(Application no. 41373/04)
15 September 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 Arciński v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 25 August 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION WITH ARTICLE 6 § 1 (c ) OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
3. Everyone charged with a criminal offence has the following minimum rights: ...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
1. The parties' submissions
However, parties to criminal proceedings should have an effective access to the Supreme Court in the context of cassation proceedings. They should be promptly informed of the existence of grounds for an appeal, or that they have been refused a legal-aid lawyer. It was the courts' role to check whether the clients of legal aid lawyers were kept promptly informed.
The applicant further submitted that in his case the appellate court had forwarded the lawyer's refusal to him only one day before the relevant time limit expired. Moreover, the court had refused to assign a new legal-aid lawyer to the case. In consequence, the applicant had had no real chance of having his case brought before the Supreme Court.
2. Principles established by the Court's case-law
a) The scope of the State's liability ratione personae under the Convention
b) Access to court
3. Application of the principles to the facts of the case
III. ALLEGED VIOLATION 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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
2. Holds that there has been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c);
(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 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Mijović is annexed to this judgment.
CONCURRING OPINION OF JUDGE MIJOVIĆ
As it was emphasised in my previous concurring opinions in two recent cases,1 as well as in the joint dissenting opinion in Smyk v. Poland2, I see the problem of the refusal of lawyers appointed under legal aid schemes to represent legally aided persons on the ground that the claim has no reasonable prospects of success, as the general one, related not only to criminal, but also to both civil and administrative proceedings3. To avoid repetition, I refer to the detailed reasoning of those opinions.
1 Kulikowski v. Poland and Antonicelli v. Poland, May 19, 2009
2 July 7, 2009
3 There are more than 120 such cases pending before the European Court of Human Rights