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FOURTH
SECTION
CASE OF
INOTLEWSKI v. POLAND
(Application
no. 22668/09)
JUDGMENT
STRASBOURG
17 April
2012
This
judgment is final. It may be subject to editorial revision.
In the case of Inotlewski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
George Nicolaou, President,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22668/09) 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
Ireneusz Inotlewski (“the applicant”), on 11 April 2009.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
28 June 2010 the application was communicated to the Government.
- 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 1934 and lives in Toruń.
- The
applicant requested that a certificate be issued that he had been
carrying out forced labour during his military service. Such a
service would have had incidence on the amount of his retirement
pension. His claim was dismissed by a decision given by the
first-instance administrative authority on 2 April 2007. The
applicant appealed. The second-instance authority dismissed his
appeal on 23 April 2007.
- The
applicant appealed to the Bydgoszcz Regional Administrative Court.
- By
a judgment of 29 August 2007 that court dismissed his appeal. This
judgment was served on an unspecified date shortly after 17 September
2007.
- Shortly
afterwards and, in any event, prior to 8 October 2007 the
applicant requested that legal aid be granted to him for the purposes
of the cassation proceedings.
- By
a decision of 29 November 2007 the applicant’s request was
granted. On 14 January 2008 the court requested the Bydgoszcz Bar
Association to assign a lawyer to the case. By a letter of 16 January
2008 the Bar Association informed the applicant that lawyer D.K. was
assigned to represent him for the purposes of the cassation
proceedings.
- On
28 January 2008 the lawyer requested the applicant to give her a
power of attorney. The applicant did so by a letter of 31 January
2008.
- By
a letter of 17 March 2008 the lawyer informed the applicant that
substantive law grounds for cassation appeal did not obtain in his
case. Hence, it would have served no purpose to prepare such an
appeal. She accordingly refused to do so.
- On
25 March 2008 the Bydgoszcz Regional Administrative Court refused to
examine a request for retrospective leave to appeal out of time
submitted by the legal-aid lawyer on an unspecified date before
4 March 2008. The court noted that she had submitted such a
request, but it could not be allowed because she had failed to submit
it together with the cassation appeal as required by the applicable
procedural provisions (see paragraph 22 below).
- On
the same day the applicant submitted his own request for
retrospective leave to appeal out of time.
- On
7 May 2008 the Bydgoszcz Regional Administrative Court summoned the
applicant to supplement that request by submitting a cassation appeal
prepared and signed by a lawyer.
- On
19 May 2008 the applicant submitted a cassation appeal which he had
prepared himself.
- On
12 June 2008 the court summoned the applicant to submit within seven
days a cassation appeal prepared by a lawyer.
- The
applicant failed to do so. By a decision of 3 July 2008 the
Regional Court declined to examine the appeal submitted by the
applicant. The applicant appealed.
- On
14 October 2008 the Supreme Administrative Court dismissed the
applicant’s appeal against this decision.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law and practice concerning the
procedure for lodging cassation appeals with the Supreme
Administrative Court against judgments of the Regional Administrative
Courts are stated in the Court’s judgment in the case of
Subicka v. Poland, no. 29342/06, §§ 12 21,
14 September 2010.
- In
particular, in its decision no. II FZ 651/07 of 18 January
2008 the Supreme Administrative Court 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 by a legally aided
applicant could be admitted for examination.
- When
legal aid has been granted and the time-limit for the submission of a
cassation appeal has already expired, it is open to the legally-aided
party to submit the appeal together with a request for leave to
appeal out of time made under sections 86 and 87 of the Law on the
Procedure before Administrative Courts (e.g. NSA FZ 754/04 of
31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In
certain cases the courts stated that such a request should be
submitted within seven days from the date on which the lawyer
obtained a power of attorney from the party, which date is considered
as the date on which the impediment to lodging an appeal ceased to
exist (e.g. the Białystok Regional Administrative Court, II SAB
Bk 27/07 of 10 April 2008), or from the date when the lawyer could
obtain effective access to the case file (e.g. the Poznań
Regional Administrative Court, IV SA/Po 865/06 of 13 November
2007).
- In
a number of its recent decisions the Supreme Administrative Court
acknowledged the difficulties which legally-aided parties experienced
in connection with lodging their cassation appeals against judgments
of the first-instance administrative courts. It expressed the view
that they should not be penalised for the fact that their
requests for legal aid were not processed speedily enough.
It analysed relevant case-law of the administrative courts and
noted that the manner in which the beginning of the
time-limit for lodging cassation appeals was determined had led
to divergent results. It held that it was necessary to determine
the relevant time in a manner compatible with effective access to the
highest administrative court and which ensured equal treatment
for parties represented by lawyers appointed under the legal aid
scheme and by privately hired lawyers. The court held that the
time-limit for a legally-aided party started to run only on the day
when a legal-aid lawyer had a genuine possibility of lodging the
cassation appeal and not when he or she was informed of having been
assigned to the case. The court was of the view that the latter
approach was far too rigorous and rendered the effective enjoyment of
legal assistance granted under the legal-aid system illusory. In any
event, the cassation appeal had to be lodged within thirty days from
the day on which the party was informed of the appointment of the
legal-aid lawyer (I FZ 569/06 of 8 December 2006; I FZ
667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II
FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08
of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of
9 December 2009; I FZ 30/09 of 2 March 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been denied access to the Supreme
Administrative Court, in breach of Article 6 § 1 of the
Convention, which reads as follows:
“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 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant complained that he had been denied access to the Supreme
Administrative Court.
- The
Court has already had occasion to set out at length the relevant
principles derived from its case-law in this area (Siałkowska
v. Poland, no. 8932/05, §§ 99-107,
22 March 2007; Smyk v. Poland, no. 8958/04,
§§ 54-59, 28 July 2009; Zapadka v. Poland,
no. 2619/05, §§ 57 61, 15 December
2009). It adopts those principles for the purposes of the instant
case.
- The
same question arises in the context of the present case as that
examined by the Court in the cases referred to above, namely whether
the applicant was deprived of access to the Supreme Administrative
Court.
- The
Court observes that it has already dealt with this question in the
context of criminal as well as civil procedure before the Polish
courts.
- As
far as criminal procedure 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 (the Supreme
Court, decision II KZ 16/08 of 20 February 2002). 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). Subsequently,
in 2008 the Supreme Court also stated that the strand of the case-law
based on that approach was correct as providing adequate guarantees
to the defendant by indicating in an unequivocal way the date on
which the time limit started to run.
- 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, a legal-aid
lawyer’s refusal to prepare it did 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
rather rare 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, referred to above, §§ 63 65).
- In
so far as procedure before the administrative courts is concerned,
the Court first observes that where a party to proceedings is
represented by a lawyer, the procedural time-limits set by the Act on
Procedure before Administrative Courts start to run on the date of
the service of judicial decisions on the lawyer. 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, would expire.
- The
situation is significantly different where a party does not have
legal representation before the Regional Administrative Court, as in
the present case, and is granted legal aid only after the
second instance judgment has been given and served on him or
her.
- The
case law of the Supreme Administrative Court provides that the
time-limit for lodging a cassation appeal starts to run from the date
on which the judgment of the Regional Administrative Court has been
served on the non-represented party. The administrative courts have
repeatedly held that his or her request for legal aid does not affect
the running of the time limit. However, they have also
acknowledged that a party who was subsequently granted legal aid was
put in a difficult position, because at the time of service the
time limit had already started to run. A lawyer subsequently
assigned to the case had therefore less time to examine the case and
decide, still within the time-limit, whether a cassation appeal
offered prospects of success and to prepare an appeal. This might
lead to a situation where lawyers subsequently assigned to the case
only learned about their appointments after the time limit for
lodging the cassation appeal had expired.
- The
Supreme Administrative Court has, on numerous occasions, addressed
this problem. As a result, a body of case-law has been developed to
the effect that in situations where a legal-aid lawyer has been
appointed after the time-limit for lodging a cassation appeal had
expired and he or she is willing to prepare it, the administrative
courts could grant leave for submitting a cassation appeal out of
time. Under the case law of the Supreme Administrative Court the
day on which the impediment for lodging the cassation appeal ceased
to exist is defined as the day on which the lawyer has
had a genuine possibility to prepare it. Thus, the seven day
time limit begins to run only after the legal-aid lawyer
has had sufficient time to study the file (see paragraph 23
above).
- The
Court notes that this jurisprudential approach resulted from the
administrative courts’ concern about the difficulties
encountered by legally aided parties and can be said to be
compatible with the Convention standards as regards ensuring fair
access to the cassation procedure (see also Subicka v. Poland
(no. 2), nos. 34043/05 and 15792/06,
§ 10, 21 June 2011). The Court is of the view,
in line with its case-law referred to above and also in line with the
many judgments of the Polish administrative courts summarised above
(see paragraphs 22-23 above) that the determination of the time-limit
for legally aided parties should be made in a manner compatible with
effective access to the highest administrative court and which
ensured equal treatment for parties represented by lawyers appointed
under legal aid scheme and by privately hired lawyers.
- Turning
to the circumstances of the present case, the Court observes that the
applicant was granted legal aid. On 31 January 2008 he gave a
power of attorney to the lawyer assigned to his case under the
legal-aid scheme. It was on that date that the lawyer became
authorised to act on his behalf. However, on 17 March 2008 the lawyer
informed the applicant in writing about her refusal to prepare a
cassation appeal. On 25 March 2008 the Bydgoszcz Regional
Administrative Court refused to examine a request for retrospective
leave to appeal out of time submitted by the legal aid lawyer on
an unspecified date before 4 March 2008, because she had failed to
submit it together with the cassation appeal as required by the
applicable procedural provisions (see paragraph 22 above below).
- The
Court has already found that the existing established case-law of the
Polish administrative courts only offers a 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 Subicka
v. Poland, referred to above, § 47). In the
present case the legal-aid lawyer refused to lodge a cassation appeal
well after the original deadline had expired. The Court is of the
view that, in order for the legal framework regulating the lodging of
cassation appeals to be compatible with the Convention standards, the
case-law of the Supreme Administrative Court summarised above should
also be applicable to situations where after a legal-aid lawyer’s
refusal to prepare a cassation appeal the party wishes to have
recourse to the services of another lawyer (see Teresa Kowalczyk
v. Poland, no. 23987/05,
§ 39, 11 October 2011).
- In this connection, the Court notes that in the
present case, after the legal-aid lawyer’s refusal to prepare a
cassation appeal on the applicant’s behalf, the administrative
court summoned the applicant twice to rectify the shortcomings of the
procedural steps which he had taken himself in connection with
bringing his case before the Supreme Administrative Court. On 7 May
2008 the Bydgoszcz Regional Administrative court summoned him to
submit a cassation appeal signed by a lawyer. As the applicant failed
to do so, on 12 June 2008 the same court again requested him to do so
within seven days.
- The
Court is satisfied that in the present case the courts made efforts
in order to make it possible for the applicant to avail himself of
the possibility of rectifying formal shortcomings of his efforts to
have his case brought before the Supreme Administrative Court within
a reasonable time-frame (see Teresa Kowalczyk v. Poland, cited
above, § 39, where the applicant had nine days within which
to avail herself of the possibility of seeking leave to appeal by way
of a privately hired lawyer; or Smyk v. Poland, referred
to above, § 63 64, where the applicant had seven days;
compare and contrast, Siałkowska v. Poland,
no. 8932/05, § 122, 22 March 2007, where the
applicant had only three days left).
- It
cannot therefore be said that the applicant was put in a position
where his effective access to a court was restricted in breach of
Article 6 § 1 of the Convention.
- There
has therefore been no breach of this provision.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF ALLEGED UNFAIRNESS
- The
applicant complained that the administrative court had wrongly
assessed the evidence and, as a result, had failed to establish the
facts of the case correctly and had given an erroneous judgment.
- The
Court reiterates that, 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, like the establishment of facts, are therefore
primarily matters for regulation by national law and the national
courts (see Schenk v. Switzerland, 12 July
1988, §§ 45-46, Series A no. 140, and García
Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28).
- 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning access to the
Supreme Administrative Court admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı George
Nicolaou
Deputy Registrar President
