European Court of Human Rights

EUROPEAN COURT OF HUMAN RIGHTS

186

22.3.2007

Press release issued by the Registrar

Chamber judgments concerning Austria and Poland

The European Court of Human Rights has today notified in writing the following three Chamber judgments, none of which are final.¹ (The judgments are available only in English.)

Maslov v. Austria (application no. 1638/03) Violation of Article 8

The applicant, Juri Maslov, is a Bulgarian national who was born in 1984 and who, at the age of six, lawfully entered Austria with his parents and two siblings. He went to school in Austria and speaks German. He currently lives in Bulgaria.

The application concerned the 10-year residence prohibition against Mr Maslov, issued by the Vienna Federal Police Authority, relying on Section 36 § 1 of the 1997 Aliens Act. The prohibition was made following Mr Maslov’s convictions by the Vienna Juvenile Court in September 1999 and then in May 2000. The first conviction was, in particular, for burglary, extortion and assault which resulted in an 18-month prison sentence, 13 months of which were suspended on probation. Mr Maslov was also instructed to start drug therapy. The second conviction was for a series of burglaries resulting in 15 months’ imprisonment. The Juvenile Court considered Mr Maslov’s rapid relapse into crime after his first conviction and his failure to undergo drug withdrawal treatment as aggravating circumstances. That court also noted that, though still living with his parents, he had completely eluded their educational influence, had repeatedly been absent from home and had dropped out of school. Mr Maslov was released from prison in May 2002 and, ultimately, deported to Bulgaria on 22 December 2003.

Mr Maslov relied on Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The European Court of Human Rights reiterated that the residence prohibition had a basis in domestic law and that it “pursued the legitimate aim” of preventing disorder and crime. However, given the nature of the offences which were non-violent and a result of juvenile delinquency, given Mr Maslov’s good conduct following his release from prison the second time and given his lack of ties with his country of origin, the Court found that a ten-year residence prohibition appeared disproportionate to that “legitimate aim”. The Court therefore held, by four votes to three, that there had been a violation of Article 8 of the Convention and awarded the applicant 5,759.96 euros (EUR) in respect of costs and expenses. It further held that a finding of a violation was in itself just satisfaction for any non-pecuniary damage.

Violation of Article 6 § 1 (fairness)

Siałkowska v. Poland (no. 8932/05)

Staroszczyk v. Poland (no. 59519/00)

The applicants, Krystyna Siałkowska, and Marianna and Stanisław Staroszczyk, are Polish nationals who were born in 1950, 1932 and 1933 respectively. Krystyna Siałkowska lives in Wrocław (Poland) and Marianna and Stanisław Staroszczyk live in Pruszków (Poland).

Ms Siałkowska’s application concerned proceedings in which she claimed a widow’s pension, her ex-husband having died in September 2002.

Marianna and Stanisław Staroszczyk’s application concerned proceedings in which they requested that, following the sale of a property belonging to them in Pruszków (near Warsaw), a plot of land be allotted to their son as promised by Pruszków City Council.

The applicants complained under Article 6 § 1 (right of access to a court) about the unfairness of the proceedings, referring to the fact that the lawyer appointed under the legal aid scheme failed to take the necessary steps to represent their interests effectively and refused to bring a cassation appeal to the Supreme Court – where legal representation was mandatory – against a judgment of the appellate court.

The Court pointed out that there was no obligation under the Convention to make legal aid available for disputes in civil proceedings and the requirement for an appellant to be represented by a qualified lawyer before the highest court examining appeals on points of law was not, in itself, in breach of the right to a fair hearing.

However, the method chosen by the domestic authorities to ensure access to domestic courts in a particular case had to be compatible with the Convention. The State also had to show diligence in protecting the rights guaranteed under Article 6 and the legal aid system had to offer individuals substantial guarantees to protect them from arbitrariness.

The Court noted that the independence of the legal profession was crucial for the administration of justice to function effectively. It was not the role of the State to oblige a lawyer, whether appointed under a legal aid scheme or not, to take any specific steps when representing their clients. Such State powers would be detrimental to the essential role of an independent legal profession in a democratic society founded on trust between lawyers and their clients. It was the responsibility of the State to ensure a proper balance between access to justice and the independence of the legal profession.

However, the Court was of the view that the refusal of a legal aid lawyer to lodge a cassation appeal should meet certain quality requirements.

In Staroszczyk the Court noted that, under the applicable domestic regulations, the legal aid lawyer was not obliged to prepare a written legal opinion on the prospects of the appeal. Nor did the law set any standards as to the legal advice he had to give to justify his refusal to lodge a cassation appeal. Had such requirements existed, it would have been possible, subsequently, to have had an objective assessment of whether the refusal had been arbitrary.

In Sialkowska, the Court observed that the applicable domestic regulations did not specify the time-frame within which the applicant should be informed about the refusal to prepare a cassation appeal.

The Court concluded that the applicants had not been able to secure access to a court in a “concrete and effective manner” through the legal aid system. It therefore held, unanimously, in the case of Siałkowska and, by four votes to three, in the case of Staroszczyk, that there had been a violation of Article 6 § 1. The applicants were awarded in each case EUR 4,000 in respect of non-pecuniary damage and EUR 3,500 for costs and expenses (less EUR 1,928.67, received by way of legal aid from the Council of Europe in the case of Siałkowska, and less EUR 2,168.76 in the case of Staroszczyk).

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These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.