(Application no. 8958/04)
28 July 2009
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 Smyk v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 7 July 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
2. The civil proceedings
“I hereby inform you that on 9 October I was served with a written grounds for the judgment of the Białystok Court of Appeal of 10 September 2003.
Having examined the written reasons for the judgment, I am obliged to state that there are no legal grounds on which to prepare a cassation appeal.
Cassation appeal is an extraordinary legal remedy which can be lodged where the court erred in the application of substantive or procedural law, if such an error could have affected the outcome of the case. In your case no such errors are disclosed.
In addition, for a cassation appeal to be accepted for examination by the Supreme Court, it is necessary to demonstrate that legal issues justifying such examination obtain in the case. In your case it is the establishment of the facts by the courts which is in issue.
Having regard thereto, I am forwarding to you a copy of the judgment as I cannot be of any further assistance in your case.”
“The court ... decided to dismiss the plaintiff's request for a legal-aid lawyer to be assigned to the case.”
The decision did not contain reasons as under the relevant provisions of the Code of Civil Procedure no appeal was available against it and, in consequence, the court was not obliged to prepare any (see paragraphs 19 – 21 below).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legal aid
B. The cassation appeal
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law by its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
“§ 1. A cassation appeal should include:
1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;
2) an indication of the grounds for the cassation appeal;
3) arguments showing that its examination would be justified;
4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”
“A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).”
“1. The Supreme Court may refuse to entertain the cassation appeal, if:
i) there is no appearance of any significant legal issue in the case,
ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case law,
iii) the appeal is manifestly ill-founded.
2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”
C. Relevant provisions of the Bar Act
“1. The Bar is established to provide legal assistance, co-operate in protecting a person's rights and freedoms as well as to formulate and apply the law.
2. The Bar is organized as a self-governing association.
3. An advocate whilst executing his/her professional duties is accountable only to the law.”
“The general tasks of the professional Bar Council are as follows:
1) creation of conditions for the statutory performance of the Bar's tasks,
2) representation of the Bar and protection of its rights,
3) supervision over the observance of the rules regulating the practice of the profession,
4) development of professional skills and training of advocates,
5) determination and promotion of professional ethics and ensuring their observance,
6) management (...) of the Bar's assets.”
“1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council.
2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.”
33. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under legal aid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney terminate the representation, or notify the refusal to the body which appointed him or her.
D. Resolution of the Supreme Court of 2000 (III CZP 14/00)
E. Retrospective leave to appeal out of time
F. Service of court correspondence
“3. If a legal representative or a person authorised to receive court correspondence on behalf of a party has been appointed in a case, the court correspondence shall be served on these persons.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
Article 6 § 1 reads, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The applicant did not address this issue.
The Court's assessment
54. The Court notes at the outset that the responsibility of the Contracting Parties is incurred by the actions of their organs. A lawyer, even if officially appointed, cannot be considered to be an organ of the State. Given the independence of the legal profession from the State, the conduct of the case is essentially a matter between the party and his or her counsel, whether counsel be appointed under a legal aid scheme or be privately financed, and, as such, cannot, other than in special circumstances, incur the State's liability under the Convention (see, mutatis mutandis, Artico v. Italy, judgment of 30 May 1980, Series A no. 37, p. 18, § 36; Daud v. Portugal, judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II, p. 749, § 38; Tuziński v. Poland (dec), no. 40140/98, 30.03.1999; and Rutkowski v. Poland (dec.), no. 45995/99, ECHR 2000 XI).
The Court notes that under the domestic regulations a legal-aid lawyer may refuse to prepare a cassation appeal if she or he believes that legal grounds for lodging it do not obtain. As the Court has already observed:
“the mere fact that a legal aid lawyer can refuse to represent a party in proceedings before the highest court cannot be said to be, of itself, tantamount to a denial of legal assistance which is incompatible with the State's obligations under Article 6 of the Convention (Siałkowska v. Poland, cited above, § 113; Antonicelli v. Poland, § 38, Kulikowski v. Poland, § 63).”
“refusal of a legal-aid lawyer to prepare and lodge a cassation appeal should meet certain quality requirements (see Staroszczyk v. Poland, cited above, § 135; Siałkowska v. Poland, cited above, § 114).”
These requirements concern, in particular, the time-frame and the form of such a refusal. The former requirement has been set out in the Siałkowska v. Poland case, where 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. When the applicant was informed about the legal-aid lawyer's refusal, the time-limit for lodging of a cassation appeal was to expire in three days (see Siałkowska v. Poland, §§ 114 – 115).”
The Court was of the view that in the circumstances it would have been impossible for the applicant to find a new lawyer under the legal aid scheme. Consequently, she had so little time left to take any steps to have the cassation appeal in her case prepared. It could not therefore be said that she had had a realistic opportunity of having her case brought to and argued before the cassation court.
With respect to the form of the legal-aid lawyer's refusal, the Court has further held that:
“it must not be formulated in such a way as to leave the client in a state of uncertainty as to its legal grounds. The Court has observed 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 or her refusal to lodge a cassation appeal.”
As a result, it found a violation in a case where the lawyer only informed the applicants orally about his refusal to lodge a cassation appeal on their behalf. The Court expressed the view that:
“If requirements concerning the written form of refusal, including the reasons for it, to draw up a cassation appeal had existed, they would have rendered possible an objective post-hoc assessment of whether the refusal to prepare the cassation appeal in a given individual case had been arbitrary. The lack of the written form of refusal left the applicants without necessary information as to their legal situation and, in particular, the chances of their cassation appeal to be accepted by the Supreme Court. In the Court's opinion, the mere fact that the timing of the refusal seemed unobjectionable could not cure this deficiency (see Staroszczyk v. Poland, §§ 135 – 137).”
“Article 6 of the Convention does not confer on the State an obligation to ensure assistance by successive legal-aid lawyers for the purposes of pursuing legal remedies which have already been found not to offer reasonable prospects of success (see Antonicelli v. Poland, § 43; Kulikowski v. Poland, § 68).”
The Court is of the opinion that the same principle holds true in the context of civil cassation. To hold otherwise would result in imposing on the State, for the purposes of civil proceedings, a more far-reaching procedural obligation in respect of legal aid than that applicable to criminal cases. This would be incompatible with its case-law (see Del Sol v. France, cited above, § 20).
III. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
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
Done in English, and notified in writing on 28 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Bonello joined by Judge Mijović is annexed to this judgment.
DISSENTING OPINION OF JUDGE BONELLO JOINED BY JUDGE MIJOVIĆ
1 Kulikowski v. Poland, n° 18353/03, 19 May 2009 and Antonicelli v. Poland, n° 2815/05, 19 May , 2009