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FOURTH
SECTION
CASE OF CHOROBIK v. POLAND
(Application
no. 45213/07)
JUDGMENT
STRASBOURG
3 May
2012
This
judgment is final but it may be subject to editorial revision.
In the case of Chorobik v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
David Thór Björgvinsson,
President,
Nebojša Vučinić,
Vincent
A. De Gaetano, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 11 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45213/07) 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 Franciszek Chorobik (“the
applicant”), on 8 October 2007.
- 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Sosnowiec.
- By
a judgment of 8 August 2006 the Kraków Regional
Administrative Court dismissed the applicant’s appeal against a
second-instance administrative decision of 25 August 2005
by which the second-instance authority had refused to acknowledge
that the applicant’s ailment was of an occupational character.
- This
judgment was served on the applicant on 25 September 2006.
- By
a decision of 19 October 2006 the court granted legal aid to the
applicant.
- The
local Bar Association assigned a lawyer to the case by a decision of
2 November 2006. This decision was served on the lawyer on 8 November
2006. On 13 November 2006 the applicant gave a power of attorney to
the lawyer.
- On
1 December 2006 the lawyer submitted a cassation appeal to the
Regional Administrative Court.
- On
29 December 2006 that court held that the time-limit for lodging a
cassation appeal had expired on 25 October 2006, thirty days after
the applicant had been served with the judgment. The court rejected
the cassation appeal on the ground that under the applicable laws the
fact that the party was not represented by a lawyer and requested for
legal aid only after having been served with the judgment had no
bearing on the running of the time-limit for submitting a cassation
appeal. It also noted that the legal-aid lawyer had failed to submit
a request for leave to appeal out of time together with the cassation
appeal.
- The
applicant’s lawyer appealed. He acknowledged that he had not
submitted the request for leave to appeal out of time. However, he
was of the view that this omission would not be relevant for the
court’s decision to accept the cassation appeal for
examination.
- On
13 April 2007 the Supreme Administrative Court upheld the contested
decision and shared the legal view expressed by the first-instance
court.
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 because it had rejected his cassation appeal. He
referred to Article 6 § 1 which, in so far as relevant, provides
as follows”
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
- The
Court notes that the application 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.
1. General observations
- 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 the appeal 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. 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 may 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 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.
2. Application of these considerations to the
circumstances of the case
- Turning
to the circumstances of the present case, the Court observes that the
judgment of 8 August 2006 was served on the applicant on 25 September
2006. Accordingly, the thirty-day time limit for lodging a
cassation appeal was to expire on 25 October 2006. On 8 November 2006
the legal-aid lawyer was informed that he had been assigned to the
case. On 13 November the applicant gave him the power of
attorney. However, on 1 December 2006 the Kraków
Administrative Court rejected the cassation appeal lodged by that
lawyer, finding that the time-limit had expired thirty days after the
first-instance judgment had been served on the applicant, that the
cassation appeal had therefore been lodged out of time and that the
legal-aid lawyer had failed to request leave to appeal out of time.
This decision was later upheld by the Supreme Administrative Court
which shared the legal view expressed by the Regional Court.
- 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 14-16) 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.
- Furthermore,
the Court is satisfied that under the established case-law of the
administrative courts it was possible for a legally-aided party to
obtain access to the Supreme Administrative Court even after the
expiry of the time-limit for lodging of a cassation appeal (see
paragraphs 15 16 above).
- The
Court observes that in the present case the legal-aid lawyer had
failed to submit a cassation appeal together with a request for leave
to appeal out of time. The Regional Administrative Court and,
subsequently, the Supreme Administrative Court refused to admit the
cassation appeal, referring to this failure. The Court notes that the
lawyer had thereby failed to have recourse to the only measure which
under the case-law of the administrative courts made it possible for
them to accept a cassation appeal submitted to the court after the
expiry of the relevant time.
- It
cannot therefore be said that the courts did not have due regard to
the necessity of alleviating the situation of legally-aided parties
arising from the difficulties to submit a cassation appeal within the
time-limits set out by the applicable procedural laws.
- The
Court therefore concludes, having regard to the circumstances of the
case seen as a whole, that in the particular circumstances of the
present case there has been no violation of Article 6 § 1 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 3 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı David Thór Björgvinsson Deputy
Registrar President
