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LASKOWSKA v. POLAND - 77765/01 [2007] ECHR 208 (13 March 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/208.html
Cite as:
[2007] ECHR 208
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FOURTH
SECTION
CASE OF LASKOWSKA v. POLAND
(Application
no. 77765/01)
JUDGMENT
STRASBOURG
13
March 2007
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 Laskowska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 20 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 77765/01) 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, Ms Lucyna Laskowska (“the
applicant”), on 1 August 2000.
The
applicant, who had been granted legal aid, was represented by Mr W.
Hermeliński, and subsequently by Ms A. Metelska, lawyers
practising in Warsaw. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of the
Ministry of Foreign Affairs.
The
applicant alleged that on account of the refusal to grant her legal
aid she could not present her case effectively and had been deprived
of access to the Supreme Court in breach of Article 6 § 1.
On
13 September 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
Written
submissions were received from the Helsinki Foundation for Human
Rights in Warsaw, which had been granted leave by the President to
intervene as a third party (Article 36 § 2 of the Convention and
Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1954 and lives in Czeladź.
She
and her husband married in 1973. Their daughter was born in 1976.
It appears that the applicant's husband abused alcohol and subjected
her to psychological harassment over a long period of time. In the
early 1980s that situation led to the applicant's nervous breakdown.
She began receiving neurological treatment. In October 1993 she and
her daughter left the matrimonial home. Nonetheless, the applicant's
husband continued to harass her.
In
November 1995 the applicant applied for a divorce order which was
granted in March 1996. The divorce court found that the applicant's
husband had been at fault in respect of the breakdown of their
marriage.
In
July 1996 the applicant began receiving psychiatric treatment.
In January 1997 she was declared to have a “second degree
of invalidity” and granted an invalidity pension on account of
the state of her mental health. In March 1998 the applicant was
declared entirely unfit for work.
On
26 February 1999 the applicant filed with the Będzin District
Court a claim for maintenance in the amount of PLN 600 per month
against her former husband. At that time she was in receipt of a
gross monthly invalidity pension in the amount of PLN 388.82.
On
29 March 1999 the District Court gave judgment by default, allowing
the applicant's claim in full.
Subsequently,
the defendant filed an objection against the judgment by default. On
20 September 1999 the District Court quashed that judgment and ruled
on the applicant's maintenance claim. It ordered the defendant to pay
monthly maintenance in the amount of PLN 300 as of 1 April 1999.
On
25 October 1999 the applicant lodged an appeal against the
first-instance judgment. She requested the District Court to exempt
her from the court fees and to appoint a legal-aid lawyer in the
appeal proceedings. She submitted that she was unable to represent
herself during the proceedings due to stress related to her presence
in the court. She further submitted that she could not afford a
lawyer.
On
28 October 1999 the District Court dismissed her application for a
legal-aid lawyer.
It considered that assistance of a legal-aid lawyer was necessary
only in complex cases or where a party to the proceedings was
incapable of defending his/her interests. However, in the present
case those conditions had not been met. It further found that the
content of the applicant's submissions to the court supported the
finding that she was capable of effectively representing herself.
On
19 November 1999 the applicant filed an interlocutory appeal
(zażalenie) against the decision of 28 October 1999. She
referred to the stress caused by her participation in the
proceedings. She further submitted that she was receiving psychiatric
treatment, had been granted an invalidity pension on account of her
mental health and was regularly taking various medicines. Those
medicines significantly affected her memory, concentration and the
ability to express her thoughts clearly. Furthermore, she submitted
that she was not an educated person and that her friends had assisted
her in preparation of the court's submissions. Thus, she considered
that legal aid was necessary in order to enable her to defend her
interests adequately in the proceedings.
On
7 December 1999 the Katowice Regional Court dismissed the
interlocutory appeal. It endorsed the reasoning of the District
Court. In addition, it held that the applicant had not submitted any
proof to the effect that she had been receiving psychiatric
treatment.
The
applicant submits that the case-file of the maintenance proceedings
included a medical certificate issued on 12 May 1999. That
certificate attested that the applicant has been regularly treated in
a psychiatric clinic since 1996.
On
2 February 2000 the Katowice Regional Court, following a hearing,
dismissed the applicant's appeal against the District Court's
judgment of 20 September 1999. The court instructed the applicant
that a cassation appeal was not provided for in the present case.
On
10 March 2000 the applicant requested the Regional Court to appoint a
legal-aid lawyer with a view to filing a cassation appeal.
On
23 March 2000 the Regional Court informed the applicant that a
cassation appeal in her case was not provided for by law and inquired
whether she wanted to pursue her legal aid application. On 31 March
2000 the applicant replied in the affirmative.
On
14 April 2000 the Regional Court dismissed her application for legal
aid. It considered that a cassation appeal in her case could not be
lodged as a matter of law, and thus there was no need to provide her
with legal assistance. On 2 May 2000 the applicant filed an
interlocutory appeal against that decision.
On
1 June 2000 the Regional Court rejected her interlocutory appeal as
inadmissible in law. Her further appeals were rejected on 6 July
and 16 August 2000.
On
28 July 2000 the Regional Court informed the applicant that she had
been previously advised that a cassation appeal in her case, which
could only concern the amount of maintenance, was not available. She
was further informed that in the case of a change of circumstances
she could seek an increase of her maintenance.
On
29 August 2000 the applicant in person lodged a cassation appeal
against the Katowice Regional Court's judgment of 2 February 2000. On
14 September 2000 the Regional Court rejected her cassation
appeal. It considered that, pursuant to Article 393 § 2 of the
Code of Civil Procedure, the cassation appeal in her case was not
available as it concerned the amount of maintenance. It also found
that the cassation appeal had not been lodged by a lawyer and within
the statutory time-limit of one month from the date of the service of
the second-instance judgment.
On
27 September 2000 the applicant filed with the Supreme Court an
interlocutory appeal against the decision of 14 September 2000.
On
18 January 2001 the Supreme Court dismissed the applicant's
interlocutory appeal. Firstly, it held that, contrary to the position
of the Regional Court, the applicant's cassation appeal, which
concerned the issue of her entitlement to maintenance, was allowed in
accordance with the provisions of the Code of Civil Procedure as
applicable at the relevant time. It found that the applicant's case
did not concern the issue of the amount of maintenance, which was
excluded from the Supreme Court's jurisdiction. However, the
applicant's cassation appeal was inadmissible on two other statutory
grounds invoked by the Regional Court, namely non-compliance with the
applicable time-limit and compulsory legal representation in
cassation appeal proceedings.
II. RELEVANT DOMESTIC LAW
A. Relevant constitutional provisions
Article 45 § 1 of the Constitution provides as
follows:
“Everyone shall have the right to a fair and
public hearing of his case, without undue delay, before a competent,
impartial and independent court.”
B. Appointment of a legal-aid lawyer
At
the relevant time, Article 117 § 1 of the Code of Civil
Procedure (“CCP”), provided, in so far as relevant:
Ҥ 1. A party [to the
proceedings] exempted partly or entirely from court fees, may request
that an advocate or a legal adviser be appointed for him/her. ... The
court shall grant that request, if it considers that the
participation of an advocate or a legal adviser in the case is
necessary.
...
§ 2. The provision of the preceding paragraph
is also applicable to a party who enjoys a statutory exemption from
the court fees, provided that that party demonstrates, by way of the
declaration referred to in Article 113 § 1, that the fees of the
advocate or legal adviser would entail a reduction in his/her and
his/her family's standard of living.”
At
the relevant time Article 111 § 1 (1) of the CCP provided that a
party seeking maintenance was statutorily exempted from court fees.
Article
113 § 1 of the Code of Civil Procedure, in the version
applicable at the material time, stipulated:
“An individual may ask the court competent to deal
with the case to grant him an exemption from court fees provided that
he submits a declaration to the effect that the fees required would
entail a substantial reduction in his and his family's standard of
living. Such a declaration shall contain details concerning his
family, assets and income. It falls within the court's discretion to
assess whether or not the declaration satisfies the requirements for
granting the exemption requested.”
C. Compulsory legal representation in cassation appeal
proceedings
The
Code of Civil Procedure lays down the principle of mandatory
assistance of a lawyer in cassation appeal proceedings. Article 393²
§ 1 of the Code of Civil Procedure, applicable at the relevant
time, required that a cassation appeal be filed by an advocate or a
legal adviser. Cassation appeals lodged by a litigant in person would
be rejected.
D. Cassation appeal in maintenance cases
Article
393 of the Code of Civil Procedure, in the version applicable until
30 June 2000, provided, in so far as relevant:
“No cassation appeal may be lodged in cases:
1) ...
2) relating to maintenance, when it concerns its amount,
...”
Following
the amendments to the Code which entered into force on 1 July
2000, no cassation appeal may be lodged with the Supreme Court in all
cases relating to maintenance (Article 392¹ § 2 (1)).
E. Leave to appeal out of time
Pursuant to Article 168 § 1 of the CCP if a party
to the proceedings did not perform a procedural measure (czynność
procesowa) within the relevant time-limit through no fault of
his/her own, the court shall grant leave to perform such measure
outside the prescribed time-limit at the party's request. Article 169
§ 3 of the CCP stipulated that the relevant measure shall be
performed simultaneously with lodging the request.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE
CONVENTION
The applicant complained under Article 6 § 1 of
the Convention that she had not been able to present her case
effectively on account of the dismissal of her application for legal
aid in the appeal proceedings. She alleged that the courts dismissing
her application had failed to take into consideration her particular
circumstances. Furthermore, she complained that the refusal of legal
aid in cassation appeal proceedings had deprived her of access to the
Supreme Court. Article 6 § 1 reads, in its relevant part, 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 (exhaustion of domestic remedies)
The Government submitted that the applicant had not
exhausted relevant domestic remedies, because she had failed to make
an application for leave to file her cassation appeal out of time.
The Supreme Court in its decision of 18 January 2001 had held that a
cassation appeal had been available in the applicant's case under the
applicable provisions of the Code of Civil Procedure. The Supreme
Court nevertheless had found that the cassation appeal had been
inadmissible on two statutory grounds, namely non-compliance with the
applicable time-limit and compulsory legal representation in
cassation appeal proceedings. The Government thus maintained that it
could be assumed that if the applicant had lodged a cassation appeal
prepared by a lawyer within the prescribed time-limit it would have
been admissible.
Having regard to the Supreme Court's decision, the
Government observed that the Regional Court in its decision of 14
April 2000 had erred in holding that a cassation appeal had not been
available in the applicant's case. In their view, the Supreme Court's
findings opened to the applicant a possibility of applying for leave
to file her cassation appeal out of time pursuant to Article 168 of
the Code of Civil Procedure, as she had met the conditions stipulated
in that provision. However, the applicant had not availed herself of
that possibility and thus failed to exhaust the relevant domestic
remedy.
The applicant disagreed. She submitted that the
possibility referred to by the Government was only theoretical, since
pursuant to Article 169 of the Code of Civil Procedure, a party
making an application for leave to appeal out of time had to
simultaneously complete the required procedural measure. In the
present case it would mean that at the time of making an application
to lodge her cassation appeal out of time, the applicant should also
have filed such appeal. However, a cassation appeal may only be
lodged by a lawyer and the Regional Court refused to appoint a
legal-aid lawyer to the applicant.
The Court has to determine whether the specific remedy
invoked by the Government could be considered effective in the
circumstances of the present case. It recalls that the only remedies
which Article 35 of the Convention requires to be exhausted are those
that relate to the breaches alleged and at the same time are
available and sufficient.
The Court notes that the applicant sought to have her
cassation appeal against the Regional Court's judgment examined by
the Supreme Court. However, her numerous attempts were unsuccessful
since the Regional Court refused to grant her legal aid to take a
cassation appeal on the erroneous ground that the Supreme Court
lacked jurisdiction in the case. The Government claimed that the
applicant should have made an application for leave to appeal out of
time under Article 168 of the Code of Civil Procedure. However, the
Court considers that the applicant exhausted all ordinary remedies
available to her in the civil procedure and that the remedy invoked
by the Government goes beyond what would normally be required from an
applicant. Furthermore, the Court does not find it established that
an application for leave to appeal out of time would have been
adequate and sufficient to enable the applicant to file her cassation
appeal with the Supreme Court. Consequently, the Court finds that the
applicant exhausted all available and effective domestic remedies.
For these reasons, the Government's plea of inadmissibility on the
ground of non-exhaustion of domestic remedies must be dismissed.
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
1. The applicant's submissions
The applicant argued that Article 6 § 1 could
sometimes compel the State to provide for the assistance of a lawyer
when such assistance proved indispensable for an effective access to
court. She maintained that she was not in a position to appoint a
counsel of her own choosing, since she had been declared unfit for
work and granted an invalidity pension in the amount of PLN 388 per
month.
2. The Government's submissions
The Government submitted that the requirements of
fairness were not necessarily the same in civil and criminal cases
(Dombo Beheer B.V. v. the Netherlands, judgment of 27
October 1993, Series A no. 274, § 32). Nevertheless,
Article 6 § 1 provides some guarantees for persons seeking legal
assistance in civil cases, albeit less extensive ones than in
criminal cases. The Government argued that the question of legal
assistance should be seen as an element of the right of access to a
court, rather than the right to a fair hearing. In this context, the
means employed by the State to ensure effective access to civil
courts fell within its margin of appreciation (Airey v. Ireland,
judgment of 9 October 1979, Series A no. 32, § 26).
The Government maintained that provision of legal aid
in civil cases was required only in situations where a person could
not plead his/her case effectively or when the law made legal
representation compulsory. However, even in such cases the provision
of legal aid was not mandatory in all kinds of civil proceedings.
Consequently, the Government submitted that the present case
concerning a dispute over the entitlement to maintenance had to be
distinguished from other cases related to determination of civil
status and family relationships. Furthermore, unlike Article 6 §
3 (c) which expressly provided for legal assistance in criminal
cases, the Convention did not guarantee such a right in civil cases.
Consequently, the State was not obliged to ensure legal assistance in
every civil case.
The Government submitted that Polish law required
compulsory legal representation in cassation appeal proceedings.
However, in the present case the court's refusal to grant the
applicant legal aid had not prevented her from lodging a cassation
appeal since she could have appointed a counsel of her own choosing
for that purpose. The fact that the applicant had not seized that
possibility could not, in the Government's view, be held against
them. Thus, they considered that there had been no violation of
Article 6 § 1 of the Convention.
3. The third-party's submissions
The third party (the Polish Helsinki Foundation for
Human Rights) made a number of general observations concerning the
legal framework regulating the legal aid scheme in Poland and the
relevant practice, based on their report on Access to Legal Aid in
Poland. That report identified a number of restrictions on access
to legal aid by indigent persons and called for the introduction of
significant changes in the scheme. It revealed, inter alia,
that legal aid was granted only in 0.17-0.18 % of non-criminal cases.
The Foundation submitted that in certain civil cases
provision of assistance by a legal-aid lawyer could be crucial for
ensuring the effective right of access to a court. It argued that
maintenance proceedings could serve as a perfect example of
proceedings where careful examination of the applications for legal
aid was essential. Firstly, maintenance often provided a key
financial support for single parents and their children. Secondly,
the State recognised the precarious situation of those individuals by
having exempted them ex lege from court fees in maintenance
proceedings. Thirdly, refusal to provide legal assistance by the
court in such proceedings could result in depriving a person
concerned of access to a court.
The Foundation submitted that litigants applying for
legal aid had to be ensured a procedure which offered them adequate
guarantees to protect them from arbitrariness and that it was thus
incumbent on the State to establish such procedures. In respect of
the Polish legal-aid scheme those guarantees appeared to be
insufficient, having regard to the fact that legal aid applications
were decided solely by the courts.
The Foundation concluded that access to justice should
not be impaired by high legal costs. Indigent persons should be able
to exercise their rights effectively and could not be deprived of
their right of access to a court simply because they could not afford
to pay legal costs. This applied, in particular, to those indigent
persons who were vulnerable or could not represent themselves
effectively in court proceedings.
4. The Court's assessment
(a) General principles
There is no automatic right under the Convention for
legal aid or legal representation to be available for an applicant
who is involved in proceedings which determine his or her civil
rights. The Court recalls that there is a clear distinction between
the wording of Article 6 § 3 (c), which guarantees the right to
free legal assistance on certain conditions in criminal proceedings,
and of Article 6 § 1, which makes no reference to legal
assistance (Del Sol v. France, no. 46800/99, § 20,
ECHR 2002 II; Tabor v. Poland, no. 12825/02, § 39,
27 June 2006). Nonetheless, Article 6 may be engaged under two
interrelated aspects (see, P., C. and S. v. the United
Kingdom, no. 56547/00, § 88, ECHR 2002 VI).
Firstly, Article 6 § 1 of the Convention embodies
the right of access to a court for the determination of civil rights
and obligations (see Golder v. the United Kingdom,
judgment of 21 February 1975, Series A no. 18, p. 18,
§ 36). Failure to provide an applicant with the assistance
of a lawyer may breach this provision where such assistance is
indispensable for effective access to court, either because legal
representation is rendered compulsory as is the case in certain
Contracting States for various types of litigation, or by reason of
the complexity of the procedure or the type of case (see Airey v.
Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14-16,
§§ 26-28, where the applicant was unable to obtain the
assistance of a lawyer in judicial separation proceedings). Factors
identified as relevant in Airey in determining whether the
applicant would have been able to present her case properly and
satisfactorily without the assistance of a lawyer included the
complexity of the procedure, the necessity to address complicated
points of law or to establish facts, involving expert evidence and
the examination of witnesses, and the fact that the subject matter of
the marital dispute entailed an emotional involvement that was
scarcely compatible with the degree of objectivity required by
advocacy in court. In such circumstances, the Court found it
unrealistic to suppose that the applicant could effectively conduct
her own case, despite the assistance afforded by the judge to parties
acting in person (see, P., C. and S., cited above, § 89).
However, as the Airey case itself made clear (pp. 12-16, §§ 24
and 26), Article 6 § 1 leaves to the State a free choice of
the means to be used in guaranteeing litigants a right of effective
access to a court (McVicar v. the United Kingdom, no.
46311/99, § 45, ECHR 2002 III).
The Court recalls that the right of access to a court
is not absolute and may be subject to legitimate restrictions. Where
an individual's access is limited either by operation of law or in
fact, the restriction will not be incompatible with Article 6 where
the limitation did not impair the very essence of the right and where
it pursued a legitimate aim, and there was a reasonable relationship
of proportionality between the means employed and the aim sought to
be achieved (see Ashingdane v. the United Kingdom, judgment of
28 May 1985, Series A no. 93, pp. 24-25, § 57). It may therefore
be acceptable to impose conditions on the granting of legal aid
based, inter alia, on the financial situation of the litigant
or his or her prospects of success in the proceedings (Steel and
Morris v. the United Kingdom, no. 68416/01, § 62, ECHR
2005 II). Thus, although the pursuit of proceedings as a
litigant in person may on occasion not be an easy matter, the limited
public funds available for civil actions renders a procedure of
selection a necessary feature of the system of administration of
justice, and the manner in which it functions in particular cases may
be shown not to have been arbitrary or disproportionate, or to have
impinged on the essence of the right of access to a court (see Del
Sol, cited above, § 26). It may be the case that other
factors concerning the administration of justice (such as the
necessity for expedition or the rights of others) also play a
limiting role as regards the provision of assistance in a particular
case, although such restriction would also have to satisfy the tests
set out above (see P., C. and S., cited above, §
90).
Article 6 § 1 does not compel the Contracting
States to set up courts of appeal or of cassation. Nevertheless, a
Contracting State which sets up an appeal system is required to
ensure that persons within its jurisdiction enjoy before appellate
courts the fundamental guarantees in Article 6, regard being had to
the fact that the manner of application of that provision to such
courts depends on the special features of the proceedings involved
and that account must be taken of the entirety of the proceedings in
the domestic legal order and of the role of the appellate court
therein (see, for instance, Brualla Gómez de la Torre v.
Spain, judgment of 19 December 1997, Reports 1997-VIII, p.
2955, § 33 and Podbielski and PPU Polpure v. Poland,
no. 39199/98, § 62, 26 July 2005).
Secondly, the key principle governing the application
of Article 6 is fairness. In cases where an applicant appears in
court notwithstanding lack of assistance by a lawyer and manages to
conduct his or her case in spite of all the difficulties, the
question may nonetheless arise as to whether this procedure was fair
(see McVicar, cited above, §§ 50-51). There is the
importance of ensuring the appearance of the fair administration of
justice and a party in civil proceedings must be able to participate
effectively, inter alia, by being able to put forward the
matters in support of his or her claims. Here, as in other aspects of
Article 6, the seriousness of what is at stake for the applicant will
be of relevance to assessing the adequacy and fairness of the
procedures (see P., C. and S., cited above, § 91).
However, it is not incumbent on the State to seek through the use of
public funds to ensure total equality of arms between the assisted
person and the opposing party, as long as each side is afforded a
reasonable opportunity to present his or her case under conditions
that do not place him or her at a substantial disadvantage vis-à-vis
the adversary (see Steel and Morris, cited above, § 62).
(b) Application of the above principles
The Court will first 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 her 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 31 above).
The Court recalls 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, for instance, Vacher v. France,
judgment of 17 December 1996, Reports 1996-VI, pp. 2148-49,
§§ 24 and 28 and Tabor, cited above, § 42).
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 (R.D. v.
Poland, nos. 29692/96 and 34612/97, § 44,
18 December 2001).
The Court observes that on 14 April 2000 the Regional
Court refused the applicant's request to appoint a legal-aid lawyer
in cassation appeal proceedings on the grounds that such appeal was
not available in her case. Subsequently, the applicant filed her
cassation appeal without being represented by a counsel. On 14
September 2000 the Regional Court rejected it on the grounds of lack
of the Supreme Court's jurisdiction in the case and, additionally,
for failure to comply with two statutory requirements (time-limit of
one month from the date of the service of the second-instance
judgment and compulsory legal representation). The Supreme Court in
its decision of 18 January 2001 held that it had jurisdiction to hear
the case, but nevertheless the cassation appeal had still been
inadmissible for failure to comply with the above-mentioned statutory
requirements.
The
Court reiterates that it is not its task to take the place of the
domestic courts. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation (see Edificaciones March Gallego S.A. v. Spain,
judgment of 19 February 1998, Reports 1998 I, p. 290, §
33). This applies in particular to the interpretation by courts of
rules of a procedural nature such as the prescribed manner and
prescribed time for lodging appeals (see Pérez de Rada
Cavanilles v. Spain, judgment of 28 October 1998, Reports
1998 VIII, p. 3255, § 43). The Court's role is confined
to ascertaining whether the effects of such an interpretation are
compatible with the Convention. Furthermore, the Court recalls that
the rules governing the formal steps to be taken and the time-limits
to be complied with in lodging an appeal are aimed at ensuring the
proper administration of justice and compliance, in particular, with
the principle of legal certainty. That being so, the rules in
question, or the manner in which they are applied, should not prevent
litigants from using an available remedy (see Miragall Escolano
and Others v. Spain, nos. 38366/97, 38688/97, 40777/98,
40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41787/98 and
41509/98, §§ 33 and 36, ECHR 2000-I and Běleš
and Others v. the Czech Republic, no. 47273/99, § 49,
ECHR 2002 IX).
The Court finds that the Regional Court's refusal to
provide the applicant with the assistance of a lawyer was based on
the erroneous premise that a cassation appeal was not available in
the applicant's case. The Regional Court's error was subsequently
acknowledged by the Supreme Court and admitted by the Government. The
Court further observes that the Regional Court did not examine the
merits of the applicant's request for legal aid. Having regard to the
foregoing, the applicant cannot be blamed, as the Government
suggested, for not having appointed a counsel of her own choosing to
represent her in cassation appeal proceedings. In any event, that
possibility seems to be rather hypothetical given the financial
standing of the applicant.
The Court finds that in those circumstances the
applicant was made to bear the consequences of the Regional Court's
error in that her cassation appeal was rejected as inadmissible. It
is evident that the applicant cannot be held responsible for that
error. Accordingly, the Court finds that the applicant was deprived
of the effective access to the Supreme Court on account of the flawed
interpretation of domestic law by the Regional Court (see, mutatis
mutandis, Leoni v. Italy, no. 43269/98, §§ 24-27,
26 October 2000 and Platakou v. Greece, no. 38460/97,
§§ 39 and 44, ECHR 2001 I).
Having regard to the foregoing, the Court considers
that it is not necessary to examine whether the refusal to provide
the applicant with the assistance of a lawyer in the appeal
proceedings before the Regional Court amounted to a breach of Article
6 § 1.
In conclusion, the Court finds that the denial of
legal aid to the applicant in the cassation appeal proceedings and
the ensuing rejection of her cassation appeal infringed the very
essence of the applicant's right of access to a court. There has
accordingly been a violation of Article 6 § 1 of the Convention.
II. 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 100,000 Polish zlotys (PLN) in
respect of the non-pecuniary damage she has suffered. She further
sought an award of PLN 27,000 under the head of pecuniary damage as
compensation for the court's judgment decreasing the amount of her
maintenance.
As regards the claim for pecuniary damage, the
Government argued that the applicant had not shown that there was a
direct causal link between that damage and the case. In respect of
the claim for non-pecuniary damage, they submitted that it was
exorbitant and should be rejected. The Government further submitted
that should the Court establish that there was a violation of Article
6 § 1, it should rule that a finding of a violation constituted
in itself sufficient just satisfaction. In the alternative, they
invited the Court to assess the amount of just satisfaction on the
basis of its case-law in similar cases and having regard to national
economic circumstances.
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 accepts that the applicant
suffered non-pecuniary damage, such as stress and frustration
involved in her futile efforts to have her cassation appeal heard by
the court, which is not sufficiently compensated by the finding of a
violation of the Convention. Making its assessment on an equitable
basis, the Court awards the applicant EUR 2,000 under this head.
B. Costs and expenses
The applicant also claimed EUR 2,000 for the costs and
expenses incurred before the Court.
The Government argued that any award under this head
should be limited to those costs and expenses that had been actually
and necessarily incurred and were reasonable as to quantum.
The Court considers it reasonable to award the
applicant EUR 2,000 for costs and expenses involved in the
proceedings before it, less EUR 850 received by way of legal aid
from the Council of Europe. The Court thus awards EUR 1,150 for costs
and expenses.
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 application 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, 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) in respect of non-pecuniary damage and EUR 1,150 (one
thousand one hundred fifty euros) in respect of costs and expenses,
to be converted into the national currency of the respondent State at
the rate applicable at the date of settlement, plus any tax that may
be chargeable;
(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 13 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
