation appeal lodged in his
case.
- On
11 October 2007 the Gliwice Regional Court allowed the
applicant’s request.
- By
a letter of 15 November 2007 the applicant’s
legal-aid lawyer informed the Gliwice Regional Court that he would
not lodge a cassation appeal in the applicant’s case for lack
of reasonable prospects of success. This letter was forwarded to the
applicant by the Gliwice Regional Court on 19 November 2007.
The correspondence, served on the applicant on 27 November 2007,
did not contain any information concerning his procedural rights.
- In
a letter of 2 December 2007 sent to the Gliwice Regional
Court the applicant challenged the legal-aid lawyer’s refusal
to lodge a cassation appeal and requested the court to appoint
another lawyer. At the same time, he enquired whether the time-limit
for lodging a cassation appeal in his case was still running.
- By
a letter of 13 December 2007 the Gliwice Regional Court
informed the applicant, inter alia, that the time-limit for
lodging a cassation appeal had already expired.
B. Proceedings before the Court
- On
2 April 2008 the applicant lodged his application with the
Court. The President of the Fourth Section decided to communicate the
case.
- By
a letter of 21 July 2010 the Registrar requested the
applicant to inform him whether he accepted the terms and conditions
of a friendly settlement proposal.
- In
reply, the applicant submitted two letters, both dated
12 August 2010, of which one was prepared in Polish and the
other in English, apparently supposed to serve as a translation. The
content and the register of the two texts were more or less
equivalent.
- In
the letters, the applicant informed the Registrar that he did not
accept the friendly settlement proposal. He also made vague
references to various sets of domestic proceedings, expressing his
disapproval of the manner in which certain of his cases had been
handled by unspecified “Polish judges”. The English
version of the applicant’s submissions contained, inter
alia, the following sentence:
“I had realized how insolently ignorant Polish
judges were when it came to European Court’s judgments and how
irresponsible they were for their swindles.”
In
the equivalent part of the Polish text, the applicant referred to the
Polish judges as being “brazen ignorants” (bezczelni
ignoranci) and “completely irresponsible for their
swindles” (bezgranicznie nieodpowiedzialni za swe
szachrajstwa).
- On
14 September 2010 the Government submitted observations on
the admissibility and merits of the application. They argued that the
application should be declared inadmissible on grounds of abuse of
the right of application. In this connection, the Government referred
to the statements used by the applicant in his letters of
12 August 2010. A copy of the Government’s
observations was sent to the applicant.
- By
a letter of 28 October 2010, written in English, the
applicant submitted, inter alia, his comments on the
Government’s observations. He contested the Government’s
submissions and went on to criticise the authorities of the
respondent State, using, inter alia, the following statement:
“It
is obvious that former and present members of the government elite
apply the rules and regulations of the Communist Regime, by whose
standards it is the citizens who should abide by the legal system
while the government agencies and institutions are not accountable
towards citizens.”
Further,
referring more
specifically to the Government’s objection, the applicant
stated as follows:
“Truly
if the Government feels offended why not take civil action against me
or issue a warrant of arrest to be executed by the Polish court.
Surely if this were the case they would prosecute and punish me
easily as the Polish court is not independent but acts as a
pro-government agency.”
The applicant then explained that the words that he had used in his
letter of 12 August 2010 had been caused by his frustration
over the manner in which his cases had been handled by the domestic
authorities and expressed his apology. The relevant part of the
letter read as follows:
“(...) I do apologize the Polish Government for my
wording used to describe the Government and the Polish judges as they
seem to be irritated, especially I regret before the High Court for
my irrelevant expressions in the correspondence”.
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 Kulikowski v. Poland, no. 18353/03,
§§ 19-27, and Antonicelli v. Poland,
no. 2815/05, §§ 14-22.
- In
particular, on 26 February 2002 the Supreme Court examined a
situation where a legal-aid lawyer had refused to represent a
convicted person for the purposes of cassation proceedings, finding
that a cassation appeal would offer no prospects of success. It held
that in such a situation the appellate court was obliged to instruct
the defendant that the time-limit for lodging a cassation appeal
started to run only on the date on which the defendant was served
with the lawyer’s refusal and not on the earlier date when the
judgment of the appellate court was served on the defendant himself.
It stated that it was not open to doubt that a defendant faced with a
legal-aid lawyer’s refusal had the right to take other measures
to seek legal assistance necessary for effective lodging of a
cassation appeal (case no. III KZ 87/01). The
Supreme Court reiterated its position in a decision of 6 May
2008 (case no. II KZ 16/08) and in a number of similar decisions
given in 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF DENIAL OF ACCESS TO THE SUPREME COURT
-
The applicant complained that he had been denied effective access to
the Supreme Court, in that his legal-aid lawyer had refused to lodge
a cassation appeal in his case and he had not had a possibility to
have a cassation appeal lodged by another lawyer. He relied on
Article 6 of the Convention, the relevant parts of which read as
follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ... .
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require; ...”
A. Admissibility
- The
Government argued that the application was inadmissible on grounds of
abuse of the right of application within the meaning of Article 35
§ 3 (a) of the Convention. They indicated that the
statements used by the applicant in his letter to the Court of
12 August 2010 (see paragraph 17 above) were groundless,
offensive and defamatory in nature. Further, the Government argued
that the applicant’s subsequent apology was not sincere, as in
his letter of 28 October 2010 he did not refrain from
offending the Polish authorities.
- The
Court reiterates that, in principle, an application may only be
rejected as abusive if it was knowingly based on untrue facts, even
if it uses offensive language (see Řehák v the
Czech Republic (dec.), no. 67208/01, 18 May 2004;
Varbanov v. Bulgaria, judgment 5 October 2000,
no. 31365/96, § 36, ECHR 2000-X; Akdivar and Others
v. Turkey, judgment of 16 September 1996, Reports of
Judgments and Decisions 1996 IV, §§ 53-54).
However, the persistent use of insulting or provocative language by
an applicant may be considered an abuse of the right of application
within the meaning of Article 35 § 3 of the Convention
(see Manoussos v. the Czech Republic and Germany (dec.),
no. 46468/99, 9 July 2002; Duringer and Others
v. France (dec.), nos. 61164/00 and 18589/02,
4 February 2003).
- The
Court observes that the applicant’s letter of 12 August 2010,
to which the respondent Government made reference, contained certain
remarks which could be regarded as inappropriate or to a certain
extent offensive. Nevertheless, the Court is satisfied that in his
subsequent correspondence the applicant, still criticising the
authorities, in fact refrained from using offensive and provocative
language. Although the statements relied on by the Government were
far from being relevant, the Court finds that they were not of such a
nature as to justify the finding that the applicant abused his right
of application. Furthermore, it must be noted that the applicant
offered an apology to the Court and to the Government for the
statements used in his letter of 12 August 2010. Therefore,
even if these statements could by themselves be considered as being
so inappropriate as to amount to an abuse of the right of
application, they may be considered to have been withdrawn.
- In
these circumstances, the Court finds that the applicant’s
conduct in the present case has not amounted to an abuse of the right
of application, within the meaning of Article 35 § 3 (a)
of the Convention. Accordingly, it dismisses the Government’s
request to declare the application inadmissible on this ground.
- The Court further notes that the relevant part of the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. Moreover,
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
- The
applicant submitted that he had been deprived of effective access to
the Supreme Court, as his legal-aid lawyer had refused to lodge a
cassation appeal in his case and he had not had a possibility to have
a cassation appeal lodged by another lawyer.
- The
Government refrained from making comments on the merits of the case.
- The
Court first notes that the guarantees in paragraph 3 of
Article 6 are specific aspects of the right to a fair trial
in criminal proceedings as set forth in paragraph 1 of the same
article. Accordingly, the applicant’s complaint will be
examined under these provisions taken together (see, among other
authorities, Benham v. the United Kingdom, judgment of
10 June 1996, § 52, and Bobek v. Poland,
no. 68761/01, § 55, 17 July 2007).
- Furthermore, the Court has already had occasion to set
out at length the relevant principles derived from its case-law in
the area of effective access to the Supreme Court in the context of
criminal proceedings (Kulikowski v. Poland,
no. 18353/03, Antonicelli v. Poland,
no. 2815/05, 19 May 2009; Arciński v. Poland,
no. 41373/04, 15 September 2009). It adopts those
principles for the purposes of the instant case.
- In
the present case the Gliwice Regional Court informed the applicant
about the legal-aid lawyer’s refusal to lodge a cassation
appeal in his case by a letter of 19 November 2007. This
letter did not contain any information concerning the applicant’s
procedural rights. In particular, the court did not inform him that
under the case-law of the Supreme Court, adopted in 2002, the
time-limit for lodging a cassation appeal started to run only on the
date on which the defendant was served with the legal-aid lawyer’s
refusal.
- Moreover, the Court notes that the applicant, while
requesting the Gliwice Regional Court to appoint another lawyer in
his case, enquired whether the time-limit for lodging a cassation
appeal was still running. The Gliwice Regional Court therefore had an
opportunity, despite its initial omission, to put the matter right by
informing the applicant that the relevant time-limit had begun to run
anew on the date on which he had been served with its previous
letter. However, in its reply of 13 December 2007, the
Gliwice Regional Court informed the applicant that the relevant
time-limit had already expired, while in the light of the Supreme
Court’s case-law (see paragraph 20 above) it was still running,
to expire only on 27 December 2007. Therefore, the
applicant had no way of knowing when the time-limit for lodging a
cassation appeal started to run and what steps, if any, he had at his
disposal to pursue the cassation proceedings, for instance by trying
to find another lawyer who might be persuaded to file a cassation
appeal on his behalf.
- The Court observes that the procedural framework
governing the availability of legal aid for a cassation appeal in
criminal cases, as described above, is within the control of the
appellate courts. When notified of a legal-aid lawyer’s refusal
to prepare a cassation appeal, it is entirely appropriate and
consistent with fairness requirements, that an appeal court indicate
to an appellant what further procedural options are available to him
or her (see Kulikowski v. Poland, cited
above, § 70; Antonicelli v. Poland,
cited above, § 45; Jan Zawadzki v. Poland,
no. 648/02, § 16, 6 July 2010). However, in the
instant case this requirement was not complied with, with the result
that the applicant’s right of access to the Supreme Court was
not secured in a “concrete and effective manner”.
- Accordingly,
having regard to the above deficiency, there has been a violation of
Article 6 § 1 in conjunction with Article 6
§ 3 (c) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 of the Convention that
his trial had been unfair in that the first-instance court had not
examined his request for the questions put to the witnesses to be
written down in the minutes and that he had not had a possibility to
have certain witnesses examined in his presence.
- However,
in the light of all the material in its possession, in particular the
findings of the Gliwice Regional Court (see paragraph 8 above),
the Court finds no appearance of a violation of the applicant’s
rights guaranteed by Article 6 of the Convention arising from
these complaints. It follows that these complaints are 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 450,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that the claims should be rejected as exorbitant
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 EUR 1,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 for the costs and expenses
incurred before the Court.
- The
Government contested these claims, arguing, inter alia, that
the applicant had not provided any documents to support them.
- Having
regard to the documents in its possession and to its well established
case-law, the Court considers it reasonable to award the sum of
EUR 100 in respect of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 denial of
access to the Supreme Court admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 in conjunction with Article 6
§ 3 (c) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into Polish zlotys (PLN) at
the rate applicable at the date of settlement:
(i) EUR 1,000
(one thousand euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage;
(ii) EUR 100
(one hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 27 March 2012,
pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Fatoş Aracı Päivi Hirvelä
Deputy
Registrar President
